Marriage of Harris

 

 

 

 

Filed 1/10/14 
Marriage of Harris 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 Marriage of CHARLENE and DAVID HARRIS.
CHARLENE FUNK,         Appellant,                     v.   DAVID HARRIS,         Respondent.	G047229            (Super. Ct. No. 05D011004)            O P I N I O N

 

                        Appeal
from an order of the Superior Court of
Orange County, James L. Waltz, Judge.  Motion to dismiss appeal.  Motion for judicial notice.  Motions denied.  Order affirmed.

                        Family
Violence Appellate Project, Erin C. Smith, Nancy K.D. Lemon; Bingham McCutchen,
Bree Hann, Nargues Motamed and Sarah Barker-Ball for Appellant.

                        Dabney
Finch for Respondent.

                        Charlene Funk (formerly
Charlene Harris) appeals from an order
modifying child visitation, which follows the judgment dissolving her marriage
to David Harris.  The order contains
several provisions which, taken together, are intended to facilitate what the
court refers to as “reunification” between Harris and the couple’s daughter, T.
 Funk argues the order must be reversed because:
 (1) it improperly grants temporary legal
custody of T. to her counsel; (2) it
effectively overrules the factual finding at the heart of the parties’ original
custody order issued in 2008, which awarded sole legal and physical custody to
Funk on the basis that “[t]he preponderance of the evidence points to the
father as the perpetrator of sexual abuse on [the child]”; (3) it reflects a
failure to consider Harris’s earlier physical abuse of Funk; (4) it improperly
orders “reunification services” in a child custody proceeding, in violation of
Family Code section 3026; and (5) it improperly delegates discretion to
determine Harris’s visitation and schedule to a court-ordered “href="http://www.sandiegohealthdirectory.com/">reunification counselor and
child’s therapist.”  Funk also requests
that we order the case assigned to a new judge on remand.

                        For his
part, Harris has moved for dismissal of the appeal, arguing first that Funk’s
refusal to follow the court’s order warrants dismissal under the appellate
disentitlement doctrine, and second that her subsequent execution of a
stipulation agreeing to abide by the order moots the appeal.  Harris acknowledges these arguments may
appear “contradictory,” and we conclude they are.  The disentitlement doctrine is not designed
to punish a party, but to vindicate the court’s interest in inducing compliance
with presumptively valid orders.  (>In re Marriage of Hofer (2012) 208
Cal.App.4th 454, 459.)  Here, according
to Harris’s own description, the trial court achieved that compliance in the
course of subsequent proceedings which
culminated in Funk’s stipulation.  Even
Harris admits there is no evidence Funk requires further inducement (he states “it
is unknown whether she is still disobeying,” and merely asserts it is “likely”
she would be if the trial court had not
taken action).  Moreover, we find no
basis to conclude Funk’s stipulation was intended to reflect anything more than
her explicit agreement to comply with the disputed order pending appeal.  Consequently, both the motion to dismiss and
its attendant request for judicial notice are denied.

                        At oral
argument, Harris also claimed the appeal had become moot.  We invited the parties to address that issue
in supplemental briefing and having considered those supplemental briefs, we
conclude the appeal is not moot.  While
the factual circumstances in this case have continued to evolve, it is clear
the parties’ core dispute is unresolved, and thus the issues raised herein
remain relevant.

                        On the
merits, we affirm the order.  We reject
Funk’s challenge to the award of temporary legal custody to T.’s counsel
because that award was actually made in an earlier order, was not appealed, and
thus cannot be challenged in this appeal. 
The same analysis applies to Funk’s contention the court improperly
delegated discretion to its court-appointed therapeutic expert.  Both of those rulings were initially made in
October 2011, in an appealable order that had long since become final by the
time the court issued the order challenged herein.

