David Folsom; Pamela Brodwolf-Folsom v. GERALD H. DAVIS, Chapter 7 Trustee

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID FOLSOM; PAMELA
BRODWOLF-FOLSOM,
Debtors - Appellants,
v.
GERALD H. DAVIS, Chapter 7 Trustee,
Appellee.
No. 11-56413
D.C. No. 3:10-cv-02440-L-NLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Appellants David Folsom (“Debtor”) and Pamela Brodwolf-Folsom appeal
pro se from the district court’s order affirming the bankruptcy court’s summary
judgment in an adversary proceeding brought by the bankruptcy trustee concerning
FILED
MAR 21 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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ownership of real property. We have jurisdiction under 28 U.S.C. § 158(d). We
review independently the bankruptcy court’s decision without deference to the
district court’s determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857
(9th Cir. 2004). We affirm.
The bankruptcy court properly granted summary judgment because, under
the terms of Appellants’ pre-marital contract, the real property at issue is
community property and thus Debtor’s interest is property of the bankruptcy estate.
See Cal. Fam. Code § 1500 (“The property rights of husband and wife prescribed
by statute may be altered by a premarital agreement or other marital property
agreement.”); Bolton v. MacDonald (Estate of MacDonald), 794 P.2d 911, 918
(Cal. 1990) (transmutation requires language that expressly states that
characterization or ownership of property is being changed); see also Fed. R.
Bankr. P. 7056 (applying Federal Rule of Civil Procedure 56 in bankruptcy
adversary proceedings).
We do not consider Appellants’ arguments and documents that were not
presented below. See United States v. Shaltry (In re Home Am. T.V.-Appliance
Audio, Inc.), 232 F.3d 1046, 1052 (9th Cir. 2000) (absent exceptional
circumstances, an argument is waived if it is not presented before either the
bankruptcy court or the district court); Kirshner v. Uniden Corp. of Am., 842 F.2d
11-56413 2

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1074, 1077 (9th Cir. 1988) (documents not filed with the district court are not part
of the record on appeal).
AFFIRMED.
11-56413 3

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