Marriage of Stupp and Schilders CA1/2

Filed 9/2/20 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
A156022
v.
ANNEMARIE SCHILDERS, (San Mateo County
Super. Ct. No. FAM0110799)
Appellant.
Appellant Annemarie Schilders (Mother) appeals from postjudgment
orders that modify temporary orders governing her visitation with her child.
She claims that an order suspending visitation while she is out of the country
is appealable as a final order, a postjudgment order, and/or an order granting
an injunction, and that two related orders are appealable as orders granting
injunctions. Respondent Steven Stupp (Father) has moved to dismiss the
appeal on the grounds the orders are not appealable. We agree with Father
and conclude that none of the orders is an injunction for purposes of appeal,
and that the order suspending visitation is a nonappealable postjudgment
temporary visitation order. Accordingly, we dismiss the appeal.
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FACTUAL AND PROCEDURAL BACKGROUND
The orders challenged in this appeal were issued in proceedings
concerning the dissolution of the parties’ marriage and the custody of their
child, who is now 10 years old. The underlying case, which has been pending
in the family court since shortly after the child’s birth, has been highly
contentious: as of March 2019 the register of actions extended to 161 pages,
and since June 2014, when Mother appealed the entry of a stipulated
judgment of dissolution, Mother has initiated appeals from many
postjudgment orders and submitted several writ petitions.1
The 2014 stipulated judgment of dissolution, as modified by the family
court and affirmed by this court, included a temporary custody and visitation
order. (Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.].) The
family court eventually issued further, postjudgment temporary custody and
visitation orders, some of which Mother has sought to appeal. We have
dismissed those appeals on the grounds that such orders are not appealable.
(See, e.g., Stupp v. Schilders (May 18, 2017, A144762) [nonpub. part of par.
pub. opn.].) Custody and visitation have remained subject to temporary
orders, as Mother acknowledges.
A. Mother’s Request for Temporary Orders and Father’s Responses
In March 2018, Mother filed a request for temporary orders concerning
visitation.2 According to the request, under the existing temporary visitation
1This court has previously issued opinions resolving 13 appeals from
the underlying case.
2Custody of the child is not at issue in this appeal. Mother represents
that she and Father share joint physical custody of the child subject to
temporary custody orders. She states that a hearing on a final custody order
was scheduled in November 2015 but did not take place and was never
rescheduled. She does not elaborate.
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order the child spent time with Mother each Friday from school pickup at
1:25 p.m. until at least 6 p.m. On alternate weeks, visitation with Mother
extended overnight, until Saturday at 6 p.m. Under the requested
modification, to last while Mother “is out of the country,” the child would
communicate with Mother (presumably by phone or video chat) at least once
per week for an hour and a half. Further, “[f]or the time with his mother, the
child shall be exchanged to and from Alfred Lerner at the San Carlos public
library. The child will have his communications with his mother while
accompanied by Alfred Lerner. [Father] is prohibited from recording in any
way, directly or indirectly, the child during the scheduled times.” The
request was supported by a declaration dated March 8, 2018 from Mother’s
attorney, who stated as follows: “I believe and am informed that the child
will suffer imminent emotional harm if he is prevented from having
communications with [Mother] while she is out of the country. I believe and
am informed [the] child has a strong relationship with and has had an
established schedule of spending a substantial amount of time with her every
week. My knowledge is based, in part, on the admissions of [Father], the
comments of the child’s therapist, testimony given in this case, and the past
court orders. [¶] Dr. Alfred Lerner is a friend of [Mother]. He has
participated in the exchanges of the child many times. I have personal
knowledge of this based on observation and the admissions of the parties.
[Mother] informed me that she has travelled to and is presently in the
Netherlands. I have personal knowledge of this because I received
communication directly from her.”
