M.F. v. D.M.
Filed 12/10/12
M.F. v. D.M. CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
M.F.,
Respondent,
v.
D.M.,
Appellant.
E053722
(Super.Ct.No.
FAMRS800275)
OPINION
APPEAL from the Superior Court of
Bernardino County.
Brian S. McCarville, Judge. Affirmed
with directions.
D.M., in pro. per., for Appellant.
Law Office of Herb Fox, Herb Fox;
and Julieann R. Sayegh for Respondent.
I
INTRODUCTION
Respondent
D.M. (mother) appeals judgment entered following a trial on a petition to
establish paternity, in which the court awarded mother and M.F. (father) equal
visitation and joint legal and physical
custody of Samantha F. (Samantha).
Mother contends she was deprived of a fair trial before an unbiased
judge, in violation of her state and federal constitutional
conspired to deprive her of a fair trial because she filed several motions for
disqualification of judicial officers under Code of Civil Procedure section
170.1.
title="">[1]
Mother also
contends the trial court erred in (1) basing its child custody ruling on
Internet postings, in violation of mother’s state and federal constitutional
rights to free speech; (2) changing a temporary custody arrangement in the
absence of supporting evidence and in retaliation for mother requesting
disqualification of judges in the case; (3) relying on findings by a
disqualified judge that mother violated an automatic temporary restraining
order (ATRO); (4) making credibility findings that were inconsistent with the
evidence; and (5) ordering mother to pay half the cost of a psychological
evaluation by Dr. Suiter.
We agree the
trial court erred in ordering mother to pay half the cost of Dr. Suiter’s
psychological evaluation, because father requested the evaluation and the trial
court ordered it under Evidence Code section 733. In all other respects, we affirm the
judgment. We conclude there was
substantial evidence supporting the trial court’s findings and judgment, and
mother has not established the trial court judicial officers and court staff
conspired against her or violated her rights to a fair trial and due
process.
II
FACTS AND
PROCEDURAL BACKGROUND
Samantha
is five years old. She was born in 2007,
in California. Mother and father (parents) did not marry and
separated around the time of Samantha’s birth.
On January 30, 2008, father filed a
petition to establish paternity, upon learning mother intended to relocate with
Samantha to Texas. Shortly after father filed his paternity
petition, mother and Samantha, who was four months old, moved to Texas without
father’s or the court’s consent.
In February 2008,
mother filed a request to relocate temporarily to Texas, pending trial on her
move-away request. Mother and Samantha
returned to California on February 11, 2008, to attend the hearing on mother’s
request to relocate temporarily. Before
the court decided the matter, mother returned to Texas with Samantha. Father did not see Samantha again for three
months. On February 15, 2008,
Commissioner Gassner denied mother’s motion to relocate pending trial. The court noted father objected to mother’s
request and there had not yet been an independent custody evaluation or an opportunity
to present evidence through live testimony.
The court appointed Dr. Amy Miller to conduct a
under Evidence Code section 730.
In May 2008,
mother filed an Order to Show Cause (OSC) seeking disqualification of father’s
attorney, Richard Tuckerman.
Commissioner Gassner denied mother’s OSC disqualification request. Commissioner Gassner also rejected mother’s
OSC seeking a finding of inconvenient forum and transfer of the case to another
court. Commissioner Gassner found that
Samantha was born in California and lived there until mother moved to Texas
with Samantha. When father filed the pending
paternity petition, California was the residence of Samantha. Mother then relocated to Texas without
obtaining a court order or father’s permission.
When the paternity petition was served on mother, there were
issued on the back of the summons.
Commissioner Gassner again denied mother’s request to relocate pending
trial and issued temporary custody and visitation orders. Nevertheless, mother and Samantha remained in
Texas. Commissioner Gassner found that
mother’s actions were inconsistent with the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA),
Family Code section 3400 et seq. The
court denied mother’s request for a stay of the UCCJEA.
In September 2008, mother filed a motion to disqualify Commissioner Gassner and affidavit of prejudice under section 170.1 (170.1
challenge). Commissioner Gassner filed a
responsive declaration. Due to the
pending 170.1 challenge, Commissioner Gassner continued to November 4,
2008, the hearing on mother’s motion to set aside
default, quash summons, vacate orders, and remove father’s counsel. On October 27, 2008, mother’s 170.1 challenge was denied. However, Gassner recused himself and declared
a mistrial. Supervising Judge Haight
reassigned the case to Judge West, and continued mother’s motion to set aside
default, quash summons, vacate orders, and remove counsel.
Judge West heard
the matter on November 18, 2008. Mother
withdrew her motion to disqualify father’s attorney and her motion to quash
service of summons of the petition to establish paternity. Her attorney accepted service as of November
18, 2008. The parties agreed the ATROs
were not in effect until the date of acceptance of service on November 18,
2008. The court found it had
jurisdiction over mother because she had made a general appearance by filing
OSC requests and motions.
A.
First Trial
An 11-day trial
to establish paternity and determine custody and visitation, began on January
5, 2009, and continued through January 22, 2009, with Judge West
presiding. At the conclusion of the
trial, Judge West ruled that mother could not take Samantha out of the State of
California. Judge West further ordered
that, while mother was in California, she was entitled to visitation during
certain specified times in January and February, 2009. Mother filed a notice of appeal of Judge
West’s ruling. The Court of Appeal
dismissed mother’s appeal because it was premature, since a judgment had not
yet been entered. On May 20, 2009, the
court entered judgment on father’s petition to establish paternity.
