Filed 6/5/20 Somdahl v. Magana CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

RICHARD P. SOMDAHL,

Petitioner and Appellant,

v.

STEPHANY L. MAGANA,

Respondent.

A156786

(San Mateo County

Super. Ct. No. FAM0110024-B)

Richard P. Somdahl appeals from a temporary child support order that the family court expressly reserved jurisdiction to retroactively modify. On our own motion, we directed the parties to file briefs addressing whether Somdahl’s appeal is taken from an appealable order. After receiving Somdahl’s responsive brief, we conclude his appeal must be dismissed.

BACKGROUND

A.

Family courts in California must calculate child support based on a mathematical formula provided in Family Code section 4055. The section 4055 calculation “requires accurate assessments of each parent’s taxable income [citations], and the time in which the higher earner of the two parents has primary physical responsibility for the children compared to the other parent.” (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 317.) If the family court exercises its discretion under section 4057, subdivision (b), to depart from the guideline formula, it “must state on the record or in writing the guideline formula result and the reasons the court is making an order that differs from it. (§ 4056, subd. (a).)” (In re Marriage of Hall, supra, at p. 317.)

B.

In 2018, Somdahl filed a paternity petition against Stephany L. Magana, seeking custody of, and visitation with, their three minor children. Magana filed a request for order seeking “guideline” child support.

Magana’s income and expense declarations, filed in advance of a hearing on her child support request, showed her monthly income averaged $4,000. After seeking a protective order to stay discovery, Somdahl also filed income and expense declarations, stating that he was unemployed and disabled. He received social security in the amount of approximately $900 per month and otherwise paid expenses from a $150,000 personal injury settlement and a $22,500 “personal loan” from his teenage daughter.

At a December 2018 hearing on Magana’s child support request, Magana’s counsel stated an evidentiary hearing was scheduled for March 20, 2019 but that “it’s really not clear to us what [Somdahl] will be introducing at that hearing as he’s pled the Fifth Amendment.” Magana’s counsel requested the court keep the March evidentiary hearing on calendar but order “interim” monthly support of $1,001 at least until then, using third party discovery (such as credit card statements and loan applications) to estimate Somdahl’s income at $11,000 per month.

When sworn and questioned by the court, Somdahl testified he had “zero assets” and received $910 monthly in social security and $750 in state aid for his children. He admitted that a 2017 car loan application represented his monthly income was $11,000 but claimed the dealership “lied” and that he had not signed the application. At the conclusion of Somdahl’s testimony, his counsel asked the court to “reserve ruling until the matter is heard [in March]” or to “temporarily” set support at $0.

The family court found Somdahl had “sufficient income to assist in child support” and ordered him to make monthly payments, in the “non-guideline” amount of $500 retroactive to May 18, 2018 (when Magana’s request was filed), plus an additional $200 until arrears were paid. The court emphasized that the support order was “temporary” and was “retroactively modifiable . . . at the March 20th [evidentiary hearing].” In response to Somdahl’s request for section 4056 findings, the order after hearing states, “this order does not meet the child support guideline set forth in . . . section 4055,” but fails to include a guideline amount. The order after hearing also states special circumstances, namely that Somdahl “has access to funds not reflected in his filings. Evidence to be heard on 3/20/1[9].”

DISCUSSION

Somdahl argues the order must be reversed because admissible evidence does not support the amount the family court ordered him to pay and because the family court made a “non-guideline” award without calculating guideline support or making the findings required by section 4056. We do not address these arguments because the order he appeals from is not appealable because it is not final. (See In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1074 (Freitas).)

Generally, temporary support orders are appealable under the collateral order doctrine. (See In re Marriage of Skelley (1976) 18 Cal.3d 365, 367-369; In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359.) The rule follows from the principle that family courts lack jurisdiction to retroactively modify an existing support order to a date before a modification pleading is filed. (Skelley, supra, 18 Cal.3d at p. 369; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638–639.) Thus, temporary support orders are usually appealable because they finally determine the right to support for a period and require no further judicial action beyond enforcement. (Skelley, supra, 18 Cal.3d at p. 368 [interlocutory orders subject to direct appeal if “dispositive of the rights of the parties in relation to the collateral matter and directing payment of money or performance of an act”]; cf. Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545 [appealable collateral order must be “final,” meaning it does not require further judicial action on collateral matters addressed therein].) However, when the court specifically reserves jurisdiction to retroactively modify its temporary support order and the party requesting support does not take the request off calendar, the support order is not appealable because it is not final. (See In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1317-1318; Freitas, supra, 209 Cal.App.4th at pp. 1074–1075; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 736-737.)

Here, the family court awarded “interim” support retroactive to May 2018 and expressly reserved jurisdiction to modify its order (for the same period) once further evidence was heard. Contrary to Somdahl’s argument, any ambiguity in the reservation language used in the order after hearing, prepared by Magana’s counsel, does not override the court’s otherwise clearly expressed intent to reserve jurisdiction. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151.) Our review of the trial court’s register of actions indicates the March 20 hearing was continued, but there is no indication Magana took her request off calendar. (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).) The order Somdahl challenges was preliminary and not final or appealable. (Freitas, supra, 209 Cal.App.4th at pp. 1074–1075.)

DISPOSITION

The appeal is dismissed.

 

_______________________

BURNS, J.

We concur:

____________________________

JONES, P.J.

____________________________

SIMONS, J.

A156786