Father opposed Mother’s request in his March 2018 responsive
declaration to her request for order. Father stated that he would consent to
making the child available each weekend for a one-hour Skype call with
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Mother, to be facilitated from Father’s home, which was the child’s primary
residence. Father did not agree to the child being in Lerner’s care for any
purpose, and requested that the child’s “time with [Mother], even if she
returns to California, is suspended, aside from the weekly Skype calls,
pending a Brief Focused Assessment or a Child Custody Evaluation.” Father
further stated that, pursuant to a previous temporary order, he had
facilitated weekly Skype calls between Mother and the child for a period of
about 5 months in 2016, while Mother was out of the country.
The matter was set for a hearing in May 2018.
In April 2018, Father submitted further declarations to the court in
response to Mother’s request for order. He stated that Mother had no contact
with the child for 8 weeks, from early March to late April, and that as far as
he knew Mother had made no effort to contact him to schedule contact with
the child or inquire about the child’s well-being. Father withdrew his offer to
arrange for Skype calls between Mother and the child, and instead requested
that the court suspend Mother’s visitation pending further court order, so
that the court would have the opportunity to gather more information,
including information from the child’s therapist, to determine whether
contact between Mother and the child would be appropriate.
B. Hearing and Order
The court held an evidentiary hearing on the conflicting requests over
two days in May and June 2018 and announced its findings and orders from
the bench. The court found that Mother had not exercised her custodial time
with the child under the existing visitation order for a period of 15 weeks,
that the child had no contact with Mother during that period, and that the
lack of contact caused the child distress. The court concluded that in those
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circumstances, Mother’s requested orders for Skype contact were not in the
child’s best interest and denied Mother’s request.3
The court granted Father’s request to suspend visitation between
Mother and the child until further order of the court. The court conditioned
resumption of visitation on a court order “based on a noticed pleading filed by
either of the parties seeking to change visitation so that the Court has the
opportunity to reevaluate the circumstances with testimony and evidence
from the parties as to any relevant circumstances as to why it would be in the
child’s best interest to change the Court’s temporary [suspension] of
visitation.” The court also ordered that before the resumption of any
visitation, Mother was to “disclose to the Court through a noticed pleading
either the fact that she has returned or that she intends to return.”
3 In denying Mother’s request, the court stated that it was not in the
child’s best interest to have contact with Mother that was supervised by
Lerner, “an individual who, according to testimony offered in this hearing . . .
has been previously involved in this litigation and in conflict with [Father] in
particular, who is the custodial parent.” At the end of the hearing, Mother’s
counsel suggested that the court allow communication between Mother and
the child that was facilitated by a professional custody or exchange
supervisor, rather than by Lerner. The court responded that when Father
had offered to facilitate calls between Mother and the child, “the course of
action that your client pursued was to have absolutely no contact with the
child for 15 weeks.” The court continued, “And after 15 weeks of no contact I
think what is likely going to be necessary when and if your client returns to
the country is to have the Court evaluate the extent to which it will be in the
child’s best interest to resume contact, and at that point under what
circumstances and with what therapeutic support to the child. I’m not
prepared to make that order in the absence of any evidence that your client
intends to return at any point in the near future. So I’ve articulated the basis
for my decision. And the request to have . . . the supervision occur through a
different individual or a different agency is denied.”
5
Father’s counsel was directed to prepare the written order, which was
entered in November 2018. The order provides that Father’s “request to
suspend all visitation and contact between [Mother] and the [child], is hereby
granted. [¶] In that regard, [Mother] is obligated to notify petitioner in a
noticed pleading of her anticipated date of return to the United States.
[¶] This suspension of contact and visitation . . . shall continue until further
order of court and [Mother] has returned to the territorial United States and
may only be modified pursuant to a request for order seeking to modify such
based upon a showing of some material change in circumstances.” Mother
timely filed a notice of appeal. After Mother filed her opening brief on
appeal, Father filed a motion to dismiss, which Mother has opposed.
DISCUSSION
We have jurisdiction over Mother’s appeal only if the orders she
challenges are appealable. (Griset v. Fair Political Practices Commission
(2001) 25 Cal. 4th 688, 696.) The rules of court require an appellant’s opening
brief to “explain why the order appealed from is appealable.” (Cal. Rules of
Court, rule 8.204(a)(2)(B).)
