Williams
Filed 6/20/12 Williams v. Williams CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
CHERI WILLIAMS,
Plaintiff and Appellant,
v.
STEPHEN WILLIAMS,
Defendant and Respondent.
F061623
(Super.
Ct. No. 0618565)
APPEAL from
a judgment of the Superior Court
of
County. Timothy A.
Kams, Judge.
Tritt &
Tritt and James F. Tritt for Plaintiff and Appellant.
Nuttall
Coleman & Wilson and Roger D. Wilson for Defendant and Respondent.
-ooOoo-
Appellant Cheri Williams (Mother)
filed an order to show cause seeking modification of the existing
court mediator prepared a proposed order.
However, following a contested hearing, the court left the existing
order in place.
Mother challenges the trial court’s
refusal to adopt the proposed order.
According to Mother, the trial court denied her a fair trial by: failing
to enforce a local rule requiring that any objections to the mediator’s
proposed order be filed in writing; failing to consider the mediator’s report
and notes in support of the proposed order; and making erroneous evidentiary
rulings.
We conclude that the trial court
did not err in refusing to adopt the proposed order. Accordingly, the judgment is affirmed.
Mother and respondent, Stephen
Williams (Father), were divorced in 1999.
The parties have two minor children, Ashley and Brandon.
Between 2003 and 2009, the parties
had joint legal and physical custody of the children. In September 2009, Mother requested
arrested for driving under the influence of alcohol in July 2009. Ashley was in the vehicle at the time of the
arrest.
The matter went to mediation. The mediator, Kimberly Day, recommended that
Mother have sole legal and physical custody of the children and that Father
have supervised visits. Father was also
to undergo drug and alcohol testing if requested by Mother and receive mental
health and substance abuse treatment. In
September 2009, the court adopted Day’s recommendations with slight
modifications as the temporary order of the court pending a hearing.
On January 4, 2010, the parties filed a stipulation and order
regarding child custody and visitation.
The order provided that Mother would have primary custody and that the
children would reside with Father on alternate weekends. Father was to abstain from the use of alcohol
24 hours prior to any physical contact with the children and was to voluntarily
submit to a urinalysis test by 5:00 p.m.
on the Monday following his visitation with the children. Father was to pay for these tests until March 31, 2010, after which any
testing was to be arranged and paid for by Mother. Either the failure to test or a positive
result would cause all of Father’s unsupervised visits to be suspended. Father was to continue to participate in
counseling, but was no longer required to attend Alcoholics Anonymous meetings.
In April 2010, Mother filed an
order to show cause requesting modification of the January 4, 2010, order.
Mother alleged that Father was continuing to drink and had failed to
test for alcohol as required by the order.
Father filed a response asserting that he had not breached the January 4, 2010, stipulation and
order.
The parties and their children were
ordered to mediation with Joan St. Louis.
Thereafter, St. Louis
prepared a proposed order. St.
Louis’s recommendations included that Father: be
limited to supervised visits with the children; complete an inpatient substance
abuse program; immediately join a Twelve Steps Alcoholics Anonymous program;
and participate in counseling.
At an August 10, 2010, hearing on Mother’s order to show cause
before Judge Allen-Hill, Father requested a contested hearing on St.
Louis’s proposed order. When asked if there was a specific paragraph
in the proposed order that he disagreed with, Father responded that he
disagreed with paragraphs 2.01 (sole legal custody to Mother), 3.01 (sole
physical custody to Mother), 3.02 (supervised visits for Father), 4.01
(supervised holiday visits for Father), 5.05 (alcohol testing of father as
directed by Mother), 7.01 (inpatient substance abuse program for Father), 7.02
(Father to participate in 12-step program) and 7.03 (mental health counseling
for the children).
The court stated the matter would
be assigned by master calendar and ordered the parties to appear on October 6
for assignment as a long cause hearing.
The court further ordered the parties to serve their witness lists and
“objections for trial†by September 24.
Father was not represented by counsel at this time.
Father retained counsel and filed a
substitution of attorney on October 5.
