Marriage of Svendsen CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. D520079
- Trial judge
- Susan D. Huguenor
- Outcome
- dismissed — Appeal dismissed.
- Area
- family
- Panel
- Gilbert Nares (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court issued a temporary custody order granting primary custody to the father and setting child support, which the mother appealed. The Court of Appeal dismissed the appeal, holding that temporary custody orders are interlocutory and not appealable under Code of Civil Procedure section 904.1, nor do they qualify as collateral orders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal of appeal from temporary custody and child support order“we dismiss this appeal because an interim custody determination is not an appealable order.” | unclear | correct | agree with court The court correctly applied the final judgment rule and the collateral order doctrine to determine that the temporary order was not appealable. |
Authorities
- relied: Lester v. Lennane (2000) 84 Cal.App.4th 536 — Temporary custody orders are interlocutory and not appealable; the writ process is the proper remedy for immediate review.
- relied: In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728 — An order is not appealable if it does not finally resolve a matter severable from the general subject of the litigation.
The appellate opinion: sound — The opinion is sound because it correctly applies the final judgment rule and the collateral order doctrine to dismiss the appeal of a temporary custody order. It relies on established precedent (Lester) to support the conclusion that such orders are interlocutory and not appealable.
How this analysis was made · dispute it
unusual dispositionThe trial court in a dissolution action made a temporary custody order placing the two minor children with the father on an 82 percent timeshare, adopting a Family Court Services recommendation, and ordered the mother to pay $219 per month in child support. On the mother's appeal challenging the custody determination, the Court of Appeal dismissed, holding the temporary custody order was interlocutory and nonappealable and that the inclusion of child support did not make it an appealable collateral order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Temporary (pendente lite) custody order adopting Family Court Services recommendation awarding custody to father with 82 percent timeshare“we dismiss this appeal because an interim custody determination is not an appealable order.” | unclear | not reached | agree with court Lester v. Lennane squarely holds that temporary custody orders are interlocutory, not among the orders enumerated in Code of Civil Procedure section 904.1, and reviewable only by writ. Ann challenged only the custody determination, so dismissal of that challenge follows directly from Lester; the court also reasonably treated her failure to file a reply brief as a concession. |
Temporary child support order of $219 per month, invoked by appellant as a basis for collateral-order appealability“Here, the temporary custody order directs the payment of money and is dispositive of the parties' rights concerning child support. But the question then arises, is child support a collateral issue? We conclude that it is not.” | unclear | not reached (law misapplied) | disagree with court The court's conclusion that a pendente lite child support order is not a collateral order is in tension with In re Marriage of Skelley, where the Supreme Court held temporary support orders are appealable final collateral orders directing payment of money, and with later Court of Appeal decisions applying Skelley to temporary child support. The dismissal is still defensible because Ann attacked only the custody ruling, not the support award, but the court's stated reasoning on appealability of support is doubtful and does not address Skelley. |
Authorities
- relied: Lester v. Lennane (2000) 84 Cal.App.4th 536 — Temporary custody orders are interlocutory, not appealable under Code of Civil Procedure section 904.1, and must be challenged by writ petition.
- relied: In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728 — An order is appealable as collateral only if it finally resolves a matter severable from the general subject of the litigation.
- missed: In re Marriage of Skelley (1976) 18 Cal.3d 365 — A pendente lite support order directing payment of money is a final collateral order and is directly appealable.
- missed: In re Marriage of Gruen (2011) 191 Cal.App.4th 627 — Temporary support orders are directly appealable collateral orders, and the trial court may not retroactively modify them.
The appellate opinion: sound with gaps — The dismissal of the challenge to the temporary custody order is correct under Lester and section 904.1, and the appellant conceded the point by not filing a reply brief. However, the court's assertion that a temporary child support order is not a collateral order conflicts with Skelley and its progeny holding pendente lite support orders appealable, an authority the opinion never addresses; the better ground was that appellant attacked only the nonappealable custody ruling.
Opinion
Filed 7/16/13 Marriage of Svendsen 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 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of ERIC I. and ANN C. SVENDSEN. D062664 ERIC I. SVENDSEN, Respondent, (Super. Ct. No. D520079)
v. ANN C. SVENDSEN, Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Susan D.
Huguenor, Judge. Appeal dismissed.
Sergio W. Stevens for Appellant.
Eric I. Svendsen, in pro. per., for Respondent.
In this marital dissolution action, the court ordered temporary custody of the parties' two minor children, Emily, who was 15 at the time of the hearing, and Lukas, who was 10 at the time of the hearing, to their father, Eric Svendsen, with an 82 percent visitation share to father. The court also made orders for spousal support and child support.
