Filed 7/8/21 Marriage of Hagstrom CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of KAREN and
MATS HAGSTROM.
KAREN HAGSTROM, A159225
Respondent,
v. (City & County of San Francisco
MATS HAGSTROM, Super. Ct. No. FDI-15-784762)
Appellant.
This is an appeal in a marriage dissolution matter from a court order
appointing a child custody evaluator pursuant to Evidence Code section 7301
and San Francisco Superior Court Local Rules, rule 11.15(F) (Local Rule
Evidence Code section 730 provides in relevant part: “When it
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appears to the court, at any time before or during the trial of an action, that
expert evidence is or may be required by the court or by any party to the
action, the court on its own motion or on motion of any party may appoint one
or more experts to investigate, to render a report as may be ordered by the
court, and to testify as an expert at the trial of the action relative to the fact
or matter as to which the expert evidence is or may be required. The court
may fix the compensation for these services, if any, rendered by any person
appointed under this section, in addition to any service as a witness, at the
amount as seems reasonable to the court.”
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11.15(F)).2 Appellant Mats Hagstrom, M.D. (hereinafter, father), challenges
this order on the grounds that Local Rule 11.15(F) violates California law and
is therefore invalid.3 Father reasons inter alia that this local rule is
inconsistent with Family Code section 3112’s requirement that the local court
pay the costs of child custody evaluations in the first instance and then, upon
inquiry into the financial circumstances of the parents, may order
reimbursement of the court’s expenses if appropriate. Father asks this court
to vacate the order appointing the child custody evaluator and remand for
further proceedings.
Respondent, father’s ex-wife and mother to their minor son, M.H.
(hereinafter, mother), declined to file a respondent’s brief. For reasons set
forth post, we conclude this appeal is taken from an interlocutory,
nonappealable order and therefore dismiss it.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of this marital dissolution case
is for the most part irrelevant to this appeal, which raises one wholly legal
issue relating to the legality of Local Rule 11.15(F). We therefore provide
only a brief summary of the underlying events.
The parties were married in 2005 and have one child, M.H., born
November 2007. After the couple separated in April 2014, mother filed a
petition to dissolve their marriage on November 10, 2015.
2Local Rule 11.15(F) requires the use of San Francisco Unified Family
Court (SFUFC) Forms, form 11.16F (form 11.16F) in conjunction with
Judicial Council Forms, form FL-327 for all orders appointing a child custody
evaluator.
3 Father, in his briefing, identifies “Local Rule 11.16.F” as the subject of
his challenge. However, we conclude based on the substance of his argument
that in fact he is challenging Local Rule 11.15(F).
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On October 10, 2017, mother filed a request for order on custody,
visitation, support and attorney fees and costs (RFO). Noting that she and
father had been sharing custody of M.H. on a week on/week off basis, mother
collectively sought (among other things) formal orders for joint legal and
physical custody, vacation and holiday orders with specific terms as to length
and notice of itinerary, child support, and temporary spousal support while
she completed graduate studies and a student teaching program.
In January 2018, mother filed a declaration in support of the RFO in
which she proposed a custody schedule change based on M.H.’s best interests.
Specifically, she sought “a 2/2/5/5 schedule [during the school year] . . . ,
wherein [M.H.] would be with [father] each Monday and Tuesday, with me
each Wednesday and Thursday and then we would alternate the Friday
through Sunday periods.” Mother attested that M.H. (who is on the autism
spectrum) was adversely affected by the present week on/week off schedule
and had a hard time transitioning between parents’ homes. Mother believed
that a 2/2/5/5 schedule would benefit M.H. by preventing him from getting too
“entrenched” at either home. She also believed her proposed schedule would
allow M.H. to take a break from the afterschool activities that father
scheduled for him, which she deemed excessive.
On February 26, 2018, father filed a responsive declaration to the RFO,
consenting to certain items (e.g., child support) but objecting to others (e.g.,
spousal support) and asking for an evidentiary hearing. As to mother’s
proposed scheduling change, father asked that the court maintain the
status quo unless or until M.H.’s therapist made recommendations on the
issue.
On February 27, 2018, a stipulation and order was entered that, among
other things, continued the hearing on mother’s RFO to March 8, 2018, to
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allow the parties to pursue settlement negotiations concerning all
outstanding issues and required the parents to continue shared physical
custody of M.H. on a week on/week off schedule except for any informally
agreed-to schedule changes pending the hearing on mother’s RFO.
