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Boyd v. Geddes

California Court of Appeals, Fourth District, Third Division
Apr 14, 2009
No. G040585 (Cal. Ct. App. Apr. 14, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 05P000549, Richard G. Vogl, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21. Motion to augment the record.

Law Offices of Alexandria C. Phillips and Alexandria C. Phillips for Appellant.

Law Offices of Stephen Jay Kaufman and Stephen Jay Kaufman for Respondent.


OPINION

RYLAARSDAM, J.

Appellant Daniel Wayne Boyd appeals from a judgment awarding sole legal and physical custody of his two children to their mother, respondent Carrie Ann Geddes. He contends the commissioner who heard the matter was biased, thereby denying him due process. Finding this contention without merit, we affirm.

FACTS AND PROCEDURAL HISTORY

Father and mother, never married, have two children who are the subject of this action; they are currently six and four-and-a-half-years old, respectively. In 2005 mother filed a petition for a restraining order against father claiming domestic violence. In issuing a temporary order the court allowed mother to move to Colorado with the children. After a hearing the court issued a restraining order giving father monitored visitation. In April 2006 father filed a custody action in Colorado.

In July 2005 father filed the instant paternity action in California. The court appointed Thomas P. Howell, Ph.D., to perform a custody and visitation evaluation under Evidence Code section 730. Howell prepared a report in October 2005, an update in December 2006, and an addendum in October 2007.

In the reports Howell stated father exhibited “signs of obsessive-compulsive traits with narcissistic features,” and that there was “ample evidence of [father’s] narcissistic traits and how he places his needs above the needs of his own children.” (Underscoring omitted.) He made “a marked attempt to ‘fake good’ on one of the psychological tests. Test results showed “‘[h]e needs to be viewed by others as being exemplary... view[ing] the world in extremes... [with] pronounced use of denial and repression, poor insight and deliberate defensiveness....”

Howell also reported that in the Colorado action, father submitted a letter to the court regarding his employment, noting it should not be shown to mother. This letter had been forged by father’s new wife. Howell characterized this as “‘blatant lying and misleading of the Colorado court’” and “an example of... manipulative behavior” by father and his wife. (Underscoring omitted.) He noted other examples of father’s manipulation throughout the reports, including his continued claims that mother had sexually abused the children even though he knew the allegations had been investigated and found untrue.

Despite these findings Howell recommended joint legal custody with physical custody to father in California because father has “excellent to superior parenting skills.”

After a 7-day trial, in a 23-page judgment the court confirmed father’s paternity and awarded sole legal and physical custody to mother, with specified visitation to father. In so doing it reviewed the evidence in light of the statutory factors used to determine custody (Fam. Code, § 3011 [“health, safety, and welfare of the child”; “history of abuse by [a] parent” against other parent or child; and “nature and amount of contact with both parents”]) and the public policy underlying custody (Fam. Code, § 3020, subd. (b) [“to assure that children have frequent and continuing contact with both parents... and to encourage parents to share the rights and responsibilities of child rearing... except where the contact would not be in the best interest of the child”].)

The court described father as “controlling, blaming, self-absorbed, arrogant, intolerant of others’ views, unaware of both other persons’ needs and of the effects of his behavior on other persons, and insistent that others see them as he wishes to be seen.” It found he had “a preoccupation with success[ and] power and a belief that he is unique and special, so that admiration is commanded[]”; “is intrusive in some ways, and entirely neglectful in others”; and was unable “to tolerate setbacks, disagreements or criticism, along with a lack of empathy[.]” When “rejected, humiliated or threatened” by mother or Howell, he “reacted with disdain, rage, and/or defiance to any slight criticism.” Father “feign[s] modesty or humility with [Howell], but always seeks control.”

The court found father had engaged in physical, psychological, and emotional violence against mother, using tactics to assert control and power and “to get ‘his way.’” This included keeping the children beyond his designated visitation periods, violating a court order to pay mother’s attorney fees, and hiring a private investigator to investigate not only mother and her family but mother’s lawyer. The court saw no evidence father had enrolled in batterer or domestic abuse counseling or a parenting class. Instead father insisted the claim of domestic violence was a “‘set up.’”

