In re the Marriage of DAWN E. and PAUL E. MOSLEY.

The Fourth California Appellate District determined, December 10, 2010, that the 180-day time limit to appeal a Judgment or appealable order (per California Rules of Court 8.104(d)(3)) is measured from the date an order is filed in a publicly-accessible location, which is not necessarily the date it is file-stamped by a Court.

This decision was part of the Appellate Court’s denial of a motion to dismiss the appeal of an order of an Orange County Superior Court. The order had been file-stamped April 1, 2010 but was not entered into the Court’s computerized case management system until September 10, 2010. In fact, the Court had lost the order and did not relocate it until August 20, 2010.

The party, who ultimately appealed the order, made phone calls to the Court in June and July 2010 inquiring as to the status of the order. Both times, she was told that orders had been filed. On July 21, 2010, she went to the Courthouse to speak to a clerk in person. The clerk conceded that the order appeared to be lost, and she suggested that both sides resubmit all of their paperwork for review and a new order. Both sides complied, but by then the order had been found and was subsequently sent out to the opposing party, who received it on September 13, 2010. He then mailed it to the soon-to-be appellant on September 18.

The appealing party filed her appeal on October 1, 2010, and on October 19, the appellate Court indicated that it was considering dismissing her appeal as it had been filed 13 days outside the 180-day time limit. The appealing party filed a brief letter addressing the timeliness of her appeal along with a sworn declaration describing her efforts to ascertain the status of the Court’s order. A Superior Court supervisor chimed in with a declaration confirming that the order had been misplaced and that conformed copies had not been timely provided.

The Court determined that, for the purposes of establishing when the 180-day appeal clock starts, “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.” This construction was necessary, the Court stated, to preserve the constitutional right of appeal as, otherwise, trial courts would be able to shield judgments from appellate review by holding them in pectore until the 180-day appeal limit had run its course.

The appellate Court noted that its decision should not be broadly interpreted to determine when a document’s filing date for any other purpose. Its decision only applies to the 180-day time limit for appealing Judgments and orders.

Full transcript of the Court’s decision can be found here.

In a decision issued August 4, 2010, Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California, ruled that Proposition 8, which defines marriage as strictly between a man and a woman, is unconstitutional as violative of both the Due Process and Equal Protection Clauses. Proposition 8 was passed by a narrow majority of voters in November 2008 and has been in litigation ever since.

According to Walker, the 18,000 gay marriages granted between June 16, 2008 and November 5, 2008 (the brief window during which same-sex marriages were legal) have not and do not pose any public harm. Walker ordered an entry of judgment permanently enjoining enforcement of Proposition 8. However, Walker also ordered a temporary stay of execution of that judgment pending the anticipated appeals to higher courts, perhaps all the way to the Supreme Court.

Both current governor, Arnorld Schwarzenegger, and former governor and current gubernatorial candidate, Jerry Brown, delivered letters to the Chief Judge on August 7, 2010, opposing the stay. “The Administration believes the public interest is best served by permitting the court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” Schwarzenegger wrote in his letter.

The historic 1502 6th Avenue building in San Diego, formerly Obama campaign headquarters, has now become the downtown office for the AAA Legal Relief Clinic: the all-in-one, do-it-yourself resource that helps you be the best pro per possible. Just across the street from the 6th Avenue family law courthouse, the Clinic offers a wide variety of services. Its friendly and knowledgeable staff help you with document preparation and service. The Clinic’s comfortable offices are equipped with fax machines, fast printers, heavy-duty copiers and internet-accessible modern computers. And for those matters that turn out to be too much for one person to handle, an MFLC attorney is never more than a call away.

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By Rivka Israel, Esq. Marcus Family Law Center, PLC

(originally published in Lavender Lens, 11-08)

In my prior article I began with the statement “Now that marriage is possibly on the horizon…” The reason for my careful phrasing has now become clear. Between the time of the Supreme Court ruling in May and the “amendment” to the California constitution earlier this month, I and many other attorney’s were recommending that same-sex couples register as DP’s in addition to marrying. This was aimed at protecting the legal rights of couples and their families the validity of whose marriages would be in question if proposition 8 passed.