                        Moreover,
we find no error in the court’s analysis of T.’s best interests in connection
with the challenged order.  Because the
order reflected only a change in visitation,
rather than custody, the court was
not bound by the changed circumstances rule. 
Thus, the court properly based its assessment of T.’s best interests on
its own evaluation of the current circumstances, and in the absence of an
affirmative contrary showing, we presume the court considered all relevant
circumstances in making that assessment. 
Nor did the court improperly order “reunification” services here.  While we agree the court did characterize its
order as a “reunification” order, and even utilized the term “reunification
services” within it, those labels do not control our assessment of the order’s
substance.  In substance, the order does
nothing more than modify visitation and impose a requirement that father and
daughter both engage in therapy with the court-ordered professional who would
also supervise the visitation process. 
Such an order is expressly authorized by the Family Code.  Finally, having found no merit in Funk’s
assertions of error, we likewise reject her request that we assign this case to
a different judge on remand. 

                       

FACTS

 

                        Funk
and Harris were previously married, and their daughter T. was born in 2002.  In 2007, while the parties’ marital
dissolution action was pending, evidence came to light that Harris might have
sexually abused T.  The claim was
disputed by Harris, and during the period of February to June of 2008 the court
conducted a full evidentiary hearing to resolve the parties’ competing claims
to child custody.   

                        Following
that hearing, which centered almost entirely on the sexual abuse issue and
included the testimony of multiple experts, the court issued its ruling.  Initially, the court noted “[t]his is the
kind of case the family law judge loses sleep over.  Mother wants sole legal and physical custody,
with no visitation for father because she claims father repeatedly sexually
abused the couple’s young daughter. 
Father denies the allegations. 
The District Attorney has, to date, declined to prosecute.”  The court then summarized the evidence adduced
at the hearing, and specifically noted it found Funk “to be a credible witness.”  Ultimately, the court made an explicit
finding that “the preponderance of the evidence points to the father as the
perpetrator of sexual abuse on [the child.]” and based on that finding, held “that
sole legal and physical custody shall be awarded to [Funk], with no visitation
to Dr. Harris until such time as it is established that even monitored
visitation would be in the child’s best interest.”

                        Shortly
thereafter, the case was taken over by a different judge.  In September 2008, the court issued a restraining
order against Harris, as well as a final judgment on reserved issues which
awarded sole legal and physical custody of T. to Funk, and denied visitation to
Harris.  Rather than appealing that
judgment, Harris moved for an order modifying it in December of 2008.  Specifically, Harris sought a modification
which would allow him to resume contact with T., beginning with monitored
visitation.  In his motion, Harris
acknowledged the court had made a finding he sexually abused T., which he
continued to “absolutely deny,” but argued he should be afforded “reunification
leading up to full visitation,” and offered to participate in therapy.  Thus began a long and bumpy process which ultimately
culminated in the challenged order of June 4, 2012.

                        One
significant bump is reflected in the court’s issuance of an order in October
2011, granting “temporary sole legal custody” of T. to her counsel, Sheryl
Edgar.  That order also included a
provision ordering court-appointed therapist, Mitchell Rosen, to “develop and
implement a reunification plan between [Harris] and [T.] according to his
discretion.”  The order was based on the
court’s determination that T. was “‘at immediate risk’ under the legal control
of her mother . . . .” 

                        The challenged
order, which is characterized as a “Reunification Order,” was issued nearly
eight months later.  It first specified
that attorney Edgar would continue to serve in the capacity of “minor’s counsel”
at Harris’s expense.  It next specified
that “[w]hile extraordinary, . . . minor’s counsel shall continue and remain
vested with temporary sole legal custody
of [T.], and retain sole decision-making authority affecting [T.]’s health
and educational needs.”  (Italics added.)
 It then stated T. would henceforth be
attending public school, and would not be home schooled pending further order
of the court.  

                        The
order then addressed “Reunification Counseling and Father’s Parenting Time,” by
first providing that previously ordered “reunification counseling and
reunification services” would continue, and that “[t]herapist Mitch Rosen shall
continue-on as the reunification counselor and child’s therapist.”  The order then provided that “[t]herapist
Mitch Rosen shall conduct regular conjoint counseling between father and [T.],
and schedule and oversee father-child parenting time.  [¶] 1.  The pace and schedule of individual therapy
sessions, conjoint therapy sessions, and parenting time shall occur at a pace
and on a schedule and under circumstances established by Mitch Rosen, without
any interference by the mother.”  Harris’s
parenting time was to be “monitored,” with “the monitor selected by . . .
Rosen.”  The order also gave Rosen
authority to “construct parent-child launchings and ramp-up to day-time
parenting-time between the father and [T.], and any increased parenting time
shall occur according to Mr. Rosen’s assessment of reunification progress and [T.]’s
best interest.”  Harris was to bear all
fees, costs and expenses of this effort.