When the parties appeared as ordered on October 6, Father’s counsel
requested a continuance. Mother’s
counsel objected stating that they were prepared for trial. Father’s request was denied. Mother had timely filed a witness list and
objections for trial but Father had not.
The matter was assigned for a long
cause hearing and transferred to Judge Kams on October 7. Father’s counsel sought to submit in limine
motions and a trial brief to which Mother objected based on Father’s failure to
comply with Judge Allen-Hill’s order to exchange witness lists and written
objections for trial. Mother argued that
Father was not entitled to a trial on the issues raised in Father’s responsive
declaration because he had failed to file written objections to the proposed
order as required by Judge Allen-Hill and Superior Court of Fresno County Local
Rules, rule
title="">[1] 5.5.7.
Rather, Mother asserted, the proposed order should be adopted. Mother further argued that Father should be
precluded from presenting any witnesses.
The court ruled that, because
Father had not filed a witness list, Father could only call himself and Mother
as witnesses during his case-in-chief.
However, the court refused to deny Father a trial on the issues despite
his failure to file written objections for trial. The court reasoned that Mother was made aware
of Father’s objections to the mediator’s proposed order through Father’s
responsive declaration and his oral objections to specific paragraphs at the
earlier August 2010 hearing.
Pursuant to the court’s order,
Father presented his case through his and Mother’s testimony. Father described the January 4, 2010, stipulation and order and
detailed his compliance with all of its terms.
He disputed Mother’s allegations that he had failed or refused to
test. Father acknowledged that he had
been late testing on one Monday following the visitation with the
children. He explained that his normal
testing facility was closed that afternoon and that by the time he got to an
alternate site he was 15 minutes late.
To present her case, Mother called
herself, Father, Father’s ex-wife Wendy Williams, Wendy’s boyfriend Joshua
Hatton, and the children’s counselor Donna Van Pelt. Mother did not call the mediators to testify. When the mediators were contacted by the
court clerk, it was discovered that they were not under subpoena and that St.
Louis was not available.
Mother testified that she entered
the January 4, 2010,
stipulation based on Father’s assurances that he was no longer drinking. When Mother found out that this was not true,
she felt that she had entered the agreement based on false pretenses. Mother testified that she does not believe
that the post visitation testing is sufficient to keep the children safe.
Mother called Joshua Hatton to testify
regarding his surveillance of Father.
One afternoon Hatton followed Father.
He saw Father leave a liquor store carrying a 12-pack of beer, drive to
his home, and then drive to an apartment complex. Hatton later saw Father and an unidentified
woman standing on a balcony holding bottles of beer. However, Hatton acknowledged that the day he
followed Father was not one of the days that Father had visitation with the
children.
Wendy Williams, Father’s most
recent spouse, testified that she believed Father had a drinking problem and
that he was very depressed after his July 2009 arrest. Wendy left Father in August 2009 and filed
for divorce.
Van Pelt, a marriage and
treating the children for approximately four months. She expressed the opinion that Father should
only have supervised visitation.
At the conclusion of the testimony,
Mother’s counsel renewed her objection to the trial and moved for a nonsuit
based on Father’s failure to file the objections for trial as required by rule
5.5.7. The court noted that Mother was
asking the court to essentially disregard the trial, which the court refused to
do. The court also observed that the
local rules allow the court latitude.
Accordingly, the court denied Mother’s motion.
The court next considered whether
it should consider the mediator’s report and recommendation in making its
ruling. The court decided to consider
the report but give it little weight because the mediator had not been present
for cross-examination.
Following closing arguments, the
court pronounced its ruling. The court
concluded that the current order was a good one and left it in place with minor
modifications. The court noted that the
January 2010 order addressed Father’s drinking around the children and that
there was no evidence demonstrating that Father had not complied with that
order.
I.
THE TRIAL COURT WAS NOT REQUIRED TO ADOPT THE PROPOSED
ORDER UNDER RULE 5.5.7.
