BEDSWORTH, Acting P.J.
Jonathan and Trang Lukoff are now in the seventh year of litigating their divorce after a two-year marriage. Most of the disputes center on their son, Justin. Jonathan has appealed from three orders of the family court. On appeal, he claims the court erred by not granting him equal custody time with Justin. He also objects to an order giving Trang authority to make educational decisions for Justin. Finally, he disputes an award to Trang of $100,000 in attorney fees and costs.
We dismiss the appeal from the custody order. Jonathan has been arguing with the family court about parenting time since November 2014. Even taking the most sympathetic view of his activities, his appeal is untimely. We affirm the orders regarding Justin's education and the attorney fees. The court had ample evidence upon which to base these orders, and we can find no abuse of discretion in either decision.
Jonathan filed for divorce from Trang on October 3, 2011, when Justin was almost two years old.
On July 2, 2012, the family court issued a temporary order after hearing regarding custody and visitation. The court ordered the parties to use the 2-2-3 schedule for Justin's time with each parent, specified the time and place of pick up, and allocated summer vacation days.
On October 29, 2012, Jonathan applied again ex parte for an order allowing him to take Justin on a trip between December 6 and December 12, 2012. The application was denied pending a hearing. The parties eventually stipulated that Jonathan could take Justin on this trip.
On August 7, 2013, the court appointed a child custody evaluator to do a full custody evaluation. The evaluator filed a report under seal on January 7, 2014. After a hearing on January 14, a stipulated judgment — mainly dealing with property — was entered on January 17, 2014. Custody and attorney fee issues were reserved for a later date. The only change in custody was the adjustment of Justin's pick up time per the custody evaluator's recommendation.
The custody and visitation trial took place in September and October of 2014. On October 22, the court issued its "Findings and Order on Custody." Jonathan and Trang were awarded joint legal and physical custody. The court adopted the custody evaluator's recommendation for each parent's time with Justin once he started school in the fall of 2014. The evaluator recommended that Justin live with Trang during the week, while he was in school, and spend two consecutive weekends with Jonathan, then a weekend with Trang. Summer vacations and holidays would be divided more or less equally.
When the evaluator made his report, in January 2014, the assumption was that Justin would attend Beechwood Elementary School in Fullerton for kindergarten in September 2014.
Jonathan objected to the judgment on November 14, 2014. He wanted equal time with Justin. Among other things, he informed the court he had moved to Anaheim on November 1 to be closer to Justin's school and Trang's residence.
The court held a hearing on the wording of the October 22 findings and order on January 21, 2015. On January 28, it ruled that it would not modify the custodial arrangement on the basis of Jonathan's move, noting that this evidence was not before it during trial. The court refused to sign the "proposed judgment" (which one not specified) because it did not accurately reflect the court's ruling of October 22. The court explained in detail how the judgment was to be corrected to conform to its ruling.
Jonathan objected again, on February 20, 2015. He again protested the ruling giving him two weekends with Justin. He asked for "primary custody," asserting that the court had ignored all the pertinent evidence of his virtues as a father and the mandates of California law regarding custody. He also complained the court was biased against him and in Trang's favor.
In her declaration opposing Jonathan's objections, Trang's counsel stated that she had filed a final "proposed judgment" with the court on February 17, 2015. The court finally signed a judgment on May 6, 2015. The final judgment adheres to the two-weekend/one-weekend schedule set forth in the October 22 findings and order and provides a meticulous schedule for holidays and school vacations.
On May 1, 2015, Jonathan filed a request for order (RFO) to modify the as-yet unsigned judgment. He asserted again that he wanted equal time with Justin during the school year, as opposed to the two-weekend/one-weekend schedule the family court had reaffirmed in January, basing the requested modification on his change of residence. The RFO was called on June 9, 2015. The minute order of that date stated, "The Courts [sic] tentative ruling is to dismiss [Jonathan's] Request for Order as a significant change of circumstance is not shown regarding previous order." After Jonathan testified, the tentative ruling became the order of the court. "The Court orders [Jonathan's] Request for Order [] dismissed and [he] may try again when he can show a significant change in circumstance. [¶] The minute order shall be made the order of the court regarding dismissal of [Jonathan's] RFO."
The May 6 judgment was amended as of June 9 to state that Justin was to be in Trang's care "at all times not specifically set forth as [Jonathan's] custodial time including but not limited to all weekdays during the child's school time specifically Sunday 7:00 p.m. to Friday after school. Per stipulation of the parties." Two other minor amendments to the May 6 judgment, irrelevant to this appeal, are included in the stipulation and order. A judgment incorporating these changes to the May 6 judgment was entered on August 26, 2015. In an "order after hearing" filed the same day, the court found that Jonathan's May 1 RFO did not show a change of circumstances and dismissed it.
