No Substitute for Certificate of Probable Cause to Appeal from Order on Bifurcated Family Law Issue

Dissolution matters are often bifurcated.  Ordinarily, a party must await final judgment before appealing.  However, Family Code section 2025 provides a means of appealing an order on a bifurcated issue in the appropriate circumstance:

“Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial Council.”

In Marriage of Lafkas, case no. B189280 (2d Dist. August 6, 2007) the pro per husband appealed from an order on the bifurcated issue of asset disposition.  Conceding that he faileed to obtain a certificate of probable cause from the trial court and move for leave in the Court of Appeal, he nonetheless contended that his appeal should not be dismissed because the court’s grant of wife’s application for attorney’s fees to retain appellate counsel operated as a de facto certificate of probable cause.  The court rejects this contention because neither the Family Code nor the applicable rules provide for de facto certificates.

Here, the rules are the rules.  Don’t try to bend them.  Besides, the court points out that husband still has an appellate remedy by way of appeal from the eventual judgment.

This is a short case worth a read from anyone who wants to gain some quick familiarity with principles of appellate jurisdiction, as the court sums some of those principles up as it begins its discussion of the merits.