Marriage of Hamilton

Filed 9/17/08 Marriage of Hamilton CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This appeal involves a challenge by the former husband, Dean Hamilton (Dean), to a temporary restraining order (TRO) issued pursuant to Family Code section 6340[1] directing him to stay away from his former wife, Rosa Hamilton (Rosa),[2] the couples two children, and Rosas adult daughter. Dean contends that the court abused its discretion by denying his request for a continuance of the long-cause hearing on the application for TRO because of the unavailability of a witness that he intended to call. Dean also challenges an order imputing $300,000 in annual income to him that was used in a subsequent pendente lite order that required him to pay child support and spousal support in the monthly amounts of $4,211 and $5,781, respectively.

We conclude that the court did not abuse its discretion by denying Deans request to continue the TRO hearing. We conclude further that his challenge to the order imputing income that was used in the subsequent pendente lite order requiring him to pay child and spousal support is not cognizable on appeal. Accordingly, we will affirm.

PROCEDURAL HISTORY

Dean and Rosa were married in February 1994 and separated in February 2005. The parties have two minor children, Christopher and Katherine. Rosa filed a dissolution petition on or about February 24, 2005. A judgment of dissolution (status only) was entered on December 22, 2006.[3]

On March 1, 2005, Rosa obtained a temporary restraining order (TRO) requiring Dean to stay away from Rosa, their two children and Rosas adult daughter and Deans step-daughter (Angelique Langston). Rosas application refers to February 15, 2005, as being the date of the most recent abuse.[4] The TRO set a hearing date of March 24, 2005. The TRO was reissued on March 28, 2005, with a new hearing date set for April 21, 2005.

On June 19, 2007, the parties appeared at a case management conference, which the court continued to June 22, 2007. The court set a long-cause hearing for July 10, 2007, on the TRO issued in favor of Rosa.[5] The court also continued the case management conference to June 22, 2007. The clerks minutes reflect request denied regarding Wes Christiansen appearing by phone or deposition at trial. At the further case management held on June 22, 2007, the matter was continued again to July 6, 2007. The clerks minutes reflect the courts order as follows: [T]rial will be limited to the 2/15/05 and 11/25/04 incident[s]. There will be no expert witnesses.

After a long-cause hearing before the Honorable Susan Bernardini on July 10, 2007, the court submitted the matter. The next day, Judge Bernardini issued a TRO after hearing pursuant to section 6340,[6] ordering Dean to stay away from Rosa, Christopher, Katherine, and Angelique. The order noted that it was for a two-year duration.

On August 10, 2007, Dean filed a notice of appeal. The notice indicated that it was an appeal from a final judgment after court trial (attached hereto), which was entered on July 11, 2007, ordering him restrained from his children for a period of two years. The July 11, 2007 TRO was attached to the notice of appeal. The TRO is an appealable order. (See Code Civ. Proc.  904.1, subd. (a)(6); In re Cassandra B. (2004) 125 Cal.App.4th 199, 208 [restraining order issued in juvenile dependency proceeding directly appealable]; Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 [appellate review of order renewing family violence protective order issued pursuant to  6345].)

DISCUSSION

I. Issues On Appeal

The following are the primary issues to be resolved in the instant appeal:

1. Whether the court abused its discretion by granting the TRO after allegedly denying Deans alternative motions to continue the trial or to permit witness Christiansen to testify by telephone or by use of his deposition transcript.

2. Whether the temporary order requiring Dean to pay Rosa child support and spousal support, based upon an imputation of $300,000 in annual income to Dean, is a proper subject of this appeal.

II. Restraining Order

A. Procedural Background

In an ex parte application with an accompanying declaration and memorandum of points and authorities dated June 15, 2007 (the ex parte application),[7] Dean, through his attorney, James Hoover, indicated that Christensena neutral therapeutic supervisor appointed by the court in 2005 to oversee Deans visitation with the couples minor childrenwould not be available to testify at the long-cause hearing on the TRO set for July 10, 2007. Hoover alleged that Christensen had personal knowledge of the interactions of Dean and Rosa with their children based upon his observations over a period of several months. In Hoovers declaration, he alluded to various reports prepared by Christensen that indicated, inter alia, that in his opinion, Dean was not a danger to his children. Dean, through his attorney, therefore requested alternatively that (1) Christensen be allowed to testify by telephone, (2) Christensens deposition transcript be used in lieu of his testimony, or (3) the hearing be continued for one to two weeks until Christensen was available to testify.

