Marriage of Rizzo

Filed 11/30/05 Marriage of Rizzo CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of MONICA ELLEN RIZZO and ROGER D. RIZZO.
ROGER DANIEL RIZZO, Appellant, v. MONICA ELLEN RIZZO, Respondent.	A109366 (Marin County Super. Ct. No. FL12549)

I.

Introduction

Appellant Roger Daniel Rizzo (Roger) appeals from an order denying a motion to modify child support brought by respondent Monica Ellen Rizzo (Monica) in the family law court. The denial to modify support left in place a prior order requiring Roger and Monica to share equally in the cost of private school tuition for their four daughters up to a total aggregate maximum of $15,000 annually.

On appeal, Roger claims the trial court abused its discretion by leaving in place the earlier April 16, 2001 order without a finding that the children have special educational need. He contends that both a support add-on for private school tuition under Family Code section 4062, subdivision (b)(1), and the Statewide Uniform Guideline support formula which automatically provides children with support appropriate to their parents’ economic circumstances, makes any support add-on for private school tuition inappropriate unless it is shown that the children have special educational needs. Since these claims could have been raised on appeal from the original April 16, 2001 order, and were not, Roger may not raise them now. Accordingly, we affirm.

II.

Procedural and Factual Background

The parties stipulated in their 1996 Marital Settlement Agreement that their children would attend private school, and that they would share equally in the cost. On October 30, 2000, Monica filed a motion in the trial court to, inter alia, modify child support to increase the amount Roger must contribute to private school tuition. Roger opposed the motion. On April 16, 2001, the court, in its “Findings and Order After Hearing,” ordered Roger to pay a maximum of $7,500 per year as a Family Code section 4062, subdivision (b)(1)[1] add-on for private school tuition (the April 16 order). The court’s findings included the following: “The Court finds that it is not unreasonable given the parties’ circumstances that the children remain in private school and orders that private school tuition up to a total of $15,000 per year shall be divided equally between the parties. The current total tuition in the amount of $724 per month shall be divided equally between the parties with Respondent’s share as an add-on for purposes of child support, subject to modification as tuition may increase.” Roger did not appeal from the April 16 order.

On May 4, 2004, Monica moved for a modification of child support, again requesting an increase in the amount Roger must contribute to private school tuition. In her order to show cause for modification, Monica provided evidence that the combined private school tuition for all four girls for the 2004/2005 school year would be $25,387. Effectively, Monica requested that the court increase Roger’s maximum contribution for private school tuition from $7,500 a year to $12,993.50 a year, or one-half of the increase of $10,387 from the annual maximum set by the April 16, 2001 order. Roger opposed the motion.

Hearings took place on October 8 and 22, 2004. On December 20, 2004, the trial court issued its order after hearing as follows: “Prior to Comm. Heubach’s Order filed April 16, 2001, Father argued in his Responsive Declaration filed February 21, 2001, that the parties’ Marital Settlement Agreement does not require that he pay school tuition in excess of $100 per month unless agreed to by both parties. Comm. Heubach rejected that argument and ordered the parties to share private school tuition up to $15,000 per year. Without different income levels for the parties, this Court enforces Comm. Heubach’s prior decision. Thus, Father is required to pay a maximum of one-half of $15,000 for the private school tuition of his four children as an add-on in the calculations (see California Practice Guide – FAMILY LAW, 6:291.1).”

Thus, by its December 20, 2004 order, the court refused to increase Roger’s maximum annual private school tuition contribution from $7,500 to $12,993.50, as Monica had requested in her May 4, 2004 order to show cause for modification, but noted his continuing obligation to pay the lesser amount based on the April 16, 2001 order.

Thereafter Roger filed his notice of appeal.

III.

Discussion

A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) A trial court’s order is appealable when it is made so by statute. (Ibid.) Section 904.1, subdivision (a)(10) of the Code of Civil Procedure provides that an appeal may be taken from an order made appealable by the provisions of the Family Code. “Family Code section 3554 allows an appeal to be taken ‘from an order or judgment under this division as in other civil actions.’ ‘This division’ refers to division 9 in which section 3554 appears. Division 9 relates to support, including child support.” (In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287, italics added, fn. omitted.) Because the April 16 order is a judgment under division 9 of the Family Code and relates to child support, we look to the Code of Civil Procedure, as directed by Family Code section 3554, to determine whether it is appealable. (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1158 [“A postjudgment order re modification (of spousal support) is appealable under Code of Civil Procedure section 904.1, subdivision (b)^[[2]^]”]; In re Marriage of Acosta (1977) 67 Cal.App.3d 899, 901, fn. 1; see generally In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219-220 [applying former Code Civ. Proc., § 904.1, subd. (b) (now subd. (a)(2)) to family law case].)

