Marriage of DeLuca and Broquedis

Marriage of DeLuca and Broquedis

Filed 5/17/06 Marriage of DeLuca and Broquedis CA1/4


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.




In re the Marriage of JOSEPH DeLUCA and MARSHA BROQUEDIS.







(Alameda County

Super. Ct. No. C-796888-0)



Appellant Joseph DeLuca (Father) appeals from the family court’s denial of his postjudgment motion to increase custody time with his minor son, Niccolo (Nicco). Father contends the trial court prejudicially erred in denying his motion because: (1) in considering the motion, the court improperly refused Father’s request for a child custody evaluation; (2) the court based its refusal to change the current custody arrangement on inadmissible hearsay and improper expert opinion testimony; and (3) the court improperly denied Father the ability to cross-examine the experts upon whose opinions the court relied in denying his request. We affirm.


Procedural Background

Respondent Marsha Broquedis (Mother) filed a petition for dissolution of marriage on April 22, 1998. At that time, Nicco was two years old, having a birth date in December 1995. Father responded and requested that the parties share both legal and physical custody of Nicco.

On November 24, 1998, the parties filed a “Stipulation and Order Regarding Child Custody and Related Matters” (Custody Stipulation). The Custody Stipulation was based on the recommendations of Dr. Christine Pigeon, who had been appointed by the court under Evidence Code section 730 as a custody evaluator and expert. The 10-page Custody Stipulation contained a detailed physical custody sharing arrangement, with Mother being awarded primary physical custody, and both parents being awarded joint legal custody.

The parties also agreed to the appointment of Margaret Lee, Ph.D. as co-parenting counselor for the family to, among other things, monitor Nicco’s well-being, manage the flow of pertinent parenting information by and between Mother and Father, and to assist them in achieving their custody time-sharing goals, consistent with the best interests of the child. Dr. Lee was also directed by the Custody Stipulation to report any noncompliance by either parent with the terms and goals of that agreement to Dr. Pigeon. Similarly, the Custody Stipulation required Dr. Pigeon to make recommendations to the court relating to custody. The Custody Stipulation also provided that the court would review custody before Nicco’s fourth birthday to determine whether the parties were cooperating and collaborating effectively to meet the custody goals, including “the evolution and gradual implementation over time of a developmentally appropriate joint physical custody schedule” defined as at least “two overnights and four contact days a week, up to alternating weeks.”

A status-only judgment of dissolution was entered by the court on December 7, 1998. Thereafter, a motion to modify custody was filed by Mother seeking to incorporate the recommendations in Dr. Pigeon’s latest report into a custody order. On June 28, 1999, the court adopted additional recommendations including that (1) each party retain a “developmental consultant,” subject to Dr. Pigeon’s approval, (2) co-parenting counseling cease, (3) no further incremental increases in custody for Father would go into effect, pending further order of the court, and (4) no mental health professional, other than Dr. Pigeon, would have contact with Nicco. The order also made an adjustment to the then-current custody schedule, and ordered that the custody review process contemplated by the Custody Stipulation begin immediately.

Almost three months later, the court entered another custody-related order concerning certain issues that apparently had been taken under submission. In its order, the court denied a request to appoint another Evidence Code section 730 evaluator, and confirmed that Dr. Pigeon would remain as a court-appointed expert who would be expected to testify “at trial.” The court also allowed Father to hire his own expert witness on custody and visitation issues, with the understanding that neither Mother nor Dr. Pigeon had to cooperate with any retained expert. The court also reiterated its prior order that no confidential information, other than the reports and recommendations of Dr. Pigeon, were to be released without a further motion.