Moreover, the court feared that father’s “demonstrated exploitativeness, sense of entitlement, lack of empathy, disregard for others, and constant need for attention [that] adversely affected his interpersonal relationship with [mother]” could also affect others. It believed father’s personality traits would have a negative impact on the children, finding “he may also demand certain [detrimental] behavior from the children” to satisfy his unhealthy needs. He would also wield “power and control” over the children that “would not be in their best interest.”

After trial and the court’s issuance of its tentative decision but before judgment father filed a request to disqualify the commissioner, which was denied.

DISCUSSION

1. Introduction

At the outset we must point out that father’s brief is unclear as to the exact nature of his claims. He made arguments in the summary of facts, and in the argument portion of the brief sets out only legal authority. In addition to disjointed arguments, this violates the court rules. California Rules of Court, rule 8.204(a)(1)(B) mandates that each issue must be set out with a separate heading and then supported by argument and legal authority. California Rules of Court, rule 8.204(a)(2)(C) requires the brief set out the “significant facts.” This should be done in a separate, discrete portion of the brief. Despite these defects, we address the claims as best we can understand them given the argument headings. We will not, however, consider all of the loose and disparate arguments father includes in the statement of the case or even the discussion portion of his briefs that are not clearly set out in a heading and supported by reasoned legal argument. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

2. Bias

Father contends the commissioner who heard the matter was biased or gave the appearance of bias or both. He sets out a variety of reasons to support this claim, none of which have merit.

a. Howell’s Recommendations and Testimony

Father asserts the court improperly ignored Howell’s reports and recommendation. He strongly criticizes the commissioner for failing to acknowledge Howell’s negative findings as to mother and sets out certain of Howell’s testimony favorable to father that the court purportedly disregarded.

This argument is flawed. The court specifically found Howell’s reports “were incomplete, inadequate and unhelpful” and lacked credibility in certain areas. The court is not required to follow the recommendation of the evaluator. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435-436 [award of custody to mother contrary to evaluator’s recommendation supported by substantial evidence and not abuse of discretion]; In re Marriage of DeRoque (1999) 74 Cal.App.4th 1090, 1096 [refusal to follow evaluator’s custody recommendation not abuse of discretion; court not to be “mere rubber-stamp”].)

Moreover the court found father was not credible. In observing father it was reminded of the Dustin Hoffman character in the movie Rain Man, noting it had never seen “the position, stance, attitude, and affect shown by [father] as witnesses were testifying[]” as he “stoically sat at his chair and vacantly studied an abstract point in the air.” When he was testifying he was “practiced and obsessive.”

The fact that mother may have negative traits or had lied does not mean the court erred in selecting her as the custodian. It is the trial court’s responsibility as the finder of fact, not ours on appeal, to determine of credibility and weigh the evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.)

b. Father’s Human Failures

Father also argues the court improperly relied on his “failures as a human being” to award custody to mother and cites this as another example of the court’s bias. He suggests the court awarded custody to mother to “‘discipline’” him for his “‘shortcomings.’” (Bold and underscoring omitted.) Not so.

The court considered father’s conduct, personality traits, and emotional and psychological characteristics and determined they were such that awarding him custody would not be in the children’s best interest. This was not “character assassination”; rather it was the court examining the evidence in light of the factors to be considered in deciding custody.

