Marriage of Sakov and Adut

Filed 1/22/09 Marriage of Sakov and Adut CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

These five consolidated appeals have been filed in this court by appellant Ester Adut in a dissolution matter initiated in 2002. Appellant appeals from the trial courts final judgment on custody, and rulings set forth in various minute orders. She also appeals the final judgment on reserved issues, including child and spousal support. She appeals an order denying her oral motions for attorney fees and for a referral to Family Court Services. She appeals orders denying her posttrial motions to modify child and spousal support. Finally, she appeals the order denying her requests for predissolution child and spousal support, as well as compensation for time spent caring for her children when respondent was traveling out of the country. We affirm all the judgments and orders.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY[1]

Respondent Joshua Sakov and appellant were married in July 1989.[2] Their three children were born on the same day in June 1996. A petition for dissolution was filed on July 18, 2002.

On December 23, 2002, appellant filed an amended order to show cause requesting child and spousal support, attorney fees, and other relief. Respondent filed his responsive declaration on January 8, 2003.

On January 15, 2003, the trial court held a hearing on various issues, primarily focusing on custody arrangements for the children. The court declined to order child and spousal support as both parties were then unemployed. The court reserved the issues of child and spousal support to the next scheduled hearing date.

A hearing was held on March 4, 2003; however, support issues were not discussed. The next hearing was scheduled for March 17, 2003, but the parties did not appear and the matter was dropped from the calendar.

On October 22, 2003, appellant filed another order to show cause. A hearing was held on November 25, 2003.

On May 13, 2004, the court filed its order after hearing, requiring respondent to pay appellant child support in the amount of $1,626 per month and spousal support in the amount of $1,359 per month beginning on November 1, 2003. In arriving at this calculation, the court imputed a $3,750 monthly income to appellant. The order also required the parties each to pay one-half of the child care costs. In addition, appellant was ordered to pay one-half of the private school tuition for the parties daughter.

On August 24, 2004, the parties entered into a stipulation suspending child and spousal support pending trial. The stipulation provides that the court would have the authority to set support retroactive to February 19, 2004.

Trial commenced in January 2005.

On July 5, 2005, appellant made oral motions requesting attorney fees and an order referring the issue of child custody to Family Court Services. The trial court denied the request for attorney fees, based on a finding that the oral motion was not procedurally proper. The court denied the referral request because a custody evaluation had already been completed by Dr. Alan Leavens, the court appointed custody evaluator. The court announced that the trial would continue on July 19, 2005, at 2 p.m.

On July 19, 2005, the parties were notified by telephone that the matter was continued to August 3, 2005, at 9 a.m. Appellant failed to appear at the August 3d hearing. The matter proceeded in her absence.

On August 9, 2005, appellant filed a motion requesting that each party pay for its own child care costs.

On October 27, 2005, appellant filed a 17-page objection to the family law commissioner pursuant to Code of Civil Procedure section 170.3, subdivision (c).[3]

On October 28, 2005, the court executed its final judgment on custody, awarding the parties joint legal and physical custody.

On October 31, 2005, the court filed an order striking appellants objection to the commissioner.

On November 1, 2005, the trial courts final judgment on custody was filed. At a hearing held on that same day, the court issued various minute orders.

On November 28, 2005, appellant filed a writ petition in this court challenging the orders striking her two disqualification motions. (A112129.) We denied the petition on November 30, 2005.[4]

The trial concluded on December 5, 2005. The court orally set forth its statement of decision on the reserved issues of spousal and child support.

On December 28, 2005, appellant filed a notice of appeal from unidentified judgments or orders filed on November 1, 2005, and December 13, 2005 (Appeal A112701). We have construed her notice of appeal to include (1) the final judgment on custody, (2) the minute order issued on November 1, 2005, and (3) the order filed on December 13, 2005, documenting the denial of her two July 5, 2005 oral motions.

On May 4, 2006, appellant filed an at-issue memorandum requesting trial on the remaining property issues and demanding a jury trial on child support, and filed a request for a status conference.

On August 8, 2006, the court filed its statement of decision and final judgment on reserved issues. It also filed an order requiring appellant to pay one-third of respondents child care costs.

On August 16, 2006, the court took the issues of support, property issues and date of separation under submission and ordered the parties to submit trial briefs.

On August 30, 2006, appellant filed her notice of intent to move for a new trial.

On September 27, 2006, the court struck the at-issue memorandum filed by appellant on May 4, 2006, on the grounds that a judgment had been entered in the case and because she had filed a motion for new trial.

On October 10, 2006, appellant filed a trial brief.

On October 12, 2006, appellant filed her notice of appeal in appeal A115566.

