Opinion
A144007
05-16-2017
In re the Marriage of STEVEN STUPP and ANNEMARIE SCHILDERS. STEVEN STUPP, Respondent, v. ANNEMARIE SCHILDERS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0110799)
Annemarie Schilders here appeals several orders filed by the family court on November 24, 2014, a few months after entry of the stipulated judgment dissolving her marriage to respondent Steven Stupp. The challenged orders overrule Schilders's objections to evidence; deny a modification to child support; deny attorneys' fees under Family Code section 2030; reserve jurisdiction over Stupp's request for sanctions under Family Code section 271; deny Schilders's request to schedule a mediation on custody issues and her request to modify a custody order that gave Stupp sole authority to make routine medical appointments for the parties' child; and grant Stupp temporary sole legal custody of the child.
We will dismiss as moot the appeal from the order denying Schilders's request for mediation. We will dismiss the appeal from the order granting Stupp temporary sole legal custody because the order is not appealable. We conclude that Schilders has not shown reversible error with respect to the remaining orders, which we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2010, Stupp filed a petition for dissolution of his marriage to Schilders. A stipulated judgment of dissolution was entered on March 28, 2014. Custody of the parties' only child, who was just a few months old when the original petition was filed, remained subject to July 2012 temporary custody orders, incorporated into the stipulated judgment, under which Stupp and Schilders shared joint legal and physical custody of their child. Except in case of emergency, Stupp had sole authority to schedule the child's medical appointments. Stupp was to inform Schilders of appointment details the same day the appointment was made, and was to attempt to alternate scheduling of appointments between the parents' custodial time. The child was to reside with Stupp, and a schedule was established for Schilders to have visits with the child on an increasing basis. By mid-2013, Schilders would be with the child on Tuesdays during the day, and on alternating weekends from Friday morning to Monday morning, with Thursday overnights in the weeks preceding Stupp's weekends.
The judgment provided, "If it becomes necessary to obtain emergency medical care for the child, the custodial parent at that time shall obtain the necessary medical services, and shall contact the other parent as soon as practically possible to inform him/her of the situation."
The stipulated judgment ordered Stupp to "pay guideline child support" to Schilders in accordance with a term sheet signed by both Stupp and Schilders. The term sheet provided that Stupp would pay Schilders $1,500 per month in child support, offset by $1,500 as Schilders's fixed share of "add-ons" for specified expenses for the child, including pre-school, extracurricular activities, and child care. Child support was subject to an annual true-up based on the parties' incomes.
After the stipulated judgment was entered, Schilders changed attorneys and sought to vacate the judgment pursuant to Code of Civil Procedure section 473. At the hearing on Schilders's motion to vacate, held on June 23, 2014, the family court denied the motion but modified the judgment in response to Schilders's arguments that the judgment did not accurately reflect the terms of her agreement with Stupp. (See Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.] at pp. 2, 19.) Schilders appealed, and we affirmed the judgment as modified. (Id. at p. 2.)
In April, June, and July of 2014, Stupp filed requests for orders modifying custody and visitation. (See Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.] at p. 3.) On July 31, 2014, after hearings, the family court appointed the custody evaluator who had previously evaluated custody in the case "to conduct an updated evaluation as to the custodial issues between the parties and the [child], including a current appropriate timeshare reflecting the parties' current situations, the events that have occurred since [the] last evaluation, the educational and emotional needs of the minor, and any other recommendations reflecting the best interests of the minor." (Id. at p. 4.) Pending that evaluation, the custody and visitation terms set forth in the stipulated judgment would be in effect. (Ibid.)
Contentious postjudgment proceedings have continued in the family court and in this court, as shown by Schilders initiating more than a dozen further appeals and submitting several writ petitions. In this appeal, Schilders challenges provisions of two different orders filed by the family court on November 24, 2014.
