Filed 5/13/24 Marriage of Abdou and Malak CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re the Marriage of ATEF 

ABDOU and MARIAM ABDEL 

MALAK.

 B330540

 (Los Angeles County

 Super. Ct. No. BD559444)

ATEF ABDOU,

Plaintiff and Respondent,

v.

MARIAM ABDEL MALAK,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Alexander C.D. Giza, Judge. Affirmed.

Leslie L. Niven for Defendant and Appellant.

Atef Abdou, in pro. per., for Plaintiff and Respondent.

__________________________
2

Mariam Abdel Malak appeals from an order denying her 

request for order (RFO), in which she sought division of United 

No. 1, LLC, and United’s real property asset located at 

1303 S. Western Avenue (1303 Western property) as community 

property pursuant to Family Code section 2556 (allowing a 

postjudgment motion to adjudicate community property assets).

1 

Malak contends the family court erred in denying her request

because the judgment entered after a family court trial on 

reserved issues did not allocate to her a community property 

interest in United and its real property, and therefore, the court 

had continuing jurisdiction to adjudicate community property 

assets owned by her and her former husband, Atef Abdou.

Because the family court already awarded Malak the

monetary amount equal to her 50 percent interest in the 

1303 Western property in the judgment, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Marital Dissolution, Judgment, and Family Court 

Trial on Reserved Issues

Abdou and Malak were married on January 8, 2004. On

February 25, 2009 Malak filed a petition for dissolution of the 

marriage. Abdou and Malak reconciled and then separated

again. On February 22, 2012 Abdou filed a petition for 

dissolution, and Malak filed her petition shortly thereafter. The 

family court consolidated the matters, and on November 7, 2013 

the court entered a judgment dissolving the marriage but 

1 Further undesignated statutory references are to the 

Family Code.
3

reserving multiple issues for a later determination, including the 

division of property. 

On December 26, 2018, in advance of a January trial date

on reserved issues, Malak submitted a statement of issues and 

contentions in which she indicated that the characterization and 

disposition of the 1303 Western property was an issue to be 

resolved at trial. She argued the 1303 Western property was

“wholly community property,” but any debt owed on the property 

“should be deemed [the] separate property debts of” Abdou. 

Malak also requested the family court find Abdou breached his 

fiduciary duty to Malak based on his actions concerning the 

property. 

The family court2 presided over a five-day bench trial

commencing on January 2, 2019. The matter was deemed 

submitted on April 8, 2019, after supplemental briefing on the 

issue of attorneys’ fees. 

B. Consolidation of Malak’s Quiet Title Action with This 

Action

On December 18, 2018 (prior to commencement of the 

family court trial) Malak filed a civil action (LASC Case no. 

18STCV08878) against United seeking to quiet title in the 1303 

Western property.3 Malak alleged the 1303 Western property 

was community property because it was acquired during Abdou 

and Malak’s marriage, with United holding title to the property. 

2 Judge Shelley Kaufman presided over the trial and issued 

the statement of decision. 

3 In the quiet title action, Malak identified herself as 

“Mariam S. Mena aka Mariam Abdel Malak.” 
4

On December 20 Malak filed an ex parte application to 

consolidate the quiet title action with this action. The family 

court denied the ex parte application without prejudice, 

explaining the quiet title action “is filed in the civil division and 

therefore related case or consolidation requests must be 

addressed by the Supervising Judge of Civil in Department 1. 

See LASC Local Rule 3.3(f) and (g).” 

On January 11, 2019, after the family law trial concluded,

Malak filed a notice of related cases listing this action and the 

quiet title action. On March 4 the supervising judge of the civil 

division of the superior court4 related the two cases, and on June 

24 the family court5 consolidated the quiet title action with this 

action.

C. The Statement of Decision and Judgment in This Action

On July 30, 2019 the family court issued its final statement 

of decision. The court found United acquired the 1303 Western 

property, on which is a gas station, food center, and car wash, on 

September 7, 2004 (during the marriage); at the time of the 

purchase Abdou was the sole member of United; rental income 

and depreciation on the property were reported on Abdou and 

Malak’s joint tax returns starting in 2005; and Malak worked

with Abdou at the gas station and food center. The court noted 

United was not joined in this action and the parties had 

stipulated that United was no longer in Abdou’s name. In 

addition, at the time of the trial, the quiet title action had not yet 

been consolidated with the marital dissolution action. Thus, the 

4 Judge Samantha P. Jessner.

5 Judge Alexander C.D. Giza. 
5

family court stated, the court “can only adjudicate the matters 

presented at trial.” 