In June 2009, the
trial court stayed the court proceedings on the ground mother had filed a 170.1
challenge against Judge West. Mother
also filed a motion for new trial. Judge
McLafferty of the Santa Barbara County Superior Court reviewed mother’s 170.1
challenge and found that “a person aware of the facts might reasonably
entertain a doubt that Judge West was able to be impartial [CCP
§ 170.1(a)(6)(A)(iii)], . . .â€
Judge McLafferty explained in his detailed statement of his findings and
order that his ruling was based on Judge West not responding to certain
allegations and facts in the 170.1 challenge.
Father’s attorney, Richard Tuckerman, acknowledged that, before
Tuckerman was retained by father, Tuckerman had discussed the case in some detail
with mother’s father, who was a Los Angeles County Superior Court judge. Judge West allowed Tuckerman to withdraw from
a stipulation during a trial, but did not allow mother to do so as to her part
of the stipulation. In addition, Judge
West denied mother the opportunity to introduce evidence on previously
stipulated issues. Mother alleged
Tuckerman told Judge West in chambers that mother had destroyed the career of a
fine judicial officer (Commissioner Gassner) by filing a 170.1 challenge,
resulting in Gassner recusing himself from the case. Judge West responded, “Yes, I know.â€
Judge McLafferty
concluded: “After a careful examination
of the whole of the available record, and considering that Judge West does not
deny that she had a conversation about the disqualification of Commissioner
Gassner and does not address in her Response whether or not Respondent’s
rendition of the conversation is accurate, a member of the public at large
might reasonably entertain a doubt about Judge West’s ability to be
impartial.†Judge McLafferty added that
under section 170.1, “[a] finding of actual bias is not required for
disqualification to be mandated, and this Court makes no such finding.â€
After Judge
Haight received Judge McLafferty’s ruling disqualifying Judge West, Judge Haight heard and granted mother’s
motion for new trial based on Judge McLafferty’s findings and order
disqualifying Judge West. Judge Haight
vacated judgment entered on May 20, 2009, finding that mother did not receive a
fair trial before Judge West in January 2009.
The parties were ordered to participate in mediation. In August 2009, Judge Haight ordered the case
reassigned to Judge McCarville.
In
September 2009, Judge McCarville ordered Dr. Miller to perform a supplemental
psychological evaluation under Evidence Code section 730. With Dr. Miller acting as mediator, in March,
April, and May 2010, the parties attempted to settle the matter but were
unsuccessful. On November 3, 2010, the
court granted father’s motion for a psychological evaluation by Dr. Suiter
under Evidence Code section 733.
B.
Second Trial
Judge
McCarville conducted a retrial of the issues of paternity, custody, and
visitation on January 18 and 19, 2011.
Both parties were represented by counsel. Mother did not renew her request to relocate
with Samantha to Texas. At the time of
the trial, father was employed as a family medicine resident at Kaiser
Permanente Hospital in Riverside. Mother
was working as a waitress but had previously worked as a television news writer
and assistant producer.
Mother’s
testimony
Mother
testified that she was residing in California when Samantha was born. At the end of January or beginning of
February 2008, when Samantha was four months old, mother moved to Texas with
Samantha. Pursuant to court order,
mother appeared at a court hearing on child support and visitation on February
11, 2008. Although mother was already
living in Texas with Samantha, mother requested a court order allowing her to
relocate to Texas pending trial on father’s petition to establish
paternity. On February 15, 2008, after
mother and Samantha had already returned to Texas, the court denied mother’s
request to relocate. Mother and Samantha
did not return to California until May 2008.
Mother told father he could visit Samantha in Texas but father did not
do so. Mother let father see Samantha
when mother was required to attend court hearings in California.
Mother and
Samantha moved back to California in January 2009. Mother acknowledged that, from February 2008
until January 2009, there was a court order prohibiting mother from relocating
to Texas with Samantha. In January 2009,
the court ordered custody and visitation, which essentially remained in effect
until the trial in January 2011.
At trial, mother
denied that she had posted anything on the Internet regarding the pending case
or father. Mother acknowledged, however,
that her mother (grandmother) had posted comments regarding Dr. Miller’s
psychological evaluation report. Mother
believed grandmother may have seen Dr. Miller’s report while mother was living
in Texas with grandmother. Some of the
information posted was about visitation exchanges, which mother told
grandmother about. Mother said she had
been told the websites and postings had been removed. She adamantly urged the creators of the
website, “Courthouse Collusions,†to take down the comments, and they did
so. Mother also spoke to grandmother
about removing the private information from the Internet, and the information
was removed. Mother claimed she had no
control over other websites that might have comments regarding the case.
Mother
acknowledged she authored one of the Internet postings but claimed she was
unaware the public would have access to it.
When she discovered it could be viewed by everyone, she requested it
removed. In one of the postings, mother
complained about Judge West disregarding Dr. Miller’s evaluation and that
father worked 70 to 80 hours a week as a first-year doctor. Mother also mentioned in the posting Samantha’s
age and that Samantha was being taken away from her. Mother was aware the
evaluation reports were confidential.
