Marriage of L.B. and
R.U.

 

 

 

 

 

 

Filed 5/28/13 
Marriage of L.B. and R.U. CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

In re the Marriage of L.B. and R.U.
L.B.,             Respondent, v. R.U.,             Appellant.	A134080         (Contra Costa County       Super. Ct. No. MSD0005823)

 

>Introduction

            R.U.
(Father) and L.B. (Mother), whose marriage was terminated in May 2001, are the
parents of two minor children, both of whom were conceived using egg
donors.  One of the conditions of the href="http://www.mcmillanlaw.com/">judgment of dissolution to which both
parties stipulated was Father could not inform the children of this fact during
their minority.  Father appeals from an
order denying his motion for modification of this and other conditions relating
to custody, asserting his due process rights were violated by the court’s
denial of his request for an evidentiary
hearing.  Father maintains the court
erred in denying his motion to inform the children of their “biological
mothers” and to enjoin Mother from “interfering” with his attempt to obtain an
Italian passport.  We conclude the trial
court did not err, and affirm.

>Procedural
and Factual Background

            Father and Mother
were married in October 1992.  Their
“marital status was terminated” in May 2001. 
During their marriage, they had two children, R.U. (Daughter) and J.U.
(Son).href="#_ftn1" name="_ftnref1" title="">[1]  Each child was conceived through the use of
eggs donated by different women.

            In
September 2008, a stipulated judgment on reserved issues was entered following
a trial.  That judgment provided, inter
alia and as relevant to this appeal, that Mother have sole legal custody and
primary physical custody of both children. 
Mother was granted “sole authority to make health care and educational
decisions concerning the minor children.” 
The mutual restraining orders entered in 2001 were to remain in “full
force and effect.”  The stipulated
judgment provided for a detailed visitation, holiday and vacation
schedule.  It also specified each child’s
extracurricular activities, and provided “[n]either parent shall sign up either
child for any future extracurricular activities without the written consent of
the other party,” and that Daughter “may remain” in cello.  The judgment also provided “[Father] shall
not inform the children during their minority of their donor egg status.”

            On
April 29, 2011, Father
filed a motion for modification of child custody and visitation, in addition to
other orders.  He specifically sought
“[m]yself and the children be allowed Italian passports,” the mutual
restraining order be lifted, Daughter “be allowed to choose the instrument she
plays and math club or other club participation, or at least not be forced into
participation,” and that the “[c]hildren be told of their biological mothers.”

            Father
filed a declaration in support of his motion, in which he asserted Daughter
“was forced to study cello from the age of six to present,” but has now
“resumed violin” and is “much happier.” 
Father states “[s]till, [Mother] continues making her take cello
lessons.  This needs to stop.  I’d like to ask that [Daughter] be allowed to
cease cello lessons and that both parents need to agree in order to stop
violin.”  Father also declared he “agreed
to her joining the Math Club” but wants her to drop the math team.

            Father
also sought that “[b]oth children . . . be told of their biological mothers and
be allowed to meet them and their families should they so desire.”  He declared “[Mother] has been living and
perpetuating a lie about the children’s origins.  The children are both from egg donors.  Originally, while we were still married,
[Mother] and I agreed to wait until the kids were seven before telling them
about their biological mothers, in order to avoid possible confusion on the
parts of the children.  [Mother’s] own
therapist indicated that the children could be told when they [were]
seven.  Later, when we separated,
[Mother] asked the court-appointed mediator . . . to include in her report the
recommendation that the children not be told that they came from donor eggs,
but she did not indicate when they should be told.  [¶] When we contracted with the
biological mothers, both asked to be sent Christmas[] and birthday cards, which
I did from the beginning; one of them [E.S.], also wanted somewhat more of a
connection, asking to meet [Son] sometime in the future and perhaps introduce
him to her family.  [Mother] and I agreed
at the time; however, once [Mother] had gotten what she wanted from [E.S.], she
reneged on her contractual agreement. 
[¶] Since then, I have been in contact with both women directly
and, in particular, to apologize to [E.S.] for [Mother’s] behavior.”

            Father
further declared he was granted Italian citizenship in December 2009.  He thereafter sought an Italian passport for
himself, but “[Mother], true to form, refused to agree to my obtaining a
passport, arguing to the authorities that I may skip the country in order to
avoid paying court-ordered child support. 
The Italian consulate bought off on that argument, so I was denied a
passport.”  Accordingly, he seeks
“[m]yself and the children be allowed Italian passports” because it would allow
them to “get through customs as EU citizens much more quickly than we can now
as foreigners” and “could be helpful to the kids when they become adults.”

