Opinion
C078864
02-03-2017
In re the Marriage of JULIE and EUGENE ASHBY. JULIE BARNETT, Appellant, v. EUGENE ASHBY, Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09FL07389)
In this high conflict custody case, Julie Marie Barnett ("mother" in the trial court) believes Eugene Silas Ashby, Jr. ("father"), her former husband, molested their two boys. She has subjected them to multiple criminal and civil evaluations and investigations in two states, each of which concluded the boys were not molested. Barnett's response has been to attack the investigators, including the court-appointed evaluator agreed upon by the parties (Dr. Eugene Roeder), claiming they are incompetent or mistaken. After a 17- day court trial, with extensive competing expert and lay testimony, and voluminous documentation, the family court found in a 29-page statement of decision that no molestation took place.
We reject Barnett's view that we must review three aspects of the judgment de novo, based on purported purely legal errors that, on inspection, amount to routine exercises of the family court's discretion. Because Barnett does not contend the trial court abused its discretion, we do not consider that separate point.
Because Ashby's brief fails to contain a single record citation, we deem forfeited his claims that the family court should have declared him the prevailing party and awarded him fees or sanctions. Accordingly, we shall affirm the custody judgment from which the appeals were taken.
We note that the highly experienced family law judge displayed exemplary patience during the very lengthy trial. We can only hope this appeal ends the unnecessary quarreling between the parents, because it is not healthy for the children.
BACKGROUND
An introductory part of the family court's thoughtful and extensive statement of decision describes some of the difficulties presented during the trial under review:
"The witnesses included the parties, their spouses, relatives of mother, the court's appointed custody expert, two experts retained by mother, Child Protective Services social workers, Sacramento County Sheriff's deputies, and persons familiar with a party or parties and/or the children. The principal issue is the alleged sexual molestation of the two boys. Mother contends that father has been molesting the boys for years and father contends that mother is falsely accusing him of molestation. The children have been interviewed countless times by C.P.S. social workers, Family Court Services counselors, law enforcement, forensic multiple disciplinary social workers, the court appointed expert, by and large not disclosing molest[ation] and/or denying that it occurred. Much of mother's evidence went to the lack of competence of these interviewers and the inadequacy of their investigations. The other issues concern allegations of domestic violence, mother exposing the children to a culture of denigration of father, and the best interests of the children in a custody determination.
"This case presents great difficulty to a trier of fact because of credibility issues of both the parties and the step-father and lack of reliability of their [testimony]. The expert testimony assumed true the assertions made by the mother and step-father, much of which this court finds not to be reliable. Although there are suspicions concerning father and the children, there is lack of reliable evidence presented to confirm those suspicions by a preponderance of the evidence. Although father lied to this court about many [peripheral] events . . . his lack of candor does not prove that he molested the boys."
Disbelieving a witness does not entitle a trier of fact to infer the opposite of the witness's testimony. (See Estate of Kilborn (1912) 162 Cal. 4, 13; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205.)
The statement of decision found unseemly conduct by both parents, and others, but as we said in another context, we decline to "stain the pages" (People v. Carrell (1916) 31 Cal.App. 793, 795) of this opinion, which may one day be read by the children, except as strictly necessary. It is important to emphasize that the family court found "it is the genuinely held beliefs of each party that have guided their actions, mostly to the detriment of the children." "Each party is observing the same events and filters perceptions through his/her own lenses."
