Marriage of Svendsen
Filed 7/16/13 Marriage of Svendsen CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
In re the Marriage of ERIC I. and ANN C. SVENDSEN. | |
ERIC I. SVENDSEN, Respondent, v. ANN C. SVENDSEN, Appellant. | D062664 (Super. Ct. No. D520079) |
APPEAL from
a judgment of the Superior Court
of
County, Susan D. Huguenor, Judge. Appeal dismissed.
Sergio W.
Stevens for Appellant.
Eric I.
Svendsen, in pro. per., for Respondent.
In this
marital dissolution action, the court ordered temporary custody of the parties'
two minor children, Emily, who was 15 at the time of the hearing, and Lukas,
who was 10 at the time of the hearing, to their father, Eric Svendsen, with an
82 percent visitation share to father.
The court also made orders for spousal support and child support.
Ann C.
Svendsen appeals that ruling, asserting the court erred in accepting the
recommendation of Family Court Services as to custody because it was based upon
a "lack of evidence" and "misinterpreted evidence." Eric contends the temporary custody order is
not an appealable order.
For reasons
we shall explain, we dismiss this appeal because an interim custody
determination is not an appealable order.
FACTUAL
AND PROCEDURAL BACKGROUND
Because we
are dismissing this appeal as being from a nonappealable order, we discuss the
underlying facts only briefly.
It was
alleged in this case that Ann had a history of potentially abusive behavior
towards the children and demonstrated negative parenting behaviors. Family Court Services recommended the change
in temporary custody from a 50 percent shared custody to legal custody being
placed with Eric. The court adopted that
recommendation. At the hearing wherein the
court made the temporary custody order and resolved other issues, the court
asked counsel for Ann whether the court should consider child support and
attorney fees at that time. Counsel for
Ann indicated that he did not want those issues addressed at that time. The court then asked, "[W]hat is there
yet to do before we can fully resolve this matter?" Counsel for Ann indicated that the parties
were engaged in settlement negotiations regarding separate property and
requested that another hearing be set for "90 days out." The court then set a settlement conference
for December 2012. As part of that order the court also
directed that Ann pay Eric $219 per month in child support.
DISCUSSION
As the
Court of Appeal stated in Lester v.
Lennane (2000) 84 Cal.App.4th 536,
559-560 (Lester), "A temporary
custody order is interlocutory by definition, since it is made pendente lite
with the intent that it will be superseded by an award of custody after
trial. [Citations.] Code of Civil Procedure section 904.1 bars
appeals from interlocutory judgments or orders 'other than as provided in
paragraphs (8), (9), and 11. . . .' [Citation.]
Temporary custody orders are not listed in any of those paragraphs. Therefore, this statute bars the
appealability of such orders." (Fn.
omitted.)
In her
statement of appealability, however, Ann asserts that because the temporary
custody order also determined child support, it is appealable as a
"collateral order." This
contention is unavailing.
"One
exception to the 'one final judgment' rule codified in Code of Civil Procedure
section 904.1 is the so-called collateral order doctrine. Where the trial court's ruling on a
collateral issue 'is substantially the same as a final judgment in an
independent proceeding' [citation], in that it leaves the court no further
action to take on 'a matter
general subject of
the litigation' [citation],
an appeal will lie from that collateral order even though other matters in the
case remain to be determined.
[Citation.] . . . [¶] In determining whether an
order is collateral, 'the test is whether an order is "important and
essential to the correct determination of the main issue." If the order is "a necessary step to
that end," it is not collateral.' "
(Lester, supra, 84 Cal.App.4th at p. 561.)
the payment of money and is dispositive of the parties' rights concerning child
support. But the question then arises,
is child support a collateral issue?
Because the temporary custody did
not finally resolve any matter "severable from the general subject of the
litigation," it is not appealable.
(In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735.)
A temporary custody order contemplates further review and a possible
change in custody given a change in circumstances. Indeed, in this case temporary legal custody
was originally 50 percent each and then changed to 100 percent in favor of
Eric.
Moreover, the child support order
was "important and essential" to the issue of custody because it
determined the amount of money Ann was to pay Eric for the care of the children
given his 82 percent visitation time.
Thus, the temporary custody order is not a "collateral order"
on this basis as well and is not appealable.
Finally, as
the Court of Appeal discussed in Lester,
supra, 84 Cal.App.4th 536, temporary custody orders are not appealable on
grounds of policy: "The very nature
of such orders compels the swiftest possible review of
any challenge. The writ process, not the
appeal process, is the way to get that review. [¶] In most custody
dispute cases, young children bond with their primary custodial parents. The trial court must place the child's best
interest first in any long-term custody decision. [Citations.]
Thus, the child's bond with the primary custodial parent will often
weigh heavily in the court's mind. Once
the bond is established, the court is likely to find that the child's best
interest requires preserving that bond to maintain stability in the child's
life. [¶] A noncustodial parent who
seeks to obtain custody will often be at a disadvantage by the time of trial if
the child has bonded with the custodial parent.
The noncustodial parent's only effective recourse is to obtain immediate
review of any objectionable temporary custody order. This can be done by filing a petition for
writ, a procedure [appellant] failed to use in this case. It cannot be done by filing an appeal which
will sit in abeyance while the case works its way to trial and decision—and while
the bond between child and custodial parent strengthens and deepens." (Id. at
p. 565.)
DISPOSITION
The appeal is dismissed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
name="_ftn1" title="">[1]
We note that Ann has not filed a
reply brief responding to Eric's contention that the temporary custody order is
not an appealable order. By not doing
so, we conclude that she has conceded the merits of Eric's position.
