In re Marriage of Bloom, A121564 (Cal. App. 11/7/2008)

• Decision Date: 07 November 2008
• Docket Number: A121564.
• Parties: In re the Marriage of GINA BLOOM and BARRY BLOOM. GINA BLOOM, Respondent, v. BARRY BLOOM, Appellant.
• Court: California Court of Appeals

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In re the Marriage of GINA BLOOM and BARRY BLOOM.

GINA BLOOM, Respondent, v. BARRY BLOOM, Appellant.

A121564.

Court of Appeal of California, First Appellate District, Division Two

November 7, 2008

Not to be Published

Appeal from the San Francisco County, Super. Ct. No. FL-042214.

KLINE, P.J.

Barry Bloom (Barry) attempts to appeal an order of January 8, 2008, granting Gina Bloom (Gina) an increase in child support plus $2,000 in attorney fees and costs. His main argument is that the court erroneously based its rulings on his past earnings rather than a recent period in which he earned less. We find ourselves compelled to dismiss the appeal for lack of a final order.

BACKGROUND

The parties secured a judgment of dissolution in 2004, premised on a marital settlement agreement, and a printout of the register of actions shows that they have been in litigation ever since. The current matter began when Gina sought modification of child support, plus attorney fees, in October 2007. Barry filed a responsive declaration in December. He acted as his own counsel below, with Gina ultimately represented by counsel Kathryn Brown. Each party retains that status in this court.

The substance of the parties' positions below is unnecessary to relate, but the matter was heard by Judge Donald Sullivan on January 8, 2008. (All unspecified further dates are in 2008.) Judge Sullivan increased monthly child support to $1,969, retroactive to Gina's October 2007 filing, and granted her fees and costs of $2,000. Barry paid the fees and costs immediately, and the court, accepting the parties' calculation of arrearages, ordered that Barry pay them over three months, beginning February 2008, in installments of $505.55.

Important to the appealability problem we confront, the court asked Gina's counsel, "And you'll submit the order?" Counsel replied, "Yes, I will." It appears that the order was submitted by counsel but never signed or filed.

Nevertheless, Barry filed a notice of appeal on May 1. His standard form notice specifies no date for any judgment or order but has a mark in the box designated, "Other (describe and specify code section that authorizes this appeal)." His notice gives no code section but cites, without a page reference, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688 (Griset). His later notice designating the record on appeal requests a transcript of the January 8 hearing.

Barry's civil case information statement (CCIS), filed June 16, gives the date of entry of judgment or order as January 8, without a date for notice of entry of judgment, but attaches several documents. One is a letter of January 29 to the trial court from Gina's counsel, Kathryn Brown, which states that an attached proposed order was sent to Barry on January 16, and that Brown received no response or proposed corrections from him, even after a January 22 follow-up phone message. "Accordingly," she wrote, "I request that the court sign the proposed Findings and Order After Hearing, returning a filed endorsed copy in the enclosed self-addressed stamped envelope. I will serve Mr. Bloom with the filed endorsed Order upon receipt."

The CCIS also has a letter from Barry to counsel Brown stating: "On Thursday, March 6th, I called Dept. 403 to ask for a signed copy of the court order you sent on January 29th. I was told that they had no record of entry for the proposed Findings and Order. [¶] I would appreciate your attention to this matter." A reply letter of March 10, from Brown, states in part: "There is nothing I can do to speed up the court process of signing and returning the Findings and Order After Hearing that I submitted on January 29 . . . . [¶] Had you signed and returned the [proposed order], it is possible that the process would have gone more quickly. [¶] As soon as I receive a filed endorsed copy . . ., I will be sure to mail it to you."

Barry filed his opening brief on July 29, clearly aware that there was still no appealable order and evidently having done nothing further to secure one. His brief acknowledges lack of a "final decision" and that "an order must be signed to be final." He argues, however, that an "exception" applies because "an actual controversy" exists in that he must "set aside substantial sums of money" to meet the oral ruling, and that the matter is "justiciable" because it is "capable of repetition" (citing Roe v. Wade (1973) 410 U.S. 113; SEC v. Medical Committee for Human Rights (1972) 404 U.S. 403; United States v. Munsingwear (1950) 340 U.S. 36; So. Pac. Terminal Co. v. Int. Comm. Comm. (1911) 219 U.S. 498). He also asserts, without case or code citation, that Judge Sullivan has tried to prevent reversal on appeal by not issuing an order and that this "constitutes grounds for disqualification."

Gina's respondent's brief, filed August 14, acknowledges the absence of a signed order, explaining, "As of this date, the Order drafted by Respondent's counsel has not yet been signed, however, the Register of Actions indicates `Mini-Minutes' exist for the hearing held January 8 . . . ." The brief cites no pertinent authority but adds, "Respondent does not dispute the appealability of the Order."

The continued absence of an order is implicitly affirmed in Barry's reply brief of September 3. He adds a heading and brief argument, without citation of authority beyond a broad reference to the "Council on Judicial Performance," that Judge Sullivan's failure to issue an order within 90 days leaves his "tentative" ruling "expired" and requires that it be "preemptively stricken by this court." Our own, more recent inquiry of the superior court clerk's office confirms that there is still no written order on file.

DISCUSSION

Neither party urges dismissal for lack of an appealable order, but the question "goes to our jurisdiction, [leaving us] dutybound to consider it on our own motion" (Olson v. Cory (1983) 35 Cal.3d 390, 398), and dismiss on our own motion if necessary (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674). That Gina does not "dispute" appealability does not matter, for jurisdiction cannot be conferred "by the consent or stipulation of the parties, estoppel, or waiver" (Estate of Hanley (1943) 23 Cal.2d 120, 123; In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 114), by the parties' good intentions (Planning & Conservation League v. Department of Water Resources (1998) 17 Cal.4th 264, 274), or by the "relative merits" of their other arguments (In re Frederick E. H. (1985) 169 Cal.App.3d 344, 348).

The United States Supreme Court decisions that Barry cites, about justiciability and issues capable of repetition yet evading review, do not help with the problem we confront here. Those cases concern mootness, i.e., whether and when a court should decide issues over which it unquestionably had jurisdiction but, due to events arising during the course of the litigation, may no longer be able to grant specific relief. (See, e.g., Roe v. Wade, supra, 410 U.S. at pp. 123-125; SEC v. Medical Committee for Human Rights, supra, 404 U.S. at pp. 405-407; United States v. Munsingwear, supra, 340 U.S. at pp. 39-41; So. Pac. Terminal Co. v. Int. Comm. Comm., supra, 219 U.S. at pp. 514-516.) The question here is not mootness, but whether this court has jurisdiction in the first place. Further, we do not see how Barry's unexplained citation to the Griset case helps him. The ultimate holding there was...