Noland v. Sweet

Filed 8/25/08 Noland v. Sweet CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. William Silveira, Jr., Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)

Betty E. Blanks for Defendant and Appellant.

David F. Candelaria for Plaintiff and Respondent.

-ooOoo-

In this child custody dispute, appellant Kelly Sweet (Sweet) was initially granted joint physical custody of her daughter, Sophie, but that arrangement was modified by the trial court due in part to evidence of Sweets misuse of alcohol. The modified custody order gave the father, respondent Karl Noland (Noland), sole physical custody of Sophie with Sweet having supervised visitation through Family Services of Tulare County (Family Services) at a location known as CHAT House. Later, Sweet requested that the trial court allow visitation to occur in her own home under the supervision of Sophies grandmother. The trial court denied Sweets request. The order indicated the matter could be placed back on the courts calendar if Sweet successfully completed therapy, co-parenting counseling and continued in her alcohol treatment program. Sweet appeals from that order, contending the trial court abused its discretion by failing to take the best interest of the child into consideration. We conclude that no abuse of discretion has been shown and accordingly affirm the trial courts order.

FACTS AND PROCEDURAL BACKGROUND

On March 8, 2008, Noland filed his petition to establish parental relationship regarding Sophie, his five-month-old daughter. The petition sought joint legal and joint physical custody with Sweet, Sophies mother. Nolands declaration requested that he and Sweet be sent to mediation to work out a shared custody parenting plan in [Sophies] best interest. Noland and Sweet stipulated that Noland was the biological father and Sweet the biological mother of Sophie. On March 29, 2006, the trial court issued a temporary custody order to remain in effect pending a contested hearing scheduled for May 18, 2006. The temporary custody order provided that Sophie would stay with Sweet, except that on alternate weekends and two evenings each week Noland would have custodial time with Sophie. The parties were ordered to meet and confer by May 5, 2006, and if a further court hearing was necessary, the parties agreed to first go through mediation.

No agreement was reached by the parties regarding a custody plan and thus a contested hearing became necessary. On May 11, 2006, the rescheduled date of the contested hearing, each party claimed that the other was being uncooperative or engaging in harassment, and the trial court ordered both parties to attend co-parenting classes at Family Services. Nolands attorney specifically requested an order that Sweet not use alcohol during her custodial time and Sweets attorney stipulated to such order. All other issues were continued to a further hearing date of May 23, 2006.

On behalf of Noland, several declarations were filed prior to the continued hearing date asserting that Sweet had been abusing alcohol and that she had exhibited uncooperative, belligerent and irrational behavior such as making repeated harassing phone calls to Noland, his mother, his girlfriend and his employer.

On May 23, 2006, after completion of the contested hearing, the trial court issued its findings and order granting the parties joint legal and joint physical custody of Sophie. The order provided that the custodial arrangements would be according to the following parenting plan: Nolands custodial time was increased to Thursday at 6:00 p.m. to Sunday at 6:00 p.m. on the first, second, fourth and fifth weekends of each month, as well as Wednesday through Friday on the third week of each month. Sweet would have Sophie the remainder of the time, including the third weekend of each month. The exchange of Sophie would take place at the home of the paternal grandmother. Again, Sweet was ordered not to use alcohol during her custodial time.

Thereafter, various requests were made by each side to modify the trial courts custody order. At a hearing on August 24, 2006, Sweet was again ordered to immediately enroll in the co-parenting classes which were ordered on May 11, 2006, as she had not yet done so.

On October 13, 2006, Noland filed an order to show cause requesting a substantial modification of the custody order. Noland asserted that on October 6, 2006, Sweet showed up drunk at the home of Nolands mother during Nolands custodial time, forced her way into the house and attempted to take Sophie. Nolands mother called the police, but Sweet left before the police arrived. A short while later, Sweet was arrested for driving under the influence of alcohol. Noland further asserted that [d]espite [Sweets] repeated denials, I believe that she has a significant drinking problem and that [Sophie] is not safe in her care. Sweet admitted that she was arrested for a DUI, but denied that she went to Nolands mothers home or attempted to take Sophie. Following the hearing on November 2, 2006, the trial court ordered that Noland shall have physical custody of Sophie, and that Sweet shall have supervised visitation of Sophie at the CHAT House. Furthermore, Sweet was ordered to submit to a drug and alcohol assessment and to immediately register for a parental assessment, with reports regarding Sweets assessments to be provided to the trial court prior to the next hearing.