Mother challenges three orders on appeal: the order suspending
visitation (suspension order); the order requiring her to notify Father in a
noticed pleading of her anticipated date of return to the United States (notice
order); and the order that the suspension order may be modified only
pursuant to a request for order seeking modification based on a showing of a
material change in circumstances (material change requirement). She argues
that the suspension order is appealable as a postjudgment order under Code
of Civil Procedure4 section 904.1, subdivision (a)(2) and as a final custody
4 Undesignated statutory references are to the Code of Civil Procedure.
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order under section 904.1, subdivision (a)(1). She also argues that all three
orders are appealable as orders granting injunctions under section 904.1,
subdivision (a)(6). We are not persuaded.
A. The Suspension Order Is Not Appealable as a Postjudgment Order
or Final Custody Order
Section 904.1, subdivision (a)(2) permits the immediate appeal of an
order made after an appealable judgment, but as we have explained, this
does not mean that every postjudgment order is appealable. (Stupp v.
Schilders (Mar. 25, 2016, A143186) [nonpub. opn.].) In particular,
postjudgment temporary custody orders are not appealable, but are
reviewable only by writ. (Ibid.; see also, e.g., Stupp v. Schilders (Jan. 24,
2017, A148811) [nonpub. opn.].) Final determinations of custody are
appealable as final judgments under section 904.1, subdivision (a)(1).
(Enrique M. v. Angelina V. (2004) 121 Cal. App. 4th 1371, 1377-1378.)
Mother argues that the visitation order here is appealable because it
has the “characteristics of a final visitation order.” Yet, as Mother
acknowledges, she explicitly requested temporary visitation orders, and the
family court never stated that it would enter a final order. In fact, the family
court characterized its order as temporary in pronouncing it from the bench
and was clear that the order was not permanent but was instead preliminary
to further proceedings that would include “testimony and evidence from the
parties.”
Mother identifies two respects in which the suspension order has the
purported characteristics of a final order: modification of the order requires
the filing of a request for order and a showing of a material change of
circumstances. It is true that the modification of a final custody and
visitation order typically requires the filing of a request for order and a
showing of a material change of circumstances. (Montenegro v. Diaz (2001)
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26 Cal. 4th 249, 256.) But Mother cites no authority that either of those
characteristics will transform an otherwise temporary visitation order into a
final appealable order.
We begin with the requirement that the parties file a request for order
if they seek to change the suspension order. We do not interpret this
requirement as an indication that, contrary to the family court’s
pronouncement, the suspension order is final. As a general matter, parties in
family court proceedings file requests for order when they seek to change
existing orders, whether temporary or final. Ordinarily, we might expect
that a temporary order would end at some defined point specified in the
order, but the record in this case indicates that the court had no information
as to when Mother would return to the United States. Lacking information
about Mother’s plans, and in light of evidence that the child was distressed
by Mother’s absence, the family court concluded that when and if Mother did
return further proceedings would be required to determine whether it was in
the child’s best interest to resume visitation and under what circumstances
any visitation should occur.
Mother claims that because no further action on custody or visitation is
scheduled in the November 2018 order, the order is final. We disagree. The
record suggests it would have been pointless for the court to schedule further
action at that time. Mother had asked for orders to be made for the time
when she was out of the country, and as we have noted, the court had no
information as to when she might return. In addition, according to Father’s
declarations in response to Mother’s request for order, pinning Mother down
on dates was not easy. According to Father’s declarations, Mother had been
seeking to avoid participation in court-ordered mediation that had been
scheduled for the end of February 2018. Mother cancelled the appointment,
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and the mediation was rescheduled for March. Again Mother cancelled, and
the mediation was rescheduled for April. Yet again Mother cancelled. At
that point, the court ordered the parties to each contact the mediation service
within 24 hours to schedule the mediation on one of three dates, which
Mother was authorized to attend by Skype from the Netherlands. But
several days after the deadline passed, she still had not made the required
contact. In these circumstances, the fact that the court did not set a date for
further proceedings, but instead required that the parties file a request for
order to modify the suspension order is not an indication that the suspension
order is final: it is simply an attempt by the family court to manage the
litigation before it.