                        The
court then included in the order an eight-page explanation of the reasoning underlying
those orders, which included a detailed history of the court’s involvement with
the custody and sexual abuse issue.  The court
noted Funk had, from the beginning of the dissolution proceeding, “engaged in a
sustained effort to thwart and impede the father’s parenting time and . . .
interfered with his parent-child relationship.”  It cited a custody evaluation prepared back in
2006, in which the evaluator had acknowledged, but found unsubstantiated, Funk’s
prior claims that Harris had sexually abused T. 
The court noted that despite the inconclusive resolution of the issue in
that child custody evaluation, Funk continued to press the claim of sexual
abuse, and ultimately filed for a restraining order, which led to the
appointment of the single expert – a Dr. Reinhart – who concluded the sexual
abuse had occurred.  Based on that sole
opinion, Funk filed a motion in the dissolution action for a restraining order
and requested that sole custody of T. be awarded to her with a no-contact
order.  That custody issue was assigned
to Judge Mary Fingal Schulte, who concluded, after an evidentiary hearing, that
“the preponderance of the evidence points to [Harris] as the perpetrator of
sexual abuse on [T.].”

                        Following
Judge Schulte’s decision, the dissolution case was reassigned to Judge James
Waltz, and he granted Funk the requested restraining order, specifying “no
contact” between Harris and T. and ordering Harris to undergo treatment.  Thereafter, Harris began seeking
reunification with T. 

                        After
Harris filed his request to modify the no visitation order, the court appointed
a new expert, Amy Stark, to evaluate the case on behalf of the court, and she
later opined that reunification with Harris would be in T.’s best interest and
suggested a therapist, Dr. Phyllis Daniels, to serve as T.’s individual
therapist.  The court appointed Daniels
to serve in that capacity and later began what it characterized as a “supervised
reunification process,” with Stark serving “as the court’s case manager.”  In the court’s view, Funk did “all she could to
thwart the counseling” and “appeared to exaggerate [T.]’s anxiety” as well as “incited
and exacerbated the drama surrounding therapy and conjoint sessions with
[Harris.]”  The court noted that “[a]long
the way, the court appointed minor’s counsel, attorney Sheryl Edgar,” who also “agreed
that reunification [with Harris] served [T.]’s best interests.”   

                        Funk,
however, “remained defiant and acted in opposition to any reunification.”  Her conduct was “so severe,” and the “home
environment so toxic to reunification, that minor’s attorney . . . Edgar urged
the court for extraordinary relief:  a
change of custody, in favor of third party placement and legal custody to
attorney Edgar.”  The court observed
that, among other things, Edgar had pointed out that neither she nor any of T.’s
health care providers had ever seen T. “engage in the range or degree of symptoms
professed by [Funk],” and Edgar “urged the court to find that [Funk] was
driving the drama and inciting [T.] to act out and ‘perform’ for the
reunification counselor.”

                        After
the court ordered T.’s legal custody vested in Edgar, however, Funk’s behavior “grew
worse.”  In the court’s view, Funk “maintained
a sustained campaign to scuttle reunification between [T.] and [Harris],” which
ultimately “soil[ed] the relationship between the child and Dr. Daniels/Dr.
Stark, particular[ly] after both therapists attempted to hold [Funk]
accountable for . . . [T.]’s staged drama and calculated out-of-control
behavior.”

                        Funk moved
to Riverside and requested for a change of venue to that county on the basis
that all parties were then living there. 
The court denied that motion.  Instead, the court appointed Rosen, who was also
located in Riverside County, to act as the new “reunification therapist” in the case.  After conducting what the court characterized
as a comprehensive review of the case, Rosen opined that “reunification” with
Harris was in T.’s best interests.