Custody and visitation were reviewed again by the court in mid-2000, culminating in a memorandum of decision filed on May 18, 2000. As pertinent here, the court ordered immediate overnight visits with Father (Dr. Pigeon had recommended that such visits not commence until 2002), and certain other modifications to the custody schedule. Dr. Pigeon’s service as an evaluator was deemed completed, and the parties were ordered to take part in continued co-parenting counseling. Also, the attorneys for Mother and Father were ordered to meet and confer in an attempt to agree on a special master to handle future custody and visitation issues. Father’s counsel was directed to prepare a comprehensive order incorporating the rulings made in the May 18 order, and all other extant custody orders unaffected by the decision.[1]

On January 26, 2001, several stipulations were filed by the parties relating to the involvement of further experts. It was agreed that Diane Ehrensaft, Ph.D., would begin therapy for Nicco. This stipulation included the interlineated note (initialed by the parties): “Said therapist may talk with a subsequent evaluator or therapist appointed by the court and any special master, should they exist.” Another stipulation agreed that Ann Bernstein Ph.D., would provide co-parenting counseling. This stipulation included the following provision: “4. Dr. Bernstein shall not testify either at deposition or in court in this matter. However, Dr. Bernstein has the right to talk to any of the professionals involved in this case, at her initiation.”

On that same day, the parties also stipulated in open court to the appointment of Barbara Rhine as “Expert and Special Master.”[2] As a result, that stipulation was incorporated into an order filed on April 3, 2001 (April 2001 Order). The April 2001 Order appointed Ms. Rhine as Expert and Special Master “under Evidence Code [section] 730, Code of Civil Procedure [section] 1280, et seq., and Code of Civil Procedure [section] 638”[3] for a period of five years, with a possible renewal period of five additional years, and subject to earlier termination as specified. As to the termination of her services, the April 2001 Order provided that either party could move to disqualify Ms. Rhine on any grounds applicable to a judge. If a grievance against Ms. Rhine could not be resolved by the parties and her, the matter would be submitted to the court for resolution. The order also allowed for resignation if she determined that resignation was in the best interests of Nicco, or otherwise was unable to serve out her term.

The April 2001 Order refers to Ms. Rhine both as a “Special Master” and an “Expert.” It is not at all clear from the text of the April 2001 Order that the use of the terms Special Master and Expert throughout the order was intentional or had a special meaning or purpose.[4] The order, states that the Special Master “shall have the authority to make decisions on the following issues: [¶] (a) Schedule appointments with the parties on a monthly basis or otherwise; and [¶] (b) To effectuate the Court’s orders of January 8, 2001, . . . and to make minor modifications thereto.” The Special Master also “shall have the power to seek outside, independent consultation on issues pertaining to any of the foregoing, and shall have the right to pass through to the parties the charges therefor[ ].” While notice to the parties of such consultations was required, consent of the parties was not.

The order also confirmed that the appointment of Special Master, who was being appointed, at least in part, under Evidence Code section 730, could be compelled to testify in the case. It was agreed too that “[t]he Special Master may communicate with the co-parenting therapist and child’s therapist.” To accommodate this right, the parties agreed to execute releases allowing the Special Master to communicate with the parties, as well as with the parties’ and child’s treating physical and mental health professionals “both past, present, and future.” Because of the exigencies sometimes involved, the parties also agreed that the decisions of the Special Master were binding on the parties when made subject to review by the court as specified in the order.

The April 2001 Order also authorized direct, ex parte communications between the Special Master and the court, at the discretion of the court and Special Master, subject to notice to the parties, if practical. Similarly, the parties and their attorneys were empowered to initiate or receive ex parte communications with and from the Special Master.

As to the decision-making powers of the Special Master, the order incorporated this “Warning”: “[B]oth [parties] should assume that the [Special Master]’s decisions on issues related to custody of the children [sic] . . . will be final. Because of the time constraints and because of the language of this Stipulation, the possibility of obtaining a Court Order changing a [Special Master]’s decision on these issues is unlikely. Any party challenging the [Special Master]’s decision on any of these issues will have a burden of proving, with clear and convincing evidence, that the . . . decision was legally incorrect and/or not in the best interest of the children [sic].”

Thereafter, on February 3, 2003, Father filed a request for modification of the custody arrangement. The motion also raised other issues not pertinent to this appeal. As to custody/visitation, Father sought to increase his share of custody to 50 percent. To assist in presenting his motion, Father requested the court to order a new child custody evaluation. Mother filed an opposition to the portion of Father’s motion requesting a change in custody/visitation, and she opposed the appointment of a custody evaluator. Mother noted that the original custody plan, supported by Dr. Pigeon, did not call for a custody review until late 2003, when Nicco would turn eight years old. She also argued that another evaluation would be emotionally harmful to Nicco, and would be a waste of money, given that the parties had already spent in excess of $100,000 resolving issues relating to Nicco’s custody.

