Marriage of Honda
Filed 6/3/13 Marriage of Honda CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
In re the Marriage of STEPHEN and VANESSA HONDA.
STEPHEN HONDA,
Appellant,
v.
VANESSA HONDA,
Respondent.
G046315
(Super. Ct.
No. 11D003856)
O P I N I O
N
Appeal from orders of
the Superior Court
of
County, Kim R. Hubbard, Judge.
Affirmed.
Stephen Honda, in pro.
per., for Appellant.
Wayne A. Siggard for
Respondent.
Following
a hearing, the trial court granted a five-year restraining order prohibiting
Stephen Honda from coming within 100 yards of the person, home, vehicle, job,
children or children’s school, and parakeet of his former wife, Vanessa
Honda. The court also ordered Stephen
to attend and complete a 52-week batterer intervention program, and granted
custody of the couple’s three minor children to Vanessa with restrictions on
Stephen’s visitation.
Stephen challenges the
sufficiency of the evidence to support the trial court’s order granting
Vanessa’s request for a restraining order and its child custody
determination. He also claims the trial
court exhibited bias against him during the hearing and denied him
reasons stated below and affirm the trial court’s orders.
FACTS AND PROCEDURAL HISTORY
Sometime before April
2011, Vanessa took the couple’s three children from the family home and went to
a battered women’s shelter. She filed an
application for a domestic violence temporary
restraining order against Stephen.
name="_ftnref2" title="">[2] The trial court granted the request and set
the matter for a hearing to be held later that month. Stephen, who was then represented by Ronald
B. Funk, filed an answer, a 35-page affidavit in support of his answer, and 48
pages of exhibits. Stephen alleged
Vanessa provided inaccurate and falsified records and violated the temporary
restraining order by contacting him.
Stephen provided a lengthy recitation of his version of the events
leading up to Vanessa’s departure, which generally denied any allegations of
abuse.
The hearing was
continued until August 22, although we cannot determine from the record how
many times or for what reasons. On
August 22, Vanessa appeared for the hearing with her counsel, Daniel Hunter,
and five witnesses. Stephen appeared
with his attorney. The hearing lasted
three days, with vigorous cross-examination of the witnesses and parties by
both attorneys. Stephen presented one
witness to rebut a statement made by Vanessa during her testimony.
At the end of the
hearing, the court ruled: “All
right. The standard for a civil domestic
violence restraining order is by a preponderance of the evidence. Counsel are aware that’s the lowest standard
we have. It simply means that it’s more
likely than not that domestic violence has occurred.†The court then provided a lengthy recitation
of the evidence, which we present in full:
“According to what the
court has heard from [Vanessa] and from the witnesses mirrors the classic power
and control generally seen in domestic violence cases.
“This seems to be
somewhat complicated in this case, however, by admissions from both parties
that some of the things that were done were done pursuant to advice of a
counselor that they were both going to at the time.
“Also, in the last
couple of days of testimony, both parties have taken some hits to their
credibility.
“[Vanessa] stated very
specifically yesterday that when talking with Lindsey – I don’t know how to
pronounce that last name, which is why I’m not – specifically that Lindsey told
her that [Stephen] asked her to call and speak to [Vanessa] regarding this
matter. Lindsey specifically refuted
that on the stand today. She said that
she never said that.
“I might be able to say
that it was an inference, a reasonable inference that was drawn by [Vanessa];
however, she’s also stated that she did not have the feeling that the pastor
said that Steve asked her to contact her directly, that she inferred that, but
she did not know if the pastor had asked directly. Yet, the statement was made that Lindsey flat
out was asked. That apparently did not happen.
“There’s also been some
lack of credibility on [Stephen’s] part, particularly the court will note that
today he has admitted that he did, in fact, break into one of her e-mail
accounts and change her passwords, that he did know what G.P.S.[global
positioning system] was, some minor things, but the court looks at a ‘he said/she
said’ situation and tries to look at it very plainly.
“So what we need to do
in this matter is, go to the testimony of the witnesses.
“The first witness we
heard was [Vanessa’s] cousin, Rebecca Van Uitert, [I] think, was the last
name. That testimony is that she lives
in Chicago, and it appears to the court that she flew out here specifically for
this purpose; that [Vanessa] called her in November of 2010; [Vanessa] was
crying and sounded panicked; [Vanessa] stated [Stephen] had been threatening
her and verbally abusing her; and she thought that she was out of the home
because [Vanessa] was calling from a place where she could hear traffic in the
background. She then heard a car pull up
and a door slam, heard her say ‘oh, no it’s [Stephen],’ and then the phone went
dead.