                        Following
that recitation of the relevant history, the court’s order summarizes that “[i]n
the end, reunification was launched after a careful assessment of [T.]’s best
interests, in consultation with court experts.” 
The order then directly addressed Judge Schulte’s earlier finding of
past sexual abuse by Harris, acknowledging “[t]he court has a weighty
responsibility to protect this child, particularly given the July 2008 finding
entered by Judge Mary Schulte.  This
judge understands the serious and pernicious effects on the child under any
reunification process (ordered by the court) that may re-victimize a child or
enable an abuser to re-offend or place a child in the home of an abusive
parent.”  The order explained that “while
the [court] does not have the authority to retry this case or set aside the
underlying finding of abuse, [it] does have the authority to give the
underlying abuse finding the weight it deserves when assessing the best interests
of the child.”

                        The
order then reiterated the determination that it is Funk who is primarily responsible
for the complications in this case, noting “the court has drawn a strong
inference [Funk] either manufactures the symptoms, or incites the child to
act-out and the child displays conduct when necessary to justify [Funk’s]
opposition to the court supervised reunification program.”  The court concluded “[u]nder the very unique
and very troubling circumstances at hand, the court is determined to press forward
with reunification – not doing so will affirmatively harm [T.].”  

                        It is
from this order that Funk appeals.

 

DISCUSSION

 

1.  Standard of
Review

                        The challenged order,
while lengthy and complicated, is limited to addressing custody and visitation
rights.  Trial courts have broad
discretion to make such orders and our review is constrained by well-settled
law.  “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.”  (>In re Marriage of Burgess (1996) 13
Cal.4th 25, 32.)  “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.”  (Chalmers
v. Hirschkop (2013) 213 Cal.App.4th 289, 299.)  Significantly, “[w]e are required to uphold
the ruling if it is correct on any basis, regardless of whether such basis was
actually invoked.”  (In re Marriage of Burges, supra, 13 Cal.4th at p. 32.)  

                        Moreover,
“[i]n reviewing any order or judgment we 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.  [Citation.] 
Nonetheless, ‘“all exercises of legal discretion must be grounded in
reasoned judgment and guided by legal principles and policies appropriate to
the particular matter at issue.” 
[Citations.]  Therefore, a
discretionary decision may be reversed if improper criteria were applied or
incorrect legal assumptions were made. 
[Citation.]  Alternatively stated,
if a trial court’s decision is influenced by an erroneous understanding of
applicable law or reflects an unawareness of the full scope of its discretion,
it cannot be said the court has properly exercised its discretion under the
law. . . .  The appellant bears the
burden of showing a trial court abused its discretion.’”  (Chalmers
v. Hirschkop, supra, 213 Cal.App.4th at p. 299.)

2.  Provisions
Conferring “Temporary” Legal Custody of T. on Her Counsel and Delegating
Discretion to Court-Appointed Therapist

                        We first address Funk’s
contention the court erred by awarding “temporary” legal custody of T. to her
counsel, Edgar.  An award of “legal
custody” gives the custodian “the right and the responsibility to make the
decisions relating to the health, education, and welfare of a child.”  (Fam. Code, §§ 3003, 3006.) 

                        Harris
argues Funk cannot challenge this order on appeal because it is merely “temporary”;
in the alternative, he argues that even if the order were appealable, Funk
waived her right to appeal because the order was initially made in October
2011, and the time to appeal that order had long since passed.  We agree with the latter contention.

                        Despite
the court’s use of the word “temporary” in its order granting legal custody to
Edgar, that order did not legally qualify as a temporary custody order.  In
general, “temporary” custody orders are those intended to remain in effect only
during the pendency of a marital dissolution proceeding, and then be superseded
by the final custody award
incorporated into the judgment of dissolution. 
(Fam. Code, §§ 3060, 3061; Lester
v. Lennane (2000) 84 Cal.App.4th 536, 559 [“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”].) 