The first of those orders ruled on Schilders's request, filed on August 15, 2014, for orders modifying custody and child support, and for attorneys' fees and costs, among other things. The request was heard on September 30, 2014, and as relevant here, the family court overruled Schilders's objections to declarations Stupp filed in response to her request for orders; denied Schilders's request to modify child support; denied Schilders's request to modify the judgment to authorize her, as well as Stupp, to schedule healthcare appointments for the child; denied Schilders's request for attorneys' fees; denied Schilders's request to schedule a mediation; and reserved jurisdiction over Stupp's request for sanctions under Family Code section 271. The orders were pronounced at the September 30 hearing, and filed on November 24, 2014.
The second order that was filed on November 24, 2014 was in response to an ex parte application that Stupp submitted to the court on November 18, 2014. The family court granted Stupp temporary sole legal custody of the parties' child pending a hearing, which it set for December 23, 2014.
In her opening brief on appeal, Schilders purports to incorporate by reference various arguments and objections she made in the family court. In her reply brief on appeal, she concedes that such incorporation is improper, but later in that same brief she purports to incorporate by reference arguments she advanced in a writ petition filed in this court, which is also improper. "It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court. [Citations.] The same principle bars . . . attempts to incorporate by reference arguments advanced in other appellate briefs." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.) We disregard Schilders's purported incorporations by reference.
DISCUSSION
A. November 24, 2014 Orders After September 30, 2014 Hearing
1. Additional Background
On August 15, 2014, Schilders filed a request for orders asking, among other things, to modify aspects of custody and visitation, to modify child support, and for attorneys' fees. Schilders asked that the existing child support order be modified to "guideline [plus] 20% of bonus." She requested that visitation and custody be modified in several respects. She also requested attorneys' fees of $103,329 and costs of $195 pursuant to Family Code section 2030. The fee request included $73,329 for fees incurred since April 2014, of which about $3,000 was for the current motion. The request also included $30,000 "to hire an attorney in a timely manner before the proceedings in the matter go forward." The request was set for hearing on September 30.
Schilders made a number of additional requests in her filing, but we limit our discussion here to those relevant to this appeal.
All statutory references are to the Family Code unless otherwise stated.
Stupp filed a responsive declaration, a declaration from his attorney, a memorandum of points and authorities, and an income and expense declaration on September 17, 2014. Stupp argued that custody and visitation should not be modified until the previously-ordered custody evaluation was completed and that child support should not be addressed until there was a change in timeshare. He argued that Schilders's request for fees was unreasonable, stating that he and Schilders "were embroiled in highly contentious litigation for the three years prior to reaching an Agreement on all the financial issues. Since Ms. Adut [Schilders's new counsel] entered this case in April of 2014, [Schilders] has filed more than 70 documents with the Court attempting to re-litigate these settled issues[.] This conduct is unreasonable[. ¶ Schilders] is unable to show a legitimate need for contribution of her fees. Her exorbitant fees are a byproduct of her own creation." He also asked the court to address a prior request he made for $75,000 in attorneys' fees as a sanction under section 271, alleging that Schilders and her counsel failed to cooperate in the litigation.
Schilders filed reply papers on September 23, 2014 in which she asked that Stupp "be sanctioned in an amount equal to his own request, $75,000." On September 26, Schilders filed a 30-page document with more than 140 objections to all or part of the declarations from Stupp and his attorney that had been filed in response to the request for orders.
At the hearing on September 30, 2014, the family court began by noting that a custody evaluation had been ordered by the judge who previously presided over the case, and asking why no subsequent hearing on custody had been scheduled. Schilders's counsel responded: "There was no hearing requested is the first reason. Second of all, there was actually no particular purpose stated for the evaluation other than an evaluation would be done. Another reason is that the court never declared this case to be complex so in essence [it] doesn't have authority to do that. And that entire order has been appealed, it's on appeal right now, Your Honor." The family court judge said that she would not ask the parties to go forward with the custody evaluation while the appeal was pending; that since the previous judge had ordered the evaluation, she would not modify visitation; and that she would take under submission the parties' requests for sanctions under section 271.
