Marr. of Stupp and Schilders

CourtCalifornia Court of Appeal
DecidedMay 18, 2017
DocketA144762
StatusPublished

This text of Marr. of Stupp and Schilders (Marr. of Stupp and Schilders) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marr. of Stupp and Schilders, (Cal. Ct. App. 2017).

Opinion

Filed 5/18/17 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of STEVEN STUPP and ANNEMARIE SCHILDERS.

STEVEN STUPP, Respondent, A144762 v. ANNEMARIE SCHILDERS, (San Mateo County Super. Ct. No. FAM0110799) Appellant.

Appellant Annemarie Schilders appeals several orders made by the family court about a year after the entry of a stipulated judgment of dissolution of her marriage to respondent Steven Stupp. Schilders challenges orders giving Stupp temporary sole legal custody of the parties’ child, requiring that only the parents transport the child to his therapy appointments, continuing a custody trial, requiring Schilders to undergo a vocational evaluation, and reserving jurisdiction over the allocation of the cost of the evaluation. In the published portion of this opinion, we conclude that the family court abused its discretion in ordering the vocational evaluation when there was no support motion pending, and we will reverse that order. Consequently, we need not reach the issue of allocating the evaluation’s cost. We will dismiss the appeal as to the remaining orders because they are not appealable.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A and B of the Discussion section.

1 FACTUAL AND PROCEDURAL BACKGROUND In September 2010, Stupp filed a petition for the dissolution of his marriage to Schilders. Ever since, the parties have been involved in contentious legal proceedings.1 A stipulated judgment of dissolution was entered on March 28, 2014, but custody of the parties’ child, who was just a few months old when the original petition was filed, remains subject to temporary orders. Since June 2014, when Schilders appealed from the stipulated judgment (see Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.]), she has initiated more than a dozen further appeals and submitted several writ petitions.2 DISCUSSION A. The February 6, 2015 Temporary Custody Orders Are Not Appealable 1. Additional Factual and Procedural Background The March 2014 stipulated judgment of dismissal incorporated a July 2012 temporary custody order under which Stupp and Schilders shared joint legal and physical custody of their child. Except in case of emergency, Stupp had sole authority to schedule the child’s medical appointments. The child was to reside with Stupp, and a schedule was established for Schilders to have visits with the child on an increasing basis. By mid-2013, Schilders would be with the child on Tuesdays during the day, and on alternating weekends from Friday morning to Monday morning, with Thursday overnights in the weeks preceding Stupp’s weekends. The goal of the schedule was “to move toward a schedule of more equal joint custody in the future.”

1 See Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.]; Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.]; Stupp v. Schilders (Oct. 25, 2016, A146733 and A147151) [nonpub. opn.]; and Stupp v. Schilders (Jan. 24, 2017, A148811) [nonpub. opn.]. 2 After Schilders filed her opening brief in this appeal she filed an unopposed request for judicial notice, which we took under submission for determination with the merits and now grant.

2 On November 18, 2014, after providing the required notice, Stupp submitted an ex parte request for an order awarding him temporary sole legal custody of the child.3 The request was supported by declarations from Stupp and his attorney, and by a declaration from an attorney for the San Carlos School District who described difficulties in scheduling meetings about the child’s Individualized Education Plan (IEP). On November 24, the family court filed an order granting Stupp temporary sole legal custody of the child, and scheduling a hearing for December 23, 2014.4 In advance of the December 23 hearing, Schilders filed a responsive declaration objecting to Stupp’s request and requesting an evidentiary hearing, and also filed a declaration from one of her friends in support of her objections. At the December 23, 2014 hearing, the family court agreed to set an evidentiary hearing, and pronounced “a temporary order granting sole legal custody” to Stupp, with the condition that Stupp enroll the child in the San Carlos School District within the next two to four weeks. The court explained that the purpose of the order was “so that [Stupp] can arrange to get the minor child enrolled in school, deal with the IEP process and continue to deal with Dr. Weiss as to therapy for the minor child.” The family court also stated that “[t]he amount of difficulty and the obstruction of virtually every request of [Stupp] that is in the best interest of the minor child by [Schilders] has been outrageous frankly and that’s the basis for this court’s ruling.” The court ordered that Stupp or Schilders transport the child to therapy appointments with Dr. Weiss. The evidentiary hearing, for which Schilders requested six days, was set for April 6, 2015, in consultation with the parties. A written version of the court’s orders was filed on February 6, 2015.

3 At that time, the July 2012 temporary custody order was in effect, although Stupp and Schilders had sought to modify the order at different times. 4 Schilders separately appealed the family court’s November 24, 2014 order granting Stupp temporary legal custody. We dismissed the appeal of that order. (See Stupp v. Schilders (May 16, 2017, A144007) [nonpub. opn.].)

3 2. Analysis Schilders argues that the family court erred in awarding Stupp temporary sole legal custody and in ordering that only the parents transport the child to his therapy appointments. She argues that these custody orders are appealable as postjudgment orders pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). After she filed her opening brief, Stupp filed a motion to dismiss the appeal as to those orders, arguing that because they are interlocutory, temporary orders they are not appealable. We took the motion under submission for determination with the merits, and we now grant it. As we have stated previously in this matter,5 Code of Civil Procedure section 904.1, subdivision (a)(2) permits the immediate appeal of postjudgment orders, but “this does not literally mean that any order after a previous judgment is appealable. To be appealable, a postjudgment order must meet certain requirements. [Citation.] Some postjudgment orders are not appealable because, ‘although following an earlier judgment, [they] are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal. [¶] . . . [¶] . . . [Such postjudgment orders lack] finality in that they [are] also preparatory to later proceedings.’ ” (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403, citing and quoting Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-653.) Furthermore, it is well-established that temporary custody orders are not appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559 (Lester).) Here, the family court stated on the record that it was making temporary orders with respect to custody of the party’s child, pending an evidentiary hearing that was scheduled for April 6, 2015. Because these are temporary custody orders preliminary to a later determination of custody, the orders are not appealable.

5 See Stupp v. Schilders (Mar. 25, 2016, A143186) [nonpub. opn.]; Stupp v. Schilders (Oct. 25, 2016, A146733 and A147151) [nonpub. opn.]; and Stupp v. Schilders (Jan. 24, 2017, A148811) [nonpub. opn.].

4 Schilders argues that the orders here are appealable as postjudgment orders modifying custody. We are not persuaded. Relying primarily on Enrique M. v. Angelina V.

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