Marriage of Badea-Mic and Detres CA3 ( 2020 )

Filed 11/23/20 Marriage of Badea-Mic and Detres CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re the Marriage of MIHAELA C. BADEA-MIC C085459
and AUGUSTIN D. DETRES.
MIHAELA C. BADEA-MIC, (Super. Ct. No. 12FL04959)
Appellant,
v.
AUGUSTIN D. DETRES,
Respondent.
In this appeal, appellant Mihaela C. Badea-Mic (Badea-Mic) challenges an order
of the family law court giving respondent, her ex-husband Augustin D. Detres (Detres),
authority to sell the marital home. Badea-Mic does not dispute that the court had
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discretion to authorize the sale, but contends she was denied due process when the court
failed to hold a hearing to allow her to contest the agreed price and other terms of sale.
Detres argues that the intervening sale of the home to a third party renders this appeal
moot. We agree, and therefore dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Badea-Mic and Detres were married for approximately a year and a half when
they separated. While married, they purchased a home in Fair Oaks, California (the
Property), which was secured by a mortgage (deed of trust) in Detres’s name alone.
In December 2011, Badea-Mic and Detres separated. In July 2012, just before
filing for divorce, Detres executed a quitclaim deed transferring his interest in the
Property to Badea-Mic.
In August 2012, Badea-Mic and Detres filed a “Joint Petition for Summary
Dissolution” of their marriage under Family Code section 2400 et seq.1 Section 2400
establishes a simple procedure for a couple to obtain a divorce, but the procedure is only
available to couples who meet certain conditions, one of which is that neither party has
any interest in real property. (§ 2400, subd. (a)(5).) When Badea-Mic and Detres filed
their joint petition, they both stated under oath that they did not own any real property
and had no community assets or liabilities. Based on their petition, the family court
entered a judgment of dissolution on March 25, 2013.
Section 2556 provides that a party to a dissolution proceeding may file a
postjudgment motion to obtain adjudication of any community asset or liability omitted
or not adjudicated by the judgment in the proceeding.2 (§ 2556; see also In re Marriage
1 Undesignated statutory references are to the Family Code.
2 Section 2556 imposes no time limit, and it applies even if the former spouses were
aware of the community property at the time the dissolution judgment was entered. (In re
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of Huntley, supra, 10 Cal.App.5th at p. 1059 [a dissolution judgment does not affect the
disposition of community property as to which the judgment is silent]; In re Marriage of
Brown (1976) 15 Cal. 3d 838, 850-851 [same].) In October 2015, Detres filed a motion
under section 2556 to adjudicate the Property as an omitted community property asset.
Detres declared that before filing for divorce, the parties had an oral agreement that
Badea-Mic would refinance the Property in her name and assume responsibility for the
mortgage payments. Because Badea-Mic never refinanced the Property and fell behind
on the payments, Detres declared that he was compelled to make the payments to protect
his credit rating. Detres sought a court order compelling Badea-Mic to refinance the
Property and reimburse him for his payments. If she failed to do so, Detres requested the
court order that the Property be sold.
In November 2015, the parties entered into a stipulation which was adopted as a
court order. Under the stipulated order, the parties agreed that Badea-Mic would
refinance the Property and be responsible for all mortgage payments. If Badea-Mic failed
to refinance the Property within six months, or fell more than 30 days behind in mortgage
payments, Detres could sell the Property and the parties would divide the proceeds upon
sale. Badea-Mic also agreed to pay Detres $7,488.18 in installments of $500 per month
to reimburse him for his mortgage payments.
Five months later, in April 2016, Detres filed a motion to enforce the November
2015 stipulated order. Detres alleged that Badea-Mic made only one $500 payment, had
not refinanced the Property, and had not made any mortgage payments. Detres sought an
order compelling Badea-Mic to cooperate in selling the Property. Badea-Mic opposed
the motion. The court granted Detres’s motion, ordering Badea-Mic to cooperate in
listing the Property for sale and to pay Detres $7,488.18, plus interest.
Marriage of Huntley (2017) 10 Cal. App. 5th 1053, 1060; Huddleson v. Huddleson (1986)
187 Cal. App. 3d 1564, 1569.)
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Detres then moved for an order authorizing him to sell the Property without
Badea-Mic’s approval by using the county clerk as an elisor to sign any necessary papers.
Detres’s motion culminated in another stipulation, which was adopted as a court order on
January 30, 2017.3 Under the January 2017 stipulated order, the parties agreed that
(1) Badea-Mic would make timely mortgage payments; (2) Badea-Mic would refinance
the Property within six months; and (3) Badea-Mic would pay Detres $15,008.74 as
reimbursement for past mortgage payments. The parties agreed, and the court ordered,
that Badea-Mic’s failure to comply with these requirements would result in the
immediate sale of the Property.
