Opinion
H045388
09-26-2019
In re the Marriage of LISA and LONNIE CUMMINGS. LISA CUMMINGS, Respondent, v. LONNIE CUMMINGS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 2009-5-FL-000225) OPINION THE COURT APPEAL from orders of the Superior Court of Santa Clara County. Joseph H. Huber, Judge.
Before Greenwood, P.J., Grover, J. and Danner, J.
-ooOoo-
In this family law case, appellant Lonnie Cummings appeals the trial court's status-only dissolution judgment filed September 28, 2017, and order after hearing filed October 3, 2017, on the grounds he did not receive proper notice prior to the hearing. Lonnie did not timely appeal the status-only judgment, as required by California Rules of Court, rule 8.104(a)(1)(A). The October 3, 2017 order after hearing is not directly appealable. We thus dismiss the appeal accordingly.
All undesignated references to court rules are to the California Rules of Court.
I. PROCEDURAL BACKGROUND
Given our ruling in this appeal, we focus on the procedural history relevant to the propriety of this appeal, rather than the substantive issues raised in Appellant's Opening Brief.
In August 2017, Respondent Lisa Cummings filed a request for order for bifurcation and termination of marital status, and to "enforce order re QDRO." Lisa had the request for order served on Lonnie by mail at a P.O. Box address in San Martin, California, on August 16, 2017, for a hearing scheduled on September 28, 2017.
"QDRO" generally stands for qualified domestic relations order, pursuant to the federal Employee Retirement Income Security Act of 1974. (29 U.S.C. § 1056(d)(3).)
Lonnie appeared at the hearing, representing himself; Lisa and her attorney also appeared. The parties stipulated to the court terminating marital status; the court signed the written judgment at the hearing. The court then turned to Lisa's request to enforce the QDRO. The parties briefly discussed Lonnie's belief that Lisa did not properly serve him notice of her request. The court was concerned with Lonnie's failure to respond to the QDRO specialist's requests for information; it did not address Lonnie's claim that he was not properly served with the motion, nor did Lonnie ask the court for any specific relief related to the alleged defect in service. Ultimately, Lonnie stipulated he would sign the subject QDRO within a week. The court made additional orders regarding the QDRO, and took under submission Lisa's request for attorney fees and sanctions.
The court filed the judgment bifurcating and terminating marital status on September 28, 2017. The court clerk served notice of entry of the judgment on Lonnie at the P.O. Box address on September 29, 2017. The court then entered an order after hearing on October 3, 2017, ordering Lonnie to pay $4,000 to Lisa and her attorney as sanctions under Family Code section 271 ; the court stayed the order, indicating it would consider vacating some or all of the award if Lonnie complied with the terms of the orders made in court on September 28, 2017. The clerk served the order by mail to Lonnie on October 3, 2017, at the P.O. Box address.
Lonnie did not designate the September 28, 2017 judgment as part of the record on appeal. He did attach a copy of the judgment to his Civil Case Information Sheet, filed in the instant appeal on January 19, 2018, pursuant to rule 8.100(g).
The statute provides, in relevant part, "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction." (Fam. Code, § 271, subd. (a).)
On December 1, 2017, Lonnie filed a notice of appeal using optional Judicial Council form APP-002, on which he checked the box to indicate he was appealing the "Judgment after court trial." He did not specify the date on which the court entered judgment. On December 11, 2017, he filed a notice designating the record on appeal. In the space indicating the date of filing for the "[j]udgment or order appealed from," Lonnie listed October 3, 2017. In his Civil Case Information Statement, he listed the September 28, 2017 judgment as the order he was appealing, yet stated that notice of entry of that order was served on October 3, 2017. Taking Lonnie's pleadings as a whole, it is clear he seeks review of both the September 28, 2017 judgment and the October 3, 2017 order after hearing. Lisa did not file a respondent's brief expressing any confusion about the subject of Lonnie's appeal.