On October 26, 2006, the court found that it had no jurisdiction to rule on appellants motion for a new trial because jurisdiction on the contested issue was with the Court of Appeal.[5]

DISCUSSION

We begin by setting forth the basic principles of appellate review. First, A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because error is never presumed, it is every appellants duty to demonstrate error in the record the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 628, p. 704.)

Second, error alone does not warrant reversal. It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result. [Citation.]  The burden is on the appellant, not alone to show error, but to show injury from the error.  [Citation.] Injury is not presumed from error, but injury must appear affirmatively upon the courts examination of the entire record. [Citation.] Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal. [Citation.] A miscarriage of justice is not found unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result. [Citation.] (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822823.)

Third, It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a partys position. (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) To that end, California Rules of Court, rule 8.204(a)(1)(C), provides that a brief must Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.

Fourth, every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)

We observe that applying these fundamental principals of appellate review has been made difficult in view of the record before us. The record and citations supplied to us by appellant are convoluted, and the arguments on appeal are frequently unsupported by citations to the record and legal authority. It is not this courts responsibility to wade through this voluminous record in search of support for appellants arguments.

I. Motions for Judicial Disqualification (A112701) (A115566)

Appellant filed multiple unsuccessful objections to the family law commissioner during these proceedings. She now claims that the judgments and orders appealed from are void because the commissioner was disqualified under section 170.3, subdivision (c)(4).[6] This claim is not subject to review on appeal and, in any event, lacks merit.

A ruling regarding the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal . . . . ( 170.3, subd. (d).)  The purpose of this rule is twofold. It seeks to eliminate the waste of time and money which would flow from continuing the proceeding subject to its being voided by an appellate ruling that the disqualification decision was erroneous. It also promotes fundamental fairness by denying the party seeking disqualification a second bite at the apple if he loses on the merits but succeeds on appeal from the disqualification order. [Citation.] (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 971.)

As appellant admits, she filed writ petitions in this court contesting the family law commissioners decision to strike or deny her objections. The petitions were denied. While we are therefore not obliged to address her arguments here, we do so and find them to be without merit.

Appellants claim hinges on the application of section 170.4, subdivision (d), which provides: Except as provided in this section, a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined. (Italics added.) Her argument is based on the supposition that the commissioner was temporarily disqualified as soon as the objection was filed, and that the commissioner thus lacked the authority to sign the final judgment of custody on October 28, 2005, which was the day after she filed her objection.

Four days after appellant filed this objection, the commissioner ordered that it be stricken from the record pursuant to section 170.4, subdivision (b), which provides, in part: [I]f a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken. The commissioner found appellants objection was subject to being stricken because it was both untimely and failed to set forth any legal bases for disqualification.[7] Because section 170.4, subdivision (b), constitutes an exception to the rule provided for in subdivision (d), the commissioner was not divested of her judicial authority. Accordingly, the court was not without jurisdiction when it executed the judgment on custody.

Appellant filed an addendum to her statement of objection on November 1, 2005. She argues that this filing disqualified the commissioner from making the minute orders entered on that same date. However, the commissioner properly struck the addendum on the basis that the underlying section 170.3 motion had already been denied. Again, the filing of the addendum had no legal effect on the commissioners authority to act.

Appellant filed another objection to the commissioner on November 7, 2005. This 22-page objection was stricken on November 23, 2005. The proof of service cited to by appellant indicates that a process server attempted to serve her objection on November 8, 2005, by leaving documents with an unnamed bailiff. Appellant asserts that the commissioner must be deemed disqualified because the court acted after the 10-day deadline set forth in section 170.3, subdivision (c)(4). However, the courts order indicates that the court was not served until November 21, 2005. Appellant fails to acknowledge or explain the discrepancy in the two service dates.

On March 17, 2006, appellant filed another objection to the commissioner. On April 5, 2006, the court struck the motion. In its order, the court stated The copy which was served on me was not filed as required by CCP section 170.3(c)(1). Therefore, said service does not require any action on my part. While appellant claims again that the court failed to respond within the 10-day period, she does not address the ground relied on by the court in its order. The claims of error fail.[8]

II. Alleged Violation of Due Process (A112701) (A115566)

In an apparent attempt to get around the rule that prevents review of her unsuccessful disqualification motions, appellant claims that the commissioners bias against her violated her constitutional right to due process. We are not persuaded.

[N]otwithstanding the exclusive-remedy provision of Code of Civil Procedure section 170.3, a defendant may assert on appeal a claim of denial of the due process right to an impartial judge. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 445, fn. 16.) The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. (Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242.)