            Mother
filed a responsive declaration in which she disagreed with the changes to the
stipulated judgment sought by Father with the exception that Daughter “shall be
allowed to choose which instrument she plays and for which instrument she takes
lessons.”  She indicated Daughter was no
longer participating on the math team, so Father’s request in that regard was
moot.  Attached to Mother’s declaration
were letters from the children’s health care providers and therapists, who were
unanimous in their opinions that the children not be told of their donor egg
status at this time.href="#_ftn2"
name="_ftnref2" title="">[2]

            Father
then filed a supplemental declaration in which he stated, inter alia,  the “donor families have resurfaced,” and
declared he did not go on vacation with them, but admitted he “let them use my
Tahoe house.”  He stated Son’s egg donor
“donated with the understanding that she would be given pictures and
updates.  [Mother] has not honored this
agreement, nor allowed me to do so.”

            The
court scheduled a mediation for July 27, 2011, after which the mediator made
written recommendations.  The recommendations
for a “parenting plan” included:  “1.
Neither parent should be permitted to obtain passports for the children
allowing them to leave the United States except by mutual written parental
agreement.  [¶] 2. Holidays falling
on a Monday shall extend that parent’s weekend by a 24 hour
period. . . .  [¶] Neither
parent shall schedule activities for the children during the other parent’s
scheduled parenting time without the other parent’s prior agreement . . .
.  [¶] 4. [Daughter] has
expressed a desire for playing soccer and or volleyball as an extracurricul[ar]
activity and this should be given a priority over but not necessarily in lieu
of her participation on the math team. 
[¶] 5. Transfers/exchange of the children shall continue as
currently arranged per court order.”

            The
mediator made a separate recommendation “for future procedures” as follows:
“Parents shall select a court approved therapist and within 60 days work with
this therapist to come up with a plan regarding informing the children of their
egg donor status.  This plan shall
include the ‘timing and implementation’ (the when and how) to inform the
children regarding their egg donor status as well as how to best address
related issues such as half-sibling, medical history, and to assist the parents
on appropriately responding to questions the children may have as a result of
being informed about their egg donor status.” 
In relation to the egg donor and passport issues, the mediator
concluded:  “Mother has good cause to be
concern[ed] about Father obtaining Italian passports for the children as well
as disclosure of the children’s egg donor status given the nature and history
of conflict between the parents.  This
mediator is therefore not in favor of either at this time.”href="#_ftn3" name="_ftnref3" title="">>[3] 

            At
the hearing on September 13, 2011, the court indicated it was “inclined at this
moment to adopt the mediator’s recommendations for the parenting plan,” but not
“the mediator’s recommendation for future procedures which recommended that . .
. within 60 days the parents start coming up with a therapist to talk to the
kids about their origins.  I don’t think
we even need to introduce that at this time. 
[¶] . . .  [¶] . . .
Because it does seem like it’s going to create more anxiety in this family,
which doesn’t need any more stress and anxiety.”  Following argument by counsel, the court
adopted the mediator’s parenting plan recommendations, with some minor
modifications.  The court ordered the
mutual restraining order be continued, and that exchanges of the children take
place “curbside without contact by the parents.”  The court ordered the parents could renew the
children’s Unites States passports but not obtain “non-U.S. passports.”  The court also denied Father’s request for an
order that Mother “not interfere with [the] process” of Father obtaining an
Italian passport, stating Father should “take that up with the Italian
consulate” because it did not have “jurisdiction over the Italian passport for
adults.”

            At
the conclusion of the hearing, after the court made its orders, Father
indicated “he’d want a long cause on the mediator’s recommendations for future
proceedings” regarding meeting with a therapist to plan for informing the
children of their egg donor status.  The
court denied that request.

Discussion

>Family Code Section 217href="#_ftn4" name="_ftnref4" title="">[4]

            Father
asserts the trial court’s denial of his request for a “long-cause hearing”
regarding informing the children of their egg donor status violated
section 217 and denied him his due process rights.

