Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. KD057107. Frederick C. Shaller, Donna Fields Goldstein, and Susan Lopez-Giss, Judges.
Robert Jimenez, in pro. per., for Appellant.
The Law Offices of Pease & de Petris, Edgar B. Pease III and Cynthia A. de Petris for Respondent.
ROTHSCHILD, J.
In this action for dissolution of marriage the husband appeals to challenge temporary orders of the family law court for child and spousal support and attorneys’ fees, and later enforcement orders. We conclude that the notice of appeal is untimely with respect to certain orders and purports to appeal from certain other nonappealable orders. We dismiss the appeal with respect to those orders and otherwise affirm.
BACKGROUND
On February 7, 2003, Claudia F. Jimenez filed a petition to dissolve her approximately nine-year marriage to Robert R. Jimenez. Robert and Claudia agreed in writing that Robert would have primary physical custody of their two minor children.
We refer to the parties by their first names to avoid confusion. We mean no disrespect.
On May 3, 2004, Claudia filed an order to show cause (OSC) to modify the child custody arrangement to increase her custodial time with the children, for child and spousal support, and for attorneys’ fees and costs. Claudia mailed Robert notice that the OSC was scheduled for a hearing on June 11, 2004. On May 7, 2004, Robert, Claudia and Claudia’s counsel were present in court for a status conference. The court informed the parties that it was continuing the conference to June 11, 2004.
Robert did not appear on June 11, 2004. The court (Judge Frederick C. Shaller) held a hearing on Claudia’s OSC and awarded Claudia primary custody of the parties’ two children with Claudia receiving a 71 percent time share and Robert receiving a 29 percent time share. The court ordered Robert to pay Claudia $1,094 per month in temporary child support and $481 per month in temporary spousal support. The court made its orders effective as of May 11, 2004, and ordered Robert to pay $1,000 to Claudia’s counsel as his contributory share of Claudia’s attorney’s fees. On June 17, 2004, the court signed and filed a written order reflecting its oral pronouncement on June 11, 2004.
On July 9, 2004, Robert filed the first of several OSCs to set aside or modify the June 17, 2004, orders on the grounds of fraud, perjury, and lack of notice. He sought an order restoring his primary legal and physical custody of the children and requested child support from Claudia.
On January 27, 2005, Claudia filed the first of several OSCs why Robert should not be held in contempt for his failure to pay temporary child and spousal support in the amounts specified in the June 17, 2004, orders. The court arraigned Robert on the contempt charges on April 14, 2005. Trial on the contempt charges (at which Robert was represented by counsel) was held on May 25, 2005, before Judge Donna Fields Goldstein. On August 17, 2005, the court issued a statement of decision finding, among other things, that Robert (1) had notice by mailed service of the June 11, 2004, hearing at which the court made the temporary orders for custody, support and attorneys’ fees; (2) had the ability to pay based on his uncontested statement of income showing he earned a monthly gross income of $5,100; and (3) was not in compliance with the court’s June 17, 2004, orders by having failed to make full payment for the months of June 2004 through January 2005.
On December 15, 2005, the court sentenced Robert on the contempt charges. Apparently, Robert’s employment situation had changed in the meantime. The court imposed a suspended sentence of 40 days in county jail and granted Robert summary probation on condition that he actively seek employment and comply with the June 17, 2004, orders to pay child and spousal support, arrearages, and attorney fees as directed. The court also ordered Robert to provide an accounting of his pension plan assets and to file and serve an updated income and expense declaration before the next hearing.
On January 30, 2007, at what amounted to a court-supervised mandatory settlement conference, Robert and Claudia reached a settlement agreement in which they agreed to equally share legal and physical custody of the children and further agreed to a specific plan for sharing physical custody.
On April 30, 2007, Claudia filed another OSC for contempt for Robert’s alleged continued failure to pay child and spousal support and attorneys’ fees in violation of the June 17, 2004, orders. Robert continued to contest the validity of the June 17, 2004, support orders made in his absence because he alleged that the orders were based on inaccurate information, and because on June 30, 2007, Claudia had married the person with whom she had been cohabitating. Hearing on his OSCs to set aside or modify the June 17, 2004, orders, however, was deferred several times. The court gave priority to Claudia’s OSCs for contempt for his alleged continued failure to pay support.
On October 10, 2007, at the hearing on Claudia’s OSC for contempt the court (Judge Susan Lopez-Giss) apparently found that Robert lacked the financial ability to comply with the court’s orders for support. The court dismissed the OSC for contempt without prejudice provided that Robert secure a loan for $3,500 from his federal retirement plan and have the proceeds of the loan made payable directly to Claudia.
Apparently, the court’s order did not comply with federal regulations for garnishing Robert’s federal retirement plan and on January 7, 2008, the court revised its October 10, 2007, garnishment order to direct that the amount be withdrawn from Robert’s personal retirement account instead.
Robert filed a notice of appeal on January 7, 2008, in pro. per.