Rosa, through her counsel (Robin Yeamans), filed opposition to the ex parte application on June 18, 2007. In addition, Rosas other counsel, Walter Pierce Hammon, filed a declaration opposing Deans ex parte application.[8] Yeamans argued that the long-cause hearing should not be continued; the issues in the hearing on the TRO should be limited to those raised in Rosas initial TRO application filed in March 2005 and to those matters stated in Deans response filed in April 2005; and that no experts (including Christensen) should be allowed to testify at the hearing. Hammon also argued that Christensen should not be allowed to testify because Christensen had not served as an assessor or evaluatorhe acted only as a supervisor of visitationand that his testimony should be excluded for a variety of reasons, including ethical issues, relevance issues, and Evidence Code [section] 352 issues.

On June 19, 2007, Judge Bernardini conducted a case management conference during which she considered Deans ex parte application. Dean and his attorney (Hoover) and Rosa and her attorneys (Yeamans and Hammon) personally appeared. Judge Bernardini noted at the outset that she initially set the TRO hearing for one-half day based upon her view that the only evidence that would be relevant was evidence from the percipient witnesses as to whether the events described in Rosas initial TRO application ever occurred. She concluded that if she were to allow Christensens testimony at all, the witness would have to appear in person to testify in order for her to assess his credibility. The court therefore denied Deans request in the ex parte application that Christensen appear by telephone or that his deposition testimony be used in lieu of live testimony. Judge Bernardini deferred ruling on Deans alternative request to continue the long-cause hearing due to Christensens unavailability and scheduled a further case management conference to consider whether Christensens proposed testimony was relevant to the proceedings.

The court held a further case management conference on June 22, 2007. Judge Bernardini and counsel discussed at some length evidentiary and procedural issues concerning the upcoming long-cause TRO hearing. The court emphasized that custody and visitation were not the focus of the hearing and concluded that the evidence presented would be limited to two incidentsallegedly occurring November 28, 2004, and February 15, 2005described in Rosas initial March 2005 TRO application.

Deans current appellate counsel, Duane Hamilton,[9] argued at the June 22, 2007 conference that Christensen could speak to [Rosas] motive in trying to get the restraining order. The restraining order was a tool to be used to show the children that the father is a bad person. It wasnt taken out because of any abuse. Judge Bernardini observed that the question at the hearing was whether the incidents Rosa complained about occurred at all, and [t]he fact that . . . Christensen knows something about [the] mothers motivation and why she might taint [her son regarding the incidents] after two-and-a-half years . . . [is] also, irrelevant to me. The court therefore ruled that no expertsincluding without limitation Christensenwould be permitted to testify at the hearing.

The hearing on the TRO application took place before Judge Bernardini on July 10, 2007, and lasted approximately three and one-half hours. The court noted before testimony commenced that it had made tentative rulings previously and invited the parties to raise any other issues or points of clarification concerning in limine motions or other matters before presenting evidence. The court also advised that prior rulings regarding the parties respective lists of witnesses were tentative and that if either party believed a potential witnesss testimony was relevant, an offer of proof could be made for the court to consider whether the testimony should be allowed. Neither party submitted offers of proof or requested that the court reconsider prior tentative rulings regarding proposed evidence or witnesses.

The parties each called two witnesses. Rosa offered extensive testimony in support of her application from both her daughter, Angelique, and from Rosa herself. In general, Rosas evidence consisted of testimony concerning four separate incidents that allegedly occurred in June 2004, on November 28, 2004, on February 6, 2005 (referred to by the witnesses as Super Bowl Sunday), and on February 15, 2005.[10] In opposition, Dean presented his own testimony and that of Deputy Carl Sims of the Santa Clara County Sheriffs Office. After submitting the case, the next day, the court granted Rosas application for a TRO. The order provided that the TRO would expire on July 10, 2009, a period that was three years less than the time requested by Rosa.

B. Whether Court Abused Its Discretion

1. Standard of review

At the outset, we observe that as framed in his opening brief, Deans claim of error is that the court erred by refusing to continue the TRO hearing to accommodate Deans important witness, Christensen. As Rosa points out, however, because the court concluded that testimony of all experts, including Christensen, was not relevant to the issues in the TRO hearing, the real challenge by Dean is to the courts exclusion of that evidence.

A ruling on a motion to continue is reviewed under an abuse of discretion standard. (See, e.g., In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 127 [order continuing hearing on motion to quash to permit further jurisdictional discovery governed by abuse of discretion standard]; Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716 [continuance of summary judgment motion within discretion of trial court].) Thus, in affirming an order denying a motion to continue a hearing on the trustees petition to approve an accounting, one court explained, The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial courts exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. [Citation.] (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) Similarly, an order excluding evidence on the ground that it is irrelevant is governed by the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1123; see also City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900-901.)

