FACTS

Husband and Wife share four children. In May 2019 the family court entered a

judgment dissolving the marriage of Husband and Wife effective January 7, 2013, and

the court approved a stipulation for Husband to pay monthly child support in the amount

of $728 based upon Husband having a monthly income of $1,905, which is minimum

wage. When two of the four children became adults, Husband’s monthly child support

obligation was decreased to $544.

In September 2020 the Department moved to modify the amount of child support

paid by Father. In opposition, Husband contended he was disabled and unable to work

full time. Husband declared he had a monthly income of $614 in social security income

(SSI). The Department verified that Husband was receiving SSI. Wife declared

2 Husband had income from a variety of sources: selling artwork, working as a wedding

officiant, and running a consulting business.

On February 24, 2022, the family court, with the Honorable James T. Warren

presiding, announced the court would order Husband to pay $817 in monthly child

support, which was based on a full-time minimum wage job. The family court signed

and filed the modification order on March 16, 2022.

On September 2, 2022, Husband moved to vacate (Code Civ. Proc., § 473, subd.

(b))1 the family court’s child support modification order arguing the family court erred

by not finding that Husband is disabled. Husband asserted it was undisputed that he

was disabled and receiving SSI, so the family court erred by finding Husband’s

assertions unsupported by the evidence. Husband declared his monthly income was

$783 in SSI and $675 from research and writing jobs. Wife argued that Husband’s

motion to vacate was not based upon his mistake, inadvertence, surprise, or excusable

neglect, rather, it was based upon alleged judicial error.

On November 23, 2022, the family court, with Commissioner Nicholas Firetag

presiding, found that Husband’s motion to vacate was akin to an appeal in that Husband

was arguing judicial error. Therefore, the family court denied the motion. On January

19, 2023, Husband filed a notice of appeal that reflects he is appealing from the family

court’s denial of his motion to vacate.

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

3

DISCUSSION

Husband moved to vacate the child support modification order citing section 473,

subdivision (b), which requires “mistake, inadvertence, surprise, or excusable neglect”

by a party or the party’s lawyer. The substance of Husband’s motion did not address

any of those topics. Rather, the substance of the motion concerned the family court

allegedly ignoring undisputed evidence, which would be (A) an “[i]rregularity in the

proceedings of the court,” which prevented Husband “from having a fair trial” (§ 657,

subd. (1)); and/or (B) insufficient evidence to support the court’s decision (§ 657, subd.

(6)). Those are grounds for a motion for new trial. (§ 657, subds. (1) & (6).)

Accordingly, we will treat Husband’s motion as one for new trial. (Brown v. Wells

Fargo Bank, NA (2012) 204 Cal.App.4th 1353, 1356 [substance controls over labels and

captions].)

“An order denying a new trial is not directly appealable, but is reviewable on

appeal from the underlying judgment.” (Deschene v. Pinole Point Steel Co. (1999) 76

Cal.App.4th 33, 37, fn. 1.) The family court signed the underlying child support

modification order on March 16, 2022. Husband filed his notice of appeal on January

19, 2023. That means Husband missed the six-month deadline to appeal from the

underlying child support order. (Cal. Rules of Court, rules 8.104(a)(1)(C)) &

8.108(b)(1)(C).) The untimely appeal should therefore be dismissed.

If we were to ignore the substance of Husband’s motion and treat it as a motion

to vacate, then the appeal would still be dismissed. A denial of a motion to vacate is not

an appealable order when the aggrieved party could have appealed from the underlying

4 order. (Hall v. Imperial Water Co. No. 3 (1926) 200 Cal. 77, 80; People v. Balt (1947)

78 Cal.App.2d 171, 174; Kalenian v. Insen (2014) 225 Cal.App.4th 569, 578.) Husband

could have appealed from the order modifying child support because it was an order

made after the judgment of divorce. (§ 904.1, subd. (a)(2); County of Los Angeles v.

Patrick (1992) 11 Cal.App.4th 1246, 1250; In re Marriage of Padilla (1995) 38

Cal.App.4th 1212, 1216.) Husband failed to timely appeal directly from the order

modifying child support. Rather, he appealed from the unappealable order denying the

motion to vacate. “The existence of an appealable order or judgment is a jurisdictional

prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not

appealable, the appeal must be dismissed.” (Canandaigua Wine Co., Inc. v. County of

Madera (2009) 177 Cal.App.4th 298, 302.) As a result, we will dismiss this appeal.

Husband contends the motion for new trial extended the deadline to appeal. “If

[a] motion for a new trial is denied, the time to appeal from the judgment is extended for

all parties until the earliest of: [¶] (A) 30 days after the superior court clerk or a party

serves an order denying the motion or a notice of entry of that order; [¶] (B) 30 days

after denial of the motion by operation of law; or [¶] (C) 180 days after entry of

judgment.” (Cal. Rules of Court, rule 8.108(b), italics added.)

The underlying order modifying child support was announced in February 2022,

and filed in March 2022. September is six months after March. Husband’s motion for

new trial was denied on November 23, 2022. The six-month deadline applies in this

case because it is the earliest of the deadlines. Husband’s notice of appeal was filed in

5 January 2023, which means he missed the September 2022 deadline. Husband’s appeal

is untimely and must be dismissed.

Husband asserts that the deadline to appeal should have been extended because

he is disabled. Husband did not comply with the procedural requirements for requesting

a disability accommodation, e.g., requesting an accommodation at least five court days

prior to the notice of appeal deadline. (Cal. Rules of Court, rule 1.100(c).)

Additionally, Husband has not meaningfully analyzed whether a court has the authority

to extend the deadline to appeal as a disability accommodation (Cal. Rules of Court,

rule 1.100(f); Civ. Code, § 51, subd. (c)). (Central Valley Gas Storage, LLC v. Southam

(2017) 11 Cal.App.5th 686, 694-695 [“appellant must present meaningful legal

analysis”].) For these reasons, if we had jurisdiction, we would deem forfeited

Husband’s assertion that he should have been given the disability accommodation of an

extended statute of limitations.

Husband contends it is a matter of due process that we address the substance of

his appeal because he “has already faced three separate [child support] contempt

proceedings,” due to his inability to pay the increased amount of child support. On the

merits, Husband’s appeal fails. Husband is appealing from the denial of his motion to

vacate under section 473, subdivision (b), which requires “mistake, inadvertence,

surprise, or excusable neglect” by the party or the party’s attorney. Husband’s motion

was incorrectly based upon an alleged mistake by the family court, in particular, the

allegation that the family court ignored the evidence of Husband’s disability. Husband

6 did not argue a basis upon which a section 473, subdivision (b), motion could be

granted. Therefore, on the merits, the trial court did not err.

DISPOSITION

The appeal is dismissed with prejudice. Respondents are awarded their costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(1)&(a)(2).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

FIELDS

J.

RAPHAEL

J.

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