Although the children--aged seven and eight and one-half at the time of trial--did not testify, the family court reviewed video recordings of two multidisciplinary (Safe Center) interviews with them in which they denied abuse, and heard much other evidence negating abuse. In addition to Dr. Roeder's evaluation which we discuss later, the family court was impressed by the testimony of Ashby's current wife, to whom it referred as a "no nonsense kindergarten teacher," a mandated reporter with a daughter over whom she is protective. The wife observed nothing to support abuse claims, nor would she allow inappropriate behavior in her home. The family court then "chartitabl[y]" found that what evidence did tend to support the abuse claims resulted not from direct coaching by mother and her proxies but rather flowed from a culture of denigration of Ashby in Barnett's household and conditioning of the children by Barnett's anxiety, and her use of leading questions when questioning her children. After closing arguments, the family court excoriated Barnett's new husband, a counselor for sexually abused children, who had prepared a "rather biased" written report which he submitted to his workplace. Cloaked as a neutral observer, he claimed the children exhibited sexualized behavior and who showed "no regard for stepparent boundaries." The report's purportedly professional interpretations caused or reinforced Barnett's belief that abuse occurred, leading to several years of repetitive investigations by many entities.
Before trial, the extant custody order generally provided for joint legal custody, physical custody to Barnett, with specified visitation for Ashby. Barnett sought sole legal and physical custody and wanted Ashby limited to supervised visitation. After trial, the family court continued the prior orders in effect, with relatively minor modifications. Both Barnett and Ashby timely appealed from the ensuing judgment.
We discuss more facts only as necessary to address each claim in the Discussion.
DISCUSSION
I
Family Code Section 3020
Undesignated statutory references are to the Family Code.
In what she portrays through counsel as a legal claim subject to de novo review, Barnett contends the family court violated section 3020, subdivision (c). On inspection, we conclude this is in reality no more than a claim that the family court abused its discretion. Because Barnett expressly disavows application of the abuse of discretion standard and does not paint the facts in the light most favorable to the judgment, any claim of abuse of discretion is forfeited and need not be discussed. We explain more fully.
We have found Ashby's counsel's briefing to be useless in assessing Barnett's claims, thereby causing unnecessary work for this court. However, as will become clear, Barnett's legal team also filed defective and unhelpful briefing.
Section 3020 provides as follows:
"(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
"(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.
"(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members." (Italics added.)
Barnett contends the family court's order does not "ensure[] the health, safety, and welfare" of the children, pointing to findings of domestic violence by Ashby, possible exposure of the children by Ashby to pornography, Ashby's impulse control issues, and--as the family court put it--some "creepy" behavior toward women. Barnett then argues the family court violated section 3020, subdivision (c) as a matter of law both because absent supervised visitation the children will be endangered, and because the family court did not explicitly mention each item of evidence she views as significant nor address how it weighed relevant factors.
Properly viewed, this is not a purely legal claim about the meaning or application of the statute, subject to de novo review. It is instead a claim that the family court did not properly weigh the statutory factors, which is an abuse of discretion claim subject to deferential review. Section 3020, subdivision (c) requires the family court to exercise discretion to fashion an appropriate custody order to ensure the children's safety. The purpose of a custody trial is to ascertain the best interests of the children, a matter reviewed for abuse of discretion, specifically, "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 (Burgess).) Whether a particular order does or does not adequately protect a child necessarily falls within a family court's broad discretion to determine the best interests of the child based on all of the evidence before the court. (See Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1054 ["a domestic violence finding in a family law case changes the burden of persuasion as to the best interest test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement"]; accord, California Corrections Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 830-832 [statutory duty to provide employees with a safe workplace do not guarantee safety; "Room for discretion is required" and "where reasonable minds can and do differ about a workplace safety issue, a discretionary call by the employer should not be disturbed"].)
We reject Barnett's claim that the family court misinterpreted the statute. The detailed statement of decision shows the family court carefully considered the evidence admitted during the unusually lengthy trial before making discretionary calls about credibility of witnesses and the best interests of the children. We will not presume the family court was ignorant of or failed to apply the correct law to the facts as it found them. Instead, we must presume on appeal that official duties have been regularly performed (Evid. Code, § 664), and this presumption extends to the actions of trial judges. (See Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9.) Accordingly, we presume the trial court considered all appropriate factors, whether mentioned or not. (See In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653-654 (Winternitz); Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, 1140.)
