Marriage of Stupp and Schilders CA1/2 ( 2021 )

Filed 6/17/21 Marriage of Stupp and Schilders CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of STEVEN
STUPP and ANNEMARIE
SCHILDERS.
STEVEN STUPP,
Respondent,
A159414
v.
ANNEMARIE SCHILDERS; (San Mateo County
Super. Ct. No. FAM 0110799)
Appellant;
ESTER ADUT,
Appellant.
Ester Adut is the attorney for Annemarie Schilders, who is a party to a
long-running and highly contentious marital dissolution. Adut here appeals
from two orders: one requiring Adut to prepare and submit a Notice of
Limited Scope Representation (Form FL-950) in advance of an upcoming
hearing, and one requiring Adut to notify Schilders of the court’s order that
Schilders appear at that hearing in person or by court call. The challenged
orders are not appealable, and therefore we shall dismiss the appeal.
1
FACTUAL AND PROCEDURAL BACKGROUND
Steven Stupp filed a petition for dissolution of his marriage to Schilders
in 2010. A stipulated judgment of dissolution was entered in March 2014.
Since then, the case has been intensively litigated in the trial court and in
this one, where Schilders or Adut has initiated 23 appeals and filed 7 writ
petitions.
In September 2015, Schilders filed a motion to compel further discovery
responses in which she sought various forms of relief. Hearings on that
motion were held over a period of years, and in April 2019 the family court
issued its findings and orders after hearing.1 Among other things, the court
ordered Stupp to pay about $27,000 in discovery sanctions.
On May 8, Stupp filed two motions related to the April orders: one for
clarification, and one for reconsideration. Then, on October 9, he filed a
motion to set aside the April orders. The motion to set aside was set for
hearing on December 10; the other two motions were set for hearings at
different times on December 17. A fourth motion filed by Stupp, to compel
discovery responses and for discovery sanctions had been filed on August 20
and was also set for hearing on December 17.2
Adut appeared for Schilders at the December 10 hearing. Adut
explained that she was “making strictly a special appearance to contest the
Court’s jurisdiction over my client’s personal jurisdiction,” and stated that
Schilders had not been served with the motion to set aside.
1 Further dates are in 2019 unless otherwise stated.
2 None of the four motions filed by Stupp is included in the record
before us. Adut told the trial court that all of them challenge the $27,000
sanctions order from April.
2
The court heard argument on the jurisdictional issue, with Adut
claiming that the court had no jurisdiction to hear the motion because the
motion had not been served on her client, as required by Family Code section
215.3 The court set a schedule for further briefing on the jurisdictional issue
over the next few days, and continued the hearing to December 19. The court
also vacated the hearings that had been scheduled for December 17 and reset
them for December 19, so that all four of Stupp’s motions would be heard
together. The court said that parties and counsel were to be present at the
December 19 hearing. Adut made no objection to the resetting or to the
statement that parties were to be present at the hearing.4
Schilders was not present in person or by phone at the December 19
hearing. Adut appeared and stated that she was representing Schilders “on
some of the issues.” Specifically, she was making a “general appearance” for
the motions Stupp had filed in May 2019 (for clarification and
reconsideration of the April orders), and that with respect to the other
motions (the August 20 discovery motion and the October motion to vacate
the April orders), she was “appearing only specially to contest personal
jurisdiction and subject-matter jurisdiction.”
3 Further statutory references are to the Family Code unless otherwise
stated. Section 215, subdivision (a), provides that as a general matter, after a
judgment of dissolution of marriage, “no subsequent order in the
proceedings[ ] is valid unless any prior notice otherwise required to be given
to a party to the proceeding is served, in the same manner as the notice is
otherwise permitted by law to be served, upon the party. For the purposes of
this section, service upon the attorney of record is not sufficient.”
4 She did, however, raise an issue that she said was “not about” the
motion on which she was making a special appearance, and informed the
court that the April orders were the subject of ongoing briefing on a different
issue before a different judge.
3
Extensive discussion and argument followed on a range of topics,
including Schilders’s address and whereabouts, whether any requirement for
service on Schilders (as opposed to service on Adut) had been waived,
whether documents stated that Schilders was to be served in care of Adut,
and the history of Adut’s representation of Schilders in the action.5
Adut argued that the court lacked jurisdiction to hear the motions
Stupp had filed in August and October because notice of those motions had
not been served on Schilders, who, according to Adut’s understanding, “has
no awareness whatsoever of these motions.” The court asked Adut where
Schilders was; Adut responded, “I have no personal knowledge of where she
is, but I’m under the impression that she resides in the Netherlands.” The
court then asked Adut the foundation for her understanding of Schilders’s
5 Adut substituted in as Schilders’s attorney in April 2014. At times
Adut’s representation of Schilders had been limited in scope. Adut told the
court she had been representing Schilders for all purposes (other than a
particular hearing in May 2016) since mid-October 2015, and that she had
filed a notice to that effect on or about October 13, 2015. That notice is not
included in the record, but the register of actions states that on October 14,
2015, Schilders filed a “Notice of Limited Scope Representation. Attorney
Ester Adut for Other: On all matters between 10/13/15 etc.” We cannot tell
what, if anything, that document says about service on Schilders. At the
December 19 hearing, the court stated that the most recent limited scope
document it had was a notice of another attorney’s limited representation of
Schilders at a May 2016 hearing, which stated that Schilders’s address for
purposes of service was in care of Adut. The notice is not included in the
record on appeal.