She insisted she requested the postings be removed from the website.
Dr. Suiter’s
Testimony
Dr. Suiter
testified that he performed a psychological evaluation of the parties. He recommended parents have equal visitation
and joint legal and physical custody, based on parents’ representations that
they had been sharing their child equally for the past two years, since January
2009. Mother initially told Dr. Suiter
she would like a minimal shift of timesharing to her, which would have resulted
in father having the child two days less per month. But when Dr. Suiter met with each parent
individually, parents wanted significant changes in the timeshare
arrangement. Dr. Suiter concluded there
was no basis for changing the equal timeshare arrangement and therefore the
existing timeshare arrangement should continue.
Dr. Suiter noted
that father was working during the week as a medical resident and mother worked
at a restaurant primarily on weekends.
Mother’s work skills exceeded her current employment and mother
indicated she intended to return to her previous field of employment in the
news industry, when the opportunity arose.
There was no indication either parent had any psychopathology, substance
abuse or domestic violence problems. The
court admitted into evidence psychological
evaluation reports by Dr. Suiter, dated January 9, 2011, and by Dr. Miller,
dated July 27, 2008.
At the end of the
second day of trial on January 19, 2011, the court continued the trial to April
11, 2011, to allow the parties in the interim to attempt to reach settlement
and complete a coparenting program, Solutions for Families A and B. Upon the trial resuming on April 11, 2011,
the parties reported they had completed the Solutions for Families course but
had not reached settlement. Mother
submitted a declaration proposing a timeshare of father having Samantha one
week, from Thursday evening until Sunday morning, and the next week, from
Thursday evening until Sunday evening.
Whenever father was on call, Samantha would be with mother. Mother requested father provide her with his
work schedule. Mother also requested
that Samantha attend Arcadia Christian School because it was close to where
mother was going to live, it was less expensive than other schools, and it was
ranked higher than other schools the parties had considered. The parties submitted on the evidence and
made closing arguments. Before taking
the matter under submission, Judge McCarville met in chambers privately with
Samantha for 10 minutes, to evaluate her cognitive level.
Statement of
Decision
On April 14,
2011, Judge McCarville issued a statement of decision. The court made the following findings. Mother violated the ATROs when she first left
California. Both parents had a high
degree of difficulty coparenting Samantha.
Mother was having the most difficulty with coparenting but, during the past
18 months, both parents were trying to set aside their own interests and make
decisions in the best interest of Samantha.
This difficulty in coparenting was apparent from mother and her family
members inappropriately disseminating information on the Internet about the
case and parties. Mother denied doing so
and claimed it was not her responsibility if someone else was doing it. The court did not find mother credible in this
regard. The court indicated that father
had also made comments on the Internet.
The court noted parents’ disparaging remarks toward each were not in the
best interests of Samantha and could be damaging to her and parents.
Based on Dr.
Miller and Dr. Suiter’s observations and parents’ testimony, the court found
that father was more believable than mother.
Both parents had established a nurturing and stable relationship with
Samantha, with frequent and continuous contact with Samantha. This joint custody relationship had existed
for over two years and it was not in Samantha’s best interest to change that
relationship. The court found, based on
Samantha’s visit in chambers, that she was well bonded to both parents. The court noted both Dr. Miller and Dr.
Suiter recommended equal visitation, with joint legal and physical custody. Significantly decreasing Samantha’s time with
either parent would not be in Samantha’s best interest and would be
detrimental.
The
court made the following orders. The
parties were awarded joint legal and physical custody of Samantha, with
Samantha living with each parent alternating weeks. There would be a Sunday exchange at 5:00
p.m.; a midweek visit on Wednesday, with the exchange to take place after
school or at 10:30 a.m., if there was no school that day. The timeshare was to be 50/50. As to school placement, the court ordered
that Samantha attend Arcadia Christian School because of its proximity to
mother’s home and Samantha’s age. The
court further ordered that mother reimburse father for $2,400, half the cost of
Dr. Miller’s report, and pay Dr. Suiter $1,750 as her share of the cost of his
report. The court declined mother’s
request that father provide her with his actual work schedule but advised the
parties to keep each other generally apprised of their work schedules. On May 5, 2011, the court entered a judgment
of paternity, incorporating the court’s findings and orders included in the
statement of decision.
On May 26, 2011,
after mother’s attorney withdrew as counsel, mother filed a motion for new
trial and notice of appeal of the May 5, 2011 judgment. On May 31, 2011, mother filed a 170.1
challenge against Judge McCarville.
Judge McCarville ordered mother’s motion for disqualification stricken
under section 170.2, subdivision (b).
On June 6, 2011,
mother filed in this court a petition for writ of supersedeas and emergency
stay of the May 5, 2011, order. This
court summarily denied mother’s writ petition and request for a stay.
III
FAILURE TO
ESTABLISH A COURT CONSPIRACY
Mother
contends that trial court judges and staff conspired to deprive her of a fair
trial because she filed requests for disqualification of several judges (170.1
challenges). Mother argues that the
evidence, including Dr. Miller and Dr. Suiter’s reports, overwhelmingly favored
mother, yet Judge McCarville decreased her share time with Samantha from 60/40
to 50/50.
The
conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done
in furtherance of the common design.
[Citation.]†(Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1062.) A
conspiracy may be proved with inferences drawn from circumstantial evidence, as
direct evidence is usually unavailable.