Father’s reply argued that a new child custody evaluation was needed to determine “the method and steps” to increase Father’s custody time share with Nicco to 50 percent. He noted that Mother had frustrated his efforts to obtain an increase in custody time, and his new family circumstances enhanced the reasons it would be in Nicco’s best interests to live with Father half time. Father also pointed out that Nicco was now participating in sports, Father was coaching the team, and Nicco needed this “bonding experience.”

A hearing on pending matters, including Father’s request for increased custody time and the appointment of a custody evaluator, was held on May 5, 2003. Father’s counsel argued that the matter should be sent to a Family Services mediator for at least a recommendation as to Father’s request for a new custody evaluation. Mother argued against the referral, contending that all of the information needed by the court to make a custody determination was available through the experts who had been involved in the case, including the Special Master.

After hearing counsel, the court ordered the parties to mediation to enable the Family Court Services mediator the opportunity to make a recommendation as to the need for a custody evaluation. The trial judge noted “two competing concerns.” First, the court did not want to reject the idea of an evaluation out-of-hand if the parties anticipated an evaluation as part of the custody review process. On the other hand, the court was aware that such evaluations “are not very good for kids, and they are not very good for the parents.” Where the parties are in continual conflict, the court’s experience was that their behavior “gets enabled by that child custody evaluation.” For these reasons, the court expressed the view that “I don’t like child custody evaluations. Occasionally, I order them on my own motion. I’m not saying that they are never the right thing to do; sometimes they are, but I do want the parties to go back to Family Court Services one time just to hear from somebody who hasn’t been involved in this case, and then I’ll know what to do.”

When the parties returned to court on June 16, 2003, after their visit with Family Court Services, the mediator’s report omitted making a recommendation as to the need for a custody evaluation, in response to which the court observed: “[I]n part I think she feels that the parties has [sic] substantial resources available to them already.” Nevertheless, Father’s request to have the court order a new child custody evaluation was discussed at length.

Mother’s attorney objected to another child custody evaluation, not only on financial grounds, but also because it was unnecessary and contrary to the procedures for evaluating child custody and visitation issues to which the parties had already agreed after incurring great expense. In reference to the various appointments already made, Mother’s counsel stated: “[¶] When we put into place the procedures for this case, all of the stipulations appointing the therapists identify that they can’t testify. We didn’t want to impede their ability to work. At the same time, we knew that there would be this day when some information needed to come forward. That’s what Barbara Rhine’s [Special Master] job is.” Counsel also pointed out that another evaluation for Nicco would “just add to the divisiveness, will just add to the chaos that occurred three years agoing [sic], and we want to try to avoid it.” In conclusion, Mother’s counsel asked the court to hear from the Special Master first before ordering an additional evaluation.

Father’s counsel objected to any recommendation by the Special Master as to whether there should be a further child custody evaluation, arguing that the stipulation of the parties did not empower the Special Master to consider the question of a further evaluation, or to advise the court about such a matter. Instead, counsel suggested that the court consider some other means by which the court could confer with the co-parenting therapist to obtain the information. One suggestion advanced was that the court meet off the record in chambers with the co-parenting therapist. The court rejected this idea unless the parties agreed to it in a written stipulation because “I don’t think it’s appropriate for a judicial officer to appear in any way to be encouraging the parties to be giving up their right of confrontation.”

Father’s counsel also disputed that there was a lack of financial ability to undertake a child custody evaluation, noting that Mother had assets of $2 million to draw against. He also contended that it was Mother who was fomenting “divisiveness” by resisting Father’s effort to increase his custody time from the current 39 percent to the 50 percent that he desired.