“[Stephen] has said that
when he pulled up, the phone had already hung up. I have some problems with that.
“I also do not find any
lack of credibility in what Ms. Van Uitert stated to the court as to what she
had heard; and, further, that later [Stephen] called her back and was yelling
at her that he didn’t approve of the friendship; she was not allowed to talk to
her again. Also, that [Vanessa] was not
allowed to leave that night. Quite
specifically she stated that. She then
said she also told [Stephen] that his behavior was not okay; it was not oaky to
record [Vanessa], and monitor correspondence, was not all right to have sex
with her unless she wanted to have sex with him, and that she had advised her
cousin go to a D.V. [domestic violence] shelter.
“I’ve heard nothing that
would impeach the testimony of Ms. Van Uitert.
And, frankly, the court has some difficulty in believing that she would
go to the time and expense of flying out here from Chicago to get on a stand in
California under oath and lie.
“Sheena Sales was then
called by [Vanessa]. She did admit that
she’s one of [Vanessa’s] best friends, lived in the same apartment community,
and that she was a second shooter for the photography business.
“She has stated that there
was some normalcy, particularly during the photo shoot in July of 2010 during
the shoot, but after that the client had offered to take them to dinner, and
they went, and that during that dinner [Vanessa] called [Stephen]. They could hear [Stephen] yelling at
her. She started crying, and he kept
calling back, and that she didn’t want to go home. They had to wait for an hour to order until
they got him off the phone.
“She also stated that
they were in the kitchen and arguing because he found a can of black beans that
had sugar. Sugar was not allowed in the
house.
“[Stephen] has testified
that he did not want junk food. This was
an agreement between the parties; that there would not be junk food or sugar
because he noticed a change in his middle daughter. The agreement they reached was that there
would be a cupboard where there would be space for that food, and she would
have the combination so that only she could let the kids in or out of that.
“That does not appear to
me to have anything to do with a can of black beans that have sugar. Junk food, things with sugar, that might make
some sense, but Ms. Sales is testifying that there was this argument over a can
of black beans that had sugar. Well,
that’s more to the court – and, again, I did not hear that disputed at any
point. That was more to the court than
junk food or food with a lot of sugar.
“He said he did not ban
all sugar. Well, that’s a discrepancy
that I don’t particularly like there.
“Not being able to sing
in the choir, we have a discrepancy on that.
Ms. Sales also said that he tried to cut off all contact in December;
that she was not to go to a photo shoot, and he would be the assistant from now
on.
“The problem I have
there is that [Stephen] has testified that the only thing they agreed not to
talk to somebody else about would be things regarding their marriage. And yet, not only Ms. Van Uitert, but Ms.
Sales stated [he] was cutting off [all] communication. That’s not the same thing.
“We then had the
testimony of Lisa Antocci. Ms. Antocci
has no reason, that the court can determine, to come in here and lie under
oath. She’s a very credible witness on
two separate occasions. The first event
that caused her concern was January/February of 2011. They went to lunch – she went to lunch with
[Vanessa], and the phone kept ringing.
And after lunch when [Vanessa] answered the phone, they could hear
[Stephen] yelling saying her G.P.S. said she wasn’t where she said she was,
kept calling her a liar; that she hung up, and he kept calling back, and it
scared the witness.
“Then a month later she
came to the store to pick up equipment, and, again, Ms. Antocci heard a phone
call where [Stephen] was screaming at her that she was lying about where she
was. The witness actually offered to be a
safe haven for [Vanessa], as [Stephen] did not know where she lived.
“Then we have the
therapist Mr. Huisken. And Mr. Huisken
did state that he told the parties that their marital issues were not to be
discussed with anyone else, but he did not tell [Stephen] communication would
be cut off with friends and family, and that’s what the witnesses and the
family members have testified to.
“Then I think we get to
[Vanessa’s] witness, Danielle Eastmond.
She also lived in the same apartment complex. They lived next door and then on the same
level after that. She talked about an
incident where Kate, one of the daughters of the couple, and her daughter were
to be in a Christmas program together, but that daughter had to stay home and
clean the toilets because she did not pick out an outfit to wear; also, that
she stored food items for [Vanessa] the whole time she lived there.
“Well, if she had a
cupboard with a combination lock on it in their kitchen, pursuant to their
agreement that she would have control over that solely, why was she storing
food items for [Vanessa]? Again, I have
no reason to disbelieve the testimony of Danielle Eastmond.
