Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-00350
Swager, J.
Appellant James B. Kisiel appeals from the trial court’s order granting respondent Rachel Holton’s motion to be allowed to move out of state with the parties’ three minor children.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is the second time appellant has pursued an appeal in this family law proceeding. The parties were previously married to each other and had four children. At all times relevant to this appeal, respondent had sole legal custody and primary physical custody of the children.
The first appeal resulted in an unpublished opinion. (In re Marriage of Kisiel (Dec. 23, 2004) A103392.)
As one of the children was almost 18 years old, he was not included in respondent’s move-away request.
On April 24, 2006, respondent filed a motion to modify child visitation so that she could relocate with the children to Georgia. The hearing was set for May 22, 2006. The motion was not served on appellant within the applicable time period as required by Code of Civil Procedure section 1005, subdivision (b).
On May 22, 2006, appellant appeared in court and objected to the improper service. The trial court informed respondent that the motion would have to be reissued and properly served unless she obtained an ex parte order shortening time.
On May 31, 2006, respondent’s ex parte motion for an order shortening time was heard by Commissioner Williams. Respondent alleged that an order shortening time on her move-away motion was necessary because she was planning on moving out of state on June 20, 2006, so that her husband could start his new job on June 26, 2006. Appellant asserted that he had a right to have the motion heard by a judge because the case concerned a child custody matter. The commissioner denied the request, on the ground that commissioners are empowered to hear ex parte motions. Appellant then argued that an order shortening time was not authorized in move-away cases and claimed that such an order would deprive him of time to conduct adequate discovery. The order shortening time was granted and the matter was set for June 12, 2006. The commissioner advised appellant to ask the trial court to review the propriety of the order.
On June 12, 2006, the trial court found the order shortening time was properly granted, “based on the factual circumstances of trying to get the matter resolved during a time when the children are on the summer break from the school schedule.” The trial court also found that sufficient opportunity for discovery had been provided as appellant’s own motion for change of custody had been pending for over a year.
The matter was heard all day on June 16, 2006. The hearing was continued to June 29, 2006, for another all-day hearing.
On July 6, 2006, after two more hours of rebuttal testimony and closing arguments, the court granted the move-away request. This appeal followed.
DISCUSSION
Appellant raises numerous claims of error. Very few of these claims, however, pertain to the substance of the court’s actual order.
I. Order Shortening Time
Appellant claims that the court erred in granting respondent’s ex parte motion for an order shortening time. We review the court’s ruling for an abuse of discretion. “[I]t is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.)
He first contends that no exigent circumstances were present, arguing that “Respondent’s inability to follow the California Rules of Court does not constitute an emergency.” He also claims the trial court judge erred in citing the need to resolve the matter before the end of summer break as an additional justification for the commissioner’s ruling. He further claims the ex parte motion was defective because the attorney appointed to represent the minors was not listed as a party. Additionally, he argues that it was improper for a commissioner to have made the initial order because he did not stipulate to have the matter heard by a commissioner.
We note that respondent’s failure to timely serve the motion she filed on April 24, 2006, appears, in part, to have been the result of appellant’s conscious avoidance of service. Respondent’s declaration to her ex parte motion states that the process server knocked on appellant’s door on April 25, 2006, but he refused service. Moreover, his conduct appears to have been strategic. In refusing to stipulate to the late service, he stated: “There is no advantage for me to stipulate to this. I would love for Ms. Holton to be doing this hearing while she’s in Georgia. I think that would work in my best interest.”
