Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. D94-00559
Haerle, J.
I. INTRODUCTION
This is an appeal from an order dated March 24, 2008, in which the court denied (1) defendant and appellant Michele White’s request for reconsideration of an order dated November 28, 2007; (2) her request that the court set aside the November 28, 2007, order because her attorney had failed to file supplemental documents on the subject of plaintiff and respondent Kerton’s child support arrearages; and (3) a request she had made at an earlier hearing that the court enforce a 1996 child support order in a manner urged by White. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Michele White and Shawn Kerton are the parents of one child, a daughter, born in 1993. Kerton is the child’s biological father. White and Kerton have never married.
On January 12, 1995, White and Kerton entered into a Stipulation for Entry of Paternity Judgment and Related Matters and Judgment Thereon (Stipulated Judgment). Under this Stipulated Judgment, Kerton agreed to pay $475/month in child support.
In 1996, White obtained an increase in child support (the 1996 Order). Under this order, beginning on October 1, 1996, Kerton was required to pay $808/month in child support. In addition, the court ordered as follows: “As and for additional child support, the Plaintiff shall pay to the Defendant 18% of any and all gross supplemental income, including bonus and commission income earned by him in excess of $3,000 per month.” The court also “reserve[d] jurisdiction to modify child support back to May, 1996, the date of the filing of Defendant’s motion, based upon the parties’ relative income and further documents produced in accordance with the discovery schedule as set forth herein.”
In 2004, White sought to modify the child support judgment and also sought the retroactive support award the court reserved jurisdiction to order. Over the next several years, she also sought to have Kerton held in contempt for his failure to pay monies owed under the 1996 Order.
At a hearing held on May 23 and 24, 2007, the court first considered White’s request that the court clarify the 1996 Order with regard to the method of calculating additional child support based on amounts earned by Kerton over and above his base salary. The court then considered the issue of whether Kerton was in contempt because of his failure to pay child support.
On May 23, 2007, the court noted that the 1996 Order provided that Kerton would pay additional child support in an amount that was equal to 18 percent of each month’s salary above his base amount. The court held that the calculation of this amount would occur yearly, rather than monthly. Although in her appellant’s brief, White refers to this ruling as “tentative, ” at no time did the court characterize it as such.
After so ruling, the court then held a hearing on the issue of contempt and, on May 24, 2007, found Kerton guilty of one count of contempt for his failure to pay support. In addition, the court ruled that it would not order retroactive child support, an issue it held “was resolved by the Court when it failed to address the issue at trial, and at this point the Court’s not going to retroactively review either.”
We do not here detail the lengthy history of these efforts, which involved litigation in Massachusetts and Missouri, among other things, because this history is not relevant to the ultimate issues in this matter.
The court reserved the question of the amount of Kerton’s arrearages. On August 15, 2007, it held a hearing on the issue of “arrearages and fees and costs.” At the conclusion of this hearing, the court reaffirmed its earlier ruling that “the 18 percent of gross income over $36,000 which served as a calculation of additional support over and above the base... is determined on an annual basis as of April 15th of each year and it will be delinquent if not paid by May 15th of each year.” The court also held that “monthly payments of basic support do accrue interest... from the date the payment fails to be made.” The court held that it was “not in a position to make a final finding as to the amount [owed by Kerton] because I’m not going to accept [Kerton’s counsel’s] spreadsheet without the additional information.” The court gave Kerton until August 17, 2007, to supply the court with a spreadsheet showing support owed and gave White until August 27, 2007, to make a final reply. The court also awarded White $15,000 in fees and costs.
In an Order After Hearing dated October 15, 2007, and filed on November 28, 2007, the court noted that it had received from Kerton a declaration and supplemental declaration regarding arrearages dated August 10 and 17, 2007, respectively. On August 10, 2007, White filed a declaration regarding attorney fees and costs. On September 7, 2007, White’s attorney requested an extension of time to file a final response to Kerton’s arrearages calculation, a request the court granted up to and included October 15, 2007. White’s attorney did not, however, file a response.
The court found that the arrearages owed by Kerton totaled $16,006.01 and that this sum would continue to bear interest at 10 percent from August 31, 2007. The court set out a payment schedule for these arrearages, and ordered an additional award of attorney fees in the amount of $5,000.
On December 14, 2007, Kerton filed a motion for reconsideration of the court’s November 28, 2007, order. At the scheduled hearing date of January 22, 2008, White was present by telephone and was sworn in as a witness. Her attorney was not present, and White stated that she was unaware that her attorney would not attend the hearing. According to White, she had last spoken to her attorney in October and had learned that she had failed to make a final response to Kerton’s arrearages calculation because of a “family tragedy in October.” White stated that she had learned of the court’s November 28, 2007, order a week or two before the January 22, 2008, hearing. White asked for an extension of time to “get a new attorney or file an in pro per a CCP 473.” The court stated that it believed Kerton’s motion for reconsideration was meritorious because, contrary to its earlier order, “[i]nterest cannot be charged on interest” and it informed White that “if I ultimately still find that the request is meritorious, and based upon my reading of the motion my tentative decision is that it is meritorious, I'll require that you pay the attorney fees for [Kerton’s attorney] having to appear here in court twice.”
On February 15, 2008, White filed a motion in which she asked for the following relief: “reconsider the order of 11/28/07 relating to the arrearage amount and formula and interest”; “set aside the order of 11/28/07 relating to the default acceptance of petitioner’s accounting due to respondent’s attorney’s nonappearance and lack of accounting; enforce 12/16/96 support order as to 18% gross supplemental income.” In her supporting authorities, with regard to her request for that the court “set aside” its order, White argued that such a “set aside” was warranted under In re Marriage of Barthold (2008) 158 Cal.App.4th 1301 (Barthold) and Code of Civil Procedure section 473, subdivision (b).
