Babakhyi v. Babakhyi
Filed 4/17/13 Babakhyi v. Babakhyi CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
MARCEL BABAKHYI,
Petitioner and Appellant,
v.
IBTISSAM BABAKHYI,
Respondent.
B236721
(Los Angeles
County
Super. Ct.
No. SD023641)
APPEAL
from a judgment of the Superior Court
of
County, Elia Weinbach, Judge.
Affirmed.
Marcel
M. Babakhyi, in pro per, for Appellant.
No
appearance for Respondent.
____________________________________
Appellant
Marcel Babakhyi (Husband) was married to Ibtissam Babkhyi (Wife). They have two children Deen (born 2001) and
Leela (born 2004). Husband filed a
petition for dissolution on February
23, 2006. The court awarded
joint legal custody to both parents but awarded Wife primary custody of the
children. A judgment of dissolution was
entered on August 12, 2009.
Husband
filed a notice of appeal from both
the judgment of dissolution and the court’s October 4, 2011 order denying his application for order
to show cause for modification of custody and visitation.
FACTUAL & PROCEDURAL BACKGROUND
On April
18, 2008, following a trial, the court awarded Wife 60 percent custodial
time. Husband was awarded custody during
the school year on alternating weekends and from Wednesdays after school until
Thursday mornings. Husband was ordered
to pay child support and spousal support.
In April
2009, Wife filed a request to move to Morocco
with the children. After a hearing on April 23, 2009, the court found that
Husband did not meet his burden to show that the move would be detrimental to
the children and it granted Wife’s request.
The order was not entered until August
12, 2009, the same day the judgment of dissolution was entered.
In November
2009, the court ordered that due to Husband’s disability, any arrearages of
child or spousal support be waived and canceled, and prior orders of spousal
and custody support be reduced.
In February
2010, after an ex parte request by
Husband, the superior court entered an order informing the Court of Appeals in Marrakech,
Morocco, of the judgment
of dissolution entered in this case which was still in full force and effect.
On August 13, 2010, Husband filed an ex
parte application for an order of contempt against Wife and an order granting
him full legal and physical custody of the children. After a hearing was held, the court granted
Husband’s request for a child abduction prevention order. Wife did not oppose this request, and the
court issued an order restricting Wife from moving or taking the children from Los
Angeles County but
did not find exigent circumstances warranting any other relief.
In November
2010, Wife and the children had apparently moved back to California
and Husband filed an ex parte motion to change holiday and weekend custody and
a request for sole legal custody. On November
23, 2010, the court denied the ex parte motion and deferred a
ruling on the request for sole custody pending a hearing on the contempt
motion. A January 5, 2011, minute order states that Husband withdrew
his request for Order to Show Cause re Contempt because he could not show proof
of its filing.
On March 1, 2011, Husband filed another
application for an order to show cause for contempt of court against Wife for
her alleged failure to abide by several provisions of the Judgment of
Dissolution.
On April 5, 2011, the matter was called
for hearing and the court granted Wife’s motion to dismiss all
allegations.
On June 9, 2011, Husband applied for an
order to show cause for a modification of child custody order of April 18, 2008.
The parties
were unable to resolve the matter in mediation.
On October 4, 2011, the court held a
hearing on the application for order to show cause for modification of
custody. Husband explained that he
wanted joint physical custody. He
reported that he lives three and a half blocks from Wife. He currently picked the children up from
school on Wednesdays and had the children sleeping at his house on Wednesday
nights. He wanted to keep them Tuesdays
through Thursdays. Wife opposed this
request.
Wife’s
counsel also indicated that there was no need for travel restrictions on the
children. He reported that Wife had
brought the children back from Morocco once she determined she could not find
suitable employment there and kept Husband informed of their whereabouts at all
times. He represented to the court there
was no risk of Wife taking the children.
The court
found no evidence of a substantial change of circumstances and no showing it
would be in the best interest of the children to modify the current parenting
plan.
The court
denied Husband’s request to modify visitation, but modified its prior orders
“to not restrict either parent to travel with minor children outside the County
of Los Angeles and outside the United
States†with certain written notice
requirements. It denied Husband’s
request for shared passports, ordered parties to have equal access to school
correspondence and ordered Husband to provide health and dental insurance
information to Wife.