Appellant unsuccessfully argued below that courts are prohibited from granting orders shortening time in move-away cases. Our own research has led us to one case wherein the reviewing court determined that a trial court had erred in granting an ex parte order shortening time; however, that case is distinguishable. In In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar), the mother had applied for an ex parte order shortening time when she filed her order to show cause seeking modification of custody. “As evidence in support of her application, [the mother] submitted the declaration of her attorney, who stated: (1) [Father] withdrew his March OSC set for hearing on October 13, 2004; (2) Dr. Adam had been appointed to conduct a limited Evidence Code section 730 evaluation and had completed that evaluation; and (3) ‘[i]t is necessary for the Court to issue a new custody order for the four minor children because [mother] has remarried and is moving, with the children, to the State of Virginia.’ ” (Seagondollar, supra, at p. 1129.) The appellate court found that the trial court had erred in granting the order shortening time because the facts asserted “merely restate the basis for seeking the modification: They do not constitute good cause for shortening time to hear such an important matter as an OSC to modify custody and approve a move-away.” (Ibid.)
Unlike the petitioner in Seagondollar, respondent offered a specific, time-based justification for expediting the proceedings, namely, the family’s need to relocate for her husband’s new job. We find the commissioner did not abuse his discretion in granting the order shortening time. The fact that the trial court was also concerned that the matter be resolved prior to the start of the school year does nothing to lessen the validity of the commissioner’s initial ruling. Accordingly, the trial court did not err in upholding the commissioner’s decision.
Appellant claims respondent’s statements regarding her need to move were untruthful because, in fact, she did not move until later in the summer. We believe it is reasonable to conclude that the delay was caused by the pendency of the proceedings and not by respondent’s alleged deception.
With respect to respondent’s failure to list the minors’ attorney as a party, we have reviewed the hearing transcript and see no indication that this issue was raised below. By failing to give the trial court the opportunity to correct this alleged error, appellant has forfeited the issue on appeal. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 (North Coast) [failure to preserve a point below constitutes a waiver of the point].) There is a basic duty to call to the court’s attention issues a party deems relevant. “ ‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them.’ ” (Sommer v. Martin (1921) 55 Cal.App. 603, 610; accord In re Seaton (2004) 34 Cal.4th 193, 198.) Accordingly, we deem the issue waived and we need not consider it.
Finally, with respect to the propriety of the commissioner’s actions, we note that Code of Civil Procedure section 259 provides that “[s]ubject to the supervision of the court, every court commissioner shall have power to . . . (a) [h]ear and determine ex parte motions for orders . . . in the superior court for which the court commissioner is appointed.” Accordingly, the commissioner had the authority to rule on respondent’s ex parte motion.
II. Actions of Appointed Attorneys
Appellant claims that the trial court evidenced bias against him by allowing the attorney appointed on behalf of the minors and the attorney appointed to represent respondent in an unrelated contempt proceeding to perform beyond their appointments. His argument is unsupported by citation to any legal authority. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785, italics added.) In any event, we have reviewed the reporter’s transcript of the proceedings and believe neither attorney exceeded the scope of his authorized representation.
With respect to the attorney appointed to represent the minors, Family Code section 3151, subdivision (a), provides: “The child’s counsel appointed under this chapter is charged with the representation of the child’s best interests. The role of the child’s counsel is to gather facts that bear on the best interests of the child, and present those facts to the court, including the child’s wishes when counsel deems it appropriate for consideration by the court pursuant to Section 3042. The counsel’s duties, unless under the circumstances it is inappropriate to exercise the duty, include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain facts relevant to the custody or visitation hearings.”
All subsequent statutory references are to the Family Code.
Our review of the record does not indicate that the minors’ counsel endeavored to represent respondent or to advocate on her behalf. To the extent his positions were aligned with hers, they appear to have been based on his assessment of what was best for the children. For example, counsel suggested that the matter could be heard on a shortened time because appellant already had a custody matter pending and because it would be in the best interest of the children to have the matter resolved sooner rather than later. At the hearing, appellant objected that appointed counsel appeared to be advocating respondent’s position. The court disagreed, stating that appointed counsel’s goal “was for the best interest of the children . . . and I think he thought to have the issue resolved, which normally, the sooner the better.”
