Filed 7/30/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of 

CHRISTOPHER DALE OLSON and 

HEATHER RAE OLSON.

___________________________________

CHRISTOPHER DALE OLSON,

 Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

 Respondent;

HEATHER RAE OLSON,

 Real Party in Interest.

 B258767

 (Los Angeles County

 Super. Ct. No. YD060250)

ORIGINAL PROCEEDINGS; petition for writ of mandate. John Slawson, 

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.

Rombro & Associates, S. Roger Rombro, Melinda A. Manley, and Kelly A. Tufts

for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

____________________________________________
2

Christopher Olson filed for divorce from Heather Olson, requesting joint custody 

of their two young children.1 Heather did not respond, and a default judgment of 

dissolution, including a custody order, was granted. Over a year later, Heather petitioned 

for a modification of the custody order. Christopher objected, contending that because 

the default judgment remained in effect, Heather lacked standing to request a 

modification.

The trial court ruled that Heather did have standing to seek the modification and 

ordered the couple to participate in a parenting plan assessment program. Although this 

order is not appealable, we exercise our discretion to treat this appeal as a petition for a 

writ of mandate and deny the petition. 

We hold that a parent has standing under Family Code section 3087 to request a 

modification of a child custody judgment notwithstanding that the judgment sought to be 

modified was a default judgment taken against the parent who is petitioning for the 

change.

FACTS AND PROCEEDINGS BELOW

On October 12, 2011, Christopher filed a petition for dissolution of marriage to 

obtain a divorce from Heather, his wife of nine years. Heather did not file a response, 

and on February 19, 2013, the court granted the divorce in a default judgment. Heather 

was present in court as a witness. The court granted a judgment of dissolution of the 

marriage and granted the parties joint legal custody of their twin seven-year-old

daughters. Each parent was entitled to physical custody of the children approximately 

half the time. The judgment reserved spousal and child support to be determined at a 

later date.

The relationship between Christopher and Heather subsequently deteriorated, and 

in June 2014, Heather filed a petition to modify joint custody. Heather proposed that 

Christopher have custody of the twins only on Thursday nights and alternate weekends. 

 

1 We refer to the parties as Christopher and Heather for clarity. No disrespect is 

intended.
3

The remainder of the week, they would stay with Heather. Christopher opposed 

Heather’s request, arguing for the existing joint custody schedule to remain in effect.

Christopher also filed a separate petition in which he contended that because the 

divorce judgment was granted by default judgment against Heather, Heather lacked the 

standing to request a change in the judgment, and that the court lacked jurisdiction to 

consider her petition.

On August 20, 2014, the court denied Christopher’s petition, ruling that Heather

did have standing, and the court did have jurisdiction to decide her petition. The court 

also ordered Christopher and Heather to attend a two-day parenting plan assessment to 

attempt to work out their disagreements. The court declined to rule on the financial 

aspects of Heather’s petition until the custody matter was resolved. 

On September 9, 2014, Heather filed a motion requesting child support from

Christopher. The next day, September 10, Heather filed a petition requesting that the 

court order Christopher to produce documents in response to a discovery request. On the 

same day, Christopher filed a notice of appeal from the court’s order accepting 

jurisdiction and proceeding on the merits of Heather’s child custody request.

After participating in the parenting plan assessment, the parties agreed to a 

stipulated order, filed October 16, 2014, which confirmed the existing joint custody 

schedule as had been provided in the default judgment. The court entered this stipulated 

order. 

DISCUSSION

1. Appealability and Mootness

The order from which Christopher has appealed is not appealable. Under Code of 

Civil Procedure section 904.1, subdivision (a)(2), a party may appeal “[f]rom an order 

made after a [final] judgment.” However, not every order following a final judgment is 

appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.) To be 

appealable, a postjudgment order must “‘either affect the judgment or relate to it by 

enforcing it or staying its execution.’” (Id. at pp. 651-652, quoting Olson v. Cory (1983) 
4

35 Cal.3d 390, 400.) In particular, postjudgment orders that “lack[] finality in that 

they [are] also preparatory to later proceedings” fail this test and are not appealable. 