On December 14, 2006, Family Services filed a letter with the trial court dated December 12, 2006, advising that Sweet had not completed the intake process for the co-parenting services. On February 1, 2007, Family Services filed a Co-Parenting Progress Report with the trial court, noting that Sweet had enrolled and attended the orientation on January 24, 2007, and that appointments to commence co-parenting were pending. On February 20, 2007, Family Services reported that the first co-parenting session was scheduled to be held on February 28, 2007.

On March 29, 2007, Sweet filed an order to show cause to modify her visitation with a hearing date set for April 18, 2007. Sweet requested that the trial court permit supervised visitation on a more frequent basis. Sweet stated in her supporting declaration that she had begun attending the AA meetings and scheduled an appointment with Dr. Geshuri regarding treatment. Attached to Sweets moving papers was a copy of the results of the alcohol assessment that was performed by Pat Hurt, LCSW, on February 16, 2007. Ms. Hurts assessment noted that Sweets blood-alcohol level on the date of Sweets DUI arrest on October 6, 2006, had been 0.15 percent, based on records provided by Sweet. One of the tests performed by Ms. Hurt was suggestive of alcohol abuse. Ms. Hurt also noted that Ms. Sweet phoned my office on 2-22-07 [and] appeared to have an altered demeanor on the phone, than in my office on the date of the interview. Ms. Hurts assessment recommended that Sweet be referred to: [] 1.  alcohol education and/or treatment, i.e., outpatient, emphasis on perinatal substance abuse recovery; [] 2.  minimum of 2 AA/NA meetings per week; [] 3.  counseling to resolve issues related to stressors, separation from her infant and custody issues; [and ] 4.  frequent visits with infant to avoid/reduce separation anxiety for child and mother.

During the hearing on April 18, 2007, Nolands counsel argued that Sweet had not visited Sophie at CHAT House during the past six months. Sweets attorney expressed that his client was dissatisfied with the CHAT House and that there was some time lag involved at that facility. It was requested by Sweets attorney that the supervised visitation occur with Sweets mother being the supervisor. The parties were sent to further mediation, but were unable to reach any agreement. The matter was set for contested hearing on June 28, 2007. Meanwhile, the trial court acknowledged it had reviewed the alcohol assessment and ordered Sweet to immediately enroll in individual counseling to resolve issues relating to separation and stressors, to immediately enroll in alcohol outpatient treatment and to attend two AA meetings per week. The trial court authorized Sweet to have therapeutic supervised visits through Family Services.

On June 4, 2007, the trial court received a letter from Family Services stating that Sweet informed Family Services she was attending individual counseling elsewhere.

On June 5, 2007, Sweet filed an order to show cause requesting a modification of the April 18, 2007 order. A hearing date of July 11, 2007 was set. Specifically, she sought reasonable and continuous visitation with [Sweets] mother supervising. In her supporting declaration, she indicated she could not afford the individual counseling at Family Services (at $90 per session), particularly when therapeutic reunification with Family Services would also cost $90 per session, which she would participate in once a week. The total counseling expense would come to $540 per month, which she could not afford. Sweet said she was able to enter the alcohol education and counseling program at Sierra Recovery Services, which she enrolled in on April 23, 2007. The cost was $40 per week and she paid for weekly drug/alcohol testing at a cost of $15 per week, which added up to $55 per week. Sweet also stated in her declaration that she had been attending AA meetings twice per week for the past month.

Attached to Sweets declaration was a letter dated May 22, 2007, from the program director at Sierra Recovery Services, Sherry Ford, verifying Sweets treatment there since April 24, 2007. While aware of the DUI, the particular assessment performed at Sierra Recovery Services did not evidence alcohol abuse or dependency. Ms. Ford recommended an approach focusing on education regarding drinking and driving and on stress reduction. It also indicated that Sweet was testing weekly on a random basis and [was] in full compliance with treatment requirements.

On June 28, 2007, the trial court did not address the matters raised by Sweet in her moving papers filed on June 5, 2007, because they pertained to a hearing set for July 11, 2007. On July 11, 2007, the matter was taken off calendar as neither party appeared.