The Prop 8 issue has been on everyone’s minds. Why it passed and why it is so wrong? Why shouldn’t such a law pass by majority vote in a democracy? What effect, if any, does it have or is it only a ‘feel good’ issue with no real legal or social effect? Though many same-sex couples are not interested in getting married, everyone, regardless of race, religion or sexual orientation should be interested in the potential civil rights ramification of the legitimacy of such an “amendment” to our constitution.

Our system and our laws are designed to afford equal rights to everyone and to protect minorities from the oppression of the majority. This is one of the basic foundations that make our country so great. Here in California, there are two distinct procedures for making changes to our constitution. These procedures reflect the seriousness of the change. A change that is relatively minor and does not effect substantive rights is considered an amendment and can pass by way of obtaining sufficient signatures and then passing by majority vote. A change to the constitution that has a more profound effect, such as one which eliminates the fundamental rights of a minority group, must first be presented to both legislative houses and pass by a 2/3rds vote before being submitted to the voters. In addition, enforcement of equal protection is placed in the hands of the judiciary. The issue of people’s rights is not left to the majority. If the rights of an entire minority group can be eliminated by a simple majority vote, just think what other 1discriminatory laws can be enacted by a majority vote.

In May the Supreme Court concluded that 1) gay and lesbian citizens are a protected class of minority entitled to heightened protection and 2) marriage is a fundamental right under the due process and equal protection clauses of our state Constitution. The Supreme Court has now agreed to hear the matter of the legality of the amendment and its effects in the context of several cases filed after the election.

The issues which the Court will address are: 1) Is proposition 8 a revision rather than an amendment of the state Constitution? 2) Does proposition 8 violate the separation of powers doctrine of the state Constitution? & 3) If the proposition is constitutional, what effect will it have on the same-sex marriages performed before the adoption of the amendment? As a family law practitioner, I believe that the third issue is the most important on an individual basis, as it will determine many of the rights of these couples, relating to issues such as custody and property. Argument on the case is anticipated to take place in March of 2009.

Rivka Israel is an attorney with the Marcus Family Law Center.  She can be reached at marcussd@barefootlawyer.com.

IN RE VINCENT M., No. H030258.

On April 4, 2008, the Second Appellate District reversed a Findings and Order granting a Petition by a child’s biological father seeking that he was the child’s presumed father stating that:

. . . a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not. (Full text of 04/08/2008 Opinion.)

In re: Vincent M. the child was born in February, 2006 after Petitioner had moved to New York without mother to attempt to gain custody of a child from a previous relationship. Mother had originally told another man that he was the father and had not informed the Petitioner in this case that she was pregnant. At the child’s birth, Mother told the other man that the child had died, surrendered the child to the hospital, and refused to identify the father. The child was placed with prospective adoptive parents and on 03/08/06, the junior court found that the whereabouts of Mother and identity of the Father of the child were unknown, declared the child a court dependent, and moved to the permanency stage of the dependency action.

In September, 2006 a new paternity test revealed that the other man was not the father and Mother contacted the Petitioner to inform him that he was. In October, 2006 Petitioner took a paternity test and was determined to be the biological father of the child. Petitioner then filed his Petition seeking a Declaration that he was the child’s presumed father, and thus entitled to reunification services with the child, despite the time period for such services having expired.

The Second Appellate District found that father did not meet the definition of presumed father status under Civil Code section 7004, subdivision (a) and stated that presumed father status is not related to biology. In discussion of the decision, the court stated, “For a biological father who does not assert paternity until after the expiration of any reunification period, the ‘only remedy’ is to file a petition to modify under section 388″ which requires a showing of new evidence or changed circumstances showing that reunification services or granting custody to the biological parent would be the best interests of the child. As the lower court did not consider the best interests standard, the Findings and Order was reversed and father was directed that he may file another Petition for which the court would have to consider the current status and best interests of the child in making its ruling.

Parents and prospective adoptive parents can find more information about a biological parent’s right to reunification services under California law at adoption.com.