Marriage of Phipps and Barnes

Filed 10/19/06 Marriage of Phipps and Barnes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeals from postjudgment interlocutory orders of the Superior Court of Orange County, Walter D. Posey, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Motions to augment the record and to dismiss appeal. Motion to augment denied. Appeal dismissed.

Law Offices of Brian G. Saylin and Brian G. Saylin for Appellant Frank Carl Barnes.

Law Offices of Douglas S. Honig, Douglas S. Honig and Carson C. Newton for Appellant Karen Linn Phipps.

* * *

We conclude the appeal of Frank Carl Barnes (father) from an interlocutory award of past due child support to his former wife, Karen Linn Phipps (mother), should be dismissed because it was prematurely filed. At the time the notice of appeal was filed, the amount due had not been calculated by the Orange County Department of Child Support Services (DCSS) as ordered by the court. During the pendency of the appeal the amount was determined and is the subject of father’s motion to augment the record. However, both parties dispute the amount and would have requested a hearing on the issue had the case not been on appeal, which one or both parties believed deprived the court of jurisdiction. This and the language of the court’s order requiring the DCSS accounting show that the order is not final. We therefore deny the motion to augment the record.

Mother filed a motion to dismiss, arguing primarily that the appeal is too late, and, only as a fallback position, that it is premature. We determine the appeal is premature and dismiss on that basis.

FACTS

In the final judgment of dissolution filed in 1987, child custody and support orders were set out as to the parties’ two children pursuant to a marital settlement agreement. The parties were given joint legal custody, with mother receiving physical custody and father ordered to pay child support.

In 2003, DCSS filed a notice it had been assigned the right to mother’s child support payments. In 2004 a lien was filed against father’s property for his failure to pay child support. When father was unable to close the sale of his real property due to the lien, in June 2004 he filed an order to show cause to determine child support arrearages. By this time both children were adults.

The dispute centered around if and when the children had actually lived with mother and whether father had satisfied his support obligation for the periods when mother had physical custody. After extensive briefing, the court issued an order setting out findings as to the times the children had lived with mother or others, the credits given to father for amounts paid, and the periods for which he owed support. It ordered DCSS to “perform an accounting using the information” in the order, reserving jurisdiction over the accounting “until this action is completed.” The order allowed DCSS to set a settlement conference if needed. Ten days after this order was filed DCSS filed a shorter version of the first order, without performing an accounting. A copy of the order, before filing or signature, was served on the parties on January 6.

DISCUSSION

1. Motion to Dismiss and Motion to Augment

Mother filed a motion to dismiss the appeal, arguing primarily that it was filed too late, and in the alternative, that it was premature. We agree with the latter claim.

The “Court Order After Hearing” (italics omitted) was signed and filed on December 2, 2004. It requested DCSS to calculate the amount of arrears owed by father “using the information set forth” in the order. It reserved jurisdiction over the accounting “until this action is completed” and authorized the clerk to set a settlement conference at the request of DCSS. The clerk served the order on December 10.

On January 12, 2005 DCSS submitted an “Order After Hearing on Submitted Matter” (bold and capitalization omitted), which the trial judge signed on that date. This second order was an abbreviated version of the court’s order and did not contain an accounting. A copy of the order, before filing or signature, was served on the parties on January 6. On March 8, before DCSS completed its accounting, father filed his notice of appeal “out of an abundance of caution.”

DCSS sent the accounting to the parties on July 8. According to father, he and mother have objections to it and one or both of them “filed an action regarding the accounting with the trial court [that] has not been heard[,]” requested a hearing on the objections, or decided not to request a hearing because the trial court lacked jurisdiction to hear the matter while the case was on appeal. At oral argument the parties confirmed either or both may be appealing from the accounting itself. This and the terms of the order itself make it clear the order is not final.

The order provides that DCSS conduct an accounting and allowed it to set a settlement conference if needed. This is an acknowledgement by the court that further judicial action was at least possible, if there was a dispute as to the amounts determined, as has happened. Another indicator of nonfinality is the court’s reservation of jurisdiction over the case until the accounting was final. The court anticipated further action on its part. “‘As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, the decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’ [Citations.]” (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 963.)

Father concedes the appeal is premature but asks that we treat it as a petition for writ of mandate, claiming any further delay frustrates the interest of justice. We decline to do so. A controversy as to the amounts due remains. Father admits the “issues have [only] nearly been fully briefed.” (Italics added.) The underlying controversy must be fully resolved before we expend judicial resources so that we will not be required to decide two appeals. The system is “best served by a single complete and final resolution of the issues presented.” (Kinoshita v. Horio, supra, 186 Cal.App.3d at p. 967.)

2. Mother’s Request for Sanctions

In her respondent’s brief, mother requested sanctions based on her claim the appeal was frivolous because not timely filed. We have determined the appeal is premature, not too late, and while not deciding the issue, can understand father filing a protective notice of appeal, based on the uncertainty of the order. However, in any event, mother failed to comply with California Rules of Court, rule 27(e)(2), which requires that a party seeking sanctions must file a separate motion, including “a declaration supporting the amount of any monetary sanction sought . . . .” Mother failed to comply and we deny the request on that basis. (Leko v. Cornerstone Building Inspection Service (2001)

86 Cal.App.4th 1109, 1124 [sanctions denied because request in respondent’s brief, instead of separate motion with declaration, insufficient].)

DISPOSITION

The appeal is dismissed as premature. In the interests of justice, the parties shall bear their own costs on appeal.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.