To the extent Barnett may have intended to dispute the rationality of the family court's reasoning, that is, to demonstrate an abuse of discretion, she explicitly disavows any such claim in her reply brief. Accordingly, we will not review the record to see if an abuse of discretion under section 3020, subdivision (c) occurred, because a claim not properly headed and argued need not be addressed by an appellate court. (See Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9.)
II
Section 3044Barnett next asserts we must review the family court's purported violation of section 3044 de novo. As with her prior claim, we again disagree.
Section 3044 provides in relevant part as follows:
"(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party . . ., there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to [that party] . . . is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
"(b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
"(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
"[¶] . . . [¶]
"(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms . . . .
"[¶] . . . [¶]
"(e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties." (Italics added.)
We agree with Barnett's premise that if the family court, after finding domestic abuse by Ashby and thus triggering application of the section 3044 presumption, then used "the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020" to rebut that presumption in whole or in part, that would constitute legal error under a plain reading of the statute. But the statement of decision does not support her view such an error occurred in this case.
While discounting much of Barnett's evidence, the family court found a sufficient basis to trigger the presumption against joint custody provided by section 3044. The court kept the then-extant orders in place, with minor modifications, finding the presumption rebutted "by the need to correct the unilateral decision making by mother. Dr. Roeder opined that the current orders could result in the continual exclusion of father. The children's need for having both parents involved requires the requirements of joint decision making be retained." And, as Barnett points out, the family court had earlier found that "[p]romoting father's relationship with the children is a concern this court must address."
We need not describe the details, which are skewed in Barnett's briefing by her failure to paint the facts faithfully, in favor of the judgment. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [failure to state facts fairly forfeits evidentiary claim].)
Although Barnett argues that the family court's stated reasons for rebutting the presumption against joint custody equate to the forbidden statutory preference for "frequent and continuing contact with both parents" as provided by section 3020, subdivision (b)--the factor explicitly disallowed in cases where section 3044 is triggered--we disagree. The statement of decision speaks for itself, and does not apply a preference for frequent and continuing contact with the father. The fact that the family court found, factually, that in this case there was a need to have both parents involved does not mean it applied the preference for frequent and continuing contact with Ashby to rebut the presumption of detriment as provided by section 3044, subdivision (a).
Section 3044 provides for discretionary calls by the family court, which, upon a finding of domestic violence, "shall consider any relevant, admissible evidence" (id., subd. (e), italics added) to determine whether the presumption of detriment to the children is rebutted. Generally, "any" means all or every. "From the earliest days of statehood the courts have interpreted 'any' to be broad, general, and all embracing." (Burnsed v. State Bd. of Control (1987) 189 Cal.App.3d 213, 217; see Emmolo v. Southern Pacific Co. (1949) 91 Cal.App.2d 87, 91-92 ["the use of the word 'any' in the statute negatives the contention that the statute is restricted"].) Thus, the family court was permitted to consider all the admissible evidence presented to it in determining whether the presumption had been rebutted. The only applicable limitation was that the family court could not consider the benefit that frequent and continuing contact with both parents might otherwise provide the children. (§ 3044, subds. (b)(1) & (c).) That does not mean the family court had to discount any value to the children's lives that some contact with Ashby, their natural father, might have.
Barnett's trial counsel emphasized the effect of the presumption in closing argument, and what evidence could and could not be considered in order to rebut it. The family court was aware of the law and explained why it found the statutory presumption rebutted, as we have just explained. To the extent that much of Barnett's briefing reads like an argument that the family court should have weighed the evidence differently, i.e., that the court abused its discretion, she explicitly disavows any such claim and makes no attempt to support it. Thus we will not consider it. We conclude that the trial court did not violate section 3044.
Finally, Barnett claims the statement of decision did not adequately address all relevant factors or explain its reasoning to permit adequate appellate review. We find these claims to be forfeited.
