Marriage of Bettanini
Filed
4/10/13 In re Marriage of Bettanini CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re the Marriage of SHANNON
L. BETTANINI and ANTONIO J. BETTANINI.
SHANNON L. BETTANINI,
Appellant,
v.
ANTONIO J. BETTANINI,
Respondent.
F064508
(Super.
Ct. No. FL5357)
APPEAL from
a judgment of the Superior Court of
County. Kim M. Knowles, Temporary
Judge.
Shannon L.
Bettanini, in pro. per., for Appellant.
No
appearance by Respondent.
-ooOoo-
In this
family law dispute, Shannon Bettanini (Shannon)
custody order that granted Shannon and her former husband, Antonio Bettanini
(Antonio), joint legal and physical custody of their daughter, A.B. In seeking a modification, Shannon argued
based on alleged safety concerns that the custody arrangement should be
returned to what it was under the earlier custody order in which she had sole
brief periods of visitation. The trial
court was not persuaded and denied Shannon’s motion. This appeal followed.
the trial court abused its discretion, we affirm the judgment below.
FACTS AND PROCEDURAL HISTORY
On April
12, 2005, after nearly ten years of marriage to Antonio, Shannon filed a
petition for dissolution of the marriage.
The parties’ only child was their daughter, A.B., who was then two years
of age. On October 12, 2005, following a
hearing at which some evidence was presented, the trial court made several
initial determinations (the 2005 custody order), including the following: “Mom has always been the primary caretaker of
[A.B.] The Court finds that [A.B.’s]
best interests would be served by awarding the parties temporary joint legal custody and by awarding Mom
Friday at 5:00 p.m. to Saturday at 5:00 p.m. and telephone visits
with her at 5:30 p.m. on Sunday, Tuesday and Thursday of each week. Dad’s mother, Tamara Bettanini, shall be
present in the home when [A.B.] is with Dad between the hours of 9:00 p.m. and
6:00 a.m.[
weekend and the Christmas Eve/Christmas Day holiday evenly.†(Italics added.)
Afterwards,
the parties went through an extended period of time in which they were
reconciled and were working on their marriage while maintaining separate
residences. By mutual agreement, the
“dormant†unless or until either party sought to reactivate them. In February 2010, Shannon decided to abandon
the reconciliation efforts and proceed with the divorce. According to Antonio, during the
reconciliation period, “[Shannon] and I were getting along and [A.B.] was
coming by to see me regularly.†However,
when the reconciliation ended, the more frequent visits also ended.
On June 23,
2010, Antonio filed and served an order to show cause (OSC) seeking to modify
the 2005 custody order regarding child custody and visitation. He requested that the trial court grant joint
legal and physical custody of A.B. and a “50/50 timeshare†arrangement. In his supporting declaration, Antonio
asserted that A.B., who was then 8 years old, was “crying out†for more time
with him, which was what Antonio wanted as well and he argued that such a
change would be in A.B.’s best interest.
He acknowledged that Shannon had permitted him somewhat more visitation
time with A.B. than would have been afforded under the 2005 custody order, but
such additional time with his daughter was always subject to Shannon’s
approval, which Antonio believed was often unreasonably withheld. He argued the current arrangement under the
2005 custody order has left him with “little more than a babysitter’s
influence,†and he asserted it was important for A.B. to have more time with
him, as her father, and for A.B. to receive the fatherly love and positive
influence he can provide to her.
name="_ftnref4" title="">[4] He further argued that “if the time shared at
each home were equalized it would give [A.B.] more time to adjust to [each]
change.â€
Shannon
filed a responsive declaration opposing the relief sought by Antonio. She stated that the “current temporary orderâ€
should be continued, but should be modified to allow Antonio more visitation
time with A.B, “consistent with the parties’ actual practice.†She added that “[t]emporary custody and
visitation orders have been in place since October 2005 … and under those
orders, [Antonio] and I have been able to manage the parenting of [A.B.], for
the most part, reasonably well.†Her
declaration expressed some concerns about issues such as making sure A.B. had a
regular bedtime, keeping intact the structure that Shannon’s home provided, and
a concern that too much switching back and forth between the two homes would
not be good for A.B.
On November
24, 2010, the trial of Antonio’s OSC regarding child custody and visitation was
held. Both Antonio and Shannon testified
and exhibits were introduced into evidence.
Each party was represented by an attorney, and opening and closing
arguments were presented. The minute
order of the trial/hearing reflected the trial court’s decision that Shannon
and Antonio “shall have joint legal and joint physical custody of the minor
child, [A.B.],†and a new visitation schedule was set forth which provided,
among other things, that Antonio would have visitation on the first, third, fourth
and fifth weekends during the school year. Antonio’s attorney was directed to
prepare a formal order.
