Full Opinion

Filed 10/15/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE SUSANNE STERNDAHL, B347548 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 23STFL10048) v. DENNIS S. STERNDAHL, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Jessica C. Kronstadt, Judge. Dismissed. Law Offices of Richard A. Marcus and Richard A. Marcus for Defendant and Appellant. Complex Appellate Litigation Group, Claudia Ribet, James Heideman; Brot•Gross•Fishbein, Alexa S. Wolff, Mark P. Gross, and Madison S. Shepard for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ In this dissolution of marriage action, Dennis Sterndahl appeals the trial court’s order denying his request to modify the temporary spousal support awarded to Susanne Sterndahl. Susanne filed a motion to dismiss the appeal on the ground that the order was not appealable because the trial court expressly reserved jurisdiction to retroactively modify the support award from the date Dennis served his request on Susanne until the date trial commenced. Dennis belatedly opposed the motion on the ground that, after he filed this appeal, the trial judge declined to modify the temporary spousal support award and the trial court entered judgment. He therefore contends the order is “separately appealable.” We conclude that the order, which left the parties’ rights subject to revision at trial, was not final. We therefore dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND In September 2023, Susanne filed a petition for dissolution of the parties’ 16-year marriage. In April 2024, Susanne filed a request for order for temporary spousal support. The trial court ordered Dennis to pay temporary spousal support of $45,000 a month to Susanne. Dennis did not appeal that order. In October 2024, Dennis filed a request for order seeking to modify the temporary spousal support award. Dennis asserted that, “[s]ince the prior order was made, [he] sold [his] business and [was] retiring,” “[his] income [was] significantly decreased,” and he was “unable to continue to pay spousal support to [Susanne] at the amount currently ordered.” In response, Susanne sought an increase in temporary spousal support to $58,266. Susanne argued that the “substantial proceeds from the sale [of the business] will generate substantial income available for support of each of the parties.” 2 According to a document prepared by Dennis’s forensic accountant, Dennis received approximately $36.7 million from the sale of his business. The hearing on the request for order took place in February 2025. The trial court concluded that Dennis had failed to demonstrate a change in circumstances based on an inability to pay. The court also denied Susanne’s request for an increase of the temporary spousal support award. Dennis’s counsel asked whether the temporary spousal support award would be “retroactively determined by the trial court when it looks at all the facts.” The court asked Susanne’s counsel whether she objected to “allowing the trial judge . . . to reserv[e] on retroactivity or credits for that token because, if the judge finds that I’m wrong . . . and now I order that your client was underpaid, then there could be money that she should have been owed.”1 Susanne’s attorney replied that it was “absolutely a possibility that permanent support could be more than temporary support,” but “temporary support is meant to maintain the status quo.” Susanne’s attorney argued that it would be unfair “to have that hanging over her head so it could be retroactive almost a year.” She therefore urged the court to make “concrete rulings.” Dennis’s counsel argued it was “more fair” for the order to be retroactively modifiable. The court stated: “I’ll allow the trial court to reserve on retroactivity but—so that exposes both of you to potential risks, which is that, if [the trial judge] says that the petitioner was 1 The record indicates the parties agreed to try the matter before a private judge. 3 underpaid for this period of time, that’s going to be a bill your client has to foot.” The court explained that it did not believe the trial judge would “take any action on this” because it had denied Dennis’s request for order. Counsel for Dennis asked the court to clarify whether it was retaining jurisdiction to modify the award and observed that, “unless you reserve the retroactivity, the court has no power” to retroactively modify the temporary support payments at trial. The court replied: “I’ll reserve retroactivity. I don’t know what [the trial judge] is going to do.” It explained that the reservation of jurisdiction would apply from the time of service of the request for order to modify spousal support until the time of trial. The written order “reserve[d] jurisdiction from November 1, 2024 to time of trial in order to retroactively modify the amount of temporary spousal support.” Dennis appealed the order. DISCUSSION In her motion to dismiss, Susanne contends the trial court’s order denying Dennis’s request to modify the temporary spousal support payment was not a separately appealable order because the court reserved jurisdiction to retroactively modify the award. Dennis argues that the order is appealable because, while this appeal was pending, the trial judge declined to modify the temporary spousal support award and the trial court entered judgment.2 We agree with Susanne. 