Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, No. MAD001742. Thomas L. Bender, Judge.
Nicole Williams, under appointment by the Court of Appeal, for Objector and Appellant.
Tritt & Tritt, James F. Tritt; Law Office of Debora A. Paul and Debora A. Paul for Petitioners and Respondents.
OPINION
CORNELL, J.
This is the second of two appeals filed by W.T. In the first case, our case No. F057608, W.T. appealed from the judgment entered after the family court rejected his petition to establish that he was the biological father of M.M. pursuant to Family Code section 7631. We conclude in that case that the family court correctly rejected the petition.
All further statutory references are to the Family Code unless otherwise stated.
After W.T filed his petition, R.G., M.M.’s stepfather, filed a request to adopt M.M. As part of the request, R.G. also requested the family court terminate the parental rights of C.R., M.M.’s presumed father, and W.T., who was designated in the petition as an alleged father because of his petition to establish paternity. After the family court rejected W.T.’s section 7631 petition, it terminated whatever parental rights W.T. may have had. This is the order from which W.T. now appeals.
DISCUSSION
W.T. raises only one issue in this appeal. He argues that the family court erred in proceeding in this action before the judgment in the section 7631 petition was final. The authority for his argument is found in section 7631, which states in relevant part: “The commencement of the action suspends a pending proceeding in connection with the adoption of the child until a judgment in the action is final.” The action referred to in this sentence is a petition to establish parentage pursuant to section 7631. Therefore, W.T. argues that once he filed his section 7631 petition, all proceedings in connection with the adoption of M.M. were stayed by statute until the judgment in that case became final.
Section 7631 states in its entirety: “Except as to cases coming within Chapter 1 (commencing with Section 7540) of Part 2, a man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father under Section 7611, if the mother relinquishes for, consents to, or proposes to relinquish for or consent to, the adoption of the child. An action under this section shall be brought within 30 days after (1) the man is served as prescribed in Section 7666 with a notice that he is or could be the father of the child or (2) the birth of the child, whichever is later. The commencement of the action suspends a pending proceeding in connection with the adoption of the child until a judgment in the action is final.”
Regrettably, we see no path to avoid the plain language of the statute. The judgment in W.T.’s section 7631 action is not yet final, and will not be final until all of his appeals are exhausted. Code of Civil Procedure section 1235.120 defines a final judgment as a “judgment with respect to which all possibility of direct attack by way of appeal, motion for a new trial, or motion under [Code of Civil Procedure] Section 663 to vacate the judgment has been exhausted.” W.T. has not exhausted all possibility of attack on the trial court’s judgment.
Suspension of proceedings, or a stay of proceedings, precludes the trial court from ruling on substantive issues until the suspension or stay is lifted. (Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1302-1304.) A court exceeds its jurisdiction when issuing orders in an action that has been suspended. (Stewart v. Superior Court (1893) 100 Cal. 543, 547 [trial court exceeded its jurisdiction by issuing sanctions for violating a mandatory injunction while the injunction was stayed pending appeal]; see also Brady v. The Times-Mirror Co. (1895) 106 Cal. 56, 61-62 [trial court erred by permitting plaintiff to amend complaint while motion to change venue was pending]; Irwin v. City of Manhattan Beach (1964) 227 Cal.App.2d 634, 637-639 [trial court erred by issuing injunction where plaintiff failed to name indispensible parties as defendants].) When the action is suspended or stayed, any order or judgment issued by the trial court is void. (Irwin, at p. 637.)
R.G. tries to avoid our conclusions. First, he argues the suspension of proceedings required by section 7631 does not apply to stepparent adoptions because the child’s mother is not relinquishing the child for adoption. This argument ignores the clear language of the statute. Section 7631 states that a man in W.T.’s position may file a petition if the mother “relinquishes for, [or] consents to” the adoption of the child. Mother’s consent must be obtained before a stepparent adoption may occur. (§§ 8604-8605, 9003.) In this case, mother consented to the adoption without relinquishing her parental rights. Since mother’s consent to the adoption is statutorily required, section 7631 applies to stepparent adoptions.
Next, R.G. argues, without the benefit of authority, that section 7631’s requirement that any adoption proceedings be suspended until the judgment in the section 7631 action is final does not mean that all appellate remedies must be exhausted. R.G. does not explain why Code of Civil Procedure section 1235.120, which refutes his argument, would not apply in this case.
Nothing in the cases cited by R.G., Sullivan v. Delta Ari Lines, Inc. (1997) 15 Cal.4th 288 (Sullivan), Adoption of Alexander M. (2001) 94 Cal.App.4th 430 (Alexander M.), and Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788 (Lomeli), supports R.G.’s argument.
Sullivan addressed the “narrow question” (Sullivan, supra, 15 Cal.4th at p. 292) of whether Code of Civil Procedure section 377.34, which prohibits recovery for pain and suffering after the plaintiff dies, applied when the plaintiff obtained a judgment for such damages at trial, but died during the pendency of the appeal. This appeal does not involve pain and suffering, nor the timing oddities present there.
Alexander M., while providing an interesting history of section 7631, addresses only the issue of the standard a biological father would have to meet when the child has a presumed father who, along with the mother, consents to the adoption of the minor, an issue not present in this case. (Alexander M., supra, 94 Cal.App.4th at p. 441.)
Lomeli stands for the proposition that a judgment may be enforced even though the time for an appeal has not expired. (Lomeli, supra, 108 Cal.App.4th at p. 798.) Here, we are not addressing enforcement of a judgment, but the authority of the family court to issue orders when its authority to act has been suspended by statute.
Our conclusion that the orders of the family court issued in this case are void compels the conclusion that we must deny R.G.’s motions for judicial notice and dismissal of the appeal as moot. The motion for judicial notice requests us to consider the order of the family court purporting to finalize R.G.’s adoption of the child. The motion to dismiss argues this appeal is moot because the adoption is final. Since the family court’s action in finalizing the adoption of the minor is void, we will not take judicial notice of it, and the order cannot provide any basis for dismissal of this appeal.
We realize that R.G. proceeded with the adoption because of the apparent lack of merit of the section 7631 action. His actions in doing so, however, were ineffectual. Once the appeal in the section 7631 case becomes final, R.G. and mother will have to repeat the actions previously taken in this case.
DISPOSITION
The orders of the family court are reversed as void because the action is suspended until the judgment on the section 7631 petition becomes final as defined in Code of Civil Procedure section 1235.120. W.T. is awarded his costs on appeal.
WE CONCUR: WISEMAN, Acting P.J.POOCHIGIAN, J.