Marriage of Gebelin
Filed 5/18/11 Marriage of Gebelin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
| In re Marriage of TIMOTHY and TANA GEBELIN. | |
| TIMOTHY GEBELIN, Appellant, v. TANA GEBELIN, Respondent. | G043878 (Super. Ct. No. 03D008358) O P I N I O N |
Appeal from orders of the Superior Court of Orange County, Michael J. Naughton, Judge. Dismissed.
The Law Offices of Michael R. Harlin and Michael R. Harlin, for Appellant.
Law Office of Patrick A. McCall and Patrick A. McCall for Respondent.
INTRODUCTION
Timothy Gebelin appeals from two orders of the superior court concerning a child support matter. The first is an order denying a motion to reinstate his motion to modify his child support payments, which had been taken off calendar four months earlier. The second is an order denying his motion for reconsideration of the first motion. Because neither order is appealable, we dismiss the appeal.
FACTS
Timothy and Tana Gebelin shared custody of their daughter equally until May 2009, when the court ordered Tana to have primary custody. On May 29, 2009, Tana filed an order to show cause (OSC), requesting a reassessment of child support in light of the new custody arrangement. She also requested attorney fees. Timothy filed his responsive declaration on July 7, 2009, also asking for modification of child support, and he opposed Tana’s fee request. The hearing was set for September 24, 2009.
Just before the hearing. Timothy and his counsel parted ways, and Timothy temporarily represented himself. He appeared in person at the September 24 hearing, only to learn that the judge had taken the matter off calendar, because “[Tana’s counsel] called and asked the matter be taken off calendar. Since it’s his motion, he has the right to do that, so that’s what I did.” The judge suggested that Timothy take himself to the self-help center in the courthouse and get the form he would need to obtain his own OSC regarding child support. The judge also “hint[ed]” that Timothy would be well advised to do this quickly.
Timothy did not file his own OSC regarding child support. Instead, on January 22, 2010, he moved for reinstatement of the September 24 hearing, the one taken off calendar. The judge entered an order denying this motion on May 7, 2010.[1] Timothy then moved for reconsideration of this denial on May 17, 2010. That motion too was denied, on July 6, 2010. Timothy hedged his bets by filing both a notice of appeal and a petition for writ of mandate within a few days of each other. The writ petition was denied on September 2, 2010.
DISCUSSION
The right to appeal is statutory; a judgment or an order is not appealable unless a statute so provides. (Powers v. City of Richmond (1995) 10 Cal.4th 85, 108.) In civil matters, section 904.1 of the Code of Civil Procedure authorizes appeals. Post-dissolution orders regarding modification (or refusal to modify) child support orders are appealable. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216; see also In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287 [postjudgment orders relating to child support arrears appealable].) But Timothy is not appealing from any such order. He is appealing instead from the denial of two procedural motions – a motion to reinstate his OSC hearing and a motion for reconsideration.[2]
We agree with Timothy that the court erred in September 2009. As this court explained in Brody v. Kroll (1996) 45 Cal.App.4th 1732, an opposing responding declaration is sufficient to raise an issue for the court’s determination. (Id. at p. 1736.) A separate motion or OSC is not required. Thus, there were in effect two OSCs on calendar on September 24, 2009: Tana’s for modification of the amount of child support and attorney fees and Timothy’s for modification of child support. Although Tana’s counsel could call the court and take Tana’s OSC off calendar, he did not have the same authority as to Timothy’s.[3]
The judge made a mistake. So what was Timothy’s remedy One might wonder why Timothy did not take the judge’s advice and quickly file his own OSC. It is true that filing an OSC in September for a later hearing would have meant losing about four months of retroactive modification, assuming he could have convinced the court in September to reduce his child support payments. (See Fam. Code, § 3651, subd. (c)(1).) But losing four months has to be preferable to losing nearly two years. Timothy could also have immediately sought a writ from this court requiring the trial court to hear and rule on his OSC. Instead, he charted a different path.
First, Timothy moved in the trial court to reinstate his OSC. The trial court denied this motion. Then Timothy moved for reconsideration of the denial of the motion to reinstate the OSC under Code of Civil Procedure section 1008, on the grounds of newly discovered evidence. The trial court denied this motion as well. Then Timothy filed a notice of appeal from the orders denying the two motions (on July 7, 2010) and petitioned for a writ requiring the trial court to reinstate the OSC (on July 12, 2010). The writ petition was denied on September 2, 2010, nearly a year after the ill-fated OSC non-hearing in the superior court.[4]
An order denying a motion for reconsideration is not an appealable order. (People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 973; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458; Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1050.) The appeal from this order must therefore be dismissed.
As to an order denying a motion to reinstate the OSC hearing, this is also not an appealable order. (See McKenna v. Elliott & Horne Co. (1953) 118 Cal.App.2d 551, 555.) It does not conform to any of the appealable orders listed in Code of Civil Procedure section 904.1. Although an OSC apparently may be restored to the court’s calendar (see In re Marriage of Tushinsky (1988) 203 Cal.App.3d 136, 139-140), the court is not required to do so. This action is discretionary. (See Texas Co. v. Superior Court (1938) 27 Cal.App.2d 651, 654.)
The remedy for a refusal to hear and rule on a properly noticed motion, which was what set this chain of events in motion, is a petition for writ of mandate. (See, e.g., Robinson v. Superior Court (1950) 35 Cal.2d 379, 383; Safai v. Safai (2008) 164 Cal.App.4th 233, 242; see also Manriquez v. Superior Court (1926) 199 Cal. 749, 750 [writ issued to compel trial court to restore motion for new trial to calendar].) Timothy pursued this remedy, and his petition was denied. He does not now have a remedy on appeal.
DISPOSITION
The appeal is dismissed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
O’LEARY, J.
ARONSON, J.
[1] The court had tentatively denied the motion at the hearing on February 26, 2010, but a formal order was not signed until May.
[2] Code of Civil Procedure section 904.1, subdivision (a)(2) allows appeals from post-judgment orders. These orders, however, must be ones that affect the judgment itself, “by either enforcing it or staying its execution.” (Redevelopment Agency v. Goodman (1975) 53 Cal.App.3d 424, 429.) Neither motion at issue here affects the divorce judgment.
[3] Tana’s counsel filed and served a notice of respondent’s order to show cause being taken off calendar on September 18, 2009, which Timothy admits receiving, but that notice was no more effective to take Timothy’s OSC off calendar than was the phone call. In any case, the basis for taking the matter off calendar was, according to the court, the phone call.
[4] Timothy neglected to mention his filing of a writ petition or its denial in his opening appellate brief, which was filed on September 20, 2010.
The scope of the writ is not clear from the petition. Both the failure to hear the OSC on September 24, 2009, and the denial of the motion for reconsideration on June 18, 2010, are argued in the points and authorities.