Appellant reasserts on appeal many of the grounds raised in the objections that she filed in the trial court. As noted above, appellant previously filed writ petitions contesting the commissioners failure to disqualify herself. The petitions were denied. Because appellants claim is, at heart, nothing more than a challenge to the trial courts striking of her motion to disqualify, she is not entitled to any appellate review beyond that which she received already when she unsuccessfully sought writs of mandate following the trial courts rulings.

In any event, appellants contentions are not supported by the evidence in the record. In claiming that the family law commissioner was biased against her, she asserts, among other things, that the commissioner: (1) prohibited her from filing any motions without prior approval; (2) misleadingly expanded the scope of this prohibition to cover the filing documents other than motions; (3) discounted the need for orthodontic treatment for two of the children; (4) unfairly denied her fee waiver applications; (5) suggested that appellant (who is a licensed attorney) should be disbarred; (6) invited opposing counsel to file a motion for sanctions against her; and (7) advised appellants friend to disassociate from her. She also claims that the court evidenced favoritism towards respondent and violated the canons of judicial conduct.

Appellants claims of bias are not persuasive. For example, the ruling requiring prior approval before she could file new motions was made after she had filed five motions in one month, each calendared for separate dates. The commissioner noted that the motions should have been consolidated and set them all for a single hearing date. The commissioner then ordered all subsequent motions to be submitted to her for approval prior to filing. It is apparent that the court was acting out of a need to control its calendar, and not out of bias. While there is evidence that some of the courts clerks misunderstood the scope of the commissioners order, we see no evidence of bias.

Other incidents mentioned by appellant also fail to substantiate the claim of bias. The commissioners statement regarding orthodontic treatment was an incidental comment made in the context of a tentative move away request. The fee waiver requests were denied because appellants monthly income was found to exceed the guidelines for granting such waivers. Other objections raised by appellant are not corroborated by the record on appeal and, in any event, do not indicate bias. As the Supreme Court stated in People v. Harris (2005) 37 Cal.4th 310, 347, The role of a reviewing court is not to determine whether the trial judges conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judges behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.] [Citation.] We find no violation of appellants due process rights.

III. Appellants Failure to Appear (A112701)

Appellant claims the judgment on custody is invalid because her failure to appear was the result of the courts failure to provide proper notice of the time of trial. As noted above, the trial was continued from July 19, 2005, at 2 p.m. to August 3, 2005, at 9 a.m. The minutes of July 19 state: BOTH PARTIES WERE NOTIFIED BY PHONE OF THE NEW HEARING DATE. While appellant was evidently aware of the new date, she claims that she thought the trial was set for 2 p.m.

We find no reversible error. Appellant was present in court when the trial was initially continued to July 19th. She concedes that she knew the date was continued to August 3, which is strong evidence that she did, in fact, receive telephone notice from the court clerk regarding the start time. Nor do we agree with appellants assertion that telephonic notice was insufficient. The court was not required to provide written notice of the new date. Upon notification of the first continuance, she had a duty to keep herself  informed by diligent inquiry of all subsequent continuances [citation]. (People ex rel. San Francisco Bay Conservation Etc. Com. v. Smith (1994) 26 Cal.App.4th 113, 129 (Smith).)[9] The evidence supports the inferences that appellant received actual notice and that she failed to exercise reasonable diligence.[10]

Appellant also contends that the court abused its discretion by conducting the hearing without her and by entering judgment on the custody issue without giving her a chance to respond. She claims that if she had been present she would have made arguments or objections to the proposed judgment, and that the court thus violated public policy by not considering  all competent, material, and relevant evidence the parties desire[d] to introduce. [11]

We have reviewed the transcript of the hearing held on August 3, 2005. We note this hearing was preceded by a full day of trial wherein appellant had the opportunity to introduce evidence, call her own witnesses, and cross examine respondent. The August 3d hearing itself was brief. After the court determined that appellant had indeed failed to appear, respondent gave a brief closing statement and the court immediately proceeded to set forth its order regarding custody. The court did not consider any new testimony or evidence in appellants absence. While she claims that the resulting judgment is unfair to her and is against the childrens best interests she does not substantiate this claim with any specifics. We find no abuse of discretion.

IV. Denial of Oral Attorney Fees Motion (A112701)

Appellant claims that the court erred in denying her request for fees to hire an attorney. We review the denial of attorney fees for abuse of discretion. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 11661167.)

On July 5, 2005, appellant made an oral request for fees under Family Code section 2030 so that she could have a retainer to hire an attorney. The court denied the request. On December 13, 2005, the court entered its order stating that the request had been denied because the oral motion for attorney fees was procedurally improper.

Appellant asserts various claims of error. She first claims that the court erred in delaying the issue of pendente lite attorney fees to the end of trial. As it does not appear that attorney fees were awarded to appellant at any time, the alleged delay does not appear to be relevant.

