Marriage of Ainsworth CA1/4

Filed 4/22/13 Marriage of Ainsworth CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of LISA MACKIN AINSWORTH and PATRICK AINSWORTH.

LISA MACKIN AINSWORTH, Appellant, A136019 v. (San Mateo County PATRICK AINSWORTH, Super. Ct. No. FAM091742) Respondent.

Lisa Mackin Ainsworth challenges the trial court‟s order granting her certain relief but declining to set aside various orders in this marital dissolution action. Because Lisa‟s1 notice of appeal was not timely filed, we lack jurisdiction to consider the merits of her appeal and therefore dismiss it. I. PROCEDURAL HISTORY AND DISCUSSION A judgment was entered in this action on March 17, 2009, ordering respondent Patrick Ainsworth to pay child and spousal support. Lisa filed a motion in May 2010

1 As is customary in marital dissolution cases, we refer to the parties by their first names for ease of reading and to avoid confusion, not out of disrespect. (In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1264, fn. 1.)

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seeking to modify or set aside the support orders and to adjudicate certain omitted assets. She later filed a motion seeking to have a receiver appointed to take control of certain real property and investment accounts. A hearing was held on the motions on November 10, 2011, and January 19, 2012.2 The trial court filed a tentative statement of decision on February 22. The trial court filed its “Final Statement of Decision and Orders” on April 4. The court devoted 17 pages of thoughtful analysis to the various issues raised by the parties, and ruled in Lisa‟s favor on several of them. The court declined, however, to set aside a December 2008 order or the support provisions of the 2009 judgment based on fraud, as Lisa had urged. The trial court‟s April 4 statement of decision concluded with the following sentence: “This final Statement of Decision shall also constitute the order of the court.” Although a statement of decision generally is not appealable, this court must treat the trial court‟s April 4 order as such, because it “is signed and filed and does, in fact, constitute the court‟s final decision on the merits.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) Indeed, Lisa represented in her civil case information statement filed in this court that she was appealing from the trial court‟s April 4 order (as opposed to a subsequent judgment). According to an “Affidavit of Mailing” filed in the trial court that included the heading “CLERK‟S CERTIFICATE OF MAILING,” a superior court clerk served a copy of the April 4 order that same day.3 Parties generally have 60 days from the clerk‟s service of an appealable order to file a notice of appeal unless the time period is extended. (Rules 8.104(a)(1)(A) [establishing 60-day deadline for notice of appeal after