Marriage of Kuperschmit and Jones CA2/5 ( 2021 )

Filed 12/9/21 Marriage of Kuperschmit and Jones CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Marriage of B302817
KUPERSCHMIT and JONES.
(Los Angeles County
DEREK JONES, Super. Ct. No. 18STFL06653)
Appellant,
v.
INES KUPERSCHMIT,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Anne K. Richardson, Judge. Dismissed.
Derek Jones, self-represented litigant, for Appellant.
No appearance for Respondent.
__________________________
Derek Jones appeals from an order that modifies an
interim custody order he stipulated to with his ex-wife, Ines
Kuperschmit. The trial court modified the interim order to
award Kuperschmit tie-breaking authority over educational
decisions for their four minor children.1 The interim custody
order otherwise remained in effect. On appeal, Jones primarily
contends the trial court erred because it ignored several factors
reflecting the best interests of the children and failed to provide a
statement of reasons for its ruling. Because Jones appeals from a
nonappealable order, we dismiss the appeal.
PROCEDURAL BACKGROUND
On May 30, 2018, Kuperschmit petitioned for dissolution of
the marriage. In the course of their divorce proceedings,
Kuperschmit and Jones entered into an agreement captioned
“Stipulation Re: Interim Parenting Schedule and Temporary
Support,” which was converted to an order by the trial court.2 In
pertinent part, the stipulated order provides that “Ines and
Derek are awarded interim joint legal custody of the minor
children. Both parents shall share the right and responsibility to
make decisions relating to the health, education and welfare of
the minor children.”
On June 3, 2019, Kuperschmit filed a request for an order
permitting the children to attend the school of her choice. Jones
opposed Kuperschmit’s request and sought sole decision-making
authority in his responsive declaration. On August 1, 2019, the
1 Kuperschmit did not file a respondent’s brief or otherwise
appear in this appellate proceeding.
2 Neither the stipulation nor the order are part of the record
on appeal. We take the information regarding the contents of the
stipulation and order from Jones’s assertions in his opening brief.
2
trial court heard extensive argument from the parties. In its
October 2, 2019 order after the hearing, the trial court awarded
Kuperschmit “tie-breaking authority over all educational
decisions for the children, including, but not limited to, the choice
of school for the minor children” with the condition that the
parties continue to meet and confer regarding future educational
decisions. The order further specified the parties would continue
to share joint legal custody over issues not related to the
children’s education.
Jones timely appealed from the October 2, 2019, order.
DISCUSSION
As a threshold matter, we must decide whether the court’s
modification is an appealable order. “The existence of an
appealable judgment is a jurisdictional prerequisite to an appeal.
A reviewing court must raise the issue on its own initiative
whenever a doubt exists as to whether the trial court has entered
a final judgment or other order or judgment made appealable by
Code of Civil Procedure section 904.1.” (Jennings v. Marralle
(1994) 8 Cal.4th 121, 126.) The modification of an interim
custody order is not listed as an appealable order in section 904.1.
Jones asserts Code of Civil Procedure section 904.1,
subdivision (a)(10) applies. Under that subdivision, an appeal
may be taken “[f]rom an order made appealable by the Probate
Code or the Family Code.” (Code Civ. Proc., § 904.1, subd.
(a)(10).) Jones fails to specify which section of the Family Code
renders the challenged order appealable. He has thus failed to
meet his burden to explain why the order appealed from is
appealable. (Cal. Rules of Court, rule 8.204(a)(2)(B); Lester v.
Lennane (2000) 84 Cal.App.4th 536, 557.)
3
Our own review of the Family Code shows Family Code
section 2025 makes appealable interim rulings on bifurcated
issues if the trial court certifies the appeal is appropriate and the
appellate court orders the issue transferred to it for hearing.3 (In
re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1431.) That
did not happen here.
Alternatively, Code of Civil Procedure section 904.1,
subdivision (a)(14) allows an appeal “[f]rom a final order or
judgment in a bifurcated proceeding regarding child custody or
visitation rights.” This provision also does not apply because the
challenged order is not final. By its own terms, the stipulated
order is an interim arrangement. Jones expressly states this in
his opening brief. The trial court’s subsequent modification did
not render the modification a final order, particularly when it
modified only one aspect of the parties’ legal custody and
Kuperschmit’s decision-making authority remained conditional.
Jones has failed to identify, and we have not found, any other
statute that could make the challenged order appealable.
At oral argument, Jones advised this court that trial on
financial issues and modification of physical and legal custody is
currently set for January 31, 2022. Jones also stated he intended
to raise the parties’ educational rights with the court at trial but
3 Family Code section 2025 provides: “Notwithstanding any
other provision of law, if the court has ordered an issue or issues
bifurcated for separate trial or hearing in advance of the
disposition of the entire case, a Court of Appeal may order an
issue or issues transferred to it for hearing and decision when the
court that heard the issue or issues certifies that the appeal is
appropriate. Certification by the court shall be in accordance
with rules promulgated by the Judicial Council.”
4
that he would not seek to remove the children from their current
school during the school year. Jones’s statements to this court
are consistent with our conclusion that the trial court’s order of
October 2, 2019, was an interim, nonappealable order.
We accordingly dismiss Jones’s appeal. (In re Mario C.
(2004) 124 Cal.App.4th 1303, 1307 [“a reviewing court is ‘without
jurisdiction to consider an appeal from a nonappealable order,
and has the duty to dismiss such an appeal upon its own
motion’ ”].)
DISPOSITION
Jones’s appeal, filed on December 6, 2019, is dismissed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR J.
5