Opinion
B305294
07-28-2021
C.W., Plaintiff and Appellant, v. A.R., Defendant and Respondent.
Taub & Taub and Richard F. Taub for Plaintiff and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. LF007860 Gary D. Roberts, Judge.
Taub & Taub and Richard F. Taub for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
ASHMANN-GERST, J.
Appellant C.W. (father) purports to appeal from a family court minute order granting the request of respondent A.R. (mother) to move to Israel with mother and father's two minor children (minors). Because the order is not appealable, we dismiss father's appeal.
BACKGROUND
Father filed a petition to establish parentage of minors in April 2015. In November 2017, mother and father entered into a detailed settlement agreement, signed by the family court, regarding custody and child support. Under the agreement, mother and father had joint legal custody of minors and shared physical custody.
In April 2018, mother filed a request for order seeking sole physical and legal custody of minors and permission to relocate with them to Israel. Father opposed mother's request.
On February 24, 2020, the family court issued a minute order granting mother's request to move to Israel with minors (the move-away order). The order set forth the division of custody and awarded liberal visitation to father.
On March 20, 2020, father filed a notice of appeal, purporting to appeal from “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13)[.]”
When father's notice of appeal was filed, no judgment had yet been entered in this matter. According to the case summary of the proceedings in the family court included in the record on appeal, judgment was finally entered on July 13, 2020. In the several months between the March 2020 filing of the notice of appeal and the July 2020 entry of judgment, the case summary indicates that several requests for order or motions were filed and minute orders issued. These requests/motions and minute orders, as well as the judgment, do not appear in the record provided to us.
DISCUSSION
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Code of Civil Procedure section 904.1 provides the primary statutory authorization for civil appeals. (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1083 (Smith); Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377 (Enrique M.).) “Section 904.1 serves to avoid piecemeal litigation by limiting appeals to final judgments, postjudgment orders, and certain enumerated orders.” (Smith, supra, at p. 1083.) “Interlocutory rulings ‘“within the statutory classes of appealable interlocutory judgments”' remain appealable; however, the appellant bears the burden of establishing the appealability of such a ruling.” (Brown v. Upside Gading, LP (2019) 42 Cal.App.5th 140, 144.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In his statement of appealability (see Cal. Rules of Court, rule 8.204(a)(2)(B)), father states that he appeals from the “order granting a move-away within the February 24, 2020 Minute Order[.]” Father concedes that judgment had not yet been entered when he filed his notice of appeal in March 2020. He nevertheless contends that the appeal is authorized by section 904.1, subdivision (a)(10), and In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 146 (Whealon), “as an appealable final or collateral order.”
We disagree.
Under section 904.1, subdivision (a)(10), a direct appeal lies “[f]rom an order made appealable by the Probate Code or the Family Code.” Father fails to identify any provision of these codes authorizing an appeal from a prejudgment move-away order, and we are aware of none. Rather, “the right to appeal a child custody determination is generally limited to final judgments and orders made after final judgments.” (Enrique M., supra, 121 Cal.App.4th at p. 1377.) Interim custody orders, like the move-away order issued here, are not appealable. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 456; Lester v. Lennane (2000) 84 Cal.App.4th 536, 560 (Lester).)
Father's reliance on Whealon, supra, 53 Cal.App.4th 132 is entirely misplaced. Whealon concerns a postjudgment order allowing a parent to relocate to another state with a minor child. (Id. at p. 137.) It does not address the issue of appealability at all, let alone the appealability of a prejudgment move-away order.
Nor is the move-away order appealable as a final or collateral order. Nothing in the minute order indicates that it was a final custody determination or intended to terminate the litigation between the parties. (See Montenegro v. Diaz (2001) 26 Cal.4th 249, 259 [“Although these orders included detailed visitation schedules and did not provide for further hearings, they did not clearly state that they were final judgments as to custody”].) And, the custody issues ruled upon in the move-away order cannot be deemed collateral, as they are central to the general subject of the litigation. (See In re Marriage of Grimes and Mou (2020) 45 Cal.App.5th 406, 419 [collateral order doctrine inapplicable where the trial court's ruling “was not collateral to or ‘truly “distinct and severable from the general subject of the litigation[]”'”]; Lester, supra, 84 Cal.App.4th at p. 562 [“the temporary custody orders here are simply not ‘collateral[]'”]; Black's Law Dict. (9th ed. 2009) p. 907, col. 2 [defining “collateral issue” as “[a] question or issue not directly connected with the matter in dispute”].)
Under the collateral order doctrine, “[w]here 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.” (Lester, supra, 84 Cal.App.4th at p. 561.)
Anticipating that we may find the move-away order to be nonappealable, father requests that we treat his appeal as a writ petition or deem his notice of appeal as filed subsequent to the entry of judgment. We decline these requests.
We have the discretion to treat an appeal from a nonappealable order as a petition for writ of mandate, but that power should only be exercised in unusual circumstances. (Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072.) Father has not set forth any unusual circumstance that would justify treating his appeal as a de facto petition for writ of mandate.
Father has provided an inadequate record for us to treat his appeal as a premature appeal from the judgment entered in July 2020. As the appellant, father has the burden of providing an adequate record. (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 622.) Neither the minute orders issued after the February 24, 2020, move-away order nor the judgment are before us and, therefore, we do not know if and to what extent the move-away order challenged by father has been superseded by subsequent developments. We cannot reverse the judgment when we do not know what the judgment is.
Father contends that his notice of appeal deprived the family court of jurisdiction to enter judgment. Father is incorrect. With certain exceptions, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby....” (§ 916, subd. (a), italics added.) But, here, father's appeal from a nonappealable order was never perfected and the family court therefore retained its jurisdiction. (See Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1409, fn. 4 [noting that “[a] sizable body of precedent holds that an appeal from a nonappealable order will not divest the trial court of jurisdiction” and collecting cases].)
DISPOSITION
The appeal is dismissed.
We concur: LUI, P. J., CHAVEZ, J.