Gaudino v. Morgan
Filed 6/20/13 Gaudino v. Morgan CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Tehama)
----
JOSEPH P. GAUDINO,
Plaintiff
and Appellant,
v.
BARBARA A. MORGAN,
Defendant and Respondent.
C072095
(Super. Ct. No.
FL42118)
Appellant
Joseph P. Gaudino appeals from an order denying appellant’s request to modify a
prior order for visitation with his now 16-year-old daughter. Finding the trial court did not abuse its
discretion, we affirm the order of the court.
Facts and Proceedings
In March
2009, the trial court issued a custody order granting respondent Barbara A.
Morgan sole legal and physical custody
of the parties’ minor child, then 13 years old.
The court further ordered that appellant “shall have no visitation with
the child except with the consent of . . . the child;
“Contact
between [appellant] and [respondent] and the minor child shall be through
written correspondence only . . . .†The form and content of the court’s order,
prepared by appellant’s counsel, was approved by respondent and minor’s
counsel.
On June 26, 2012, appellant filed a
motion to modify visitation. Appellant
asked for “[a]ny visitation,†and offered to participate in either supervised
or therapeutic visitation. Respondent
and minor’s counsel opposed the motion and a hearing was held in August
2012.
At the
August 2012 hearing, appellant testified that in five years, his only contact
with the minor had been two letters he wrote to her (one in August 2010 and
another in July 2011), one Christmas gift, and one birthday gift. He acknowledged the court’s March 2009 order
allowed him to write letters to the minor but, according to appellant: “the two letters that I wrote had such an
explosive reaction, I was told not to write them.†Appellant further acknowledged that in one of
those letters, he admitted falsely accusing the minor of lying.
Appellant
also testified that since 2009 he had not participated in any counseling. In appellant’s opinion, his relationship with
the minor could be improved only if they were in counseling together. When asked what he hoped to achieve in counseling
with the minor, appellant responded:
“Well, the first thing that--I’m thinking the first thing we want to do
in counseling is go over the reason why she lied about the whole situation, the
scratching situation. We are here today
because my daughter lied about the scratching.
I never scratched her.â€
Respondent
testified that she did not believe therapeutic visits with appellant were in
the minor’s best interest. Appellant and
the minor were in counseling together prior to 2009 and, according to
respondent, those counseling sessions were not productive.
Following
submission, the court found the minor’s best interests would not be served by
modifying the March 2009 order for visitation.
The court found it relevant that appellant made almost no effort to
maintain contact with the minor in the five years preceding the hearing, even
though he was permitted to write to her.
It was also “of great concern to the Court†that, “when asked about
potentially starting a relationship with his daughter in a therapeutic setting
. . . [appellant] initially said, ‘Yes, that would be good because my
daughter needs to admit that she lied about something years ago.’ â€
Accordingly,
the trial court concluded that “[a]t this point I don’t see how [appellant] can
argue it would be in the best interest of the child, without any effort
whatsoever on his part, other than filing this motion.†The court thus denied appellant’s
motion. Appellant filed a timely
Discussion
Appellant’s
claim on appeal is that the trial court erred in refusing to modify the March
2009 order for visitation. We review
rulings on motions to modify child visitation orders for an abuse of
discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) “Generally, a trial court abuses its
discretion if there is no reasonable basis on which the court could conclude
its decision advanced the best interests of the child. [Citation.]â€
(Chalmers v. Hirschkop (2013)
213 Cal.App.4th 289, 299.)
The March
2009 order allowed appellant to visit the minor only with her consent, but gave
appellant permission to maintain contact with the minor through letters. It is clear from the record appellant made
almost no effort to maintain a relationship with the minor, writing her only
two letters in five years. Appellant
contends he did not write letters to the minor because the two he did write
were not well-received. Presumably, he
believes this excuses him from making any further effort. The trial court heard this same argument and
was not persuaded. Neither are we.
Appellant
also failed to participate in any
individual counseling after the March 2009 order was issued. This further supports the trial court’s
finding that, other than filing the motion to modify visitation, appellant made
no effort to restore his relationship with the minor.
Finally,
when asked what he hoped to gain from therapeutic visitation with his
16-year-old daughter, appellant’s immediate response was he hoped it would
force her to admit she lied, that her lie was the only reason he had been
precluded from seeing her. Appellant’s
need to blame the minor for his current situation suggests appellant is not
putting the minor’s interests ahead of his own.
Under such circumstances, we find the trial court did not abuse its
discretion in refusing to modify the March 2009 order for visitation only with
the consent of the minor, that such an order remains in the minor’s best
interests.
Disposition
The order
of the trial court is affirmed. Costs
are awarded to respondent. (Cal. Rules
of Court, rule 8.278(a)(1), (2).)
HULL ,
Acting P. J.
We concur:
ROBIE ,
J.
DUARTE , J.
