Opinion
C098260
04-16-2024
M.Y., Plaintiff and Respondent, v. R.Y., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 20DV01328 & 21FL02566
Krause, J.
Defendant R.Y. (Wife) purports to appeal from the renewal of a domestic violence restraining order (DVRO) as well as orders concerning child custody and support. For the reasons set forth below, we conclude that we lack jurisdiction to review the DVRO and child support orders and that Wife has forfeited her remaining arguments on appeal by filing an inadequate brief and record. Accordingly, we dismiss the portion of her appeal addressed to the nonappealable orders and otherwise affirm.
To protect their privacy, we refer to the parties by their initials. (Cal. Rules of Court, rule 8.90(a)(1), (b)(10), (11).) Further undesignated rule references are to the California Rules of Court.
BACKGROUND FACTS AND PROCEDURE
On August 6, 2020, the trial court issued a one-year DVRO protecting plaintiff M.Y. (Husband) from Wife. As part of that order, the court granted Husband sole legal and physical custody of the parties' children. On November 5, 2021, the court renewed the DVRO for an additional five years.
On January 24, 2023, the parties appeared for a hearing on a motion by Wife to modify child custody and visitation. After hearing from the parties and considering the Family Court Services' report, the trial court referred the parties back to Family Court Services for in-person interviews with the children and continued the matter for further hearing on March 29, 2023. Pending the return hearing, the court adopted the Family Court Services' recommendation, as modified, as its interim order.
On February 17, 2023, the parties appeared for a hearing on a motion by Wife to modify child support. After hearing testimony from the parties, the trial court continued the hearing to April 21, 2023, and ordered Wife to file an updated income and expense declaration. In the interim, the court ordered Wife to pay $870 per month in child support, based upon the court's findings as to each parties' income and percentage of parenting time.
On March 20, 2023, Wife filed a notice of appeal. In her notice of appeal, Wife purports to appeal from a single "judgment" entered on January 24, 2023. However, in the civil case information statement that she filed on April 13, 2023, Wife claimed to be appealing three additional rulings: (1) the November 5, 2021 order renewing the DVRO; (2) the February 17, 2023 interim child support order; and (3) the March 29, 2023 order on Wife's continued child custody motion (originally heard on January 24, 2023). Consistent with the instructions on the form, Wife attached copies of these three orders to her civil case information sheet.
The notice of appeal is not included in the clerk's transcript, but our docket reflects that it was filed in the trial court on March 20, 2023. We take judicial notice of the notice of appeal pursuant to Evidence Code section 452, subdivision (d).
On April 21, 2023, this court issued an order advising Wife that her purported appeal from the January 24, 2023, order was "premature." Pursuant to rule 8.104(d), we construed her notice of appeal as appealing from "the order filed in the trial court on March 29, 2023." Our order also stated: "To the extent appellant purports to appeal from the February 17, 2023, order, that order is not appealable. [Citation.] To the extent appellant purports to appeal from the November 5, 2021, order, the appeal is untimely. [Citation.]" Wife did not contest that order.
Thereafter, on May 4, 2023, Wife filed a notice designating the record on appeal, requesting the preparation of a clerk's and reporter's transcript. However, because Wife failed to comply with the rule requiring her to identify the designated documents by title and filing date (rule 8.122(a)(1)), the clerk's transcript does not include many of the items that are required to be included in a clerk's transcript, such as the notice of appeal and the register of actions (rule 8.122(b)). Consequently, the clerk's transcript is limited to just five documents: the August 6, 2020 DVRO order; the November 5, 2021 DVRO renewal; the January 24, 2023 child custody order; the February 17, 2023 child custody order; and the May 4, 2023 notice designating the record on appeal.
Notably, the clerk's transcript does not include the March 29, 2023, custody order, even though the civil case information sheet identifies it as an order being appealed.
There also is no reporter's transcript, even though one was requested, because a court reporter was not present for any of the designated hearings. And Wife has not provided a settled statement (rule 8.137) or an agreed statement (rule 8.134) in lieu of a reporter's transcript.
Wife filed her opening brief on September 13, 2023. She did not move to augment or correct the record (rule 8.155), electing to proceed with only a partial clerk's transcript and no record of the oral proceedings before the trial court.
DISCUSSION
Although the arguments in her brief are difficult to decipher, as best we can discern, Wife is attempting to challenge the DVRO renewal entered on November 5, 2021; the child support order entered on February 17, 2023; and the child custody orders entered on January 24, 2023, and March 29, 2023. She advances five claims of error. Her primary argument is that the issuance of the DVRO violated due process because the evidence was insufficient to prove that she engaged in domestic violence or that removing the children from her custody served the children's best interests. Next, she argues that the child support order must be set aside because it was the product of coercion and duress rather than the agreement of the parties. In her third and fourth arguments, Wife argues that the trial court violated separation of powers principles and the Supremacy Clause (U.S. Const., art. VI, cl. 2) by relying on state laws that are in conflict with the First, Fourth, and Fourteenth Amendments of the United States Constitution. Last, she claims the child support order is invalid because it was issued by a commissioner (rather than a judge) and because the amount of the award exceeded her ability to pay.
Wife does not specify whether this argument is directed to the DVRO, the child custody order, the child support order, or all three. She also does not specify which state laws conflict with federal law or how they allegedly conflict.
A. Jurisdiction and the Notice of Appeal
Because it affects this court's jurisdiction, we begin by addressing the deficiencies in Wife's notice of appeal.