On June 9, 2017, Detres filed a motion to enforce the January 2017 stipulated
order. The motion was based on Badea-Mic’s failure to provide required financial
documents or to take any steps to refinance the Property. If Badea-Mic did not refinance
the Property by June 30, or put the Property up for sale by July 11, Detres asked the court
to authorize him to hire a realtor and sell the Property using an elisor to sign the
necessary papers.
Detres’s motion was heard on July 17, 2017. Although Badea-Mic’s attorney was
present for the hearing, Badea-Mic did not file written opposition to the motion. At the
conclusion of the hearing, the court granted the motion. Badea-Mic subsequently moved
for reconsideration on the ground that she was unable to defend against the motion due to
her poor health. She included a declaration from a realtor, estimating the market value of
the Property to be $279,000.
Detres opposed the motion for reconsideration, arguing that it did not raise any
new or different facts, circumstances, or law. Detres included with his opposition a
rebuttal declaration from his realtor, who concluded that the $279,000 appraisal from
3 Badea-Mic’s attorney prepared and filed the stipulation.
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Badea-Mic’s realtor was too high. Detres’s realtor declared that it was necessary to
discount the Property due to Badea-Mic’s refusal to cooperate in the sale. Detres’s
realtor declared that after initially listing the Property for $249,999, and then reducing the
listing price to $224,999, the best offer received for the Property was $194,308.98.
The court denied Badea-Mic’s motion for reconsideration on August 28, 2017.
The same day, Badea-Mic filed a notice of appeal. On August 31, 2017, Badea-Mic filed
a motion seeking to stay the court’s July 17, 2017 order. The trial court denied the stay
request on September 1, 2017.
On or about September 5, 2017, escrow closed on the sale of the Property. On
September 7, 2017, a grant deed was recorded transferring title of the Property to the new
owners.4
On October 3, 2017, Badea-Mic filed a petition for a writ of supersedeas, which
we denied.
DISCUSSION
In this appeal, Badea-Mic purports to challenge the trial court’s July 17, 2017
order authorizing Detres to sell the Property. Her sole contention is that she was denied
due process because there was no hearing to approve the sale at which she could
challenge the sale price and other terms of sale. Badea-Mic contends that had she been
given a chance to contest the sales price, she could have convinced the court that the
price received was too low. Badea-Mic seeks to reverse the trial court’s order
authorizing sale of the Property.
Detres argues the appeal must be dismissed as moot because the Property has been
sold and, consequently, it is now impossible for this court to grant Badea-Mic the relief
she seeks. We agree.
4 We grant Detres’s November 8, 2019 request for judicial notice of the recorded
grant deed.
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“ ‘ “ ‘[T]he duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions
upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.’ ” ’ ” (Saltonstall v. City of
Sacramento (2014) 231 Cal. App. 4th 837, 848-849.) If, because of subsequent events, an
appellate decision can have no practical impact or provide any effectual relief, the appeal
should be dismissed as moot. (Id. at p. 848.)
In this case, the trial court issued an order authorizing Detres to use an elisor to
effectuate a sale of the Property. Badea-Mic filed an appeal, but she never posted an
undertaking (Code Civ. Proc., § 917.4) or otherwise obtained a stay pending appeal. As a
consequence, during the pendency of the appeal, the Property was sold to a third party
bona fide purchaser. We conclude that the intervening sale of the Property renders this
appeal moot. Our decision on the propriety of the court’s order can have no practical
effect because it will not reverse the sale.5 (City of Riverside v. Horspool (2014) 223
Cal. App. 4th 670, 682-683, 685 [receiver’s sale of property rendered appeal moot]; First
Federal Bank of California v. Fegen (2005) 131 Cal. App. 4th 798, 800-801 [creditor’s
sale of property under enforcement of judgments law rendered appeal moot].)
Accordingly, we shall dismiss the appeal.
5 Badea-Mic has not cited any authority that would allow us to invalidate the sale.
And she appears to concede it cannot be reversed. Nevertheless, she argues the appeal is
not moot because she may collect damages from Detres by proving the Property should
have sold for more than it did. However, as she has not cited any authority to support her
contention, we deem this argument forfeited. (Badie v. Bank of America (1998) 67
Cal. App. 4th 779, 784-785; Fernandes v. Singh (2017) 16 Cal. App. 5th 932, 942-943.)
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DISPOSITION
The appeal is dismissed. Respondent is awarded his costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(2).)
KRAUSE , J.
We concur:
RAYE , P. J.
BLEASE , J.
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