We find no merit in Mother’s claim that the suspension order must be
deemed final in view of the family court’s statement that a showing of a
material change in circumstances will be required for modification. Nothing
in the order purports to change the requirement that before making a final
order as to custody and visitation (which the court stated this was not) “the
family court must conduct an adversarial proceeding and ultimately make an
award that is in ‘the best interest of the child.’ ” (Keith R. v. Superior Court
(2009) 174 Cal. App. 4th 1047, 1053.) Nor does the order eliminate the
requirement that in making such an order the court must not “arbitrarily
deprive either parent from offering pertinent evidence bearing on the child’s
best interest, including evidence regarding the harm that may result from
disruption of established patterns of care and emotional bonds.” (Id. at p.
1051.)
In sum, in the circumstances here, there is no basis to characterize the
order suspending visitation—which the court announced from the bench was
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a temporary order—as a final order. Accordingly, it is not appealable as a
final custody or visitation order.
B. None of the Challenged Orders Is an Order Granting an Injunction
An injunction is a writ or order that requires a person to perform or
refrain from performing a particular act. (Luckett v. Panos (2008) 161
Cal. App. 4th 77, 84.)
In her opening brief on appeal, Mother contends—without citation to
authority—that the challenged orders are injunctions. She simply asserts
that the notice order and the material change requirement are injunctions
because they impose requirements that do not currently exist in California
law, and the suspension order is an injunction because it prohibits contact
between Mother and the child.
We begin with the notice order and the material change requirement.
Neither of them requires Mother to take any action or refrain from taking
any action. As Father points out, Mother may elect not to return to the
United States, and she retains discretion whether to seek a further custody
or visitation order.
We turn now to the suspension order. Although the order temporarily
prohibits Mother from having contact with her child, Mother presents no
authority or argument to support treating this order as an appealable
injunction. Treating a temporary suspension order as an injunction would
vastly expand the universe of appealable orders, with the result that a host of
nonappealable temporary visitation orders would become appealable, such as
temporary visitation orders that reduce visitation time, or limit activities or
restrict travel during visitation. For good reason, temporary visitation
orders, like temporary custody orders, are reviewable only by writ: “The very
nature of such orders compels the swiftest possible review of any challenge.
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The writ process, not the appeal process, is the way to get that review.”5
(Lester v. Lennane (2000) 84 Cal. App. 4th 536, 565.)
DISPOSITION
The appeal is dismissed. Respondent shall recover his costs on appeal.
5 Mother elected to appeal these November 2018 orders rather than file
a writ petition. Even if Mother had requested that we treat her attempted
appeal as a writ petition (and she has not), we would not be inclined to
exercise our discretion to do so in the circumstances here. (Olson v. Cory
(1983) 35 Cal. 3d 390, 400-401 [power to treat purported appeal as a writ
petition should be exercised only in unusual circumstances].)
We note that although Mother’s attorney had argued to the family
court in March 2018 that it was “essential, starting now, for the child to
continue his interactions with his mother,” subsequent events and
statements dispel any suggestion of urgency on Mother’s part. The family
court found that Mother did not take advantage of Father’s March 2018 offer
to facilitate weekly Skype calls with the child with the result that she had no
contact with the child for the 15 weeks ending in late June 2018. Further,
Mother’s opening brief in this appeal was not filed until May 2020 as a result
of multiple extensions (1 stipulated and 4 requested by her counsel) and the
coronavirus emergency. In requesting extensions, Mother’s counsel stated
that Mother agreed to the extensions, and noted that the existing situation
(that is, with the challenged orders in effect, and presumably with no contact
between Mother and the child) was favorable to Father.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A156022, Stupp v. Schilders
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