Marriage of Lin CA4/3

Filed 3/26/14 Marriage of Lin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re Marriage of GINA and AUGUSTIN A. LIN.

GINA S. LIN, G049307 Respondent, (Super. Ct. No. 10D001389) v. OPINION AUGUSTIN A. LIN,

Appellant.

Motion to dismiss the appeal from an order of the Superior Court of Orange County, Ronald P. Kreber, Judge. Motion denied. Honey Kessler Amado for Appellant. Law Offices of Brian G. Saylin and Brian G. Saylin; Phillips, Whisnant, Gazin, Gorczyca & Curtin, Gary S. Gorczyca and Daniel Gorczyca for Respondent.

THE COURT:* There are no unique jurisdictional time limits for appeals from domestic violence restraining orders. As with other appeals, there is a 60-day time limit for restraining orders which are properly served, either through a notice of entry of judgment, or through service by the clerk or party of a file-stamped copy of the order. (Cal. Rules of Court, rule 8.104(a).) Otherwise, the outside 180-day filing limit applies. Because the court record does not facially establish service of the domestic violence restraining order upon the restrained party, we apply the outside 180-day limit to his appeal. While the restrained party’s personal presence in the courtroom at the time the restraining order was issued may make it easier to enforce the restraining order against him, it does not shorten the time limits for filing a notice of appeal. I Gina Lin (hereafter Respondent) and Augustin Lin (hereafter Appellant) are involved in marital dissolution proceedings. On July 19, 2013, the trial court issued a domestic violence restraining order in favor of Respondent and against Appellant. Appellant and his counsel were personally present in the courtroom for the hearing on the domestic violence restraining order. Neither Respondent nor the court clerk served a document entitled “Notice of Entry” of the restraining order or a file-stamped copy of the judgment, showing the date either was served. On November 15, 2013, Appellant filed a notice of appeal from the domestic violence restraining order. Appellant’s notice of appeal was filed 119 days after the restraining order was filed. Respondent filed a motion to dismiss the appeal as untimely because Appellant did not file it within 60 days. Respondent contends that the shorter 60-day