(Peterson v. Cruickshank (1956) 144 Cal.App.2d 148, 163.)
In this case, the
evidence is simply insufficient to support a finding on appeal that judicial
officers and court staff actively participated in a conspiracy to deprive
mother of a fair trial. This is because,
appeal an appellate court (1) will view the evidence in the light most
favorable to the respondent; (2) will not weigh the evidence; (3) will indulge
all intendments and reasonable inferences which favor sustaining the finding of
the trier of fact; and (4) will not disturb the finding of the trier of fact if
there is substantial evidence in the record in support thereof. [Citations.]
It is not the province of the reviewing court to analyze conflicts in the
evidence. [Citation.] Rather, when a finding of fact is attacked as
being unsupported, the power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence contradicted or
uncontradicted, which will uphold the disputed finding. [Citation.]â€
(Berniker v. Berniker (1947) 30 Cal.2d 439, 444 (Berniker); see also Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658 (
construed to support the judgment.’
[Citation.]†(Gordon v. City
Council of Santa Ana (1961) 188 Cal.App.2d 680, 686.)
We cannot say
that, here, the average person viewing the facts and circumstances in the
instant case would conclude the judicial officers and court staff involved in
this matter were biased against mother and conspired against her to deprive her
of a fair trial. (United Farm Workers of America v. Superior Court (1985) 170
Cal.App.3d 97, 104-105.)
Mother
argues that comments made by Judge Williams during a brief hearing on July 17,
2009, show that court judges and staff were aligned against her to deprive her
of a fair trial. Judge Williams told her
that she “created a bad situation†for herself by filing a 170.1 challenge
against Judge West. Judge Williams
added, “You put yourself behind the eight ball on this when it otherwise would
just be a simple motion for new trial.â€
Judge Williams noted that the time to file a notice of appeal would not
be stayed by delays caused by requesting recusal under section 170.1.
When Judge
Williams made these statements, mother was in pro. per. and had just filed a
motion for new trial and a 170.1 challenge against Judge West. Mother had also indicated that she intended
to appeal Judge West’s trial ruling. It
is apparent from these circumstances and Judge Williams’s statements to mother,
that he was attempting to guide mother in the process of challenging Judge
West’s ruling by explaining to her that, rather than filing a postjudgment
request to disqualify Judge West, the most expedient and simplest way to
challenge her ruling was to simply proceed with the motion for new trial before
Judge West and then, if the motion was denied, appeal Judge West’s trial
ruling. He also reminded mother of the
time limitations for filing an appeal.
Judge Williams’s comments can reasonably be construed as merely
attempting to assist mother in timely and expeditiously moving forward with her
appeal.
Mother believes
that, because several judges and court staff did not agree with her requests
and arguments, that they were conspiring against her in an attempt to
antagonize, intimidate, and deprive her of a fair trial. The record does not reflect this. Just because the court ruled against mother
does not establish there was a conspiracy against her, particularly when the
court’s rulings were reasonable. Mother
complains that the court staff committed inappropriate, abusive acts against
her. But there is no evidence in the
record, either direct or indirect, that either judicial officers or court staff
were actually conspiring to impede mother’s due process rights to a fair trial. Mother must show more than that the trial
court ruled against her, particularly when the record shows that the rulings
were generally well founded, reasonable, and within the court’s discretion. Here there is substantial evidence to support
the trial court’s findings, and “[w]hen two or more inferences can reasonably
reviewing court has no authority to substitute its decision for that of the
trial court.†(Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
Mother asserts
that clerical staff provided her with misinformation and refused to provide
information she requested when mother began making posttrial motions and sought
appellate remedies. For instance, she
claims that at least one court reporter omitted statements by a judge while the
parties were before the court and staff in the clerk’s office knowingly
provided false information regarding the location of a court file. Mother fails to cite any evidence in the
record substantiating these claims, other than her own self-serving declaration
filed in support of her postjudgment motion for disqualification of Judge
McCarville.
Although Judge
McLafferty ordered Judge West disqualified, his ruling was based on the finding
that “a person aware of the facts might reasonably entertain a doubt that Judge
West was able to be impartial [CCP § 170.1(a)(6)(A)(iii)],†because she had
agreed with attorney Tuckerman’s comment that mother had destroyed the career
of a fine judicial officer, Commissioner Gassner, by filing a disqualification
request, resulting in Gassner recusing himself from the case. Although this could possibly support an
inference Judge West was impartial, it does not support such a finding as to
the subsequent judges involved in the case, since, in accordance with Judge
McLafferty’s ruling, supervising Judge Haight granted mother a mistrial and
reassigned the case to Judge McCarville.
There simply is no evidence that any judicial officer or court staff
member conspired to deprive mother of a fair trial.
IV
INTERNET POSTINGS
Mother contends
the trial court erred in basing its child custody ruling on Internet postings,
in violation of mother’s state and federal constitutional
rights to free speech. During the
second trial, father offered evidence of Internet postings believed to be
posted by mother. The postings mentioned
the names of father and Samantha, and criticized father, the court, and
psychological evaluation findings. At
trial, mother denied discussing the court proceedings on the Internet or
posting any comments regarding the case.