(Lakin, at p. 653.) In divorce cases, this rule has been applied to dismiss appeals from 

orders that contemplated further proceedings. (E.g., In re Marriage of Levine (1994) 28 

Cal.App.4th 585, 589; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.) For 

example, in In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1218, the court held 

that a postjudgment court order approving an arbitration award was not appealable 

because it required the appointment of a forensic accountant to calculate the amount of 

the award. The decision as to the amount of the award would not become final until 

adopted by the judge, and the order would not become final and appealable until then. 

(Ibid.) 

In this case, 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 to [a] later proceeding[]” and 

therefore not appealable. (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th 

at p. 653.) 

Nevertheless, we will decide this case on the merits. This case presents

“unusual circumstances” in which an appellate court may exercise its “discretion to 

treat a purported appeal from a nonappealable order as a petition for writ of mandate.” 

(H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) 

As in H. D. Arnaiz, Ltd. v. County of San Joaquin, the record in the current case is 

sufficient, there is no indication that the trial court will appear in the writ proceeding, 

and, most importantly, dismissing the appeal at this point would be “‘“‘unnecessarily 

dilatory and circuitous. . . .’”’” (Id. at p. 1367.) Christopher has opposed three separate

requests by Heather on the grounds of standing, and there is every indication Christopher

will continue his opposition in the case of all future similar requests. Thus, it is in the 

interests of judicial economy to decide this case on the merits.
5

For similar reasons, we will decide this case on the merits even though we could 

dismiss it as moot. “A question becomes moot when, pending an appeal from a judgment 

of a trial court, events transpire which prevent the appellate court from granting any 

effectual relief. [Citation.]” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) Here,

the court ordered the same child custody arrangement as contained in the original default 

judgment. Because the trial court granted Christopher’s request regarding the custody 

arrangement, there is no “effectual relief” we can provide to Christopher. (Ibid.) 

However, “[i]f an action involves a matter of continuing public interest and the issue is 

likely to recur” (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716), or if

“‘there is a distinct possibility that the controversy between the parties may recur’”

(Westchester Secondary Charter School v. Los Angeles Unified School District (2015) 

237 Cal.App.4th 1226, 1233, fn. 2, quoting Bullis Charter School v. Los Altos School 

Dist. (2011) 200 Cal.App.4th 1022, 1034), an appellate court may decide an issue that 

would otherwise be dismissed as moot. (Ibid.) Both circumstances are present here.

2. Modification of Custody Following a Default Judgment

Christopher claims that the trial court’s entry of a default judgment against 

Heather bars Heather from seeking a modification of the joint custody arrangement 

unless she first obtains relief from the default judgment. We disagree.

Christopher argues that this case should be viewed as if it were any other civil

dispute. He relies on Family Code section 210, which provides that unless another law or 

rule specifies otherwise, family court cases are governed by the same procedural rules as 

civil cases generally. Because a defendant in a civil case who has had a default judgment 

against her may not file pleadings or take further steps in the case while the default 

judgment remains in effect (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 

155 Cal.App.3d 381, 385-386), Christopher contends that Heather has no standing to seek 

a modification of the joint custody arrangement ordered in the default judgment.

We disagree. The supervision of the custody of children is fundamentally 

different from other court functions. The court’s primary concern must be the well-being 
6

of the children, not the preferences of the parties themselves. (See Fam. Code, § 3020, 

subd. (a); In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020, 1026 [“The entire 

scheme underlying custody decrees is that primary consideration must be given to the 

welfare of the child.”].) For this reason, the court retains jurisdiction of a divorce case in 

order to supervise issues such as custody: “The court may, during the pendency of a 

proceeding or at any time thereafter, make an order for the custody of a child during 

minority that seems necessary or proper.” (Fam. Code, § 3022, italics added.) The 

court’s power to order modifications of custody for the benefit of children when 

circumstances change must take precedence over the wishes of the parents. (In re 

Marriage of Brown & Yana (2006) 37 Cal.4th 947, 957.)

