Marriage of Matthews

Filed 1/27/10 Marriage of Matthews CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from orders of the Superior Court of Los Angeles County, James D. Endman, Commissioner. Affirmed.

Linda T. Barney, for Appellant.

Trope and Trope, Thomas Paine Dunlap and Anne Kiley, for Respondent.

___________________________

Appellant Natalie V. Matthews appeals from post-judgment orders modifying child custody and denying attorney fees pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). We conclude the trial court did not abuse its discretion in ordering custody of the parties minor children to respondent William O. Matthews and denying appellants motion for attorney fees. We affirm the orders.

FACTUAL AND PROCEDURAL SUMMARY

Appellant and respondent married in 1996. Their two children were born in 1999 and 2003. A stipulated judgment of dissolution of marriage was entered in 2006. The parties were awarded joint physical and legal custody of the children. Appellant was granted primary physical custody, and respondent was granted custody one night mid-week, one evening mid-week, and on alternating weekends.

In 2007, appellant filed an application to modify the visitation order, arguing respondents relocation to Beverly Hills from Calabasas was burdensome to her and the children in light of the custody arrangement. Appellant also sought to restrain respondent from approving the administration of medical procedures to the children. Respondent filed an application requesting primary physical and sole legal custody of the children, and sought to restrain appellant from administering medication to the children without his consent. He also requested appointment of a custody evaluator pursuant to Evidence Code section 730.

By stipulated order, Dr. Shawn McCoy was appointed as a custody evaluator in November 2007. The trial court ordered that any unilateral examinations, treatment and/or tests provided by any medical professional shall not be admissible in Court and shall not be submitted by either party to the child custody evaluator. Over the following months both parties filed, and the trial court heard, applications for orders on a variety of matters related to the childrens care, including adjustments to custody during a vacation period and supervision of the children. Respondent filed a motion for attorney fees in September 2008.

At a two-day evidentiary hearing in October 2008, the trial court heard testimony regarding custody and visitation. Records of appellants medical history from six pharmacies were admitted into evidence. Dr. McCoy testified and his 81-page report was admitted into evidence, as was a 28-page psychological evaluation of the parties by Dr. Albert R. Gibbs. Expert witnesses testified about appellants use of prescription medication.

Appellant called Dr. Jeffrey Lulow as an expert witness to critique Dr. McCoys report and testify about learning disorders. Early in his testimony, Dr. Lulow said that he had observed appellant and the children in order to provide an opinion to the trial court about his observations. Respondent objected that Dr. Lulows observation violated the trial courts 2007 order barring medical examinations of the children without both parties consent. The trial court concluded that Dr. Lulows observation of the children violated the 2007 order. The court was concerned that Dr. Lulows observation would taint his expert opinion. Over appellants objection, Dr. Lulows testimony was excluded as an expert witness, but the court said Dr. Lulow could testify about ethical or professional rules that Dr. McCoy may have violated in preparing his report. Dr. Lulow gave no such testimony. The court also told appellant she could file a declaration of what Dr. Lulow would have testified to for the court of appeals. No declaration was filed.

In December 2008, the trial court awarded respondent sole physical custody and granted appellant visitation three weekends a month and one evening weekday visit each week. The trial court awarded appellant and respondent joint legal custody, but ordered that if the parties were unable to agree on any decision regarding the health, education and welfare of the children, respondent would make final decisions. Appellant unsuccessfully sought a new trial, and her motion for attorney fees was denied. Appellant timely appeals from the custody and attorney fee orders.

DISCUSSION

I

Appellant argues the orders modifying custody were not supported by substantial evidence. Custody orders are reviewed for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) All conflicts in the evidence are drawn in favor of the judgment. [Citation.] When supported by substantial evidence, we must defer to the trial courts findings. [Citation.] We may not reweigh the evidence or determine credibility. [Citation.] (Niko v. Foreman (2006)144 Cal.App.4th 344, 364-365.)