                        In this
case, the court’s order awarding legal custody of T. to Edgar, however labeled,
simply amounted to a modification of the earlier final custody order which had
granted sole legal and physical custody of T. to Funk.  As such, it was directly appealable when
issued in October 2011, as an order entered after final judgment.  (Code Civ. Pro., § 904.1, subd. (a)(2).)  The general rule is that a party’s failure to
timely appeal from a judgment or appealable order precludes any later attempt
to challenge its merit.  And while that rule
does not apply in cases where the challenged judgment or order exceeded the
court’s fundamental jurisdiction (>People v. Williams (1999) 77 Cal.App.4th
436, 447), this is not such a case.  A
court’s fundamental jurisdiction refers to its “jurisdiction over the subject
matter and the parties in the fundamental sense . . . .”  (Abelleira
v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)  Here, it is beyond dispute that the court had
jurisdiction over both the subject matter of the case – child custody – and the
parties.  Moreover, Family Code section
3040 explicitly authorizes the court in a marital dissolution action to award
custody of children to persons other than the parents.  (Fam. Code, § 3040, subd. (a)(3).)

                        Because
Funk failed to appeal from the court’s initial
order awarding legal custody of T. to Edgar, she has waived her right to
challenge the propriety of that decision. 
The court’s mere refusal to reverse the award in the order she did
challenge, changes nothing.

                        The
same analysis applies to Funk’s contention the court erred by improperly delegating
its discretion to determine a visitation schedule to therapist Rosen.  In its October 2011 order, the court had
already mandated that Rosen “shall develop and
implement a reunification plan between [Harris] and [T.] according to his
discretion.”  (Italics added.)  In the current order, issued nearly eight
months later, the court explicitly states it is merely “continu[ing]” that
prior authority.  If Funk believed the
court had no authority to delegate such discretion to its court-appointed
therapeutic expert, she should have challenged the original appealable order on
that basis.  Her failure to do that
precludes such a challenge now.

                        In any
event, we would not conclude that a court’s mere delegation of the details of
visitation, as opposed to the right to visitation, is improper.  “The court has the sole power to determine
whether visitation will occur.  [Citations.] 
Once visitation is ordered, the court may delegate responsibility for
managing details such as the time, place and manner of visits, none of which
affect a parent’s defined right to see his or her child.”  (In re
E.T. (2013) 217 Cal.App.4th 426, 439.) 
Because Rosen was appointed by the court, and is acting as the court’s
appointed expert, we find no abuse in its decision to delegate the details of
Harris’s visitation to Rosen.

 

>3.  Court’s Alleged Abuse of Discretion

                        Funk also
argues the court’s order reflects an abuse of its discretion because it
reflects a “fail[ure] to properly evaluate [T.’s] best interest.”  Specifically, Funk claims the court erred by
“[e]ffectively overruling a prior judicial finding that [Harris] had sexually
abused [T.]” and by “[f]ailing to consider the history of physical abuse by
[Harris] toward [Funk].”  We find neither
claim persuasive.

                        With
respect to the first point, Funk relies on the doctrine of res judicata to
support her assertion that the court could not “overrul[e]” the earlier sexual
abuse finding, which she emphasizes “was not appealed from and cannot be
re-litigated post-hoc.”  Although we
certainly agree with that legal principle – indeed, it is the very one we have
relied upon above – we nonetheless reject Funk’s attempt to apply it here.  The problem with this argument is that it
ignores the fact that the challenged order in this case modifies >visitation only, not custody.

                        In the
context of child custody and visitation orders, the doctrine of res judicata is
embodied in the “changed-circumstance” rule first announced in >Burchard v. Garay (1986) 42 Cal.3d 531,
535.  As explained in Burchard, the rule requires courts to “preserve the established
mode of custody unless some significant change in circumstances indicates that
a different arrangement would be in the child’s best interest.  The rule thus fosters the dual goals of
judicial economy and protecting stable custody arrangements.”  (Ibid.)  Thus, a final order adjudicating child
custody is treated as binding, and it may be modified in subsequent proceedings
only upon a showing that “there has been a substantial change of circumstances
so affecting the minor child that modification is essential to the child’s
welfare.”  (In re Marriage of Burgess, supra, 13 Cal.4th at p. 37.)