Appellant also appears to contest the courts finding that her oral fee motion made on July 7, 2005, was procedurally improper. Family Code section 2031, subdivision (a)(1), provides in part: [D]uring the pendency of a proceeding for dissolution of marriage . . . an application for a temporary order making, augmenting, or modifying an award of attorneys fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause. Subdivision (b) provides in part: An order described in subdivision (a) may be made without notice by an oral motion in open court . . . [] (1) [a]t the time of the hearing of the cause on the merits. (Italics added.)

Assuming appellants oral request was proper, she has failed to show that the error was prejudicial. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th 814, 822823.) In the judgment filed August 8, 2006, the court denied appellants renewed request for attorney fees. Even if we assume the court erred in denying appellants July 5, 2005 oral motion on procedural grounds, the courts subsequent denial of her renewed motion on the merits demonstrates that she was not prejudiced by the earlier denial. Accordingly, we find no prejudicial error.

V. Statement of Decision (A112701)

Appellant claims that the trial court erred in failing to issue a statement of decision regarding the judgment on custody. Family Code section 3022.3 provides: Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure.

Code of Civil Procedure section 632 provides in part: In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision . . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.

On August 3, 2005, the trial court orally set forth the terms of its judgment on the custody issue. Final judgment was filed on November 1, 2005.

On November 14, 2005, appellant filed a request for statement of reasons and statement of information under Family Code sections 3082 and 3190 with respect to the custody judgment. That same day she filed a request for a statement of decision under Code of Civil Procedure section 632 with respect to various matters, including the denial of her request for attorney fees, and findings made concerning the retroactivity of child and spousal support. On December 5, 2005, the court denied the later request. We address this request first.

Code of Civil Procedure section 632 requires the trial court to issue a statement of decision upon the trial of a question of fact when it receives a request therefor by a party appearing at trial. In general, however, section 632 applies when there has been a trial followed by a judgment. [Citation.] It does not apply to an order on a motion. [Citation.] This is true even if the motion involves an evidentiary hearing and the order is appealable. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) Additionally, A statement of decision is not required regarding an award of attorney fees pursuant to a motion. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1252.) None of the issues specified in appellants request for a statement of decision involve a judgment issued following trial. Accordingly, they do not fall within the scope of section 632. Thus, the court was not required to issue any statement of decision.

With respect to the request for a statement of reasons and of information, Family Code section 3082 provides: When a request for joint custody is granted or denied, the court, upon the request of any party, shall state in its decision the reasons for granting or denying the request. A statement that joint physical custody is, or is not, in the best interest of the child is not sufficient to satisfy the requirements of this section.[12] We observe that the vast majority of the 40 issues cited to by appellant in her request for a statement of reasons do not pertain to the decision to grant joint custody. For example, she asked for the reason why the Yom Kippur and the first night of Passover shall be shared such that in even years father shall have the children for these events and in odd years, mother shall have them. She also asks for the reason why if one or more of the children are attending karate that day, exchanges of all the children shall take place at the childs karate class at the time it is scheduled to end, and asks for the information used in determining each parents net monthly disposable income.

Appellant claims that the judgment on custody is a nullity because the trial court failed to make findings on all material issues, but she appears to be confusing a statement of reasons with a statement of decision.[13] They are not the same. A statement of reasons is not intended to set forth the legal basis for the decision, but to provide parents with the reasonsin plain, everyday Englishwhy the court granted or denied joint custody. (In re Marriage of Buser (1987) 190 Cal.App.3d 639, 642.) The distinction between a statement of decision and a statement of reasons is more than semantic and should be maintained. There are both substantive differences and a difference in purpose between the two. A statement of decision is of greater legal import, for it provides the framework within which a trial courts decision can be reviewed by the appellate court. (Id. at p. 643.) Even assuming the court failed to issue a statement of its reasons for granting joint custody, appellant does not cite to any authority for the proposition that this failure renders the custody judgment invalid.

VI. Bifurcation of Issues (A112701)

Appellant contends that the trial court did not follow proper procedures when it bifurcated the trial and issued the judgment on custody. She claims the error was prejudicial because she had no opportunity to object to the judgment or to request a statement of decision.