On December
29, 2010, the trial court’s “order after
trial†was filed and served (the 2010 custody order). With a few minor refinements, the 2010 custody
order memorialized the decision announced by the trial court at the November
24, 2010, hearing. The 2010 custody
order determined that Shannon and Antonio “shall maintain joint legal and
physical custody of their one minor child, [A.B.]†The 2010 custody order also specified that
“visitation for [Antonio] during the school year shall be on the first, third,
fourth, and fifth weekends of the month,†that during summer vacation the
parents would share time with A.B. equally as set forth in the order, and it
stated how the parents were to handle holidays, spring break and other
matters. Additionally, the 2010 custody
order stated “this Order … shall be attached to the judgment of dissolution.â€
On March 2,
2011, the judgment of dissolution was filed in this action. Attached to and incorporated by reference
into that judgment was a copy of the 2010 custody order regarding custody and
visitation issues. Notice of entry of
judgment was also filed and served on March 2, 2011.
Shannon did
not file a notice of appeal (timely or otherwise) from the 2010 custody order
or from the March 2, 2011, judgment that was attached and incorporated into
said 2010 custody order.
On April
22, 2011, Shannon filed a motion labeled (in part) a “motion to reconsider child custody and visitation,†requesting
the trial court to reconsider the custody and visitation determinations set
forth in the 2010 custody order. In the
alternative, Shannon also filed an OSC seeking a modification of the 2010
custody order. Shannon’s declaration in
support of the requested relief alleged that there were safety issues that
warranted reconsideration and/or modification of the custody and visitation
arrangement. Shannon contended that A.B.
was not entirely safe with Antonio because of his practice of involving her in
allegedly dangerous activities, such as entering her in a soap box derby (where
she cut in front of another driver), taking her target shooting, allowing her
to ride a small, motorized scooter (that she fell off of once), allowing her to
play with a neighbor’s dog (her hand was nipped while A.B. tugged at the dog’s
rawhide chew toy), taking her to Antonio’s workplace where there was a machine
shop in the back, etcetera. Shannon
further argued that the 2010 custody order resulted in changes to a stable
custody situation without sufficient evidence to justify such a change. In her points and authorities filed in
support of her request for reconsideration and/or modification, Shannon claimed
that the trial court should have treated the 2005 custody order as though it
were the permanent order, which would have required a strong showing to justify
any changes. For these reasons, Shannon
asked the trial court to reverse its previous decision (the 2010 custody order)
and restore the original (2005) custody arrangement.
On May 25,
2011, Antonio filed a declaration in opposition to Shannon’s motion for
modification of custody and visitation. In his opposition, Antonio credibly explained
his version of what happened in each of the allegedly unsafe incidents, and attempted to demonstrate by such evidence
that A.B. was completely safe and well-supervised by him when she was under his
care.
On August
18, 2011, a trial was held on Shannon’s motion for reconsideration and/or
modification of the 2010 custody order.
At the trial, the trial court informed Shannon that the time for
bringing a motion for reconsideration “has long passed,†and therefore the
court would “look at her motion as [one for] modification of child custody and visitation.â€
number of witnesses testified and exhibits were presented as evidence. After closing arguments, Shannon requested a
statement of decision and the trial court took the matter under submission.
On November
7, 2011, the trial court issued its tentative decision. As to Shannon’s motion for
order, the trial court denied that motion as being untimely under Code of Civil
Procedure section 1008. As to Shannon’s
motion (or OSC) for modification of child custody, the trial court began by
noting that the 2010 custody order was a “permanent order,†and as such may be
modified only upon a showing of a substantial change of circumstances affecting
the child’s best interests. The trial
court reviewed all the evidence of the allegedly unsafe incidents and found
that Antonio “[was] not negligent in his supervision of [A.B.] and that [A.B.
was] not placed in any substantial risk of danger in his care.†The trial court held that Shannon had failed
to meet her burden of showing a substantial change of circumstances to justify
modification of the permanent custody order.
Accordingly, the 2010 custody order that stated the parents would have
“joint legal and joint physical custody of their daughter†would remain in
effect. Further, the trial court found
“no reason to reduce or limit [Antonio’s] visitation,†and held the visitation
schedule set forth in the 2010 custody order would remain the same, with a few
minor refinements.
title="">[6]
Shannon
filed objections to the trial court’s tentative decision. On January 12, 2012, the trial court
considered Shannon’s objections, rejected them, and ordered that the tentative
decision filed November 7, 2011, constituted the trial court’s final statement
of decision.
On February
8, 2012, Shannon filed her notice of
appeal, stating that her appeal was from the trial court’s order of January
12, 2012.
I.