                        However,
in light of the inherently dynamic nature of children and their needs, when the
issue is limited to a modification of visitation,
rather than a formal change in custody, “the changed circumstance rule does not
apply,” and the court retains “residual and broad discretion to modify
visitation orders for legal parents to ‘“obviate time-consuming custody
litigation . . . .”’”  (>Chalmers v. Hirschkop, supra, 213
Cal.App.4th at p. 305.)   

                        Hence,
because the challenged order in this case merely modified visitation, the court
was not bound by the earlier custody order in the same way it might have been
if it had actually modified custody.  Consequently,
the judge’s apparent struggle to both honor the determination of sexual abuse
made by the prior judge in 2008, while at the same time act on his own belief
that it is Funk’s continuing obsession with the abuse issue that is the more
likely source of harm to T. going forward, was largely unnecessary.  The court was required to base its current
visitation order on what it presently believed
to be in T.’s best interest – an analysis which properly >included some consideration of the prior
abuse finding, but was not controlled by it. 
We find no error.

                        And we
are obligated to summarily reject Funk’s assertion the court failed to consider
the history of physical abuse perpetrated by Harris upon her.  The mere fact the court’s order does not
affirmatively address that specific issue in no way establishes the court
failed to consider it.  Because we are
obligated to indulge all inferences in favor of the correctness of the court’s
order, we must presume in the absence of some affirmative showing that the
court did consider all relevant factors
in reaching its decision.  Funk has made
no such showing.

                        Finally,
Funk claims the court also abused its discretion by “[c]reating a conflict of
interest” when it designated Rosen both the “reunification counselor >and [T.’s] therapist.”  (Bold omitted.)  Again, we disagree.  The flaw in Funk’s claim is found in her
characterization of Rosen’s charge:  she
claims he cannot both “promote reunification and neutrally provide therapy and
counseling to [T.] . . . .”  But nothing
in the court’s order obligates Rosen to “promote” any specific outcome.  He is designated to act as a >counselor, not a promoter, and the court
explicitly directs that he will carry out his duties “according to [his]
assessment of reunification process and [T.]’s best interest.”  If anything, his concurrent role as T.’s
therapist puts him in the best position to ensure that any progress toward
normalizing her relationship with Harris will be to her benefit.

 

>4.  Improper Order of Family Reunification Services

                        Lastly,
Funk also challenges the court’s current order on the basis it violates the
statutory prohibition against ordering family reunification services in a custody
dispute.  Although her argument has
significant surface appeal, it is ultimately unpersuasive.  

                        Family
Code section 3026 states in pertinent part: 
“Family reunification services shall not be ordered as a part of a child
custody or visitation rights proceeding

. . . .”  Unfortunately, the
statute does not define the scope of prohibited “[f]amily reunification
services,” and to complicate things further, the court here did characterized activities
specified in its order as “reunification services.” 

                        But our
concern is with the order’s substance,
not its characterization.  And in
substance, this order merely couples the visitation order with a requirement
that both Harris and T. participate in therapy with Rosen, at Harris’s expense.
 Such a requirement could not be construed
as prohibited “reunification services” because it is expressly >authorized by statute in a marital
dissolution case.  Family Code section
3190 provides:  “The court may require
parents or any other party involved in a custody or visitation dispute, and the
minor child, to participate in outpatient counseling with a licensed mental
health professional, or through other community programs and services that
provide appropriate counseling, including, but not limited to, mental health or
substance abuse services, for not more than one year, provided that the program
selected has counseling available for the designated period of time, if the
court finds both of the following:  [¶]
(1) The dispute . . . poses a substantial danger to the best interest of the
child.  [¶] (2) The counseling is in the
best interest of the child.”  (Fam. Code,
§ 3190, subd. (a).)  This case
certainly meets those requirements.

 

DISPOSITION

 

                        The motions
to dismiss and for judicial notice are denied. 
The order is affirmed.  Harris is
to bear his own costs on appeal.

 

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

FYBEL, J.