L.R. v. K.A. (In re Marriage of L.R.)

In re the Marriage of L.R. and K.A.

L.R., Appellant, v. K.A., Respondent.

D078331

California Court of Appeals, Fourth District, First Division

September 24, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No D557861 Marcella O. McLaughlin, Judge. Dismissed.

L. R in pro. per.; Elyse B. Butler and Chalsie D. Keller for Appellant.

[Retained.]

Linda Cianciolo for Respondent.

DO, J.

INTRODUCTION

L.R.^[1] (Mother) appeals from a family court minute order that confirmed an earlier ex parte order suspending her visitation rights and directed the transportation of the minor child to the office of Minor's counsel so the child could be transferred to K.A (Father). Because neither of these rulings is appealable, and because the order directing the transfer of the child has expired and is also now moot, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from what appears to be a long, contentious custody battle between the parties in what is now a six-year-old dissolution case. Mother filed a petition for dissolution on October 26, 2015. The parties have a 10-year-old daughter (the child) and have been co-parenting her under pendente lite child custody and visitation orders. As best as we can determine from the record before us, other than a status-only judgment terminating the marriage entered on November 1, 2018, there has been no trial or judgment entered on any issues in the dissolution including child custody and visitation.^[2], ^[3]

The operative custody and visitation orders are set forth in the June 13, 2019 FOAH, which was entered after a May 10, 2019 hearing that was held on Mother's Request for Order, filed January 25, 2019. Pursuant to the June 13, 2019 FOAH, the family court awarded Mother and Father with joint legal custody, Father with primary physical custody, and Mother was ordered to have professionally supervised parenting time three days each week at a visitation center. The court also ordered that Mother undergo “an independent psychiatric evaluation to specifically address whether it would be beneficial for her to consider a trial of psychiatric medication regarding anxiety, and any other psychiatric condition.” The court set a half-day evidentiary hearing on custody and visitation for November 27, 2019 and ordered that Mother provide the results from the psychiatric evaluation and that Dr. Sparta, the examining psychologist, also testify at that time. The court further stated that it “will not consider changing its custody order without Mother providing the results of the psychiatric evaluation.” (Italics added.)

After the June 13, 2019 FOAH was entered, the court modified its order regarding Mother's supervised parenting time with the child several times, including as a result of a DVRO issued against Mother for the protection of Father and the child, on February 27, 2020.^[4] At an August 7, 2020 hearing, in which Mother requested a change of the professional visitation monitor, Minor's counsel lamented that “trial on custody and visitation” still had not taken place and asked that it “be set as soon as [the court] is able to do so” in order for the parties to finalize the matter of child custody and visitation. Father's counsel asserted that Mother had “not heeded” the court's orders from the June 13, 2019 FOAH and that he had “seen no information that [Mother] has addressed the mental health issue.” The court discussed possible future hearing dates with counsel, although it is not clear what dates were ultimately selected.

On September 1, 2020, pursuant to Father's ex parte application filed the day before, the court issued an ex parte order that “[Mother's] visitation rights with the Minor child are suspended forthwith, pending further Court order.” (Italics added.) The court ordered that “[a]ny contact between Mother and the Minor child shall be through telephone/virtual contact only, and shall be at the direction of the child's therapist as well as supervised by the child's therapist” and that “[Mother] or a designated third party are ordered to return the child to Father's custody at [the offices of Minor's counsel] at 5:00 PM September 1, 2020.” It further ordered that if Mother failed to return the child to Father by the time and place designated, “this case is referred to Law Enforcement for enforcement of this Court's orders as well as the San Diego County District Attorney's Office Child Abduction Unit for immediate location and return of the child.” The court then set a review hearing on its orders for September 23, 2020.

On September 4, 2020, the court issued another ex parte order upon application filed by Minor's counsel. Minor's counsel averred, “Mother has failed and refused to return child to Father's care after her supervised visitation was terminated on 8/30/2020; Mother has failed and refused to comply with this Court's 9/1/2020 order to return the child[.]” The court ordered that law enforcement was authorized to facilitate the exchange of the child pursuant to the court's order of September 1, and that “Mother's visitation [is] suspended immediately-no contact of any kind with child pending further court order.” (Italics added.)

