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In Re the Marriage of Dawn E. v. Paul E. Mosley

December 10, 2010

IN RE THE MARRIAGE OF DAWN E. AND PAUL E. MOSLEY.
DAWN E. MOSLEY, APPELLANT,
v.
PAUL E. MOSLEY, RESPONDENT.



Motion to dismiss the appeal from an order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Motion denied. Super. Ct. No. 99D004569

CERTIFIED FOR PUBLICATION

OPINION

THE COURT:*fn1

The last possible day to file a notice of appeal from an appealable order is 180 days after the signed order is filed. (Cal. Rules of Court, rule 8.104(d)(3).)*fn2 This outside time limit is jurisdictional and cannot be extended, even if notice was not given. Appellants have a maximum of 180 days to come to a judgment, and cannot wait for a judgment to come to them.

But what happens when a file-stamped appealable order disappears into the juridical equivalent of a sock drawer? Here, the appealable order was signed and file-stamped (fittingly enough) on April Fool's Day. But it was not served on the litigants, and did not make its way into the public records. Appellant, who repeatedly (and physically) checked the court files to determine whether any order had been entered, came away empty-handed. Not until late summer was the order "located" (we do not know where or why), placed in the court file, entered into the computerized case management system, and served upon the parties. Appellant thereupon promptly filed her notice of appeal.

A judgment or an appealable order is presumptively filed on the file-stamped date. This presumption, however, may be rebutted by evidence that the order was not accessible to the public in either paper or electronic form, and was not sealed by court order, or made confidential by law. We hold appellant has rebutted the presumption regarding the date of filing, and her appeal is timely.

I

PROCEDURAL HISTORY

Dawn Mosley (wife) and Paul Mosley (husband) are lawyers, although wife put her career aside to act as a stay-at-home mother for the couple's five children. Following the divorce, husband sought to modify his child and spousal support obligations after his career path drastically changed as a result of the economic downturn. Husband successfully appealed the court's ruling on a postsupport modification order, and we remanded with directions. (See In re Marriage of Mosley (2008) 165 Cal.App.4th 1375.)

On remand, the matter was transferred to Judge Pollard, who held scattered hearings over the period of eight court days in 2009. In October 2009, Judge Pollard took the matter under submission. In January 2010, the court filed a "Ruling on Submitted Matter," directing husband's counsel to prepare a ruling and findings, and to submit it to wife's counsel. In mid-March, husband's counsel submitted a proposed order to Judge Pollard, along with a copy of wife's objections.

Judge Pollard signed a nine-page order regarding child and spousal support. The order bears a file-stamp date of April 1, 2010. However, the order did not make its way into the court file, or into its computerized case management system. The order was not served upon the parties, who were unaware of its existence.

In June 2010, wife telephoned an unnamed superior court clerk to ask whether the court had signed any orders. The clerk told her "that the Judge would be getting to it as soon as she was able, but that no order had been filed." On July 20, 2010, wife again telephoned the clerk's office and was told "there was nothing that had been filed." The next day, July 21, wife personally went to the court to inquire about the case status. "I was told that there was no record of an order being signed, that there was nothing in the 'train station,' waiting to be signed and that apparently our papers had been lost. The clerk then told me to resubmit everything from both parties and the Judge would review everything."

Wife contacted husband's counsel and the two sides agreed to resubmit husband's proposed order and wife's objections to Judge Pollard for the court's review. Wife hand-carried these resubmitted documents to the clerk.

On August 20, 2010, the clerk located the April 1 file-stamped order, which had been "misplaced." Even so, the order was still not entered into the court's computerized ...


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