In re Marriage of Freeman
| Docket Number | F083677 |
| Decision Date | 13 March 2023 |
| Parties | In re the Marriage of VANESSA and MICHAEL A. FREEMAN. v. MICHAEL A. FREEMAN, Respondent. VANESSA FREEMAN, Appellant, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County. No FL-18-001082 Alan K. Cassidy, Judge.
Vanessa Freeman, in pro. per., for Appellant.
No appearance for Respondent.
Vanessa Freeman, representing herself, appeals from an order awarding physical custody of her daughter to Michael Freeman.[1] Vanessa raises wide-ranging claims in pursuit of "new orders granting [her] sole physical custody" or, alternatively, a "proper long cause hearing in front of a different court/ judge."
In designating the record on appeal, Vanessa filed form APP-003[2] and originally elected to proceed with the reporter's transcript on appeal. The form specifically references the "Transcript Reimbursement Fund" (Bus. &Prof. Code, § 8030.2 et seq.), but Vanessa did not attach a copy of any reimbursement application.
The superior court issued Vanessa a "notice of default" because she failed to "deposit the cost of preparation of the Reporter's Transcript . . .." Vanessa subsequently filed a corrected designation, electing instead to proceed without a reporter's transcript while acknowledging her election would severely limit this court's review.
The "Clerk's Transcript" was prepared "at no cost" due to the fact "a fee waiver . . . was granted . . .." As Vanessa later explained, she "was under the impression the reporters' fees for transcripts for the record would be covered under [the] fee waiver . . .."[3]
We have carefully reviewed the record with these facts in mind. We will affirm the trial court's September 8, 2021, order.
In early 2021, Vanessa filed an "ex parte application for orders" seeking injunctive relief after Michael allegedly refused to return their then 11-year-old daughter in compliance with the child custody order in place at the time. The trial court granted temporary emergency orders awarding sole physical custody to Vanessa by removing visitation from Michael and ordered Michael to return the minor child to Vanessa. The case was set for a regular hearing.
Prior to the hearing, Michael replied to Vanessa's request for orders. Michael asked for temporary custody and claimed he kept his daughter "[f]or [h]er [s]afety" and "[w]asn't [w]illing [t]o [h]and [h]er [o]ver [t]o [h]er [a]buser."
At the hearing, the court left in place temporary orders including "sole physical custody" to Vanessa and ordering "[n]either party [to] say anything, do anything, or allow any conduct which might tend to alienate the affections of the minor child[] for the other parent." The case was again continued for a "hearing on the Family Court Services Evaluator's Report."
A few days later, Vanessa filed for a "change" in orders because Michael "alienated" their daughter's "feelings." Specifically, Vanessa sought "[n]o visitation [for Michael] until supervised visitation can be arranged." The judge issued temporary orders consistent with the request.
After the hearing, Michael filed for temporary emergency orders, seeking "full custody of [his] daughter ... due to the physical/mental abuse that Vanessa ... continues to give to [their] daughter." The court denied the request "until hearing/mediation."
On May 4,[4] the court held a hearing after receiving the aforementioned report.
The court found "an immediate concern for the [child's] well-being" and "generated" "[f]ormal custody orders . . .." The orders awarded Michael with "sole physical custody" and all "non-designated time with the [child]." They also reiterated the prior antialienation order.
Because Vanessa objected to the report and orders, the case was set for trial. In the interim before trial, Vanessa continued to file various requests for orders seeking to regain physical custody of her daughter.
On September 8, the court held a trial on Vanessa's "objection to" the report. The trial was not transcribed, but the minute order indicates the court "read and considered all pleadings and declarations from June through and including current to date," the "[p]arties provide[d] testimony," and Vanessa's counsel argued the matter.
The court, in confirming custody of the minor child to Michael, ruled as follows:
The case was subsequently set for a "Status Review Hearing."
Vanessa continued to challenge the court's custody orders, including filing a nonstatutory motion to reconsider.[6] The court ultimately denied the motion to reconsider. On December 10, Vanessa filed a notice of appeal from the May 4 and September 8 rulings.
Vanessa raises numerous issues. She argues venue was improper, her fundamental rights were violated, the court abused its discretion by delegating authority to the "mediator," "improper application of the rules of evidence," the "mediator" violated the California Rules of Court, the court was biased and abused its discretion, and her trial counsel was ineffective.
On our own, we consider whether Vanessa's claims are appealable. We conclude an appeal from the September 8 hearing is timely.
Addressing the issues on the merits, as best we can due to the limited record and briefing, we find no error. We will affirm the trial court's September 8 order.
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com'n. (2001) 25 Cal.4th 688, 696.)" 'Compliance with the time for filing a notice of appeal is mandatory and jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must dismiss the appeal.'" (City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 189.)
California Rules of Court, rule 8.104[7] sets the time to appeal at "60 days after" the appealing party is served with "a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment . . .." (Rule 8.104(a)(1)(A) &(B).) If there is no service, then the time to appeal is "180 days after the entry of judgment." (Rule 8.104(a)(1)(C).)
Here, there is no notice of entry of judgment nor is there a filed-endorsed copy of the judgment. Accordingly, the time to appeal was 180 days. The September 8 ruling falls within 180 days from the date the notice of appeal was filed, but the May 4 ruling does not.
The remaining question is whether the September 8 ruling is legally appealable. Orders modifying final custody judgments are appealable as orders made after a final judgment. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378; Code Civ. Proc., 904.1, subd. (a)(2).) We construe the September 8 ruling as an order after judgment because it was made after a contested trial where the court essentially finalized the emergency orders adopted on May 4. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 [].) Accordingly, the September 8 ruling is appealable.
(Herrera v. Doctors Medical Center of Modesto (2021) 67 Cal.App.5th 538, 547.)
An appeal without a reporter's transcript is treated "as an appeal 'on the judgment roll,' to which the following rules apply[.]' "Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment [or order] on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation] . . . and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it ._"' "[8] (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574-575 (Elena S.).)
Vanessa claims "[w]hen [she] filed [her] request to have the orders modif[ied], [she] was in fact requesting a change of venue." Based on this explanation, there is, not surprisingly, no motion to change venue in the record.
Indeed in the original filings Vanessa refers to,...
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