On September 23, 2020, the court held its review hearing of the ex parte orders made on September 1 and 4. Mother and Father appeared with their attorneys. Minor's counsel appeared on behalf of the child. Father testified that he still did not have custody of the child and had not seen her since August 30. After hearing from FatherMother invoked her right to remain silent on advice of counseland arguments by the attorneys, the court found Mother “clearly in violation of the Court's two prior ex parte orders.” The court stated it was “deeply, deeply concerned about Mother's conduct and her absolute defiance of this [c]ourt's orders” and found that Mother was “placing this child in an incredibly emotional[ly] abusive situation and jeopardizing this child's emotional health and creating a situation that is untenable.”

In a minute order dated September 23, 2020, the court ordered, among other things, the following: It “confirm[ed] its prior ex parte order of September 03, 2020 [sic].” It ordered Mother “to designate a third party to personally transport the minor child... to the office of [Minor's counsel], today, September 23, 2020, at 4pm.” It further ordered that “[t]he child is to be transported whether or not the child agrees or disagrees with the order, and regardless of [the child's] emotional state. The custodial exchange is to be effectuated no later than 4:15 PM today [September 23].” The court set a further hearing for December 16, 2020, although it did not specify the purpose of this hearing.

On November 23, 2020, Mother filed a notice of appeal of the trial court's September 23, 2020 minute order.

DISCUSSION

Mother seeks reversal of the following two rulings in the September 23, 2020 minute order: (1) the ruling confirming the trial court's ex parte order suspending Mother's visitation rights with the child “pending further [c]ourt order ” and (2) the ruling requiring the child to be transported to the office of Minor's counsel no later than 4:15 p.m. on September 23, 2020, “regardless of [the child's] emotional state.” Mother argues that in issuing these rulings, the court failed to act in the child's best interest.

We requested supplemental briefing from the parties on the appealability of these rulings, and on the mootness of Mother's challenge to the order to transport the child to her attorney. We conclude that neither of the rulings is appealable, and that challenge to the latter ruling raises an issue that is now moot.

“Generally, a reviewing court acts in the procedural context of either a direct appeal or a writ proceeding.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).) “A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Ibid.; see Smith v. Smith (2012) 208 Cal.App.4th 1074, 1083 (Smith) [“In the absence of a statute authorizing an appeal, we lack jurisdiction to review a case even by consent, waiver, or estoppel.”].) A trial court order is not appealable unless “made so by statute.” (Griset, at p. 696; see also Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377 (Enrique M.).) Code of Civil Procedure section 904.1 (hereafter “section 904.1”) is the primary statutory authority for appeals of civil matters. (See Enrique M., at p. 1377.)

“Section 904.1 serves to avoid piecemeal litigation by limiting appeals to final judgments, postjudgment orders, and certain enumerated orders.” (Smith, supra, 208 Cal.App.4th at p. 1083.) “ ‘California is governed by the “one final judgment” rule which provides “interlocutory or interim orders are not appealable, but are only ‘reviewable on appeal' from the final judgment.”' ” (Brown v. Upside Gading, LP (2019) 42 Cal.App.5th 140, 144 (Brown).) Although “[i]nterlocutory rulings ‘ “within the statutory classes of appealable interlocutory judgments”' remain appealable[, ]... the appellant bears the burden of establishing the appealability of such a ruling.” (Ibid.)

Mother asserts that we have appellate jurisdiction over the challenged rulings under subdivisions (a)(1) and (a)(10) of section 904.1. Subdivision (a)(1) provides, in relevant part, that an appeal may be taken “[f]rom a judgment, except an interlocutory judgment[.]” Subdivision (a)(10) allows an appeal to be taken “[f]rom an order made appealable by the Probate Code or the Family Code.”

Mother argues that section 3454 of the Family Code permits an appeal to be taken from a “ ‘final order' ” in a proceeding under the Uniform Child...