Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. DS028674 Margie G. Woods, Judge.
HALLER, J.
Angel Caro (Father) appeals from a judgment of dissolution of his marriage with Sophia Ramos (Mother). He challenges the court's jurisdiction and venue, and contends the court abused its discretion in awarding sole legal and physical custody of his two sons to Mother, and in ordering his visits to be supervised. We dismiss the appeal because it is untimely.
I. Appeal is Untimely
Father filed his notice of appeal on March 23, 2007, which is more than 180 days after the order identified in the notice (August 29, 2006), and more than 60 days after service of the notice of entry of the final judgment on January 19, 2007. On this record, the notice of appeal is untimely on its face under California Rules of Court, rule 8.104(a).
When this court discovered the timeliness issue, it immediately provided Father the opportunity to file a letter brief identifying a basis that his appeal is timely. Father did not respond.
The timeliness of an appeal is jurisdictional, and the court has no authority to waive a party's failure to timely file an appeal. (Cal. Rules of Court, rule 8.104(b).) As the California Supreme Court has repeatedly stated, "once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) "In the absence of statutory authorization, neither the trial nor appellate courts may extend . . . the time for appeal, even to relieve against mistake, inadvertence, accident, or misfortune." (Maynard v. Brandon (2005) 36 Cal.4th 364, 373; accord Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454.)
Based on the foregoing rules, we dismiss the appeal.
II. Guidance in Future Court Hearings
Because this court discovered the timeliness issue after the parties had fully briefed the case and waived oral argument, and after the court had reviewed the merits of appellant's contentions, and because the parties may attempt to raise these issues in future family court proceedings, the court provides the following observations for the benefit of the parties and court. Although these observations do not constitute law of the case, they may be helpful in guiding the parties in future proceedings.
Jurisdiction and Venue Issues
Father contends the San Diego County Superior Court did not have jurisdiction over the marriage dissolution case because Father first filed a dissolution action in Riverside County.
Generally, " '[w]here two [courts] have concurrent jurisdiction over the same parties and subject matter, the tribunal which first acquires jurisdiction of the parties is entitled to retain it exclusively.' " (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 926, fn. 3.) "Under this rule, the critical time for triggering jurisdiction is the service of the summons," and not when each action was filed. (Williams v. Superior Court (2007) 147 Cal.App.4th 36, 53.)
In this case, each party filed for dissolution of the marriage within a three-week period. Although Father filed his Riverside County action first, the San Diego County court was first to acquire jurisdiction of the parties because Mother served Father with a summons and a petition on May 5, 2005.
Father claims he served Mother with the Riverside County summons before this time. However, the San Diego County Superior Court made a finding that Mother was not properly served with this summons, and the Riverside Court reached a similar conclusion and vacated Mother's default. On this record, the San Diego County Superior Court properly refused to dismiss the action based on the "first in time" rule.
Father alternatively contends the court did not have jurisdiction or proper venue over the matter because one or both of the parties did not live in San Diego County for the requisite statutory time period.
A judgment of marriage dissolution may not be entered unless one of the spouses has been a resident of California for six months and a resident of the county where the proceeding is filed for three months. (Fam. Code, § 2320.) Additionally, for venue purposes, a marriage dissolution proceeding should be held in the county in which either the petitioner or respondent "has been a resident for three months" before the commencement of the proceeding. (Code Civ. Proc., § 395, subd. (a).)
The court made an express finding that Mother was a San Diego County resident for six months before filing the dissolution petition. This finding was supported by Mother's acknowledgement under oath that she was a resident of the State of California for at least six months and of San Diego County for at least three months before filing the petition. Father similarly told the mediator in September 2005 that Mother lived in San Diego County as well as Tijuana after their separation, which he said had occurred several years earlier.
In challenging the court's finding, Father relies on evidence that Mother had previously stated she lived in Tijuana when she filed the action. However, if a party makes inconsistent statements, it is the role of the fact finder (here, the trial court) to determine which statement is accurate. Because substantial evidence supports the court's factual finding, we are bound to accept this finding. Further, Mother's protective filing of the Mexican dissolution petition was not inconsistent with the court's finding that Mother met California's statutory residency requirements.
Custody Ruling
The Legislature provided the trial courts with the "widest discretion to choose a parenting plan that is in the best interest of the child." (Fam. Code, § 3040, subd. (b).) " ' "An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge's discretion and not that of the appellate court which must control." ' " (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.)
In this case, the record reflects that the court awarded Mother sole legal and physical custody of the children because Father: (1) was unwilling to recognize Mother's rights to jointly parent the children (particularly the older son); (2) failed to attend scheduled visitations; (3) refused to participate in court-ordered Family Court mediation services; (4) continued to rely on documents that he altered in a disturbing manner to falsely accuse Mother of being an unfit parent; and (5) refused to engage in cooperative childcare decision making, including signing necessary passport application forms. Based on these findings, the court concluded that joint custody would not be workable and thus was not in the children's best interests.
Although generally a child's best interests are served by joint custody to permit the child to have a "full and involved relationship" with both parents, Father's conduct and statements throughout the proceedings "hamper[ed] the realization" of this goal. (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 115-116 .)Evidence that one parent holds strong resentment and hostility towards the other parent, and that the parent will let this attitude affect his actions toward the children, is a strong basis for awarding sole custody to the other parent. To be workable, joint custody requires parents who are willing to recognize the other parent's rights, and cooperate in making decisions and shared visitation. (Id. at pp. 114-115.)
Father argues that the trial court was wrong in concluding that the children were safe with Mother. However, there was substantial evidence to support the court's findings that Mother did not present a danger to the children and that the documents upon which Father relied to assert these allegations had been altered by Father to falsely support his claims.
Supervised Visitation
Under Family Code section 3100, "the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child . . . ." (Fam. Code, § 3100, subd. (a).) Under this code section, liberal visitation is the general rule, but visitation may be suspended or severely restricted if the court determines this would be in the child's best interest. (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1487.)
In ordering limited and supervised visitation, the trial court was focused on the children's needs and best interests. Based on its consideration of the evidence, the court had a reasonable basis to be concerned that Father would not return his older son to Mother after an unsupervised visit, and/or that Father would make inappropriate statements to his son about Mother if the visit was unsupervised. These concerns were fully justified by the factual record, and supported the court's visitation order.
We note that in the proceedings below both Mother and the court recognized that Father and the older son had a positive relationship, and it would be beneficial in the long run to continue that relationship. The court further made clear its willingness to modify the custody and/or visitation order if the circumstances changed and the best interests of the children supported such a change. Thus, if there are changed circumstances, Father may bring new information to the family court to seek appropriate modifications that are in the children's best interests.
DISPOSITION
Appeal dismissed.
WE CONCUR: NARES, Acting P. J. IRION, J.