Opinion
E067005
06-28-2018
HELEN DYER, Plaintiff and Respondent, v. DANIEL RAMOS, Defendant and Appellant.
Brad Jefferson Landon for Defendant and Appellant. Law Offices of John G. McGill, Jr. and John G. McGill, Jr. for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWD1502498) OPINION APPEAL from the Superior Court of Riverside County. James T. Warren, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Brad Jefferson Landon for Defendant and Appellant. Law Offices of John G. McGill, Jr. and John G. McGill, Jr. for Plaintiff and Respondent.
Helen Dyer filed a petition for visitation with her grandchildren — the children of her deceased daughter Jennifer Zavala. Their father, Daniel Ramos, opposed the petition. On the date set for the trial on the petition, Daniel (who was in pro. per.) agreed that Helen could have in-person visitation for four hours on alternate Thursdays and telephone visitation for half an hour on Tuesdays and Thursdays. Accordingly — without actually holding a trial — the trial court so ordered.
From here on, we will refer to the parties by their first names, for two reasons. First, this has become customary in family law cases. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 531, fn. 2.) Second, first names make it easier for the reader to keep track of who is the grandmother and who is the father.
Daniel appeals. Although his objections to grandparent visitation appear (at least on this limited record) to arise out of genuine and well-founded concerns about the best interest of his children, we are forced to conclude that he forfeited any appellate challenge by consenting to the trial court's order.
I
FACTUAL BACKGROUND
We draw the following background facts from the declarations that the parties filed before trial. We approach our task gingerly, because the trial court never made any factual findings. Hence, we limit our discussion to matters that appear to be undisputed, except that, in a few instances, we set forth both sides' positions on a disputed point.
Helen Dyer is the mother of Jennifer Zavala. Daniel and Jennifer were married for ten years; they had two daughters together. In 2010, Jennifer was diagnosed with cancer. In 2014, Daniel and Jennifer were divorced. Jennifer had custody of the girls and Daniel had visitation, including on weekends.
At some point in 2015, because of Jennifer's cancer, she and the children moved in with Helen and Helen's husband. They stayed there for either six weeks (according to Daniel) or five months (according to Helen). During this time, Daniel had difficulty contacting the girls. On June 12, the divorce court ordered Helen to return the girls to Daniel "after funeral services are completed."
On June 22, Jennifer died. On June 22 or 23, Daniel went to Helen's house to see the girls. Somehow, the police became involved. Daniel had made appointments for the girls to have counseling after Jennifer's death. Helen, however, canceled the appointments. Helen did return the girls to Daniel immediately after Jennifer's funeral, on July 2 or 6.
Thereafter, according to Helen, Daniel denied her any contact with the girls. According to Daniel, however, he allowed phone contact; Helen was invited to visit the girls at his home, but she either did not respond or refused to visit. On October 18, Helen's adult son made a fairly nasty threat to beat and/or kill Daniel. The next day, Daniel told Helen to "stay out of our life."
II
PROCEDURAL BACKGROUND
On October 21, 2015, Helen filed a petition for grandparent visitation and a request for an order for grandparent visitation. Throughout the trial court proceedings, Daniel represented himself.
On December 15, 2015, February 25, 2016, and May 26, 2016, the trial court made various interim orders. These included an order allowing Helen and her husband to have one four-hour visit a month. It set a trial on the petition for August 23, 2016.
Helen's husband was not biologically related to the girls and was not a party to the petition. In her request for orders, Helen asked that he be joined "as necessary." (Capitalization altered.) It does not appear that the trial court ever ruled on this request. Nevertheless, in its interim orders, as well as in its final order, it allowed both Helen's husband and Helen to have visitation.
On August 23, 2016, the trial court called the matter for trial. Ultimately, however, it did not take evidence. The parties were sworn, but they were never examined; when the trial court asked questions, Helen's counsel responded on her behalf. And the trial court did not admit any exhibits. Helen's counsel did "move all [his] client's declarations into evidence." However, when the trial court asked, "You want to submit on the declarations already filed by your clients in this case; is that correct?," he indicated that he also wanted to call the Dyers to testify (unless the trial court would accept an offer of proof in lieu of their testimony). They never actually testified, and the trial court never actually admitted the declarations.