2 We grant Dennis’s request for judicial notice of the trial judge’s statement of decision and of his notice of appeal from the judgment. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) 4 I. Appealability of Temporary Support Orders “A reviewing court lacks jurisdiction to consider appeals from a nonappealable order, and has the duty to dismiss such appeals.” (In re Javier G. (2005) 130 Cal.App.4th 1195, 1201.) “[S]ubject to statutory exceptions . . . , an appeal may be taken only from ‘a judgment’ of the superior court. The judgment contemplated by this statute is ‘ “ ‘one final judgment in an action . . . which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy.’ ” ’ [Citations.]” (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1342.) In family law proceedings, there are also nonstatutory exceptions to the final judgment rule. (Id. at p. 1343, fn. 8.) “A temporary support order is operative from the time of pronouncement, and it is directly appealable. [Citation.] ‘When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. [Citations.] This constitutes a necessary exception to the one final judgment rule. Such a determination is substantially the same as a final judgment in an independent proceeding.’ [Citation.]” (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637–638 (Gruen).) “It is well established that even on a showing of changed circumstances a ‘court may not retroactively modify a prior order for temporary spousal support.’ [Citations.]” (Gruen, supra, 191 Cal.App.4th at p. 638.) In Gruen, the Court of Appeal held that the trial court exceeded its jurisdiction by retroactively modifying a temporary support order that the husband had not appealed. (Id. at p. 639.) 5 In In re Marriage of Freitas (2012) 209 Cal.App.4th 1059 (Freitas), the trial court entered a temporary spousal support award in favor of the husband and “ruled that it would reserve jurisdiction over whether to amend the support awards, and that [the husband] could submit additional evidence pertaining to [the wife’s] income” for a two-month period. (Id. at p. 1061; see id. at p. 1062.) The trial court later determined that it lacked jurisdiction under Gruen to amend the support award for that two-month period. (Id. at p. 1062.) The appellate court disagreed. Unlike in Gruen, where the order was “was ‘final’ and ‘directly appealable,’ ” the trial court had “expressly reserved jurisdiction to amend its original support awards” as to the two- month period. (Id. at p. 1074.) “Thus, . . . the parties’ clear expectation was that the original support awards were not final as to these months.” (Ibid.) The spousal support award was “not fully dispositive of the rights of the parties with respect to the amount of support to be awarded.” (Id. at pp. 1074–1075.) “Distilled simply, Gruen and Freitas together establish the rule that a trial court lacks jurisdiction to retroactively modify a temporary support order to any date earlier than the date on which a proper pleading seeking modification of such order is filed ([Gruen], supra, 191 Cal.App.4th at p. 631), unless the trial court expressly reserves jurisdiction to amend the support order such that the parties’ clear expectation is the original support award is not final ([Freitas], supra, 209 Cal.App.4th at pp. 1062, 1075).” (In re Marriage of Spector (2018) 24 Cal.App.5th 201, 210.) In Last v. Superior Court (2023) 94 Cal.App.5th 30, 36 (Last), the husband and wife had signed a premarital agreement in which the wife waived the right to receive spousal support or 6 alimony. After filing a petition for dissolution of marriage, the wife sought temporary spousal support. (Ibid.) At the hearing on the wife’s request, the wife’s counsel challenged the validity of the premarital agreement. (Ibid.) The trial court awarded temporary spousal support to the wife and stated: “ ‘[T]o be clear, the order regarding spousal support . . . may be reallocated at the conclusion, . . . for example if the premarital agreement is found to be valid and there’s a determination that there was no spousal support, obviously [the husband] will be given credits at the conclusion of the case.’ ” (Id. at pp. 36, 43.) The Court of Appeal concluded this was an express reservation of jurisdiction. (Last, supra, 94 Cal.App.5th at p. 43.) “The parties’ clear expectation, based on the court’s statements and the circumstances of case, must have been that the issue of spousal support would not be finally decided until the bifurcated trial on the issue of the enforceability of the Premarital Agreement.” (Ibid.) The court acknowledged that “[a] reservation of jurisdiction usually will render a temporary support award to be nonfinal and, hence, not directly appealable.” (Id. at p. 44.) It nevertheless “conclude[d] the interests advanced by the collateral order doctrine are best served by deeming the order awarding temporary spousal support to be appealable.” (Ibid.) Further, the court “resolve[d] any doubts about [its] appellate jurisdiction by exercising [its] discretion to treat [the husband’s] appeal as a petition for writ of mandate.” (Ibid.) II. The Trial Court’s Express Reservation of Jurisdiction Rendered the Order Nonfinal and Not Appealable Here, there was an express reservation of jurisdiction over whether to modify the temporary support award. As in Freitas, 7 the trial court’s statements at the hearing on Dennis’s request for order to modify the temporary spousal support award created a “clear expectation” that the award for the period of November 1, 2024, to the commencement of trial was “not final as to these months.” (Freitas, supra, 209 Cal.App.4th at p. 1074.) The court explained that the reservation of jurisdiction to retroactively modify the award “exposes both of you to potential risks,” namely, that the support award for that period could later be increased or lowered, to Dennis’s or Susanne’s detriment. The court’s written order also expressly reserved jurisdiction “to retroactively modify the amount of temporary spousal support.” The court therefore “left open the possibility that the trial [judge] might amend the spousal support award.” (Id. at p. 1072, fn. 12.) We therefore conclude that the order denying Dennis’s request was nonfinal and not appealable. In his opposition to the motion to dismiss, Dennis contends the trial court’s order is final because the trial judge later declined to modify the temporary spousal support award and the trial court entered judgment. This is an implicit concession that the order was not “ ‘dispositive of the rights of the parties in relation to’ ” temporary spousal support at the time the trial court issued it. (Gruen, supra, 191 Cal.App.4th at pp. 637–638.) Accordingly, the order was not “ ‘substantially the same as a final judgment in an independent proceeding’ ” and was not separately appealable. (Id. at p. 638.) Dennis’s assertion that our dismissal of this appeal will leave him without a remedy is incorrect. Dennis may reassert his challenge to the court’s order in his 8 pending appeal from the judgment, which rendered the order final.3 Dennis also asks us to treat this appeal as a petition for writ of mandate. (Last, supra, 94 Cal.App.5th at p. 44.)4 Our discretion to treat an appeal from a nonappealable order as a petition for writ of mandate “should be exercised only in unusual circumstances. . . .[,] ‘ “ ‘. . . compelling enough to indicate the propriety of a petition for writ . . . in the first instance . . . .’ [Citation.]” ’ [Citation.]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367.) Such circumstances include when the failure to treat the appeal as a petition for writ of mandate would “lead to unnecessary trial proceedings,” and where “all issues in th[e] litigation have . . . been resolved except for the one . . . presented to th[e] court” and “all parties strongly urge that [the court] decide it rather than 3 Although Dennis’s second notice of appeal did not separately identify the order denying his request to modify the temporary spousal support award, we may conclude that the notice encompasses that order. (Mosley v. Pacific Specialty Ins. Co. (2020) 49 Cal.App.5th 417, 422 [appellate court “may review any nonappealable order encompassed within the judgment,” even if not identified in notice of appeal]; accord, Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 669.) 4 The court in Last suggested that the collateral order doctrine warranted deeming the temporary spousal support order in that case to be appealable despite the trial court’s reservation of jurisdiction, but ultimately resolved any appealability issues by treating the appeal as a petition for writ of mandate. We find no basis to “deem” the order at issue here to be appealable. 9 dismiss the appeal.” (Olson v. Cory (1983) 35 Cal.3d 390, 400, 401.) These circumstances are not present here. The motion to dismiss is granted. DISPOSITION The appeal is dismissed. Susanne Sterndahl shall recover her costs on appeal. CERTIFIED FOR PUBLICATION ADAMS, P. J. We concur: HANASONO, J. DELGADO, J.* * Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10