On April 29, 2019, mother filed a new RFO seeking: (1) immediate
imposition of a new parenting schedule wherein M.H. would be with father on
alternate weekends from Friday school pick-up to Monday school drop-off and
for up to two dinner visits per week, and with mother all other times;
(2) alternatively, a court order that parents submit to a brief focused
assessment (BFA) with a neutral mental health professional to determine the
best parenting schedule for M.H. going forward; and (3) an order that father
commence coparent counseling with mother.4
On May 1, 2018, following an evidentiary hearing at which both
parents testified, the trial court made several rulings. Relevant here, the
court denied mother’s request for a 2-2-5-5 schedule without prejudice,
finding that an immediate scheduling change would be disruptive to M.H. in
the middle of the school year and that guidance should be received on the
issue from M.H.’s therapist.
On May 30, 2018, father filed a responsive declaration asking the court
to (among other things) adopt an order denying mother’s request for a BFA
given that the parties had been ordered to seek guidance from M.H.’s
therapist regarding any modification to the parenting schedule. Father
asked that the parties be ordered to continue to seek such guidance from the
therapist. He also asked for an evidentiary hearing regarding (among other
4 On the same day, mother filed a separate RFO seeking enforcement of
certain provisions of the judgment of dissolution and sanctions, which was
subsequently resolved by the parties’ stipulation.
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things) the parenting schedule, support issues and mother’s request for court-
ordered cocounseling.
A hearing on these matters was held August 1, 2019. Afterward, the
court issued an order granting mother’s request for a BFA, setting a date for
the parties to exchange names of potential evaluators, and setting forth the
“parties[’] agree[ment] that payment for the BFA will be made from
Ms. Hagstrom’s attorney’s trust account.” A hearing on the status of the BFA
was set for September 12, 2019.
Following the September 12, 2019 hearing, the court issued an order
appointing Dr. Jay Seiff-Haron as the BFA evaluator. The court then
reserved jurisdiction as to the appropriate parenting schedule and set a
hearing on November 19, 2019, for the purpose of reviewing the BFA.
On September 30, 2019, the trial court then entered the order
appointing child custody evaluator prepared on Judicial Council Forms, form
FL-327 and attaching form 11.16F. This order, among other things, provided
that Dr. Jay Seiff-Haron was appointed child custody evaluator under the
authority of Evidence Code section 730 and California Rules of Court, rule
5.220, for the purpose of providing the court with a BFA addressing: “ ‘What
is the appropriate timeshare/parenting plan/schedule for [M.H.]?’ ”
Regarding Dr. Seiff-Haron’s fees and costs, the September 30, 2019
order stated: “Payment will be made as follows: [¶] . . . [¶] . . . As set forth in
the attached SFUFC Form 11.16F.” The attached form 11.16F, in turn,
stated in relevant part: “The court orders the parties to pay the evaluator’s
fees and costs as follows, unless there is a subsequent explicit order to the
contrary: [¶] “See below * will pay % of the evaluator’s fees and expenses,
including the advance deposit and will pay % of the evaluator’s fees
and expenses, including the advance deposit. The deposit will be paid by the
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parties prior to the onset of the evaluation. [¶] * The payment for the BFA
shall be made from Ms. Hagstrom’s attorney’s trust account.”
In other words, the order and form 11.16F did not specifically require
either party to pay a certain share of Dr. Seiff-Haron’s fees and expenses
(including the advance deposit) but merely stated that the payment for these
items was to be made from mother’s attorney’s trust account. The order also
expressly reserved jurisdiction for the trial court “regarding any dispute
regarding fees or any other provision of this order. Jurisdiction is also
reserved to San Francisco Superior Court to determine the allocation and
characterization of any funds advanced/paid by either parent and the merits
of any dispute over such fees.”
On November 18, 2019, father filed an appeal of the September 30,
2019 order.
DISCUSSION
Father challenges the September 30, 2019 order appointing Dr. Seiff-
Haron as the child custody evaluator on one ground. He contends the local
rule pursuant to which the trial court acted, Local Rule 11.15(F), is contrary
to California law and therefore invalid.
However, in order for this court to decide any issue on appeal, legal or
otherwise, the appellant (father) must have appealed from an order that is in
fact appealable. (Jennings v. Marrelle (1994) 8 Cal.4th 121, 126 [“The
existence of an appealable judgment [or order] is a jurisdictional prerequisite
to an appeal”].) The September 30, 2019 order is not. Rather, it is an
interlocutory order made in connection with a pendente lite child custody
order. As explained by our appellate colleagues in the Third Appellate
District: “A temporary custody order is interlocutory by definition, since it is
made pendente lite with the intent that it will be superseded by an award of
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custody after trial. (Fam. Code, §§ 3022, 3040, 3060–3062.) Code of Civil
Procedure section 904.1 bars appeal from interlocutory judgments or orders
‘other than as provided in paragraphs (8), (9), and (11). . . .’ (Code Civ. Proc.,
§ 904.1, subd. (a)(1)(A).) Temporary custody orders are not listed in any of
those paragraphs. Therefore this statute precludes the appealability of such
orders.
