Marriage of L.R. and K.A. CA4/1 ( 2021 )

Filed 9/24/21 Marriage of L.R. and K.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of L.R. and K.A.
D078331
L.R.,
Appellant, (Super. Ct. No. D557861)
v.
K.A.,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Dismissed.
L. R., in pro. per.; Elyse B. Butler and Chalsie D. Keller for Appellant.
[Retained.]
Linda Cianciolo for Respondent.
INTRODUCTION
L.R.1 (Mother) appeals from a family court minute order that
confirmed an earlier ex parte order suspending her visitation rights and
directed the transportation of the minor child to the office of Minor’s counsel
so the child could be transferred to K.A. (Father). Because neither of these
rulings is appealable, and because the order directing the transfer of the child
has expired and is also now moot, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from what appears to be a long, contentious custody
battle between the parties in what is now a six-year-old dissolution case.
Mother filed a petition for dissolution on October 26, 2015. The parties have
a 10-year-old daughter (the child) and have been co-parenting her under
pendente lite child custody and visitation orders. As best as we can determine
from the record before us, other than a status-only judgment terminating the
marriage entered on November 1, 2018, there has been no trial or judgment
entered on any issues in the dissolution, including child custody and
visitation.2, 3
1 Pursuant to rule 8.90 of the California Rules of Court, we refer to the
parties by first and last initials only.
2 Although our record of the trial court proceedings is sparse, the factual
and procedural events relevant to this appeal are not complicated.
3 Mother filed this appeal in pro. per. and her notice designating the
record on appeal included only her notice of appeal, the trial court’s
September 23, 2020 minute order, and the register of actions for inclusion in
the clerk’s transcript. She has since retained counsel on appeal and filed a
motion on May 6, 2021, to augment the record. We granted her motion and,
as a result, the following documents were added to the appellate record: a
September 1, 2020 declaration of Mother and related exhibits; an August 31,
2020 ex parte application filed by Father; a September 1, 2020 ex parte order
2
The operative custody and visitation orders are set forth in the June 13,
2019 FOAH, which was entered after a May 10, 2019 hearing that was held
on Mother’s Request for Order, filed January 25, 2019. Pursuant to the June
13, 2019 FOAH, the family court awarded Mother and Father with joint legal
custody, Father with primary physical custody, and Mother was ordered to
have professionally supervised parenting time three days each week at a
visitation center. The court also ordered that Mother undergo “an
independent psychiatric evaluation to specifically address whether it would
be beneficial for her to consider a trial of psychiatric medication regarding
anxiety, and any other psychiatric condition.” The court set a half-day
granting the August 31 application; a September 3 ex parte application filed
by Minor’s counsel and a related September 4 ex parte order granting the
application; and a September 4 declaration filed by Mother’s sister.
On June 8, 2021, Father moved to augment the appellate record with
the following documents: (1) a Findings and Order After Hearing entered on
June 13, 2019 (the June 13, 2019 FOAH); (2) a domestic violence restraining
order (DVRO) issued February 27, 2020; (3) a declaration of Father filed on
September 22, 2020; (4) an ex parte application and order filed on September
28, 2020; and (5) an amended DVRO issued September 29, 2020. Mother
opposes adding document (1) to the record. We grant Father’s motion in part
insofar as it seeks augmentation of the record with documents (1), (2), and
(3). We deny the motion as to documents (4) and (5), as these records were
filed after the September 23, 2020 minute order challenged on appeal. (In re
K.M. (2015) 242 Cal.App.4th 450, 455 [“ ‘Augmentation does not function to
supplement the record with materials not before the trial court.’ ”].)
On July 28, 2021, after Father filed his response brief on appeal,
Mother filed a supplemental motion to augment seeking to include a
transcript of an August 7, 2020 hearing in the appellate record. Mother
argues certain statements by counsel in the transcript help reveal that the
trial court’s June 13, 2019 FOAH (discussed post) was a temporary order and
not fully litigated as of September 23, 2020. Father opposes the motion based
on his dispute with Mother’s contention that the June 13, 2019 FOAH was
temporary. We do not find this to be a persuasive reason for denying the
motion, and accordingly we grant Mother’s supplemental motion to augment.
3
evidentiary hearing on custody and visitation for November 27, 2019 and
ordered that Mother provide the results from the psychiatric evaluation and
that Dr. Sparta, the examining psychologist, also testify at that time. The
court further stated that it “will not consider changing its custody order
without Mother providing the results of the psychiatric evaluation.” (Italics
added.)
