Filed 6/24/26 Marriage of Feldmann CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of CATHERINE
M. and ROGER S. FELDMANN.
CATHERINE M. FELDMANN,
G065621
Respondent,
(Super. Ct. No. 20D006660)
v.
OPINION
ROGER S. FELDMANN,
Appellant.
Appeal from orders of the Superior Court of Orange County, Paul
Minerich, Judge. Dismissed.
Roger S. Feldmann, in pro. per., for Appellant.
Stegmeier, Gelbart, Schwartz & Benavente and Robert A.
Benavente for Respondent.
Roger S. Feldmann purports to appeal from the trial court’s April
7, 2025 orders modifying the amount of temporary spousal and child support
he owed in arrearages and the monthly spousal support he was prospectively
required to pay his former spouse, Catherine M. Feldmann.1 For the reasons
we explain, because the court’s April 7, 2025 orders were made without
prejudice and expressly reserved the court’s jurisdiction with respect to
issues directly bearing on Roger’s support obligation, they did not constitute
an appealable final order. We therefore dismiss this appeal for lack of
jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2020, Catherine filed a petition for the dissolution of
the parties’ 33-year marriage. At the time this action was initiated, only one
of the parties’ children was still a minor. In the petition, Catherine sought, as
relevant to this appeal, an award of child support, spousal support, and
attorney fees and costs.
In January 2021, the parties entered into a stipulation and
proposed order whereby they agreed, “[w]ithout prejudice and subject to
retroactive modification and/or reimbursement,” Roger would pay Catherine
monthly child support in the amount of $2,386 and monthly spousal support
in the amount of $1,264. The stipulation added: “The foregoing temporary
orders for child and spousal support are without prejudice to either party and
subject to retroactive modification and/or reimbursement. The[c]ourt reserves
jurisdiction over such retroactive modification and/or reimbursement to
October 11, 2020.” The trial court signed the stipulation’s proposed order.
1 We refer to the parties by their first names for clarity; we intend
no disrespect.
2
In August 2021, the parties signed another stipulation and
proposed order by which they agreed “[w]ithout prejudice and subject to
retroactive modification and/or reimbursement,” Roger would pay Catherine
monthly child support in the decreased amount of $2,287 and monthly
spousal support in the increased amount of $4,213. The stipulation further
provided: “The foregoing temporary orders for child and spousal support are
without prejudice to either party and subject to retroactive modification
and/or reimbursement. The [c]ourt reserves jurisdiction over such retroactive
modification and/or reimbursement to October 11, 2020.” The trial court
signed the stipulation’s proposed order.
In early 2024, the parties’ minor child reached the age of
majority, ending Roger’s obligation to pay Catherine child support in June
2024. On November 26, 2024, Catherine filed a request for order seeking,
inter alia, an increase in monthly spousal support. In her accompanying
declaration, Catherine sought an increase in spousal support from $4,213 per
month to a guideline temporary spousal support order in an amount of no
less than $6,500 per month. She further requested the trial court require
Roger to pay the amount of modified spousal support retroactively from the
date she filed her request for order.
Roger filed a responsive declaration opposing Catherine’s request
for order. In his declaration, he stated, inter alia, that as the existing order
regarding support “reserves retroactivity,” “[w]e should not spend limited
funds re-addressing a temporary support order when we are at the eve of
obtaining [t]rial dates.”
Following the hearing on Catherine’s request for order, in a
handwritten order that was signed by the trial court and filed on April 7,
2025 (the handwritten order), the court made several orders regarding
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Roger’s support obligations “without prejudice.” (Underscoring omitted.)
First, the court increased Roger’s monthly spousal support obligation to
$5,936, commencing January 1, 2025. Second, after calculating Roger’s 2024
income, the court concluded Roger owed arrears for 2024 in the amount of
$7,140 for child support and $37,032 for spousal support. Third, the court
concluded that “the retroactive commencement of the prospective spousal
support order . . . created an arrearage” of $1,723 per month from January 1,
2025 to March 31, 2025, “for a total owed of $5,169 at [March 31, 2025].”