The family court rejected Abdou’s claim that his mother, 

Sohei Youssef Moussa,6 provided the 10 percent down payment 

United used to purchase the 1303 Western property and that 

Moussa was the actual owner of United with Abdou only 

managing the business investment for her. The court reasoned, 

“[Abdou’s] conduct does not comport with his claim that 1303 

Western was owned by his mother through the entity United 1. 

Why would he then execute a transfer agreement in 2010 and 

2011 for remuneration from his mother if she was the actual 

owner? This transfer occurred shortly after [Malak] left the 

family home in 2009 and filed for dissolution. [Abdou] filed his 

response to the dissolution on March 11, 2009 and indicated that 

he was seeking to confirm as his separate property United 1, 

including all personal and real property assets. . . . Even if 

[Abdou’s] mother provided money to [Abdou] for the down 

payment, there is insufficient evidence as to the characterization 

of this money, or that this establishes she was the owner of 

United 1, and not [Abdou].”

The family court found Abdou failed to rebut the 

presumption in Evidence Code section 662 that “[t]he owner of 

the legal title to property is presumed to be the owner of the full 

beneficial title.” The court explained, “The Court does not find 

sufficient credible evidence that United 1 belonged to [Abdou’s] 

6 The family court granted Malak’s request to join Moussa 

and Abdou’s brother, Adel Hanna, but not United and other 

business entities. Moussa was not properly served with the 

summons and complaint before her death, and Malak did not 

amend her petition to join Moussa’s estate. 
6

mother at the time of acquisition. [Abdou] has provided little to 

no documentary evidence of this claim other than his testimony.” 

The family court also found Abdou failed to rebut the 

presumption in section 760 that all real or personal property 

acquired during marriage is community property. The court 

explained, “The 1303 Western property was in fact acquired 

during marriage by United 1, wherein [Abdou] was the only 

member. In a reply argument, [Abdou] states if 1303 Western 

was his property through United 1, the ownership was only 

obtained from funds that were a gift from his mother, and thus 

should be deemed his separate property . . . . While testimony 

was provided that he received funds from his mother to be used 

for the down payment, [Abdou] did not provide further testimony 

as to how the loan payments were made or applied to the 

purchase of 1303 Western. [Abdou] had the burden to do the 

appropriate tracing if this was his claim; he did not. Further, 

Abdou admitted to working at the location, and managing the 

property. He used community efforts thus to maintain the 

property. [¶] By 2011, [Abdou] transferred all his interest in 

United 1 to his mother for a total of $55,000. The property was 

purchased for approximately $1,400,000 in 2004. No evidence 

was presented as to why [Abdou] would sell his interest for such 

little money.”

The family court concluded Malak met her burden to prove

Abdou breached his fiduciary duty by “selling his interest in 

United and consequently 1303 Western.” The court found, “The 

community held an asset from date of marriage which had a 

value of more than one million dollars. By 2011, not for 

comparable value, the asset was sold. Pursuant to Family 
7

Code section 1101(g), [Malak] is entitled to 50% of the value of 

the transferred asset.”

In determining the value of the transferred asset, the court 

relied on the testimony of Malak’s experts: real estate appraiser 

James Willard and certified public accountant John Gustavson.7

Willard testified the market value of the 1303 Western property

was $2,107,000 as of February 16, 2012 and $3,160,000 as of 

December 12, 2018. Gustavson calculated the equity in the 

property was $1,274,000 by taking the current market value of 

the property ($3,160,000) less the encumbrances reflected in the 

property records. The family court determined that Abdou owed 

Malak $637,000 (half of the $1,274,000 valuation) for his breach 

of fiduciary duty. 

On March 4, 2020 the family court entered judgment on 

reserved issues, which provided in part, “[Malak] is entitled to 

50% of the value of the transferred asset, namely 1303 S. 

Western Avenue, Los Angeles, CA 90006 property. [Malak] is 

awarded $637,000 payable by [Abdou] to [Malak] for his breach of 

fiduciary duty related to the property 1303 S. Western Ave, Los 

Angeles, CA 90006; [¶] [Abdou] shall pay $106,196.26 to [Malak] 

for attorney’s fees and costs.”

Abbou appealed, and we affirmed. (In re Marriage of 

Abdou and Malak (May 14, 2021, B304087) [nonpub. opn.].) 

Abdou filed a petition for review, which the Supreme Court 

denied. This court issued a remittitur on September 2, 2021. 

7 The family court found Abdou’s accounting expert, Jackie 

Adams-Ings, “did not assign a value to the loss of this property, 

asserting the property belonged to [Abdou’s] mother.” 
8

D. Transfer of Quiet Title Action to Civil Court

On May 19, 2021 United filed a motion to expunge Malak’s 

lis pendens on the 1303 Western property, which Malak opposed. 