By that time, Schilders had appealed the stipulated judgment, and a few days before the hearing she filed an appeal of some postjudgment orders. Ultimately, Schilders did not challenge the postjudgment appointment of the custody evaluator; instead, she challenged the order that she advance 40 percent of the cost. (Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.] at pp. 4, 10.) We dismissed her appeal of that order on the grounds that the order was not appealable. (Id. at p. 10.)
The written order filed on November 24, 2014, is silent as to Schilders's request for sanctions, and states only that the court reserves jurisdiction over Stupp's request "pending resolution of the appeal filed September 26, 2014," apparently referring to Schilders's appeal of the order for a custody evaluation. Schilders's appeal does not address the family court's ruling on her sanctions request, except to note that in the written order, the court did not reserve jurisdiction to hear her request for sanctions.
Schilders's counsel then for the first time asked the court to order a mediation on custody issues, arguing that a mediation is required whenever custody is disputed. The family court denied the request in view of the pending custody evaluation. The court also denied Schilders's request for a modification of child support.
Schilders's counsel asked that Schilders be allowed to make medical appointments for the child. The family court said it would not change that provision, which had been incorporated in the judgment, absent a stipulation, and denied Schilders's request.
In the papers she filed with the family court, Schilders asked for an order that "[e]ach parent may take the child to a health-care provider as necessary during his or her custodial time." At the hearing, Schilders's counsel initially asked the family court that Schilders be authorized to "take the child to health care appointments not strictly the father." Stupp's counsel pointed out that it was not the case that only Stupp took the child to appointments, at which point Schilders's counsel noted that only Stupp could make routine medical appointments for the child, and asked that Schilders be allowed to make appointments also.
Schilders's counsel asked the court to rule on the 30 pages of objections she filed to Stupp's responsive declarations. The family court judge declined to rule on the objections, saying that she could not do so in a 20-minute hearing. Schilders's counsel then asked the court to continue the hearing so the objections could be heard and decided, which the court declined to do. The written order that was subsequently filed states that Schilders's objections "are overruled."
Finally, the court denied Schilders's request for section 2030 attorneys' fees. The court stated that Schilders "is currently receiving spousal support and that information was brought to the forefront of what was going on and when I found that out I realized that there is absolutely no reason for the court to order 2030 fees." Schilders's counsel argued that Schilders's spousal support was "$8,000 a month with very high medical bills of the child and herself she [cannot] afford an attorney, Your Honor. She can barely meet her living expenses. There is huge disparity of income here and there is need for her to have representation. She [cannot] have an attorney with the kind of money that she makes." The family court responded that Schilders "can and she does have an attorney. So the request is denied."
2. Analysis
a. Evidentiary Objections
We begin with Schilders's challenge to the orders overruling her objections to the declarations Stupp filed in response to Schilders's request for order. On appeal, Schilders states that the family court erred in declining to sustain her objections to hearsay, yet she also states that the family court should have sustained all of her objections. Although it is not clear from her opening brief on appeal, it appears from her reply brief that Schilders is challenging the family court declining to exclude the declarations in their entirety as out of court statements. Schilders contends that the court's refusal to exclude the declarations was prejudicial because she had no opportunity to cross-examine the declarants, even though Schilders did not ask to cross-examine Stupp or his attorney, both of whom were present at the hearing. In her reply brief, Schilders contends that the family court should have received live testimony, but she did not ask to present live testimony at in her written submissions to the court or at the hearing. Schilders also contends that the denial of her requested orders and the reservation of jurisdiction over Stupp's request for sanctions reflects that the judge was influenced by the declarations, which she claims are inadmissible hearsay.
Even if the family court had not stated in its written order that Schilders's objections were overruled, we would presume that the objections are overruled from the family court's failure to rule on the objections, and Schilders could properly challenge the presumed overrulings. (Cal. Rules of Court, rule 5.111(c)(2).)