As we have already explained, we presume the family court considered all appropriate factors, whether mentioned or not. The fact a statement of decision was requested is not sufficient to preserve the claims Barnett now makes. The record prepared by Barnett does not contain any objections to the tentative ruling or statement of decision, only a minute order adopting the tentative ruling with modifications. Thus, the record does not show Barnett objected on the grounds now asserted. Therefore, Barnett has forfeited such claims. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 ["if a party does not bring [deficiencies in the statement of decision] to the trial court's attention, that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment"].)
III
Dr. Roeder's Evaluation
In October 2013, Judge Awoniyi issued an order requiring the parties to select an evaluator, and setting forth certain things the evaluator was supposed to do. In November 2013, Dr. Roeder was selected "to be the 3111/3118 evaluator" but his appointment order is not in the record. The next document in the record is Dr. Roeder's 31-page report, dated February 12, 2014. This includes a two-page summary of material he reviewed. The report concludes it would be better for the children to be placed with Ashby if the court "gave the most weight" toward "positive father/son relationships and removing the boys from an environment" where they are subjected to multiple investigations. However, if Barnett could continue to rein in her unreasonable reactions and adopt "a more reasonable . . . approach" to custody and visitation, the testing "slightly [favors Barnett] as the less psychologically unhealthy parent." (Italics added.)
In part this order reads: "The evaluator shall consider the claims of child sexual abuse. The evaluator shall make contact and review the various CPS files and make any necessary contacts with law enforcement and other personnel who had investigative responsibilities. [¶] The evaluator shall make findings and a determination as to whether the abuse occurred. Whether there was coaching by either parent to make an allegation and whether the children have been conditioned to make a report about abuse by mother or as suggested by mother." The evaluator was also to "follow the court rules as regards the issuance of a FC section 3111 and 3118 report."
On July 2, 2014, after deposing Dr. Roeder, Barnett filed an unsuccessful in limine motion to exclude his report, for various purported failures to comply with section 3118, relying in part on In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar). Trial began on July 7, 2014, before Judge Ullman. During trial, Barnett again moved unsuccessfully to exclude the evaluation report for non-compliance, and also due to alleged bias.
At trial Dr. Roeder testified to his qualifications, was voir dired, was cross-examined and recross-examined at length by Barnett's trial counsel, and was questioned by the family court. Thus the foundations for his opinions were thoroughly explored.
On appeal, Barnett again incorrectly insists the family court's ruling admitting Dr. Roeder's evaluation must be reviewed de novo. We remind her that, as a general rule, "We review for abuse of discretion a trial court's rulings on the admissibility of evidence." (People v. Benavides (2005) 35 Cal.4th 69, 90.) In determining the best interest of the child, a trial court has broad discretion to consider specified factors and any other factors it finds relevant to the issue. (§ 3011; see In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1343; see also § 3044, subd. (e).)
"When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956, italics added.) Relevant evidence is evidence having a "tendency in reason" to prove or disprove a controverted fact. (Evid. Code, § 210.) Thus a claim that the family court abused its discretion in admitting into evidence the detailed report of a court-appointed psychologist of Dr. Roeder's experience, based on the wealth of material he considered--including his own interviews with the children--would seem to be a non-starter. Accordingly, Barnett tries to couch her claim as a purely legal one, arguing that because of purported statutory and rule violations, Dr. Roeder's report was inadmissible as a matter of law. We disagree with her interpretation of the relevant rules.
Dr. Roeder obtained his doctorate in 1979 and has been licensed in California since 1983, practicing clinical and forensic psychology for over 30 years. He has training in child sexual abuse both in the family law and criminal law contexts (e.g., Pen. Code, § 288.1 evaluations). This court has reviewed many civil and criminal appeals over the years in which Dr. Roeder qualified as an expert and gave significant evidence. While this last circumstance does not lend his opinion in any given case special weight, we mention it to belie any implications in Barnett's counsel's briefing suggesting that Dr. Roeder was somehow out of his depth.