In response to Father’s argument that an evaluation was a “fairly limited thing” and a “fairly simple issue,” the court retorted: “I’m not saying that it might not happen, but I think the parties need to understand evaluations are a big deal. . . . I have a couple of parties here who are very, very contentious. I have a substantial amount of concern in any divorce like this that the conflict is being transferred to the child. Custody evaluations enable and encourage parents really to dig their heels in and make allegations about the other parent. They’re [a] catalyst for conflict . . . . So all of the things that we talk about in terms of frequent and continuing contact with the other parent, avoiding conflict for the sake of the child, all of that has a tendency to kind of go out of the window during the custody evaluation . . . . I review every request like this as a fairly big deal.”

Later in the hearing, the court asked counsel about the possibility of having the current therapists make reports directly to the court concerning whether Father should have expanded custody. Both counsel answered in the affirmative.

The conference ended without clear resolution of the issues raised. The court continued the matter until August to give the parties and the court additional time to consider how to address Father’s motion for expanded custody. Among other things, the court asked counsel to meet and confer on the identity of a proposed custody evaluator. Also, Father had issued a subpoena for the files of the Special Master who preliminarily objected to their production. The continuance afforded the Special Master time to file formal objections to the subpoena, while allowing the court more time to consider how to obtain relevant information from Nicco’s therapist. Father’s counsel also indicated that he was not waiving any right to cross-examine the therapist. The court responded “I think it’s unlikely that I would read something that [the therapist] said and I would say there would never be another custody evaluation. I think I would still be addressing scheduling . . . . If after reading the content of the letter you asked for a hearing, you’ll get one.”

A declaration was filed by the Special Master on August 7, 2003, objecting to Father’s subpoena for her file. In the course of explaining her work in the case and the reasons for maintaining the confidentiality of her file, the Special Master expressed the “professional judgment that a new custody evaluation would not be in Nicco’s best interests at this time. A three-person team of child-custody experts is in place for Nicco’s benefit: Nicco’s therapist; the parents’ co-parenting counselor; and a special master. Together this team offers a mechanism for adjustment of the schedule as Nicco matures and his needs change.”

The Special Master concluded by requesting, pursuant to paragraph 10 of the April 2001 Order, that she communicate with the court on an ex parte basis to explain more fully her reasons for rejecting Father’s request for more custody time, for opposing another child custody evaluation, and for her belief that the existing Custody Stipulation can meet Father’s expectations “with a shift of emphasis away from what he wants and toward what Nicco needs.”

Father responded by again requesting an order appointing “an independent, experienced and unbiased evaluator.” Among other things, Father accused the Special Master of “becom[ing] a protagonist in the litigation.” He also disputed that the Special Master was authorized by the April 2001 Order to “conduct or supervise” an evaluation, he “seriously” opposed the Special Master’s request to meet with the judge ex parte, and he requested that she resign inasmuch as he had lost confidence in her abilities.

At the hearing on August 19, 2003, to consider these matters, Father’s counsel again argued entitlement to subpoena the Special Master’s file. He began by acknowledging that the April 2001 Order was not a “traditional order.” Counsel pointed out that the April 2001 Order indicated that the Special Master was being appointed, at least in part, pursuant to Evidence Code section 730, and thus the order “has a special rulings and special reporting requirement and special evidentiary requirements on her part. . . . [W]e feel we have the right to use that portion of her function, which is a reporting function, and as an expert function, even though she also is labeled and has a . . . quasi-judicial function as a special master.”

The court denied Father access to the file. In doing so, the court stated, “[a]nd I considered that position [that the Special Master was an Evidence Code section 730 expert], and I don’t think it accurately describes her function. And I have some real concern about the precedent it would set with the other cases if I were to permit discovery here. And that is, frankly, a big part of the basis for my tentative.”

As to Father’s request for a custody evaluation, the court concluded: “I think this case is a textbook case of what I have said from the bench in this and other cases, and that is I see a custody evaluation in this case having an exacerbating effect on building the level of conflict between the parents, and I am not going to order that one be performed.” The court later reiterated that in denying the request, “I’m not saying that I would never order a custody evaluation.”

The court issued an order on September 9, 2003, inter alia, granting the Special Master’s objections to the subpoena, and denying Father’s request for a child custody evaluation. The matter of a requested trial on Father’s motion to modify custody was taken under submission.