We review the family court's evidentiary rulings for abuse of discretion. (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1525.) It is Schilders's burden as appellant to demonstrate not only that the family court abused its discretion in overruling her objections, but also that its error was prejudicial. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) Schilders's suggestion that the family court could not properly consider Stupp's and his attorney's sworn declarations is incorrect as a matter of law. "A family law court is empowered to hear motions based upon declarations and to exclude oral testimony." (In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 982 (Falcone).) We presume that the family court relied only on admissible evidence in reaching its conclusions, and "[o]nly proof that [inadmissible] evidence actually figured in the court's decision will overcome" this presumption." (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526 (Davenport).) This means that the mere fact that the court may have read allegedly inadmissible evidence does not overcome the presumption. (See ibid.)
Furthermore, Schilders fails to meet her burdens as appellant. First, she points to no specific statement in any of the declarations that would constitute hearsay, apart from the mere fact that the declarations themselves were out of court statements. Second, any claim of prejudice is speculative, because Schilders identifies no specific improper material that the family court considered and does not demonstrate any probability that she would have received a more favorable result if any material had been excluded. (Christ v. Schwartz, supra, 2 Cal.App.5th at p. 447 [appellants must "show that it is reasonably probable that they would have received a more favorable result . . . had the error not occurred"].)
b. Modification of Child Support
Schilders argues that the family court erred by denying her request for a modification of child support. She contends that the existing support order provided zero support, which was below the guideline amount, and that the family court should have calculated the "guideline" support amount and ordered Stupp to pay her the guideline amount plus a percentage of Stupp's bonus income.
We review the family court's decision whether to modify a child support order for abuse of discretion. (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 141.) As the party seeking modification of a stipulated child support order, Schilders must show a material change of circumstances from the previous order or that the previous order was for an amount below guideline. (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015.) Schilders showed neither, and therefore she cannot show that the trial court abused its discretion in denying her request for modification.
Schilders argues that because the existing order was for an amount below guideline, she did not need to show changed circumstances. But she did not establish that the amount of support ordered in the stipulated judgment was below guideline. Further, she ignores the statement in the stipulated judgment that Stupp is to pay "guideline child support . . . in accordance with the Support Term Sheet," which specifies that child support is $1,500 per month, offset by $1,500 in add-ons and subject to true-up. We presume "that the trial court made all factual findings necessary to support the judgment [or order] for which there is substantial evidence; all intendments are indulged in favor of the judgment or order, and appellate review is limited to searching the record for any substantial evidence that will support the lower court's 'implied findings.' " (Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 16:215, p. 16-78.) Here, substantial evidence (including the language of the stipulated judgment) supports the family court's implied finding that the existing child support order was not below guideline. Therefore, the family court did not abuse its discretion in declining to modify child support, and we will affirm the family court's order.
With her request for order, Schilders submitted a computer printout purporting to show guideline support based on a timeshare different from the one then in effect. Schilders does not argue that this printout established that the existing child support order was for an amount below guideline. Schilders contends that the family court should have calculated the guideline amount on its own. She cites no authority that supports her contention. Nor does she cite any authority that supports her contention that suggests the family court was obliged to order, or to consider ordering, Stupp to pay more than guideline in the circumstances here. We decline Schilders's invitation to impose such requirements on the family court.
c. Attorneys' Fees
Schilders argues that the family court erred in denying her request under section 2030 for attorneys' fees and costs in the amount of approximately $105,000. We disagree.
In her reply brief, Schilders argues that the family court should have awarded at least some fees to Schilders, but nowhere in her argument does she distinguish among the various subparts of her request.