At other times, the minors’ counsel provided clarification to the court concerning the status of the proceedings. For example, he explained to the court the facts that led to appellant’s request to review the propriety of the commissioner’s ruling on the ex parte motion. He also explained the status of the contempt proceeding. On occasion the court asked appointed counsel for his opinion regarding certain procedural matters, such as the order in which the testimony should proceed. Appointed counsel also provided information concerning the children’s wishes regarding the move and his perceptions of whether the children would benefit from moving with respondent. We see nothing improper in the actions of minors’ counsel.
Appellant also objects to the participation by counsel appointed to represent respondent in the contempt proceeding that he had brought against her. Her attorney came to the hearing on June 29, 2006, at the court’s request. At issue was whether, by testifying, respondent would be implicating her right to refrain from self-incrimination with respect to the pending contempt proceeding. Twice during the hearing, the court appropriately admonished counsel to restrict his comments to matters pertaining to the contempt proceeding only. We find no error.
III. Bias on the Part of the Court
1. Time Allotted for Presentation of Appellant’s Case
Appellant claims that the trial court demonstrated bias against him by depriving him of sufficient time to present his case. His claim is not well-taken.
Prior to the hearing on the proposed move-away, respondent estimated that her case would take two hours. Appellant estimated that his presentation would take four hours.
The first day of the hearing was June 16, 2006, beginning at 9:30 a.m. The record shows that respondent proceeded by calling herself as a witness and finishing her testimony sometime before lunch. The rest of the day was spent almost entirely on appellant’s cross-examination of respondent. At the conclusion of the day, the court continued the hearing and gave respondent four hours to complete his case.
The second day of the hearing was held on June 29, 2006, beginning at 9:00 a.m. After a brief presentation, respondent rested her case. At the conclusion of the first half of the day, the court gave appellant an additional four hours. The court gave him the rest of the day to present his case. Appellant objected stating “Ms. Holton did tell you that she needed two hours . . . . You gave her six. And you’re putting time restraints, once again, somehow I’m the bad guy.” The court responded: “The reason that time was spend [sic] is you spent five hours cross-examining her.” “She was done presenting her case in one hour,” to which appellant replied, “cross-examination is still part of her case.”
The final day of the hearing was July 6, 2006. Each party was given an hour to wrap up their presentations and make closing arguments.
While appellant complains that the court favored respondent by not allotting sufficient time for him to present his case, he does not identify any additional evidence that he would have brought forth had he been given more time. Our reading of the reporter’s transcript satisfies us that respondent was given ample opportunity to present his evidence and to argue against the move-away. We find no error.
2. Receipt of Respondent’s Evidence
Appellant claims the court improperly accepted respondent’s evidence without complying with California Rules of Court, rule 3.1306. This objection was not raised below and, again, must be deemed waived. (North Coast, supra, 17 Cal.App.4th 22, 28–29.) Appellant did raise a hearsay objection to respondent’s printouts of school data from the Internet, but the court accepted the evidence under the business records exception. Appellant does not claim the court erred in so ruling.
California Rules of Court, rule 3.1306(b) does not appear to be relevant in any case, as that paragraph applies to oral testimony only.
3. Preparation of the Court’s Order
Appellant claims that the court did not give any weight to his case because the court’s multi-page order was ready a mere 15 minutes after the parties completed their closing arguments. He also raises a procedural objection, arguing that under California Rules of Court, rule 3.1312(a) (rule 3.1312(a)), respondent should have been made to prepare the proposed order and it should have been given to him first for review. He claims the court “is doing the Respondent’s responsibilities without stipulation from all parties.” He also objects that the court later modified this order by imposing more expenses and responsibilities on him. Appellant’s contentions have no merit.
Rule 3.1312(a) provides, in part: “Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court’s order.” (Italics added.) The fact that the court took it upon itself to prepare the order after hearing does not constitute a violation of this rule. The evidentiary hearing in this case concluded on June 29, 2006. Thus, the court had several days prior to the parties’ closing statements on July 6, 2006, to consider its draft order. We find nothing remarkable about the fact that the court spent time preparing its order in advance of closing arguments. Moreover, the court went over its initial draft of the order with the parties in open court and allowed the parties to comment on the order again at a hearing held on July 24, 2006. Appellant was thus given ample opportunity to raise objections or to suggest modifications to the order.