A follow-up order was filed by the court one month later, on October 2, 2003. In it, the court “now denies” the request for a child custody evaluation.[5] The court concluded that another evaluation would not be in Nicco’s best interests, and echoing the declaration of the Special Master, noted a team was already in place through whom information needed to rule on Father’s request for more custody time could be received.

A hearing on Father’s motion to modify custody was set for February 2004, and Mother listed the Special Master as a potential witness who would be called to testify as to “her role as special master, events that took place, information gleaned from interviews with therapists and other interested parties.” An expert witness list filed one week later by Mother also listed the Special Master as a witness as “an Evidence Code [section] 730 expert who will be requested to render opinions both as an expert and a percipient witness pertaining to the best interests of the minor child, and interactions with the therapy team involved in this case.”

Father filed objections to Mother’s attempt to call the Special Master as a witness. The grounds for his objections were: 1) that the Special Master was not appointed as an expert pursuant to Evidence Code section 730, instead she was appointed under Code of Civil Procedure section 638; 2) that testifying was beyond the powers afforded her under the April 2001 Order; 3) that it would impair her neutrality to be called as a witness, and 4) that Evidence Code sections 703 and 703.5 precluded her, while acting as a temporary judge, from being called as a witness.

The hearing on Father’s motion to modify custody took place over five days: February 2, 3, and 5, and April 27 and 29, 2004. The parties were directed to file post-hearing briefs, and did so. In addition to the parties themselves and the Special Master, the parties called numerous other witnesses including Mother’s partner, John Bailey, and Mother’s friend, Eliza Green. Father called as additional witnesses Virginia DeLaCruz Aguyen, a teacher at Nicco’s school, psychologist Kathryn Jaeger, Father’s spouse Rebecca Enmar, and child psychologist Gerard Aglioni.

Exhibits were submitted by both sides, including correspondence between the parties and their counsel, resumes of experts called by them at trial, certain of Nicco’s school records, and correspondence with the Special Master. The parties also submitted their own proposed statements of decision for consideration by the court.

The court’s four-page “Order After Hearing” was filed on October 13, 2004.[6] The court concluded that Father had failed to satisfy his burden of demonstrating that the change in custody he requested was in Nicco’s best interests. The court acknowledged that the evidence was overwhelming that both parents love Nicco, and both want to be actively involved in raising him. However, the court added that despite the fact that Father would never do anything intentionally to hurt Nicco, Father’s “competitive instincts and the parties’ inability to communicate concerning Nicco sometimes combine to harm Nicco.” The court found that co-parenting was not possible given the poor communications between the parties, and therefore, Nicco needed a “primary home.”

One paragraph of the order was devoted to the testimony of the Special Master:

“Barbara Rhine testified that Nicco is very sensitive to conflicts between his parents; that he does not tolerate change well; and that he could use fewer transitions. The court accepts this testimony. Ms. Rhine also testified that otherwise the current custody arrangement was in Nicco’s best interest. Her testimony was based on the opinion of Nicco’s therapist.”

The court also rejected the opinion testimony from Father’s experts, Drs. Jaeger and Aglioni, including their opinions that Mother was alienating Nicco from Father. Instead, the court concluded that Mother “does a good job of managing an intense, high-conflict co-parenting arrangement.”

Based on these findings, the court concluded that the current custody schedule was in Nicco’s best interests, and that a change would not be in his best interests. The court ordered further that: (1) counsel would be appointed for Nicco with the parties to split the cost of counsel, (2) Dr. Ehrensaft would continue as his therapist, and (3) there was no current need either for a special master or the appointment of a co-parenting counselor. This appeal followed.


Legal Discussion

A. Denial of New Child Custody Evaluation

Father concedes that generally, the decision to appoint, or not to appoint, a child custody evaluator pursuant to Family Code section 3111 is tested by the abuse of discretion standard of review. (See Harris v. Harris (1960) 186 Cal.App.2d 788.) However, Father contends the trial court here failed to exercise any discretion because of a “personal and apparently long-standing policy disfavoring custody evaluations.” We disagree.

In his order denying Father’s request, the trial judge cited a legal commentator decrying the “many potential negative consequences arising from custody evaluations, which include the exacerbation of the conflict between the parents and a decrease in parental feelings of responsibility for the child’s best interests. See, e.g., Principles of the Law of Family Dissolution: Analysis & Recommendations § 2.13 comment b (ALI 2000).”