“This result is in accord with the general rule that, under the ‘one final
judgment’ rule, appeal lies only from final judgments in actions or
proceedings, or from orders after judgment that affect the judgment or its
enforcement; it does not lie from interlocutory judgments or orders unless
specifically made appealable by statute. (Code Civ. Proc., § 904.1, subd. (a);
[citations]; see generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,
§§ 57–59, 135–140, pp. 113–115, 201–207.)” (Lester v. Lennane (2000) 84
Cal.App.4th 536, 560–561.)
Acknowledging its interlocutory nature, father argues that the
September 30, 2019 order is appealable as an interlocutory order collateral to
the matter’s main issue that is dispositive of the parties’ rights as to this
collateral matter (i.e., modification of the parenting schedule) and directs the
payment of money or performance of an act. (E.g., Sarracino v. Superior
Court (1974) 13 Cal.3d 1, 9.)
We disagree. The September 30, 2019 order is not dispositive of
mother’s and father’s rights as to the collateral issue of whether their
parenting schedule should be modified. Nor does this order direct mother or
father to make a payment of money, although it appears to anticipate such an
order in the future. As explained in In re Marriage of Corona (2009) 172
Cal.App.4th 1205, 1216–1217: “A judgment [or order] is final ‘ “ ‘when it
terminates the litigation between the parties on the merits of the case and
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leaves nothing to be done but to enforce by execution what has been
determined.’ ” ’ [Citations.] ‘[W]here anything further in the nature of
judicial action on the part of the court is essential to a final determination of
the rights of the parties, the decree is interlocutory’ and not appealable.”
Here, it is clear further judicial action was anticipated by the trial court on
the allocation of the costs and expenses of the child custody evaluation when
it issued the challenged order. (Cf. Sharon v. Sharon (1885) 67 Cal. 185,
195–196 [“If the order for the payment of alimony and counsel fees is in the
nature of a final judgment, it is appealable. It certainly possesses all the
essential elements of a final judgment. Nothing remained to be done except
to enforce it, and for that purpose an execution might issue and be proceeded
on, as if the judgment had been rendered in an ordinary action for the
recovery of a specific sum of money”].)
In re Marriage of Laurenti (2007) 154 Cal.App.4th 395 (Laurenti) is
illustrative. There, the trial court appointed an expert pursuant to Evidence
Code section 730 in a marital dissolution matter to conduct an evaluation
regarding where the parties’ children should attend school. (Laurenti, at p.
397.) The mother moved to remove the expert due to the expert’s violation of
court rules. (Id. at p. 400.) The trial court granted her application; however,
in doing so the court ordered the mother to pay “[a]ll of [the expert’s] fees and
costs.” (Id. at pp. 401–402.) After receiving the expert’s bill, the mother
appealed the order directing her to pay all of the expert’s fees and costs.
(Ibid.) The reviewing court ruled in her favor, concluding: “When read
together, we interpret Evidence Code section 730 and California Rules of
Court, rule 5.220 to mean a trial court must (1) decide whether an evaluator
should receive any compensation for his or her services, (2) determine a
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reasonable amount of compensation and (3) state which party or parties will
bear what portion of the fees and costs.” (Id. at p. 403.)
Our case is in a much different procedural posture than Laurenti. As
there, the trial court here appointed an expert (Dr. Seiff-Haron) pursuant to
Evidence Code section 730 to evaluate a parenting schedule issue. However,
unlike in Laurenti, when the September 30, 2019 order was entered,
Dr. Seiff-Haron had not yet conducted the BFA; nor had the trial court
considered Dr. Seiff-Haron’s compensation or ordered father to pay any or all
of his fees costs or costs. Instead, the order states only that payment of the
expert’s fees and costs is to be made from the trust account of mother’s
attorney, but does not allocate the total amount of fees and costs, which is not
yet known, between father and mother. At the same time, the order
expressly reserved jurisdiction for the court to resolve issues that may arise
regarding such allocation—a clear indication that future judicial action is
anticipated. Under these circumstances, we conclude father’s appeal is
premature and must be dismissed. (See In re Marriage of Olson (2015) 238
Cal.App.4th 1458, 1462 [“Christopher did not appeal from a court order
finally approving or denying a modification of custody, but rather from an
order that the parties attend a parenting plan assessment. This order was
‘preparatory t[o a] later proceeding[]’ and therefore not appealable”].)
Lastly, father asks that we treat his appeal as a petition for an
extraordinary writ and rule on the merits, explaining that the appeal
presents an issue of continuing public interest that is likely to recur. (See,
e.g., In re Marriage of Olson, supra, 238 Cal.App.4th at pp. 1462–1463.) We
decline to do so, as it is unwarranted at this time and under these
circumstances when the relevant record remains incomplete.
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DISPOSITION
The appeal taken from the September 30, 2019 order, a nonappealable,
interlocutory order, is dismissed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Wiseman, J.*
A159225/Hagstrom v. Hagstrom
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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