Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04FC2389
ROBIE, J.
After Shane C. (father) filed for dissolution of his marriage to Susan C. (now Susan H. (mother)) in September 2004, the parties spent over four years litigating child custody and visitation (among other issues), resulting in numerous orders and rulings. Eventually, in March 2009, the court conducted a two-day evidentiary hearing on custody and visitation. Aggrieved by the resulting order, which gave “temporary sole physical custody” of the child to father and placed mother on supervised visitation, mother appealed. She later also appealed from an order allowing father to take the child on vacation to South Dakota that summer.
We now conclude that neither order from which mother has appealed is an appealable order. As we explain more fully below, both orders are temporary custody orders made during the pendency of a marital dissolution proceeding and as such are not appealable. Accordingly, both appeals must be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Father and mother married in August 2003, and their daughter, Skyler, was born two and one-half months later, in November 2003.
The parties’ fight over custody of Skyler began in May 2004, when she was six months old, with father and mother seeking domestic violence restraining orders against each other. The court granted those orders and gave mother custody of Skyler, with weekend visitation to father.
In September 2004, father filed a petition for dissolution of the marriage. In his petition, father requested the determination of property rights, termination of the court’s jurisdiction to award spousal support to mother, and sole legal and physical custody of Skyler, with supervised visitation to mother. At the same time, father filed an order to show cause (OSC) for custody and visitation orders. At an ex parte hearing the next day, the court ordered the parties to mediation, made a temporary joint custody order, set the hearing on father’s OSC for October, and set a review hearing following mediation for later in October.
In early October 2004, mother filed her response to the petition for dissolution of the marriage. She requested the determination of property rights, termination of the court’s jurisdiction to award spousal support to father, restoration of her former name, attorney fees and costs payable by father, and sole legal and physical custody of Skyler, with supervised visitation to father. The same day, mother filed a motion for custody and visitation orders, child support, spousal support, and attorney fees and costs. Mother set the hearing on her motion for the same day as the postmediation review hearing.
At the hearing on father’s OSC in mid-October, the court left the temporary custody order in place and confirmed the review hearing for later that month.
At the hearing in late October, the court ordered the parties to a custody evaluation; made child support, spousal support, and attorney fees orders; and set a hearing on return from the evaluation for January 2005.
At the hearing on return from the evaluation, the court ordered a supplemental report because mother had announced she was planning to move. The court set a review hearing for February; at that hearing, the court set a one-half day contested hearing on the evaluation for March. The parties subsequently agreed to continue that hearing to May, then to June.
At the hearing in June 2005, the court dropped the matter at the request of the parties because they were living together again. All previous orders were to remain in effect.
Father’s attorney told the court the parties were not reconciling, but mother (representing herself) told the court the parties were attempting to reconcile, and she wanted to drop her move-away request.
In July 2005, mother again sought a domestic violence restraining order against father. The court granted her a temporary restraining order but left the existing custody and visitation order in place. The contested hearing was set for October. Meanwhile, at the end of July mother filed an OSC to modify the custody order from September 2004, asking the court to consider the evaluations from earlier in the year.
In response to mother’s OSC, father asked the court for sole custody of Skyler, with supervised visitation to mother.
At the hearing on mother’s OSC in September 2005, the court ordered another custody evaluation by a different evaluator. The court set a hearing on return from the evaluation for November. Eventually, that hearing was continued to December in conjunction with the hearing on the restraining order.
An evidentiary hearing on mother’s request for a restraining order was held on December 13, 2005. The court denied the request, then considered the parenting plan, left the current custody and visitation order in place, and set a review hearing for February 2006. That hearing was later continued to March.
At the hearing in March 2006, the court adopted a holiday schedule, changed the custody exchange time, and set a further review hearing for May. At the hearing in May, another review hearing was set for July.
At the review hearing in July, the court determined that the case should be set for a trial on all issues. Accordingly, the court vacated all outstanding OSC’s and motions and set a trial on all issues for September 2006.
The local rules governing family law cases provide that a “memorandum to set shall be filed before any contested case may be set for trial.” (Super. Ct. Amador County, Local Rules, rule 13.15(D).) The trial court here apparently chose to disregard that rule because the parties themselves were choosing to engage in prolonged litigation over the temporary custody and visitation order rather than set the case for trial to determine a permanent custody and visitation order.
In August 2006, mother filed another request for a restraining order, this time alleging father was sexually abusing Skyler. The court granted a temporary restraining order and gave physical custody of Skyler to mother, with initially no visitation to father, then supervised visitation. As a result of this issue, the trial that had been set for September was dropped, and a trial setting conference was set for the end of November.