            Section
217 provides in pertinent part:  â€œAt a
hearing on any order to show cause or notice of motion pursuant to this code,
absent a stipulation of the parties or a finding of good cause pursuant to
subdivision (b), the court shall receive any live, competent testimony that is
relevant and within the scope of the hearing and the court may ask questions of
the parties.  [¶] (b) In appropriate
cases, a court may make a finding of good cause to refuse to receive live
testimony and shall state its reasons for the finding on the record or in
writing. . . .  [¶] (c) A party
seeking to present live testimony from witnesses other than the parties shall,
prior to the hearing, file and serve a witness list with a brief description of
the anticipated testimony.  If the
witness list is not served prior to the hearing, the court may, on request,
grant a brief continuance and may make appropriate temporary orders pending the
continued hearing.”  (§ 217.)

            Father
admits he did not comply with the requirements of section 217.href="#_ftn5" name="_ftnref5" title="">[5]  He did not “file and serve a witness list
with a brief description of the anticipated testimony.”  (§ 217, subd. (c).)  He never identified what witnesses he sought
to have testify.href="#_ftn6" name="_ftnref6"
title="">[6]  Nor did he request a continuance at the
hearing.  (§ 217, subd. (c).)  Indeed, Father never sought a “long cause”
hearing until after the trial court had made its ruling.  Thus, Father forfeited his right to present
live testimony.href="#_ftn7" name="_ftnref7"
title="">[7]  (See Eisenberg, et al., Cal. Practice
Guide:  Civil Appeals and Writs (The
Rutter Group 2012) ¶ 8:264.)  The
court did not err in denying his belated request at the end of the hearing,
after it had already made its ruling. 
And, because Father did not submit a witness list or comply with section
217, the court was not required, as Father claims, to state its reasons for
denial of “live testimony.”  (See former
Cal. Rules of Court, rule 5.114(c), effective at the time of the hearing.)  The trial court neither erred nor denied
Father his due process rights.

Alleged Change in Circumstances Regarding Children’s Knowledge of Donor
Egg Status

            Father claims he
“alleged a change in circumstances sufficient to justify modification of the
[j]udgment.”href="#_ftn8" name="_ftnref8"
title="">[8]>  He asserts two changes:  the children are three years older than they
were when the judgment was entered, and “the egg donors have surfaced and . . .
there is a very real risk that [son’s] donor will reach out to him as she can
when he turns 18.  In fact, [Son] will be
18 on March 29, 2013.”

            “
‘The standard of appellate review of custody
and visitation orders is the deferential abuse of discretion test.’  [Citation.] 
Under this test, we must uphold the trial court ‘ruling if it is correct
on any basis, regardless of whether such basis was actually invoked.’ ”  (Montenegro
v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).)  A

“ ‘showing on appeal is wholly
insufficient if it presents a state of facts, a consideration of which, for the
purpose of judicial action, merely affords an opportunity for a difference of
opinion.  An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.  To be entitled to
relief on appeal from the result of an alleged abuse of discretion it must
clearly appear that the injury resulting from such a wrong is sufficiently
grave to amount to a manifest miscarriage of justice
. . . .’ 
[Citation.]”  (>Estate of Gilkison (1998) 65 Cal.App.4th
1443, 1449.)

            In
reviewing any order or judgment we also start with the presumption that the
judgment or order is correct, and if the record is silent we indulge all
reasonable inferences in support of the judgment or order.  It is the appellant’s burden to demonstrate
error, and provide adequate citation to the record, and to present reasoned
argument with citation to supporting legal authorities.  The failure to meet this burden may result in
this court deeming the claimed error to have been waived, or the court may
affirm because the presumption in favor of the judgment has not been rebutted.  (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)

            There
are two tests the family courts may apply to custody determinations:  the best interests test and the changed
circumstances test.  (>Montenegro, supra, 26 Cal.4th at p. 256.) 
The best interests test applies in initial and temporary custody
determinations.  (Ibid.)  The changed
circumstances test applies when a parent seeks “to modify a permanent custody
order.”  (Ibid.)  It “does not apply to
a modification request seeking a change in the parenting or visitation
schedule.”  (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068,
1077.)  The significant distinction is
whether custody is at issue.  (Hogoboom
& King, Cal. Practice Guide:  Family
Law (The Rutter Group 2012) ¶ 17:302.2, p. 17-73.)  A modification request to “alter parenting
time (or other incident of the joint custody order, such as the child’s
schooling, that will not vary the allocation of ‘custody’ per se” is not
subject to the changed circumstances test. 
(Ibid.)  Instead, the family court considers the best
interests of the child.  (>In re Marriage of Lucio, supra,
161 Cal.App.4th at p. 1080.)

