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Dion v. Lisa Blake (Whitehurst)

Court of Appeal of California
Jul 30, 2008
No. C052005 (Cal. Ct. App. Jul. 30, 2008)

Opinion

C052005

7-30-2008

TIMOTHY JAMES DION, Plaintiff and Appellant, v. LISA BLAKE (WHITEHURST), Defendant and Respondent.

Not to be Published


Plaintiff Timothy James Dion (father) appeals from an order modifying child custody and visitation rights regarding his minor son. The order grants sole legal and physical custody to the boys mother, defendant Lisa Blake Whitehurst (mother), and denies father visitation. Father contends the order is not in the childs best interests, as required by Family Code sections 3011 et seq. (Undesignated statutory references are to the Family Code.) We shall conclude the appeal is timely, but father fails to show grounds for reversal. We shall therefore affirm the order in favor of mother, who appears in propria persona in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The child was born in 1995 to mother and father, who never married and who separated within six months after the birth.

In January 1997, father filed in the trial court a complaint to establish parental relationship and obtain an order for child custody and visitation. The complaint was filed in Nevada County, but the case was later transferred to Placer County in July 2003.

In March 1998, after mediation, the trial court issued a stipulated judgment, stating among other matters that (1) father and mother shall have joint legal and joint physical custody of their son, with primary residence to remain with mother; and (2) father shall have visitation according to a January 1997 mediated parenting plan, providing for father to have visitation Mondays through Thursdays, from 6:30 p.m. to 9:30 p.m. (10:00 p.m. on Tuesdays), plus noon Saturday to noon Sunday. The stipulated judgment stated, "Both parties agree that [the child] shall be in a drug and alcohol free environment while in each parents care . . . ." The stipulated judgment also ordered father to pay child support of $224 per month.

Mother and father bickered back and forth, with mother persistently seeking modification of child custody and visitation on the grounds father was under the influence of drugs or alcohol during visitation and/or lived in an environment of narcotics use, and father accusing mother of abusing the court system and interfering with his relationship with his son. In August 1999, the court granted sole physical custody to mother on a temporary basis.

In December 1999, the trial court entered a stipulated order resuming joint custody, setting a visitation schedule, and prohibiting father from taking the child to fathers residence during visitation (subject to modification when father moved). Pursuant to a mediated agreement, father was evaluated for drug dependence by the Nevada County Substance Abuse program (NCSA). The NCSA report, dated October 2000, noted father (who was almost 27 years old at the time) reported he began using alcohol and marijuana around age 12. Between the ages of 13 and 26, he drank alcohol every one to two months, with occasional intoxication. He reported recent use of marijuana once a week but had abstained for three weeks before the NCSA interview. He used methamphetamine and cocaine between the ages of 18 and 21. The NCSA report diagnosed father with cannabis abuse and alcohol abuse and recommended random urine tests for six months and counseling. The report indicated some scores indicated a low probability for a substance dependence disorder, but the counselor had "concern in regards to [fathers] scores being close to dependency and continued drug or alcohol use detrimental to his wellbeing." In December 2000, father attested he previously had a drug abuse problem but had overcome it.

In January 2001, the trial court ordered father to comply with the NCSA recommendations.

In May 2001, father and mother reached a written agreement, which was made an order of the court. It called for father to have visitation three weekends out of every four. The stipulated order also stated, "Parents agree that all drug and counseling issues have been resolved. Parents also ask that the court terminate the existing drug testing order." Mother and father also agreed that this agreement, "can be modified at any time by returning to court and/or mediation."

In 2003, the case was transferred, upon mothers request, from Nevada County to Placer County, where mother and child then resided.

In January 2004, mother returned to court with an order to show cause (OSC) on a request for modification of custody and visitation (and a "move away order" not at issue in this appeal). Mother attested the child is unhappy; father moved (with his girlfriend and her children) to an isolated area with no playmates near her sons age. Father is often not home during the childs visitation. Male adults constantly come and go, and father has plants with special lights in his bedroom. On one occasion, the child became ill, with vomiting and a fever of 104 degrees. Father did not seek medical attention but brought the boy to the home of fathers parents, where mother retrieved him and took him to the hospital, where he was treated for fever and dehydration. Mother also attested the boy returns from visitation with his clothes smelling of marijuana. Mother acknowledged she hopes to relocate to Arizona, where her husband has family, but she attested the OSC was not a pretext to achieve relocation.

Mother later withdrew her "move away" request.

