Olson v. Superior Court of L.A. Cnty., B258767

• Decision Date: 30 July 2015
• Docket Number: B258767
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Christopher Dale OLSON and Heather Rae Olson Christopher Dale Olson, Petitioner, v. The Superior Court of Los Angeles County, Respondent; Heather Rae Olson, Real Party in Interest.

238 Cal.App.4th 1458

190 Cal.Rptr.3d 715

IN RE the MARRIAGE OF Christopher Dale OLSON and Heather Rae Olson

Christopher Dale Olson, Petitioner

v.The Superior Court of Los Angeles County, Respondent;

Heather Rae Olson, Real Party in Interest.

B258767

Court of Appeal, Second District, Division 1, California.

Filed July 30, 2015

Petition for rehearing denied August 31, 2015

Petition for review denied October 28, 2015

Rombro & Associates, S. Roger Rombro, Melinda A. Manley, and Kelly A. Tufts, Manhattan Beach, for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Opinion

ROTHSCHILD, P.J.

Christopher Dale Olson filed for divorce from Heather Rae Olson, requesting joint custody of their two young children.¹ Heather did not respond, and a default judgment of dissolution, including a custody order, was granted. Over a year later, Heather petitioned for a modification of the custody order. Christopher objected, contending that because the default judgment remained in effect, Heather lacked standing to request a modification.

The trial court ruled that Heather did have standing to seek the modification and ordered the couple to participate in a parenting plan assessment program. Although this order is not appealable, we exercise our discretion to treat this appeal as a petition for a writ of mandate and deny the petition.

We hold that a parent has standing under Family Code section 3087 to request a modification of a child custody judgment notwithstanding that the judgment sought to be modified was a default judgment taken against the parent who is petitioning for the change.

FACTS AND PROCEEDINGS BELOW

On October 12, 2011, Christopher filed a petition for dissolution of marriage to obtain a divorce from Heather, his wife of nine years. Heather did not file a response, and on February 19, 2013, the court granted the divorce in a default judgment. Heather was present in court as a witness. The court granted a judgment of dissolution of the marriage and granted the parties joint legal custody of their twin seven-year-old daughters. Each parent was entitled to physical custody of the children approximately half the time. The judgment reserved spousal and child support to be determined at a later date.

The relationship between Christopher and Heather subsequently deteriorated, and in June 2014, Heather filed a petition to modify joint custody. Heather proposed that Christopher have custody of the twins only on Thursday nights and alternate weekends. The remainder of the week, they would stay with Heather. Christopher opposed Heather's request, arguing for the existing joint custody schedule to remain in effect.

Christopher also filed a separate petition in which he contended that because the divorce judgment was granted by default judgment against Heather, Heather lacked the standing to request a change in the judgment, and that the court lacked jurisdiction to consider her petition.

On August 20, 2014, the court denied Christopher's petition, ruling that Heather did have standing, and the court did have jurisdiction to decide her petition. The court also ordered Christopher and Heather to attend a two-day parenting plan assessment to attempt to work out their disagreements. The court declined to rule on the financial aspects of Heather's petition until the custody matter was resolved.

On September 9, 2014, Heather filed a motion requesting child support from Christopher. The next day, September 10, Heather filed a petition requesting that the court order Christopher to produce documents in response to a discovery request. On the same day, Christopher filed a notice of appeal from the court's order accepting jurisdiction and proceeding on the merits of Heather's child custody request.

After participating in the parenting plan assessment, the parties agreed to a stipulated order, filed October 16, 2014, which confirmed the existing joint custody schedule as had been provided in the default judgment. The court entered this stipulated order.

