A.G. v. A.M.
Filed 7/17/14 A.G. v. A.M.
CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
A.G.,
Plaintiff and
Respondent,
v.
A.M.,
Plaintiff and
Appellant.
G047539
(Super. Ct.
No. 09P001332)
O P I N I O
N
Appeal from a judgment
of the Superior Court of Orange County,
Lon F. Hurwitz, Judge. Appeal dismissed.
A.M., in pro. per., for
Appellant.
No appearance for
Respondent.
A.M., an incarcerated person
acting in propria persona, filed this
appeal seeking review of two orders issued by the
untimely as to the first order and the second order is not an appealable
order. Consequently, we dismiss the
appeal for lack of jurisdiction.
Procedural Background
The underlying family
law case began with a petition to establish A.M.’s paternity as to E.M., a male
child of his former girlfriend, A.G. (“Motherâ€).
Prison when Mother filed a petition on October
16, 2009, for an order establishing A.M.’s
E.M. and his failure to provide child support, as well as an order giving Mother
sole legal and physical custody of E.M. and denying A.M. visitation rights. On November
30, 2009, the family law court granted Mother’s petition in its
entirety. In this initial proceeding,
and throughout all the family law proceedings that followed, neither party was
represented by counsel.
On May
6, 2010, while A.M. was still in prison, Mother obtained an
ex
parte domestic violence temporary restraining
order against A.M., alleging he made a threatening phone call to her two
months earlier and had physically abused her in the past. The hearing date was set for June 3, 2010, but was continued
several times.
On June 29, 2010, A.M. filed a motion to modify
custody, seeking joint physical and legal custody of E.M. and visitation rights. He also requested an order for a “DNA paternity
test other child†to determine if Mother’s female child born in 2007 was his
biological daughter. Mother was married
to her current husband at the time the female child was born, but A.M. argued
in his motion the child was conceived before
the marriage and while A.M. and Mother “were still living together[.]†Consequently, A.M. asserted, “there exists a
high probability†A.M. was the little girl’s biological father.
On August 3, 2010, the family law court held a
hearing on Mother’s application for a restraining order. Based on Mother’s testimony, the court found “acts
of domestic violence have occurred between the parties†and A.M. was the
perpetrator. The court issued a permanent
restraining order against A.M. until August
3, 2015. The court also
ordered Mother would have sole legal and physical custody of E.M., and A.G.
“shall have no visitation at this time.â€
On November 29, 2010, the family law court held a
hearing on A.M.’s motion for modification
of custody and visitation, and for DNA paternity testing. A.M. was out of prison by then and appeared
at the hearing. Both he and Mother
testified. The minute order from the
hearing stated the court “deems [A.M.’s] [m]otion re: [m]odification as a [m]otion
to [v]acate the [r]estraining [o]rder dated 8/03/10.†The court
granted the motion to vacate and issued a new permanent restraining order
against A.M. for three years, until November
29, 2013.
The November 29, 2010, minute order stated the court
had reviewed Mother’s declaration, A.G.’s response, and the testimony. Based on this evidence, the court found domestic
violence had occurred, A.M. was the perpetrator, and Mother and E.M. were the
victims. The court ordered A.M. to
attend a 10-week parenting
program, to begin within 30 days, and to provide the court with the names
of three people “willing to act as a monitor for visitation.†The court continued the matter to February 28, 2011, at which time A.M.
was to bring proof of enrollment and a progress report, as well as the list of
potential visitation monitors. The
court also specifically denied A.M.’s “request for DNA testing[.]â€
On February 28, 2011, A.M. failed to appear for the
continued hearing on his motion to modify custody and visitation, and the
family law court ordered that “[a]ll prior orders shall remain in effect.†The clerk’s transcript on appeal contains
multiple copies of a variously dated “motion requesting new hearing†in which
A.M. apparently attempted to inform the family law court of the reason he
missed the February 28, 2011, continued hearing: He was in jail at the time, having been
arrested two weeks before the hearing. The
last of these variously dated copies of the “motion requesting new hearing†complained
the clerk of the family law court had repeatedly rejected his motion because of
his failure to serve the motion on Mother, whose address was confidential
because of the permanent restraining order in effect.
On May 16, 2012, A.M. succeeded in filing an order
to show cause re modification of custody and visitation, with a hearing date
set for August 13, 2012. The record contains a family law court form
“declaration of non-appearance for scheduled mediation appointmentâ€
(capitalization omitted) stating Mother failed to appear for the mediation
appointment on August 6, 2012,
which was preparatory to the August 13 hearing.
The minute order from
the August 13, 2012,
hearing indicates A.M. made his appearance for the hearing “[i]n custody.†Whether he had been transported from the jail
or appeared telephonically is unclear. Because
A.M. did not request a reporter’s transcript for his appeal, we must rely on
the clerk’s transcript to learn what transpired at the hearing.
The August 13, 2012, minute order reflects the
hearing lasted 18 minutes and contains the following brief summary of what happened: “Court finds that there has not been valid
service on the petitioner [Mother]. [¶] Court and the respondent [A.M.] engage in
discussions. [¶] Respondent’s request is denied at this time.â€
On October 16, 2012, A.M. filed a notice of appeal
stating he appeals from the order entered on August 13, 2012, and “all orders made against [A.M.]†in
the underlying case.
Discussion
We begin by noting a
self-represented litigant on appeal “is to be treated like any other party and
is entitled to the same, but no greater consideration than other litigants and
attorneys. . . . Thus, as is the case with attorneys, pro. per. litigants must
follow correct rules of procedure.†(
quotes omitted].) Although
self-represented litigants are not entitled to special treatment, they are
entitled to the same treatment as a represented party. (Gamet v.
