O'LEARY, J.
In 2006, the Orange County Department of Child Support Services (the County) filed a paternity action against Randy J. (Randy) regarding his newborn son S.B.
On appeal, Nicole explains certain recent orders made in the trial court have rendered moot some issues and, therefore, she only wishes to challenge the order changing S.B.'s last name and the order denying her request for attorney fees. We conclude the court did not abuse its discretion in concluding the name change was in S.B.'s best interest and that order is affirmed. We lack jurisdiction to review the October 22, 2009 attorney fee order as it was not listed in Nicole's notice of appeal. Because she did not perfect her appeal on this issue, we do not consider it.
Unfortunately, Nicole's appellant's brief jumps right into the controversy without giving the court the benefit of a procedural history or relevant background facts leading up to the challenged orders. The clerk's transcript reveals Nicole and Randy had a brief relationship, lasting approximately four months, and they separated shortly before their son's birth. Just prior to S.B.'s birth, Nicole asked the County to file a paternity action seeking child support. In the context of this paternity action, Nicole and Randy became engaged in a highly acrimonious custody battle over their now four-year-old son.
The County's paternity action against Randy requested child support in the amount of $1,286 per month. Randy, with the assistance of counsel, filed an answer and requested genetic testing. When the test results confirmed paternity, Randy filed an OSC in May 2007, seeking joint legal custody, sole physical custody, reasonable visitation for Nicole, and child support from Nicole. Randy, who lived in Texas, recognized S.B. was a child with special needs due to Down's Syndrome and a heart condition. S.B. underwent heart surgery to repair several birth defects when he was six months old. Randy asserted he would provide S.B with a safe and loving home. He complained Nicole did not tell him when S.B. was born, and she failed to list him on the birth certificate. Randy was dismayed to learn Nicole gave the child her ex-husband's surname instead of his. He asked the court to change the child's last name.
Nicole, who at the time was also represented by counsel, filed an opposition. She explained S.B. was under the continual care of a pediatric cardiologist who must be consulted before air travel to Texas. She proposed Randy go through a reunification period, parenting classes, and classes to learn about S.B.'s medical needs before visiting with the child for more than one hour. She proposed a visitation schedule that gradually increased Randy's visitation time. She asked the court to deny Randy's requests for sole custody and to change S.B.'s name. She explained, Randy "has not `stepped up' as a father and is only seeking visitation now for financial reasons" because the court has ordered he pay $1,344 child support if Nicole keeps sole custody.
In September 2007, the court ordered the parents share joint legal custody. Nicole was awarded physical custody. Randy was given a visitation schedule that was conditioned on his participation in parenting and CPR classes. The following month, Randy's attorney requested to be relieved as counsel. The court granted the request. In December, Nicole's counsel filed a notice of withdrawal.
Over the next several years Randy proceeded as a self-represented litigant, and he papered the court with voluminous ex parte OSCs, motions, declarations, and letters. During this same period, Nicole sometimes sought assistance of counsel but for long periods of time proceeded in pro. per. and did her best to respond to the flurry of paper submitted by Randy. We have limited our recitation of the facts regarding this two-year period to summaries of the relevant court orders. The subject and content of the many OSCs, restraining order petitions, and contempt motions are not relevant to the issues raised on appeal.
In mid-August 2008, the court modified the visitation schedule to better accommodate Randy's residence in Texas. It also ordered the preparation of a child custody investigation report.
In September 2008, Nicole rehired her attorney and filed a request for a domestic violence restraining order. In November 2008, Nicole filed a substitution of attorney, deciding to proceed again in pro. per. At the next hearing, the parents, both self-represented litigants, objected to the Child Custody Investigation Report. The hearing was continued to December 2008. At that hearing the matter was continued again (to March 12, 2009) and both parties were ordered to file updated income and expense declarations. The trial court ordered Randy to keep a log of his job search efforts and notify the County within 72 hours if he obtained employment.
The following year, Nicole hired a new attorney, Kerry Zeiler. On March 5, 2009, the court considered and denied Nicole's request for a domestic violence restraining order but determined there was good cause to issue a family law restraining order. The court also considered Randy's OSC to modify visitation. The parents stipulated to recommendations of the child custody evaluation regarding the first phase of Randy's new visitation schedule that included overnight weekend visits in California. The court ordered a second phase of visits (only in California) would start in June and this phase gave Randy additional time with S.B. The court also made orders regarding telephone contact and custody during holidays. It ordered therapy services for S.B. to continue. Finally, the court continued the issues of "attorney fees, visitation in Texas, and the issue of minor's name" to June 2009.
In May 2009, the court ordered Randy to pay $534 per month child support retroactive to July 1, 2008. The following month, on June 3, 2009, the court ordered Nicole's ex parte OSC off calendar due to improper notice. On June 25, 2009 the court considered another OSC filed by Nicole and found no basis to modify the current custodial orders. The court decided the matter would be continued to September 14, 2009, and the remaining issues were "name change of the minor, attorney fees, and the updated [c]hild [c]ustody [i]nvestigation." Both parents were ordered to bring updated income and expense declarations to the next hearing.