California Rules of Court, rule 5.175(a) provides that the parties, or the court on its own motion, may move to bifurcate one or more issues and have them tried separately. If a party notices such a motion, it must be heard before the trial-setting conference. Appellant claims the court erred by not hearing its own motion before the trial-setting conference. But she does not cite to any authority holding that courts are required to set hearings before ruling on their own motions.[14]

She also claims that the clerk did not mail a copy of the custody order within 10 days of its filing. (See Cal. Rules of Court, rule 5.175(b).) As best we can determine, appellant appears to be claiming she was foreclosed from filing a request for a statement of decision because such requests must be made within 10 days after the tentative decision is mailed by the clerk. She did not raise this argument when she orally requested a statement of decision on December 5, 2005. Instead, she claimed that she had requested a statement of decision on all issues when she filed her initial response to the petition for dissolution. The court denied the request, finding that the general request for a statement of decision was not sufficient. Appellant does not challenge that finding.

Appellant also claims that the court violated California Rules of Court, rule 3.1591(a) which provides that the court must announce its tentative decision on the bifurcated issue, must issue a statement of decision when requested, and must not prepare any proposed judgment until other issues are tried unless the judgment may properly be entered. We are not convinced that the court failed to comply with this rule. The court announced its tentative decision on August 3, 2005. The fact that the court did not announce it to appellant (because she failed to appear) is irrelevant. We have already concluded that the court was not required to issue a statement of decision. And the judgment was properly entered as the court had the authority under rule 5.175 to bifurcate the trial on its own motion. We find no error.

VII. Local Rules (A112701)

Appellant claims that the judgment was entered in violation of local court rules. She first claims the court violated San Mateo County Local Rules, rule 5.9(B)(4), which pertains to judgments by default or uncontested hearing.[15] That rule does not apply. The proceeding here was neither a default nor was it uncontested. Appellant appeared at trial and actively pursued her case. Her failure to appear on August 3, 2005, did not render the judgment a default.

Appellant also claims that the court violated San Mateo County Local Rules, rule 5.10(B), which pertains to the preparation of judgments and orders after hearing.[16] That subdivision provides, in part: The party preparing the order or judgment shall send it to the opposing side for approval as to form and content unless the court authorizes the preparer to submit it directly to the court. Appellant claims that the court did not authorize respondents counsel to submit it directly to the court. Yet, that is what occurred, evidently with the courts authorization. As the court explained to appellant, there was no need for her to approve the order as to form because she was not present at the August 3, 2005 hearing. We find no prejudicial error.

VIII. Substantial Evidence Supports Judgment on Custody (A112701)

Appellant next claims that the judgment on custody is not supported by substantial evidence. We review custody and visitation orders for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We review the trial courts resolution of disputed factual questions using the substantial evidence test. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) Under the substantial evidence test, we view all factual matters in the light most favorable to the prevailing party, resolving all conflicts and indulging in all reasonable inferences from the evidence to support the judgment. (Ibid.) If an appellant does not request a statement of decision, we presume the trial court to have made all findings necessary to support the judgment. (In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1159.)

Appellants principal complaint is that the court did not make specific findings concerning the health, safety, and welfare of each child, instead basing its decision on the absence of evidence that a joint custody arrangement would be detrimental the children. However, because she did not request a statement of decision, she cannot challenge the trial courts ruling by contending the court did not fully explain the reasons for its ruling. In any event, there is evidence in the record to support the courts finding.

The court stated its findings, in part, as follows: THE COURT FINDS that based on all the evidence thats been presented and the testimony of Dr. Leavens that there is no evidence to dispute the recommendations of Dr. Leavens and there is noevidence to show that a continued shared custodial arrangement between these parties is not in the best interest of the parties children . . . and it appears that they are doing fine under this arrangement. It appears to the Court that it is in their best interest to have somewhat equal access to both parents. These findings are supported by Dr. Leavenss report dated June 23, 2003, and his testimony in court. For example, he testified that he found the children were bonded to both parents and that both parents were similarly situated in terms of their parenting skills. He also testified that the children had expressed satisfaction with the shared arrangement, though they would have preferred more flexibility in terms of being able to visit with the noncustodial parent during the custodial parents time.

While appellant claims that the custody judgment hampers or forecloses [her ability] to provide for the childrens needs, she does not explain why. And while she suggests that contrary evidence was presented, or was erroneously excluded, under the substantial evidence standard of review, our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial courts factual determinations. (Ermoian v. DesertHospital (2007) 152 Cal.App.4th 475, 501.) In this case, substantial evidence supports the courts judgment. We find no abuse of discretion.

IX. Admission of Evaluators Recommendations (A112701)

Appellant claims that Dr. Leavens failed to comply with California Rules of Court, rule 5.220 when he prepared his child custody evaluation and that the trial court therefore erred in admitting his report into evidence. This claim is meritless.

On appeal, Our review is guided by Evidence Code section 353, which provides: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice. [] In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (OHearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.)