We review the denial of Schilders's request for fees under section 2030 for abuse of discretion, and therefore we must affirm unless no judge could reasonably make the order. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) "Pursuant to Family Code sections 2030 and 2032, the trial court is empowered to award fees and costs between the parties [to a dissolution action] based on their relative circumstances in order to ensure parity of legal representation in the action." (Falcone, supra, 203 Cal.App.4th at p. 974.) "When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (§ 2030, subd. (a)(2).) In determining whether an award is "just and reasonable under the relative circumstances of the respective parties" (§ 2032, subd. (a), the court is to consider "the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately." (§ 2032, subd. (b).) In assessing relative need, the court is to take into account the parties' financial resources, but those resources are only one factor for the court to consider. (Ibid.) The court may also consider the parties' litigation tactics. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167 ["the other party's trial tactics" may be considered in determining a need-based award]; In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1524 (Huntington) [discretion in awarding fees under section 2030 includes " 'judicial evaluation of whether counsel's skill and effort were wisely devoted to the expeditious disposition of the case' "].)
The family court had before it evidence of the parties' incomes, expenses, assets, and savings, including evidence that Schilders was receiving $8,000 per month in spousal support from Stupp, subject to an annual true-up according to the parties' incomes; that Schilders had $8,400 per month in expenses, including $300 for savings, $100 for charitable contributions and $200 for "subscriptions"; that although over the past 12 months, Stupp had averaged about $43,000 in pre-tax income, in the most recent month had monthly pre-tax income of about $13,300; and expenses of $11,200, plus monthly spousal support payments to Schilders. We presume the family court considered this information. (Evid. Code, § 664; Davenport, supra, 194 Cal.App.4th at p. 1526.)
Against these background facts, Schilders requested estimated attorneys' fees of over $73,000 for less than four months of representation, from April 2014 through mid-July 2014, at $475 per hour. She offered no indication of how the fees were incurred, except to say that the July 18, 2014 request for orders accounted for about $3,200. She suggested in her declaration that the fees were necessitated by Stupp's relitigation of child custody, but failed to mention her own attempts to vacate the stipulated judgment. The family court could properly consider whether the requested fees were reasonable, including whether Schilders's attorney's " 'skill and effort were wisely devoted to the expeditious disposition of the case' " (Huntington, supra, 10 Cal.App.4th at p. 1524) in connection with the litigation of the unsuccessful attempts to vacate the judgment, and in the proceedings surrounding the multiple requests Schilders made in her July 18, 2014 request for orders. Beyond the $73,000, Schilders requested $30,000 "to hire an attorney in a timely manner before the proceedings in the matter go forward," but, as the family court observed, she was already represented by an attorney.
Schilders's attorney described the request for orders as raising "about ten different issues." Not all of them are at issue in this appeal. For example, Schilders does not challenge the family court's determination that Schilders's request for a stay-away order as to Stupp was not appropriate for the family court to decide, or the family court's denial of her request for an order requiring permission if Stupp were to take the child outside San Mateo, San Francisco, Santa Clara, and Alameda counties on the grounds that Stupp was a flight risk, which the family court determined was based entirely on "conjecture."
Schilders did not say in her declaration that she needed $30,000 to hire an attorney. She stated, without providing any details or other supporting information, "It is anticipated that at least $30,000 more in attorney fees will be incurred in the short term, to resolve matters presently pending in the trial court, and to present my appeal." Separately, she said that she needed to hire a second lawyer to assist her existing counsel.
Schilders does not acknowledge the evidence that supports the family court's decision to deny her request for fees. In essence, Schilders argues on appeal that because Stupp had a greater monthly income than Schilders, the evidence presented to the family court would justify an award of the fees that she requested. The question for us here, however, is not whether the evidence could justify an order different from the family court's, but whether the evidence, viewed most favorably to the court's order, supports that order. (Davenport, supra, 194 Cal.App.4th at p. 1531.) We conclude that it does.
Schilders argues that the family court did not consider the statutory factors when it denied her request for fees, contending that that her request was denied "because she was receiving spousal support." Certainly, the family court considered the fact that Schilders was receiving spousal support, but it does not follow that the court's decision rested on that fact alone, rather than on the amount of the support and other appropriate considerations.
Schilders also argues that the family court made no findings on the record of "whether there is a disparity in access to funds to retain counsel or whether Stupp is able to pay toward both parties' legal representation." It is well-established that "the record must reflect that the trial court actually exercised [its] discretion and considered the statutory factors in exercising that discretion," (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827) and the record here does just that. There is no requirement that the family court use particular language or state its findings or the factors on the record.
