California Court of Appeal Sep 4, 2024 No. E080539Unpublished
Filed 9/4/24 Marriage of Ackerman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of RICHARD and STEFANIE L. ACKERMAN.
RICHARD D. ACKERMAN, E080539 Appellant, (Super.Ct.No. SWD1200223) v. OPINION STEFANIE L. ACKERMAN,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,
Respondent.
APPEAL from the Superior Court of Riverside County. Nicholas A. Firetag,
could have appealed from the order modifying child support because it was an order
made after the judgment of divorce. (§ 904.1, subd. (a)(2); County of Los Angeles v.
Patrick (1992) 11 Cal.App.4th 1246, 1250; In re Marriage of Padilla (1995) 38
Cal.App.4th 1212, 1216.) Husband failed to timely appeal directly from the order
modifying child support. Rather, he appealed from the unappealable order denying the
motion to vacate. “The existence of an appealable order or judgment is a jurisdictional
prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not
appealable, the appeal must be dismissed.” (Canandaigua Wine Co., Inc. v. County of
Madera (2009) 177 Cal.App.4th 298, 302.) As a result, we will dismiss this appeal.
Husband contends the motion for new trial extended the deadline to appeal. “If
[a] motion for a new trial is denied, the time to appeal from the judgment is extended for
all parties until the earliest of: [¶] (A) 30 days after the superior court clerk or a party
serves an order denying the motion or a notice of entry of that order; [¶] (B) 30 days
after denial of the motion by operation of law; or [¶] (C) 180 days after entry of
judgment.” (Cal. Rules of Court, rule 8.108(b), italics added.)
The underlying order modifying child support was announced in February 2022,
and filed in March 2022. September is six months after March. Husband’s motion for
new trial was denied on November 23, 2022. The six-month deadline applies in this
case because it is the earliest of the deadlines. Husband’s notice of appeal was filed in
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January 2023, which means he missed the September 2022 deadline. Husband’s appeal
is untimely and must be dismissed.
Husband asserts that the deadline to appeal should have been extended because
he is disabled. Husband did not comply with the procedural requirements for requesting
a disability accommodation, e.g., requesting an accommodation at least five court days
prior to the notice of appeal deadline. (Cal. Rules of Court, rule 1.100(c).)
Additionally, Husband has not meaningfully analyzed whether a court has the authority
to extend the deadline to appeal as a disability accommodation (Cal. Rules of Court,
rule 1.100(f); Civ. Code, § 51, subd. (c)). (Central Valley Gas Storage, LLC v. Southam
(2017) 11 Cal.App.5th 686, 694-695 [“appellant must present meaningful legal
analysis”].) For these reasons, if we had jurisdiction, we would deem forfeited
Husband’s assertion that he should have been given the disability accommodation of an
extended statute of limitations.
Husband contends it is a matter of due process that we address the substance of
his appeal because he “has already faced three separate [child support] contempt
proceedings,” due to his inability to pay the increased amount of child support. On the
merits, Husband’s appeal fails. Husband is appealing from the denial of his motion to
vacate under section 473, subdivision (b), which requires “mistake, inadvertence,
surprise, or excusable neglect” by the party or the party’s attorney. Husband’s motion
was incorrectly based upon an alleged mistake by the family court, in particular, the
allegation that the family court ignored the evidence of Husband’s disability. Husband
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did not argue a basis upon which a section 473, subdivision (b), motion could be
granted. Therefore, on the merits, the trial court did not err.
DISPOSITION
The appeal is dismissed with prejudice. Respondents are awarded their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1)&(a)(2).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal with prejudice because the appellant failed to file a timely notice of appeal from the underlying child support modification order and attempted to appeal from a non-appealable order denying a motion to vacate.
Issues
Whether the appellant's motion to vacate was a proper procedural vehicle to challenge the child support modification order.
Whether the appeal from the denial of the motion to vacate was timely filed.
Whether the denial of a motion to vacate is an appealable order when the underlying order could have been appealed.
Disposition. Dismissed
Quotations verified verbatim against the opinion
“The untimely appeal should therefore be dismissed.”