Mother was shown a 10-page Internet posting stating, “Toddler
traumatized.†Mother said she did not
write the Internet posting. Her mother
(grandmother) wrote it. Mother denied
showing grandmother Dr. Miller’s psychological evaluation report but suggested
grandmother may have looked at it while mother was living with
grandmother. Mother also conceded that
she provided grandmother with some of the information contained in the
posting.
When father’s
attorney asked mother whether she considered the 10-page posting private
information, mother testified that it was “[t]o a certain extent,†and then
explained: “Matters concerning my
daughter are private, but I feel in agreement with my mother that when a child
has the same negative reaction to leaving every week, that something should be
done about it so that it changes.â€
Another Internet
posting introduced as evidence stated that father violated a court order and
lied to the police. Mother acknowledged
she had sent information to someone who operated a website, without knowing the
information would be posted. In this
regard, mother conceded in her appellate opening brief to “making a posting on
an NODR website about being ordered to meet with Dr. Suiter†for an Evidence
Code section 733 evaluation, not realizing the posting would be viewable by the
general public. Mother requested the
creators of the website, “Courthouse Collusions,†remove the postings regarding
her case, and she believed the postings had been removed from the
Internet. As to any other postings by
third parties, mother said she had no control and should not be held
responsible for them.
During the trial,
father requested that the court order mother not to post anything regarding the
confidential court proceedings or disseminate any confidential information
about the proceedings to third persons.
The parties stipulated to this, and the court so ordered it.
Judge McCarville
stated in his trial statement of decision that Dr. Suiter’s testimony and Dr.
Miller’s report provided clear and convincing evidence that parents have had a
high degree of difficulty coparenting Samantha.
Judge McCarville found that mother was having the most difficulty, with
such difficulty apparent from mother and her family members inappropriately
disseminating information on the Internet about the case and parties. Although mother denied doing so, the court
did not find mother credible in this regard.
Mother argues
that the trial court unfairly relied on untrue accusations that she made
improper, harmful Internet postings about the case, and such findings resulted
in the trial court entering orders penalizing her for protected speech. We first note that, during the trial, mother,
through her attorney, stipulated not to make any comments on the Internet
regarding the confidential court proceedings.
Mother further acknowledged that personal information about the case
shared with the public could be detrimental to Samantha. Second, there was ample evidence that mother
was responsible for at least one inappropriate Internet posting regarding the
case and grandmother was responsible for other Internet postings of a
derogatory and inappropriate nature, violating the privacy of the court proceedings
and the involved parties. Third, Judge
McCarville’s trial decision does not indicate it was founded on his finding
that mother had made Internet postings, apart from the one she conceded she had
instigated. He did indicate, however,
that he believed mother was responsible in some part for dissemination of the
information on the Internet but did not state that he was penalizing her in any
way for such conduct. Rather, he stated
that, during the past 18 months, the parties were doing better at coparenting
and putting the child’s interests before their own. The court’s reference to the Internet
postings in the statement of decision was merely used to illustrate mother’s
difficulty in coparenting. Furthermore,
there was other evidence upon which the court could have reached its conclusion
mother was having difficulty coparenting.
Mother has not
established that the trial court committed prejudicial error or violated her
rights to freedom of speech by considering the Internet evidence when deciding
father’s petition to determine paternity, child custody and visitation. Such evidence was relevant to protecting the
child’s best interests. “Courts are
given broad authority to supervise and promote the welfare of children. (Fam. Code, § 3022.) . . . Parents are
routinely ordered not to make disparaging comments about the other parent to
the children or in their presence.†(In re
Marriage of Candiotti (1995) 34 Cal.App.4th 718, 725 (Candiotti).)
We recognize that
the court cannot impose an order “actually impinging on a parent’s right to
speak about another adult, outside the presence of the children. Such an order, under these circumstances,
constitutes undue prior restraint of speech.â€
(Candiotti, supra, 34
Cal.App.4th at p. 725.) “While a court’s
power is broad, it is not plenary.†(
But “[t]he court may properly issue orders bearing upon parents’
relationships with their children and with each other.†(Ibid.)
Here, mother has
not cited any actual court order which prohibits mother from speaking about
father or the case outside the presence of Samantha. The court’s orders in the statement of
decision and judgment of paternity do not mention the Internet postings and
there is no evidence that the court penalized mother for them. The court’s statement of decision and
judgment appropriately and lawfully state:
“The parties are restrained from making negative comments about one
another in the immediate presence of the minor.
Both parties shall not discuss the nature of this custody visitation
and/or support litigation in the presence of the minor or in any way involve
the minor in this case unless required to do so by court order.â€
It does appear
that, during the trial, the court made an order, in accordance with the
parties’ stipulation, that they would not post derogatory comments on the
Internet about the case or the parties, and would not disclose confidential
information regarding the case to third parties. Mother has not challenged on appeal this order
and it therefore is not the subject of this appeal. Even if it were challenged, mother forfeited
the objection by not raising it in the trial court (In re Marriage of Olson (1993) 14 Cal.App.4th 1 (
order (People v. Wickersham (1982) 32
Cal.3d 307, 330).
V
CUSTODY ORDER
Mother contends
the trial court erred in substantially changing the temporary custody
arrangement by reducing her timeshare from 60/40 to 50/50. Mother argues the timeshare change was not
supported by substantial evidence and was in retaliation for mother’s 170.1
challenges.