We agree discretion must not be wielded arbitrarily. When exercising discretion a trial court must " 'do justice according to law or to the analogies of the law, as near as may be.' [Citation.] That is to say, the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted." (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778; see Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125 (Mark T.) ["A discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion"].)
In this case, Barnett reasons as follows. The Family Code requires the Judicial Council to adopt standards for evaluations, and it has done so. (See §§ 3117, 3118; Cal. Rules of Court, rule 5.220 (Rule 5.220).) In her view, Dr. Roeder's report does not meet the standards, in particular ways we briefly describe post, and therefore the ensuing report was inadmissible as a matter of law.
However, like the trial court, we are unaware of any precedent supporting Barnett's view that a report's deviation from statutory or rule requirements renders it inadmissible per se. Instead, as in other cases, the value of an expert's report depends on the soundness of the analytic method employed and the evidentiary basis on which the opinion is formed, or as we have said before, "the factors considered and the reasoning employed." (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
Section 3118, subdivision (b) provides: "The evaluator . . . shall, at a minimum, do all of the following," and then lists numerous sources of information to be reviewed. We acknowledge that section 3118, subdivision (a) provides in part that "[w]hen the court has determined that there is a serious allegation of child sexual abuse, any child custody evaluation . . . shall be considered by the court only if the evaluation . . . is conducted in accordance with the minimum requirements set forth in this section." And section 3118, subdivision (e) provides the "evaluation . . . standards set forth in this section represent minimum requirements . . . and the court shall order further evaluation beyond these minimum requirements when necessary to determine the safety needs of the child."
Barnett's claim is that because section 3118, subdivision (b) sets forth what the evaluator "shall" do, and subdivision (a) provides an evaluation shall be considered "only if the evaluation . . . is conducted in accordance with the minimum requirements set forth in this section," any failure to do any of the many enumerated things in the statute renders the evaluator's report inadmissible as a matter of law.
Barnett overlooks section 3118, subdivision (a)(2), which provides: "This section does not prohibit a court from considering evidence relevant to determining the safety and protection needs of the child." Thus, even if Dr. Roeder's report was technically defective, the family court had discretion to consider it as "relevant" expert evidence.
Barnett acknowledges that the Legislature's use of the term "shall" does not always have a mandatory, as opposed to a directory, effect. As we have explained before, "If a statutory directive does not go to ' "the essence" of the particular object sought to be obtained, or the purpose to be accomplished' and a 'departure from the statute will cause no injury to any person affected by it,' the provision will be deemed directory." (Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 673.) Here, the essence of the judicial task at hand was to determine whether Ashby molested the boys, and what was in their best interests (Burgess, supra, 13 Cal.4th at p. 32). In short, section 3118 sets forth standards or guidelines, not mandatory, inflexible, rules.
The family court in this case could deem any purported gaps in the evaluation to go to the weight of Dr. Roeder's opinion, particularly inasmuch as he was an agreed upon court-appointed expert (see Evid. Code, § 730), he testified at trial, and Barnett exercised her rights both to cross-examine him at length and to introduce contrary testimony, to try to undermine his opinion. Thus, the family court was faced with a typical "battle of experts" and was not required to conclude Dr. Roeder's report was worthless or, as the statute puts it, would not assist the trier of fact. (Evid. Code, § 801, subd. (a); see Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972; Alward v. Paola (1947) 79 Cal.App.2d 1, 9 ["An opinion not founded on all of the facts goes to the weight of the evidence and not to its competency or materiality"].) Any defects in the report were ripe subjects for cross-examination, but such defects did not make the report irrelevant or inadmissible.
Seagondollar, supra, 139 Cal.App.4th 116, which Barnett cited in the family court, and cites on appeal, does not have the force she attributes to it. Barnett cites the case's broad introductory language: "The rules of procedure for reaching family law decisions—contained in the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules—are not mere suggestions. The rules of procedure are commands which ensure fairness by their enforcement." (Id. at p. 1120.) We do not disagree, but Seagondollar did not hold any deviation from procedural norms compels reversal, nor could it. (See Cal. Const., art. VI, § 13 [a judgment may not be reversed absent a "miscarriage of justice"]; Easterby v. Clark (2009) 171 Cal.App.4th 772, 783 ["An evidentiary ruling, even if erroneous, is not reversible absent a miscarriage of justice"].)
