Khanolkar v. Orr
Filed 6/25/12 Khanolkar v. Orr CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
APARNA KHANOLKAR,
Respondent,
v.
JEFFREY ORR,
Appellant.
2d Civil No.
B235425
(Super. Ct. No.
1301915)
(Santa
Barbara County)
Jeffrey Orr appeals
orders of the family law court
denying his motion to modify child custody
and visitation, and declaring him to be a vexatious litigant. (Fam. Code, §§ 3022, 3088; Code Civ.
Proc., § 391 et seq.)
FACTUAL AND PROCEDURAL HISTORY
Orr
and Aparna Khanolkar separated in March 2004 after a nearly seven-year
marriage. The couple has two minor
children and initially shared custody.
In February 2007, following an incident of domestic violence, Khanolkar
requested the
County family law court to permit Orr only supervised visitation. In June 2007, the court granted the request;
Khanolkar and the children thereafter moved to Santa
Barbara.
On
May 13, 2009, the Santa
Barbara County family
law court denied Orr's motion to modify custody
and visitation. The court signed and
filed its written order on August 4,
2009.
On
November 25, 2009, Orr
again filed a motion to modify child custody requesting joint custody of the
children. He asserted that he did not
present a risk of harm to the children and offered to participate in
custody and psychological evaluations.
At
a January 13, 2010 hearing, the family law court "strongly suggested"
that Orr undergo psychological testing due in part to his "strange"
behavior and "conduct [that] bordered on stalking." The court determined that there was
insufficient evidence of changed circumstances to modify custody and visitation
orders, but continued the matter for later reconsideration.
Following
the hearing, Orr participated in a psychological evaluation with Doctor Ronald
Iverson. On May 27, 2010, the family law court ordered that
Iverson's written evaluation be filed with the court and sealed as a
confidential document. The court stated
that the report "constitutes sufficient evidence of changed circumstances
to begin the process of modification of custody and visitation orders to a more
normal relationship."
On
August 23, 2010, the family
law court held a nine-hour evidentiary hearing.
The court later filed a tentative decision denying Orr's motion. The family law judge stated that he
"lack[ed] confidence" in Orr's ability to be an effective
parent. The judge referred to Orr's
unusual behavior of "waxing" his son's back and shaving his
daughter's legs. The court concluded
that it is in the best interests of the children that Khanolkar have sole legal
custody and Orr have unsupervised visitation.
It later adopted the tentative decision as a statement of decision and
filed its written order on February 2,
2011.
Approximately
two weeks later, Orr, through his attorney, filed a motion for reconsideration
and requested a binding custody evaluation. On April
6, 2011, the family law court denied the motion. Two days later, Orr filed a motion, in
propria persona, seeking legal custody and shared physical custody of the
children. On April 19, 2011, Orr filed yet another motion in
propria persona seeking reconsideration of the February 2, 2011 order and binding custody
evaluation. Khanolkar responded and
requested that the court determine Orr to be a vexatious litigant pursuant to
Code of Civil Procedure section 391, subdivision (b)(3). The court denied each of Orr's motions and on
June 15, 2011, found him to
be a vexatious litigant. The court also
granted Khanolkar's request that Orr obtain permission of the court prior to filing
further litigation in propria persona.
(Code Civ. Proc., § 391.7, subd. (a) [court may enter "a prefiling
order which prohibits a vexatious litigant from filing any new litigation in
the courts of this state in propria
persona without first obtaining leave of the presiding justice or presiding
judge of the court where the litigation is proposed to be filed"].)
Orr
appeals and challenges the orders denying his motion to modify custody and
declaring him to be a vexatious litigant subject to a prefiling order.
DISCUSSION
I.
Child
custody and visitation orders are modifiable throughout the child's minority
whenever the court finds a modification is "necessary or proper" in
the child's best interests. (Fam. Code,
§ 3022.) The family law court has
continuing jurisdiction and the matter remains pending even after entry of
judgment of the underlying dissolution.
(Ibid.) A party seeking to modify a permanent custody
order may do so only upon a showing of a significant change of circumstances so
affecting the child that modification is essential to the child's welfare. (In re
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088.)
Here
Orr failed to meet his burden of establishing change of circumstances so affecting
the children that modification was essential to their welfare. His motions were repetitive of earlier
motions and failed to set forth new or changed information warranting a change
of custody.
II.
The
family law court found that Orr was a vexatious litigant pursuant to Code of
Civil Procedure section 391. That
section provides: "(b) 'Vexatious
litigant' means a person who does any of the following: [¶] . . . [¶] (3) In any litigation while acting in propria
persona, repeatedly files unmeritorious motions, pleadings, or other papers,
conducts unnecessary discovery, or engages in other tactics that are frivolous
or solely intended to cause unnecessary delay."
the court issued a prefiling order requiring Orr to obtain the permission of
the presiding judge of any court in which he proposes to file any new
litigation. For purposes of section
391.7, "litigation" includes "any petition, application, or motion
other than a discovery motion, in a proceeding under the Family
Code." (§ 391.7, subd.
(d).)
We
review a determination that a party is a vexatious litigant under the abuse of
discretion standard. (
963, 971.) Here Orr filed repeated
motions for modification of child custody and visitation, without evidence of
changed circumstances, within days of the court's denial of previous
motions. The family law court properly
found that Orr was seeking to relitigate the same issues and facts. This was a sufficient basis to declare him a
vexatious litigant pursuant to section 391, subdivision (b)(3).
Moreover,
section 391.7 does not deny Orr due process of law. (Bravo
v. Ismaj (2002) 99 Cal.App.4th 211, 221-222.) "Section 391.7 does not deny the
vexatious litigant access to the courts, but operates solely to preclude the
initiation of meritless lawsuits and their attendant expenditures of time and
costs. [Citation.] Vexatious litigant statues are constitutional
and do not deprive a litigant of due process of law." (Ibid.) Pursuant to section 391.7, the vexatious
litigant has the right to seek the permission of the presiding judge or justice
to file future litigation. (
704.)
To
the extent that Orr claims error in pre-June 15, 2011 rulings and orders, we do
not consider his contentions. Those
rulings and orders have long been final and may not now be contested.
The
orders are affirmed. Khanolkar shall
recover costs.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
James W. Brown, Judge
Superior Court County of Santa Barbara
______________________________
Jeffrey Orr, in pro.
per., for Appellant.
Aparna Khanolkar, in
pro. per., for Respondent.
name="_ftn1" title="">[1] Further statutory
references in II, ante, are to the
Code of Civil Procedure.