4. Failure to Consider Detriment
Appellant claims that the trial court erred in finding that the children would not incur any detriment by moving out of state. We disagree.
Section 7501, subdivision (a), provides: “A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” In reviewing a trial court’s order made in response to a custodial parent’s request to relocate with the child, we apply a deferential abuse of discretion standard of review. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1086.) “The reviewing court must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court’s ruling.” (In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1337 (Carlson), overruled on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25, 37-38, fn. 9 (Burgess).)
As a reviewing court “ ‘our power begins and ends with a determination as to whether there is any substantial evidence to support [the trial court’s findings]; . . . we have no power to judge . . . the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’ ” (In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.) We ask “whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child.” (Carlson, supra, 229 Cal.App.3d 1330, 1337.)
Among the factors the court ordinarily should consider when deciding whether to modify custody in light of a proposed move are the following: the child’s interest in stability and continuity in the custodial arrangement; the distance of the move; the child’s age; the child’s relationship with both parents; the relationship between the parents, including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the child’s interests above their individual interests; the child’s wishes if the child is mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently share custody. (LaMusga, supra, 32 Cal.4th 1072, 1101.) “[T]he noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody.” (Id. at p. 1078.)
Appellant does not set forth any aspect of the alleged detriment to the children that he believes the trial court failed to consider. Other than indicating that he submitted evidence relevant to respondent’s past behavior with respect to their custody arrangements, he does not cite to any specific evidence of detriment. “We are not required to make an independent, unassisted study of the record in search of error or grounds to challenge a trial court’s action.” (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.) “It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
We appreciate the effort involved in both parties representing themselves in these proceedings. But self-representation does not exempt a litigant from the requirements of the law. “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is [sic] required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.’ [Citations.]” (Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208–209.) A self-representing party is due the same consideration as any other party from trial and appellate courts, but no greater. (Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160; see also Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)
Appellant also claims the court erred in reducing his custody timeshare without ordering an expert evaluation. As noted above, one of the justifications for allowing the proceeding to move forward on an expedited basis was that appellant had brought his own motion to modify custody and that the matter had been pending for some time. In her brief, respondent states that appellant himself told the court in that matter that an expert evaluation was unnecessary. None of this history is in the record before us, and we therefore are unable to address this claim. We also note that appellant does not set forth by what percentage his timeshare has now been reduced.
We note that respondent’s brief fails to cite to any portion of the record on appeal. Recitation of evidence in a brief must be supported by appropriate reference to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
5. Considering Wishes of the Children
Appellant also complains that the court improperly allowed the children to decide with which parent they would reside. His argument fails.
A court must consider and give due weight to the child’s wishes, if the child is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody.” (§ 3042, subd. (a).) While the court must consider the child’s preferences, it is not required to find those preferences persuasive in light of what the child’s best interests appear to be on the evidence before the court. (See, e.g., In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110–111.)
At the time of the court’s ruling, the parties’ daughter was 11 years old and the twin boys were 13 years of age. They were old enough for the court to consider their desires with respect to the move. “With children 10 and 13 years of age we believe it is peculiarly the function of the trial judge to determine what consideration is to be given, if any, to their expressed preference as to custody.” (In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, disapproved on other grounds in Burgess, supra, 13 Cal.4th 25, 38-39, fn. 10.) The minors’ appointed counsel reported that the children wanted to move to Georgia with their mother and then live with their father during the summers. While this arrangement coincides with the terms of the court’s order, our review of the record does not indicate that the court abdicated its authority by simply allowing the children to decide where they wanted to live. It was proper for the court to consider the children’s opinions in addition to the other evidence that was before it.
DISPOSITION
The order is affirmed.
We concur: Stein, Acting P. J., Margulies, J.