Opinion
F082537
04-05-2022
In re the Marriage of CHARLES R. and TERESITA A. ANDRES. v. TERESITA A. ANDRES, Appellant. CHARLES R. ANDRES, Respondent,
Teresita A. Andres, in pro. per., for Appellant. Sullivan & Sullivan and Ryan P. Sullivan for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VFL281795. Kerri M. Lopez, Judge.
Teresita A. Andres, in pro. per., for Appellant.
Sullivan & Sullivan and Ryan P. Sullivan for Respondent.
OPINION
THE COURT [*]
Appellant Teresita A. Andres filed this appeal to challenge a July 9, 2020 judgment of nullity of marriage and a March 10, 2021 order denying her motion for reconsideration of the judgment.
First, we conclude the appeal is timely as to the order denying the motion and is untimely as to the judgment of nullity because the appeal was filed more than 180 days after entry of the judgment. (See Cal. Rules of Court, rule 8.104(a).) Second, we conclude the filing of the judgment while the motion for reconsideration was pending divested the trial court of jurisdiction to rule on the motion. Third, the record on appeal, which does not contain a copy of the motion or the opposition, is inadequate to determine whether the motion for reconsideration should be characterized as another type of motion over which the trial court would not have been divested of jurisdiction.
Subsequent references to a numbered "Rule" are to the California Rules of Court.
We therefore affirm the judgment and order.
This matter is proper for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, Standard 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850-855 [use of memorandum opinions]; Cal. Const., art. VI, § 14 [appellate decisions "shall be in writing with reasons stated"].)
November 19, 2001. Charles R. Andres and Teresita were married. January 21, 2020. Charles filed a petition for nullity of marriage without minor children.
May 22, 2020. Charles filed a request for judicial notice of the Family Code of the Philippines that was in effect during the time the parties were married.
June 18, 2020. The trial court heard the contested proceeding. A reporter's transcript of the proceeding is not part of the appellate record.
June 25, 2020. Teresita filed a motion for reconsideration. A copy of the motion was not included in the clerk's transcript and is not otherwise part of the appellate record.
July 9, 2020. The trial court filed a judgment of nullity based on Teresita's prior existing marriage. (Fam. Code, § 2201, subd. (a)(1).) A notice of entry of judgment also was filed.
October 1, 2020. Teresita filed a request to reschedule the hearing on her motion. October 5, 2020. An order granting the request to reschedule the hearing was filed.
December 4, 2020. The trial court received Teresita's 19-page document titled "RESPONDENT'S ADDITIONAL ARGUMENTS WITH MOTION TO SET FOR ANOTHER DATE OF HEARING." In the document, Teresita stated she was married to Rolando P. Esteves in January 1968 when she was 16 years old and left him in January 1974 when he threatened to kill her. She also stated a family friend informed her in August 1999 that her marriage to Esteves was annulled because he had another family (with 10 children).
December 7, 2020. The trial court filed two minute orders, neither of which is part of the appellate record.
March 1, 2021. Charles filed an opposition to Teresita's motion for reconsideration to vacate judgment. Like the motion itself, a copy of the opposition is not part of the appellate record.
March 8, 2021. Teresita filed a document titled "COMPLIANCE AND HER ARGUMENTS WITH COMMENT TO PETITIONER'S OPPOSITION." The document includes copies of records from a court in the Republic of the Philippines stating that the divorce of Esteves and Teresita "has been registered in this Office under Registry No. 2018-D-5000191, dated December 18, 2018, pursuant to the Court Decision which is immediately final and executory dated December 18, 2018 on the Joint Petition for Approval and Registration of Divorce Agreement filed by the above-named spouses under Civil Case No. 2018-172 .…"
March 10, 2021. A hearing on Teresita's motion was held. Teresita appeared and represented herself. Charles was present and was represented by counsel. A reporter's transcript of the hearing is part of the appellate record. After appearances were stated on the record, the trial court said: "We are here today for the motion to reconsider, and I have read all the documents and declarations that have been filed in this matter. Were there any further arguments that the parties wanted to make?" Charles's attorney argued that (1) in a motion to reconsider, there must be a showing that there was evidence not available at the time of the original hearing and (2) Teresita has not shown any evidence was unavailable. In discussing the documents Teresita filed two days before the hearing, the court stated it looked like Teresita was not able to legally marry Charles because she was not yet divorced from her first husband. Teresita responded by stating that she filed for divorce in July 1999 and "it come out August 1999, before I was married [to Charles on] November 3, 1999." At the end of the hearing, the court stated that, "based on all the documents that you have presented to the Court and filed with the court, the Court is going to deny your motion to reconsider .…" The minute order from the hearing stated: "Motion to Set Aside is denied."