The standard of
appellate review of custody and visitation orders is the deferential abuse of
discretion test. Under this test, an
appellate court must uphold a trial court ruling if it is correct on any basis,
regardless of whether such basis was actually invoked. (Ragghanti
v. Reyes (2004) 123 Cal.App.4th 989, 995-996.) Generally, the overarching standard governing
all child custody proceedings is the best interest of the child. (Montenegro
v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).)
Thus, “[w]hen
there are competing parental claims to custody, the family court must conduct
an adversarial proceeding and ultimately make an award that is in ‘the best
interest of the child.’ (§ 3040.
subd. (b).) The purpose is to maximize the child’s
opportunity to develop into a stable, well-adjusted adult. The child’s welfare is paramount and the
‘overarching concern.’ (
255.) . . . [¶]
Once there has been a final judicial determination regarding the best
interest of a child, the dual goals of judicial economy and protecting stable
custody arrangement preclude a de novo examination. [Citation.]â€
(Keith R. v. Superior Court (
2009) 174 Cal.App.4th 1047, 1053.)
Here,
the trial court made a determination of custody in an adversarial proceeding,
as contemplated under Montenegro. After a contested hearing on the competing
parental claims to custody or visitation, the court made its custody orders,
applying the “best interest of the child†standard. We conclude there was no abuse of discretion
in ordering joint legal and physical custody, with an equal timeshare
arrangement. The court attempted to
order visitation and physical custody consistent with the existing temporary
custody order, which had been in effect for over two years, with a slight
modification to accommodate Samantha starting school in the near future. The court noted that, “To in any way lessen
the amount of time to a significant degree that either [father] or [mother]
shares with the minor would not be in the best interest of the minor and in
fact this Court finds would be detrimental to the minor.â€
Mother argues
that because Judge McCarville was not impartial and was biased against her, he
reduced her time share 80 hours a month.
The timeshare in effect at the time of the trial consisted of Samantha
staying with father from Thursday evening until Sunday morning, and then the
next week, staying with father from Thursday evening until Monday morning. At trial, father requested that visitation
and custody change to alternating weeks, because Samantha would be starting
preschool. Mother proposed a different
schedule that reduced father’s timeshare.
Mother requested that Samantha stay with father from Friday at noon
until Sunday night, so that mother could take Samantha to school every
day.
The permanent
court-ordered timeshare arrangement required the parties to share the minor on
a week-to-week basis with a Sunday exchange at 5:00 p.m., and a mid-week visit,
beginning after school. Holidays were to
be alternated year to year. The court
order also included provisions for vacations and other special occasions. As with the previous temporary timeshare arrangement,
the new permanent timeshare arrangement provided both parents with nearly equal
and alternating time with Samantha so as to allow both parents to maintain a
strong and consistent relationship with their daughter, which was in the best
interest of Samantha. Mother has failed
to show that the court’s custody and visitation orders were unreasonable or
unsupported by substantial evidence.
Mother also has not established that Judge McCarville was biased against
her or impartial.
VI
AUTOMATIC TEMPORARY
RESTRAINING ORDERS
Mother
contends Judge McCarville’s erroneous reliance on the ATROs as a basis for
reducing mother’s timeshare from 60/40 to 50/50, also demonstrated that Judge
McCarville was prejudiced against mother because she had filed 170.1 challenges
against previous judges and was granted a new trial. We disagree.
The
record indicates the circumstances regarding the ATROs were confusing and it
was somewhat unclear as to when and whether mother was subject to the ATROs
when she initially moved to Texas with Samantha. On February 1, 2008, father personally served
mother but mother claimed she was not properly served. Mother appeared at the hearing on February 1,
2008, and the court granted mother’s request to lift the standard ATROs to allow
mother to relocate with Samantha temporarily to Texas, until the next hearing
on February 11, 2008.
Although mother
and Samantha returned to California on February 11, 2008, to attend the hearing
on mother’s motion to relocate, they returned to Texas before the court decided
the matter a few days later. Despite the
court’s ruling denying mother’s motion to relocate, mother remained in Texas
with Samantha. On June 9, 2008, Commissioner
Gassner again denied mother’s request to relocate pending trial and denied a
stay of the UCCJEA. Nevertheless mother remained in Texas with
Samantha. On November 18, 2008, the
parties stipulated and the court ordered that mother was not properly served
with father’s petition until November 18, 2008, and therefore the ATROs were
not in effect until that date. As a
consequence, mother had not violated the ATROs up until that time, but she did
violate the court’s other orders not to relocate with Samantha out of state. Mother testified at the second trial before
Judge McCarville that she did not move back to California with Samantha until
January 2009. She also acknowledged that
from February 2008 until January 2009, there was a court order in effect,
denying mother permission to relocate to Texas with Samantha.
Under these
confusing circumstances, we cannot say that Judge McCarville’s finding that
mother violated the ATROs shows he was biased against mother or impartial. Furthermore, there was no showing that the
timeshare arrangement ordered by Judge McCarville was based on such a finding
or would have been any different had he concluded there was no ATRO violation,
particularly since mother violated similar orders prohibiting her from leaving
California with Samantha.
Mother also
complains that Judge McCarville improperly relied on Judge West’s statement of
decision in formulating the visitation schedule. During the second day of trial, father’s
attorney mentioned Judge West’s statement of decision and mother’s attorney
objected because the prior judgment had been vacated. Judge McCarville agreed that Judge West’s
findings and decision had no effect.