Ann C. Svendsen appeals that ruling, asserting the court erred in accepting the recommendation of Family Court Services as to custody because it was based upon a "lack of evidence" and "misinterpreted evidence." Eric contends the temporary custody order is not an appealable order.
For reasons we shall explain, we dismiss this appeal because an interim custody determination is not an appealable order.
FACTUAL AND PROCEDURAL BACKGROUND
Because we are dismissing this appeal as being from a nonappealable order, we discuss the underlying facts only briefly.
It was alleged in this case that Ann had a history of potentially abusive behavior towards the children and demonstrated negative parenting behaviors. Family Court Services recommended the change in temporary custody from a 50 percent shared custody to legal custody being placed with Eric. The court adopted that recommendation.
At the hearing wherein the court made the temporary custody order and resolved other issues, the court asked counsel for Ann whether the court should consider child support and attorney fees at that time. Counsel for Ann indicated that he did not want those issues addressed at that time. The court then asked, "[W]hat is there yet to do before we can fully resolve this matter?" Counsel for Ann indicated that the parties were engaged in settlement negotiations regarding separate property and requested that another hearing be set for "90 days out." The court then set a settlement conference for December 2012.
2 As part of that order the court also directed that Ann pay Eric $219 per month in child support.
DISCUSSION
As the Court of Appeal stated in Lester v. Lennane (2000) 84 Cal.App.4th 536, 559-560 (Lester), "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. [Citations.] Code of Civil Procedure section 904.1 bars appeals from interlocutory judgments or orders 'other than as provided in paragraphs (8), (9), and 11. . . .' [Citation.]
Temporary custody orders are not listed in any of those paragraphs. Therefore, this statute bars the appealability of such orders." (Fn. omitted.)
In her statement of appealability, however, Ann asserts that because the temporary custody order also determined child support, it is appealable as a "collateral order." This contention is unavailing.
"One exception to the 'one final judgment' rule codified in Code of Civil Procedure section 904.1 is the so-called collateral order doctrine. Where the trial court's ruling on a collateral issue 'is substantially the same as a final judgment in an independent proceeding' [citation], in that it leaves the court no further action to take on 'a matter which . . . is severable from the general subject of the litigation' [citation], an appeal will lie from that collateral order even though other matters in the case remain to be determined. [Citation.] . . . [¶] In determining whether an order is collateral, 'the test is whether an order is "important and essential to the correct determination of the main 3 issue." If the order is "a necessary step to that end," it is not collateral.' " (Lester, supra, 84 Cal.App.4th at p. 561.)
Here, the temporary custody order directs the payment of money and is dispositive of the parties' rights concerning child support. But the question then arises, is child support a collateral issue? We conclude that it is not.
Because the temporary custody did not finally resolve any matter "severable from the general subject of the litigation," it is not appealable. (In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735.) A temporary custody order contemplates further review and a possible change in custody given a change in circumstances. Indeed, in this case temporary legal custody was originally 50 percent each and then changed to 100 percent in favor of Eric.
Moreover, the child support order was "important and essential" to the issue of custody because it determined the amount of money Ann was to pay Eric for the care of the children given his 82 percent visitation time. Thus, the temporary custody order is not a "collateral order" on this basis as well and is not appealable.
Finally, as the Court of Appeal discussed in Lester, supra, 84 Cal.App.4th 536, temporary custody orders are not appealable on grounds of policy: "The very nature of such orders compels the swiftest possible review of any challenge. The writ process, not the appeal process, is the way to get that review. [¶] In most custody dispute cases, young children bond with their primary custodial parents. The trial court must place the child's best interest first in any long-term custody decision. [Citations.] Thus, the child's bond with the primary custodial parent will often weigh heavily in the court's mind.
4 Once the bond is established, the court is likely to find that the child's best interest requires preserving that bond to maintain stability in the child's life. [¶] A noncustodial parent who seeks to obtain custody will often be at a disadvantage by the time of trial if the child has bonded with the custodial parent. The noncustodial parent's only effective recourse is to obtain immediate review of any objectionable temporary custody order.
This can be done by filing a petition for writ, a procedure [appellant] failed to use in this case. It cannot be done by filing an appeal which will sit in abeyance while the case works its way to trial and decision—and while the bond between child and custodial parent strengthens and deepens." (Id. at p. 565.)1
DISPOSITION
The appeal is dismissed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
1 We note that Ann has not filed a reply brief responding to Eric's contention that the temporary custody order is not an appealable order. By not doing so, we conclude that she has conceded the merits of Eric's position. 5
Cites, in this corpus
- Lester v. Lennane C030662, C031941, C032406 · 2000-10-31
- In Re Marriage of Van Sickle Civ. 2579 · 1977-03-30