Forfeited
Issues
As a preliminary matter, we note that much of Shannon’s
appeal challenges the 2010 custody order,
including Shannon’s contentions that (i) the trial court applied the wrong
standard in deciding the custody issues at that time because allegedly the
previous custody order (i.e., the 2005 custody order) was the permanent order,
not a temporary order
name="_ftnref7" title="">[7] and (ii) the attorneys for Shannon and
Antonio had a pretrial discussion of issues in chambers in Shannon’s absence,
which Shannon claims made the subsequent 2010 custody order procedurally unfair
to her. The record does not support
Shannon’s characterizations of the proceedings below,
to attack the 2010 custody order were forfeited by her and are not reviewable
by us because she did not file a timely notice of appeal from the 2010 custody
order. The trial court’s 2010 custody
order, entered after an evidentiary hearing, constituted a final judgment or
order—that is, it was a final, permanent custody order. As such, it was an appealable order. (Enrique
M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378;
When an
appealable order or judgment is entered, the aggrieved party has 60 days
from notice of entry of said order or judgment in which to file an appeal. (Cal. Rules of Court, rule 8.104(a)(1)(A).)
The time is jurisdictional; once the deadline expires, the appellate
court has no power to entertain an appeal as to that judgment or order. (Van
Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.
(1997) 15 Cal.4th 51, 56.) Since Shannon
failed to timely appeal from the 2010 custody order, her right to challenge
that order was forfeited and she cannot be heard to complain now in connection
with her present appeal from another order.
(In re Marriage of Padilla
(1995) 38 Cal.App.4th 1212, 1215-1216; Code Civ. Proc., § 906.)
A part of Shannon’s appeal also
criticizes the fact that the trial court denied her motion for reconsideration
of the 2010 custody order. However, as
the trial court correctly explained, a motion for reconsideration must be filed
within 10 days of service of the subject order. (Code Civ. Proc., § 1008, subd.
(a).) The 2010 custody order was served
on December 29, 2010, while Shannon’s motion for reconsideration was not filed
until April 22, 2011. As with her
failure to timely appeal from the 2010 custody order, Shannon likewise
forfeited her right to bring a motion for reconsideration by failing to file
such a motion within the applicable time limitations.
Standard of Review
According to her notice of appeal,
Shannon’s appeal is taken from the trial court’s January 12, 2012 order,
which was the order confirming the tentative decision as the trial court’s
final statement of decision—that decision being to deny Shannon’s motion to
modify the 2010 custody order. In
essence, then, we are called on to review the trial court’s order denying
Shannon’s request to modify a permanent custody order.
The trial
court has wide discretion to choose a parenting plan that is in the best
interests of the child. (
249, 255.) Once there has been a final
or permanent custody determination, the parent seeking to alter the order for
legal and physical custody can do so only on a showing that there has been a
significant “‘change of circumstances’†indicating that a different custody
arrangement would be in the child’s best interest. (In re
Marriage of Brown & Yana, supra,
37 Cal.4th at p. 956; In re Marriage
of Burgess (1996) 13 Cal.4th 25, 37.)
However, if the requested modification would only alter the details of
the parenting schedule or visitation arrangements, and would leave the existing
custody order otherwise the same, the trial court applies the best interest of
the child standard. (
Cal.App.4th 1068, 1077-1080.)
“The
standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test. [Citation.]
The precise measure is whether the trial court could have reasonably
concluded that the order in question advanced the ‘best interest’ of the child. We are required to uphold the ruling if it is
correct on any basis, regardless of whether such basis was actually
invoked. [Citation.]†(In re
Marriage of Burgess,
have made the same order or whether the trial court could have reasonably made
some other order, but ‘whether the trial court could reasonably have concluded
that the order in question advanced the “best interest†of the child.’ [Citation.]â€
(Lester v. Lennane (2000) 84
Cal.App.4th 536, 595.)
No Abuse of
Discretion Shown
In
attempting to show abuse of discretion, Shannon argues (as she did in the trial
court) that A.B. was not safe in Antonio’s care based on certain activities
that he allowed A.B. to participate in.
However, as summarized in the trial court’s statement of decision, there
was substantial evidence presented by Antonio to refute Shannon’s
characterization of each of those events, including Antonio’s own detailed
explanations and other corroborating testimony.
As the trial court’s statement of decision reflected, Antonio’s version
of what happened was credible, reasonable and supported by the evidence. Although it was clear that Shannon and
Antonio have different parenting styles, and Shannon was nervous about A.B.
engaging in activities such as soap box derbies and target shooting, that did
not mean that A.B.’s safety was being compromised when she was in Antonio’s
care. As the trial court properly held,
no significant change of circumstances was shown by Shannon that would warrant
a modification of the 2010 custody order.