DISCUSSION
In his January 7, 2008, notice of appeal Robert states that he is seeking a writ of mandate, apparently to overturn the courts’ various orders. In his Civil Case Information Statement (Judicial Council form APP-004, required, in part, to enable the Court of Appeal to determine the judgment or orders from which the appeal is taken), Robert states that he is appealing from the orders discussed above entered on June 17, 2004 (orders for temporary child and spousal support and attorneys’ fees), August 17, 2005 (contempt findings), December 15, 2005 (sentencing on the contempt charges), October 10, 2007 (directing garnishment of his federal retirement account as the condition for dismissing the OSC for contempt), and January 7, 2008 (revising the garnishment order to change the source of the funds), and has attached copies of these orders as the Civil Case Information Statement form requires. (See Cal. Rules of Court, rule 8.100(g).)
The California Rules of Court authorize an appellate court to liberally construe a notice of appeal and to deem the notice sufficient if it identifies the judgment or order being appealed. (See Cal. Rules of Court, rule 8.100(a)(2).) Claudia argues that even a liberal construction of Robert’s notice of appeal, however, shows that it is untimely with respect to all issues and thus the appeal must be dismissed. Liberally construing the notice of appeal, and giving the notice the benefit of every doubt regarding its sufficiency, nonetheless requires us to dismiss the appeal from some orders because the notice is untimely and to dismiss the appeal with respect to certain other orders because they are nonappealable.
The court held a trial on reserved issues on July 28, 2008. We may not consider comments in Robert’s briefs regarding this trial and judgment because matters occurring after Robert filed his notice of appeal are outside the record and cannot be reviewed in this appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C) [briefs on appeal must provide a summary of significant facts “limited to matters in the record”]; see also Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6 [disregarding factual assertions attributable to sources outside the record].)
Temporary Support Orders
“‘The right to appeal in California is wholly governed by statute and appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature. [Citation.]’ (In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638.)” (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 687.) Code of Civil Procedure section 904.1, subdivision (a)(1) provides for an appeal “[f]rom a judgment except (A) an interlocutory judgment,...” The purpose of Code of Civil Procedure section 904.1 is to codify the one final judgment rule—the rule of permitting an appeal only from the final judgment. A judgment is final for appeal purposes if it decides the parties’ rights and duties and effectively terminates the litigation. (In re Marriage of Griffin, supra, 15 Cal.App.4th at p. 689.)
There is an exception to the one final judgment rule for interlocutory orders which finally determine collateral matters between the parties that direct the payment of money or the performance of an act. These types of orders are in the nature of a final judgment from which a “direct appeal may be taken.” (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Orders for temporary support fall into this category and are directly appealable. (Id. at p. 367 [“although [Code of Civil Procedure section 904.1] fails to deal specifically with temporary support orders, such appeals have long been authorized”]; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 [“an order for temporary spousal support is in the nature of a final judgment and so is directly appealable”].)
Here the June 17, 2004, orders setting temporary child and spousal support were directly appealable. Robert thus had 60 days (or an outside limit of 180 days) after entry of the orders within which to timely file a notice of appeal. (See Cal. Rules of Court, rule 8.104(a).) His notice of appeal filed on January 7, 2008, is untimely and this court has no jurisdiction to review the June 17, 2004, orders for temporary support. (Code Civ. Proc., § 906 [a reviewing court may not “review any decision or order from which an appeal might have been taken”]; see also Cal. Rules of Court, rule 8.104(b) [“If a notice of appeal is filed late, the reviewing court must dismiss the appeal”].)
Contempt
The August 17, 2005, judgment of contempt and December 15, 2005, order sentencing Robert on the contempt are not appealable. (Code Civ. Proc., § 904.1, subd. (a)(1)(B) [appeals may be taken from a judgment “except” a “judgment of contempt”].) Judgments and orders made in contempt proceedings are final and conclusive and as such are nonappealable. (Code Civ. Proc., § 1222.) They may, however, be reviewed by extraordinary writs of certiorari or habeas corpus. (See Moffat v. Moffat (1980) 27 Cal.3d 645, 656; Verner v. Verner (1978) 77 Cal.App.3d 718, 728.) Accordingly, the contempt judgment and sentencing order are not reviewable in this appeal.
In any case, Robert sought extraordinary writ review of the August and December 2005 contempt judgment and sentencing order by filing a petition for a writ of habeas corpus on July 24, 2007. On August 1, 2007, we summarily denied his petition. (In re Robert Jimenez (August 1, 2007, B200739).)
Garnishment Orders
The October 10, 2007, order directed Robert to secure a loan for $3,500 from his federal retirement account and to pay the loan proceeds to Claudia as the condition for dismissing the OSC for contempt and probation violations for failing to pay support and support arrearages. This order became moot when the court, on January 7, 2008, revised the garnishment order to direct that the funds be withdrawn from his personal retirement account instead. The garnishment order was directly appealable as an order directing the payment of money. (In re Marriage of Skelley, supra, 18 Cal.3d at p. 368.) Robert’s notice of appeal filed on the same date was timely. (Cal. Rules of Court, rule 8.104(a).) Robert makes no specific argument regarding the propriety of the garnishment order, however, in his briefs on appeal. We accordingly have no basis to reverse the garnishment order.
Sanctions
We decline Claudia’s request that sanctions be imposed against Robert for pursuing a frivolous appeal as the present appeal does not meet the necessary criteria. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
DISPOSITION
The appeal is dismissed with respect to all orders purportedly appealed from except the garnishment order which is affirmed. Each side to bear its own costs on appeal.
We concur: MALLANO, Acting P. J., JOHNSON, J.