On October 14, 2021 the family court8 ordered the quiet title 

action, including United’s motion to expunge lis pendens, 

transferred back to Department 1 for reassignment. The court 

found “the family law matter ha[d] been completed by trial” and 

remittitur had been issued in the appeal from the judgment on 

reserved issues. On November 1 Department 1 reassigned the 

quiet title action to Department 589 for all purposes. 

E. Malak’s RFO and the Family Court Ruling

On June 1, 2022 Malak filed a postjudgment RFO seeking 

to adjudicate and divide as community property United and the 

1303 Western property pursuant to section 2556. Malak 

requested in the alternative the family court find that the civil 

court could determine the proper division of the property in the 

quiet title action by applying section 2556 instead of the statute 

of limitations that would otherwise govern. Malak argued the 

family court (Judge Kaufman) previously characterized United 

and the 1303 Western property as community property but did 

not divide the assets. In opposition, United argued it was not a 

party, and therefore the family court did not have jurisdiction 

over it. Further, even though it was not a party, United “could be 

negatively affected by the requested action.” United also 

8 Judge Giza presided over the proceedings in family court 

following the remittitur. 

9 Judge John P. Doyle.
9

asserted that section 2556 did not apply to Malak’s quiet title 

action against United.

10 

On March 20, 2023 the family court denied Malak’s RFO on 

the basis the treatment of United and the 1303 Western property 

had been previously adjudicated in the trial. The court observed 

that following the bench trial, the court (Judge Kaufman) in four 

pages of its statement of decision “addressed the parties’ interest 

in United/Western” and found Abdou “breached his fiduciary duty 

to [Malak] and awarded her $637,000, which is one-half the value 

of Western as determined by [Malak’s] expert.” Further, 

“[d]uring the [RFO] hearing, [Malak] admitted that if the 

judgment had been paid by [Abdou, then Malak] would have been 

made whole. [Malak] argues, however, that because [Judge 

Kaufman] did not divide the asset at trial, this sub-issue was not 

adjudicated and so can still be addressed under § 2556.” 

The family court explained in denying the RFO that at trial 

the “judge confirm[ed] with [Malak’s] counsel that she [was]

arguing that (1) United and Western were community property 

up until 2010 or 2011; (2) [Abdou] got rid of this community 

property asset in breach of his fiduciary duty; and (3) [Malak] 

was not seeking a ruling on how to divide ownership of 

United/Western. Because [Malak] did not seek ownership of 

United/Western at the trial, the [court] addressed the issues as 

framed by [Malak’s] counsel. In doing so, the [court] found for 

[Malak] and awarded her one-half the value of United/Western. 

The United/Western issue was adjudicated, and its value 

divided.” 

10 The appellate record does not include a response by Abdou 

to Malak’s RFO. Malak’s process server was unable to locate 

Abdou to serve him with Malak’s reply to United’s opposition. 
10

Accordingly, the family court continued, “[Malak’s] current 

request to ‘divide’ these assets is an attempt to modify the 

judgment. Generally, once a martial dissolution judgment has 

become final, the court loses jurisdiction to modify or alter it. 

Under Fam. Code § 2556, the court has continuing jurisdiction to 

award to the parties community estate assets or community 

estate liabilities that have not been previously adjudicated by a 

judgment in the proceeding. For example, the court ‘may divide a 

community property asset not mentioned in the judgment.’ As 

noted above, United/Western was more than mentioned in the 

judgment, it was extensively addressed at the trial, and the 

judgment divided its value and awarded [Malak] one half. This 

judgment has become final. This court lacks jurisdiction to 

modify the judgment as to United/Western.” (Fns. omitted.)

Malak timely appealed. 

DISCUSSION

A. Governing Law and Standard of Review 

“‘Generally, once a marital dissolution judgment has 

become final, the court loses jurisdiction to modify or alter it.’” 

(In re Marriage of Huntley (2017) 10 Cal.App.5th 1053, 1059

(Huntley); accord, In re Marriage of Thorne & Raccina (2012) 

203 Cal.App.4th 492, 499.) But “‘under settled principles of 

California community property law, “property which is not 

mentioned in the pleadings as community property is left 

unadjudicated by decree of divorce, and is subject to future 

litigation, the parties being tenants in common meanwhile.”’ 

[Citations.] This rule applies to partial divisions of community 

property as well as divorces unaccompanied by any property 
11

adjudication whatsoever.” (Henn v. Henn (1980) 26 Cal.3d 323, 

300; accord, Huntley, at p. 1059.) 