California Rules of Court, rule 5.220(e)(2) sets forth guidelines for evaluators to consider in collecting information and preparing evaluations: All evaluations must include . . . [d]ata collection and analysis that . . . allow the evaluator to observe and consider each party in comparable ways and to substantiate . . . interpretations and conclusions regarding each childs developmental needs; the quality of attachment to each parent and that parents social environment; and reactions to the separation, divorce, or parental conflict. This process may include: [] (A) Reviewing pertinent documents related to custody . . . ; [] (B) Observing parent-child interaction . . . ; [] (C) Interviewing parents . . . to assess: [] (i) Capacity for setting age-appropriate limits and for understanding and responding to the childs needs; [] (ii) History of involvement in caring for the child; [] (iii) Methods for working toward resolution of the child custody conflict; [] (iv) History of child abuse, domestic violence, substance abuse, and psychiatric illness; and [] (v) Psychological and social functioning; [] (D) Conducting age-appropriate interviews and observation with the children [and] both parents . . . conjointly, separately, or both conjointly and separately . . . ; [] (E) Collecting relevant corroborating information or documents . . . ; and [] (F) Consulting with other experts to develop information that is beyond the evaluators scope of practice or area of expertise. (Italics added.)

Appellant faults Dr. Leavens for his alleged failure to fully perform some of the specified assessments listed in the rule. To the extent he did comply with the guidelines, she faults Dr. Leavens for relying mainly on information that he received from respondent. However, the guidelines quoted above are not mandatory and the rule does not bar the evaluator from receiving more information from one parent than the other.

Appellant also claims Dr. Leavens acted contrary to rule 5.220(h)(11), which requires evaluators to Be sensitive to the . . . cultural values, religion, family structures, and developmental characteristics of the parties. She faults Dr. Leavens because he did not know how many Seders there are in the Jewish tradition of Passover, and because he recommended that the children alternate holidays between the parents even though respondent allegedly does not observe them. This claim fails. The rule simply requires evaluators to exercise sensitivity. In sum, the court did not err in admitting the report into evidence.

Appellant also claims that the court erred in admitting Dr. Leavenss January 2005 update to his evaluation. She claims the update was not ordered by the court, yet directs our attention to an entry in the register of actions stating that both parties were ordered to cooperate with Dr. Leavens. At the hearing that corresponds to this entry, the court stated: As far as updating the report, I think that given the request that Im hearing now, I think its a good idea that Dr. Leavens sees the parties and does an update. The court further ordered both parties to cooperate with the evaluator and to split the cost. Thus, the update was authorized by the court.

Appellants other claims of error regarding the admission of Dr. Leavenss report lack merit. For example, she claims that the report should not have been admitted because she did not stipulate to having the report received into evidence. Family Code section 3111, subdivision (c), states that the report of a court-appointed child custody evaluator may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report. A respected practice guide states, The report may be considered by the court. But it is admissible evidence only on stipulation of all interested parties (in which event, it is competent evidence on all matters contained therein). (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) 7:255, p. 785.) We have some question as to how a court can properly consider evidence that is inadmissible. In any event, when respondents counsel requested to move the report into evidence, there was no objection from appellant, who, admittedly, was not present at the hearing. In light of our finding that the court did not err in proceeding with the August 3, 2005 hearing in appellants absence, it would be inconsistent and unreasonable for us to conclude that the court erred in admitting the report merely because appellant did not have the opportunity to object to its admission.

Nor do we agree with appellants contention that the courts evident reliance on the report constitutes an improper delegation of judicial authority. A trial court may not delegate to otherssuch as a therapist, child protective services agency, or refereethe authority to make custody decisions. (See In re Donnovan J. (1997) 58 Cal.App.4th 1474, 14761478; see also In re Edgar M. (1975) 14 Cal.3d 727, 735736.) That authority is vested in the trial court by the state Constitution. (Cal. Const., art. VI, 22; In re Donnovan J., at p. 1477.) But the court did not consider the report in a vacuum. Dr. Leavens testified in court and appellant had the opportunity to cross-examine him. There is no basis in the record to conclude that the court adopted the report unquestioningly and improperly delegated this decision.

Citing to Fewel v. Fewel (1943) 23 Cal.2d 431, 436, appellant also claims that the court erred in considering the report because it was not a declaration under oath. Appellant does not point to any code section that requires custody evaluation reports to be prepared under oath. Regardless, Dr. Leavens testified under oath regarding the contents of his report. It was within the courts power to consider the report and Dr. Leavenss testimony, and accord to both the evidentiary weight it deemed appropriate. We find no error, let alone any miscarriage of justice.