“She then stated that
she lost virtually all contact with [Vanessa] just before Thanksgiving 2010 and
then briefly after Christmas. Oddly, she
also testified that the parties were to go on a hike together with Ms. Eastmond
and her husband, and that [Stephen] showed up there before [Vanessa]. Then [Vanessa] came in, and [Vanessa] and
[Stephen] went into their bedroom – the bedroom of the Eastmonds – for about 20
minutes to have a conversation about this, which made them very
uncomfortable. It would have made me
uncomfortable too.
“I don’t see any reason
to disbelieve any of the witnesses who testified. They all seemed to be credible witnesses to
me. And because they were all credible
witnesses, this swings to the fact that it’s more likely than not that this
behavior occurred.
“The court finds that
there has been domestic violence; that [Stephen] has been the perpetrator; and
that it is appropriate to issue the restraining order for a five year period.â€
With respect to custody
and visitation, the court lifted a previously imposed requirement of monitored
visitation, but also appointed an attorney for the children to determine if any
physical violence had occurred in their presence. The trial court granted Stephen’s request for
unmonitored visitation to occur six hours each week pending a review hearing
and a report from the children’s attorney.
In November 2011, the trial court denied Stephen’s in propria persona
motion for a new trial, and this appeal followed.
DISCUSSION
Stephen first challenges
the sufficiency of the evidence to support the trial court’s findings and
orders. “A reviewing court applies the
substantial evidence standard of review to a trial court’s factual findings,
‘regardless of the burden of proof at trial.’
[Citations.] Our sole inquiry is
‘whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted,’ supporting the court’s finding.
evidence . . . tending to establish the correctness of the
trial court’s findings . . . , resolving every conflict in
favor of the judgment.’ [Citation.]†(Sabbah
v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
When applying the
sufficiency of the evidence standard, our “power . . . begins
and ends with the determination as to whether there is any substantial
evidence contradicted or uncontradicted which will support the finding of factâ€
that is attacked on appeal. (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, original
italics.) Moreover, all factual matters
are to be viewed most favorably to the prevailing party and in support of the
order; all issues of credibility are for the trier of fact. (Nestle v. City of Santa Monica (1972)
6 Cal.3d 920, 925.) And, the testimony
of one witness, even that of a party, may be sufficient to support the findings
of the trial court. (In re Marriage
of Slivka (1986) 183 Cal.App.3d 159, 163.)
In addition, an
appellate court presumes the order appealed from is correct and “‘all
intendments and presumptions are indulged to support the order on matters to
which the record is silent. It is
appellant’s burden to affirmatively demonstrate error and, where the evidence
is in conflict, [we] will not disturb the trial court’s findings. [Citations.]’
[Citation.]†(Cochran v.
Rubens (1996) 42 Cal.App.4th 481, 486.)
Considered in the light most favorable to Vanessa, the evidence
contained in the appellate record is sufficient to support the trial court’s
decision
testimony and credibility was carefully considered, including the testimony
provided by the parties. Vanessa
testified to several incidents of Stephen’s controlling, angry behavior, and
provided evidence he stalked her and forced her to have sex. Vanessa’s witnesses generally supported
Vanessa’s versions of events, and the trial court found these witnesses to be
credible. Stephen denied the
allegations, but the trial court did not, with minor exceptions, believe
him. Stephen
have us reweigh the evidence, but “‘we have no power to
judge . . . the effect or value of the evidence, to weigh
the evidence, to consider the credibility of the witnesses, or to resolve
conflicts in the evidence or in the reasonable inferences that may be drawn
therefrom.’ [Citations.]†(Leff v. Gunter (1983) 33 Cal.3d 508,
518;
see also Cochran v. Rubens,
supra, 42 Cal.App.4th at p. 486.)
Asserted Incompetence of Counsel
Stephen’s brief contains
numerous claims the trial court deprived him of due process, subjected him to
“trial by ambush,†and exhibited bias against him. With respect to court bias, he points to the
fact Vanessa’s attorney gave a time estimate of a half-day court trial, and
argues the length of the hearing forced his attorney to ask fewer questions on
cross-examination. He also claims
Vanessa’s attorney failed to provide a witness list, which prevented him from
being adequately prepared for their testimony.
The appellate record supports none of these claims.
With regard to court
bias, Stephen primarily focuses on a single incident that occurred at the
conclusion of two days of testimony. The
court stated, “The court is not happy with the egregious underestimation of the
amount of time this was going to take.
At this point in time, I have every right to mistry you and have you
start over again. But, regrettably, the
only people that harms are the clients.â€
The trial court’s impatience was understandable in light of the time
estimate, but regardless of this statement, the hearing continued into a third
day with no objection or discernable change in the questioning of either
counsel. These facts distinguish the
instant case from In re
Cal.App.4th 281, on which Stephen relies.