At the end of September, Child Protective Services determined the abuse allegations were unfounded. Accordingly, at a hearing in early October the court rescinded the supervised visitation order, gave father some make-up custodial time, and set a review hearing for early November.
At the November 2006 hearing, the court directed the parties to return to joint custody.
At the trial setting conference in late November, the court made orders regarding the completion of the second evaluation and set a hearing for late December on return from the evaluation.
At the December hearing, the court deferred matters pending the parties signing up for counseling and set a review hearing for late January 2007.
At the January 2007 hearing, the court set a further hearing on various custody issues for late February 2007 and set a trial regarding the allocation of property and debts and spousal support for mid-March.
At the hearing in February, the court confirmed the trial for mid-March and set no further hearings on custody, although the court did order the parties to continue counseling and expressed interest in receiving input from the counselors.
In early March, the court refused mother’s request to continue the trial and continued a hearing on an OSC regarding contempt against father to the same day as the trial.
At the trial in March, the court (among other things): (1) did not find father in contempt; (2) terminated the parties’ marital status; (3) terminated spousal support effective April 1; and (4) continued the trial to May.
In April 2007, the court entered a bifurcated judgment terminating marital status and restoring mother’s former name. Jurisdiction was reserved over all other issues.
The trial continued in early May. At that time, the court took some matters under submission and indicated it would issue a written ruling. At the same time, however, the court set a hearing for mid-August to determine a “permanent” parenting plan and appointed minor’s counsel.
The adjective “permanent” is something of a misnomer in this context because child custody orders are modifiable until the child reaches the age of 18, and thus no custody order is ever really “permanent.” (See Fam. Code, § 3022 [“The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper”].) But just as the word “temporary” is used to describe a custody order that is made during the course of a proceeding, before judgment (see further discussion, post), the word “permanent” is used to describe a custody order that is made at the end of the proceeding, in the final judgment.
At the end of May 2007, the court entered a findings and order after hearing that included a termination of jurisdiction over spousal support, reserved jurisdiction over attorney fees, and made some property orders. This order also provided for continuing joint custody with alternating weekdays and weekends.
In June 2007, the court entered a judgment on reserved issues.
The judgment on reserved issues is not part of the record on appeal, but it is noted on the register of actions that is part of the record. It is reasonable to believe the judgment on reserved issues incorporated the court’s rulings on the various issues that were tried in March and May 2007, other than termination of marital status, which was the subject of the earlier judgment entered in April 2007. In any event, however, it is clear that the judgment on reserved issues did not encompass custody and visitation, since contemporaneous with the trial in May the court specifically set a hearing for August to determine a permanent parenting plan.
In late July 2007, father filed a motion to modify custody, once again seeking supervised visitation for mother. The hearing date was set for the same day as the previously scheduled hearing to determine a permanent parenting plan.
At the hearing in mid-August, the court proceeded primarily based on an extensive report by minor’s counsel. The court ordered the parties to take a coparenting class, ordered continued counseling for Skyler, adopted the parenting plan recommended by minor’s counsel, and set a review hearing in mid-November, “with the expectation that permanent orders will be made at the review hearing.” Father’s motion to modify custody was continued to the November date also.
At the hearing in November 2007, mother requested an evidentiary hearing on father’s motion to modify custody. The court set a two-day trial and an evidentiary hearing on father’s motion for mid-February 2008.
Approximately two weeks before the trial date, mother switched attorneys, but the trial date was confirmed at a settlement conference on January 29. Nevertheless, when the trial date arrived, the court declared a mistrial because the parties were not prepared to proceed. The court dismissed father’s motion to modify custody without prejudice.
In July 2008, mother filed an OSC to modify the custodial plan based on Skyler starting kindergarten and to set the issue of custody for trial. Three days later, father filed his own OSC to modify custody and sought ex parte relief. The court made temporary orders and set both OSC’s for hearing in late August. That hearing was later continued to November.
The November hearing on the OSC’s was continued to January 2009 because father filed a peremptory challenge of the judge. The January hearing date was later vacated and the matter was scheduled for trial setting in late January 2009.
At the trial setting conference, a two-day trial was set for early March. That trial went forward as scheduled, and 13 witnesses testified. The primary issue was mother’s accusations that father had sexually molested Skyler.