Fourth, the court stated Roger’s 2024 income, as calculated by the court, did
not take into account a $300,000 bonus he received at the end of 2024 and
that “this [was] not a collateral estoppel finding of 2024 income.” Fifth, the
court ordered “[r]etroactivity over child support and spousal support [was]
reserved until August 2021 per the prior order.” And finally, the court
ordered it would “reserve on the issue of whether the mandatory retirement
deduction on the attached Xspouse is or is not ultimately to be considered as
income available for support.”2
The trial court also issued a minute order dated April 7, 2025
(the minute order) which expressly “incorporated herein by reference” the
handwritten order “with its further orders.” In the minute order, the court,
inter alia, reiterated it “reserve[d] on making a finding that [Roger]’s
mandatory deductions for his pension [was] attributable as income for
support and reserve[d] retroactivity.” The court also therein stated it
“intend[ed] to continue this [r]equest for [o]rder to preserve retroactivity,”
pursuant to In re Marriage of Gruen (2011) 191 Cal.App.4th 627 and In re
2 “Xspouse is a computer program ‘used to calculate guideline
child support under the formula required by Family Code section 4055.’” (In
re Marriage of Alan Freeman (2025) 110 Cal.App.5th 406, 411, fn. 4.)
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Marriage of Freitas (2012) 209 Cal.App.4th 1059 (Freitas), and “order[ed] this
matter continued to May 1, 2025 . . . as a remote trial setting conference and
to preserve retroactivity.”
Roger appealed from the handwritten order and the minute
order.
DISCUSSION
“Appellate courts have jurisdiction over a direct appeal, like the
present one, only where there is an appealable order or judgment. [Citation.]
‘The right to appeal is wholly statutory.’ [Citations.] [¶] Under Code of Civil
Procedure section 904.1, subdivision (a)(1), subject to statutory exceptions
inapplicable here, an appeal may be taken only from ‘a judgment’ of the
superior court. The judgment contemplated by this statute is ‘“‘one final
judgment in an action . . . which in effect ends the suit in the court in which it
was entered, and finally determines the rights of the parties in relation to the
matter in controversy.’”’ [Citations.] The intent of this statute is to codify the
‘“final judgment rule,”’ part of our common law, by which ‘“a[ppellate] review
of intermediate rulings should await the final disposition of the case”’ in
order to avoid ‘“piecemeal disposition and multiple appeals in a single
action.”’ [Citations.] ‘“‘[W]here anything further in the nature of judicial
action on the part of the court is essential to a final determination of the right
of the parties, the decree is interlocutory’”’ and thus ‘not appealable.’” (In re
Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1342.)
A family court order requiring a party to pay temporary monthly
spousal support, support arrears, and attorney fees and costs in an ongoing
action “is interlocutory and, thus, not appealable under the final judgment
rule.” (In re Marriage of Garcia, supra, 13 Cal.App.5th at p. 1343.) But
“[w]hen a court renders an interlocutory order collateral to the main issue,
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dispositive of the rights of the parties in relation to the collateral matter, and
directing payment of money or performance of an act, direct appeal may be
taken. [Citations.] This constitutes a necessary exception to the one final
judgment rule. Such a determination is substantially the same as a final
judgment in an independent proceeding.” (In re Marriage of Skelley (1976)
18 Cal.3d 365, 368.)
In In re Marriage of Skelley, supra, 18 Cal.3d at page 368, the
California Supreme Court “looked to the substance of an order pendente lite
rather than to chronology or to form,” and concluded that “temporary support
orders [were] directly appealable.” However, “[a] reservation of jurisdiction
usually will render a temporary support award to be nonfinal and, hence, not
directly appealable.” (Last v. Superior Court (2023) 94 Cal.App.5th 30, 44
(Last); citing Freitas, supra, 209 Cal.App.4th at pp. 1074–1075.)
Here, the trial court’s orders modifying prospective spousal
support, retroactively increasing spousal and child support, and ordering
Roger to pay arrears with respect to both spousal and child support are
contained in the handwritten order and the minute order. The court’s
support-related orders in the handwritten order are prefaced with the
statement: “The [c]ourt makes the following orders without prejudice”
(underscoring omitted), reflecting the court’s intention that they are
potentially subject to change and thus not necessarily the court’s final orders
on the subject in the action. (See e.g., Chavez Reyes v. Hi-Grade Materials Co.
