Opinion
2d Civil No. B230291 Super. Ct. No. D285209
01-31-2012
LARRY POLLOCK, Plaintiff and Appellant, v. KIM FEIL, Defendant and Respondent.
Larry Pollock, in pro. per., and for Plaintiff and Appellant . No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Appellant Larry Pollock and respondent Kim Feil had a child together in California. Following a parentage action, the court issued custody orders and Feil moved to Florida with the minor child. Appellant remained in California and was awarded visitation. Feil later died, and the Ventura County Superior Court relinquished jurisdiction to the State of Florida under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). During this time, father was incarcerated and filed a motion in pro per, challenging the trial court's relinquishment of jurisdiction. That motion was denied as untimely. He now seeks to appeal that decision. We dismiss the appeal for lack of an appealable order and lack of a complete appellate record.
The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions. (Fam. Code, § 3402 et seq.; In re Karla C. (2010) 186 Cal.App.4th 1236, 1268; In re C.T. (2002) 100 Cal.App.4th 101, 106.) The purposes of the UCCJEA include avoiding jurisdictional competition and conflict, avoiding relitigation of another state's custody decisions and promoting exchange of information and other mutual assistance between courts of other states. (In re C. T., supra, at p. 106.)
FACTS
In 2001, appellant Larry Pollock and respondent Kim Feil had a child together in California. They were unmarried and later separated. In 2002, following a parentage action, the Ventura County Superior Court issued custody orders, awarding respondent primary physical custody and permitting her to move to Florida with the minor child, J.P. Appellant shared legal custody and was awarded visitation.
Appellant had limited contact with the minor over the next eight years. In March 2010, respondent died. A Florida Circuit Court contacted the Ventura County Superior Court asking if it would relinquish jurisdiction to the State of Florida under the UCCJEA. It did so, and this is reflected in a minute order dated April 23, 2010. The Florida Circuit court then established an emergency guardianship for the minor (the decedent's mother and sister).
Respondent was represented by the Law Offices of Bamieh & Erickson during the custody proceedings in California.
We have taken judicial notice of an order of the Florida Circuit Court for Escambia County, Florida, dated August 23, 2011. The court has ordered the parties to craft a plan to "transition" the minor to California to live with appellant. Notwithstanding, appellant has chosen to pursue the instant appeal. No respondent's brief has been filed. The record contains a letter from respondent's counsel stating that she believes it is not in the best interest of the minor's legal guardians to respond to the opening brief. Attached to the letter is a declaration from another attorney stating that she contacted appellant who indicated he intends to pursue the appeal. Counsel also contacted the minor's legal guardians who do not wish to proceed, in light of the recent Florida Circuit Court decision.
Motion to Vacate Minute Order
This appeal arises from the following facts. While mother was still living, appellant was incarcerated in federal prison for two years. He has now been released. During his incarceration, he filed a motion in pro. per. to vacate the April 23, 2010 order issued by the Ventura County Superior Court relinquishing jurisdiction to the State of Florida. Appellant's motion was made pursuant to Code of Civil Procedure section 473, subdivisions (a)(1), (b) and (d) and requested "relief" from the order "taken by mistake, inadvertence, surprise, excusable neglect and fraud upon [the] court; or to correct [the] order" to provide jurisdiction only for temporary guardianship; and to join the minor's temporary guardians in the action.
Appellant's motion was file-stamped by the Ventura County court clerk on November 3, 2010. The matter was heard on November 29. The court characterized the motion as a request to set aside the order of April 23. It concluded that it lacked jurisdiction to hear custodial matters and denied the motion as untimely because it was not filed within six months of the challenged April 23 order. Appellant was not present at the hearing and was not represented by counsel. The law firm of Bamieh and Erickson appeared on behalf of respondent.
DISCUSSION
Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), the court may allow a party to amend a pleading to correct a clerical error. Under subdivision (b), the court may "relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Application for this relief must be made within six months. (Ibid.)A court may also correct clerical mistakes in its judgment. (Id., subd. (d).)
All further statutory references are to the Code of Civil Procedure.
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None of the foregoing is applicable here. Section 473, subdivisions (a)(1) and (d) govern correction of clerical errors made by counsel or the court. Subdivision (b) applies where a party or counsel made an error which caused judgment to be taken against that party. Section 473 does not apply in the context of a challenge to the relinquishment of jurisdiction in child custody proceedings made pursuant to the UCCJEA. Appellant has not presented us with an appealable order or judgment.
Prison Delivery Rule
Were we to address appellant's purported appeal on the merits, it would fail for lack of a complete appellate record. He limits his appeal to the issue of timeliness under the "prison-delivery rule." Pursuant to California Rules of Court, rule 8.25(b)(5), a document mailed by a prisoner may be deemed timely if it is delivered to "custodial officials" before the time for filing the document has expired. The prison-delivery rule has been applied to a self-represented prisoner's filing of a notice of appeal in a civil case. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 110.)
California Rules of Court, rule 8.25(b)(5) provides, "If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received." (Italics added.)
Appellant states in his opening brief that he deposited his motion in the prison mail on October 22, 2010, and it was therefore timely. The appellate record has only an unsigned proof of service, dated October 22, and lacks a copy of the envelope or other evidence (such as a declaration) showing when appellant delivered it to prison authorities for mailing. Appellant has not provided us with a complete appellate record from which we may evaluate his claim. Accordingly, his purported appeal from the order denying his motion under section 473 must be dismissed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Rein Perryman, Temporary Judge
Superior Court County of Ventura
Larry Pollock, in pro. per., and for Plaintiff and Appellant.
No appearance for Defendant and Respondent.