Daniel — who was in pro. per — also responded to the trial court's questions. As he had been sworn, it could be argued that his responses were "evidence." However, he was not allowed to examine himself, and Helen was not allowed to cross-examine him. Thus, it seems clear that the trial court regarded the entire exchange as an informal discussion or argument, not testimony.
Instead, the trial court asked Daniel, "[W]here are we in this case . . . ?" Daniel said he had offered to let Helen talk to the girls on the phone, provided he could record the calls, in case she made derogatory comments; she had refused. He also indicated that he was willing to set up a visitation schedule and had tried to do so, but Helen's attorney would not respond.
The trial court said:
"[THE COURT:] I recognize under the Constitution your rights as a parent. I want you to understand that. The case law is very clear that you have the right to make determinations about these children, and Mr. and Mrs. Dyer need to understand that this is a very well-protected constitutional right that we as parents have to determine what should happen with our children. Okay? On the other hand, these children are grieving just as you're grieving and certainly, just as the Dyers, are grieving over the loss of their mother, and I just want to do something so that we can have some sort of amicable relationship between you and the maternal grandparents so that these people can have contact and can have visitation with their grandchildren. . . . But I have to recognize that their parents have the right to choose to determine that and choose who their children will or will not associate with. Do you understand sir?
"MR. RAMOS: Yes, I do, Your Honor."
The trial court said:
""THE COURT: Let me ask you, Mr. Ramos, would you agree to allow Mrs. Dyer to tape-record the conversations along with you?
"MR. RAMOS: Yeah. That's no problem.
"THE COURT: Could we then set up a specific time so that Mr. or Mrs. Dyer could talk with the children with the conversations to be recorded by both parties if you want to record them? Yes?
"MR. RAMOS: Yes.
"THE COURT: What would you propose would be the specific time to do that?
"MR. RAMOS: Either a Tuesday night or Thursday night.
"THE COURT: How about every Tuesday and Thursday between what hours?
"MR. RAMOS: Between 7:00 and 8:00.
"THE COURT: Between 7:00 and 8:00?
"MR. RAMOS: How long? A 20-minute phone call? Fifteen-minute?
"THE COURT: There are two girls. Let's make it a half an hour. Okay?
"MR. RAMOS: Okay."
The trial court also said :
"THE COURT: . . . Is it possible that we can set up some regular visitation time between the Dyers and the girls?
"MR. RAMOS: Yeah. If it's supervised at this point, Your Honor.
"THE COURT: Why does it have to be supervised, sir?
"MR. RAMOS: Because when they're alone, that's when she starts telling the girls things that are not to be discussed with them. My daughters come back different when they go to visit with her.
"THE COURT: Mr. Ramos, I'm going to do this: I'm going to order that the girls — are you working Monday through Friday, sir?
"MR. RAMOS: Yes, sir. [¶] . . . [¶] . . .
"THE COURT: What are your hours, sir?
"MR. RAMOS: They vary anywhere from 6:00 in the morning to 4:00 in the afternoon. 3:00, 2:00, 5:00.
"THE COURT: When do the girls get out of school?
"MR. RAMOS: . . . One gets out at 1:45, and I believe the other one is 2:20. [¶] . . . [¶] . . .
"THE COURT: And 2:20? I'm inclined to order that the Dyers would be able to have the children for dinner every other Thursday from 3:00 p.m. to 7:00 p.m. Do you think you can handle that, sir?
"MR. RAMOS: Yeah. . . . [¶] . . . [¶] . . . [W]hat is the point of recording the phone calls to prevent Mrs. Dyer from saying things that she shouldn't be saying to them and then letting them go off alone with her?
"THE COURT: Because I want the therapist to address that particular issue, and I want to see how it goes, and I want to see you back here in about 30 days to see what's happening.
"MR. RAMOS: . . . [W]hat do I do if I go and ask the therapist to release information to [Helen's counsel] or to the Court and she says she doesn't want to be involved and she drops them again? How would that be in their best interest?
At one point, the girls' therapist had quit, claiming that Helen "began to call several of our offices for information, several times a day, asking questions that the staff could not answer because it would breach confidentiality. At one point she was most inappropriate with a secretary and had her in tears."