The court took the matter under submission and a week later, on March 10, 2009, issued a “RULING ON ORDER TO SHOW CAUSE RE CHILD CUSTODY AND VISITATION.” The court found that mother had “failed to me[e]t her burden of pro[v]ing the allegations of molest by [father]” and that mother had “engaged in a course of conduct designed to alienate Skyler from her father.” The court found that “Skyler’s relationship with [father] is at risk if [mother] is allowed to continue to coach Skyler in an attempt to alienate her from h[er] father.” Accordingly, “to promote the best interests of Skyler, ” the court gave father “temporary sole physical custody with supervised visits by [mother] two times per week.” The court ordered mother to “immediately seek individual counseling” and to “immediately and jointly participate in co-parenting counseling.” The court set a hearing for mid-September 2009 “to review the parties’ compliance with the [court’s] orders.” The court also directed father to prepare a formal findings and order after hearing.
On March 25, 2009, mother filed a notice of appeal from what she deemed a “[j]udgment after court trial.” (This appeal is case No. C061502.) On April 3, she filed a petition for writ of supersedeas in this court. We denied her petition on April 9, 2009.
In June 2009, father sought an order allowing him to take Skyler on vacation to South Dakota. The court granted that order on June 12, 2009, and ordered father to prepare a findings and order after hearing. On June 17, 2009, mother filed a notice of appeal from the court’s June 12 order, which she referred to as a “[j]udgement after short cause hearing.” (This appeal is case No. C062141.) The court entered a formal order on July 27, 2009.
In October 2009, we consolidated mother’s two appeals.
Although the following matters postdate the orders on appeal, the record shows that in late August 2009, mother filed an OSC to modify custody and visitation. A hearing on that OSC was set for September 9. The court then advanced the mid-September review hearing to that date.
At the hearing on September 9, the court set mother’s OSC for a one-half day contested hearing in late October. Due to that pending hearing, the court vacated the review hearing.
The hearing scheduled for late October was continued to November 24, 2009. Following that hearing, the court issued a ruling in which it found that father had substantially complied with the court’s order for telephone contact between mother and Skyler, that father had not engaged in conduct designed to alienate Skyler from mother, and that mother had failed to comply with the court’s orders to participate in coparenting counseling and individual counseling. The court denied mother’s OSC to modify custody and ordered that, with certain exceptions, all prior orders would remain in full force and effect.
DISCUSSION
The first issue presented by mother’s appeals is whether the orders from which she has appealed are appealable in the first place. We conclude they are not.
We begin with the court’s ruling of March 10, 2009. In the statement of appealability in her opening brief, mother asserts the March 10 ruling “is an appealable final judgment because it decides the custodial rights and duties of the parties and terminates the litigation” in that “[n]othing further in the nature of judicial action on the part of the court [wa]s essential to a final determination of the rights of the parties at the time this judgment was entered” and “no other issues remained to be tried.” For the reasons that follow, we disagree.
“The right to appeal is wholly statutory.” (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 962.) As relevant here, under Code of Procedure section 904.1, an appeal may be taken from a judgment that is not interlocutory (with certain exceptions not applicable here), from an order made after an appealable judgment, or from an order made appealable by the Family Code. (Code Civ. Proc., § 904.1, subd. (a)(1), (2), & (10).)
The exceptions are for: (1) “an interlocutory judgment, order, or decree, hereafter made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting”; (2) “an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made”; and (3) “an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).” (Code Civ. Proc., § 904.1, subd. (a)(1), (8), (9), & (11).)
“The Family Code contains no express provision governing appeals of child custody orders, except for those to enforce an order for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction. [Citation.] Thus, the right to appeal a child custody determination is generally limited to final judgments and orders made after final judgments.” (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377.)
In Lester v. Lennane (2000) 84 Cal.App.4th 536, this court explained at length why temporary child custody orders are not appealable. (Id. at pp. 556-565.) As the court made clear, “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.” (Id. at p. 559.) Appellate review of a temporary child custody order made during the pendency of a proceeding can be sought by way of a writ petition. (Id. at p. 565.) “It cannot be [sought] by filing an appeal....” (Ibid.)
Lester arose from a paternity action under the Uniform Parentage Act (Lester v. Lennane, supra, 84 Cal.App.4th at p. 542), while these consolidated appeals arise from a marital dissolution proceeding. For purposes of the appealability of a temporary custody order, however, this is a distinction without a difference.
