Lester v. Lennane
| Decision Date | 31 October 2000 |
| Docket Number | No. C032406.,No. C031941.,No. C030662.,C030662.,C031941.,C032406. |
| Citation | 84 Cal.App.4th 536,101 Cal.Rptr.2d 86 |
| Parties | Judith LESTER, Plaintiff and Respondent, v. James P. LENNANE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Jerilyn L. Borack; Fancher & Wickland and Paige Leslie Wickland, San Francisco, for Defendant and Appellant.
Eisen & Johnston Law Corporation, Jay-Allen Eisen, Marian M. Johnston, Sacramento, Frederic L. Snowden; and Claire M. Buckey, Sacramento, for Plaintiff and Respondent.
In this child custody case, appellant James Lennane appeals from a series of orders made in the family court. In case No. C030662, Lennane appeals from a pretrial order made on July 22, 1998, limiting him to one hour a day of visitation with the newborn child of Lennane and respondent Judith Lester. In case No. C031941, Lennane appeals from a pretrial order made on November 13, 1998, also on the subject of temporary custody and visitation. In case No. C032406, Lennane appeals from a judgment after trial which awarded Lester primary physical custody of the child. We granted Lennane's motion to consolidate the appeals.
We shall dismiss the appeals in cases No. C030662 and C031941 because the orders from which Lennane purports to appeal are nonappealable; rather, immediate review can be sought only by petition for writ relief. Nevertheless, Lennane is entitled to challenge those orders via his subsequent appeal from the judgment. Although his challenges to those orders, made in his appeal from the judgment, would ordinarily be moot, we shall address them on the merits because they raise the serious charge of "gender bias" against a sitting judge of the family court. Concluding that Lennane's contentions as to both the temporary orders and the final judgment are without merit, we shall affirm the judgment in case No. C032406.
Lennane, a former Sacramento resident living in Florida with his second wife and their eight-year-old daughter, but retaining business and family ties to Sacramento, met Lester in Sacramento in October 1997. Lester, a divorced woman with a 10-year-old daughter who lived with her, was the host of a local radio program about business.
Knowing of Lennane's history as a successful businessman in the Sacramento area before his relocation to Florida, Lester invited him on her program as a guest. Lennane appeared on the program in early November 1997, then saw Lester socially on the evenings of November 9 and 10. The second evening ended with an act of sexual intercourse. Lennane returned to Florida. No continuing relationship developed between the two.
After Lennane left Sacramento, Lester learned that she was pregnant. On December 23, 1997, she called him to tell him that she believed he was the father. Lennane at first urged Lester to have an abortion; she refused. At his insistence, she underwent DNA testing, which confirmed his paternity.
Pretrial proceedings.
On March 24, 1998, Lester filed a Uniform Parentage Act paternity complaint and a motion for custody, child support, and health and dental costs as to the parents' yet-unborn daughter; the motion also sought attorney fees and costs. She requested primary physical custody and joint legal custody to begin after the child's birth, expected to occur on or around June 15, 1998. In a supporting declaration, Lester acknowledged that Lennane desired a parental relationship with the child and averred: "It is my hope that our child will bond with her father and hopefully be afforded a relationship with Mr. Lennane's daughter, our daughter's half sister." She also averred that she was presently unemployed but hoped to resume full-time employment after her daughter's birth, that she had attempted to settle the matter with Lennane but had met with "evasiveness and ... veiled threats," and that she feared Lennane would take unfair advantage of her if she did not file this action.
Lennane responded on May 13, 1998, by conceding his paternity and requesting an immediate custody evaluation and a long cause hearing to take splace on June 18 or 19, 1998, on custody and support issues. He argued that it was necessary to begin the evaluation now, "prior to any advantage either party could obtain from a de facto custody arrangement." In a supporting declaration, he averred that he sought physical custody of the child after her birth, but would not relocate to take custody: "The court will have to make the decision whether this child will reside with me in Florida or with the Plaintiff here in California." (He also questioned Lester's estimated date of delivery, calculating that since the child was conceived in November 1997, she ought to be born in August 1998.) He declared himself to be a retired businessman and offered to stipulate for guideline support purposes (Fam.Code, § 4056) that his income was "extraordinarily high."1
Lester opposed Lennane's request for an immediate custody evaluation. She now demanded sole legal and physical custody of the child. She asserted that her estimate of the child's birth date was based on the possibility that she would be unable to carry the child to term, due to the stress of the pregnancy, her preexisting health problems, and the surrounding circumstances (including Lennane's alleged hiring of an investigator to invade her privacy and his alleged demands for a lateterm abortion).