[C]ustody modification is appropriate only if the parent seeking modification demonstrates a significant change in circumstances indicating that a different custody arrangement would be in the childs best interest. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) A petitioner seeking to modify custody bears the burden of persuasion to show that a childs custodial best interest has changed. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 43.) The [changed circumstance] rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring a reevaluation of the childs custody. (Burchard v. Garay (1986) 42 Cal.3d 531, 534.) The change of circumstances standard is based on principles of res judicata. (Id. at p. 535.)

In its detailed statement of decision, the trial court found that appellant and respondent were incapable of co-parenting. The trial court was concerned with appellants simultaneous multiple prescriptions from six different physicians, and concluded that she had a substance abuse problem. The findings were based on the report and testimony of Dr. McCoy, and testimony from several other physicians and therapists. Dr. Karl Steinberg, an expert witness specializing in substance abuse and addiction issues, testified that appellants prescription records indicated she had received 83 prescriptions for opiates and morphine-type narcotic painkiller medications in a 27-month period.[1] He also testified that appellant was taking two times the maximum allowable dosage of Ambien, a sleep-inducing medication, and was prescribed antidepressants, drugs intended for treatment of opioid dependence, sedating medications and tranquilizers.[2] According to Dr. Steinberg, appellants testimony during a deposition about her medication was inconsistent with the pharmacy records. He concluded that appellant suffered from a serious, severe chemical dependency condition. The trial courts findings on appellants substance abuse and the parties parenting abilities were consistent with those of Dr. McCoy, the court-appointed custody evaluator.

Respondent apparently had known of appellants prescription abuse for some time. But there is no evidence in the record that at the time of the 2006 stipulated custody order the trial court considered it, the ability of the parties to co-parent, or the relative stability of the parties homes. The evidence presented at the two-day hearing in 2008 was sufficient to support a finding of changed circumstances justifying a modification of the 2006 order. Because there was substantial evidence supporting the trial courts orders, we do not find an abuse of discretion. (Niko v. Foreman, supra, 144 Cal.App.4th at p. 365.)[3]

II

Appellant argues that the trial court abused its discretion by excluding Dr. Lulow as an expert witness. As we have noted, in 2007, the trial court ordered that any unilateral examinations, treatment and/or tests provided by any medical professional shall not be admissible in Court and shall not be submitted by either party to the child custody evaluator. A month before trial, appellant requested that the court order an additional custody evaluation pursuant to Evidence Code section 733. (See Niko v. Foreman, supra, 144 Cal.App.4th at pp. 366-367 [noting that a parent has the right under Evidence Code section 733 to hire an expert to rebut the opinion of a court-appointed expert through evaluation and testing of children, and review and critique of existing reports, testing and recommendations used in an Evidence Code section 730 evaluation].) The court denied this request because a noticed motion designating an expert was required, and none had been presented. The court indicated it would hold a hearing to appoint an expert if appellant filed such a motion. None was filed.

At the beginning of the hearing on the custody motions, appellant told the court that she was prepared to proceed to trial on the basis of the reports of Dr. McCoy and Dr. Gibbs. Dr. Lulow was certified to offer expert testimony about custody evaluations. During foundational questioning at the hearing, when asked about his role in the case, Dr. Lulow said: Well, I was asked to review [the reports of Dr. McCoy and Dr. Gibbs] and to offer observations, opinions as to the adequacy of the report with regard to the methodology, the reasoning, internal consistency that was used in the reports. Subsequently I was asked if I would be willing to observe the mother and children at her home for a brief span of time which I did. Respondents attorney objected that there was no stipulation that Dr. Lulow could observe the children, and said that his observation violated the courts 2007 order barring unilateral examinations.

The trial court agreed that the 2007 order was violated by Dr. Lulows observation of appellant and the children, but gave appellant the opportunity to create a record of what Dr. Lulow would have testified to: Im striking his testimony, but you can file a declaration exactly what he would have testified to for the appellate court. . . .  But I think you overstepped the bounds and as a result tainted this witnesss ability to just reflect on what McCoy did or didnt do. Following a discussion in chambers, respondents counsel stated for the record that the trial court maintained its original ruling disqualifying Dr. Lulow as a witness, but ordered that Dr. Lulow could testify to ethical and professional rules that Dr. McCoy may have violated. Dr. Lulow neither gave further testimony, nor did appellant file a declaration as to what Dr. Lulows testimony would have been but for the courts limiting order.