As noted
above, when setting the contested hearing on the proposed order, Judge
Allen-Hill ordered the parties to file witness lists and “objections for
trial.†Mother contends that Father’s
failure to file written “objections for trial†violated rule 5.5.7 and thus the
court was required to adopt the proposed order.
According to Mother, the absence of written notice of Father’s
objections to specific paragraphs in the proposed order denied her due process
and resulted in “trial by ambush.â€
Rule 5.5.7
covers the situation where a party objects to a Family Court Services proposed
order for child custody and visitation.
For post-court mediation proposed orders, the objecting party must file
a written objection no later than 20 days after the date the proposed order is
mailed. If the 20-day period expires
without objection, “the proposed order may
be signed and filed as an order of the court.â€
(Rule 5.5.7 B, italics added.)
The objections must propose alternate language to each paragraph
objected to and give reasons for the suggested change. Further, “[a]bsent extraordinary
circumstances, only those specific sections of the proposed order to which an
objection is made may be considered by the court.†(Rule 5.5.7 B.4.b.)
Rule 5.1.1 sets forth various
actions the court may take when a party fails to comply with the Fresno
County family law rules. These actions include making an order based
solely on the pleadings before the court, making or vacating orders as
appropriate under the circumstances, continuing the matter, awarding attorney
fees, and removing the matter from calendar.
Nevertheless, the family law rules “shall not prevent the exercise of
judicial discretion whenever appropriate.â€
(Rule 5.1.1 F.)
Contrary to
Mother’s position, rule 5.5.7 does not require the court to adopt the proposed
order if written objections are not filed.
Rather, the court may adopt
the order. Thus, whether to adopt the
order lies in the court’s discretion.
Further, under rule 5.1.1, the court has discretion regarding the action
it takes in response to a party’s failure to comply with the rules. Therefore, the issue is whether the court
abused its discretion when it proceeded with the contested hearing. (Cf. Moyal
v. Lanphear (1989) 208 Cal.App.3d 491, 498.)
Judicial
discretion implies the absence of arbitrary determination, capricious
disposition or whimsical thinking. (
Cal.App.4th 1242, 1246.) Accordingly, a
court will not be found to have abused its discretion unless it exceeded the
bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here,
although Father did not file written objections to the proposed order in the
form required by rule 5.5.7, he orally specified the paragraphs that he
objected to in the proposed order, by number, approximately two months before
the contested hearing. Thus, the court
and the parties were made aware of the issues to be resolved at the
hearing. Under these circumstances, the
court did not exceed the bounds of reason by proceeding with the hearing. Trial courts are authorized to impose
sanctions for violation of local rules.
Nevertheless, courts should ordinarily avoid crippling a litigant’s
ability to present his or her case based on a local rule violation. (Elkins
v. Superior Court (2007) 41 Cal.4th 1337, 1364.) Such rigid rule following is not consistent
with the strong policy favoring the disposition of cases on their merits and a
court’s function to see that justice is done.
(Ibid.)
Mother
further contends that she was denied due process because she did not receive
“precise†notice of the issues to be tried that she would have received had
Father filed written objections.
According to Mother, she was entitled to know in advance of trial what
specific paragraphs were to be targeted by Father and the basis for each
challenge.
Due process
requires notice reasonably calculated under all the circumstances to apprise
interested parties of the pendency of the action and to afford them an
opportunity to present their objections.
(Mullane v. Central Hanover Tr.
Co. (1950) 339 U.S. 306, 314.) The
purpose of such notice is to inform the affected individual of, and permit
adequate preparation for, an impending hearing.
(K.G. v. Meredith (2012) 204
Cal.App.4th 164, 181.) Thus, the notice
must be of such nature as to reasonably convey the required information and
afford a reasonable time for those interested to make their appearance. (Mullane,
supra, at p. 314.) If these
conditions are reasonably met, the constitutional requirements are
satisfied. (Id. at pp. 314-315.)