Indeed, legal literature is filled with articles discussing the dangers confronting courts faced with custody battles in high-conflict divorces. “[L]itigation itself is often demeaning, as litigants attempt to exaggerate each other’s flaws and reopen old wounds in order to win points for themselves. Further, the process is disempowering as it forces the parties to place their fates in the hands of their attorneys and the court. In the process, the family’s resources are expended and depleted with no beneficial outcomes for the child or the parents.” (Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of Children and the Adversary System, 52 U. Miami L.Rev. 79 (1997); see also, High-Conflict Custody Cases: Reforming the System for Children, Conference Report and Action Plan Conference sponsored by American Bar Association Family Law Section and The Johnson Foundation, The Wingspread Report and Action Plan, LEXSEE 39 Fam. Ct. Rev. 146 (Sage Publications, Inc. 2001).) Father does not dispute that there exists strong experiential evidence justifying the court’s reluctance to grant his request. However, he claims that the trial court’s resistance to custody evaluations was so obdurate that the court failed to exercise discretion in considering his request. We disagree.

While there were certainly reservations voiced about how harmful custody evaluations can be for the child who is the subject of the evaluation, the court repeatedly stated during several hearings that it had an open mind and would consider ordering one in this case. For example, at the May 5, 2003 hearing, the court specifically acknowledged that a decision to order a child custody evaluation involved “competing concerns,” and that Father’s request was not being rejected out-of-hand. The court even referred the matter to Family Court Services in the hope that a mediator with that office would offer advice on the question. Again, at the June 16, 2003 hearing, the court disagreed with Father’s counsel and assured the parties that the court considered a request for an evaluation in a high-conflict divorce to be “a fairly big deal.” At the conclusion of this hearing, the court asked the parties to confer on the identity of an acceptable custody evaluator, in the event that the court ruled favorably on Father’s request.

In the final analysis, the court denied the request for good cause. The potential harm caused to Nicco by having to participate in a child custody evaluation was clearly exacerbated by the undisputed fact that this custody battle was part of a high-conflict divorce. So contentious was the dispute over custody in this case, and so vulnerable was Nicco to this fog of war, that the parties believed it necessary to stipulate that Nicco have continuous therapy soon after his fifth birthday. Given these considerations, the court did not abuse its discretion in concluding the risk of further emotional damage to Nicco was high.

Furthermore, the court was plainly justified in relying on the fact that the parties had already agreed to an elaborate apparatus involving the Special Master, and mental health and divorce professionals to evaluate and discuss custody issues and to convey those views to the Special Master and to the court. There simply was no compelling need to accede to Father’s request in light of these other available means and methods.

Therefore, we reject Father’s argument that the trial judge failed to exercise discretion in denying Father’s request for another child custody evaluation; and we further find that court did not abuse its discretion. To the contrary, from our review of the record on this issue, it is evident that the trial judge sought to achieve an exquisite balance between the needs and desires of the competing parents, while appropriately keeping foremost in mind Nicco’s best interests.

B. In Denying Father’s Motion for Modified Custody, the Trial Court

Did Not Err by Considering the Special Master’s Testimony

As noted earlier, prior to the commencement of the multi-day hearing on Father’s motion to modify the current custody arrangement, an evidentiary motion was made to exclude Mother from calling the Special Master as a witness. At this time, Father acknowledged the apparent inconsistency between his current motion and his initial position that the Special Master’s file was subject to subpoena because she was appointed as an expert under Evidence Code section 730. In explaining away the inconsistency, Father noted that his original position had been rejected by the court when it sustained the Special Master’s objections to the subpoena. Therefore, since Code of Civil Procedure section 1280 was inapplicable, the only remaining basis for the appointment was under the reference statute, Code of Civil Procedure section 638. Father argued that because the Special Master held a quasi-judicial position relative to the custody dispute, it was now imperative that the court maintain her neutrality and not allow her to testify. Alternatively, Father argued that the Special Master was precluded from giving testimony under Evidence Code sections 703 and 703.5.