In Seagondollar, a family court had ordered an undefined "limited" evaluation under Evidence Code section 730. (Seagondollar, 139 Cal.App.4th at pp. 1121-1122.) This was favorable to Melinda, the mother, but was not timely given to counsel for father (Timothy), who was unable to arrange for a contrary expert to appear and point out failures in the evaluation. (Id. at pp. 1124-1125.) As summarized by Seagondollar:
"Timothy argues the trial court erred by (1) failing to require Melinda to file a responsive pleading to his March OSC or to file a counter-OSC . . . ; (2) granting Melinda's request to hear her October OSC on shortened notice without good cause; (3) refusing to hear Timothy's motion to quash before the hearing on Melinda's October OSC; (4) refusing to trail or continue the matter for three days to permit Timothy's rebuttal expert to testify; and (5) failing to issue an order defining in detail the purpose and scope of the Evidence Code section 730 evaluation. We agree: The trial court erred in all of those ways. While some error may be excused as harmless, the cumulative effect was to deny Timothy a fair hearing." (Seagondollar, at p. 1127, italics added.)
Thus, Seagondollar does not support the proposition that any error regarding an evaluation is error, prejudicial per se. In that case several errors cumulated to deprive a party of an opportunity to be heard, which did not happen herein. Similarly, Mark T. did not hold that a report based on a mistaken view of the law was inadmissible, but held that because the family court made the same incorrect legal assumptions that the evaluator had made, the resulting custody order reflected an abuse of discretion. (Mark T., supra, 194 Cal.App.4th at pp. 1127-1132.)
In Winternitz, the appellate court explicitly held that lack of compliance with Rule 5.220 standards did not render an evaluation inadmissible. The court-appointed evaluator in that case conducted lengthy interviews with the relevant parties, but "admitted making mistakes in the case and Mother's counsel cross-examined him at length on his conclusions and impartiality." (Winternitz, supra, 235 Cal.App.4th at p. 648; see id. at pp. 650-651.) The family court denied a motion to strike the report, finding the violations identified went to the weight, not admissibility, of the opinion reflected by the report. (Id. at p. 651.) As in this case, the aggrieved parent asserted de novo review applied on appeal, a position emphatically rejected:
"We review a trial court's ruling on the admissibility of proffered evidence for an abuse of discretion. [Citation.] Generally, '[o]nce it is established that a witness has adequate credentials to qualify as an expert, questions as to the degree of his or her expertise go to weight not admissibility.' [Citation.] For example, the fact a witness did not document all work, took some inaccurate notes or deviated from protocol are all matters going to weight, not admissibility. [Citation.] Additionally, lapses in professionalism affect only the weight of the evidence. [Citation.]
"We agree with the family court's conclusion that Mother's objections to the report went to the weight of the report, not its admissibility. Moreover, Mother's counsel subjected Dr. Simon to extensive cross-examination regarding the report. Ultimately, it was for the family court to assess the credibility of all the witnesses, including Dr. Simon. [Citation.] As an appellate court, we do not second-guess such evidentiary assessments. Accordingly, the family court did not err when it refused to strike Dr. Simon's report." (Winternitz, supra, 235 Cal.App.4th at p. 653, italics added.)