After the June 13, 2019 FOAH was entered, the court modified its order
regarding Mother’s supervised parenting time with the child several times,
including as a result of a DVRO issued against Mother for the protection of
Father and the child, on February 27, 2020.4 At an August 7, 2020 hearing,
in which Mother requested a change of the professional visitation monitor,
Minor’s counsel lamented that “trial on custody and visitation” still had not
taken place and asked that it “be set as soon as [the court] is able to do so” in
order for the parties to finalize the matter of child custody and visitation.
Father’s counsel asserted that Mother had “not heeded” the court’s orders
from the June 13, 2019 FOAH and that he had “seen no information that
[Mother] has addressed the mental health issue.” The court discussed
possible future hearing dates with counsel, although it is not clear what dates
were ultimately selected.
On September 1, 2020, pursuant to Father’s ex parte application filed
the day before, the court issued an ex parte order that “[Mother’s] visitation
rights with the Minor child are suspended forthwith, pending further Court
order.” (Italics added.) The court ordered that “[a]ny contact between
Mother and the Minor child shall be through telephone/virtual contact only,
and shall be at the direction of the child’s therapist as well as supervised by
4 On Mother’s appeal and in a decision filed July 27, 2021, we reversed
the DVRO. (In re Marriage of L.R. and K.A., D077533.)
4
the child’s therapist” and that “[Mother] or a designated third party are
ordered to return the child to Father’s custody at [the offices of Minor’s
counsel] at 5:00 PM September 1, 2020.” It further ordered that if Mother
failed to return the child to Father by the time and place designated, “this
case is referred to Law Enforcement for enforcement of this Court’s orders as
well as the San Diego County District Attorney’s Office Child Abduction Unit
for immediate location and return of the child.” The court then set a review
hearing on its orders for September 23, 2020.
On September 4, 2020, the court issued another ex parte order upon
application filed by Minor’s counsel. Minor’s counsel averred, “Mother has
failed and refused to return child to Father’s care after her supervised
visitation was terminated on 8/30/2020; Mother has failed and refused to
comply with this Court’s 9/1/2020 order to return the child[.]” The court
ordered that law enforcement was authorized to facilitate the exchange of the
child pursuant to the court’s order of September 1, and that “Mother’s
visitation [is] suspended immediately—no contact of any kind with child
pending further court order.” (Italics added.)
On September 23, 2020, the court held its review hearing of the ex
parte orders made on September 1 and 4. Mother and Father appeared with
their attorneys. Minor’s counsel appeared on behalf of the child. Father
testified that he still did not have custody of the child and had not seen her
since August 30. After hearing from Father⎯Mother invoked her right to
remain silent on advice of counsel⎯and arguments by the attorneys, the
court found Mother “clearly in violation of the Court’s two prior ex parte
orders.” The court stated it was “deeply, deeply concerned about Mother’s
conduct and her absolute defiance of this [c]ourt’s orders” and found that
Mother was “placing this child in an incredibly emotional[ly] abusive
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situation and jeopardizing this child’s emotional health and creating a
situation that is untenable.”
In a minute order dated September 23, 2020, the court ordered, among
other things, the following: It “confirm[ed] its prior ex parte order of
September 03, 2020 [sic].” It ordered Mother “to designate a third party to
personally transport the minor child . . . to the office of [Minor’s counsel],
today, September 23, 2020, at 4pm.” It further ordered that “[t]he child is to
be transported whether or not the child agrees or disagrees with the order,
and regardless of [the child’s] emotional state. The custodial exchange is to
be effectuated no later than 4:15 PM today [September 23].” The court set a
further hearing for December 16, 2020, although it did not specify the
purpose of this hearing.
On November 23, 2020, Mother filed a notice of appeal of the trial
court’s September 23, 2020 minute order.
DISCUSSION
Mother seeks reversal of the following two rulings in the September 23,
2020 minute order: (1) the ruling confirming the trial court’s ex parte order
suspending Mother’s visitation rights with the child “pending further [c]ourt
order,” and (2) the ruling requiring the child to be transported to the office of
Minor’s counsel no later than 4:15 p.m. on September 23, 2020, “regardless of
[the child’s] emotional state.” Mother argues that in issuing these rulings,
the court failed to act in the child’s best interest.
We requested supplemental briefing from the parties on the
appealability of these rulings, and on the mootness of Mother’s challenge to
the order to transport the child to her attorney. We conclude that neither of
the rulings is appealable, and that challenge to the latter ruling raises an
issue that is now moot.
6
“Generally, a reviewing court acts in the procedural context of either a
direct appeal or a writ proceeding.” (Griset v. Fair Political Practices Com.
