Opinion
G051825
06-23-2017
D.M., Petitioner and Respondent, v. D.D., Respondent and Appellant.
Debora Donathan, in pro. per., for Respondent and Appellant. Tritt & Tritt and James F. Tritt for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08P000521) OPINION Appeal from an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Debora Donathan, in pro. per., for Respondent and Appellant. Tritt & Tritt and James F. Tritt for Petitioner and Respondent.
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D.D. (mother) appeals from a postjudgment order modifying the custody orders in an action involving D.M. (father) and B.D. (minor). We affirm.
FACTS
Mother's motion to augment the record with various documents is granted. To the extent her motion was intended to be a request for judicial notice, it is denied.
In 2008, father filed a petition for a voluntary declaration of paternity (Fam. Code, § 7574), joint legal custody, and visitation. Minor was then about three years old. Four years later, in October 2012, the court entered a judgment of paternity, ordered mother and father to share joint legal custody, and awarded father primary physical custody of minor.
During those four years, mother and father proved unable to informally resolve their differences time and again. In 2009, the court appointed a co-parenting therapist to help, but nothing changed.
In 2011, the court appointed an expert (Evid. Code, § 730), at father's request and expense, to conduct a child custody evaluation and to help the court evaluate allegations mother was unstable, alienated the minor's affections, and interfered with father's custody time. However, mother refused to cooperate with the evaluator and the evaluation was never completed.
In March 2014, father filed a request for order alleging mother refused to comply with the court's custody orders. Before the hearing, the parties agreed to modify those orders. Their agreement states in part, (1) "[e]ach party shall ensure that [minor] attends all baseball activities on time and for the full time participation including games, practices, and team events, unless there is a special event with Cub Scouts, at which point the parties shall meet and confer regarding [minor's] attendance at baseball or Cub Scouts," and (2) "[b]aseball shall take priority over any and all other activities, unless agreed to in writing between the parties . . . ."
In February 2015, father sought to further modify the custody orders. Father again accused mother of being uncooperative. He said mother refused to transport minor to any baseball activities as required by the February 2014 modification. As a result, minor had missed six baseball games and the initial team orientation. Father feared minor would miss more of the current baseball season.
Father wanted the court to issue orders allowing minor to play year-round baseball, in his then current baseball league. Also, to make sure minor did not miss any further baseball activities, father wanted sole responsibility for transporting minor to and from all baseball activities. And, to achieve this goal, father wanted an additional hour of custody time both before and after each baseball activity.
Father also submitted a declaration from minor's baseball coach, Chet Kirby. According to Kirby, mother would not respond to phone calls or e-mails, and she had caused minor to miss half of the previous baseball season. In fact, mother's failure to bring the minor to tryouts deprived him of the chance to be drafted into an advanced league.
Mother submitted a declaration in opposition. Mother argued father's request for modification on an ex parte basis was improper because he had not proved any likelihood of "irreparable harm" warranting modification. Mother also alleged father's request for modification was improper, frivolous, and sought solely for the purpose of harassment.
On April 21, the day set for hearing, mother moved for a continuance to obtain counsel. The court reviewed the court file and discovered mother's prior attorney had substituted out of the case a month before, on the same day the court set the April 21 hearing date. Nevertheless, the court gave mother the option of a two-week continuance with temporary orders in father's favor, or a hearing that day. Mother opted to go forward with the hearing that day and to represent herself.
Mother was sworn and testified minor only played baseball to please father, and it was not in his best interests to continue. Baseball interfered with her church obligations, and she believed karate or basketball would be better than baseball. Mother accused father's wife of attacking her, and mother was angry because the incident resulted in "a domestic violence accusation" against her. She also asserted the fact father's wife had recently given birth to another child constituted a change of circumstances warranting a reduction in father's custody.
The court rejected mother's assertion playing baseball was not in the minor's best interests. Instead, the court ordered mother and father to give minor the opportunity to play baseball year-round. In the meantime, minor was to remain in the Huntington West Little league, with which the Robinwood Little League had merged, and father was to have the final say on choice of baseball leagues.
In addition, the court ordered father to have sole responsibility for transporting minor to and from baseball activities. When baseball activities occurred during mother's regular custodial times, the court ordered her to make minor available at her home for father to transport minor to and from baseball activities. The court also gave father an extra hour of custodial time both before and after baseball activities for this purpose, and pointed out these hours were in addition to father's regular custodial time, "and shall take priority over [mother's] regular custodial time under the Judgment." Mother appealed.