(2025) 110 Cal.App.5th 1089, 1100 [“‘[b]y definition, a voluntary dismissal
without prejudice is not a final judgment on the merits’”].)
The lack of finality of the handwritten order is further reflected
by the trial court’s statement that its calculation of Roger’s 2024 average
monthly income as $41,867 did not take into account a $300,000 bonus he
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received in December 2024 and its order was “not a collateral estoppel finding
of 2024 income.” Again, this suggested the issue of the proper calculation of
Roger’s 2024 income for support purposes had yet to be definitively
determined. Furthermore, the handwritten order expressly stated
“[r]etroactivity over child support and spousal support [was] reserved until
August 2021 per the prior order,” and also that “[t]he court [would] reserve on
the issue of whether the mandatory retirement deduction on the attached
Xspouse [was] or [was] not ultimately to be considered as income available for
support.” (Capitalization omitted.)
Consistent with this intention, the minute order expressly
incorporated the handwritten order, and reiterated: “The [c]ourt reserves on
making a finding that [Roger]’s mandatory deductions for his pension is
attributable as income for support and reserves retroactivity.” That minute
order also stated that “the court intend[ed] to continue [the] request for order
to preserve retroactivity pursuant to [In re Marriage of] Gruen[, supra, 191
Cal.App.4th 627] and . . . Freitas[, supra, 209 Cal.App.4th 1059]” and that
“the court order[ed] th[e] matter continued to May 1, 2025[,] at 8:30 [a.m.] in
department L53 as a remote trial setting conference and to preserve
retroactivity.” (Some capitalization omitted and italics added.)
Like the court in Last, supra, 94 Cal.App.5th 30, the trial court in
the instant case repeatedly stated it generally reserved jurisdiction regarding
its ability to make retroactive modifications with respect to support. Unlike
the court in Last, the trial court here also specifically reserved jurisdiction
regarding its findings attendant to determining Roger’s controlling income,
such as whether to factor in his $300,000 bonus and mandatory pension
deductions. Of course, the final determination of Roger’s support obligations
is dependent on the final determination of his income. Given the court’s
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qualifications in its orders that they are made without prejudice and the
court’s general and specific reservations of jurisdiction over issues directly
affecting Roger’s past and ongoing support obligations, we conclude the
orders do not constitute a final order on the issue of support and thus are not
appealable.
Noting the reservation of jurisdiction to modify spousal support
retroactively generally renders a temporary support award not final and thus
not directly appealable, the appellate court in Last, supra, 94 Cal.App.5th 30
exercised its discretion to treat the appeal taken from the support order as a
petition for writ of mandate. (Id. at pp. 42, 44.) “We may treat an improper
appeal as a petition for a writ of mandate in unusual circumstances.
[Citation.] It is appropriate to treat an appeal from a nonappealable
judgment as a petition for extraordinary writ when requiring the parties to
wait for entry of final judgment might lead to unnecessary trial proceedings,
the briefs and the record include the necessary elements for a writ of
mandate, there is no indication the trial court would appear as a party in the
writ proceeding, the appealability of the order was not clear, and all parties
urge the court to decide the issue rather than dismiss the appeal.” (Turman
v. Superior Court (2017) 17 Cal.App.5th 969, 979.)
At the April 7, 2025 hearing, Roger’s counsel repeatedly argued
the court should not decide Catherine’s request for order because they were
on the eve of trial in this marital dissolution case. This, therefore, is not a
case where the parties would have to wait a long period of time for the final
resolution of all the issues in the ongoing marital dissolution action. As
Catherine did not file a respondent’s brief, this is not a situation where the
issues are fully briefed and “all parties urge the court to decide the issue
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rather than dismiss the appeal.” (Turman v. Superior Court, supra,
17 Cal.App.5th at p. 979.)
As this case does not present unusual circumstances warranting
our treating this appeal as a petition for writ of mandate, we do not exercise
our discretion to do so and dismiss the appeal.
DISPOSITION
The appeal is dismissed. In the interest of justice, no party shall
recover costs on appeal.
MOTOIKE, P. J.
WE CONCUR:
MOORE, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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