"THE COURT: . . . I want you to advise the therapist that we just want letters . . . telling us . . . briefly how the girls are progressing and to give the Court and [Helen's counsel] information concerning any neglect or derogatory remarks that the girls may report to the therapist . . . , that way the Dyers do not have to have contact with [the therapist]. . . .
"MR. RAMOS: Okay."
The trial court then ordered that Helen and her husband could have in-person visitation for four hours every other Thursday and telephone visits for half an hour every Tuesday and Thursday. On September 21, 2017, it entered a formal written order to the same effect.
III
VIOLATION OF PARENT'S CONSTITUTIONAL RIGHTS
Daniel — now represented by counsel — contends that allowing grandparent visitation violated his fundamental constitutional rights as a parent, as declared in Troxel v. Granville (2000) 530 U.S. 57.
Daniel forfeited this contention by consenting to the trial court's order. It is true that, in one of his responsive declarations, he said, "If this [o]rder is granted visitation goes against my parental authority and constitutional right as a parent." But despite this objection, at trial, he agreed with all of the trial court's proposals. "'It is well-settled law in California that a party cannot object to a judgment, order, or ruling consented to by him. [Citations.] This court will not disturb an order or judgment on an appeal taken by a party who consented thereto. [Citation.]'" (Wilson v. City of Los Angeles (1958) 156 Cal.App.2d 776, 777-778.)
Certainly Daniel knew that he did not have to agree. At an earlier hearing, Helen's counsel asked that she be allowed to have visitation on the fifth weekend of any month. The trial court then asked Daniel if he was willing to allow visitation on fifth weekends; he said, "No," and that was the end of it. At another earlier hearing, Helen's counsel asked that she be allowed to go along on a field trip with the girls. The trial court asked Daniel if he objected; when he did, it denied the request. At the final hearing, as quoted in part II, ante, the trial court described and acknowledged Daniel's constitutional right, as a parent, to make determinations about his children. It simply asked him to compromise that right to the extent necessary to allow the girls to have a relationship with their grandmother. And he agreed.
The only aspect of the trial court's order to which Daniel even arguably did not consent was that the visitation be unsupervised rather than supervised. However, he is not arguing that this was error; he is arguing that visitation should not have been allowed at all.
We understand that Daniel did not have counsel. We also understand that it can be hard to say no to an authority figure like a trial court judge. Daniel was trying to be a nice guy. Nevertheless, we cannot fault the trial court for seeking to resolve the issues before it by agreement. Likewise, we cannot fault it for entering an order to which Daniel consented.
IV
CONTROLLING STATUTE
Daniel contends that the trial court erred by proceeding under Family Code section 3104 rather than under Family Code section 3102.
Family Code section 3104, as relevant here, provides:
"(a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:
"(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
"(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority."
Family Code section 3102, as relevant here, provides:
"(a) If either parent of an unemancipated minor child is deceased, the . . . parents . . . of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child."
Helen's petition requested "visitation pursuant to Family Code Section 3100 et seq." She filed a memorandum of points and authorities in which she stated, "Fam. C. § 3104 is not the law applicable to this request for grandparent visitation, Fam. C. § 3102 is." (Capitalization altered.) However, she argued that she was entitled to visitation under either provision.
At trial, the trial court announced, "This matter is here for trial on the issue of prove-up by [Helen] of a relationship under 3104 of the Family Code and 3102 of the Family Code." In its order, the trial court did not cite any particular statute.
This record does not show that the trial court did, in fact, proceed under Family Code section 3104 rather than under Family Code section 3102.
In any event, Daniel concedes that "[w]hether an action is brought under Family Code § 3102 or Family Code § 3104 the same analysis applies." Thus, he cannot show that the asserted error was prejudicial. (Cal. Const., art. VI, § 13.)
V
INTERIM ORDERS
Daniel contends that the trial court erred by making interim orders without holding evidentiary hearings.
He forfeited this contention by failing to raise it below. "Appellate courts generally will not consider matters presented for the first time on appeal. [Citations.]" (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143.) He additionally forfeited it by consenting to the interim orders. (See part III, ante.)
In any event, the interim orders have become moot in light of the trial court's entry of final orders. (County of San Diego v. State of California (1997) 15 Cal.4th 68, 110.)
VI
DISPOSITION
The order appealed from is affirmed. In the interest of justice, each side shall bear its own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.