(2001) 25 Cal.4th 688, 696 (Griset).) “A reviewing court has jurisdiction over
a direct appeal only when there is (1) an appealable order or (2) an
appealable judgment.” (Ibid.; see Smith v. Smith (2012) 208 Cal.App.4th
1074, 1083 (Smith) [“In the absence of a statute authorizing an appeal, we
lack jurisdiction to review a case even by consent, waiver, or estoppel.”].) A
trial court order is not appealable unless “made so by statute.” (Griset, at p.
696; see also Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377
(Enrique M.).) Code of Civil Procedure section 904.1 (hereafter “section
904.1”) is the primary statutory authority for appeals of civil matters. (See
Enrique M., at p. 1377.)
“Section 904.1 serves to avoid piecemeal litigation by limiting appeals
to final judgments, postjudgment orders, and certain enumerated orders.”
(Smith, supra, 208 Cal.App.4th at p. 1083.) “ ‘California is governed by the
“one final judgment” rule which provides “interlocutory or interim orders are
not appealable, but are only ‘reviewable on appeal’ from the final
judgment.” ’ ” (Brown v. Upside Gading, LP (2019) 42 Cal.App.5th 140, 144
(Brown).) Although “[i]nterlocutory rulings ‘ “within the statutory classes of
appealable interlocutory judgments” ’ remain appealable[,] . . . the appellant
bears the burden of establishing the appealability of such a ruling.” (Ibid.)
Mother asserts that we have appellate jurisdiction over the challenged
rulings under subdivisions (a)(1) and (a)(10) of section 904.1. Subdivision
(a)(1) provides, in relevant part, that an appeal may be taken “[f]rom a
judgment, except an interlocutory judgment[.]” Subdivision (a)(10) allows an
appeal to be taken “[f]rom an order made appealable by the Probate Code or
the Family Code.”
7
Mother argues that section 3454 of the Family Code permits an appeal
to be taken from a “ ‘final order’ ” in a proceeding under the Uniform Child
Custody Jurisdiction and Enforcement Act. However, Family Code section
3454 is inapposite. The orders rendered appealable by this statute are those
enforcing “an order for the return of a child under the Hague Convention on
the Civil Aspects of International Child Abduction.” (Enrique M., supra, 121
Cal.App.4th at p. 1377.) The September 23, 2020 minute order is not such an
order. Accordingly, Mother fails to establish that we have appellate
jurisdiction under subdivision (a)(10) of section 904.1.
Under subdivision (a)(2) of section 904.1, an appeal may be taken from
a postjudgment custody order. (§ 904.1, subd. (a)(2) [providing that an appeal
may be taken from “an order made after a judgment made appealable by
paragraph (1)”]; see Enrique M., supra, 121 Cal.App.4th at p. 1377
[postjudgment order denying parent’s request to modify prior stipulated order
governing parenting schedule was appealable].) Mother, who bears the
burden of establishing appellate jurisdiction, does not invoke this provision,
nor does she contend the September 23, 2020 minute order was preceded by
an appealable final judgment. Moreover, neither side asserts or otherwise
establishes that the June 13, 2019 FOAH qualified as a final judgment.
Thus, the arguments and record before us do not support the exercise of
appellate jurisdiction under section 904.1, subdivision (a)(2).
This leaves us to consider whether the challenged rulings are
appealable under section 904.1, subdivision (a)(1), the only other provision
invoked by Mother. This subdivision embodies the final judgment rule. To
be appealable under this subdivision, an order must “finally determine all
issues or end the litigation between the parties.” (George v. Shams-Shirazi
(2020) 45 Cal.App.5th 134, 141 (Shams-Shirazi).) A ruling that merely
8
decides custody or visitation issues on an interim or temporary basis is not
subject to appeal. “A temporary custody order is interlocutory by definition,
since it is made pendente lite with the intent that it will be superseded by an
award of custody after trial.” (Lester v. Lennane (2000) 84 Cal.App.4th 536,
559 (Lester).) “[I]nterim custody orders are nonappealable.” (Banning v.
Newdow (2004) 119 Cal.App.4th 438, 456.) Immediate review of such
interlocutory custody orders can be sought only by petition for writ relief.
(Lester, at p. 565 [the nature of temporary custody orders “compels the
swiftest possible review of any challenge[,] [and the] writ process, not the
appeal process, is the way to get that review”].)
Mother contends the September 23, 2020 minute order was a “final
order” and therefore appealable. We disagree. In part, Mother focuses on
whether the minute order required the signature of a judge or directed the
preparation of a further, formal order. For our purposes, however, these
aspects of the minute order are not consequential. “ ‘ “It is not the form of the
decree but the substance and effect of the adjudication which is
determinative” ’ of whether an order is a final judgment.” (Shams-Shirazi,
supra, 45 Cal.App.5th at p. 141, fn. 5, quoting Griset, supra, 25 Cal.4th at p.