X. Exclusion of Evidence from Childrens Health Council (A112701)

On April 19, 2005, respondent filed a motion in limine to exclude witnesses from the Childrens Health Council (CHC). Respondents motion was based on allegations that appellant had named the witnesses as experts but had failed to comply with Code of Civil Procedure section 2034, subdivision (f)(2)(C);[17] that the witnesses had not agreed to testify at trial; that he had signed a confidentiality agreement with the CHC that prevented the witnesses from testifying; and that the witnesses had not been subpoenaed. The court granted the motion and excluded the witnesses based on the confidentiality agreement.

On appeal, appellant asserts many claims of error, only two of which are supported by citation to any legal authority.[18] She first claims that the motion in limine was introduced in violation of San Mateo County Local Rules, Appendix 5 B3 and D1, citing to the form entitled Long Cause Trial Rules Checklist. While it is true that the form indicates that motions in limine are filed and served four days before trial and may be considered by the court two days before trial, this checklist appears to be more of a guideline for the parties as opposed to a mandate that must be followed by the courts without any variation. We decline to hold that the court erred in considering respondents motion in limine regarding the disputed witnesses.

Appellant also cites to Evidence Code section 354 in arguing that the exclusion of this evidence resulted in a miscarriage of justice. This section provides: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [] (b) The rulings of the court made compliance with subdivision (a) futile; or [] (c) The evidence was sought by questions asked during cross-examination or recross-examination. (Italics added.) This section presupposes that evidence was excluded erroneously. The evidence here was properly excluded under the confidentiality agreement. Thus, the section does not apply.

Appellant further asserts that the agreement does not prohibit the CHC from disclosing information about the children to a court, only that [I]nformation that is not necessary to the assessment or treatment of the child will remain confidential in regard to the other (custodial) parent.  She misreads the agreement. The relevant portion provides: The information provided during assessment and treatment services is confidential. Specific information is released to outside agencies or persons only after written consent of a parent(s) or legal guardian(s) is obtained. (Italics added.) The only exceptions to confidentiality are as follows: When a joint custodial parent requests information about their child. Information that is not necessary to the assessment or treatment of the child will remain confidential in regard to the other (custodial) parent. (Italics added.) Thus, the confidentiality agreement is more comprehensive than appellant suggests. The ruling excluding the proffered evidence was not erroneous.

XI. Alleged Failure to Comply With Family Code section 3048, subdivision (a)(1), (2) and (4) (A112701)

Appellant claims that the court erred in entering a custody order that did not comply with Family Code section 3048, subdivision (a)(1), (2) & (4). These provisions provide: Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following: [] (1) The basis for the courts exercise of jurisdiction. [] (2) The manner in which notice and opportunity to be heard were given. [] . . . [] (4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both.

Appellant does not cite us to any legal authority holding that a courts failure to include the listed items in its custody order thereby renders the order invalid. Assuming the court did err, we find the error harmless.

XII. Order that Appellant Pay Half of the Private School Tuition (A112701)

The judgment on custody provides that The parties shall share equally the tuition for Sarahs school for academic year 20052006. Appellant claims this order was an abuse of discretion because she could not afford to pay 50 percent of the tuition and because of the income disparity between the parties.

Family Code section 4062, subdivision (b)  makes discretionary (the court may order) additional child support for educational or special needs of a child or for travel expenses for visitation. Among the family law bench and bar, these are usually referred to as . . . discretionary add-ons. [Citation.] The amounts in Section 4062, if ordered to be paid, shall be considered additional support for the children and shall be computed in accordance with the following: [] (a) If there needs to be an apportionment of expenses pursuant to Section 4062, the expenses shall be divided one-half to each parent, unless either parent requests a different apportionment pursuant to subdivision (b) and presents documentation which demonstrates that a different apportionment would be more appropriate. ( 4061.) (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 760.)

In appeal A112701, appellant does not claim that she requested a different apportionment or that she presented documentation demonstrating that a different apportionment would be more appropriate. Instead, she claims that a child support add-on is unauthorized without notice and a hearing. Appellant notes that a previous order, filed on May 13, 2004, required her to pay one-half of Sarahs private school tuition. She also notes that she filed a motion to modify the allocation of tuition and that the court made a decision on this motion on April 11, 2005. She claims that the August 3, 2005 decision is different from the April 11, 2005 decision, but our reading of the transcript confirms that the court intended to continue ordering her to pay one half of the tuition. She does not allege that the order had been vacated or otherwise had become inoperative. While appellant claims that the judgment does not explain why she was ordered to pay half of the tuition, the court was not required to supply her with an explanation as it was simply maintaining the status quo. Appellant claims that the add-on was a deviation from the uniform guidelines within the meaning of Family Code section 4056, subdivision (a), and that therefore the court was required to provide an explanation. However, the uniform guidelines pertain to base child support, not to add-ons. (Fam. Code, 4061, subds. (a), (b).)