Judge McCarville noted that mother had relied on Judge West’s statement
of decision as “an aid to [mother] in trying to come up with a vacation planâ€
and, therefore, the court would “use it only for that purpose.†Mother’s attorney did not object to this and
therefore forfeited on appeal any objection to the court merely considering the
statement of decision in this regard, but not finding it binding on the
court. (Olson, supra, 14 Cal.App.4th at p. 15; Steven W., supra, 33 Cal.App.4th at p. 1117.)
VII
CREDIBILITY
FINDINGS
Mother
contends that Judge McCarville’s credibility findings were inconsistent with
the evidence and were made with the ulterior motive of impeding mother’s
appeal. Mother notes that Judge
McCarville stated in his statement of decision that “As indicated earlier the
court finds that both parents are attempting to act in the best interest of the
child but with respect to the issues of
credibility the court finds [father] carries the day and is more believable in
the court’s eyes than [mother]. This
decision . . . is based upon review of all the evidence which takes into
account the observations of both the 730 and 733 experts who interviewed and
evaluated both [father] and [mother]. It
also takes into account the court’s observation of both the parties as they
testified in court.†(Italics added.)
Mother argues
that the experts’ findings contradict the court’s credibility findings. But it is within the purview of the trial
court to make its own findings on credibility, and this court must defer to the
factual determinations made by the trial court, if supported by substantial
evidence. (Berniker,
supra, 30 Cal.2d at p. 444; Boeken,
supra, 127 Cal.App.4th at p. 1658.)
Here, there was substantial evidence supporting the trial court’s
credibility findings, even though there was also conflicting evidence
supporting contrary findings. We note
Dr. Miller’s report was written in July 2008, whereas the trial was two and a
half years later, in January 2011, and the court found that parents’
coparenting had improved since then.
Mother cites
conflicting evidence, including father’s various statements as to the number of
hours he was working. But any inconsistencies
between father’s statements to Dr. Miller and Dr. Suiter, and his trial
testimony in the second trial do not demonstrate that Judge McCarville’s
credibility findings were unreasonable.
Judge McCarville explained his basis for finding father more credible
than mother, and the evidence was sufficient to support such a finding. Even though, as mother notes, there was
evidence that could be construed as showing that some of father’s statements
were not believable, there also was substantial evidence supporting Judge
McCarville’s finding that father was generally a credible witness. As Judge McCarville correctly stated, this
court is therefore “stuck with that.†(Berniker,
supra, 30 Cal.2d at p. 444; Boeken,
supra, 127 Cal.App.4th at p. 1658.)
VIII
SHARING COSTS
Mother
contends the trial court abused its discretion in ordering mother to pay Dr.
Suiter $1,750, for half of his psychological evaluation fees.
A. Applicable Law
Section 1032,
subdivision (b) entitles the prevailing party in an action to recover costs as
a matter of right. Section 1033.5,
subdivision (a) lists the items that are allowable as costs under section
1032. Such allowable items include
expert witness fees ordered by the court.
(§ 1033.5, subd. (a)(8); Sanchez
v. Bay Shores Medical Group (1999) 75 Cal.App.4th 946, 948 (
items that are allowable as costs, and specifically prohibits fees of expert
witnesses not ordered by the court, ‘except when expressly authorized by law.’ (Code Civ. Proc., § 1033.5, subd.
(b)(1).)†(Sanchez, at p. 948.)
“When Code of
Civil Procedure section 1033.5 was enacted in 1986, existing case law provided
that the fee of an expert witness appointed by the court under Evidence Code
sections 730[] and 731[] was allowable as a cost, while the fee of an expert
not so appointed was not allowable.
[Citations.] Accordingly, an
expert witness ordered by the court is one who has been appointed by the court
pursuant to Evidence Code section 730 or other statutory authority. In the absence of an order of the trial court
appointing an expert witness, the fees of an expert witness are not recoverable
as costs under Code of Civil Procedure section 1032. [Citation.]
The reason for the distinction is related to the partiality of the
expert witness. ‘“[W]here, as here, an
[expert] is not appointed by the court but is employed by one of the parties,
‘the temptation to act in the interest of such party must be apparent’ and ‘the
court should not require the opposite party to pay for the services thus
rendered.’†[Citations.]’ (Id. at pp. 440-441.)†(Sanchez,
supra, 75 Cal.App.4th at pp. 949-950.)
Under Evidence
Code section 730, courts regularly appoint marriage, family, or child
psychologists to investigate and prepare reports concerning child custody
matters, with the parties often sharing the cost of the court-ordered
evaluations. (See, e.g.,
Cal.App.4th 1218, 1232; Lester v. Lennane
(2000) 84 Cal.App.4th 536, 545.) California
Rules of Court, rule 5.220 makes clear it is the trial court’s duty to
“[d]etermine and allocate between the parties any fees or costs of the
evaluation.†(California Rules of Court,
rule 5.220(d)(1)(D); see also In re
Marriage of Laurenti (2007) 154 Cal.App.4th 395, 403.)
B. Payment of Half of Dr. Suiter’s Psychological
Evaluation Fees
Mother
argues the court did not have authority to order mother to pay half of Dr.