Blanchard (2001) 91 Cal.App.4th 1276, 1284.)
A fundamental rule of
appellate procedure is that the appeal must be timely filed from an appealable
order or judgment. (See
Weather Ins. Agency, Inc. (1997) 15 Cal.4th
51, 56 [timely filing
of an appeal is a prerequisite to the exercise of appellate jurisdiction]; see
also Jennings v. Marralle
(1994) 8 Cal.4th 121, 126 [“The existence of an appealable judgment is a
jurisdictional prerequisite to an appealâ€].)
Unfortunately for A.M., his appeal fails
to meet this initial, crucial requirement.
Order Denying the Request for DNA Paternity Testing
appeal states he appeals from “all orders made against†him in the underlying
case, his opening brief challenges only two orders.
denying his request for DNA testing to determine whether he is the father of
the female child born to Mother in 2007.
A.M. mounts a vigorous assault on that order, asserting a host of
errors, including the denial of his due process rights under the 14th Amendment
to the United States Constitution. A.M.’s
passionate arguments are to no avail, however, because the appeal is untimely
as to this particular order.
name="_ftnref3" title="">[3]
Rule 8.104(a) of the California
Rules of Court establishes the time within which a party may file an appeal. Under the rule, the latest a party may file a notice of appeal is 180 days after entry of judgment.
(Cal. Rules of Court, rule 8.104(a)(1)(C), (e) [“‘judgment’ includes an
appealable orderâ€].) The time for
appealing a judgment or order is jurisdictional; once the deadline expires, the
appellate court has no power to entertain the appeal and it must be dismissed. (Hollister Convalescent Hosp., Inc.
v. Rico (1975) 15 Cal.3d 660, 674; Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 762; Cal. Rules of Court, rule 8.104(b).)
The family law court
denied A.M.’s motion for DNA paternity testing on November 29, 2010. A.M. did not file his notice of appeal until October 16, 2012, long past the
latest possible deadline for an appeal from that order. (Cal. Rules of Court, rule 8.104(a)(1)(C).) Consequently, we have no jurisdiction to
entertain A.M.’s appeal from the order denying his motion for paternity
testing.
Order Denying the Motion for Modification of Custody and Visitation
The second order
addressed in A.M.’s opening brief, and the only one specifically identified in
the notice of appeal, was the August
13, 2012, order denying A.M.’s request for modification of custody
and visitation. While the notice of
appeal was timely as to this order, a different jurisdictional problem
precludes appellate review: The August 23, 2012, order was not an appealable
order.
“Generally there is no
right of appeal except from a final judgment or final order.†(Marsh
v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297.) “The existence of an appealable judgment is a
jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its
own initiative whenever a doubt exists as to whether the trial court has
entered a final judgment or other order or judgment made appealable by Code of
Civil Procedure section 904.1. [Citations.]â€
(Jennings v. Marralle (1994) 8
Cal.4th 121, 126-127.)
The face of the August 13, 2012, order reveals it is
not a final adjudication of custody rights between the parties. After reflecting the court’s finding Mother
did not receive valid service of the motion, the order simply states A.M.’s
“request is denied at this time.†(Italics added.) Such language does not constitute a final decision
on the merits. To the contrary, the
family law court denied the motion to modify custody and visitation simply for lack
of valid service. Consequently, A.M. is
not precluded from filing another motion seeking identical relief, with proper
service on Mother.
Importantly, the
existing custody ruling A.M. had attempted to modify by his motion was a
temporary custody order. The November
29, 2010, order awarding sole legal and physical custody to Mother and denying
visitation to A.M. required A.M. to attend a 10-week parenting program and to
provide the family law court with proof of enrollment and progress, as well as the
names of three potential custody monitors, at the continued hearing set for
three months later (February 28, 2011). Thus,
the order clearly held open the possibility of a future change in visitation
and custody. Had A.M. not landed in jail
before the continued hearing date, he might have obtained some limited
visitation upon proof of compliance and good progress.
“A temporary custody
order is interlocutory by definition . . . . Code of Civil Procedure section
904.1 bars appeal from interlocutory judgments or orders ‘other than as
provided in paragraphs (8), (9), and (11). . . .’ (Code Civ. Proc., § 904.1,
subd.
(a)(1)(A).) Temporary custody orders are
not listed in any of those paragraphs. Therefore this statute precludes the
appealability of such orders.†(
536, 559-560, fn. omitted.)
“There are important
policy reasons why domestic violence orders should not be treated as the
functional equivalent of final judicial custody determinations. Domestic violence orders often must issue
quickly and in highly charged situations. The focus understandably is on protection and prevention, particularly
where the evidence concerning prior domestic abuse centers on the relationship
between current or former spouses. Treating
domestic violence orders as de facto final custody determinations would unnecessarily
escalate the issues at stake, ignore essential factors (such as the children’s
best interest) and impose added costs and delays. It also may heighten the temptation to misuse
domestic violence orders for tactical reasons.†(Keith R. v. Superior Court (2009)
174 Cal.App.4th 1047, 1056.)
Because the August 13, 2012, order denying A.M.’s
motion for modification of custody and visitation was not an appealable order,
we lack jurisdiction to consider the appeal from that order.
Disposition
The appeal is dismissed for
lack of jurisdiction. In the interests
of justice, each side shall bear its own costs on appeal.
O’LEARY,
P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title="">[1] Because this case involves
two minor children, we follow the usual practice of protective nondisclosure of
the parties’ names. For reasons of
clarity, given the similarity of the initials of appellant and respondent, we
refer to A.G. as “Mother.â€
name="_ftn2" title="">[2] Mother did not file a
respondent’s brief, so the opening brief is the only brief filed.