Therefore, whether we consider Deans challenge as a denial of a motion to continue or as the exclusion of testimony, we review the courts ruling under an abuse of discretion standard.

2. Forfeiture

Rosa contends that any challenge to the courts ruling was forfeited because Dean failed to move for a continuance or proffer the testimony of Christensen on the day of the hearing. We address this threshold issue.

An appellant may forfeit a claim of error by not bringing the issue to the trial courts attention. An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) As a condition precedent to challenging the exclusion of proffered testimony, Evidence Code section 354, subdivision (a), requires the proponent make known to the court the substance, purpose, and relevance of the excluded evidence. . . . [Citation.] (People v. Morrison (2004) 34 Cal.4th 698, 711.) Accordingly, no error occurs where the court excludes evidence where the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence. (Id. at p. 724.) And evidentiary objections are not preserved for appeal if appellant fails to secure a ruling thereon. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.)

Here, it is clear that Dean made some attempt to preserve the challenge by bringing an ex parte motion seeking a continuance because of Christensens unavailability. He also argued that the witnesss testimony was relevant by urging in both his papers and at the case management conferences that Christensen would be offered to attack Rosas credibility in seeking the TRO. From the record before us, however, we find fault with the quality of Deans preservation of the challenge. He neither renewed his motion to continue at the time of the TRO hearing, nor reasserted the importance of Christensens testimony at that time. These omissions occurred notwithstanding (1) the courts announcement at the hearing that its prior rulings were tentative, and (2) its invitation to counsel to bring any evidentiary issues to its attention before proceeding with testimony. And we cannot agree that Dean gave the trial court a very specific offer of proof demonstrating the claimed importance of Christensens testimony. (See People v. Carlin (2007) 150 Cal.App.4th 322, 334 [trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness].)

These defects notwithstanding, given the fact that Dean made some effort to preserve the issue, we will reject Rosas forfeiture contention and address the challenge on its merits. (People v. Hernandez (2003) 30 Cal.4th 835, 863 [appellate court may review issue on appeal where question of it was preserved is close and difficult].)

3. Merits of challenge

The trial court framed the issues before it as a determination of whether the incidents of abuse claimed by Rosa actually occurred and whether the conduct would have placed Rosa in reasonable fear for her safety or the safety of the parties children. In so doing, it acknowledged that there were other matters in the case, such as custody and visitation, that were separate from the more narrow question of whether it should issue a domestic violence protective order.

It was far from unreasonable for the court to have concludedbased upon Deans offer of proofthat Christensens testimony was not relevant to the issues in the TRO hearing. According to Deans ex parte application, Christensen was not appointed by the court as a visitation supervisor until sometime after April 11, 2005. Thus, he did not know the parties prior to their separation and thus had no direct knowledge of any of the four incidents allegedly occurring between June 2004 and February 2005 that were the bases for Rosas TRO application. Dean sought to introduce Christensens testimony concerning his opinion, based upon his supervision of visitation, that Dean did not pose a threat to the parties children. The court, however, concluded that she could make that factual determination without expert testimony by evaluating the evidence presented by the percipient witnesses. That conclusion was within the bounds of the courts discretion.

Moreover, it is readily apparent that the court made diligent efforts to determine the proper focus of the TRO hearing and to provide a balanced format for that evidentiary hearing. It held three case management conferencesat least two of which were lengthyto address in advance potential issues for the TRO hearing. The court divided the time for the hearing equally between the two parties. It rejected efforts on Rosas behalf to expand the evidentiary hearing to include incidents of alleged abuse occurring years before the parties separated, noting that permitting Rosa to bring in everything in the marital relationship that [left her] in fear of her former husband would be improper because it would be a potential violation of Deans due process to require him to respond at the hearing to matters not previously raised in the TRO application. And the courts order was not limited to the exclusion of Deans expert, Christensen; the court ordered that no experts from either side would testify.

Based upon the nature of the proceedings involved and the offer of proof concerning Christensens anticipated testimony, we conclude that the court did not abuse its discretion either by denying Deans request to continue the hearing or by excluding the testimony of any proposed experts, including Christensen. We therefore reject Deans claim that the TRO must be reversed.

