Opinion
A148811
01-24-2017
In re the Marriage of STEVEN STUPP and ANNEMARIE SCHILDERS. STEVEN STUPP, Respondent, v. ANNEMARIE SCHILDERS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM 0110799)
Appellant Annemarie Schilders (Schilders) appeals from postjudgment temporary child custody and visitation orders that were pronounced at a hearing on May 13, 2016, and from the minute order eventually filed on May 17, 2016, summarizing the visitation schedule.
Respondent Steven Stupp (Stupp) has moved to dismiss the appeal, arguing that the orders are not appealable because they are temporary custody orders. In opposing the motion, Schilders argues that the orders are "void and appealable." We agree with Stupp, and therefore we will dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The orders challenged in this appeal were issued in proceedings concerning the dissolution of a marriage and the custody of the parties' six-year-old child. The marriage has been dissolved, but custody remains subject to temporary orders.
Schilders states incorrectly that the family court entered "final judgments as to the best interests of the child" in entering July 2012 and July 2014 custody orders. Both orders are temporary by their terms.
The underlying case, which has been pending in the family court since September 2010, has been highly contentious. As of September 2016, the register of actions extends to 133 pages. Since June 2014, when Schilders appealed the entry of a stipulated judgment, Schilders has initiated 14 appeals and has submitted several writ petitions. We decided two of the appeals in 2016 in unpublished opinions, Schilders voluntarily dismissed one, and we dismissed two in an unpublished opinion. We denied two of her writ petitions as untimely.
Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.].
Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.] and Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.].
Stupp v. Schilders (Oct. 25, 2016, A146733 and A147151) [nonpub. opn.].
The orders that Schilders challenges here were pronounced at a May 13, 2016 hearing at which the family court addressed the disposition of a pension plan, and a request by Stupp for sanctions under Family Code section 271, and then turned to custody and visitation. At the time of the hearing, Stupp had temporary sole legal custody, and Schilders had visitation every Tuesday from 10 a.m. to 6 p.m. and one overnight a week, alternating between Thursday from 10 a.m. to Friday at 10 a.m. and Friday at 10 a.m. to Saturday at noon. After hearing extensive argument on custody and visitation from two attorneys representing Stupp and two representing Schilders, the family court confirmed that Stupp had temporary sole legal custody, and set a modified temporary visitation schedule under which Schilders had visitation every Friday afternoon from the end of the child's school day at about 1:30 p.m. until 6 p.m., with an overnight stay every other Friday lasting until Saturday at 6 p.m. The court stated that there would be an evidentiary hearing to establish a permanent custody and visitation order, at which point counsel for Schilders estimated that 15 days would be needed for the hearing or trial. After hearing further argument from counsel for both parties the family court scheduled a reported conference call with the parties for June 10, 2016, to discuss the length of the trial, the date of the trial, and any issues regarding discovery. At the end of the hearing, the family court judge asked Stupp's counsel to prepare orders for his signature. The signed orders were filed sometime later, on October 3, 2016.
On June 10, the matter was set for trial on September 28, 2016, with a time estimate of eight days. Eventually, the September 28 trial date was taken off calendar, pending the resolution of the Statement of Disqualification of the family court judge that Schilders filed in July.
Schilders filed a Civil Case Information Statement in this court on August 19, 2016, stating that she had filed a notice of appeal on July 12, that she was appealing the May 13 oral decision and the May 17 minute order, which set out the temporary visitation schedule, and that the orders were appealable as "postjudgment modification action."
Stupp filed his motion to dismiss the appeal on October 3, 2016, and Schilders's opposition was originally due on October 18. Schilders sought, and received, four extensions of the due date, with the result that her opposition was ultimately due on December 27.
In the meantime, in early December 2016, Schilders filed a writ petition asking this court to vacate the custody and visitation provisions that were included in the signed order that was filed on October 3—the very same provisions at issue in this appeal. The petition was assigned case number A149954, and this court requested that informal opposition to the petition be submitted by January 10, 2017.
Schilders filed her opposition to Stupp's motion to dismiss the appeal of the May 2016 orders on December 27, just before midnight. The next day, again just before midnight, she submitted a 54-page-long "corrected" opposition and lodged four volumes of exhibits, including exhibits that she had previously submitted in support of her writ petition. The day after that, she filed an application for permission to file the exhibits and the corrected opposition. Stupp filed a one-page reply, arguing that in addition to being an improper appeal of a nonappealable order, the appeal is duplicative of the pending writ proceeding, Case No. A149954, and also arguing that the application to correct the opposition should be denied as moot. We exercise our discretion to grant Schilders's application to correct the opposition and file exhibits, even though it is untimely.