“Pendente lite” -- a Latin phrase probably used more in family law than in any other area -- means “during the actual progress of a suit” or “during litigation.” (Black’s Law Dict. (5th ed. 1979) p. 1020, col. 2.) There are only two statutes in the Family Code that use the term (see Fam. Code, §§ 2105, subd. (a) [disclosure statute referring to “an agreement for the resolution of property or support issues other than pendente lite support”], 7604 [authorizing the court to “order pendente lite relief consisting of a custody or visitation order” in an action under the Uniform Parentage Act]), but the case law is replete with it. Much more common in the code is the phrase “during the pendency [of a] [of the] proceeding.” (See, e.g., Fam. Code, §§ 2030-2031 [attorney fees], § 3022 [custody], § 3600 [spousal and child support].) The Family Code and the case law also commonly use the qualifier “temporary” to refer to orders made during the pendency of a proceeding. (See, e.g., Fam. Code, §§ 155 [support], 3060-3062 [custody].)
The question, then, is whether the March 10 ruling can be considered either a final judgment or an order made after final judgment, in which case it would be appealable. If not, then it is a temporary custody order made during the pendency of a proceeding and as such is not appealable.
The provision in Code of Civil Procedure section 904.1 that no appeal lies from an interlocutory judgment unless it is of a type specified in the statute “codifies the fundamental principle known as the ‘final judgment rule.’” (Kinoshita v. Horio, supra, 186 Cal.App.3d at pp. 962-963.) “[T]he essence of [that rule] is that an appeal lies only from a final judgment [citation], i.e., a judgment which ‘terminates the proceeding in the lower court by completely disposing of the matter in controversy’ [citation]. [¶] Unfortunately, ‘[t]he problem of determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable is often a difficult one.... It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’” (Id. at p. 963.)
Here, mother essentially asserts that the March 10, 2009, ruling was a “final judgment” on the issues of custody and visitation because that ruling “decide[d] the custodial rights and duties of the parties and terminate[d] the litigation” on those issues. We have two responses to that assertion.
First, the terms of the ruling belie any argument that the trial court intended the ruling to be its final determination of custody and visitation because the ruling expressly gave father only “temporary sole physical custody” of Skyler. (Italics added.) The trial court’s use of the word “temporary, ” which, as we have noted, is customarily used to refer to orders made during the pendency of a proceeding, significantly undercuts any contention that the court intended this ruling to be the permanent custody and visitation order.
Moreover, in conjunction with its use of the word “temporary” to describe the custodial plan it was ordering, the court set a review hearing six months in the future. It is true the review hearing alone -- which was set “to review the parties’ compliance with the orders of th[e] court” -- might not preclude characterization of the ruling as “final” under the final judgment rule, because, as we have noted, “where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final.” (Kinoshita v. Horio, supra, 186 Cal.App.3d at p. 963, italics added.) But when the provision for a review hearing is construed along with the court’s order of “temporary” sole physical custody to father, as well as with the orders to mother of what she was to do in the interim (seek individual counseling and participate in coparenting counseling), it is exceedingly difficult to characterize the March 10, 2009, ruling as a permanent custody and visitation order. It appears to us the court’s ruling necessarily contemplated a further determination of custody and visitation, based in part -- though not exclusively -- on whether mother complied with the court’s counseling orders.
It is true that, as matters turned out, the review hearing the court set for September was ultimately vacated, but that happened only after the court set a hearing on a new OSC mother had filed to modify custody and visitation. As part of the hearing on that OSC, the court considered mother’s compliance with its counseling orders. Most importantly, however, the fact that the court denied mother’s OSC in December 2009, based in part on her failure to comply with the counseling orders, did not retroactively transform the court’s March 2009 ruling into a permanent custody and visitation order.
Second, even if we assume for the sake of argument that the trial court intended its March 10, 2009, ruling to be the permanent custody and visitation order (rather than merely another temporary custody and visitation order pending trial), the fact remains that the court’s ruling was not, and is not, the “final judgment” in the case. Under the final judgment rule, “an appeal lies only from... a judgment which ‘terminates the proceeding in the lower court by completely disposing of the matter in controversy.’” (Kinoshita v. Horio, supra, 186 Cal.App.3d at p. 963.) That means an appeal would lie from a judgment that finally resolved whatever issues remained in this case following entry of the judgment terminating marital status entered in April 2007 and the judgment on reserved issues entered (albeit improperly) in June 2007. Mother points to no evidence, however, that as of March 2009, custody and visitation were the only issues in the case that remained to be resolved. Thus, there is no way for us to reasonably conclude that the court’s ruling of March 10, 2009 did, in fact, terminate the proceeding in the trial court by completely disposing of all the matters that remained in controversy in the case.
