Marriage of Bloom

Marriage of Bloom

Filed 11/7/08 Marriage of Bloom CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of GINA BLOOM and BARRY BLOOM.
GINA BLOOM, Respondent, v. BARRY BLOOM, Appellant.	A121564 (San Francisco County Super. Ct. No. FL-042214)

Barry Bloom (Barry) attempts to appeal an order of January 8, 2008, granting Gina Bloom (Gina) an increase in child support plus $2,000 in attorney fees and costs. His main argument is that the court erroneously based its rulings on his past earnings rather than a recent period in which he earned less. We find ourselves compelled to dismiss the appeal for lack of a final order.

Background

The parties secured a judgment of dissolution in 2004, premised on a marital settlement agreement, and a printout of the register of actions shows that they have been in litigation ever since. The current matter began when Gina sought modification of child support, plus attorney fees, in October 2007. Barry filed a responsive declaration in December. He acted as his own counsel below, with Gina ultimately represented by counsel Kathryn Brown. Each party retains that status in this court.

The substance of the parties positions below is unnecessary to relate, but the matter was heard by Judge Donald Sullivan on January 8, 2008. (All unspecified further dates are in 2008.) Judge Sullivan increased monthly child support to $1,969, retroactive to Ginas October 2007 filing, and granted her fees and costs of $2,000. Barry paid the fees and costs immediately, and the court, accepting the parties calculation of arrearages, ordered that Barry pay them over three months, beginning February 2008, in installments of $505.55.

Important to the appealability problem we confront, the court asked Ginas counsel, And youll submit the order? Counsel replied, Yes, I will. It appears that the order was submitted by counsel but never signed or filed.

Nevertheless, Barry filed a notice of appeal on May 1. His standard form notice specifies no date for any judgment or order but has a mark in the box designated, Other (describe and specify code section that authorizes this appeal). His notice gives no code section but cites, without a page reference, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688 (Griset). His later notice designating the record on appeal requests a transcript of the January 8 hearing.

Barrys civil case information statement (CCIS), filed June 16, gives the date of entry of judgment or order as January 8, without a date for notice of entry of judgment, but attaches several documents. One is a letter of January 29 to the trial court from Ginas counsel, Kathryn Brown, which states that an attached proposed order was sent to Barry on January 16, and that Brown received no response or proposed corrections from him, even after a January 22 follow-up phone message. Accordingly, she wrote, I request that the court sign the proposed Findings and Order After Hearing, returning a filed endorsed copy in the enclosed self-addressed stamped envelope. I will serve Mr. Bloom with the filed endorsed Order upon receipt.

The CCIS also has a letter from Barry to counsel Brown stating: On Thursday, March 6th, I called Dept. 403 to ask for a signed copy of the court order you sent on January 29th. I was told that they had no record of entry for the proposed Findings and Order. [] I would appreciate your attention to this matter. A reply letter of March 10, from Brown, states in part: There is nothing I can do to speed up the court process of signing and returning the Findings and Order After Hearing that I submitted on January 29 . . . . [] Had you signed and returned the [proposed order], it is possible that the process would have gone more quickly. [] As soon as I receive a filed endorsed copy . . . , I will be sure to mail it to you.

Barry filed his opening brief on July 29, clearly aware that there was still no appealable order and evidently having done nothing further to secure one. His brief acknowledges lack of a final decision and that an order must be signed to be final. He argues, however, that an exception applies because an actual controversy exists in that he must set aside substantial sums of money to meet the oral ruling, and that the matter is justiciable because it is capable of repetition (citing Roe v. Wade (1973) 410 U.S. 113; SEC v. Medical Committee for Human Rights (1972) 404 U.S. 403; United States v. Munsingwear (1950) 340 U.S. 36; So. Pac. Terminal Co. v. Int. Comm. Comm. (1911) 219 U.S. 498). He also asserts, without case or code citation, that Judge Sullivan has tried to prevent reversal on appeal by not issuing an order and that this constitutes grounds for disqualification.

Ginas respondents brief, filed August 14, acknowledges the absence of a signed order, explaining, As of this date, the Order drafted by Respondents counsel has not yet been signed, however, the Register of Actions indicates Mini-Minutes exist for the hearing held January 8 . . . . The brief cites no pertinent authority but adds, Respondent does not dispute the appealability of the Order.

