In Re Marriage of Lloyd

* Pursuant to California Rules of Court, rules 976 and 976.1, this opinion is certified for partial publication. The portions to be published follow.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 218 OPINION

Donia Kate Green appeals from an order modifying the custodial arrangements for her two minor daughters to give sole legal and physical custody to her former husband, Stephen F. Lloyd. She raises a number of challenges to the order. In the published portion of this opinion, *Page 219 we will conclude the trial court's practice of appointing a guardian ad litem to represent minors in family law cases is without authority. In the unpublished portions, we will address appellant's various contentions and conclude the matter must be remanded for reconsideration of the issues of custody and visitation.

STATEMENT OF THE CASE AND FACTS The procedural history and facts of this case are not relevant to the issues discussed in the published portion of this opinion and not related for publication.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .* DISCUSSION I.* . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II. (1a) The guardian ad litem was appointed on April 14, 1994, pursuant to respondent's motion. Appellant urges this appointment was improper because it was made without notice; the guardian ad litem does not meet the criteria set out in the Humboldt County Trial Court Rules or state law for evaluators in child custody disputes; and the guardian ad litem was influenced by the court's prejudice against appellant.

The guardian ad litem urges appellant has waived the right to contest the procedures by which the appointment was made by failing to appeal the order making the appointment. (2) If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal. (Code Civ. Proc., § 906; Kinoshita v.Horio (1986) 186 Cal.App.3d 959, 967 [231 Cal.Rptr. 241]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1995) ¶ 2:13, p. 2-8.) (3) An order appointing a guardian ad litem is not appealable. (In reMarriage of Caballero (1994) 27 Cal.App.4th 1139, 1149 [33 Cal.Rptr.2d 46].) The guardian ad litem apparently views the appointment order as an appealable order made after an appealable judgment. (Code Civ. Proc., § 904.1, subd. (b).) (4) Not every postjudgment order, however, is appealable. (Lakin v. WatkinsAssociated Industries (1993) 6 Cal.4th 644, *Page 220 651 [25 Cal.Rptr.2d 109, 863 P.2d 179].) To be appealable, a postjudgment order must raise issues different from those arising from an appeal from the judgment, "`affect the judgment or relate to it by enforcing it or staying its execution,'" and itself be final. (Ibid., fn. 3.) The order must be one that "is not preliminary to later proceedings, and will not become subject to appeal after some future judgment." (Id. at p. 656; In reMarriage of Levine (1994) 28 Cal.App.4th 585, 589 [33 Cal.Rptr.2d 559].) (1b) Here, as the guardian ad litem was obviously appointed in contemplation of future hearings and orders on custody and visitation, the appointment order was preliminary to these future proceedings and not appealable. Accordingly, it is subject to appeal now, on review of the custody order on appeal.3 (5a) Rather than address the merits of appellant's contentions, however, we turn our attention to a more fundamental problem with the appointment of the guardian ad litem. As reflected in a May 1995 memorandum from Judge Buffington, addressed to family law attorneys, of which we take judicial notice (Evid. Code, § 452), the trial court apparently makes a general practice of appointing a guardian ad litem in family law cases. In this memorandum, Judge Buffington refers to the guardian ad litem as being appointed to "present reports and recommendations," to "make orders in re" specified issues relating to custody, visitation, and parenting, and to "give the Court input" on those issues. The cited authority for such appointment is Evidence Code section 730 and Code of Civil Procedure sections 638 and 639. The memorandum names Davis and two other individuals who may be appointed and states, "This policy is to be applied to all active cases."