Here,
Mother was apprised of the specific paragraphs that Father objected to in the
proposed order. Moreover, in his
declaration in response to Mother’s order to show cause, Father answered
Mother’s accusations and requested 50 percent custody of the children. Under these circumstances, Mother had
reasonable notice of the issues to be tried.
This was not a “trial by ambush.â€
Accordingly, Mother was not denied due process.
II.
THE TRIAL COURT DID NOT ERR WHEN IT FAILED TO CONSIDER
THE MEDIATOR’S NOTES.
In making
its ruling, the trial court considered the report and recommendation prepared
by the mediator, St. Louis. In a child
custody case, such a report “is ‘evidence to be weighed with all other evidence
….’†(In re Marriage of Slayton & Biggums-Slayton (2001) 86
Cal.App.4th 653, 659.) Mother argues
that the trial court should have also considered St. Louis’s supporting notes
and its failure to do so was error.
According to Mother, it was necessary for the court to consider St.
Louis’s reasons and the factual basis for her recommendation in order for that
recommendation to be given sufficient weight.
However,
Mother did not call St. Louis to testify at the hearing. Therefore, Father was denied the opportunity
to cross-examine St. Louis, an adverse witness, to explore any possible
deficiencies in St. Louis’s understanding of the facts or her conclusions. (Cf. In
re Marriage of Slayton & Biggums-Slayton, supra, 86 Cal.App.4th at p.
659.) Accordingly, the court properly
excluded St. Louis’s notes. Admission of
those notes would have denied Father due process. (Wheeler
v. Wheeler (1973) 34 Cal.App.3d 239, 242.)
III.
EVIDENTIARY RULINGS DID NOT DENY MOTHER A FAIR TRIAL.
Mother
argues that certain of the trial court’s evidentiary rulings contributed to a
distorted fact pattern and an unfair
trial. Mother contends the trial
court made the following erroneous rulings:
1. When Father was asked whether the children
told him they did not feel comfortable discussing their concerns with a
previous counselor, Ms. Capalare, an objection was sustained for hearsay.
2. When Father was asked if he was present when
Mother told her attorney she had concerns about signing the 2010 stipulation
and order, an objection was sustained for hearsay.
3. When Mother was asked whether she had
received reports of Father drinking, from anyone, an objection was sustained
for hearsay.
4. An objection was sustained on the ground that
the answer--that Mother wanted Father to test before taking Brandon to an event
because Father admitted he had been drinking and driving with Brandon in the
car in the past--was beyond the scope of the question of why she called him and
requested that he test.
5.
When the children’s therapist, Van Pelt, was asked whether the children
had expressed dissatisfaction with their prior therapist, Capalare, an
objection on the ground of relevance was sustained.
6. When Van Pelt was asked about alcoholism,
objections were sustained on the ground of the subject being beyond her
expertise.
7. Objections on the grounds of relevance were
sustained when Mother was asked whether Father had served alcohol at Ashley’s
13th birthday in 2008 and when Wendy Williams was asked if Stephen had admitted
to her in the fall of 2009 that he could not stop drinking.
Other than
reciting these alleged evidentiary errors, Mother’s arguments are cursory. With the exception of one reference to
Evidence Code section 210 (relevance), Mother cites no authority. Generally, an appellate court does not
consider contentions that are unsupported by authority. (People
v. Crittenden (1994) 9 Cal.4th 83, 153.)
Moreover, the objected to hearsay
was in fact hearsay. Contrary to
Mother’s position, the hearsay was not relevant to the various actors’ states
of mind or for impeachment. Regarding
relevance, the court was only interested in whether Father had complied with
the January 2010 stipulation and order.
Accordingly, testimony pertaining to events that pre-dated that 2010
stipulation and order was properly excluded as irrelevant.
In sum, Mother has not met her
burden of demonstrating prejudicial evidentiary error.
The order is affirmed. Costs on appeal are awarded to respondent.
_____________________
Franson, J.
WE CONCUR:
_____________________
Gomes, Acting P.J.
_____________________
Detjen, J.
name="_ftn1" title="">[1] All
further rule references are to Superior Court of Fresno County, Local Rules.