Suiter’s fees for a psychological evaluation ordered under Evidence Code
section 733. Evidence Code section 733
provides: “Nothing contained in this
article shall be deemed or construed to prevent any party to any action from
producing other expert evidence on the same fact or matter mentioned in Section
730; but, where other expert witnesses are called by a party to the action,
calling them and only ordinary witness fees shall be taxed as costs in the
action.†(Italics added.)
In
the instant case, the record indicates there was confusion as to whether Dr.
Suiter was a court-appointed evaluator under Evidence Code section 730 or an
expert under Evidence Code section 733.
This is because in February 2008, the court ordered Dr. Miller to
conduct a psychological evaluation of the parties under Evidence Code section
730. The court received Dr. Miller’s
psychological evaluation report in July 2008.
In September 2009, both parties acknowledged there had been a change in
circumstances warranting a supplemental report by Dr. Miller, and the court
ordered a supplemental evaluation.
Rather than conducting a supplemental evaluation, Dr. Miller assisted
the parties with settlement negotiations, which were not successful. Shortly before the trial, in November 2010,
father filed a motion requesting the parties meet with a section 733 expert for
an evaluation. The November 3, 2010,
minute order states: “The 730 evaluation
will come into evidence and the court’s previous order granting 733
remains. Parties are to cooperate with
Dr. Suiter.â€
Dr. Suiter’s report
suggests he was ordered to conduct an evaluation under section 730. He stated in his report that his
comprehensive psychological evaluation of the parties was provided at the
court’s request. He noted that Dr.
Miller conducted an initial 730 evaluation of the parties. The parties later met with Dr. Miller a
second time. “With the second meeting
with Dr. Miller there was apparently an attempt to mediate their differences as
it was then concluded there was a conflict raised as the evaluator had conducted
the evaluation and was then acting in a mediator role.†This may have been why Dr. Suiter, rather
than Dr. Miller, was appointed to conduct another psychological evaluation
shortly before the trial.
Dr.
Suiter testified that he believed when he conducted the psychological
evaluation that the court had appointed him to conduct a 730 evaluation. He therefore performed the evaluation as
such, rather than as a 733 evaluation.
The court informed Dr. Suiter during the trial that the evaluation was a
733 evaluation. Dr. Suiter said he had
not been aware of this. His office told
him it was a 730 evaluation. Dr. Suiter
noted: “But it had a unique
characteristic in that Dr. Miller had conducted the original evaluation
approximately two, two and a half years ago.
The parties had then returned to see her for an updated evaluation. [¶]
But she had attempted to assist them with their dispute and entered into
some – I wasn’t sure if it was one or more sessions of mediation – and there
was then an objection that she couldn’t be both an evaluator and a
mediator. And so she wasn’t able to
complete the updated evaluation and that, in turn, then my understanding was
that I was appointed to conduct the updated evaluation.â€
In
the court’s statement of decision and judgment of paternity, Judge McCarville
stated that the court appointed Dr. Suiter pursuant to Evidence Code section
733. The court further stated that,
“With respect to the allocation of monies for both the 730 and 733 reports
[mother] is ordered to reimburse [father] as and for Dr. Miller’s report the
sum of $2,400. And as to Dr. Suiter’s
report the sum of $1,750.â€
Although the
circumstances were confusing as to whether Dr. Suiter’s evaluation was intended
to be a 730 or 733 evaluation, it is clear from the trial court’s statement of
decision and judgment of paternity that the court found it had ordered Dr.
Suiter to conduct a 733 evaluation.
Since there was substantial evidence supporting the court’s finding that
the court ordered Dr. Suiter appointed to conduct a 733 evaluation, we must
uphold that finding. (Berniker,
supra, 30 Cal.2d at p. 444; Boeken,
supra, 127 Cal.App.4th at p. 1658.)
We therefore conclude the trial court erred in ordering mother to pay
one-half of the cost of Dr. Suiter’s psychological evaluation. (Sanchez,
supra, 75 Cal.App.4th at pp. 949-950; Evid. Code, § 733.)
IX
DISPOSITION
The
trial court order contained in the judgment of paternity entered on May 5,
2011, stating that “Respondent is ordered to reimburse Petitioner†“as to Dr.
Suiter’s report the sum of $1,750,†is ordered vacated and stricken from the
judgment and statement of decision. In
all other regards the judgment is affirmed.
The parties are ordered to pay their own costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We
concur:
RAMIREZ
P. J.
RICHLI
J.
title=""> [1] Unless otherwise noted, all statutory
references are to the Code of Civil Procedure.
name="_ftn2" title=""> [2]
Mother asks this court to note that the court reporter omitted a
statement by the court at the end of the trial, noting that “After this case
People will think twice about posting on the internet.†Since the statement is not in the record on
appeal, this court will not consider it.
(Protect Our Water v. County of
Merced (2003) 110 Cal.App.4th 362, 364; Rule of Court, rule 8.155(c).) Also, since mother has not followed
appropriate procedural requisites, we deny mother’s request in her appellate
opening brief to order the court reporter to provide the audio tape of the
proceeding. (Rule of Court, rule
8.155(c).) Mother has neither cited any
authority supporting such an order nor has she established that such an order
would result in producing any relevant, admissible evidence that would have any
impact on the outcome of this appeal.