At the contested hearing on June 28, 2007, a contested mediation report was received by the trial court. The trial court expressed significant concern that Sweet had walked out of the first co-parenting class and was apparently unwilling to cooperate in the co-parenting program. The trial courts order did not change the custody arrangement previously ordered -- i.e., physical custody remained with Noland, subject to Sweets right of reasonable visitation. Sweets request for supervised visitation with the maternal grandmother acting as supervisor was denied. Beyond this, the June 28, 2007 order provided for further counseling to address Sweets inability to cooperate in co-parenting, as follows:

The Court believes that [Sweet] needs to involve herself in counseling with a therapist with a Masters or LCSW or MFT to address the issues that limit her ability to address issues in co-parenting. The counselor must submit documentation demonstrating knowledge of the co-parenting counseling process at Family Services. If [Sierra Recovery Services] has a therapist meeting these qualifications, this is acceptable. Visitation shall take place at CHAT house at [Sweets] sole expense. The order for therapeutic reunification is set aside. [] [] Once the therapist believes that [Sweet] is able to enter co-parenting in a constructive manner, counsel shall be provided a report of [Sweets] progress and counsel shall meet and confer prior to putting the matter back on calendar. [] [Sweet] shall sign a release with her alcohol treatment program so that monthly reports are sent to the parties[] respective counsel.

As the trial court further explained at the hearing, it had previously changed the custody arrangements based on evidence of Sweets alcohol abuse. On the question of Sweets current visitation, the trial court indicated it was not going to modify the current arrangements unless or until Sweet showed an ability to handle co-parenting issues through attendance and participation in the co-parenting program at Family Services, but the trial court was not going to re-refer her to said co-parenting program until she first addressed through a therapist her present inability to cooperate in the co-parenting process. Once the trial court received a letter from the therapist confirming that Sweet was able to proceed with co-parenting, the trial court would then be willing to re-refer Sweet to co-parenting classes and would consider further modification of the visitation arrangements. And, as the order itself made clear, while these steps were being taken by Sweet, the parties counsel would receive regular reports concerning her alcohol treatment program as well.

Sweet timely appealed from the June 28, 2007 order.

DISCUSSION

I. Trial Courts Order is Appealable

Noland contends the June 28, 2007 order is not appealable because it is merely interim or temporary in nature. Sweet in turn argues the order is appealable because, even though she can theoretically pursue further relief if she completes an obstacle course of counseling and therapy, for all intents and purposes there are no matters left to be decided. In any event, Sweet argues that the order is appealable under the exception to the final judgment rule concerning collateral issues. As discussed below, we conclude that the order is appealable.

The right to appeal is statutory, and a judgment or order is not appealable unless made so by statute. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365-1366.) Under Code of Civil Procedure section 904.1, an appeal may be taken from a judgment that is not interlocutory (subd. (a)(1)), an order made after such an appealable judgment (subd. (a)(2)), or an order made appealable by the provisions of the Probate Code or the Family Code (subd. (a)(10)).

As explained in Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377 (Enrique M.): The Family Code contains no express provision governing appeals of child custody orders, except for those to enforce an order for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction. [Citation.] Thus, the right to appeal a child custody determination is generally limited to final judgments and orders made after final judgments. [Citations.] In EnriqueM., a custody order was entered by the trial court after a contested hearing. Later, one parent sought to modify the parenting schedule in certain respects. The trial court denied the requested modification and the parent who sought the modification appealed from that order. (Id. at p. 1376.) The Court of Appeal in Enrique M. concluded the order was appealable as an order made after a judgment (id. at pp. 1377-1378), referring to the treatment given to such orders by the Supreme Court: Similarly, in [In re Marriage ofLaMusga (2004)] 32 Cal.4th 1072, the Supreme Court considered an appeal taken from an order modifying an order entered after a contested hearing on custody. The La[M]usga court rejected the argument of one of the parents that there had not been a final judicial custody determination, reasoning that [t]he [trial] courts December 23, 1996, Order After Hearing, granting joint legal custody to the parties and sole primary physical custody to the mother, constituted a final judicial custody determination . [Citation.] (Id. at p. 1377.)