Jonathan unsuccessfully petitioned this court for a writ of mandate on July 10, 2015. Then he filed another RFO on September 15, 2015. He asked for a modification of the two-weekend/one-weekend custody arrangement required by the May 6 judgment. Once again, he asked for equal time with Justin, based on his relocation in November 2014; he also asked the court to order Justin placed in a different school. The hearing was initially set for November 17, 2015, but the court did not finally rule on the RFO until about 10 months later.
The court took the matter under submission after a hearing on August 3 and issued its "ruling on submitted matter" on September 9, 2016, denying the request to modify Jonathan's custodial time. The court issued an "order after hearing," reiterating its refusal to change the custodial time arrangement, on January 23, 2017. Jonathan filed a notice of appeal from this order on March 6, 2017.
The issue of Justin's school arose in connection with the stipulated judgment entered on January 17, 2014. As part of the judgment of that date, the court ordered the parties to meet and confer about where Justin would start kindergarten in September 2014; the Beechwood School, his preschool, would not allow him to enroll in September because he was too young. If Jonathan and Trang could not agree, they were to submit the matter to the child custody evaluator for his recommendation.
The issue arose again in a May 13, 2014, minute order, in which the court reaffirmed the order of January 17 regarding Justin's school. Apparently the issue had not been decided, so the parties were ordered to confer to resolve the issue. The court addressed the issue again in a judgment entered on January 21, 2015, after the hearings on January 14 and May 13, 2014. The January 2015 order regarding Justin's school in essence repeated the stipulated judgment of January 2014, but by that time it was out of date. Justin had already enrolled in the Berkeley School in September 2014.
On September 15, 2015, Jonathan applied ex parte for a temporary emergency court order to change Justin's school. Justin had started his second year at the Berkeley School in August 2015. Jonathan wanted Justin to go to an allegedly better school in Orange, which was, he claimed, 15 miles from Trang's residence and 12 miles from his Anaheim residence. Trang opposed the move, stating that Justin was doing well at Berkeley and that the school was close to her home. She pointed out that since she had Justin during the week while school was in session, the commute to a school in Orange would be time-consuming as well as disruptive.
The court denied Jonathan's request to change Justin's school as part of the September 9, 2016, "ruling on submitted matter."
Trang moved for attorney fees on July 24, 2012. On November 8, 2012, the court ordered Jonathan to pay Trang's lawyer $7,500. On August 13, 2013, Trang moved for $40,000 in attorney fees. On September 20, 2013, the court awarded $10,000 in fees, payable to Trang's lawyer, and postponed ordering additional fees to the time of trial.
On January 7, 2014, Trang moved for attorney fees to prepare for trial. Trang moved for fees again on October 1, 2014. Counsel argued the issue on January 15, 2015. On January 28, 2015, the court ordered Jonathan to pay Trang's lawyer $15,000 in attorney fees as well as $3,000 for costs. The formal order was entered on April 28, 2015.
Trang continued to move for attorney fees after April 28. The court heard argument on August 3, 2016, at which time Trang requested $155,000 for her counsel and $50,000 for her expert witness.
The attorney fee order from which Jonathan appeals was entered on December 2, 2016.
Jonathan has identified three issues in this appeal. First, he asserts that that the trial court erred by not giving him equal custody with Trang, sticking instead with the two-weekend/one-weekend schedule finally entered as part of the May 2015 judgment. Second, he objects to the court's ruling giving Trang decision-making power regarding Justin's school. Finally, he appeals from the award to Trang of $75,000 in attorney fees and $25,000 in costs.
Jonathan announced his legal strategy to Trang in an e-mail dated May 12, 2015, six days after the court entered the judgment following the September/October 2014 custody trial and the January 2015 hearing about the judgment's wording: "I have made you an offer that gives me less than 50% visitation (and I believe the current court orders give me more than 50%) if we can stop the legal battles over visitation for Justin and these related outside battles. If you cannot accept that then I will use the courts until I gain 50% or more. You may have bamboozled a judge, but I will appeal if he doesn't follow the state laws and appellate decisions when we go back next month."
California state law does not allow a party to "use the courts" indefinitely. Once a judgment or appealable order has been entered, California Rules of Court, rule 8.104 determines the time limits for filing an appeal. The latest possible time, absent circumstances not relevant here, is 180 days after entry.
This time limit is jurisdictional. "A party who fails to take a timely appeal from a decision or order from which an appeal might previously have been taken cannot obtain review of it on appeal from a subsequent judgment or order." (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1749; see also Cal. Rules of Court, rule 8.104 (b).)
We are required to raise the issue of whether an order is appealable ourselves. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) If the order is not appealable, we must dismiss the appeal on our own motion. (See MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 265-266; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)
When it entered the custody judgment of May 6, 2015, the court refused to consider Jonathan's move to Anaheim because it had not formed part of the evidence at trial. Arguably, therefore, the move constituted a change of circumstance that would support the RFO of May 1, 2015, in which Jonathan argued for equal time on that ground. (See, e.g., Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 [final custody order modifiable only by showing of significant change of circumstances].) But the court dismissed this RFO by minute order after a hearing on June 9, 2015, for lack of evidence of changed circumstances. It entered an amended judgment and a formal "Order after Hearing and Amendments to Judgment" on August 26, 2015, reaffirming the custody arrangement of the May 6 judgment and dismissing Jonathan's May 1 RFO.
