Marriage of Evans and Rayford CA1/3

Opinion

Filed 9/28/26 Marriage of Evans and Rayford CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of VERONICA MARIA EVANS and LA'MARCOS JULIAN RAYFORD.

VERONICA MARIA EVANS, Petitioner and Appellant, A172454 v. (Alameda County LA’MARCOS JULIAN RAYFORD, Super. Ct. No. HF23144057) Defendant and Respondent.

Veronica Maria Evans (Mother) appeals the trial court’s February 6, 2025 order granting increased child visitation to La’Marcos Julian Rayford (Father). This court requested letter briefing from the parties on the appealability of the challenged order, which is memorialized in the trial court’s Findings and Order After Hearing filed on April 7, 2025. The parties filed the requested briefing, which we have considered. We conclude the order is not appealable and dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND Mother and Father are the parents of a child born in 2020. In June 2023, Mother filed a petition for dissolution. During the pendency of the 1 dissolution proceedings, the trial court issued interlocutory custody and visitation orders governing Father’s visitation time, which are recounted below. On November 15, 2023, the trial court granted joint legal and joint physical custody of the child and ordered that “Father’s timeshare shall be progressive.” Specifically, beginning on November 18, 2023, the child “shall be in Father’s care on Saturdays, Tuesdays, and Thursdays from 10:00 AM to 4:00 PM.” (Id., ¶ 2) Then beginning on February 3, 2024, the child “shall be in Father’s care from Saturday at 10:00 AM to Sunday at 4:00 PM, in addition to the Tuesday and Thursday visits.” This visitation schedule remained in effect through February 6, 2025. On August 5, 2024, Mother filed a Request for Order (“RFO”) seeking, among other things, a finding of abuse and a grant of relief under Family Code section 3044 (“section 3044”1), temporary emergency orders regarding child custody modification pending a hearing to grant sole legal custody to Mother, and modification of order granting visitation to Father. That same day, the court issued an order that, as relevant here, ordered the parties to mediation and scheduled a hearing for September 11, 2024.

1 Section 3044 provides in pertinent part: “(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, . . . , or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence. [¶] (b) To overcome the presumption set forth in subdivision (a), the court shall find that paragraph (1) is satisfied and shall find that the factors in paragraph (2), on balance, support the legislative findings in Section 3020.”