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
The matter was heard on March 19, 2008, and the court filed an order after hearing on March 24, 2008. In that order, the court granted Kerton’s December 14, 2007, motion, finding that “its order after hearing filed on November 28, 2007, in determining arrearages did not distinguish between the principal balance upon which interest would be earned and interest.” The court ultimately found that “The total amount due and payable through March of 2007 amounted to $16,612.64 of which $15,514.99 would continue to accrue interest at the legal rate of 10% per annum.”
The court denied White’s request for reconsideration, holding that “[i]t is untimely under California Code of Civil Procedure section 1008.” The court also denied her request to set aside the order because her attorney had not filed supplemental information regarding arrearages. Moreover, “the Court [does not] find that it has made an error which would require it to rectify and modify the previous decision pursuant to In re Marriage of Barthold. The court has already ruled on previous occasions for which no request for reconsideration was ever submitted, that the 18% additional support payable by the petitioner to the respondent would be computed on an annual, not a monthly basis. Furthermore, the Court declines to exercise its discretion to retroactively modif[y] support back to 1996.”
The court also refused to award either side any fees, noting that “[i]t is ironic that both parties have expended attorneys fees, sums in excess of the amount of support over which the parties have litigated. The Court does not find that the parties have been reasonable in their litigation choices and certainly does not find good cause to reconsider or modify the previous attorneys fees awards granted by this Court.”
White filed a notice of appeal from the March 24, 2008, order on May 23, 2008.
III. DISCUSSION
A. March 24, 2008, Order
White’s appeal is from the court’s order of March 24, 2008, which was served on her on March 24, 2008. This order (1) denied her motion for reconsideration of the court’s order of November 28, 2007; (2) denied her request that the court set aside its November 28, 2007, order under section 473 and/or Barthold, supra, 158 Cal.App.3d 1301; and (3) denied her request that, essentially, the court reconsider rulings it made at a hearing on May 23, 2007, regarding the interpretation of the 1996 Order and computation of child support We will discuss each of White’s claims separately.
B. The Motion for Reconsideration
An order denying a motion for reconsideration “is not an appealable order under any circumstances. (See, e.g., Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161, overruled on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607; Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 [an order denying a motion for reconsideration is never appealable regardless of whether new facts were raised]; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1457-1459 [acknowledging a ‘split of authority’ but observing that the prevailing view among appellate courts is that a denial of a motion for reconsideration is never appealable under any circumstances].)” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633.)
Even if we treat the November 28, 2007, order as the order from which White is appealing, that appeal is untimely. Rule 8.104(a)(2) of the California Rules of Court provides that “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled, ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service....”
Here, the clerk served White with a file stamped copy of the order on November 28, 2007. The notice of appeal was filed on May 23, 2008, which is far in excess of 60 days after November 28, 2007. “We have no discretion to relieve a party from the duty of filing a notice of appeal on time.” (Crotty v. Trader, supra, 50 Cal.App.4th at p. 769.) The appeal is, therefore, untimely under rule 8.104(a) “[u]nless a statute or rule 8.108 provides otherwise....”
Rule 8.108(e), provides: “If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: [¶] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first motion to reconsider is filed; or [¶] (3) 180 days after entry of the appealable order.”
Under this rule, the earliest date for appealing the court’s March 24, 2008, order was 30 days after it was mailed by the superior court clerk or served on White, a date she admits in her Civil Case Information Statement was March 24, 2008. Thus, her appeal should have been filed on or before April 23, 2008. White’s appeal from the order denying her motion for reconsideration s, therefore, untimely, and must be dismissed. (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1679; Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1046-1050.)
C. Request to Set Aside November 28, 2007, Order
White moved the court to set aside the November 28, 2007, order on two grounds. First, she contended that she was entitled to relief from default under section 473, subdivision (b) and second she argued that the court should exercise its power under Barthold, supra, 158 Cal.App.4th 1301 to revise its November 28, 2007 order.
The trial court did not err in denying her the requested relief on either ground. In her moving papers, White argued that the court should set aside its November 28, 2007, order because she was entitled to relief from default under section 473, subdivision (b). Section 473, subdivision (b), provides for both discretionary and mandatory relief from dismissal, entry of default, and default judgment. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.)
However, section 473, subdivision (b), has no application here for the simple reason that White’s default was never taken. The fact that White’s attorney failed to submit supplemental information on the issue of arrearages and the court subsequently ruled without it does not constitute a default. Given that no default was taken, section 473, subdivision (b) provides no ground for relief.
In addition, the court ruled that White was not entitled to relief under Barthold, supra, 158 Cal.App.4th 1301. Barthold is inapplicable because it concerned the court’s jurisdiction to reconsider an appealable post-judgment order, when the time to appeal had not yet expired. (Id. at pp. 1312-1313 & fn. 9.) White filed her motion seeking this relief on February 15, 2008, more than 60 days after the time to appeal the November 28, 2007 order had expired.
D. Request to Enforce December 16, 1996, Order
White also challenges the trial court’s denial of her request that it “enforce 12/16/96 support order as to 18% gross supplemental income.” The court ruled on this issue on May 23, 2007. Neither the court’s ruling of May 23, 2007, on the appropriate way to calculate the 18 percent of each month’s salary over Kerton’s base amount, nor its denial of the retroactive child support was appealed within 60 days as required under California Rules of Court, rule 8.104. Nor was a request for reconsideration filed on these two rulings. Her request is clearly untimely and we do not have the jurisdiction to consider it. (Cal. Rules of Court, rule 8.104(a)(2).)
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Kline, P.J. Lambden, J.