The family court (Judge Charles C. Kobayashi) heard the parties' motions on May 20, 1998. Judge Kobayashi refused to make any order on custody at that time or to order an immediate custody evaluation, reasoning that any order or evaluation before the child's birth was premature. Judge Kobayashi also expressed concerns that a psychological evaluation at this time might stress Lester, whose health appeared not to be the best, and adversely affect the pregnancy. Judge Kobayashi did not sympathize with Lennane's position that the court needed to choose now whether the child belonged in Florida or California: 2
However, Judge Kobayashi ordered that Lester turn over her medical records to Lennane, that he be allowed to participate in the birthing process, and that Lester provide him all current and ongoing information about the birth.
The next month, at Lennane's request, the parties met twice with marriage, family, and child counselor Carol Greenfield for confidential mediation regarding future custody arrangements. However, Lester walked out of the second session on July 9, 1998, claiming that the process was too stressful.
On July 10, 1998, Lester was hospitalized. Her doctor decided labor should be induced because the child's health was at risk.
Lester's then attorney, Donna DeCuir, left a voice-mail message for Lennane's attorney, Jerilyn Borack, informing Borack that Lester was in labor; however, no one directly notified Lennane. The child, who was named Ava, was born on the morning of Sunday, July 12, 1998. DeCuir called Borack at home to tell her of the birth.
Ava was born premature, weighing only 5 pounds, 7 ounces. She remained in an incubator for five days. When discharged from the hospital on July 17, 1998, her weight had dropped.
On July 14, 1998, two days after Ava's birth, Lennane brought an ex parte motion for joint legal and physical custody to both parents "pending mediation and evaluation." Lennane requested up to 12 hours of parenting time a day once Ava was released from the hospital. He proposed a shared "bird nesting" custody arrangement, where the parties would secure a home for the baby while maintaining their personal residences elsewhere.3 He also requested, and the court issued, an order that the parents immediately begin nonconfidential mediation with Carol Greenfield.
Lester opposed the proposals for shared custody and "bird nesting." She requested primary physical custody based on her intention to breast-feed Ava as soon as possible.
The parties began court-ordered mediation with Greenfield on July 17, 1998. On July 19, Greenfield issued a report recommending one hour of visitation per day for Lennane from July 18 through July 27. Further mediation was scheduled for July 27.
Judge Kobayashi held a hearing on the motion on July 22, 1998. Lennane's counsel opposed Greenfield's recommendation. Judge Kobayashi felt that it was still premature to make any custody orders given the infant's precarious state of health, proposing instead that he set the matter for long cause hearing and that the parties return to Greenfield for further discussion in the meantime. At Lennane's counsel's insistence that an order be made, however, Judge Kobayashi adopted Greenfield's recommendation as a pendente lite custody order pending further mediation. Over Lester's objection, Judge Kobayashi also ordered the commencement of a custody evaluation by a court-appointed expert under Evidence Code section 730 (hereafter section 730), with directions that it be completed by November 24,1998.4
Judge Kobayashi entered a minute order incorporating these rulings on July 22, 1998, and thereafter entered a formal order filed on September 15, 1998. On September 18, 1998, Lennane filed an appeal from the portions of the order which adopted Carol Greenfield's report as a court order.5
After meeting with Greenfield on July 27, 1998, Lester and Lennane agreed...
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- Lester v. Lennane
- Olson v. Superior Court of L.A. Cnty., B258767
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Morton v. Morton (In re Morton), F073689
...City of Fresno (2014) 229 Cal.App.4th 340, 362; see In re Marriage of Olson (2015) 238 Cal.App.4th 1458, 1463; Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) We conclude this test for mootness under California law applies to orders granting or denying child support under the Family Code......
- Morton v. Morton (In re Morton), F073689