2 On September 11, the trial court held a hearing and made a finding of abuse by Father against Mother in October 2022. The court did not find sufficient evidence of abuse towards the child, but it acknowledged the abuse towards Mother implicated the presumption of detriment under section 3044. The court modified its previous custody order and awarded Mother sole legal and physical custody, but otherwise kept the existing visitation order in place. The court denied Mother’s request for supervised visitation for Father, emphasizing the lack of any evidence that Father had abused the child, but indicated it would reconsider if such evidence were to surface from Child Protective Services (“CPS”). At a subsequent hearing on November 6, 2024, the court granted a two- year domestic violence restraining order (“DVRO”) that expires on November 6, 2026. The court deferred consideration of modifications to the custody order and Mother’s request to add other protected persons to the DVRO, indicating it would await further information regarding the status of the CPS investigations. On February 6, 2025, the trial court conducted another hearing on the existing DVRO and custody and visitation. Mother had requested that the child be added to the DVRO as a protected party and that Father’s visitation be supervised, while Father sought a 50-50 parenting schedule. After hearing from the parties and the child’s appointed counsel, the court made the following orders. First, it declined to add the child to the DVRO because there was no information from CPS that would support the addition. Second, it denied Father a 50-50 timeshare because he had not yet rebutted section 3044’s presumption of detriment. Nonetheless, the court granted Father one additional overnight each weekend, resulting in an increased weekend schedule of Saturday at 10:00 a.m. to Monday at 10:00 a.m., while 3 maintaining the existing 10:00 a.m. to 4:00 p.m. visitation each Tuesday and Thursday. These orders were memorialized in the court’s Findings and Order After Hearing (“FOAH”) filed on April 7, 2025 (“the April 7 FOAH”). Mother appealed the order increasing Father’s visitation as reflected in the April 7 FOAH. DISCUSSION A. The Visitation Order in the April 7 FOAH is Not Appealable As the Supreme Court explains, “[t]he right to appeal is wholly statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5; see Luo v. Volokh (2024) 102 Cal.App.5th 1312, 1325 [“appellate courts have no jurisdiction to consider appeals that are not statutorily authorized”].) In this regard, the Code of Civil Procedure provides in relevant part: “An appeal, other than in a limited civil case, may be taken from any of the following: [¶] (1) From a judgment, except an interlocutory judgment, other than as provided in paragraphs [not relevant here], . . . . [¶] (2) From an order made after a judgment made appealable by paragraph (1).” (Code Civ. Proc., § 904.1, subd. (a)(1), (2), italics added.) Mother offers no statutory or other authority holding that interlocutory custody and visitation orders are appealable, and section 904.1 contains no such suggestion. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 557–565 (Lester); see also Banning v. Newdow (2004) 119 Cal.App.4th 438, 456 [interim custody orders are not appealable].) Indeed, as the Lester court notes, “[t]he 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.” (Lester, at p. 565.) Mother’s citations to In re Marriage of Skelley (1976) 18 Cal.3d 365 (reduction of temporary spousal support was appealable) and In re Marriage of Lafkas (2015) 237 Cal.App.4th 921 4 (discussing community property and transmutation issues) do not suggest otherwise. Mother’s opening brief nonetheless states: “This appeal is taken from an order modifying child custody and visitation by expanding Father’s parenting time to include an overnight visit, which is appealable as an order made after judgment under Code of Civil Procedure section 904.1(a)(2).” We cannot agree. Mother does not claim that a judgment appearing on the mandatory FL-250 Judicial Council custody and support form has been executed and filed, and no such form appears in the record on appeal. Mother, however, argues the April 7 FOAH custody ruling is an appealable post-judgment order following the court’s September 11, 2024 order (memorialized in the October 1, 2024 FOAH), which had awarded her sole legal and physical custody with certain visitation to Father. But as far as we can tell, the visitation orders in both the October 1, 2024 FOAH and the April 7 FOAH reflected interlocutory or interim rulings in response to the parties’ various RFOs. Not only does Mother’s appellate opening brief refer to several of the custody and/or visitation orders as “temporary” or “interim”, but the record contains a declaration executed by Mother on September 4, 2024 in which she requested that the court “Order temporary sole custody to [Mother] with temporary professional supervised visitation to [Father],” or in the alternative, visitation that modified the non-supervised visitation schedule then in place. (Italics added.) Though the court ordered sole physical and legal custody to Mother at the September 11, 2024 hearing as she requested, it declined to order supervised visitation in view of information that had not been received from CPS. Instead, the court maintained the existing non- 5 supervised visitation order pending further input from CPS. It also appointed counsel for the child and continued the RFO regarding custody to November 25, 2024. All this makes amply clear that the September 11, 2024 visitation rulings were not final but remained subject to future evidentiary showings and possible visitation scheduling changes. The same is true for the orders made at the February 6, 2025 hearing. The court declined to grant Father’s motion to restore joint custody, stating it was “not at the point” yet where it felt the section 3044 presumption had been rebutted. The court further indicated it would not, at that hearing, consider the child’s potential entry into preschool as a component of the visitation schedule but would await future input about that. In short, the record demonstrates that the visitation rulings in the October 1, 2024 FOAH and the April 7 FOAH constituted nonappealable interlocutory orders that were made in response to the existing available information and in anticipation of future developments. On a final note, Mother cites the order this court filed on March 19, 2025 as evidence that the April 7 FOAH is appealable. As relevant here, our order observed that Mother purported to appeal from a February 6, 2025 unsigned minute order following a hearing on the parties’ requests for various orders. Because the minute order was not itself an order but indicated the trial court had directed counsel for the child to prepare an FOAH, our March 19 order indicated we were “considering dismissing this appeal for lack of an appealable order” and gave Mother the opportunity to file a signed FOAH following the February 6, 2025 hearing. On April 7, 2025, Mother filed with this court the trial court’s signed April 7 FOAH, and on April 8 we construed Mother’s appeal to have been taken from that FOAH and allowed the appeal to proceed. In Mother’s view, her filing of the signed 6 April 7 FOAH, as well as our April 8 order, established the legal appealability of the order. That is incorrect. As our March 19 order explicitly stated, “If an appealable judgment or order is timely filed with this court, we will construe the appeal to have been taken from the appealable judgment or order. [Citations.]” (Italics added.) Thus, while Mother was able to file a signed FOAH, and we allowed the appeal to proceed at that point, the question remains whether that order is appealable as a legal matter. As explained above, Mother has not demonstrated the April 7 FOAH represents an appealable order under the terms of Code of Civil Procedure section 904.1. Nor has she submitted any case law suggesting that an interim or interlocutory visitation order such as the one here is appealable. In sum, we have no jurisdiction to consider Mother’s purported appeal. B. Treatment as a Petition for Writ of Mandate is Not Warranted Though we conclude the April 7 FOAH is not appealable, we note our “discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate” in “unusual circumstances.” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367.) But treating “ ‘a nonappealable order as a writ should only be granted under extraordinary circumstances, “ ‘compelling enough to indicate the propriety of a petition for writ . . . in the first instance. . . .’ [Citation.]” ’ ” (Id. at p. 1367.) “Routine granting of requests to treat improper appeals as writs where there are no exigent reasons for doing so would only encourage parties to burden appellate courts with reviews of intermediate orders.” (Estate of Weber (1991) 229 Cal.App.3d 22, 25.) Here, Mother has not requested that we exercise our discretion to treat her appeal as a writ petition. More importantly, neither her briefing nor the 7 record itself suggests the presence of extraordinary or exigent reasons that warrant our doing so. The record demonstrates that the trial court has been diligent in monitoring and addressing the visitation issues that have constantly arisen in this case and has indicated its intent to continue doing so.2 We therefore decline to treat Mother’s appeal as a writ petition. DISPOSITION The appeal is dismissed. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

_________________________ Fujisaki, J.

WE CONCUR:

_________________________ Tucher, P. J.

_________________________ Rodríguez, J.

Evans v. Rayford (A172454)

2 On June 2, 2025, Mother filed a request for judicial notice of a letter dated February 11, 2025 from the child’s therapist to the child’s counsel; a screenshot showing the February 11, 2025 letter was posted in the therapist’s client portal on that date; a May 20, 2025 trial court order appointing new counsel for the child; and the trial court’s September 11, 2024 order appointing the child’s original counsel. Although our conclusion that we have no jurisdiction to consider Mother’s purported appeal renders the request for judicial notice moot, we further note that none of these documents appears relevant to the February 6, 2025 hearing whose findings are challenged (indeed, three of the documents post-date that hearing) and, in any event, the September 1, 2024 order is already included in the clerk’s transcript. The request for judicial notice is denied.