In re Marriage of Freitas, a trial court was not precluded from amending a non-final order based on the anticipated presentation of additional evidence.
FACTS: Parties married 1992 and separated 2010 with two minor children. On Oct. 6, 2010, trial ct. verbally made temporary spousal support (s/s) order of $800/mo. in favor of H and a temporary child support (c/s) order on $7/mo. in favor of W. Trial ct. reserved jurisdiction over whether to amend the support awards based upon H presenting additional evidence of W’s income for period of 9/10-10/10. H’s atty. ordered to prepare order, which was not filed until June 6, 2011.
In 2/11, H lost his job and moved to modify support. After In re Marriage of Goodman & Gruen (2011) 191 Cal.App.4th 627 decided, trial ct. held it lacked jurisdiction to amend the support awards retroactively. H’s s/s increased to $1,100/mo. on an interim basis until hearing. At June hearing, trial ct. terminated H’s temp. s/s based on finding he had perpetrated domestic violence.
H appealed. On issue of retroactive modification, he argued that since the trial ct. specifically reserved jurisdiction to make such a determination, it erred in concluding that Gruen barred it from reconsidering the support awards. Court of Appeal agreed and remanded for reconsideration of c/s award. Since it affirmed a termination of H’s s/s order for a DV conviction, the failure to reconsider the s/s order was harmless.
HELD: Trial ct. may reserve jurisdiction to modify a temp. support order retroactively, after receipt of additional evidence; since such an order is modifiable, it is not final and not appealable.
In re Marriage of Freitas: Trial Court Jurisdiction to Amend Spousal Support
The Court of Appeal distinguished Gruen by noting that here the trial ct. specifically reserved jurisdiction to modify the temporary support orders based on the anticipated presentation of additional evidence. Thus, the orders “were not fully dispositive of the rights of the parties with respect to the amount of support to be awarded for September and October 2010, and therefore did not constitute final support orders as to those months.” (In re Marriage of Freitas, supra, 209 Cal.App.4th at pp. 1074-1075.)
Here, the initial order left open the possibility that the trial ct. might amend the spousal support award based on a reconsideration of W’s income for several months. Thus, the initial order was not final and not appealable as to those months. Since it was not appealable, there was no preclusion against subsequently modifying it retroactively.
“[N]either Gruen, nor the authority upon which Gruen is based, precludes a trial court from reserving jurisdiction to amend a non-final order based on the anticipated presentation of additional evidence.” (In re Marriage of Freitas, supra, 209 Cal.App.4th at p. 1075.)
COMMENTS: (1) The opinion relies in part on the timing of the orders. The initial support order containing the reservation of jurisdiction was made in October 6, 2010. The minute order directed H’s attorney to prepare the formal order. This order was not signed until June 6, 2011, In March 2011, Court made “a temporary interim order,” increasing spousal support to $1,100 per month based on H’s loss of employment, until June hearing. On June 30, 2011, trial court made orders appealed from, including terminating H’s spousal support effective July 1st.
(2) Although an accurate application of the law, Goodman & Gruen was a very distressing opinion in that it seemingly rewarded inaccurate temporary support orders. Freitas corrects that with some judicial sleight of hand. The opinion states that the Gruen order was “final” and “directly appealable,” whereas the Freitas order was modifiable and hence not final. In fact, the Gruen trial ct. stated that its order was “made “on an interim, without prejudice basis, pending the next hearing.” (In re Marriage of Goodman & Gruen, supra, 191 Cal.App.4th at p. 633.) Obviously, the trial court did not think that its order was final.
Trial Court jurisdiction to Modify Spousal Support Retroactively
In addition, Freitas goes through legal gymnastics to justify its result. For example, it found that the issue of domestic violence was not litigated at the first hearing. It was certainly prominent in Wife’s responsive declaration. In fact, it apparently was her primary defense to the request. Next, it found that the trial court raised the issue sua sponte at the modification hearing. However, again it was apparently Wife’s primary defense. It finds that the Gruen trial court did not reserve jurisdiction to modify retroactively, yet its order can only be read doing just that.
Result-oriented or not, we now have a sensible rule permitting trial courts to make temporary support orders based on the information available and then correct them as more accurate information becomes available. The problem, of course, is that all orders for the payment of money, including temporary support orders, are directly appealable. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) And, the failure to appeal from an appealable order waives the right to do so later. (In re Marriage of Murray (2002) 101 Cal.App.4th 581 [121 Cal.Rptr.2d 342].) In the Fourth District, Division One of the Court of Appeal, apparently temporary support orders which reserve jurisdiction to modify retroactively are no longer directly appealable. Will other Courts of Appeal honor this interpretation? If they don’t, then the failure to appeal from a temporary support order that reserves jurisdiction may waive the right to do so.
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Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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