Jonathan's subsequent RFO of September 15, 2015, did not raise any new issues with respect to custody. It simply repeated the same arguments he had made in his earlier objections and in the May 1 RFO. The time to appeal the court's postjudgment order with respect to equal custody expired 180 days after August 26, 2015, at the very latest. A notice of appeal filed on March 7, 2017, is filed too late.
Regarding Justin's school, Jonathan has argued that the court did not have sufficient evidence to support its refusal to order Justin to go to the school in Orange Jonathan recommended, but then admitted "this is now a moot point." His issue now is the order granting Trang decision-making authority over Justin's school, which he claims will persist until Justin reaches majority.
Jonathan and Trang have joint legal custody of Justin. Family Code section 3003 provides that "`[j]oint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."
We review custody orders for abuse of discretion. "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the `best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; cf. Cassady v. Signorellli (1996) 49 Cal.App.4th 55, 61-62 [order giving father final decision in child's health care not abuse of discretion].)
The court concluded that Justin's best interests were not served by annual litigation over his school. Recognizing Jonathan's penchant for litigating the same issues over and over, the court fashioned an order that prevented him from reopening this issue year after year, thereby disrupting "continuity and stability" and "established patterns of care and emotional bonds" that are "increasingly important" as time goes on. (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 553.)
Obviously the best resolution would be agreement between Jonathan and Trang regarding Justin's school. The court's order does not preclude this outcome. If they cannot agree — a distinct possibility — then the family court decided that Justin's best interests would be served by giving Trang the final say, rather than renewing the battle annually. Given the litigation history of this divorce proceeding, we cannot regard the court's solution as an abuse of discretion.
Jonathan argued on appeal that the trial court's ruling permanently deprived him of access to the court on this issue. He is incorrect. Code of Civil Procedure section 1008, subdivision (b), permits him to renew the motion if there are "new or different facts, circumstances or law." A simple rehash of the same facts and circumstances, however, may bring down upon him the consequences of section 1008, subdivision (d) — contempt or monetary sanctions — so this procedure should be used only after serious reflection.
Family Code section 2030, subdivision (a), provides in pertinent part: "(1) In a proceeding for dissolution of marriage . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." Family Code section 2030, subdivision (c) provides: "The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded." We review the court's decision to award fees for abuse of discretion, and we do not disturb an award unless there is clear evidence of abuse. (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 903.)
In this case, the family court found that Jonathan had the ability to pay and Trang needed the payments in order to have access to counsel. Under those conditions, Family Code section 2030, subdivision (a)(2), required the court to award fees.
Jonathan argues the family court criticized Trang for being less than forthright regarding her income and expenses, so the court did not have sufficient evidence to make accurate findings regarding her income and needs. He also maintains that Trang's legal expenses were incurred litigating an issue that she lost, so he should not have to pay for them.
As for the first of Jonathan's arguments, we do not reweigh evidence. On the contrary, we must view the evidence most favorably in support of the court's order. (In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 880; see In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) The court found that, although it did not believe it had 100 percent accurate information about the parties' income and expenses — because they had both lied on their statements — it had enough information to determine that the disparity between Trang's resources and Jonathan's meant Trang needed a contribution from Jonathan in order to pay her lawyer. This is sufficient evidence to support the order.
As for Jonathan's second argument, the fees Trang was seeking — and the award the court made — were not limited to those incurred in the immediate past. Trang's most recent request for fees dated from May 2015, well before trial began on the issue as to which she did not prevail. It should also be pointed out that the court's September 9, 2016, ruling on submitted matter, was favorable to Trang on three of the four issues before the court, including the attorney fee issue. Even if Trang lost on one of the most recently litigated issues, the court still had ample grounds for the fee award, given the history of the litigation. Moreover, the issue in an attorney fee award under Family Code section 2030 is not who won and who lost. It is which party has the greater relative need for funds, given all the circumstances, in order to assure both parties' access to the courts. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166-1167.)
The amount of the fee award is subject to abuse of discretion review. (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 295.) We cannot see that the court abused its discretion in awarding Trang a fraction of the fees she had been requesting, especially considering Jonathan's habit of repeatedly litigating the same issues. (See In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1167 [party's trial tactics may be taken into account when awarding fees].)
The appeal from the order of January 23, 2017, with respect to equal custody is dismissed as untimely. The orders of December 2, 2016, regarding attorney fees, and of January 23, 2017, regarding Justin's school are affirmed. Respondent is to recover her costs on appeal.
ARONSON, J. and GOETHALS, J., concurs.
Trang's counsel served a "revised" proposed judgment on December 4, 2014, again not included in the record.
