Filed 12/20/19 Marriage of Hense and Wiedermann 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JACKIE HENSE and SCOTT P. WIEDERMANN.

JACKIE HENSE,

Appellant,

v.

SCOTT P. WIEDERMANN,

Respondent.

G057531

(Super. Ct. No. 12D006812)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Mark Millard, Judge. Request for judicial notice granted. Appeal dismissed.

John L. Dodd & Associates and John L. Dodd for Appellant.

Law Offices of Lisa R. McCall and Lisa R. McCall for Respondent.

* * *

Appellant Jackie Hense (mother) appeals from an order (Order) modifying custody of the minor child (child) of respondent Scott Wiedermann (father). As relevant to this appeal, the Order provided that in the event of a dispute between mother and father as to hiring medical professionals and selecting medical and health programs for child, father would have the ultimate authority.

Mother appeals on several grounds, claiming the psychiatrist appointed by the court to conduct an Evidence Code section 730 evaluation (730 evaluation) exceeded the scope of his appointment and thus the court should not have considered the report. She also contends the court abused its discretion issuing the Order because it was not supported by substantial evidence, the court made erroneous evidentiary rulings, and the court was biased, made “intemperate remarks,” and was “reluctant” to consider her evidence. Mother argues the alleged evidentiary errors and bias denied her due process. Finally, she asserts the court abused its discretion in denying her request to reopen evidence.

During the pendency of this appeal, child turned 18 years of age. We requested the parties file supplemental briefs on the question of whether the appeal has become moot. Mother argued the appeal was not moot while father asserted it was.

We conclude the appeal is moot and dismiss it.

FACTS AND PROCEDURAL HISTORY

Mother and father were married in 1988, and the marriage was dissolved effective January 2013. The parties were awarded joint legal and physical custody of child; they shared time with him equally. In the judgment the parties acknowledged child had special needs and would probably require support as an adult.

In 2018 father filed a request for order (Father’s RFO) seeking sole legal and physical custody and a custody evaluation. Father’s declaration stated then 16-year-old child had been diagnosed with high functioning Autism Spectrum Disorder. Child was seriously malnourished, weighing only 80 pounds and was quickly losing weight. Father further stated mother had convinced child he was sick and disabled, had refused to follow medical advice for child, was not taking child to school, and was encouraging child not to visit with father. He stated child would suffer immediate harm if new orders were not issued.

Mother opposed Father’s RFO, stating she was following all doctors’ orders, she was feeding child healthy foods, school absences were for valid reasons, and father was allowed full access to child.

The court ordered an expedited investigation by family court services and subsequently ordered a 730 evaluation. A two-day hearing on Father’s RFO ensued. The 54-page 730 evaluation report was admitted, and father, mother, and the psychiatrist performing the 730 evaluation testified. After both written and oral closing arguments, the court issued the Order.

As relevant to the appeal, the Order stated the court’s finding it was in child’s best interest to appoint one of the parents to resolve disputes as to child’s healthcare when they could not agree. It provided the parties would continue to have joint legal custody but where there was a “disagreement between the parties” as to “medial and health problems and medical professionals for the child,” father would “have the final word.”

On the same day the court announced its tentative decision on Father’s RFO, mother filed an ex parte request for order (Mother’s RFO) seeking, in part, to reopen evidence. She stated the court should have been told there were possible physiological causes for child’s weight issues. After hearing, the court denied Mother’s RFO.

DISCUSSION

The superior court has jurisdiction in matters arising under the Family Code. (Fam. Code, § 200; all further statutory references are to the Family Code.) This includes subject matter jurisdiction. (In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 592 (Jensen)). Without subject matter jurisdiction, a court has no power to decide a matter. (Id. at p. 593.) Parties cannot consent to, grant, enlarge, or waive subject matter jurisdiction, nor can it be conferred by waiver or estoppel. (Id. at pp. 593, 598.)

Pursuant to section 2020, subdivision (b), the superior court may issue custody orders for minor children. The court may also make “necessary or proper” orders regarding custody while the child is a minor. (§ 3022.) A minor is one under the age of 18 years. (§§ 6500, 6501.) Once a child turns 18, the superior court loses jurisdiction to make or enforce a custody order. (Jensen, supra, 114 Cal.App.4th at p. 594.)

The power to make healthcare and medical decisions is a part of a parent’s custody. (See In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956 [“‘sole legal custody’” gives parent right to make a child’s health decisions].) Once child turned 18, the superior court lost jurisdiction to enforce the portion of the Order being appealed, i.e., father’s ultimate right to decide child’s healthcare issues. Therefore, even if we decided the appeal in her favor, we have no power to afford mother any relief vis-à-vis that portion of the Order. Thus the appeal is moot.

We are not persuaded by mother’s arguments to the contrary in her supplemental brief. She asserts the Order “continues to affect the parties[’] rights concerning custody and support.” Mother focuses on the continuing duty of parents to support child under section 3910 and a provision in the parties’ dissolution judgment acknowledging this duty. But the portion of the Order being appealed does not bear on support; it deals with custody. Consequently, there is nothing before us dealing with support, and even if support remains an issue, it is not encompassed in this appeal.

That disagreements between the parties as to child’s health issues may likely continue also does not suffice. Again, that is a custody issue over which the superior court no longer has jurisdiction. And, as noted, parties cannot create jurisdiction. (Jensen, supra, 114 Cal.App.4th at pp. 593, 598.)

Likewise, we reject mother’s claim the appeal should proceed based on continuing litigation. In a request for judicial notice mother points to two new requests for orders (New RFO’s) filed by father set for hearing in December and January seeking, among other things, to have mother pay for the 730 evaluation. She argues the issue of whether the evaluator exceeded the scope of the appointment order would be relevant to whether mother should be required to pay. But the trial court has not yet heard the New RFO’s and we do not know how it will rule. If anything, these issues are not ripe. Mother is certainly free to raise arguments based on the alleged excessive scope of the appointment order in opposition to the New RFO’s.

Further, contrary to mother’s claim, no custody issues are raised in the New RFO’s. Rather, in addition to the request mother pay for the evaluator, they seek a change in child support and request sanctions.

Therefore, the appeal is moot.

 

DISPOSITION

The request for judicial notice is granted. The appeal is dismissed as moot. Father is entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.