Engel v. Landman (CA1 4/20/09)

You won’t see us reviewing many cases involving modification of a child support award (or a divorce, or similar things vitally important, we’re sure, but dreadfully dull and repetitive). But this one features a thoroughly fouled-up procedural situation that we can’t resist laughing at.

A couple years after their divorce, Father moved to modify his child support payments to Mother. Father and Mother are millionaires fighting over financial trifles and therefore went at this litigation with a gusto appreciated, no doubt, by their lawyers but not by Division One, which goes out of its way to comment on the situation. After an evidentiary hearing, the trial court reduced the child support but awarded Mother her attorney’s fees. Father moved for new trial and objected to Mother’s fee application; she apparently did not respond to either. Before the trial court had ruled on those, Father filed a Notice of Appeal and Mother filed a cross-appeal. The following month, the court ruled on the motion, mostly denying it in a signed minute entry but reducing the child support further and vacating the fee award. In the mean time, though, Father had moved to withdraw his motion; after finding out about the court’s ruling, he moved to withdraw his motion to withdraw his motion. Mother objected to the motion to withdraw the motion to withdraw and moved to “strike” the ruling on the new-trial motion.

Are you with us so far?

Father then filed a “supplemental” notice of appeal from the ruling on his new-trial motion. A month later, the court granted his motion to withdraw his motion to withdraw his motion for new trial and denied Mothers motion to strike. Mother then filed an appeal from that order, which was an unsigned minute entry.

Folks, keep in mind that there are staffers at all our appellate courts whose first job is to make sure that their courts have jurisdiction of the appeal. They live for cases like this.

The opinion takes several pages to sort out the procedural problems and deal with them.

Father’s premature appeal (filed, remember, before the ruling on his Motion for New Trial) was a nullity. A party may not file a notice of appeal when a time-extending motion (e.g., for new trial) is pending in the trial court. (An earlier Division One case had adopted a broader rule; the opinion in Engel retracts that in light of a subsequent Supreme Court case.)

Father’s supplemental notice of appeal – filed after the new-trial ruling – was effective.

Mother’s Motion to Strike was properly denied. The opinion points out, in essence, that it was the wrong motion filed at the wrong time asking for the wrong relief under the wrong rule. A footnote requests that lawyers read the rules and figure out what a Motion to Strike is and what it isn’t.

Mother’s cross-appeal was a nullity for the same reason Father’s first notice was. She didn’t file a supplemental notice, so she had no appeal. A party may raise a cross-issue in an answering brief (ARCAP 13) but not, as a practical matter, if it seeks affirmative relief (in the language of the rule and the opinion, if it enlarges the rights of the appellee or lessens the rights of the appellant). Because that’s what Mother wanted – more child support and her attorney’s fees – the court had no jurisdiction to consider her cross-issues.

Mother’s other appeal, you may recall, was from an unsigned minute entry. Normally when that happens (the fact that it happens so often that there is a normal procedure for dealing with it is, by the way, an embarrassment to the profession) the court suspends the appeal until the appellant gets the order signed. But there’s no point in that if the order isn’t appealable anyway. To be appealable, a post-judgment order must raise different issues than an appeal from the judgment would raise and must affect or enforce/stay the judgment. The court held that this order did not satisfy the first criterion.

The rest of the opinion deals mostly with the details of what Father’s child support should have been; if that’s your thing, go for it.

As we always do with things like this, we should point out that we know only what the opinion says and that there could be extenuating circumstances. On the face of it, though, you have to wonder whether there should have been adult supervision.