Joinder of Third Parties in a Divorce Proceeding Who Claim an Interest in Contested Property Was Proper

During the pendency of a drawn-out divorce proceeding, a Revocable Family Trust filed a separate complaint against Husband and Wife seeking to foreclose on their community property residence under the terms of a note and trust deed used to secure the loan made to them by the Trust.

The wife, through her divorce lawyer, brought a motion in the family law court to consolidate foreclosure with the divorce action because of overlapping issues, re: characterization, right and title, distribution of proceeds of sale, whether the loan was gift, et cetera.

The trust moved for summary judgment in the separate foreclosure action. The wife, through her divorce lawyer, opposed, contending the “loan” was a gift. The husband did not appear in the foreclosure action. The wife sought an order in the family law court to stay further prosecution of the foreclosure action. She also made a motion in the foreclosure action that the court take judicial notice of her activity in the family law court.

The family law court denied the consolidation motion due to a lack of a jury waiver form. The motion for joinder was denied as to the family business but granted as to the parents themselves and the Trust, and the foreclosure action stayed except for discovery. The superior court in the separate foreclosure action refused to consider the family law court’s order and entered summary judgment.

The Court of Appeal greed with wife’s former divorce attorney and held that the family law court’s joinder and stay orders barred the judge in foreclosure action from proceeding with the summary judgment motion stating “[J]oinder of the Trust as a third party claiming an interest in alleged community property was clearly proper in order to facilitate the family law court’s duty to properly characterize and distribute community property. Once the divorce action was underway, the family law court acquired jurisdiction over alleged community property in the hands of third parties and could properly order their joinder and the sale of that property.”

Glade v. Glade (1995) 38 Cal.App.4th 1441