Here, akin to the flaws in Winternitz, Barnett relies merely on purported lapses in statutory and rule protocols, not any fundamental lack of expertise on Dr. Roeder's part. Barnett relegates her discussion of Winternitz to a footnote, claiming it is distinguishable because it did not involve sexual abuse allegations but a more mundane evaluation under Rule 5.220, based on section 3117, "not section 3118, as is the case here." But elsewhere she concedes a Rule 5.220 report must be " 'consistent with . . . section 3118.' " We agree. (See Rule 5.220(e)(2) & (e)(3).) Thus, the claimed distinction is illusory, because Rule 5.220 requires an evaluator to address issues pertinent to both section 3117 and section 3118. Moreover, her purported distinction fails to acknowledge the central point of Winternitz, which is that the family court is well-equipped to evaluate identified protocol flaws in an expert's report and adjust the assessment of its weight as necessary to account for any substantiated failings.
After the judgment in this case, section 3111, subdivision (a) was amended to provide that an evaluation "may be considered . . . only if it is conducted in accordance with the requirements set forth in the standards adopted by the Judicial Council pursuant to Section 3117; however, this does not preclude the consideration of a . . . report that contains nonsubstantive or inconsequential errors or both." (Stats. 2015, ch. 130, § 1.) Although a treatise suggests this amendment might undermine Winternitz (see Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 7.255.1, pp. 7-95 to 7-96), Barnett does not argue that this amendment applies retrospectively, so we do not address that point.
For completeness, we now describe the purported failings of which Barnett complains to illustrate the lack of substance of her claim the report was inadmissible.
First, Barnett contends Dr. Roeder failed to "request or review either of" two multidisciplinary interviews of the children, as set forth in section 3118, subdivisions (b)(4) and (b)(6)(A). Next, she contends he failed to confer with relevant law enforcement personnel as set forth in section 3118, subdivision (b)(6)(B). Finally, she contends he failed to obtain law enforcement information about domestic violence, as set forth in section 3118, subdivisions (b)(6)(B) and (b)(6)(F).
As indicated earlier, Dr. Roeder's report includes a two-page attachment listing the material he had reviewed. This included the following records from both California and Nevada: police; CPS; and court documents involving domestic violence protective orders. That is only a partial summary of the materials he considered, in addition to his clinical interviews of each parent and child, and other work he did directly. Barnett's trial counsel also gave Dr. Roeder a series of investigative reports touching on alleged violations of domestic violence restraining orders. Thus, Barnett is mistaken in her view that Dr. Roeder did not consider domestic violence, or all purportedly pertinent law enforcement involvement. It is unclear whether the CPS files included the multidisciplinary examinations; however, because Dr. Roeder personally interviewed the children, we fail to see how that would make his report irrelevant. Further, the family court itself reviewed those examinations at trial. Again, Barnett's points about the report provided fodder for cross-examination, but did not make Dr. Roeder's views unhelpful to the trier of fact. (See Evid. Code, § 801, subd. (a).)
The statement of decision refers to "binders of documentary evidence," the exhibit list in the reporter's transcript is 10 pages long, and the statement of decision explains that "Dr. Roeder was flooded with documents supplied by mother's attorney which he considered in his analysis." But no exhibits were sent to this court. Thus, the appellate record is incomplete as to what, exactly, Dr. Roeder looked at. Such failing must be cast against Barnett, as the appellant on this branch of the appeal. (See Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498.) We also note that two detectives who investigated Barnett's allegations testified at trial.
In short, none of Barnett's claimed failings in the report, nor all of them together, persuade us that the family court erred in making its evidentiary ruling that the report was admissible as relevant expert evidence even if it had some deficiencies. Certainly no abuse of discretion appears, and as we have said, Barnett makes no such claim on appeal.
IV
Ashby's Cross-Appeal
In four partially overlapping claims, Ashby contends the trial court erred by not declaring a prevailing party, not sanctioning Barnett for making knowingly false allegations of sexual abuse, and not awarding attorney fees to him.
Ashby's brief has no record citations. "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Therefore, we cannot address Ashby's claims, because "legal issues arise out of facts, and a party cannot ignore the facts in order to raise an academic legal argument." (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291) Accordingly, we deem each of Ashby's claims to be forfeited.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on the appeal and cross-appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Hull, J.