Section 2556 provides, “In a proceeding for dissolution of 

marriage, for nullity of marriage, or for legal separation of the 

parties, the court has continuing jurisdiction to award community 

estate assets or community estate liabilities to the parties that 

have not been previously adjudicated by a judgment in the 

proceeding. A party may file a postjudgment motion or order to 

show cause in the proceeding in order to obtain adjudication of 

any community estate asset or liability omitted or not 

adjudicated by the judgment. In these cases, the court shall 

equally divide the omitted or unadjudicated community estate 

asset or liability, unless the court finds upon good cause shown 

that the interests of justice require an unequal division of the 

asset or liability.” (See Huntley, supra, 10 Cal.App.5th at p. 1061

[“section 2556 applies to community property not actually 

adjudicated in the previously entered dissolution judgment”]; In 

re Marriage of Thorne & Raccina, supra, 203 Cal.App.4th at 

p. 501 [“the trial court may divide a community property asset 

not mentioned in the judgment”].) 

“In providing courts with continuing jurisdiction, 

section 2556 imposes no time limit on former spouses to seek to 

adjudicate omitted or unadjudicated community property after a 

dissolution judgment [is] entered.” (Huntley, supra, 

10 Cal.App.5th at p. 1060.) Therefore, “[t]here is no statute of 

limitations imposed by Family Code section 2556 on a former 

spouse who seeks adjudication of omitted or unadjudicated 

community property.” (Ibid.) “Section 2556 applies even when 

former spouses were aware of the community property at the 

time the dissolution judgment was entered.” (Ibid.; accord,
12

Huddleson v. Huddleson (1986) 187 Cal.App.3d 1564, 1569

[“Regardless of whether the parties know of, or discuss, the 

vested pension, if the ‘court was not called upon to award it, and 

did not award it, as community property, separate property, or 

any property at all’ [citation], then the pension is a missed asset 

subject to a postdissolution claim.”].) 

“We review the interpretation of a statute and its 

application to undisputed facts de novo.” (In re Marriage of 

Bonvino (2015) 241 Cal.App.4th 1411, 1422; In re Marriage of 

Petropoulos (2001) 91 Cal.App.4th 161, 169.) 

B. The Community Property Was Adjudicated by the 

Judgment 

Malak contends the family court erred in denying her RFO 

to adjudicate United and the 1303 Western property as 

community property because the judgment did not divide United 

or the 1303 Western property; the court erred in finding Malak 

did not seek ownership of United and the 1303 Western property 

at trial; and the court erred in determining that Malak’s RFO 

under section 2556 was a request to modify the judgment. 

Malak’s assertion that at trial she sought to obtain a 

50 percent ownership interest in United and the 1303 Western

property is inconsistent with the record. At the start of the

January 2019 bench trial, the family court sought to clarify the

scope of the trial. The court inquired, “So what you are putting 

on for this case . . . is that United and Western were community 

property up until 2010, 2011, and [Abdou] in breaching his 

fiduciary duty got rid of community asset[s]?” Malak’s attorney 

responded, “Correct.” The court then stated, “But this court, 

Department 60, has nothing to do with consolidation, so the fact 
13

that there is a motion brought [to consolidate], . . . and there is no 

ruling on it and the ex parte was denied, that’s just another piece 

that is not involved in this trial.” Malak’s attorney replied, 

“That’s fine.” The court then asked, “Okay. So I just want to be 

clear that this court is not ruling on, at least the way it is being 

explained in opening, how to divide United—I’ll say Western or 

Ovian.

[11]

 But this court is deciding on whether United and 

Western were community property at some point and that 

[Abdou] breached his fiduciary duty in getting rid of community 

assets, right? Malak’s attorney answered, “Correct.” The family 

court therefore correctly observed in denying the RFO that the 

court addressed the breach of fiduciary duty issue as framed by 

Malak’s attorney at trial.

In addition, Malak never challenged the March 2020 

judgment entered following the trial. Abdou appealed from the 

judgment, we affirmed, and the judgment is now final. (See In re 

Marriage of Abdou and Malak, supra, B304087.) Malak did not 

argue in the prior appeal that the family court should have 

awarded her a 50 percent ownership in United and the 

1303 Western property instead of awarding her $637,000 for

Abdou’s breach of fiduciary duty. Further, Malak stated in her 

respondent’s brief in her prior appeal that she “does not allege 

that the [c]ourt made an incorrect decision to go forward with the 

[t]rial” (given the failure to consolidate the action with the quiet 

title action). Accordingly, Malak’s RFO, in seeking a division of 

United and the 1303 Western property, was an improper request 

to modify the now-final judgment. 

