DAVID FOLSOM V. GERALD DAVIS, No. 11-56413 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 21 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID FOLSOM; PAMELA BRODWOLF-FOLSOM, No. 11-56413 D.C. No. 3:10-cv-02440-L-NLS Debtors - Appellants, MEMORANDUM* v. GERALD H. DAVIS, Chapter 7 Trustee, Appellee. 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 * 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). 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 2 11-56413 1074, 1077 (9th Cir. 1988) (documents not filed with the district court are not part of the record on appeal). AFFIRMED. 3 11-56413

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