Marriage of Cheung and Mak

 

 

 

 

 

 

 

 

 

 

 

Filed 12/12/13  Marriage of Cheung and Mak
CA1/5

 

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 FIVE

 

 

 
>

In re the Marriage of WENDY CHEUNG and ROLLAND MAK.
WENDY CHEUNG,             Respondent,                         v. ROLLAND MAK,             Appellant.	A138276               (>San Mateo> County             Super. >Ct.> No. FAM0108668)

 

            Appellant
Rolland Mak appeals from an order regarding child custody and visitation rights
and directing him to pay certain unpaid costs relating to court-ordered
therapy.  We find the order nonappealable
and dismiss the appeal.

BACKGROUND

            In
earlier proceedings, the marriage of Mak and respondent Wendy Cheung was formally
terminated, custody of their child was awarded to Cheung, and Mak was granted
certain visitation rights.  Judgment
issued in April 2011.

            In
2011, the child (then 11 years old) stopped attending the visitation sessions
because the child no longer wanted to see Mak. 
In December 2011, the trial court appointed a reunification therapist
for the child to determine whether it would be in the best interest of the
child to engage in reunification with Mak at that time.  The December 2011 order provided for Mak to
pay the full cost of the reunification therapy. 
Mak paid for some, but not all, of the therapy costs; the unpaid amount
was $720.

            In
December 2012, Mak filed a motion to modify custody and visitation
arrangements, and to modify the order requiring Mak to pay the reunification
therapist’s costs to provide the unpaid costs be shared between Mak and
Cheung.  In March 2013, after a hearing,
the trial court issued an order awarding sole legal and physical custody to
Cheung, terminating visitations with Mak pending further court orders, and
continuing the child’s meetings with the reunification therapist “as deemed
clinically appropriate by the therapist.” 
The order also provided Mak “owes therapist $720, subject to
realloc[a]tion.”  The order continued the
matter to May 2013 for “Trial re[g]arding child custody, visitation and sharing
cost of reunification program.”

            Mak
appealed from this March 2013 order.  In
a separate and unconsolidated appeal, Mak has appealed from a May 2013 order
issued after the trial scheduled in the March 2013 order.

DISCUSSION

            Mak
challenges the March 2013 order’s provisions regarding custody, visitation, and
payment to the reunification therapist for services rendered.  Cheung did not file a response brief.

            “A
reviewing court has jurisdiction over a direct appeal only when there is (1) an
appealable order or (2) an appealable judgment.  [Citation.]” 
(Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).)  Code of Civil
Procedure section 904.1href="#_ftn1"
name="_ftnref1" title="">[1]
is “ â€˜[t]he principal statute [that] defines the scope of appellate
jurisdiction in the Court of Appeal . . . .’  [Citation.]” 
(Mercury Interactive Corp. v.
Klein (2007) 158 Cal.App.4th 60, 75.)

            Mak
correctly recognizes the order is not a final judgment under section 904.1,
subdivision (a)(1), as his statement of appealability does not rely on that
provision.  (See Griset, supra, 25 Cal.4th at p. 697 [appealable final judgment
is “the final determination of the rights of the parties”].)

            He
also does not rely on section 904.1, subdivision (a)(2), authorizing appeals of
orders issued after final judgment. 
This, too, is correct.  “[A]n
essential element of an appealable postjudgment order is that the order be one
which is not preliminary to later proceedings . . . .”  (In re
Marriage of Levine (1994) 28 Cal.App.4th 585, 589.)  The March 2013 order expressly contemplates
future proceedings on “child custody, visitation and sharing cost of
reunification program,” and provides the $720 debt is “subject to realloc[a]tion.”  The order is thus “preliminary to later
proceedings” and is not appealable pursuant to section 904.1, subdivision
(a)(2).

            Mak’s
statement of appealability claims the order is appealable under section 904.1,
subdivisions (a)(3) through (a)(13).  But
none of the cited subdivisions apply to the order.  Although section 904.1, subdivision (a)(10)
authorizes appeals from “an order made appealable by the provisions of
. . . the Family Code,” Mak does not identify any Family Code
provision making the order appealable. 
(See Lester v. Lennane (2000)
84 Cal.App.4th 536, 558 [“The parties have cited no statute expressly making
temporary custody orders appealable, and we have found none.”].)



 

DISPOSITION

            The appeal
is dismissed.  Cheung is awarded her
costs on appeal.

 

 

 

 

                                                                                                                                                           

                                                                                    SIMONS,
J.

 

 

 

We concur.

 

 

 

                                                                       

JONES, P.J.

 

 

 

                                                                       

NEEDHAM, J.