Schilders's reliance on In re Marriage of Kerry (1984) 158 Cal.App.3d 456 to support her argument that the family court abused its discretion in denying her request for attorneys' fees is misplaced. In Kerry, the Court of Appeal ruled that it was an abuse of discretion for the court to order a low-earning spouse to pay $1,000 in fees to a high-earning spouse as a condition of setting aside a judgment, where there was no evidence that the high-earning spouse needed an award of fees, and no authority supporting the fee award as a sanction. (Id. at pp. 464-465.) The facts in Kerry are unlike the facts here, and, contrary to Schilders's assertion, Kerry does not stand for the proposition that "[i]t is an abuse of discretion to deny fees to spouse who has no funds with which to pay where other spouse is able to pay."
Because Schilders has not shown that the family court abused its discretion in denying her request for attorneys' fees, we will affirm the court's order.
d. Stupp's Request for Sanctions
Schilders contends that the family court was required to deny Stupp's request for section 271 sanctions, and therefore erred in reserving jurisdiction over the request. We disagree.
"[C]ourts have inherent authority to control their own calendars and dockets." (Walker v. Superior Court (1991) 53 Cal.3d 257, 267.) Further, we review a family court's order on sanctions under section 271 for abuse of discretion. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) We see no basis to conclude that the family court abused its discretion in taking Stupp's request for sanctions under submission and reserving jurisdiction over it, particularly in view of each party's allegations of long-standing patterns of bad conduct on the part of the other side.
Schilders's contentions that the family court erred are not persuasive. For example, Schilders contends that the family court should have denied the request for sanctions "because there was no evidence to support it," but she disregards the fact that the request was supported by declarations, and that the family court also had before it Schilders's own papers and the family court's files on the matter. Schilders also contends that the request for sanctions was procedurally deficient and therefore was not properly before the court. The only procedural requirement for the imposition of sanctions under section 271 is notice and an opportunity to be heard. (Davenport, supra, 194 Cal.App.4th at p. 1529.) Schilders had both.
In any event, Schilders has not shown any prejudice from the family court's reserving jurisdiction over Stupp's request rather than denying it. She simply asserts that the reservation of jurisdiction is "unjust" in the absence of the court reserving jurisdiction on Schilders's request, a contention that we find puzzling in view of the family court's statement at the hearing that it was taking both parties' requests for sanctions under submission and Schilders's failure to point to anything in the record to suggest that she ever objected to the entry of a written order that differed from the court's oral pronouncements and the minute order.
We conclude that the family court made no reversible error in reserving jurisdiction on Stupp's request for sanctions and therefore we will affirm the family court's order.
e. Mediation
Schilders argues that the family court erred by denying her request for mediation. She suggests that the family court could not properly deny her request to modify visitation unless it first required the parties to participate in mediation. Even if we assumed for purposes of argument that Schilders is correct in suggesting that every contested custody and visitation issue must be set for mediation before the court issues an order ruling on the issue, we would have no basis to reverse the family court's order because Schilders does not show any prejudice from the court's decision not to order mediation at the September 30, 2014 hearing. (Code Civ. Proc., § 475.) Schilders does not even attempt to argue that she was prejudiced, but merely asserts that by denying the request, "the court deprived Schilders of the opportunity to achieve some of the goals of resolving disputes by mediation." Moreover, Schilders concedes that a mediation was subsequently scheduled and has now occurred, so her appeal of this issue is moot, and we will dismiss it. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog Foundation) [an appeal will be dismissed as moot when, without fault by respondent, an event occurs that makes it impossible for the appellate court to grant any effective relief].)
f. Medical Appointments
Schilders argues that the family court erred by denying her request to modify the term in the stipulated judgment that only Stupp had authority to make the child's routine medical appointments. Her argument is frivolous.
