Opinion
2d Civil No. B219304
09-26-2011
In re Marriage of HELEN and ERIK BENHAM. HELEN BENHAM (SILVA), Appellant, v. ERIK BENHAM, Respondent.
Erik Benham, in pro. per., for Appellant. Helen Benham, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1269282)
(Santa Barbara County)
Erik Benham, appearing in propria persona, challenges the denial of his motions to modify a restraining order after hearing (ROAH). Respondent Helen Benham (Silva) also appears in propria persona. We dismiss the appeal.
BACKGROUND
Erik and Helen were married in 1991. They have three children. On April 24, 2008, Helen filed a petition for dissolution of their marriage. At all relevant times, the parties had joint legal custody of the children, Helen had sole physical custody, and Erik had visitation rights.
We refer to the parties by their first names, not from disrespect, but to ease the reader's task
On May16, 2008, Helen filed a request for a restraining order against Erik. The trial court issued a temporary restraining order (TR0) on May 16, 2008, and a notice of hearing for June 10, 2008.
On June 8, 2008, Erik filed an answer. The trial court continued the matter and reissued the TRO on multiple dates. It also conducted evidentiary hearings.
On July 29, 2008, the trial court issued a ROAH. It also ruled that any child custody, visitation, and support orders were temporary.
On September 3, 2008, in Erik's presence, the trial court executed the ROAH document. It filed the ROAH on the same date. (Judge Rodney S. Melville presided over the proceedings below through September 3, 2008. Judge James F. Rigali presided over all subsequent proceedings.)
On February 20, 2009, Erik filed an application requesting that the trial court modify or vacate its September 3, 2008 ROAH. Respondent opposed the motion.
On April 9, 2009, the trial court heard Erik's application for an order modifying or vacating the ROAH. Erik then asserted that he did not receive a copy of a signed, filed ROAH document until December 2008. After the testimony of several witnesses, the court observed that it lacked authority to modify or vacate the ROAH. It provided Erik additional time to submit briefing to convince the court that it had such authority. It also ruled that the ROAH would remain in full force and effect. Erik filed briefing on May 19, 2009. On June 1, 2009, the court executed and filed findings and orders incorporating its April 9, 2009 rulings.
On June 17, 2009, Erik filed a motion to reconsider the April 9, 2009 order filed June 1, 2009. He cited Code of Civil Procedure section 1008 and asked the court to vacate the ROAH, modify child support, and grant other relief. On July 20, 2009, Erik filed another motion for reconsideration of the court's June 1, 2009 ruling, in which he again asked the court vacate or modify the ROAH.
All statutory references are to the Code of Civil Procedure.
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On August 5, 2009, the trial court heard Erik's motions and related matters, including a contempt citation against Erik. It issued orders relating to the timing of Erik's visits with the children and denied his motions for reconsideration.
On August 20, 2009, the court executed and filed an ROAH against Erik. The 2009 ROAH has a July 29, 2011, expiration date; it also permits Erik to attend the children's school functions and extracurricular activities, as Helen requested at the August 5, 2009 hearing. In other respects, it substantially mirrors the September 8, 2008 ROAH. Erik filed a notice of appeal from "an ORDER" entered in the trial court on August 5, 2009.
DISCUSSION
Erik contends that the trial court erred by denying his requests for modification of the ROAH and orders concerning support and attorney fees. We dismiss the appeal and also conclude that it lacks merit.
In her respondent's brief, Helen argued that we lack jurisdiction to hear this appeal because Erik did not file a timely notice of appeal. Because Erik did not timely file a reply brief, we requested that he "brief the question whether this court should dismiss [his] appeal as untimely," and referred him to the relevant pages of the respondent's brief. He advised the court that he did not receive a respondent's brief. We granted him additional time to submit a reply brief and address other issues in the respondent's brief. He filed a reply brief.
Dismissal of the Appeal
California's appellate courts have differing opinions concerning the appealability of an order denying a motion for reconsideration. In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1632, Division Eight of this court concluded that an order denying a motion for reconsideration is not an appealable order. We agree and dismiss the appeal accordingly. Moreover, even if we reached a contrary conclusion concerning the issue of appealability, we would affirm the trial court's ruling.
Erik's notice of appeal purports to appeal from the trial court's August 5, 2009 order. On that date, the court denied his June 17 and July 20, 2009 motions for reconsideration of its June 1, 2009 ruling. The court correctly concluded that it lacked jurisdiction to hear those motions. Those motions were not filed within the time proscribed by section 1008. Subdivision (a) of that section provides in relevant part that "within 10 days after service upon the party of written notice of entry of [an] order" a party may apply to the same court or judge "to reconsider the matter and modify, amend, or revoke the prior order."
In addition, subdivision (e) of section 1008 contains the following language that prohibits a trial court from considering a motion for reconsideration that does not comply with every requirement of that section, including timely filing: "This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section." (Italics added.) The trial court correctly concluded that it lacked jurisdiction to consider Erik's motions for reconsideration.
DISPOSITION
The appeal is dismissed. Helen shall recover her costs on appeal.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
YEGAN, Acting P.J.
PERREN, J.
James F. Rigali, Judge
Rodney S. Melville, Judge
Superior Court County of Santa Barbara
Erik Benham, in pro. per., for Appellant.
Helen Benham, in pro. per., for Respondent.