Is it appealable in family law, or not? Ruling provides guidance

Trials and hearings in the family law arena give rise to confounding appealability questions: There are pre-trial decisions that may or may not be appealable (e.g., they are if they involve orders to pay money), there is the decision after trial (which is appealable), and there are post-trial decisions which may or may not be appealable. Although many lawyers believe that anything after a trial on the merits is appealable under Code of Civil Procedure Section 904.1(a)(2), it is well established that temporary custody orders are not appealable. Lester v. Lennane, 84 Cal. App. 4th 536, 559 (2000). Stupp v. Schilders, 2017 DJDAR 4605 (Cal. App. 1st Dist., May 18, 2017), makes clear that not all post-judgment orders are not appealable because, although they follow an earlier judgment, they "are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal."

Stupp represents one such preliminary post-judgment order that is not immediately appealable. There, the family trial court made only temporary orders with respect to the parties' child pending an evidentiary hearing that was scheduled for later in the year. Stupp also confirms that one cannot raise new issues on appeal for the first time in a reply brief absent to showing of good cause.

In addition, Stupp stands for the proposition that the trial court may order may not order a vocational examination without a pending support motion. Family Code Section 4331 subdivision (a) provides that "[i]n a proceeding for dissolution of marriage ... the court may order a party to submit to an examination by a vocational training counselor." But subdivision (b) provides that such an order "may only be made on motion, for good cause." The appellate court held that while Section 4331(a) does not define what good cause means, the text of the section informs that "the focus" of the examination is "an assessment of the party's ability to obtain employment that would allow the party to maintain herself or himself at the marital standard of living."

Moreover, Section 4331 is located in the chapter of the Family Code titled "Spousal Support Upon Dissolution or Legal Separation." For these reasons the appellate court held that it good cause for a vocational examination may only exist if the examination is relevant to a determination of spousal support. Since no spousal support issue was pending before the trial court, its order for a vocational examination was an abuse of discretion.