DISCUSSION
Mother essentially argues the court abused its discretion and violated her constitutional rights by increasing father's custodial time to facilitate baseball activities as described above. We disagree, but begin with some preliminary matters.
Prior to oral argument, mother asserted the case might be moot because father had recently moved into an area outside the minor's baseball league. We requested supplemental briefs on the issue, and we have determined the appeal is not moot. --------
Father asks us to dismiss the appeal, and award him attorney's fees, costs, and sanctions under the doctrine of disentitlement, various California statutes, and the California Rules of Court. He asserts mother's repeated refusals to follow the court's orders, request a statement of decision, provide this court with an adequate appellate record, or file a brief in compliance with the California Rules of Court, are all evidence her appeal is frivolous and sought solely for the purpose of delay and harassment.
We agree to this extent. Mother's briefs are seriously deficient in many respects. Most of the factual assertions in mother's 17-page opening brief and 62-page reply brief are unsupported by citation to the record as required by California Rules of Court, rule 8.204(a)(1)(C). It is not our task to search the record for evidence that supports the party's factual statements, and we may disregard statements not supported by proper citation. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.)
Further, none of mother's ostensible legal arguments are supported by citation to authority, nor are they placed under discrete headings setting out the issues, as required by California Rules of Court, rule 8.204(a)(1)(B). When a party fails to cite proper legal authority to support his or her legal contentions, this court need not consider them. (In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510, 515; Regents of University of California v. Sheily, supra, 122 Cal.App.4th at p. 826, fn. 1.)
In fact, we could consider the entire appeal forfeited for mother's failure to follow the rules of court. (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 53) Her decision to proceed in propria persona does not relieve her of the obligation to follow those rules. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [self represented parties must meet same standards as lawyers].) Nevertheless, father's request for sanctions is in his respondent's brief, not in a separately noticed motion as required by California Rules of Court, rule 8.276(b), and we decline to exercise our discretion to impose any of the other requested sanctions, save costs.
Turning to the merits, trial courts retain the widest discretion to fashion custody orders that are in the minor's best interest. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) An abuse of discretion only occurs when the trial court exceeds the bounds of reason. (Ibid.) Unless the trial court's determination is arbitrary, capricious, or patently absurd, it is entitled to great deference. (Ibid.)
Regarding the minor's best interests, the court may consider "the [minor's] health, safety, and welfare, any history of abuse by one parent against any [minor] or the other parent, and the nature and amount of the [minor's] contact with the parents." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; see Fam. Code, § 3011.)
The record in this case reveals no abuse of discretion. The court found minor plays baseball because he is good and genuinely enjoys it, not just to please father. Nevertheless, mother steadfastly refused to facilitate anything related to minor's interest in baseball. Her refusal included intentionally violating court orders by not transporting him to baseball games and events. Given these facts, mother left the court with few options. In our view, the court properly balanced the minor's desire to play baseball against mother's competing wish to prevent it.
Mother makes several miscellaneous arguments based on her misperception or misrepresentation of the record. She asserts the court improperly pushed her to proceed without counsel. But as the court noted, mother had no valid reason for being without counsel on the day of the hearing. The hearing had been scheduled the month before at the same time mother's then attorney substituted out of the case. Moreover, the court offered mother the option of a two-week continuance to obtain counsel. She chose to proceed in propria persona rather than wait.
Mother also claims the court prevented her from testifying. Not true. Mother was sworn at the beginning of the hearing and the court permitted ample time for her testimony. On occasion, the court stopped mother when her comments veered off topic, but the court did not prevent her from presenting her case.
Nor did the court minimize the impact of the modification on her custodial time. To the contrary, the court made every effort to hear and consider the impact of the modification on all parties, and then came to a reasoned resolution. Mother's concerns were thoroughly addressed. She is simply unhappy with the outcome.
Mother also seems to believe father had to prove a change in circumstances in order to justify the modification. She is wrong. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1379-1382 [changed circumstances rule does not apply].)
Finally, mother contends the court erred by not ordering the parties to mediation. Mother misunderstands the mediation requirement. "Mediation is provided early in the proceeding to help the parents to reach their own resolution of such disputes. When mediation is unsuccessful in resolving the custody or visitation dispute, the statutory requirement has been met and a resubmittal to mediation need not be ordered at the request of a party upon trial of that dispute." (In re Marriage of Green (1989) 213 Cal.App.3d 14, 25.) Here, three prior mediation orders yielded no results. Thus, the court was not required to order mediation yet again.
DISPOSITION
The order is affirmed. Father shall recover his costs on appeal.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.