Section 904.1, subdivision (a) of the Code of Civil Procedure^[3] provides that “[a]n appeal . . . may be taken from any of the following: (1) From a judgment . . . (2) From an order made after a judgment made appealable by paragraph (1).” Therefore, it is clear that the April 16 order was a final appealable judgment under section 904.1, subdivision (a)(1), and that no appeal was taken from that judgment.

“[A]n appeal may be taken from an order made after an appealable judgment. Thus, for example, an appeal from an order modifying child support is allowed. [Citations.] . . . [¶] However, not all orders after judgment are appealable. . . . [T]he order must present issues that would not be addressed in an appeal from the judgment itself. A party aggrieved by a judgment must take his or her appeal from the judgment itself, if an appeal is authorized, and not from a subsequent order raising the same issues. . . .” (3 Raye & Pierson, Cal. Civil Prac.—Family Law Litigation (2003) Review of Judgments and Orders, § 17.46, pp. 44-45, italics added.)

An order made after an appealable judgment is not itself appealable under section 904.1, subdivision (a)(2), if the appeal presents the same questions that would have been presented on appeal from the original judgment. (McConnell v. Merrill, Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 487 (McConnell), citing Hilliker v. Board of Trustees (1928) 91 Cal.App. 521.) One of the rationales for this rule is to preclude an unwarranted extension of time to appeal starting from the subsequent order if the aggrieved party failed to take a timely appeal from a judgment. (McConnell, supra, 176 Cal.App.3d at p. 487; Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1011.)

Roger’s appeal from the December 20, 2004 order challenges the findings that: (1) Roger would pay for private school tuition as a Family Code section 4062, subdivision (b)(1) add-on; and (2) private school tuition up to a total of $15,000 per year would be divided equally between the parties. He now argues that a Family Code section 4062, subdivision (b)(1) add-on for private school tuition requires evidence that the children have special educational needs. This reading of section 4062, subdivision (b)(1) is also consistent with the Statewide Uniform Guideline support formula, which automatically provides children with support appropriate to their parents’ economic circumstances. Therefore, a private school tuition add-on in this instance is a “double dip” never intended by the statute.

The findings Roger challenges were made in the April 16 order, and the issues he now raises were presented by that earlier order as well.[4] “If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal. [Citations.]” (In re Marriage of Lloyd, supra, 55 Cal.App.4th at p. 219.) To rule otherwise would allow Roger an unwarranted extension of time to appeal the April 16 order, and doing so would circumvent the principles behind the one final judgment rule.[5]

IV.

Disposition

The December 20, 2004 order is affirmed. Roger to pay Monica’s costs on appeal.

_________________________

Ruvolo, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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[1] Family Code section 4062, subdivision (b)(1) provides that, “The court may order . . . as additional child support: [¶] . . . Costs related to the educational or other special needs of the children.”

[2] The 1993 amendment to section 904.1 changed designators of the subdivisions and paragraphs and made corresponding changes in internal references, such that in the In re Marriage of Schroeder case, Code of Civil Procedure section 904.1, subdivision (b) is presently designated as section 904.1, subdivision (a)(2).

[3] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

[4] The only aspect of the December 20, 2004 order, relating to child support that differs from the April 16 order is the current dollar amount Roger was directed to pay. The April 16 order set Roger’s Family Code section 4062, subdivision (b)(1) add-on for private school tuition at $362 per month, based on all four children’s enrollment at St. Isabella, whereas the December 20, 2004 order sets it at $625 per month because the oldest daughter was entering St. Ignatius High School. Yet both orders directed Roger to share equally in the cost of private school tuition for the parties’ four daughters up to a maximum of $15,000 per year. Roger does not contend that the current dollar amount of the December 20, 2004 order is erroneous, or that private school tuition is no longer reasonable due to changed circumstances.

[5] Code of Civil Procedure section 904.1, subdivision (a)(1) effectively codifies the one final judgment rule, which provides that an appeal can only be taken from a final judgment in an action. (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725.) Although the one final judgment rule is applied with a degree of flexibility to family law orders in recognition of the continuing and recurrent nature of issues that arise upon dissolution, the primary statutory basis for appeals in family law and other civil matters is section 904.1. (See Raye & Pierson, supra, at §§ 17:42 & 17:43, pp. 41-42.)