In this process “the judge necessarily makes and expresses determinations in favor of and against parties. How could it be otherwise? We will not hold that every statement a judge makes to explain his or her reasons for ruling against a party constitutes evidence of judicial bias. [¶] ‘[W]hen the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to that prejudice against a litigant which disqualifies him in the trial of the action. It is his duty to consider and pass upon the evidence produced before him, and when the evidence is in conflict, to resolve that conflict in favor of the party whose evidence outweighs that of the opposing party. The opinion thus formed, being the result of a judicial hearing, does not amount to [improper] bias and prejudice....’ [Citation.]” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219-1220.)

c. Evidentiary Rulings and Comments of Commissioner

Father contends the commissioner demonstrated his bias by barring his evidence and showing “inexhaustible leniencies” in allowing mother’s. (Bold, capitalization and underscoring omitted.) He cites to a few instances where the court sustained objections to his lawyer’s questions and overruled objections to questions by mother’s counsel, allowed a question based on hypothetical facts to Howell posed by mother but not one by father and permitted liberal examination of Howell by mother but not by father. He also asserts the court refused to review admittedly relevant evidence impeaching mother’s credibility and downplays other evidence impeaching her.

The court has broad discretion to control the process of the trial, including examination of witnesses and review of evidence. (Evid. Code, § 765, subd. (a) [court to “exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth” as possible].)

The transcript, including the portions selected by father, demonstrates that was exactly what the court was doing. The record is replete with examples showing the court was evenhanded in sustaining and overruling objections to questions posed by both sides. It consistently tried to move the trial forward, admonishing both parties to focus on evidence helpful to the court.

This case is nothing like Hernandez v. Paicius (2003) 109 Cal.App.4th 452, on which father relies, where the court reversed the judgment due to bias of the trial court. The judge there “recited a veritable litany condemning and impugning the character of undocumented immigrants, including plaintiff, who place a burden upon the taxpayers by obtaining educational, medical, housing, and other services (‘yada, yada,’ i.e., the list goes on) to which they are not entitled, and then add insult to injury by suing the providers, such as ‘the good doctor [defendant]’ in order to make ‘a pot of [undeserved] money.’” (Id. at pp. 462-463, fn. omitted.) Here, by contrast, the court made no such comments but instead was consistently fair, patient, impartial, and courteous to the parties, the witnesses, and the lawyers. We see no evidence of bias or the appearance of bias.

d. Language of the Judgment

The court required that the direct testimony of father and mother be written, subject to cross-examination at trial. Father failed to include it in his appendix. Mother included her written testimony in an appendix to her brief but she neglected to point out that the court sustained objections to a portion of that written testimony and quoted some of it in her brief. Father filed a motion to augment the record, which we grant, with his written objections to part of that testimony and the objections the court sustained.

Father devotes several pages in the reply brief comparing language in the judgment and language stricken from mother’s testimony. He argues that the judgment’s use of language similar to that stricken show the court’s bias. This does not persuade. The language is not identical. And the fact it deals with concepts similar to those mother used in her stricken testimony does not mean the court was biased; it means those were the issues in the case.

3. Due Process

Father asserts he was denied due process because the case was not decided by an impartial judge. But, as discussed above, the record does not support father’s claim of bias.

Father also sets out law to the effect that due process affords a parent notice and the opportunity to be heard as to the issue of custody. He fails, however, to argue how he was deprived of this right. The record shows father had such an opportunity in the seven-day long trial. There was no violation of father’s due process rights.

In the statement of the case in the opening brief father notes that mother filed an order to show cause requesting father’s visitation be monitored by a professional and that he was not served with it. No copy of this document is included in the record. A minute order reflects father’s objection due to lack of service and continuance of the hearing. The court continued the hearing and in the interim provided for monitored visitation. In the reply brief father tosses out one sentence in his introduction that he was denied due process when the court ordered monitored visits without an evidentiary hearing. This issue is waived due to lack of proper briefing including reasoned legal argument. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal.

WE CONCUR: SILLS, P. J., IKOLA, J.


Summaries of

Boyd v. Geddes

California Court of Appeals, Fourth District, Third Division
Apr 14, 2009
No. G040585 (Cal. Ct. App. Apr. 14, 2009)
Case details for

Boyd v. Geddes

Case Details

Full title:DANIEL WAYNE BOYD, Appellant, v. CARRIE ANN GEDDES, Respondent.

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 14, 2009

Citations

No. G040585 (Cal. Ct. App. Apr. 14, 2009)