DISCUSSION

1. Appealability and Mootness

The order from which Christopher has appealed is not appealable. Under Code of Civil Procedure section 904.1, subdivision (a)(2), a party may appeal “[f]rom an order made after a [final] judgment.” However, not every order following a final judgment is appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 [25 Cal.Rptr.2d 109, 863 P.2d 179].) To be appealable, a postjudgment order must “ ‘either affect the judgment or relate to it by enforcing it or staying its execution.’ ” (Id. at pp. 651–652, 25 Cal.Rptr.2d 109, 863 P.2d 179, quoting Olson v. Cory (1983) 35 Cal.3d 390, 400 [197 Cal.Rptr. 843, 673 P.2d 720].) In particular, postjudgment orders that “lack[ ] finality in that they [are] also preparatory to later proceedings” fail this test and are not appealable. (Lakin, at p. 653, 25 Cal.Rptr.2d 109, 863 P.2d 179.) In divorce cases, this rule has been applied to dismiss appeals from orders that contemplated further proceedings. (E.g., In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 ; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403, 124 Cal.Rptr.2d 719.) For example, in In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1218 , the court held that a postjudgment court order approving an arbitration award was not appealable because it required the appointment of a forensic accountant to calculate the amount of the award. The decision as to the amount of the award would not become final until adopted by the judge, and the order would not become final and appealable until then. (Ibid. )

In this case, Christopher did not appeal from a court order finally approving or denying a modification of custody, but rather from an order that the parties attend a parenting plan assessment. This order was “preparatory to [a] later proceeding[ ]” and therefore not appealable. (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at p. 653, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

Nevertheless, we will decide this case on the merits. This case presents “unusual circumstances” in which an appellate court may exercise its “discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate.” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367 .) As in H.D. Arnaiz, Ltd. v. County of San Joaquin, the record in the current case is sufficient, there is no indication that the trial court will appear in the writ proceeding, and, most importantly, dismissing the appeal at this point would be “ ‘ “ ‘unnecessarily dilatory and circuitous....' ” ’ ” (Id. at p. 1367, 118 Cal.Rptr.2d 71.) Christopher has opposed three separate requests by Heather on the grounds of standing, and there is every indication Christopher will continue his opposition in the case of all future similar requests. Thus, it is in the interests of judicial economy to decide this case on the merits.

For similar reasons, we will decide this case on the merits even though we could dismiss it as moot. “A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire which prevent the appellate court from granting any effectual relief. [Citation.]” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566 .) Here, the court ordered the same child custody arrangement as contained in the original default judgment. Because the trial court granted Christopher's request regarding the custody arrangement, there is no “effectual relief” we can provide to Christopher. (Ibid. ) However, “[i]f an action involves a matter of continuing public interest and the issue is likely to recur” (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715–716 [106 Cal.Rptr. 21, 505 P.2d 213] ), or if “ ‘there is a distinct possibility that the controversy between the parties may recur’ ” (Westchester Secondary Charter School v. Los Angeles Unified School District (2015) 237 Cal.App.4th 1226, 1233, fn. 2 , quoting Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1034 ), an appellate court may decide an issue that would otherwise be dismissed as moot. (Ibid . ) Both circumstances are present here.

2. Modification of Custody Following a Default Judgment

Christopher claims that the trial court's entry of a default judgment against Heather bars Heather from seeking a modification of the joint custody arrangement unless she first obtains relief from the default judgment. We disagree.

Christopher argues that this case should be viewed as if it were any other civil dispute. He relies on Family Code section 210, which provides that unless another law or rule specifies otherwise, family court cases are governed by the same procedural rules as civil cases generally. Because a defendant in a civil case who has had a default judgment against her may not file pleadings or take further steps in the case while the default judgment remains in effect (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386 ), Christopher contends that Heather has no standing to seek a modification of the joint custody arrangement ordered in the default judgment.

We disagree. The supervision of the custody of children is fundamentally different from other court functions. The court's primary concern must be the well-being of the children, not the preferences of the parties themselves. (See Fam.Code, § 3020, subd. (a) ; In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020, 1026 [“The entire scheme underlying custody decrees is that primary consideration must be given to the welfare of the child.”].) For this reason, the court retains jurisdiction of a divorce case in order to supervise issues such as custody: “The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.” (Fam.Code, § 3022, italics added.) The court's power to order modifications of custody for the benefit of...