California Court of Appeal Jul 16, 2013 No. D062664Unpublished
Filed 7/16/13 Marriage of Svendsen CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of ERIC I. and ANN C. SVENDSEN. D062664 ERIC I. SVENDSEN,
Respondent, (Super. Ct. No. D520079)
v.
ANN C. SVENDSEN,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Susan D.
Huguenor, Judge. Appeal dismissed.
Sergio W. Stevens for Appellant.
Eric I. Svendsen, in pro. per., for Respondent.
In this marital dissolution action, the court ordered temporary custody of the
parties' two minor children, Emily, who was 15 at the time of the hearing, and Lukas,
who was 10 at the time of the hearing, to their father, Eric Svendsen, with an 82 percent
visitation share to father. The court also made orders for spousal support and child
support.
Ann C. Svendsen appeals that ruling, asserting the court erred in accepting the
recommendation of Family Court Services as to custody because it was based upon a
"lack of evidence" and "misinterpreted evidence." Eric contends the temporary custody
For reasons we shall explain, we dismiss this appeal because an interim custody
determination is not an appealable order.
FACTUAL AND PROCEDURAL BACKGROUND
Because we are dismissing this appeal as being from a nonappealable order, we
discuss the underlying facts only briefly.
It was alleged in this case that Ann had a history of potentially abusive behavior
towards the children and demonstrated negative parenting behaviors. Family Court
Services recommended the change in temporary custody from a 50 percent shared
custody to legal custody being placed with Eric. The court adopted that recommendation.
At the hearing wherein the court made the temporary custody order and resolved other
issues, the court asked counsel for Ann whether the court should consider child support
and attorney fees at that time. Counsel for Ann indicated that he did not want those
issues addressed at that time. The court then asked, "[W]hat is there yet to do before we
can fully resolve this matter?" Counsel for Ann indicated that the parties were engaged
in settlement negotiations regarding separate property and requested that another hearing
be set for "90 days out." The court then set a settlement conference for December 2012.
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As part of that order the court also directed that Ann pay Eric $219 per month in child
support.
DISCUSSION
As the Court of Appeal stated in Lester v. Lennane (2000) 84 Cal.App.4th 536,
559-560 (Lester), "A temporary custody order is interlocutory by definition, since it is
made pendente lite with the intent that it will be superseded by an award of custody after
trial. [Citations.] Code of Civil Procedure section 904.1 bars appeals from interlocutory
judgments or orders 'other than as provided in paragraphs (8), (9), and 11. . . .' [Citation.]
Temporary custody orders are not listed in any of those paragraphs. Therefore, this
statute bars the appealability of such orders." (Fn. omitted.)
In her statement of appealability, however, Ann asserts that because the temporary
custody order also determined child support, it is appealable as a "collateral order." This
contention is unavailing.
"One exception to the 'one final judgment' rule codified in Code of Civil
Procedure section 904.1 is the so-called collateral order doctrine. Where the trial court's
ruling on a collateral issue 'is substantially the same as a final judgment in an independent
proceeding' [citation], in that it leaves the court no further action to take on 'a matter
which . . . is severable from the general subject of the litigation' [citation], an appeal will
lie from that collateral order even though other matters in the case remain to be
determined. [Citation.] . . . [¶] In determining whether an order is collateral, 'the test is
whether an order is "important and essential to the correct determination of the main
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issue." If the order is "a necessary step to that end," it is not collateral.' " (Lester, supra,
84 Cal.App.4th at p. 561.)
Here, the temporary custody order directs the payment of money and is dispositive
of the parties' rights concerning child support. But the question then arises, is child
support a collateral issue? We conclude that it is not.
Because the temporary custody did not finally resolve any matter "severable from
the general subject of the litigation," it is not appealable. (In re Marriage of Van Sickle
(1977) 68 Cal.App.3d 728, 735.) A temporary custody order contemplates further review
and a possible change in custody given a change in circumstances. Indeed, in this case
temporary legal custody was originally 50 percent each and then changed to 100 percent
in favor of Eric.
Moreover, the child support order was "important and essential" to the issue of
custody because it determined the amount of money Ann was to pay Eric for the care of
the children given his 82 percent visitation time. Thus, the temporary custody order is
not a "collateral order" on this basis as well and is not appealable.
Finally, as the Court of Appeal discussed in Lester, supra, 84 Cal.App.4th 536,
temporary custody orders are not appealable on grounds of policy: "The very nature of
such orders compels the swiftest possible review of any challenge. The writ process, not
the appeal process, is the way to get that review. [¶] In most custody dispute cases,
young children bond with their primary custodial parents. The trial court must place the
child's best interest first in any long-term custody decision. [Citations.] Thus, the child's
bond with the primary custodial parent will often weigh heavily in the court's mind.
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Once the bond is established, the court is likely to find that the child's best interest
requires preserving that bond to maintain stability in the child's life. [¶] A noncustodial
parent who seeks to obtain custody will often be at a disadvantage by the time of trial if
the child has bonded with the custodial parent. The noncustodial parent's only effective
recourse is to obtain immediate review of any objectionable temporary custody order.
This can be done by filing a petition for writ, a procedure [appellant] failed to use in this
case. It cannot be done by filing an appeal which will sit in abeyance while the case
works its way to trial and decision—and while the bond between child and custodial
parent strengthens and deepens." (Id. at p. 565.)1
DISPOSITION
The appeal is dismissed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
1 We note that Ann has not filed a reply brief responding to Eric's contention that the temporary custody order is not an appealable order. By not doing so, we conclude that she has conceded the merits of Eric's position. 5
AI Brief
AI-generated · verify before citing
Holding. The court held that a temporary custody order, including associated child support orders, is an interlocutory order and therefore not appealable. The proper mechanism for challenging such an order is through a writ petition rather than an appeal.
Issues
Whether a temporary custody order is an appealable order.
Whether a temporary custody order that includes child support is appealable under the collateral order doctrine.
Disposition. Appeal dismissed.
Quotations verified verbatim against the opinion
“For reasons we shall explain, we dismiss this appeal because an interim custody determination is not an appealable order.”
“A temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial.”
“The writ process, not the appeal process, is the way to get that review.”