On the record before it, the trial court reasonably concluded that the
2010 order continued to be in the best interest of A.B. Accordingly, we hold Shannon has failed to
establish the trial court’s denial of her modification request was an abuse of
discretion. (In re Marriage of Burgess,
supra, 13 Cal.4th at p. 32.)
Miscellaneous
Other Issues
Shannon
complains of several instances in which the trial court excluded evidence she
wanted to introduce during the trial of her motion for modification of the
custody order. The evidence included
such items as photographs of a broken armoire and broken remote control that
Antonio allegedly broke in anger, as well as some video footage of the soap box
derby. We note the trial court gave
reasons for declining to admit the evidence in each instance (e.g., failure to
authenticate, remoteness in time, surprise due to failure to disclose pretrial,
etc.), but Shannon’s appeal has not explained with legal argument and citation
to authority why she believes any of those reasons were erroneous.
It is fundamental to appellate law
that a trial court’s order is presumed to be correct and an appellant must
affirmatively show prejudicial error based on adequate legal argument and
citation to authority. (
(2007) 154 Cal.App.4th 547, 556-557.)
When points are perfunctorily raised on appeal, without adequate
analysis and authority, we pass over them and treat them as abandoned. (Landry
v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) That is the case here. In addition, even assuming hypothetically
that error occurred, Shannon has not shown the exclusion of evidence was
Proc., § 475; Evid. Code, § 354.) “‘The burden is on the
appellant in every case to show that the claimed error is prejudicial; i.e.,
that it has resulted in a miscarriage of justice.’†(In re
Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) That is, an appellant must not only show that
error occurred, but that it likely affected the outcome. (People
v. Watson (1956) 46 Cal.2d 818, 836 [reversal not warranted unless it
appears “reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the errorâ€].) Shannon has failed to show any prejudice
resulted from the exclusion of the referenced evidence. For all these reasons, we reject Shannon’s
appeal on the ground that the trial court excluded evidence.
Additionally, Shannon argues in a conclusory manner that (i) she
was unable to pay her share of fees for the attorney appointed by the trial
court to represent A.B. in connection with the modification hearing and
(ii) the trial court unreasonably relied on what A.B.’s attorney had to
say at the hearing. We summarily reject
the second point as lacking in adequate legal discussion, citation to
authority, citation to the record, explanation of the nature of the purported
error and explanation of why such alleged error was prejudicial. As to the issue of Shannon’s ability to pay
her share of the court-appointed attorney’s fees, Family Code section 3153,
subdivision (b), required the trial court to “determine whether both parties
together are financially unable to pay all or a portion of the cost of counsel
appointed pursuant to this chapter.†The
trial court concluded that both Shannon and Antonio were, at the time of its
order, able to pay their share of the fees, which they were ordered to “share
equally.†Although it is true, as
Shannon points out, that earlier in the family
law litigation she filed and obtained a waiver of certain court filing
fees,
title="">[11] she
has failed to provide and identify (by specific citation) an adequate record to
substantiate that the trial court lacked substantial evidence to support its
decision that she was not financially unable to pay her share of fees for the
court-appointed attorney who represented A.B. in connection with the
modification motion.
Finally, Shannon suggests that because the trial court made so many
erroneous decisions against Shannon’s position, the court must have been biased
against her. Since Shannon has failed to show any error, the entire premise of her argument fails. Moreover,
merely because a judge rules against a party in the course of the proceedings
does not make the judge prejudiced against that party. (See Kreling
v. Superior Court (1944) 25 Cal.2d 305, 310; Haldane v. Haldane (1965) 232 Cal.App.2d 393, 395; Code Civ. Proc.,
§ 170.2, subd. (b).) We reject Shannon’s
claim of judicial prejudice as being completely unsupported in the record.
DISPOSITION
The order of the trial court is
affirmed. Antonio is awarded costs on
appeal.
_____________________
Kane, J.
WE CONCUR:
_____________________
Wiseman, Acting P.J.
_____________________
Peña, J.
name="_ftn1" title="">[1] We
use first names for convenience only; no disrespect is intended.
name="_ftn2" title="">[2] We
note that Shannon filed an appellant’s opening brief, but Antonio did not file
a responsive brief. On September 6,
2012, Shannon filed a motion that we take judicial notice of certain documents
or exhibits and/or that we make evidentiary findings. We deny the request for judicial notice since
Shannon failed to adequately comply with California Rules of Court, rule
8.252(a)(2)(A) through (C). As to the
request for evidentiary findings, our discretion under Code of Civil Procedure section 909 to make findings of fact on appeal
“‘should be exercised sparingly,’†and “‘[a]bsent exceptional circumstances, no
such findings should be made.’†(
405, italics omitted.) No exceptional
circumstances are present in this case to warrant evidentiary findings on
appeal.