During the December 19 hearing, Adut stated at one point that if some
document had said to serve Schilders at a particular address in care of Adut,
she didn’t understand why Stupp had not made such service. The court
asked, “So you are willing to accept service for [Schilders] then?” Adut
replied, “Well, I did not say I am willing to accept service for her. But I’m
saying if that’s the address that they have for her—”
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lack of awareness of the motions. Adut responded that there was no proof of
service on Schilders, nor any statement by Stupp’s counsel that Schilders had
been served. Adut further stated, “I have not had a discussion with Ms.
Schilders about it, and so if she knows, I don’t know that she knows. I have
no way—no reason to think that she knows. So—.” The court asked, “You
don’t know either way is what you are saying?” Adut responded, “I have no
idea what she knows and doesn’t know.”
The court asked Adut whether she had an address where Schilders
could be served process. Adut responded “Yes. Well, I don’t have it in my
head, but Mr. Stupp has it because—” The court interrupted Adut and
directed her to listen to the question being asked and respond to it. The court
repeated the question. Adut responded, “No.” The court said, “[T]here may
be some other location outside of this room, apparently, that you could access
that would give you that information; is that correct?” Adut responded,
“Somewhere in my office I probably have the address, yes.” The court then
asked how long it would take Adut to provide that address to Stupp’s counsel.
Adut responded, “Counsel already has the address and so does Mr. Stupp as
far as I know.”
Later in the hearing, the court told Adut that it was “concerned about
the types of answers you gave in court today,” and inquired whether Adut
had asked Schilders to be present at the hearing, in keeping with the
statement made by the court at the previous hearing. Adut said she did not
remember such a statement being made, and that she had not asked her
client to attend the hearing.
Eventually, the court concluded that service to Schilders by mail at a
certain post office box would constitute service for purposes of section 215.
5
The court stated it would allow Stupp’s counsel “to do a mailing to that recent
address,” at which point “the Court will be able to move forward.”
With the end of the day approaching, the court continued the hearing
on all the pending motions to January 29, 2020. The court stated, “[B]ased
on everything I’ve seen concerning these pleadings and the history of this
request for order, the Court is convinced that at a minimum I’m going to stay
now any prior discovery sanction pending further adjudication based on the
fact that I think there has been a delay in hearing that issue. I’m going to
reserve on potential [Family Code section] 271 sanctions as to why that delay
occurred, and what type of conduct counsel has demonstrated in her limited
scope representation that she has been providing to her client. [¶] . . .
Otherwise, I’m going to set this over for [Stupp to] go forward with that
mailing as we’ve just discussed and then come back and have a final hearing
on that issue.”
In written orders signed and filed on December 20, the court ordered,
among other things, that Adut was responsible to notify Schilders to appear
at the January 29, 2020 hearing in person or by phone, and that Adut was to
prepare an updated Notice of Limited Scope Representation and submit it to
the court and opposing counsel a week before the January 29, 2020 hearing.
Adut timely appealed. Stupp did not file a respondent’s brief, and oral
argument was waived; therefore, we decide the appeal on the record and
appellant’s opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
DISCUSSION
Adut appeals from two of the orders issued on December 20: one
requiring Adut to prepare and submit an updated Notice of Limited Scope
Representation in advance of the January 29, 2020 hearing, and one
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requiring Adut to notify Schilders of the court’s order that Schilders appear
at that hearing in person or by court call.
Before we consider the merits of an appeal, we consider whether we
have jurisdiction to hear the appeal. (Jennings v. Marralle (1994) 8 Cal.4th
121, 126 [existence of an appealable order or judgment is “a jurisdictional
prerequisite to an appeal”].) In the required statement of appealability that
appears in Adut’s opening brief (Cal. Rules of Court, rule 8.204(a)(2)(B)),
Adut claims that the challenged orders are appealable on three separate
grounds: as orders made after the appealable judgment that was filed in this
case in March 2014; as orders granting an injunction; and as collateral final
orders. Adut is mistaken on all counts.
As we have explained, although Code of Civil Procedure, section 904.1,
subdivision (a)(2) permits the immediate appeal of an order made after an
appealable judgment, not every postjudgment order is appealable. (Stupp v.
Schilders (Mar. 25, 2016, A143186) [nonpub. opn.].) In particular, a
postjudgment order that is preliminary to a later proceeding is not
appealable. (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403 [citing
Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644].) The orders
that Adut challenges here are preliminary to further proceedings on the
motions Stupp had filed in 2019, and therefore they are not appealable as
postjudgment orders.
Adut also claims the orders are appealable under Code of Civil
Procedure, section 904.1, subdivision (a)(6), which permits the immediate
appeal of an order granting or denying an injunction. There is no appealable
injunctive order here. Adut does not identify any injunction that was sought
at the December 19 hearing by Stupp or anyone else. The challenged orders
are not appealable injunctive orders simply because they require Adut to
7
perform an action: if they were, then any order given at any point in a
proceeding by a trial court judge to a party’s attorney, whether to appear at a
hearing, or file a document, or to conclude his or her argument, would be
immediately appealable by the attorney. That is not the law, and Adut cites
no authority to suggest otherwise.
Finally, Adut claims that the orders are appealable as collateral final
orders requiring her to perform an act, citing Sjoberg v. Hastorf (1948) 33
Cal.2d 116, 119. Although the orders here require Adut to perform acts, they
are not collateral final orders, which “determine finally for the purposes of
further proceedings in the trial court some distinct issue in the case.” (Ibid.)
That is not the situation here: the trial court’s orders are preliminary to a
hearing on several postjudgment motions that were before the court. The
collateral order doctrine does not apply.
DISPOSITION
The appeal is dismissed. Respondent shall recover any costs on appeal.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A159414, Stupp v. Schilders
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