In the various proceedings she has initiated in this court, Schilders has frequently submitted papers just before midnight on the date they are due, and then sought to file "corrected" papers after the deadline for submission of papers has passed. We do not condone this practice, which imposes unnecessary burdens on court staff. We are under no obligation to accept late submissions, especially in the circumstances here. We previously granted Schilders's repeated numerous requests for extensions; Schilders's application to file a corrected opposition (an application which is itself belated) includes a multipage "introduction" that simply restates points that were made in both the original and corrected opposition, but are irrelevant to the application; Schilders's original submission lacks proper citations and a table of authorities; and the original submission lacks exhibits that are purportedly "essential for deciding the motion," even though Schilders asked for (and received) a four-day extension in October to allow her to prepare the necessary supporting documents.
DISCUSSION
The orders that Schilders seeks to appeal here are temporary custody orders that are preparatory to later proceedings in which the court will rule on custody. As such, the orders are not appealable, even though they are postjudgment orders. (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403 [postjudgment orders that are preliminary to a later judgment are interlocutory in nature and not appealable], citing and quoting Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-653]; Lester v. Lennane (2000) 84 Cal.App.4th 536, 558 [temporary custody orders are not appealable] (Lester).)
We have previously ruled in this case that postjudgment temporary custody orders are not appealable. Schilders gives us no reason to reach a different conclusion here. She argues that the orders at issue here are void for various reasons and are therefore appealable, but she cites no authority holding that an order like the one here, which is not appealable as a postjudgment order, becomes appealable by virtue of being void. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 200 ["a void judgment or order is appealable if that judgment or order is otherwise appealable" (italics added)].) It would be poor public policy if every void order were appealable in family court proceedings, because if that were so, any party displeased by any ruling could file an appeal on the grounds that the order is void, greatly delaying the resolution of the case. (See Fam. Code, § 271, subd. (a) [recognizing the "policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys"].)
In A143186, we ruled that postjudgment temporary custody orders requiring the child to attend preschool and requiring Schilders to insure the child's attendance at school during her custodial time are not appealable. (Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.] pp. 8-9.) Furthermore, in A146733, we ruled that a postjudgment order preparatory to proceedings to determine custody is not appealable. (Stupp v. Schilders (Oct. 25, 2016, A146733 and A147151) [nonpub. opn.] pp. 5-7.)
We previously discussed this issue in Stupp v. Schilders (Oct. 25, 2016, A146733 and A147151) [nonpub. opn.] at pages 8-9. --------
Schilders argues that the orders pronounced on May 13, 2016 and reflected in the May 17 minutes are appealable because they are not temporary. This argument lacks merit. The family court stated unequivocally that the orders were temporary, pending the determination of custody and visitation after an evidentiary hearing to be scheduled at a conference call the following month. A hearing was indeed scheduled, for September 28, and Schilders attempts to support her argument that the orders are not temporary by noting that the trial court vacated the hearing date. The subsequent vacating of the hearing date, however, does not change the status of the May orders as temporary, and Schilders cites no authority to the contrary. Schilders never alludes to the fact, reflected in her own exhibits, that the hearing date was vacated pending the resolution of a statement of disqualification that she herself had filed, and Schilders states, incorrectly that the trial date was vacated "without notice," implying perhaps that the family court was dilatory when in fact the court gave the parties three weeks' notice.
Although temporary custody orders are not appealable, they are not necessarily beyond review. The nature of temporary custody orders "compels the swiftest possible review of any challenge, [and the] writ process, not the appeal process, is the way to get that review." (Lester, supra, 84 Cal.App.4th at p. 565.) For whatever reason, Schilders elected to appeal the May 2016 orders rather than file a writ petition. And, while she insists that the May 2016 orders and the signed order that was filed in October 2016 are appealable, she has nevertheless filed a separate writ petition seeking review of the October 2016 signed order. In these circumstances, even if Schilders had requested that we treat her attempted appeal as a writ petition, we would not be inclined to exercise our discretion to do so. (Olson v. Cory (1983) 35 Cal.3d 390, 400-401 [power to treat purported appeal as a writ petition should be exercised only in unusual circumstances].)
DISPOSITION
Appeal No. A148811 is dismissed. Respondent shall recover his costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.