II. DISCUSSION
A. Lonnie Did Not Timely Notice His Appeal of the September 28 , 2017 Judgment
Under rule 8.104(a), Lonnie was required to file notice of his appeal on or before "60 days after the superior court clerk serve[d] on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served . . . ." The superior court clerk served notice of entry of the September 28, 2017 judgment on Lonnie on September 29, 2017, such that he had to give notice of the appeal no later than November 28, 2017, 60 days later. (Rule 8.104(a).) Lonnie filed his notice of appeal on December 1, 2017. "Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b).) Nothing in the record on appeal indicates rule 8.66, which provides an exception to the time requirement if certain catastrophic events occur, applies in the instant matter. We therefore must dismiss the appeal as it relates to the September 28, 2017 judgment. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667; Estate of Hanley (1943) 23 Cal.2d 120, 123.)
"If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may: [¶] (1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or [¶] (2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules." (Rule 8.66(a).) --------
B. The October 3 , 2017 Order After Hearing is Not an Appealable Order
In his brief on appeal, Lonnie contends, "The [judgment issued after the Motion hearing is appealable because Appellant's rights of due process [were] violated." He does not cite any legal authority for this contention. Code of Civil Procedure section 904.1 sets forth judgments and orders that may be appealed, beginning with the broadest category: An appeal may be taken "[f]rom a judgment, except an interlocutory judgment . . .," thus codifying the common law "one final judgment rule," allowing appeal only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy. (Code Civ. Proc., § 904.1, subd. (a)(1); Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) The October 3, 2017 order after hearing does not completely dispose of the matters in controversy between the parties.
Code of Civil Procedure section 904.1, subdivision (a)(10), does allow for immediate appeal of orders made appealable by the Family Code. "A 'status only' dissolution judgment is immediately appealable as a final judgment on the issue of dissolution of marital status. (Fam. Code, § 2337, subd. (a) [early and separate trial on dissolution of marital status]; [Citations.].)" (In re Marriage of Turfe (2018) 23 Cal.App.5th 1118, 1120, fn. 1, italics added; see also rule 5.392(a).) The October 3, 2017 order after hearing addresses issues other than dissolution and marital status, and thus is not appealable as part of the status-only judgment. There are no provisions in the Family Code authorizing immediate appeal of an order under Family Code section 271.
An order for sanctions in an amount exceeding $5,000 is immediately appealable; orders for less than $5,000 in sanctions can be appealed "after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ." (Code Civ. Proc., § 904.1, subds. (a)(11), (b).) Although the trial court referred to its award in the October 3, 2017 order after hearing as "Family Code Section 271 sanctions," one could argue that statute is not a "sanctions" statute, but rather an attorney fees and costs statute; notably, the statute refers to the resulting award as being "in the nature of a sanction." (Fam. Code, § 271, subd. (a), italics added.) If we treat Family Code section 271 as a sanctions statute, the October 3, 2017 order after hearing is not immediately appealable, as it is for less than $5,000.
If we treat Family Code section 271 as an attorney fees and costs statute, an order under that section could be appealable under certain circumstances. Case law confirms pendente lite attorney fee orders in family law cases can be immediately appealed, because they possess "the essential elements of a final judgment. Nothing remain[s] to be done except to enforce it, and for that purpose an execution might issue and be proceeded on, as if the judgment had been rendered in an ordinary action for the recovery of a specific sum of money." (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Moreover, such an order, "would not be affected by subsequent proceedings in the action." (Id. at p. 369; accord In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311 ["[T]he family court clearly indicated its intent to render an order that was dispositive of the issue of future attorney fees; nowhere in the order was there any reservation of jurisdiction to revisit the issue."].)
However, to the extent the award of fees under Family Code section 271 in the October 3, 2017 order qualifies as "pendente lite" fees, the order is not final on its face. The trial court indicated its intent to revisit the award in the future, based on Lonnie's compliance with other orders made by the court. As such, the order does not have the "essential elements of a final judgment," and cannot be immediately appealed. Lonnie can seek appropriate review once the trial court issues a final judgment, but we are without jurisdiction to review either the judgment or the order he has challenged in this appeal.
III. DISPOSITION
The appeal is dismissed.