In Re Marriage of Kepley

*948 Opinion

This is an appeal from an order denying Cheryl K. Kepley’s request for an increase in child support payments. The order is reversed.

An interlocutory judgment of dissolution of the marriage of Phillip C. Kepley and appellant was filed on August 3, 1982. At that time, the parties agreed that appellant would have physical custody of the couple’s children, then six and twelve years old, and that respondent would pay child support in the amount of $150 per month per child.

On September 16, 1985, appellant filed an order to show cause, requesting modification of the child support order to increase the payments to $250 per month per child. Her income and expense declaration showed that she had a monthly income of $566.66 from investments, and total monthly expenses of $1,399.88.

Respondent filed a responsive declaration agreeing to an order increasing support payments “per Agnos” 1 if appellant was ordered to seek employment. Respondent’s income and expense declaration showed a monthly income of $3,285.08 with expenses of $3,033. The minimum child support worksheet calculated pursuant to the Agnos Act showed a minimum child support award of $393.42 for both children…

I reluctantly concur.

I agree that under the law as presently written, appellant’s notice of appeal was timely. I am therefore compelled to concur in the result. However, I doubt that the drafters of California Rules of Court, rule 2(a) intended the 180-day period to apply to a party who received actual notice of the judgment.

In earlier times, the time for filing a notice of appeal was 60 days from the entry of judgment; notice was not required. Thus, the time could easily slip away without the aggrieved party realizing that judgment had been entered. The harshness of this rule was eliminated in 1965 by the revision of rule 2(a). (See generally, 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 379, 380, pp. 381-382.) Now the 60-day period starts upon notice of entry of judgment; the time period is extended to 180 days if no notice is given. (Cal. Rules of Court, rule 2(a).)

Here, appellant received notice that judgment had been entered in the form of a filed copy of the trial court’s order. The 60-day period did not transpire without her awareness that judgment had been entered. Yet, she did not file her notice of appeal until the 114th day. In my view, she is able to avoid…

I dissent.

I am of the opinion that the time for taking an appeal commences to run from “actual service of a filed copy of the order appealed from” by the clerk, as was here effected, and, Pacific City Bank v. Los Caballeros Racquet & Sports Club, Ltd. (1983) 148 Cal.App.3d 223, 227 [ 195 Cal.Rptr. 776 ], notwithstanding, that the trial court’s intent “to provide notice to the parties” is immaterial. The notice of entry of the order required by law had here been substantially complied with. “Substantial compliance expresses a rule of interpretation which derives from general maxims of equity — that substance governs over form, that no one is required to perform an idle act. (Civ. Code, §§ 3528, 3532.) Hence if the essence of a requirement has been met, or if its performance would be superfluous, then the law holds that the requirement has been substantially complied with.” (People v. Boone (1969) *956 2 Cal.App.3d 503, 506 [ 82 Cal.Rptr. 566 ].) I would dismiss the appeal taken 114 days after “actual service of a filed copy of the order appealed from,” as untimely.

This is an appeal from an order denying Cheryl K. Kepley's request for an increase in child support payments. The order is reversed.

An interlocutory judgment of dissolution of the marriage of Phillip C. Kepley and appellant was filed on August 3, 1982. At that time, the parties agreed that appellant would have physical custody of the couple's children, then six and twelve years old, and that respondent would pay child support in the amount of $150 per month per child.

On September 16, 1985, appellant filed an order to show cause, requesting modification of the child support order to increase the payments to $250 per month per child. Her income and expense declaration showed that she had a monthly income of $566.66 from investments, and total monthly expenses of $1,399.88.

Respondent filed a responsive declaration agreeing to an order increasing support payments "per Agnos" [1] if appellant was ordered to seek employment. Respondent's income and expense declaration showed a monthly income of $3,285.08 with expenses of $3,033. The minimum child support worksheet calculated pursuant to the Agnos Act showed a minimum child support award of $393.42 for both…