At the beginning of September, Nicole filed a substitution of attorney and once again became a self-represented litigant. At the September 14 hearing, the court denied her request for a continuance based on the lack of an attorney. The court considered Nicole's and Randy's testimony as well as Nicole's documents. The court made a new visitation and custody order, permitting the child to travel to Texas for visits at Christmas, spring break, and summer. The court ordered the child's last name would change to be the same as Randy's surname. The child's original last name became part of his middle name. The child's total name was therefore comprised of five different names.
On the issue of attorney fees, the court noted Nicole had failed to file an updated income and expense declaration. The court took the fee issue under submission. It ordered Nicole to file an income and expense declaration in seven days. Randy was given an opportunity to file a written response by October 9, 2009, and the matter would be deemed submitted as of that date. The court ordered Randy to prepare a formal order.
The parties filed voluminous documents before the October deadline. On October 22, 2009, the court clerk served by mail the trial court's minute order denying Nicole's attorney fee request. The trial court ruled that after reviewing "the additional voluminous and scathing documents and declarations" submitted by the parties it "finds that the cost of this litigation was and continues to be caused by the acrimony of both parties, their apparent dislike and distrust of the other and their use of the court to further their own agendas rather than the best interests of their child. . . ." The court concluded the evidence did not support an award of fees under Family Code sections 271, 2030, or 2031. Each party would bear their own fees unless fees become appropriate in future litigation. This final order reflected the court clerk's certificate of mailing to each party on November 11, 2009.
In December 2009, the court denied Randy's request to again modify the custodial orders. On January 21, 2010, the court executed three final orders. The first one, titled judgment, restated the September 14, 2009 Texas visitation schedule. This order also noted Nicole was required to file a current income and expense declaration by September 28, 2009, Randy's response was due October 9, and the attorney fee matter was submitted "as of October 9, 2009."
The second one, also titled judgment, restated the March 2009 California two phase visitation schedule and the order the parents would share joint legal custody. This order restated the court's various admonishments, such as the need for car seats, and for the parties to refrain from making derogatory remarks about each other. It set forth the terms of the family law restraining order against Randy. As for attorney fees, this 2010 order simply noted, "[Nicole's] request for attorney fees shall be reserved under the [c]ourt's jurisdiction pending time of trial scheduled June 29, 2009 . . . ."
On January 21, 2010, the court signed a third final order titled, "order on minor['s] name change of September 14, 2009." The order stated S.B.'s last name would change from B. to J.
Nicole filed a notice of appeal from the "court's judgment of January 21, 2010[.]" We will liberally construe this notice to include the three final orders all filed on January 21, 2010, one of which concerned the name change. However, we find no grounds to disturb the trial court's ruling on changing S.B.'s last name. As Nicole correctly stated in her opening brief, the issue of whether to change a child's name must be based on the child's best interests. (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 647 (Schiffman).) There was substantial evidence in the record to support the trial court's determination changing S.B.'s name was in his best interests.
Nicole contends this issue poses a question of law to be reviewed de novo. Not so. There are no bright line rules regarding a particular child's best interests, and each case necessarily must be considered based on its unique facts and circumstances. It is well settled the question of whether a name change is in the child's best interests is a question of fact. (In re Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1053-1054.) The court's conclusion will be sustained if it is supported by substantial evidence in the record. (Id. at p. 1055.)
The substantial evidence standard has been described by our Supreme Court as follows: "`In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.' [Citation.]" (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571, quoting Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) "[A]ll of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed." (Estate of Teel (1944) 25 Cal.2d 520, 527.) It is the appellant's burden to establish that the judgment or order is not supported by substantial evidence. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.)
In her appeal, Nicole does not assert the name-change order was unsupported by substantial evidence but rather reasserts there were many factors in favor of not changing S.B.'s name. As stated above, this court cannot reweigh the evidence. We conclude the trial court relied on appropriate factors and the name change order is supported by substantial evidence.
As delineated by the Supreme Court in the Schiffman case, the best interest test necessarily takes into account many different factors. It explained, "the length of time that the child has used a surname is to be considered. [Citation.] If . . . the time is negligible because the child is very young, other facts may be controlling. For instance, the effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and the identification of the child as part of a family unit are all pertinent. The symbolic role that a surname other than the natural father's may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. `[T]he embarrassment or discomfort that a child may experience when he [or she] bears a surname different from the rest of his [or her] family' should be evaluated. [Citation.]" (Schiffman, supra, 28 Cal.3d at p. 647.) The high court also noted, "[i]n recognizing a father's right to have his child bear his surname, courts largely have ignored the impact a name may have on the mother-child relationship. Perhaps that is because mothers, usually given custodial preference in the past, generally had more regular contact and could maintain a psychological relationship without the need for the tie a surname provides. However, `the maternal surname might play a significant role in supporting the mother-child relationship, for example, in the cases where the father is the custodial parent or where the custodial mother goes by her birth-given surname.' [Citation.]" (Ibid, italics omitted.)