March 15, 2021. Teresita filed a notice of appeal that referred to the trial court's oral decision of March 10, 2021, and included a request for an order enjoining Charles from demanding that she vacate their conjugal house pending appeal.
DISCUSSION
I. TIMELINESS OF APPEAL
Charles contends Teresita cannot directly challenge the judgment of nullity in this appeal because the time for appealing that judgment expired before her notice of appeal was filed. We agree. In In re Marriage of Mosley (2010) 190 Cal.App.4th 1096, the court addressed the timeliness of an appeal by stating:
"Under rule 8.104, a notice of appeal must be filed within 60 days after service (whether by the superior court clerk or by a party) of a notice of entry of judgment or a file-stamped copy of the judgment. (Rule 8.104(a).) If there is no notice, the notice of appeal must be filed within 180 days after 'entry of the judgment.' (Rule 8.104(a)(3).) For judgments, the judgment is 'entered' on the date of filing, or (in those counties maintaining a judgment book), the date of entry in the judgment book. [Citations.] Orders are 'entered' on the date of entry in the written minutes, or the date the signed order is filed. (Rule 8.104(d)(2), (3).)
"These time limits are jurisdictional. We are powerless to extend the time to file a notice of appeal, or to hear untimely appeals. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51; Kimball Avenue v. Franco (2008) 162 Cal.App.4th 1224, 1228 .…)" (In re Marriage of Mosley, supra, 190 Cal.App.4th at pp. 1101- 1102.)
The judgment of nullity was filed on July 9, 2020. The notice of appeal was filed on March 15, 2021, which is 249 days after the judgment was filed. Therefore, regardless of whether the 60-day period or the 180-day period applies, the appeal is untimely as to the judgment of nullity. Furthermore, "[a] purported motion for 'reconsideration' of a judgment will not extend the time for appeal from the judgment." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 3:94.7, pp. 3-46 (Civil Appeals); Rule 8.108(e); see Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236 [motion to reconsider filed after the judgment was entered does not extend the time to appeal from the judgment].) Thus, Teresita's motion did not extend the time for an appeal of the judgment.
As to the order denying her motion to reconsider, the notice of appeal was filed five days after that order. As a result, Teresita's appeal is timely as to that order. (Rule 8.104(a).)
II. LACK OF JURISDICTION OVER THE MOTION TO RECONSIDER
"Entry of judgment during the pendency of a motion for reconsideration divests the court of jurisdiction to rule on the motion; thus, a subsequent denial of the motion (which is beyond the court's jurisdiction) will not extend the time to appeal from the judgment." (Civil Appeals, supra, ¶ 3:94.10, pp. 3-47.) The principle about the loss of jurisdiction applies in this case because Teresita filed her motion to reconsider before the judgment of nullity was entered. Therefore, we conclude the trial court was divested of its jurisdiction (i.e., its power or authority) to rule on Teresita's motion to reconsider. Because the court lacked the authority to grant the motion, Teresita cannot carry her burden of demonstrating the denial of her motion to reconsider constituted prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellant has the burden on appeal of affirmatively demonstrating prejudicial error].)
III. ANOTHER TYPE OF MOTION
In some places in the appellate record, Teresita's motion is referred to as a motion to set aside or a motion to vacate the judgment. The uncertainty as to the exact nature of the motion raises the following question: Should this court interpret Teresita's motion to reconsider as a type of postjudgment motion over which the trial court would have had jurisdiction?
In certain situations, "upon a 'showing of extremely good cause,' an appellate court may construe an invalid motion to reconsider a final judgment as a valid motion for new trial." (Civil Appeals, supra, ¶ 3:94.8, p. 3-47; see Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1610-1611.) Here, Teresita has not included a copy of her motion in the appellate record. As a result, we cannot determine whether there is extremely good cause for construing it as another type of motion.
Stated another way, to overcome the presumption that a trial court's order is correct, an appellant must affirmatively demonstrate prejudicial error. To carry this burden, an appellant must provide the appellate court with an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
Teresita has not presented an adequate record and, therefore, she has not shown that her motion could be construed as a type of motion over which the trial court had jurisdiction.
DISPOSITION
The judgment and postjudgment order are affirmed. Charles shall recover his costs on appeal. --------- Notes: [*] Before Detjen, A.P.J., Peña, J. and Meehan, J.