"We review a ruling on a request for modification of a child custody order for abuse of discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 14.) 'Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. [Citation.] "Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " ' (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299.)" (Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 501.)
Schilders argues that because Stupp did not support his opposition to her request with admissible evidence, the family court erred in denying her request. The argument rests upon a mischaracterization of the burden of proof. It was Schilders's burden below to show that there had been a change in circumstances and that the modification she sought was in the child's best interests. (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 113-114.) She did neither, and makes no argument to the contrary.
It is not surprising that Schilders did not meet her burden to support the requested modification, because she did not actually ask for authority to make medical appointments in her request for orders or reply papers; instead, she requested an order that "[e]ach parent may take the child to a health-care provider as necessary during his or her custodial time." Thus, at the hearing, Schilders's counsel described the issue as whether Schilders could "take the child to health care appointments not strictly the father." Yet the existing order, incorporated in the stipulated judgment, was that Stupp would make medical appointments except in case of emergency, that appointments should alternate between each parent's custodial time, and that if it became "necessary to obtain emergency medical care for the child, the custodial parent at that time shall obtain the necessary medical services." At the hearing, it was only after the family court ascertained that both parents attended appointments that Schilders's counsel asked that Schilders be authorized to make routine appointments.
Because Schilders points to no evidence of changed circumstances that would support her requested modification, we have no basis to conclude that the family court abused its discretion in denying her request, and therefore we will affirm the family court's order. B. November 24, 2014 Temporary Custody Order
Schilders's contention that the family court "erred in deciding not to decide" her request is frivolous. The family court judge made a decision, which was to deny Schilders's request to modify the existing order.
1. Additional Background
The July 2012 temporary custody order under which Stupp and Schilders shared joint legal and physical custody of their child was in effect on November 18, 2014, when Stupp made an ex parte request for an order awarding him temporary sole legal custody of the child. The request was supported by declarations from Stupp and his attorney, and from an attorney for the San Carlos School District who described difficulties caused by Schilders and her attorney in scheduling meetings and making progress on the child's Individualized Education Plan (IEP). On November 24, the family court filed an order granting Stupp temporary sole legal custody, and scheduled a hearing for December 23, 2014.
After Schilders filed her opening brief on appeal, Stupp filed a motion to dismiss the appeal as to the order granting him temporary sole legal custody, on the grounds that the order was not appealable. Schilders opposed the motion, and Stupp filed a reply in which he argued that the order was not only nonappealable, but also moot. We took the motion under submission, and asked the parties to address mootness in their response and reply briefs on the merits, which they did.
2. Analysis
Schilders argues that the temporary custody order is appealable as a postjudgment order, pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). Stupp argues that the order is a nonappealable interlocutory order, and that in any event the appeal has been rendered moot by a further order of the court granting Stupp temporary sole legal custody, which was pronounced at the December 23, 2014 hearing and filed on February 6, 2015. We agree with Stupp, and therefore we will dismiss the appeal from this temporary custody order.
Schilders separately appealed the family court's February 6, 2015 order granting Stupp temporary legal custody.
Code of Civil Procedure section 904.1, subdivision (a)(2) permits the immediate appeal of postjudgment orders, but "this does not literally mean that any order after a previous judgment is appealable. To be appealable, a postjudgment order must meet certain requirements. [Citation.] Some postjudgment orders are not appealable because, 'although following an earlier judgment, [they] are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal. [¶] . . . [¶] . . . [Such postjudgment orders lack] finality in that they [are] also preparatory to later proceedings.' " (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403, citing and quoting Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-653.) Furthermore, it is well-established that temporary custody orders are not appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559 (Lester).)
Here, the family court's order was by its terms a temporary custody order: the court granted Stupp "temporary sole legal custody" of the party's child until further court order, and set a hearing on Stupp's application for December 23, 2014. Because the court's order is a temporary custody order preliminary to a later determination of Stupp's request for temporary custody, the order is not appealable. Furthermore, Schilders's appeal from the November 24, 2014 temporary custody order is moot, because the order was superseded by a February 6, 2015 temporary custody order, and we cannot grant Schilders any further relief on the November 24, 2014 temporary order. (Eye Dog Foundation, supra, 67 Cal.2d at p. 541.) Accordingly, we will dismiss Schilders's appeal from the November 24, 2014 temporary custody order.