Mother’s position was that the parties originally agreed as part of the April 3, 2001 Order that the Special Master was to act as a conduit between the court and the experts culminating in the authority “to relate information as is in the best interest of Nico [sic] as needed.” She relied on a portion of the transcript from the hearing on January 26, 2001, when the stipulation appointing the Special Master, as well as the therapists, was discussed on the record. At that time, Father’s counsel apparently acknowledged that while it was envisioned by the parties that the experts would not themselves give either deposition or trial testimony in the case, their comments and opinions could be “quoted by the special master.”

The court began comment by noting that the Special Master was “in a very unusual situation vis-à-vis the Evidence Code.” The court also confirmed that it had already determined that she was not “a 730 expert.” The court then concluded from the orders made on January 8, 2001, and April 3, 2001, that the parties intended to give the Special Master “a fairly wide mandate.” The judge found that the intent of the orders, in combination, was to exclude the therapists from being compelled to testify, while preserving the right of either party to call the Special Master as a witness. The court pointed out that this view was supported by the parties’ agreement, explicitly empowering the Special Master to have contact with the therapists. Consequently, adopting Father’s current view would deprive the court of the ability to obtain information from the therapists, as reported to the Special Master, as to what may be in Nicco’s best interest.

As to Father’s concern about this procedure restricting his right to cross-examination, the court concluded that this right was not being compromised, noting that Father could cross-examine the Special Master and comment on the absence of any other parties whose statements she quotes.

We agree with the trial court that the unusual format by which the parties agreed to channel information to the court in connection with potential custody issues was contemplated, agreed to, and addressed in the two stipulated orders referenced during the February 2, 2004 through April 29, 2004 hearing. The parties agreed to a mechanism which allowed the Special Master access to Nicco’s care providers and any other therapists who might be retained in the case. Both parties wanted to shield these individuals from embroilment in court proceedings that might interfere with their work in determining what custody arrangements were in Nicco’s best interests. However, both parties recognized the need to provide a means by which these individuals’ information and opinions could reach the court, which would have to rule on any disputed custody issues, and which would obviously benefit from opinion evidence as to Nicco’s best interests. To accommodate this need, the parties agreed that the Special Master would provide this information to the court and would testify, if needed, as to the third-party opinions. Having so agreed by stipulation, any objection to this procedure or to the testimony of the Special Master at trial, was waived by the parties.[7] (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1640; Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 407-408 [A party may waive substantive rights, including the right to have an issue determined in a jury or court trial]; In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501-502; County of Alameda v. Risby (1994) 28 Cal.App.4th 1425; In re Marriage of Hopkins (1977) 74 Cal.App.3d 591.)

C. Any Error in Admitting the Testimony of the Special Master Was Harmless

Even assuming the trial court erred in admitting the testimony of the Special Master at trial, the error was harmless and not prejudicial. A finding cannot be set aside on the basis of erroneous admission of evidence if the error did not result in a miscarriage of justice. (Evid. Code, § 353; People v. Watson (1956) 46 Cal.2d 818, 836.) Such error is not prejudicial if the evidence “was merely cumulative or corroborative of other evidence properly in the record,” or if the evidence “was not necessary, the judgment being supported by other evidence.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 422 at p. 470.) This is precisely what happened below.

The court’s Statement of Decision contains one paragraph dedicated to the testimony of the Special Master: “Barbara Rhine testified that Nicco is very sensitive to conflicts between his parents; that he does not tolerate change well; and that he could use fewer transitions. The court accepts this testimony. Ms. Rhine also testified that otherwise the current custody arrangement was in Nicco’s best interest. Her testimony was based on the opinion of Nicco’s therapist.” However, the court’s determination that Nicco’s best interest warranted preserving the current custody arrangement was based on much more that this single paragraph.

We note first that, as the party seeking an increase in custody, the burden was on Father to present evidence justifying the change as being in Nicco’s best interest. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; Lester v. Lennane (2001) 84 Cal.App.4th 536, 592.) Indeed, “the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements. [Citations.]” (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 32-33.)