On this point, it is significant to point out that in its ruling, the trial court specifically directed father to prepare and submit a formal findings and order after hearing. Had the court intended to make a permanent custody and support order, and had the court understood that this was the last determination that needed to be made in the case before final judgment could be entered, it is reasonable to expect that the court would have directed father to prepare a final judgment instead of merely a findings and order after hearing. The fact that the court did not do so only tends to further show that the court did not intend its March 10, 2009, ruling to be the permanent custody and visitation order, let alone the final appealable judgment in this dissolution proceeding.
Because the March 10, 2009, custody and visitation ruling was not the final judgment in this proceeding, it is not appealable as a final judgment. Nor is it appealable as an order after final judgment, since, so far as we know, no final judgment has ever been entered in this dissolution proceeding, let alone entered before the March 2009 ruling was made. The March 2009 ruling can only be characterized as a temporary custody and visitation order that is not reviewable by direct appeal.
Mother undoubtedly will be frustrated at what she will likely perceive as her inability to obtain appellate review of the determination the trial court made as a result of the evidentiary hearing in March 2009. As we made clear in Lester, however, appellate review of a temporary custody order must be sought by means of a petition for an extraordinary writ. To the extent mother suggests she availed herself of this remedy (albeit unsuccessfully) by filing a petition for a writ of supersedeas, we have two responses.
First, a petition for a writ of supersedeas cannot be used to obtain appellate review of a nonappealable temporary custody order. The purpose of a writ of supersedeas is “to stay a judgment pending appeal.” (In re Christy L. (1986) 187 Cal.App.3d 753, 758.) “The writ of supersedeas is an aid to the appellate jurisdiction of an appellate court; its purpose is to stay proceedings on the judgment or order from which an appeal is taken. [Citation.] An appellate court may issue a writ of supersedeas to stay a judgment or order only where an appeal from the judgment or order is pending.” (Id. at pp. 758-759.) Thus, a petition for a writ of supersedeas can be filed in conjunction with an appeal to preserve the status quo pending the resolution of the appeal; it cannot be used as a vehicle to obtain appellate review where an appeal is not available. The proper writ petition to seek appellate review of a temporary custody order would be a petition for a writ of mandate, or perhaps of prohibition.
Second, even if mother had pursued the appropriate writ relief, the fact that she was unsuccessful in the pursuit of that relief would not have made what was otherwise a nonappealable temporary custody order reviewable by appeal.
Our conclusion that the March 10, 2009, ruling is a nonappealable temporary custody order leads inexorably to the very same conclusion regarding the order of June 12, 2009, that is the subject of mother’s second appeal. That order, which allowed father to take Skyler on vacation to South Dakota in June and July 2009, was not by any stretch of the imagination the final judgment in this proceeding, nor was it an order after final judgment, as there is no evidence a final judgment has ever been entered in this proceeding, let alone entered sometime between March 10 and June 12, 2009. As a temporary custody order, it, too, is not appealable.
For what it is worth, we also note that: (1) mother offered no argument in her opening brief regarding the June 12, 2009 order, likely because it is now, and has long been, moot; and (2) the mootness of the order is by itself a basis for us to dismiss the appeal from it. (See In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204.)
DISPOSITION
The appeals are dismissed. Father and minor’s counsel shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: BLEASE, Acting P. J. DUARTE, J.
A postjudgment custody order, on the other hand, can be either temporary or permanent, depending on whether the court, at the time it makes the order, contemplates further proceedings (other than merely enforcement proceedings).
Here, a final judgment had not yet been entered in the case when the court set a hearing to determine a “permanent” parenting plan. Thus, the court was obviously setting a hearing to determine the “permanent” custody and visitation provisions to be included in the final judgment in the case.
As an aside, we note that it was improper for the trial court to enter a judgment on reserved issues that did not resolve all of the remaining issues in the case. In a dissolution proceeding, “[t]he court may try separately one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues.” (Cal. Rules of Court, rule 5.175(c).) However, when a bifurcated issue is decided, “the court must not prepare any proposed judgment until the other issues are tried, except when an interlocutory judgment or a separate judgment may otherwise be properly entered at that time.” (Id., rule 3.1591(a).) In a dissolution proceeding, a bifurcated judgment terminating marital status is specifically authorized by statute. (See Fam. Code, § 2337.) There is no similar provision, however, authorizing a separate judgment on some, but not all, of the remaining issues in a dissolution proceeding.
For ease of understanding, and to honor the legislative preference, we use the qualifier “temporary” and the phrase “during the pendency of the proceeding” to refer to orders made during the course of the litigation (rather than as a result of trial) and accordingly eschew the corresponding Latin phrase.