III. Order Awarding Temporary Child and Spousal Support

Dean devotes significant attention in this appeal to his claim that the court erred in imputing income of $300,000 to him for purposes of calculating child and spousal support. Rosa argues that any challenge by Dean to the imputation of income that served as the basis for an award of temporary child and spousal support is not a proper subject of appeal. She contends that Deans claim of error concerns a challenge to the courts temporary order of child and spousal support dated August 2, 2006. Since that order was appealable (Rosa argues), and Dean did not file a timely notice of appeal from that order, any appeal from that support order is not maintainable. Rosa argues further that any claim of error concerning the support order fails because the notice of appeal does not specify the support order as being a subject of any challenge. After reviewing the relevant procedural history, we address Rosas claim that Deans challenge is not cognizable on appeal.

A. Procedural Background

On December 9, 2005, Rosa brought a motion seeking various orders, including requests for temporary child support, attorney fees, temporary spousal support, and an order imputing income of $400,000 to Dean. The notice of motion set a hearing date for January 26, 2006.[11] The clerks minutes reflect that a hearing transpired on January 26, 2006, that concerned a motion for child support, spousal support, and attorney fees. After hearing evidence presented from an expert (Cheryl Folden), the court (Judge Patrick Tondreau) ordered that $300,000 in annual income would be imputed to Dean. The minute order noted that [a]ll other issues are reserved.[12] A formal order imputing $300,000 annual income to Dean (the imputation order) was filed April 26, 2006.

Months later, after a hearing on June 29, 2006, the court (Judge Tondreau) ordered pendente lite that Dean pay Rosa monthly child support and spousal support of $4,211 and $5,781, respectively, effective December 9, 2005. This order was based upon the prior imputation order under which $25,000 of monthly income was imputed to Dean. A formal order dated August 2, 2006, and filed with the court on August 3, 2006 (the pendente lite support order),[13] followed in which the court set monthly child support at $4,211 and monthly spousal support at $5,781 for a total monthly amount of $9,992; the order recited that it was based upon Deans income of $25,000 per month and on Rosa having no monthly income.

B. Discussion

The Supreme Court has acknowledged that appeals from temporary support orders have long been authorized. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 367 (Skelley); see also In re Marriage of Guigne (2002) 97 Cal.App.4th 1353, 1359 [child and spousal support orders, even temporary support orders, are appealable].) In Skelley, the court rejected the respondent husbands assertion that the wifes challenge to an order reducing temporary spousal support was not cognizable because it was not an appealable matter. (Skelley, supra, at p. 369.) The court cited the collateral order doctrineunder which interlocutory orders are subject to direct appeal when they are dispositive of the rights of the parties in relation to the collateral matter, and direct[] payment of money or performance of an actas the basis upon which temporary support orders are deemed appealable. (Id. at p. 368; see also In re Marriage of King (2000) 80 Cal.App.4th 92, 116 [noting that collateral order doctrine has been applied particularly in dissolution cases to provide for appeals of severable portions of a judgment].) It also reasoned that since a support order later modified or revoked cannot be made retroactive prior to the date of the motion to modify or revoke, the initial support order is appealable. (Skelley, supra, at p. 369.) 

A number of other courts since Skelley have recognized the appealability of support orders. In In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 (Padilla), the court held that a temporary child support order was appealable. Other decisions have also held that pendente lite orders for child support are appealable. (See, e.g., In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554; In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 472-473 (Lusby); Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1234, fn. 1.) Courts have held likewise that spousal support orders are subject to direct appeal. (See, e.g., In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 (Murray).)

Here, while Dean frames his argument as a challenge to the imputation order, in reality he is contesting the subsequent pendente lite support order; the earlier order served as the foundation for the later order. That prior order, at the time it was made, had the potential for future financial impact to Dean if it were utilized as one of the statutory factors in fixing child support ( 4055, 4058, subd. (b)) or spousal support ( 4320). Indeed, Dean acknowledged as much in the prior appeal.[14] The imputation order, however, while perhaps dispositive of the rights of the parties in relation to the collateral matter (Skelley, supra, 18 Cal.3d at p. 368), plainly did not direct[] payment of money or performance of an act. (Ibid.) It thus did not qualify under the collateral order doctrine as an appealable order. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656 [collateral order is appealable if it is one that is not preliminary to later proceedings]; see also In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 [order including finding that court had authority to approve listing agreement, listing agent, price and terms of sale, and other aspects of sale of parties assets nonappealable].)  The imputation order thereforeas we held in Deans prior appealwas not directly appealable. (See In re Marriage of Hamilton (Order dism. appeal, Sept. 13, 2006, H029913.)