            Father
fails to note that the judgment he seeks to modify does not prevent the
children from being told they were conceived using donor eggs—it only prevents >Father from so informing them while they
are minors.  The judgment gave Mother
sole legal custody and primary physical custody of the children, and sole
authority to make educational and medical decisions on their behalf.  The judgment specifically forbade Father to
“attend any meetings with medical
professionals regarding the treatment of the parties’ children” and “any
medical appointments except in the event of a medical emergency when the
children are in his custody,” as well as forbidding him to tell the children of
their donor egg status.  Thus, the
changed circumstances Father alleges—the children are older, Son is almost 18
years old, and the egg donors have “resurfaced”—do not support Father’s claim
the judgment prohibiting him from informing the minors of their donor egg
status should be modified.  Nothing
prevents Mother, who has sole authority to make educational and medical
decisions on behalf of the minors, from informing the children they were
conceived using egg donors. 

            Father
made no showing why it was in the best interests of the children to eliminate
the provision in the judgment prohibiting him from informing the minors about
the egg donors.  The court did not abuse
its discretion err in denying Father’s motion in this regard.>

Father’s Attempt to Obtain Italian Passport

            Father sought an
order that “[m]yself and the children be allowed Italian passports.”href="#_ftn9" name="_ftnref9" title="">[9]>  The court indicated as to Father’s passport
request:  “I think he has to take that up
with the Italian consulate.  I don’t have
jurisdiction over him getting a passport. 
[¶] . . .  [¶] . .
.  I don’t have jurisdiction over the
Italian passport for adults.  I can
address kids, but that’s it.  So if
you’re having trouble with an Italian passport, I’m sorry, but it’s not in my
jurisdiction.”  Father maintains the
court “did not properly exercise its discretion when it misconstrued [his]
request for relief.”

            Father stated in
his declaration “According to Italian law, if a divorced family has minor age
children, then both parties need to agree before the citizen is issued a
passport.”  Father filed a declaration to
which was attached an e-mail from the Italian Consulate stating “This Consulate
General in response to our official letter sent to [Mother] has received a
detailed communication by [which] your ex wife denied her consent to issue your
Italian passport.  She explains that this
decision is based on different reasons, supported on proceedings judicial;
between them:  a restraining order to
take the children out of the State of California and United States;
[¶] the order to pay an annual sum for six years to partially reimburse
[Mother]; [¶] the obligation to pay Child support and Educational support
in U.S.A.  [¶] In addition, she has
concerned that you can try to go to Europe, or Italy with the children, and
remain there, to avoid your financial responsibilities.  [Mother] in that letter, also inform that you
have filed a Court Motion against her. 
[¶] On light to above, this Consulate General can not presently
issue your Italian passport, without an agreement between the parties and/or a
final court decision.” 

            At
the hearing, his counsel indicated “[Mother] keeps giving [the Italian
Consulate] misstatements that keep [Father] from getting his passport.  We ask that she not interfere with that
process.”

            Father
does not now claim the court had jurisdiction to order that he “be allowed [an]
Italian passport[],” as he sought in his moving papers.  Instead, he asserts he was “asking the trial
court to enjoin [Mother] from interfering, which it had jurisdiction to do
because of the mutual restraining orders in the Judgment that the court declined
to vacate.”

            At
the outset, we note Father sought to vacate the mutual restraining order, not
use it as a basis to prevent Mother from lawfully communicating with the
Italian Consulate.  Moreover, Father
cites to no language in the mutual restraining order that has any application
to what he now seeks.  Indeed, he does
not include it as part of the record on appeal.

            Father
acknowledged in his declaration Italian law requires Mother to agree to his
obtaining an Italian passport while the children are still minors.  The e-mail from the Italian Consulate
attached to his declaration indicates Mother only contacted the Consulate in
response to its letter to her.  The
Italian Consulate has already made its decision to deny the passport
application.  Father’s recourse, if any,
is with the Italian Consulate.




 

>Disposition

            The
order is affirmed.

 

 

                                                                                    _________________________

                                                                                    Banke,
J.

 

 

We concur:

 

 

_________________________

Margulies, Acting P. J.

 

 

_________________________

Dondero, J.