Here, Stephen received
notice of the proceedings, had ample time to prepare and present his case, and
he utilized the services of competent counsel.
As noted above, on appeal Stephen failed to designate Vanessa’s
declaration in support of her request for the restraining order, or provide any
documents concerning an exchange of witness lists, but from our review of the
entire reporter’s transcript, this was not a trial by ambush. Rather, the appellate record reveals a
well-prepared defense to specifically defined incidences. There is no evidence the trial court relied
on testimony stricken from the record, or any matters outside the record. And, the trial court properly excluded
evidence of Stephen’s allegation Vanessa had an affair with a high school
boyfriend. Without exception, the few
quotations from the record Stephen includes are finely parsed and taken out of
context. Thus, we reject his due process
and judicial bias claims, and disagree with any denigrating characterization of
his attorney’s performance.
Stephen also claims the
court used the wrong standard of proof, citing Santosky v. Kramer (1982) 455 U.S. 745, a case involving the
termination of parental rights. However,
“A reviewing court applies the substantial evidence
court’s factual findings, ‘regardless of the
burden of proof at trial.’
[Citations.]†(
pay any fees charged by the children’s attorney without first determining his
ability to pay. He did not object to
this order below, and provides this court with no evidence of an inability to
pay. Therefore, this claim is waived.
Child
Custody Order
Stephen also challenges
the child custody order entered in conjunction with the domestic violence
restraining order. He argues the court
abused its discretion in awarding custody to Vanessa and limiting his
visitation. He cites several cases for
the proposition the parent/child relationship is a fundamental right, but the
importance of the parent/child relationship is not the issue here. Based on the record provided by Stephen, we
find no error.
It is well established
that trial courts generally have the “widest discretion to choose a parenting
plan that is in the best interest of the child.†(Fam. Code, § 3040, subd. (c).)
An appellate court must uphold the trial court’s custody order if it can
be “reasonably concluded that the order . . . advance[s]
the ‘best interest’ of the child.†(See In
re Marriage of Burgess (1996) 13 Cal.4th 25, 32; In re Marriage of Loyd
(2003) 106 Cal.App.4th 754, 758-759.)
“‘“An appellate tribunal is not authorized to retry the issue of
custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of
abuse of discretion will the order of the trial court in such matters be
disturbed on appeal. Where minds may
reasonably differ, it is the trial judge’s discretion and not that of the
appellate court which must control.â€
[Citation.]’ [Citation.]†(Catherine D. v. Dennis B. (1990) 220
Cal.App.3d 922, 931.)
The evidence supports
the trial court’s custody award. Once
the allegations of abuse had been sustained, the burden shifted to Stephen to
demonstrate joint custody was in the children’s best interest. (Fam. Code, § 3044, subd. (a), [“Upon a
finding by the court that a party seeking custody of a child has perpetrated
domestic violence against the other party seeking custody of the
child, . . . there is a rebuttable presumption that an award
of sole or joint physical or legal custody of a child [to that person] is
detrimental to the best interest of the
child . . . .â€].)
Nothing in the record suggests he met and rebutted the presumption joint
custody would not be in the best interests of the children.
Furthermore, the trial
court ordered unmonitored visitation pending receipt of a report from the
children’s attorney. Stephen failed to
include this report, or any orders from the continued proceedings in the record
provided to us. Therefore, under the
appropriate standard of review and in the absence of any contrary evidence, we
presume the court’s orders were correct
him in making its ruling, and his attorney incompetent to present his case, are
not supported by a reading of the entire record presented on appeal. Instead, the trial court gave thoughtful
consideration to the pertinent issues and made a custody determination based on
the appropriate factors. We find no
abuse of discretion.
DISPOSITION
The trial court’s orders
are affirmed. Vanessa is entitled to
costs on appeal.
THOMPSON,
J.
WE CONCUR:
O’LEARY, P.
J.
BEDSWORTH, J.
name="_ftn1" title=""> [1] We refer to
the parties by their first names throughout the opinion for clarity and intend
no disrespect.
name="_ftn2" title=""> [2] Stephen failed
to provide an adequate record to support many of his claims. Most notably, he failed to include Vanessa’s
affidavit in support of her request for a temporary restraining order, his
request for a restraining order, the trial court’s final order regarding child
custody, and various pertinent minute orders.
“Appealed judgments and orders are presumed correct, and error must be
affirmatively shown. [Citation.] Consequently, plaintiff has the burden of
providing an adequate record.
[Citation.] Failure to provide an
adequate record on an issue requires that the issue be resolved against
plaintiff. [Citation.]†(Hernandez
v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