In support of his motion, Father relied on the expert testimony of two psychologists, as well as his own testimony and that of several other lay witnesses. The parties also produced numerous exhibits including school records and correspondence generated during the course of the pending proceedings bearing on the issue. All of this evidence led the court to conclude that changing the present custody arrangement was not in Nicco’s best interests. Of special note were three vignettes involving Father’s interactions with Nicco, which were described in detail in the Statement of Decision.

The first involved an instance where Father had erroneously heard that Mother’s mother (Nicco’s maternal grandmother) had died. Without confirming the information with Mother, Father told Nicco that his grandmother was dead, when she was actually very much alive. Understandably, the trial court referred to this communication as “false and psychologically injurious to Nicco.”

The second incident involved the baseball team Father was coaching, and Father’s disagreement with Mother as to whether Nicco should play on the team. Father told Nicco that his Mother did not want him on the team in the hope that this would allow Father to “win” the dispute. The court noted that this type of child manipulation violated “a fundamental precept of child development” requiring that children of a divorce be isolated from parental disagreements, lest the child feel responsible for the conflict. The court also concluded that Father knew of this precept, but “willfully ignored it.”

The last incident concerned a minor injury Nicco received near his eye as a result of innocent roughhousing with Mother’s partner, John Bailey. The small mark was evident on Nicco’s school picture, and Father remarked that it made his picture look ugly. The court concluded that the incident “revealed more about [Father’s] feelings for the [Mother’s] household than it did to protect any legitimate interest of Nicco’s.”

Obviously, the testimony of the Special Master was only a part of the body of evidence relied on by the trial court in reaching its conclusion that a change in the existing custody arrangement was not in Nicco’s best interest.[8] In addition to the introduction of evidentiary exhibits, a combined total of ten witnesses were called, including the Special Master, over four days.[9] From the record as a whole, there remains little doubt that the court would have reached the same result without the testimony of the Special Master. Therefore, even if it was error to admit that testimony, any such error was harmless.



The trial court’s decision denying Father’s motion to modify custody is affirmed.

Costs on appeal are awarded to Mother.


Ruvolo, P. J.

We concur:


Reardon, J.


Sepulveda, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Apartment Manager Lawyers.

[1] A minute order filed on January 8, 2001 (the order appears to be erroneously dated “January 8, 2000”) abandoned the plan to have the parties draft a comprehensive order incorporating all extant orders because “the parties could not agree on what this comprehensive order should include.” Instead, an “Order After Hearing” was signed and filed by the court on January 8, 2001.

[2] The transcript of the hearing on January 26, 2001, at which this stipulation was reached has not been provided as part of the record on appeal.

[3] Evidence Code section 730 provides in relevant part: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.”

Code of Civil Procedure section 1280 et seq. provides for the enforcement of contractual private arbitration. It is unclear from the context of the April 2001 Order, what the parties intended by the statutory reference to this Title of the Code of Civil Procedure.

Code of Civil Procedure section 638 provides in relevant part: “A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties: [¶] (a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. [¶] (b) To ascertain a fact necessary to enable the court to determine an action or proceeding.”

[4] For consistency’s sake only we will refer to Ms. Rhine throughout this opinion hereafter as Special Master.

[5] Contrary to the court’s introductory statement in this October order, the court had not taken the matter of Father’s request for a child custody evaluation under submission in its September order but actually had denied the request.

[6] The court issued a subsequent order noting its intention that the Order After Hearing serve as its Statement of Decision for purposes of Rule 232(d), Cal. Rules of Court.

[7] Father argues that he did not waive the objections because he vigorously made them before the Special Master was allowed to testify. However, the waiver resulted from the earlier stipulations and orders to which Father agreed. Once made, a stipulation is conclusive on the parties unless permission is granted to withdraw the stipulation. (Spindell v. State Bar (1975) 13 Cal.3d 253.) Father did not request leave to withdraw his earlier stipulations. He simply disputed their nature and scope.

[8] Father does not contend that the trial court’s findings are unsupported by substantial evidence. Accordingly, we need not recount all of the evidence adduced at trial, and confine ourselves to the facts contained in the Statement of Decision.

[9] The testimony of the Special Master is contained within 47 pages of a trial transcript totaling 397 pages.

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