Absent a showing the court exceeded the bounds of reason we will uphold the courts exercise of discretion in striking Dr. Lulows testimony. (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 229.) Appellant decided not to have her own evaluation conducted pursuant to Evidence Code section 733, but instead attempted to utilize Dr. Lulows observations to offer testimony based upon his observations of the childrens home life. This was a violation of the courts 2007 order. Yet Dr. Lulows testimony was not barred entirely; following the discussion in chambers, he was permitted to testify about professional standards that Dr. McCoy may have violated. To the extent Dr. McCoys methodology was a question of ethical and professional rules, Dr. Lulow was not foreclosed from challenging the report through his testimony. The trial court did not abuse its discretion.

Even if the court abused its discretion, appellant has not made the necessary showing of prejudice. Appellant was given an opportunity to make a record of what Dr. Lulows testimony would have been, but no declaration was filed and we have no record of what appellant asserts she was unable to prove. In light of the record before us, we do not find that a miscarriage of justice has been shown. (Evid. Code, 354.)

III

Appellant argues the trial court abused its discretion in denying her motion for attorney fees pursuant to Family Code section 2030 et seq. During the pendency of a dissolution action, a court may order that one party pay some or all of the other partys legal fees and costs. [Citation.] Californias public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation. [Citation.] (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. (Ibid.)
Under [Family Code] section 2030, subdivision (a): During the pendency of a proceeding for dissolution of a marriage . . . , the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the partys rights, order any party . . . to pay the amount reasonably necessary for attorneys fees and for the cost of maintaining or defending the proceeding. . . . Under [Family Code] section 2032: (a) The court may make an award of attorneys fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [] (b) In determining what is just and reasonable under the relative circumstances, the court shalltake into consideration the need for the award to enable eachparty, to the extent practical, to have sufficient financial resources to present the partys case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in [Family Code] Section 4320 [the factors for determination of permanent spousal support]. . . . Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances. (In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 866-867, italics omitted.)

The trial courts decision in this case reflects its consideration of the relative ability of the parties to pay attorney fees. It reviewed respondents past and future earnings, finding that he earned a base salary of $150,000 a year during the time the trial took place, but, due to economic circumstances in the financial industry did not expect a multi-million dollar bonus similar to those he had received in previous years. The trial court took notice of appellants combined spousal and child support award of $20,000 a month. After calculating that respondent had a monthly base salary of $10,000, and monthly outflow of double that, the trial court concluded that considering respondents salary and a bonus received earlier in the year, income after the payment of support is negligible.

The court found that the $250,000 in attorney fees allegedly accrued by appellant was unreasonable, saying that [i]n most cases similar to this, even if you tried it, would be in the range of $50,000 or so. The trial court later said, Part of the problem throughout this case . . . is nobody can take anybodys word for anything and the result is, is that the attorney fees get way out of proportion because nobody trusts anybody. We find no abuse of discretion here in denying appellants request for attorney fees. (Fam. Code, 2030 et. seq.; In re Marriage of Keech, supra, 75 Cal.App.4th at p. 866.)

DISPOSITION

We affirm the post-judgment orders. Respondent to have his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] In an unpublished decision, this court granted a writ of mandate sought by respondent to compel production of prescription records concerning appellant.

[2] According to Dr. Steinberg, Ambien is a potent hypnotic agent that induces drowsiness and may, if the patient is awake, cause bizarre behavior.

[3] Appellant contends the trial court committed reversible error in failing to explicitly identify a change in circumstance in the statement of decision. This argument fails because the trial court determined how the then-existing custody arrangement was unstable because of circumstances that the record does not show were present when the initial best interest determination was made in 2006.