CONTENTIONS ON APPEAL
Husband
filed his opening brief in pro per. He
raises several contentions on appeal: (1) Wife knowingly disobeyed the April
2008 order in several respects, (2) he was deprived of a fair hearing on Wife’s
request for a move to Morocco, (3) Wife deceived the court into believing she
was not financially solvent and was spending child support money on her own
parents, and (4) it was in the children’s best interests to spend equal time
with him and that the court abused its discretion in not making the same
finding.
Wife did
not file a responsive brief.
DISCUSSION
1.
Appealability of Morocco move order and judgment of dissolution
The order
allowing Wife to move to Morocco
was entered on August 12, 2009,
after a hearing which was held on April
23, 2009.
Husband
spends the majority of his brief discussing the move to Morocco. However, as of November 2010, Wife was back
in California and was not going
to move back to Morocco. Accordingly, it would appear that this issue
is moot.
In any
event, the time for appeal of this order and of the judgment of dissolution has
long passed.
An
interlocutory order which raises a severable collateral issue in a marital
dissolution case is directly appealable from the time of pronouncement. (In re
Marriage of Skelley (1976) 18 Cal.3d 365, 368-369; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 736.) If an order is appealable and no timely
appeal is taken, the issues determined by the order are res judicata. (In re
Marriage of Gruen (2011) 191 Cal.App.4th 624, 637-638.) California Rules of Court, rule 8.104
provides that a notice of appeal must be filed 180 days after entry of
judgment. Therefore, Husband’s notice of
appeal is clearly untimely as to the order entered on August 12, 2009.
2.
Contempt of court
Husband
also resurrects allegations he raised earlier in his motion for contempt of
court, filed in March 2011. All of those
allegations were dismissed on April 5,
2011, and thus were not timely appealed. (Cal. Rules of Court, rule 8.104.)
Denial of modification of custody orders
Modification
of a final judicial custody determination is appropriate “only if the parent
seeking the modification demonstrates ‘a significant change of circumstances’
indicating that a different custody arrangement would be in the child’s best
interest. [Citation.] Not only does this serve to protect the
weighty interest in stable custody arrangements, but it also fosters judicial
economy. [Citation.]†(In re
Marriage of Brown and Yana (2006) 37 Cal.4th 947, 956.) “The changed circumstances test requires a
threshold showing of detriment before a court may modify an existing final
custody order that was previously based upon the child’s best interest.†(Ragghanti
v. Reyes (2004) 123 Cal.App.4th 989, 996.)
An
evidentiary hearing should be held only when necessary. (In re
Marriage of Dunn-Kato & Dunn (2002) 103 Cal.App.4th 345.) “[A]n evidentiary hearing serves no
legitimate purpose or function where the noncustodial parent is unable to make
a prima facie showing of detriment in the first instance, or has failed to
identify a material but contested factual issue that should be resolved through
the taking of oral testimony.†(
On appeal,
custody and visitation orders are reviewed for abuse of discretion. Under this deferential standard, we must
uphold the trial court’s ruling as correct on any legitimate basis. (Raggahnti
v. Reyes, supra, 123 Cal.App.4th at pp. 995-996, quoting
Here, at
the time of the October 2011 hearing, Wife represented there was no planned
move.
Wife inform him of any foreign travel plans.
Nor has he produced any factual evidence necessitating a change in the
parenting and custody plan since the April 2008 order was entered. We find no cause to reverse the trial court’s
rulings.
DISPOSITION
The orders
appealed from are affirmed. Husband
shall bear his own costs on appeal.
WOODS,
J.
We concur:
PERLUSS, P.J. ZELON,
J.
Code section 217 now provides that, absent a stipulation or a finding of good cause,
the court shall receive relevant, competent evidence.
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[2] At
oral argument, Husband indicated Wife had recently informed him of new travel
plans, about which he expressed concern.
Because this relates to events after the decision under review, this
Court advised Husband that his concerns should be raised with the trial court.