Indeed, the Family Code expressly authorizes parents to seek modifications: 

“An order for joint custody may be modified or terminated upon the petition of one or 

both parents or on the court’s own motion if it is shown that the best interest of the child 

requires modification or termination of the order.” (Fam. Code, § 3087.) Nothing in this 

section or any provision of the Family Code suggests that it does not apply in cases where 

a divorce was granted via default judgment. To the extent that this provision conflicts

with the general rules applicable to default judgments, the “general . . . provision must 

yield to one that is special.” (Kroupa v. Kroupa (1949) 91 Cal.App.2d 647, 651 [court’s 

statutory authority to modify alimony decisions takes precedence over the general rules 

regarding default judgments]; see also Fam. Code, § 210 [“Except to the extent that any 

other statute or rules adopted by the Judicial Council provide applicable rules, the rules 

of practice and procedure applicable to civil actions generally . . . apply to, and constitute 

the rules of practice and procedure in, proceedings” in family court (italics added)].)
7

As Christopher notes, the case law regarding custody disputes after default 

judgments is sparse.2 The relevant cases that exist suggest that a default divorce 

judgment does not bar the defaulted parent from petitioning the court regarding custody. 

In Osgood v. Landon (2005) 127 Cal.App.4th 425, the court decided on the merits an 

ex-husband’s petition to prevent his ex-wife from moving with their child out of state. 

The court was aware that the man had been defaulted in his divorce proceeding, but 

it did not question his right to petition the court regarding the custody arrangement. 

(See id. at pp. 432-437.) As early as 1947, Justice Traynor recognized in an analogous 

case that the existence of a default divorce judgment did not prevent the court from using 

its jurisdiction to modify a spousal support award. (See Bowman v. Bowman (1947) 

29 Cal.2d 808, 814 (Bowman), abrogated on other grounds by In re Marriage of Lippel

(1990) 51 Cal.3d 1160, 1168-1170.) In Bowman, the defendant husband sought to have 

a default judgment of divorce set aside in order to challenge an award that the court 

characterized as support and maintenance. (Bowman, at pp. 811-812.) The court ruled 

that he had waited too long after the entry of default to attack the default judgment. 

(Id. at p. 813.) The court recognized, however, that in spite of the default, it had 

continuing jurisdiction to modify spousal and child support decrees in cases where a 

party could demonstrate changed circumstances.3(Id. at p. 814.) 

Christopher suggests that if his position were adopted, Heather would not 

necessarily be barred from obtaining a modification of the joint custody order because 

Heather could petition the court for relief from the default judgment. But relief from the 

 

2 Christopher cites several divorce cases in which a default judgment must be set 

aside before the court will consider any modifications: In re Marriage of Stevenot (1984) 

154 Cal.App.3d 1051; Holsinger v. Holsinger (1950) 95 Cal.App.2d 835; In re Marriage 

of Park (1980) 27 Cal.3d 337; and Deyl v. Deyl (1948) 88 Cal.App.2d 536. These cases 

are not directly applicable, however, because in each of them, the defaulted party sought 

to overturn the entire judgment of divorce or to reopen the distribution of marital 

property, not merely to modify custody or support. 

3

In that case, the jurisdiction was conferred by Civil Code section 139, predecessor 

to today’s Family Code section 4336. 
8

default is not what Heather sought. She did not ask that the dissolution of the marriage 

be set aside.

Christopher also argues that Heather should have obtained a court order before 

attempting to obtain discovery from him. Heather’s motion to compel discovery was 

filed on September 10, 2014, the same date that Christopher filed his notice of appeal. 

The record does not contain the trial court’s ruling on this issue. Because any ruling on 

Heather’s discovery motion came after Christopher initiated this proceeding, the issue is 

not before us.

DISPOSITION

Having treated this appeal as a petition for a writ of mandate, we deny the petition.

Petitioner is to bear his own costs.

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

JOHNSON, J.