Schilders's numerous arguments that the order is appealable lack merit. We have addressed most of them in previous opinions. We begin here with Schilders's contentions that the order is not temporary or preliminary to a later ruling. She contends that the order is not temporary because it does not state "that it is to last only until a particular date, any particular hearing, or the completion of any particular act." Schilders cites no authority to suggest that a temporary order must include such a statement and we are aware of none. Here, Stupp requested temporary legal custody, and asked the court to hear the issues on shortened time if it was not inclined to rule on an ex parte basis. In response, the family court issued an order granting Stupp sole legal custody that was by its terms temporary, and set a hearing on the issue to occur one month later. In these circumstances, we have no difficulty concluding that the family court's order is temporary. Similarly, where custody is subject to temporary orders, as it was here, we have no difficulty concluding that the family court's order is preliminary to a final ruling on custody.
See Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.]; Stupp v. Schilders (Oct. 25, 2016, A146733 and A147151) [nonpub. opn.]; Stupp v. Schilders (Jan. 24. 2017, A148811) [nonpub. opn.]. --------
Relying primarily on Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378 a case in which the Court of Appeal ruled that a postjudgment custody order was appealable, Schilders argues that because the November 24, 2014 order was made after contested hearings on custody, which were held in July 2012 and July 2014, it is an appealable modification of a final judgment. Enrique M., however, is distinguishable, because the orders appealed in that case were not temporary. (Id. at p. 1378.) The court in Enrique M. distinguished Lester as a case "concluding a temporary custody order is not appealable." (Ibid.) Because the orders here are temporary, they are like the nonappealable orders in Lester and unlike the appealable orders in Enrique M.
Schilders also argues that "public policy favors appealability of an order for legal custody of a child." Yet she fails to acknowledge authority to the contrary: "[I]f the law left any room for doubt whether temporary custody orders are appealable, policy considerations would resolve the doubt. The very nature of such orders compels the swiftest possible review of any challenge. The writ process, not the appeal process, is the way to get that review." (Lester, supra, 84 Cal.App.4th at p. 565.)
Schilders argues that the November 24, 2014 order is void because it was made in response to an improper motion for reconsideration under Code of Civil Procedure section 1008, and is therefore appealable. This argument fails because Schilders provides no authority to suggest that an otherwise nonappealable order becomes appealable by virtue of being void. Although Schilders claims that Avery v. Associated Seed Growers, Inc. (1963) 211 Cal.App.2d 613 stands for the proposition that an appellate court will reverse a void order or judgment rather than dismissing an appeal, she disregards the fact that Avery concerns an appealable judgment, and not a nonappealable order like the one here. (Id. at p. 630 [" 'It has long been the general rule in this state that where the law allows an appeal from a judgment or order, it is appealable even though void.' (Phelan v. Superior Court (1950) 35 Cal.2d 363, 366.)"].)
Schilders's argument that the appeal is not moot likewise lacks merit. Schilders contends that the November 24, 2014 temporary custody order was not superseded by the February 6, 2015 order because that subsequent order is itself a temporary order. She cites no authority to support that contention, and we are aware of none.
Because the November 24, 2014 order granting temporary sole legal custody to Stupp is a nonappealable temporary custody order because the appeal is moot, we will dismiss Schilders's appeal from that order.
DISPOSITION
The appeal from the November 24, 2014 temporary custody order, which was made in response to Stupp's November 18, 2014 request for order is dismissed. The appeal from the November 24, 2014 order denying Schilders's request for mediation is dismissed. The other orders filed by the family court on November 24, 2014, following the September 30, 2014 hearing, are affirmed. Respondent shall recover his costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.