11 At the hearing, Malak’s attorney informed the court that 

“[t]he sole member of United now, I believe, is Ovian 

Development.”
14

Moreover, the family court did not err in finding it had no 

jurisdiction to divide United and the 1303 Western property 

because the March 2020 judgment already adjudicated these 

community property assets. As discussed, the court found in its 

statement of decision and judgment that as a result of Abdou’s 

breach of fiduciary duty, under section 1101, subdivision (g),12

Malak was entitled to 50 percent of the value of the transferred 

asset (the 1303 Western property), and the court awarded 

$637,000 to Malak.

13 The court’s award of half of the value of the 

1303 Western property under section 1101, subdivision (g),

constituted an adjudication of the community property asset, and 

12 Section 1101, subdivision (g), provides, “Remedies for

breach of the fiduciary duty by one spouse, including those set 

out in Sections 721 and 1100, shall include, but not be limited to, 

an award to the other spouse of 50 percent, or an amount equal to 

50 percent, of any asset undisclosed or transferred in breach of 

the fiduciary duty plus attorney’s fees and court costs. The value 

of the asset shall be determined to be its highest value at the date 

of the breach of the fiduciary duty, the date of the sale or 

disposition of the asset, or the date of the award by the court.” 

13 The court found Abdou’s breach did not fall “within the 

ambit of Civil Code section 3294, which requires proof of fraud, 

malice or oppression by clear and convincing evidence.” Had 

Malak made this showing, she would have been entitled to an 

award of 100 percent of the transferred asset as a remedy for 

Abdou’s breach of fiduciary duty. Section 1101, subdivision (h), 

provides, “Remedies for the breach of the fiduciary duty by one

spouse, as set forth in Sections 721 and 1100, when the breach 

falls within the ambit of Section 3294 of the Civil Code shall 

include, but not be limited to, an award to the other spouse of 

100 percent, or an amount equal to 100 percent, of any asset 

undisclosed or transferred in breach of the fiduciary duty.”
15

therefore, the court did not have continuing jurisdiction under 

section 2556 to divide United and the 1303 Western property as 

community property. (In re Marriage of Gilbert-Valencia and 

McEachen (2023) 98 Cal.App.5th 520, 526 [“The 50 percent 

award under subdivision (g) is ‘an alternative to an award of 

50 percent of the asset itself’ and ‘must be the same 50 percent 

interest that would be awarded in the overall division of 

community assets.’”]; In re Marriage of Schleich (2017) 

8 Cal.App.5th 267, 286-287 [same] (Schleich).) 

Schleich is directly on point. There, the family court 

awarded the wife in a marital dissolution action 50 percent of the 

sales proceeds of a vehicle under section 1101, subdivision (g), for 

the husband’s breach of fiduciary duty. (Schleich, supra,

8 Cal.App.5th at p. 285.) The wife “also received half of the sale 

proceeds in the court’s division of community property.” (Ibid.) 

The Court of Appeal concluded the family court erred in awarding 

the wife her community interest in the proceeds of the vehicle 

“twice—once as a section 1101 remedy for [the husband’s] 

fiduciary breach and again in the division of community 

property.” (Id. at p. 287.) The court reasoned, “The claimant and 

breaching spouses’ collective interest in a community asset 

cannot exceed 100 percent. Given that the fiduciary duty 

recognized under section 1101 is a duty intended to preserve each 

spouse’s one-half interest in the community estate [citations], the 

50 percent interest awarded under subdivision (g) must be the 

same 50 percent interest that would be awarded in the overall 

division of community assets. After a claimant is awarded his or 

her interest in an asset under subdivision (g), there is no longer an 

asset to divide in the dissolution proceedings.” (Id. at p. 286-287, 

italics added.) Further, once the court awards a spouse 
16

50 percent of a community asset under section 1101, 

subdivision (g), “the breaching spouse would retain the asset as 

separate property, the claimant spouse would receive an award 

equivalent to his or her community interest in the asset, and 

there would be no community asset to divide upon dissolution.” 

(Id. at p. 287.)

Here, as in Schleich, after the family court awarded Malak 

$637,000, which was one-half the value of the 1303 Western 

property, the 1303 Western property (and United) were no longer 

community property assets subject to further division. 

DISPOSITION

The order is affirmed. Abdou is to recover his costs on 

appeal from Malak.

FEUER, J.

We concur:

SEGAL, Acting P. J.

RAPHAEL, J.*

* Judge of the San Bernardino Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.