698.) Instead, the question is whether the minute order purported to finally
adjudicate the parties’ rights of custody or visitation. We conclude that it did
not.
We find no indication that the September 23, 2020 minute order
confirming the September 4 ex parte order that Mother’s visits with the child
were “suspended . . . pending further court order” was intended to finally
dispose of custody or visitation issues. The plain language of the ruling
conveys an impermanent, nonfinal resolution of the issues before the court.
The word “suspend” means “to withdraw temporarily from any privilege.”
9
(Webster’s 3d New Internat. Dict. (2002) p. 2303, col. 2, italics added.) The
court’s use of the word “suspended” (rather than “terminated,” “revoked,” or
the like) conveyed that Mother’s visitation rights were being paused for a
finite period, and also suggested the possibility of a return to the status quo
ante. The court’s statement that visitation was suspended “pending further
court order” conveyed an intent to revisit the matter in the future. As Father
points out, the September 23, 2020 minute order scheduled a further hearing
for December 16. While Mother argues the court did not specifically schedule
the suspension of her visitation rights for a review hearing, it is nevertheless
apparent this aspect of the minute order did not end the litigation.
Accordingly, the first ruling Mother seeks to challenge on appeal is not
appealable. (Lester, supra, 84 Cal.App.4th at p. 559.)
We further conclude that the ruling requiring the child to be
transported to Minor’s counsel’s office no later than 4:15 p.m. on September
23, 2020, “regardless of [the child’s] emotional state,” cannot reasonably be
characterized as a final adjudication of custody or visitation issues. Mother
argues this ruling was “permanent” and therefore appealable as a final order
because “[n]o further hearing was requested or set.” However, the failure to
schedule a further hearing is not a meaningful omission given that that the
transfer was to be accomplished in a matter of hours. Moreover, we disagree
that a ruling of such limited duration and fleeting effect can reasonably be
characterized as “permanent.” In short, Mother also fails to demonstrate
that we have appellate jurisdiction over this aspect of the minute order. (See
Brown, supra, 42 Cal.App.5th at p. 144 [appellant bears the burden of
establishing appealability of interlocutory rulings]; Cal. Rules of Court, rule
8.204(a)(2)(B) [appellant’s opening brief must “explain why the order
appealed from is appealable”].)
10
Mother’s challenge to the ruling requiring the child to be transported to
Minor’s counsel’s office “regardless of [the child’s] emotional state” suffers
from the additional problem that it is now moot. “If relief granted by the trial
court is temporal, and if the relief granted expires before an appeal can be
heard, then an appeal by the adverse party is moot.” (See Environmental
Charter High School v. Centinela Valley Union High School Dist. (2004) 122
Cal.App.4th 139, 144; Lester, supra, 84 Cal.App.4th at p. 566 [“A question
becomes moot when, pending an appeal from a judgment of a trial court,
events transpire which prevent the appellate court from granting any
effectual relief.”].) Here, the ruling Mother asks us to review became
inoperative after 4:15 p.m. on September 23, 2020; no relief can be obtained
through reversal of an order that is already ineffective.
Mother urges us to review the ruling even though it has expired. She
argues we can consider her challenge to this ruling despite its mootness
because her appeal presents a matter of public interest, and because this is a
high conflict case in which similar issues are likely to persist or recur.
Although “[a]n appellate court retains discretion to decide a moot issue if the
case presents an issue of ‘ “substantial and continuing public interest” ’ and is
capable of repetition yet evades review” (Citizens Oversight, Inc. v. Vu (2019)
35 Cal.App.5th 612, 615), we find neither circumstance present and, in any
event, we have no discretion to review a non-appealable order.5, 6
5 Father has filed a motion to dismiss Mother’s appeal pursuant to the
disentitlement doctrine, which disallows an appeal by a party who has
refused to obey the superior court’s valid orders. (See Say & Say v.
Castellano (1994) 22 Cal.App.4th 88, 94.) In light of our disposition of this
appeal, we deny Father’s motion as moot.
11
DISPOSITION
The appeal is dismissed. Father is awarded his costs on appeal.
DO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
6 Mother’s request that we assign the case to a new judge upon remand
is denied, as we see no cause to grant it. (See In re Marriage of Walker (2012)
203 Cal.App.4th 137, 153 [“Our power to direct that a different judge hear
the matter on remand should be ‘used sparingly and only where the interests
of justice require it.’ ”]; Hernandez v. Superior Court (2003) 112 Cal.App.4th
285, 303 [denying appellant’s request to order the action assigned to a new
judge where the challenged orders “do not suggest bias or whimsy on behalf
of the court, only frustration and a desire to manage a complex case”].)
12