In the present case, Nolands pleading sought a judicial determination of custody issues, the trial court issued temporary orders pending the contested hearing, and a contested hearing was held on May 23, 2006. Following that hearing, the trial court issued its order determining the custody and visitation issues, granting joint legal custody and joint physical custody to be carried out within the confines of the parenting plan set forth in the courts order. We conclude the May 23, 2006 order constituted an appealable judgment as to custody and visitation. Later, on November 2, 2006, a modification of that custody judgment occurred in which Noland was granted physical custody and Sweet was granted reasonable visitation. When Sweet thereafter requested a modification of the terms of her visitation, which request was denied on June 28, 2007, the order denying her request was appealable as an order after judgment. (See Enrique M., supra, 121 Cal.App.4th at p. 1378; In re Marriage ofLaMusga, supra, 32 Cal.4th at pp. 1088-1089, fn. 2.)

In so holding, we recognize that not all orders after judgment are appealable. For example, if a postjudgment order is not itself a final determination but is merely preliminary to some later proceeding or to a later judgment, at which time the same issues will become ripe for appeal, the postjudgment order is not appealable. (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1524-1525, relying on Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 652-653.) The instant postjudgment order, however, does not appear to be preliminary to a later hearing or judgment. No trial or further proceedings are referred to in the order. Instead, the order strongly reaffirms the existing custody and visitation arrangements and even places substantial preconditions on Sweets ability to apply for a modification thereof. We do not believe the mere possibility that Sweet might, at some indefinite time in the future, apply for a modification if she is able to attain the counseling and therapy objectives interposed by the trial court, reduces the nature of the order to a preliminary or provisional one. We therefore find the order to be appealable as an order after a judgment. (Code Civ. Proc.,  904.1, subd. (a)(2).)

The case relied on by Noland, Lester v. Lennane (2000) 84 Cal.App.4th 536, is clearly distinguishable. That case held that [a] temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial. [Citation.] (Id. at p. 559, italics added.) Here, we are not dealing with a temporary custody order that was provisionally in effect pending a future contested hearing or trial. Rather, as discussed above, the June 28, 2007 order was an order after judgment.^[1]

II. No Abuse of Discretion Shown

In a request by one parent to modify the details of the parenting schedule or visitation arrangements, which would leave the existing custody order otherwise the same, the trial court applies the best interest of the child standard. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077-1080 [best interest of child standard, not changed circumstances rule, is applicable]; Enrique M., supra, 121 Cal.App.4th at pp. 1378-1382 [same].) Sweet contends the trial court failed to consider the best interest of Sophie.

The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the best interest of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.] (In re Marriage ofBurgess (1996) 13 Cal.4th 25, 32.) The test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but whether the trial court could reasonably have concluded that the order in question advanced the best interest of the child. [Citation.] (Lester v. Lennane, supra, 84 Cal.App.4th at p. 595.)

In regard to our review in this matter, we also note there was nothing in the record to demonstrate that Sweet requested a statement of decision in the trial court. 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.) Parties wishing to avoid implied findings in favor of the judgment must obtain a statement of decision under Code of Civil Procedure sections 632 and 634. (In re Marriage of Arceneaux, supra, at pp. 1133-1134; see also Fam. Code,  3022.3 [providing for statement of decision on custody determinations].) Here, as there was no statement of decision, implied findings will be made in support of the order.

We find no abuse of discretion. The record reflects that the trial court was concerned with Sweets abuse of alcohol and her pattern of uncooperative behavior with respect to co-parenting, which concerns were supported by evidence presented to the court. These issues were reasonably related to Sweets ability to care for Sophie during her visitation and to responsibly handle co-parenting obligations. It is apparent from these considerations that the trial court could have reasonably concluded its order was in the best interest of the child. Moreover, there was nothing in the record to indicate otherwise. We conclude that Sweet has failed to demonstrate an abuse of discretion.

DISPOSITION

The order of the trial court is affirmed. Costs on appeal are awarded to Noland.

_____________________

Kane, J.

WE CONCUR:

_____________________

Cornell, Acting P.J.

_____________________

Dawson, J.

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^[1] In view of our conclusion that the order is appealable as an order after judgment, it is unnecessary to address Sweets argument that the order falls under the collateral order exception to the one final judgment rule.