Just what are you appealing from, anyway?

Over at The Ninth Circuit Blog of Appeals, I posted today about an appellant who tried to use a federal appeal from a post-judgment order as a vehicle to attack the underlying judgment, which had been entered five years earlier. On the very same day, the Sixth District published Marriage of Sameer, case no. H035957 (6th Dist., June 19, 2012), in which the appellant tried a similar tactic in California state court. You won’t be shocked to learn it doesn’t work there, either.

In February 2008, the court entered a judgment on the stipulation of the parties, in which wife would receive spousal support with scheduled steps down in amount, ending completely on June 1, 2010, unless wife, prior to that date, filed a motion and should good cause why support should continue. The clear implication of the judgment and the parties’ stipulation onthe record was that within that time frame, wife was expected to complete her masters degree requirements and become self-supporting. When she pursued a doctorate instead of seeking employment in the field of her masters degree, she moved to modify the judgment, with the requisite change in circumstances being the “unrealized expectation” in the original judgment, i.e., that she had not become self-supporting as the original judgment contemplated.

Unrealized expectations. We all have a few of those, don’t we?

Wife in this case argued first that under the terms of the judgment, she was entitled to a reevaluation of spousal support regardless of whether there were changed circumstances. Wrong. Then she argued that the unrealized expectation of self-supporting status constituted the requisite changed circumstances. Unfortunately for her, she offered no evidence of her diligence to become self-supporting. So that argument is rejected, too.

Now we get to the similarity with the federal case. Wife also argued that the original stipulation and judgment were infirm because they failed to containing an explicit warning that she was expected to become self-supporting prior to the scheduled termination of support. Wife’s procedural error here is worth more than the footnote the court gave it, where it noted that because the argument was directed to the original judgment rather than the post-judgment order, “she is collaterally attacking the¬†judgment,” so “this claim is not cognizable.”

The judgment and any post-judgment orders are not the same thing. An appeal from a post-judgment order alone isn’t going to get you anywhere with the judgment itself if it comes after the time to appeal from the underlying judgment has lapsed.