The continued absence of an order is implicitly affirmed in Barrys reply brief of September 3. He adds a heading and brief argument, without citation of authority beyond a broad reference to the Council on Judicial Performance, that Judge Sullivans failure to issue an order within 90 days leaves his tentative ruling expired and requires that it be preemptively stricken by this court. Our own, more recent inquiry of the superior court clerks office confirms that there is still no written order on file.

Discussion

Neither party urges dismissal for lack of an appealable order, but the question goes to our jurisdiction, [leaving us] dutybound to consider it on our own motion (Olson v. Cory (1983) 35 Cal.3d 390, 398), and dismiss on our own motion if necessary (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674). That Gina does not dispute appealability does not matter, for jurisdiction cannot be conferred by the consent or stipulation of the parties, estoppel, or waiver (Estate of Hanley (1943) 23 Cal.2d 120, 123; In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 114), by the parties good intentions (Planning & Conservation League v. Department of Water Resources (1998) 17 Cal.4th 264, 274), or by the relative merits of their other arguments (In re Frederick E. H. (1985) 169 Cal.App.3d 344, 348).

The United States Supreme Court decisions that Barry cites, about justiciability and issues capable of repetition yet evading review, do not help with the problem we confront here. Those cases concern mootness, i.e., whether and when a court should decide issues over which it unquestionably had jurisdiction but, due to events arising during the course of the litigation, may no longer be able to grant specific relief. (See, e.g., Roe v. Wade, supra, 410 U.S. at pp. 123-125; SEC v. Medical Committee for Human Rights, supra, 404 U.S. at pp. 405-407; United States v. Munsingwear, supra, 340 U.S. at pp. 39-41; So. Pac. Terminal Co. v. Int. Comm. Comm., supra, 219 U.S. at pp. 514-516.) The question here is not mootness, but whether this court has jurisdiction in the first place. Further, we do not see how Barrys unexplained citation to the Griset case helps him. The ultimate holding there was that law of the case foreclosed a second appellate consideration of an issue following a final judgment in a first appeal. (Griset, supra, 25 Cal.4th at pp. 696-702.) As will be seen (post), Griset also works against Barry more generally.

A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment, and a trial court order is appealable when it is made so by statute. (Griset, supra, 25 Cal.4th at p. 696.) A postjudgment order modifying child support is statutorily appealable (Code Civ. Proc.,  904.1, subd. (a)(2); City and County of San Francisco v. Stanley (1994) 24 Cal.App.4th 1724, 1727; County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 111 [former Code Civ. Proc.  904.1, subd. (b)]), but the problem here is that we have no signed order, just an oral rendition. Gina points to a register-of-actions entry that shows  Mini-Minutes  for that date. We do not have those minutes before us, but even if we did and they reflected the ruling, it is settled that minutes do not satisfy the need for a signed and filed order. (In re Marriage of Jones (1998) 60 Cal.App.4th 685, 689, fn. 2; cf. Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 368-369 [unsigned minute order granting dismissal does not suffice for dismissal order]; Safeway Stores, Inc. v. Brotherhood of Teamsters (1978) 83 Cal.App.3d 430, 434, fn. 1 [memorandum of decision may suffice if signed].)

Had either party secured a proper order, or had the court issued one on its own, we would have discretion to liberally construed Barrys premature notice of appeal as applying to the later order (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-21; In re Marriage of Jones, supra, 60 Cal.App.4th at p. 689, fn. 2), but that never happened. Instead, despite awareness of the appealability problem since the January ruling, the parties have evidently taken no steps to secure an order beyond the letter of January 29 by Ginas counsel that submitted a proposed order to the court.

Were the parties unaware of the defect, we might be tempted, again completely within in our discretion, to take the extraordinary (and criticized) measure of saving the appeal by ordering the parties to obtain an order and submit to us a certified copy within a specified time. (Shpiller v. Harry Cs Redlands (1993) 13 Cal.App.4th 1177, 1179-1180.) That option is unwarranted here, where the parties have known of the problem all along and chosen to proceed without the needed order. Barrys appellate rights remain intact since he presumably remains free to appeal from a proper order. (Id. at p. 1180.)

As for Barrys accusation that Judge Sullivan has unethically avoided issuing an order so as to perpetuate a wrong against him and prevent being reversed on appeal, the charge is scurrilous on this record. All that appears is that the judge, for reasons not shown, failed to respond to the January 29 letter request by Ginas counsel.

Disposition

The appeal is dismissed.

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Kline, P.J.

We concur:

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Haerle, J.

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Richman, J.

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