Nicole contends there were several significant factors weighing against a name change: (1) S.B. shares the same last name as his two siblings and mother; (2) there is a strong mother-child bond; (3) Randy does not provide insurance or child support; (4) Randy's visitation is limited; and (5) S.B. has an established identity as he receives a variety of public services using the last name "B."
The first four factors listed above are certainly relevant to the name change issue. But we cannot ignore that the trial court concluded the evidence in favor of a name change outweighed contrary evidence and fully satisfied the best interest test. The trial court properly relied on the fact S.B. is very young. It commented that due to his age and his Down's Syndrome, there was no evidence suggesting he had "so identified" with the Nicole's ex-husband's last name "B." that he could not have another name added. We do not find relevant Nicole's argument S.B. has an identity established with public agencies. The issue is S.B.'s best interests, not whether Nicole does not want the hassle of alerting the various agencies about her son's name change. There is no evidence his services would be suspended or stopped by the name change.
Moreover, the court focused on Randy's psychological need to share the same surname as his son. Based on the record, it was plainly evident the use of Nicole's ex-husband's name was having a negative impact on the father-child relationship. The court appropriately recognized Randy's efforts throughout the proceedings to be part of his son's life and "to be known as his father, to be part and parcel to it." The court reasonably concluded changing the child's last name would have a positive impact on the newly developing father-child relationship. The symbolic and traditional role that a surname plays was important to Randy and related directly to his desire to identify with his son. At the time the trial court made its ruling there was substantial evidence a name change would be in the child's best interests. We find no reversible error.
"The denial of a request for attorney fees pendente lite is appealable because it possesses all the elements of a final judgment on the issue of whether a spouse may be able to obtain such fees. [Citation.]" (Askew v. Askew (1994) 22 Cal.App.4th 942, 964, fn. 37; see also (Code Civ. Proc., § 904.1.)
Under California Rules of Court, rule 8.104, an appeal must be filed within 60 days of service by the court of the notice of entry or a file-stamped copy of the order, 60 days from notice by a party, or 180 days after entry of judgment. Nicole's motion for attorney fees was denied on October 22, 2009, by minute order, which did not direct that a final written order be prepared. Under California Rules of Court, rule 8.104(c)(2), the entry date of an appealable order is the date it is entered in the permanent minutes unless the minute order directs the preparation of a written order. The 180-day rule applied here because it appears the court clerk did not mail in November 2009 a file-stamped copy of the order. (See Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 208-209.) Thus, Nicole's notice of appeal is timely if it encompassed the order she challenges. But it does not.
Nicole's March 22, 2010 notice of appeal states she appeals from "the court's judgment of January 21, 2010 following a trial before the court." It says nothing about the appealable October 22, 2009 order denying her request for attorney fees. This court lacks jurisdiction to consider the matter. The order was not expressly specified in the notice of appeal.
A notice of appeal is sufficient "if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) "`Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.' [Citation.]" (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) When several orders occurring close in time are separately appealable, each appealable order must be expressly specified. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)
The rule of liberality does not generally attach when an appellant lists one order in the notice of appeal, but then proceeds to challenge a different order in the briefing. Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, illustrates the point. There, the trial court made two rulings during a hearing, one relating to venue and one imposing sanctions. Appellant filed a notice stating he appealed from the imposition of sanctions. (Id. at p. 41.) In the briefing on appeal, he proceeded to attack the ruling on venue. The appellate court wrote, "there was not even an attempt to appeal the venue ruling. The notice of appeal specifies only the portion of the order imposing sanctions. Because the two rulings are not interdependent, the purported partial appeal from the sanction ruling precludes review of the venue ruling. [Citation.]" (Id. at p. 42.)
The "clear meaning" of California Rules of Court, rule 8.100(a)(2) is that "the party is, by means of that notice, presently appealing from some specified thing. . . . An unexpressed intention or desire to appeal from [a different order] should not be read into that notice under the guise of a liberal construction." (Estate of Roberson (1952) 114 Cal.App.2d 267, 270, overruled on other grounds in Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22, fn. 1; see also Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47 ["The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders"].)
Here, the notice of appeal from the January 2010 judgment cannot be liberally construed to encompass a separately appealable October 2009 attorney fee order. The January 2010 judgment contained only orders concerning custody, visitation, and the name change. These rulings were not interdependent with the attorney fee issue. Indeed, the 2010 judgment noted the attorney fee matter was severed, considered separately, and taken under submission in 2009. Our jurisdiction is limited to the judgment and final order listed in the notice of appeal. Nicole's attempt to argue the merits of a ruling not listed is unavailing,
The January 21, 2010 final orders and judgment are affirmed. Because no appearance was made by the Respondent, no costs on appeal will be awarded.
WE CONCUR.
RYLAARSDAM, ACTING P. J.
IKOLA, J.