XIII. Order Regarding Appellants Home Telephone Number (A112701)

The judgment on custody required appellant to supply respondent with a home telephone number for use in emergencies or issues that require an immediate response. Appellant claims that this order is erroneous because respondents prior request for her telephone number was denied and because he did not comply with Code of Civil Procedure section 1008, subdivision (b). This claim is specious.

We have reviewed the transcript of the prior hearing (held Aug. 19, 2004) in which appellant claims respondents request for her home telephone number was denied. Neither a request for her home telephone number nor a denial of such a request was discussed at this hearing. Instead, the court ordered the parties to continue to communicate by e-mail. Moreover, in his moving papers respondent requested an order that she supply me with a phone message number, an email or fax number that work so that we can communicate about the needs of our children. The minute order entered after the hearing also does not indicate the denial of any request for her home telephone number. As the record does not demonstrate that the court had ruled on this issue before, Code of Civil Procedure section 1008 has no application.

Appellant also claims the court lacked jurisdiction to issue this order because she did not receive notice or a hearing regarding the telephone number issue. She cites to no legal authority for this proposition. Accordingly, we deem the argument waived.

XIV. The November 1, 2005 Minute Order (A112701)

Appellant raises various claims of error with respect to a minute order issued on November 1, 2005. She first argues that the court erred in refusing to consider awarding child support for the time prior to March 1, 2004. In support of this claim, she refers us to a brief that she has filed in another appeal that has been consolidated with this appeal, and asks us to incorporate her arguments by reference.[19] In the interests of judicial economy, we decline this request and elect to address the issue below in our discussion of the other appeal. Appellant also claims that the court erred disallowing the discovery of employment records for the time period when the court believed it had no jurisdiction to award child support. This argument is unsupported by any citation to legal authority and is deemed waived. Her related protest regarding the courts denial of her request to reopen discovery is also unsupported, except by general reference to a brief that she has filed in another appeal. For these reasons, we decline to consider these issues here.

Finally, she appeals from the order that denied, without prejudice, her request for attorney fees and costs to pay experts. For the reasons stated above in section IV of this opinion, we find the trial court did not abuse its discretion in denying the request.

XV. Motion For New Trial (A112701)

Appellant claims the trial court erred in denying her motion for new trial. She does not cite to any legal authority or provide any explanation as to how the court erred, stating merely: Because there were good reasons to grant a new trial, it was error for the court not to have granted a new trial. Again, because this claim is unsupported by any legal authority or a reasoned argument, we deem it waived.

XVI. Failure to Adjudicate Some Issues (A115566)

Appellant claims the court erred in refusing to adjudicate certain issues. These claims lack merit.

In its statement of decision and final judgment on the reserved issues, the court found that There are no outstanding community obligations and the assets have been divided between the parties. Appellant contests this finding, claiming that the court failed to adjudicated some property interests. However, there are several problems with appellants briefing. In the first place, she does not specifically identify the allegedly unadjudicated assets. While these assets may have been identified in her October 10, 2006 trial brief, she does not provide a citation to the record for this document. Instead, she merely refers us to an entry in the register of actions. Secondly, she does not address the impact of the courts finding that it had lost jurisdiction over this issue due to her having filed a notice of appeal on October 12, 2006.

Appellant claims that the court erred in failing to require respondent to completely disclose certain assets and income. While appellant provides a narrative regarding her efforts to cause the court to compel discovery of respondents assets, she does not specifically challenge any of the courts rulings. She also refers to stock options and non-base-salary income that she claims the court did not account for, yet she does not identify the stock by name nor does she identify the alleged source of the non-base-salary income. Because she has not presented a coherent argument, the issue is waived.

Appellant asserts the court erred in failing to determine the date of separation. She claims the error is prejudicial because when she brings [an] action to divide unadjudicated property, the date of separation would be relevant and would have to be tried long after the fact. It appears that she is contemplating a future action regarding this allegedly unadjudicated property. As appellant does not contend that the alleged error has any relevance to the judgment presently under appeal, we decline to consider it.[20]

Appellant next argues that the court erred in ordering support without determining assets. This claim is an outgrowth of her claim regarding unadjudicated property interests. For the reasons discussed above, this argument fails.

XVII. Retroactivity of Child Support (A115566)

Appellant claims that the court erred in failing to award support for the period of December 23, 2002, to November 25, 2003. The judgment on reserved issues states: As to the issue of child support and spousal support and the parties agreement to suspend payment of child and spousal support as of March 29, 2004, the court has jurisdiction to order support retroactive to March 2004. [Respondent] will owe full support to [appellant] for the month of March 2004. Any payment by [respondent] to [appellant] for support for the m