The pendente lite support order, as we have noted, was an appealable order. Therefore, Deans underlying challenge to the imputation order which was utilized to fix temporary support is subject to review by this court only if a timely appeal was filed to the pendente lite support order. Under California Rules of Court, Rule 8.104, a notice of appeal is timely if it is filed on or before (1) 60 days after the superior court clerks mailing of a notice of entry of judgment, (2) 60 days after the appealing party is served by any other party with a notice of entry of judgment, or (3) if no notice of entry is served, 180 days after entry of the judgment.

In this instance, the parties have not pointed to any notice of entry of the pendente lite support order served by the court or by Rosa. The 180-day time deadline therefore applies. The formal order was filed August 3, 2006, thereby constituting the date of its entry. (Code Civ. Proc.,  668.5.) Thus, January 30, 2007, was the deadline for filing a timely notice of appeal challenging the pendente lite support order. (Cal. Rules of Ct., rule 8.104(a)(3).) Deans notice of appeal was filed over six months too late, on August 10, 2007. Accordingly, we hold that Deans challenges to the imputation order and/or to the pendente lite support order (that utilized the imputation order) are not cognizable on appeal.[15]

DISPOSITION

The temporary restraining order is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting P.J.

McAdams, J.

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[1] Further statutory references are to the Family Code unless otherwise indicated.

[2] For the sake of clarity, we refer to the parties by their first names. We mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

[3] Although the parties did not point this out in their briefs and the appellate record on the issue is silent, this judgment of dissolution (status only) filed in December 2006 appears in the superior court file. We take judicial notice of this judgment and of other pleadings from the superior court file mentioned hereinafter (see fns. 5, 8, 10, 11, and 13) on our own motion. (Evid. Code, 452, subd. (d), 459, subd. (a).)

[4] The application refers to an attached declaration which Dean omitted from the record herein.

[5] The record on appeal provided by Dean does not disclose what transpired relative to the TRO between the period of over two years between the time of its reissuance on March 24, 2005, and the setting of the trial thereon at the June 19, 2007 case management conference. We note, however, that the superior court file contains a number of court orders extending the TRO.

[6] The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. . . . ( 6340, subd. (a).) Section 6320, subdivision (a) provides: The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.

[7] The ex parte application included by Dean in the record does not bear a filing stamp, and it is not among the superior court files. Nonetheless, as discussed post, it is apparent that the court below reviewed and considered the ex parte application at a hearing on June 19, 2007. Accordingly, we will consider the ex parte application in conjunction with Deans appeal herein.

[8] The opposition papers filed by Yeamans and Hammon, respectively, were not included in the record on appeal. Because the court indicated at the hearing on June 19, 2007, that it had considered both the ex parte application and Rosas opposition, and in order for us to gain a full understanding of the issues raised by this appeal, we take judicial notice of this opposition on our own motion.

[9] At the time of the TRO hearing in July 2007, Duane Hamilton was counsel for Deans father, Hewley, in connection with child visitation issues.

[10] Although the court had given a tentative ruling on June 22, 2007, that evidence would be limited to two incidents, the minute order in the superior court file from a further case management conference on July 6, 2007, indicates that the court granted a request to broaden the scope of the TRO hearing to four incidents. Although neither party made it a part of the appellate record, we take judicial notice of that minute order to facilitate our understanding of the proceedings below.

[11] Rosas motion papers were not included in the appellate record. We have gleaned this necessary information from the superior court files, and we take judicial notice of the motion papers on our own motion.

[12] On February 17, 2006, Dean filed a notice of appeal from the order orally issued . . . on 26 January 2006 . . . imputing income to [Dean] of $300,000 annually for support purposes (hereafter, the prior appeal). On September 13, 2006, we granted Rosas motion to dismiss that appeal. (See In re Marriage of Hamilton(Sept. 13, 2006, H029913.) We take judicial notice of our decision and records on file in that prior appeal pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a).

[13] The order included by Dean in the appellate record does not contain a filing stamp. We have determined that the order was filed on August 3, 2006, by reference to the superior court files. We take judicial notice of this order.

[14] In his opposition to Rosas motion to dismiss the prior appeal, Dean indicated that the imputation order would be used in attributing income to Dean for use in, for example, child support or spousal support orders.

[15] Any challenge by Dean to the pendente lite support order would also be improper because Deans notice of appeal fails to specifically identify this appealable order as a matter from which an appeal was taken. (Cal. Rules of Ct., rule 8-100(a)(1) [notice of appeal sufficient if it identifies the particular judgment or order being appealed]; see also Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.)