The notice of appeal defines the scope of an appeal by identifying the "particular judgment or order" that is being appealed. (Rule 8.100(a)(2); Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.) When a notice of appeal specifically describes the order being appealed, our jurisdiction is limited to reviewing that order. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47; Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) We cannot liberally construe the notice to apply to a different, omitted order. (In re J.F. (2019) 39 Cal.App.5th 70, 75-76; Baker v. Castaldi (2015) 235 Cal.App.4th 218, 225; Faunce v. Cate (2013) 222 Cal.App.4th 166, 169-170; In re Brandon M. (1997) 54 Cal.App.4th 1387, 1400-1401.)
Here, Wife's notice of appeal purports to appeal from the child custody order entered on January 24, 2023, but the notice makes no mention of the DVRO entered on August 6, 2020, the DVRO renewal entered on November 5, 2021, or the child support order entered on February 17, 2023. Because this court's jurisdiction on appeal is limited to the order identified in the notice of appeal, we lack jurisdiction to entertain Wife's challenges to the DVRO or child support order.
Wife's attempt to appeal the DVRO also fails because her appeal is untimely. (Rivera v. Hillard (2023) 89 Cal.App.5th 964, 974; Faunce v. Cate, supra, 222 Cal.App.4th at p. 170; rule 8.104.)
B. Appealability of Interim Child Custody Order
We next consider the January 24, 2023 order and conclude that even though it was included in the notice of appeal, the order is not appealable.
"The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not appealable, the appeal must be dismissed. [Citation.]" (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.)
Generally, under the" 'one final judgment'" rule, an appeal may be taken from a final judgment, but not an interlocutory judgment or order. (Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1360; Code Civ. Proc., § 904.1.) While there is a recognized exception to this rule for collateral orders, this exception "applies only if the matter is severable from the general subject of the litigation, and then only if a decision thereon determines finally the rights of the parties in relation to the collateral matter, leaving no further judicial acts to be done by the court in regard to that matter." (In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735; see Longobardo v. Avco Corp. (2023) 93 Cal.App.5th 429, 432-433; Sese v. Wells Fargo Bank N.A. (2016) 2 Cal.App.5th 710, 715.) The collateral order exception has not been applied to interim or temporary child custody orders. (See, e.g., Smith v. Smith (2012) 208 Cal.App.4th 1074, 1089-1090; Banning v. Newdow (2004) 119 Cal.App.4th 438, 456; Lester v. Lennane (2000) 84 Cal.App.4th 536, 561-563.)
Here, it is clear the January 24, 2023 order was intended to be an interim order since the trial court expressly referred to it as such and the ruling contemplated a "[r]eturn hearing" on March 29, 2023, to consider the Family Court Services' addendum report. Accordingly, the January 24, 2023 order is not an appealable collateral order.
C. Inadequacy of Record and Appellate Briefing
Even though the notice of appeal refers only to the January 24, 2023 order, we can liberally construe the notice of appeal to include the March 29, 2023 order because that order relates to the same underlying motion, and it is reasonably clear from the civil case information sheet that Wife was trying to appeal from it. (Rules 8.100(a)(2), 8.405(a)(3).) Nevertheless, the trial court's ruling must be affirmed because Wife has failed to sustain her burden on appeal.
While we have some doubts about the "finality" of the March 29, 2023 ruling, since the hearing was further continued to May 22, 2023, we elect to treat the order as appealable.
It is a fundamental principle of appellate practice that the order of the lower court is presumed to be correct on appeal. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 (Osgood).) It is the appellant's burden to overcome this presumption of correctness and show prejudicial error. (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 822.) To do so, the appellant must provide the court with a record that is adequate to consider the contentions raised on appeal. (Osgood, supra, at p. 435.)
The record here is plainly inadequate. The clerk's transcript is comprised of only five documents, consisting primarily of contested orders. It does not include any of the motions, briefs, declarations, or other documents that may have been filed in connection with those orders. There also is no reporter's transcript or agreed or settled statement informing the court what arguments and evidence may have been received by the court. In the absence of an adequate record, all presumptions and inferences must be drawn in support of the trial court's decision. (Osgood, supra, 127 Cal.App.4th at p. 435; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
What's more, Wife's appellate brief is woefully deficient. Among other shortcomings, her brief lacks a clear statement of appealability, relies on an argumentative and unsupported statement of facts, and fails to include any meaningful legal analysis tethered to the facts of this case explaining how and why the trial court erred. (Rule 8.204(a)(1) &(2).)
Taken together, the inadequacies in the record and the deficiencies in Wife's briefing compel us to conclude that Wife has forfeited whatever contentions she may be attempting to raise on appeal. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817; Flores v. Department of Corrections &Rehabilitation (2014) 224 Cal.App.4th 199, 205; City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287; Gee v. American Realty &Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Accordingly, we affirm the March 29, 2023, custody order.
In reaching this conclusion, we are mindful that Wife is representing herself in connection with this appeal, but that does not excuse her from compliance with the rules governing appeals. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A selfrepresented party is" 'treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]'" (Id. at p. 1247.)
DISPOSITION
The purported appeals from the DVRO renewal entered on November 5, 2021, the child support order entered on February 17, 2023, and the January 24, 2023, child custody order are dismissed. The March 29, 2023, child custody order is affirmed.
Husband is awarded his costs on appeal. (Rule 8.278(a)(1) & (2).)
We concur: Earl, P. J., Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.