In March 2004, the trial court entered an order setting a schedule for supervised visitation by father and stating that, by agreement of the parties, father was to participate in random drug testing and a hair drug analysis test, and in reunification counseling. Subsequent court orders also called for drug/alcohol testing and evaluation. A May 2005 order stated father had not completed the court orders regarding drug/alcohol testing and assessment.

After various continuances, a hearing on mothers January 2004 modification request was held in September 2005. Mother testified consistent with her declaration. Father testified he takes medical marijuana for insomnia, including the night before his testimony. Father said he never took and never agreed to take a hair follicle test for drugs and was unaware of a court order for a hair follicle test. Father testified he took two drug tests, which were both "clean" (a point disputed by mother), and he did not follow up on the random drug testing because he is not a drug addict. Father expressed his belief that mother and the court had destroyed his relationship with his son. When questioned by the court as to his willingness to obey the courts orders, father was evasive. He expressed resentment of the Placer County court and his belief that the mother was manipulating the courts and that the case should never have been transferred from Nevada County. Father claimed he went to the reunification counselor to whom the court referred him (Bijilie Abbey), but she said she did not do reunification, and she sent him to the Womens League, which could not help him.

Abbey testified father left the initial meeting in anger over his perception of unfairness of his situation, and he did not show up for his next appointment, nor did he call to cancel or reschedule. Abbey met with the child, who recounted both good and bad times with his father but also said the marijuana use made him uncomfortable, and he recalled an occasion when he was sick and vomited and people yelled at him. Court-appointed mediator Sharon Sloper testified father agreed to a hair follicle test and said he used medical marijuana for insomnia and alcoholism. Fathers mother testified there was no marijuana use on the occasion when the child was sick, and her husband is an emergency medical technician, and father no longer abuses drugs.

The parties stipulated that Carol Johnson of Family Court Services would testify, if called as a witness, that father "did not follow through by ever calling Ms. Johnson to initiate the random [drug] testing, and that no random tests were ever scheduled or completed."

The order at issue in this appeal is the trial courts December 20, 2005, "Order After Hearing" on mothers January 2004 post-judgment OSC requesting modification of custody and visitation. The trial court noted it had limited fathers parenting time at the initial hearing of the OSC in January 2004 based on evidence and argument heard at that time. The December 2005 order stated:

"Sadly, in the nineteen months that have passed between that initial hearing on Mothers OSC on January 22, 2004, and this hearing, the evidence is overwhelming that father has not complied with the Courts orders which were aimed at re-establishing his parenting time with [the child]. While the evidence disclosed some serious and legitimate reasons for Fathers frustration and anger with Mother, Mothers new spouse and the Court system, the evidence also showed Father to be stubborn, immature and lacking insight on the role that his own behavior has played in this tragic situation. As a result, for two years, Father has not seen his son and [the child] has not seen his Father, his siblings nor his paternal grandparents.

"The Court has absolutely no doubt that Father loves [the child] very much and that their relationship can begin to be re-established relatively soon if Father, Mother and their respective families commit to a fresh start toward reconciliation. As the Court indicated during the hearing of this matter, [the child] deserves to have a healthy relationship with his Father, his step-mother, his paternal grandparents, his half brothers and sisters and all the rest of Fathers extended family. For that healthy relationship to occur, Father needs to take the first steps necessary to accomplish that goal.

"Is it possible that both Mother and Father can forgive past mistakes each has made for the sake of [the childs] present and long term best interests? Is it possible that ten years of conflict and a record setting number of court appearances in two counties can end? After listening to and observing Mother and Father during the hearing of this matter, the Court believes that both parents love their son enough to answer both questions with an answer of yes. It is beyond this Courts power to create the happy, healthy and proper result for [the child]. That result is ultimately in the hands of [the childs] Mother and Father.

"With respect to the evidence presented, the Court finds that there is substantial evidence in the record, from both the time period before the filing of Mothers OSC on January 13, 2004, and afterward, to the date of this hearing [September 2005], to justify a modification of the child custody and visitation orders herein. In hopes that the parties will renew their efforts to end this nightmare for their son, the Court will reserve a rendition of the details of the evidence presented."

The court ordered that, based on significant change of circumstances and in the childs best interests, the court granted the OSC and entered a modified order granting the mother sole legal and physical custody of the child and denying the father visitation rights until further order of the court. The denial of visitation was subject to exceptions, i.e., father is allowed to accept telephone calls from the child, send written correspondence (without derogatory comments about the mother or her family), send holiday and birthday gifts to the child, and (at the mothers discretion) visit in the event the child is hospitalized. The court order further stated:

"That in order for this Court to re-evaluate the above orders regarding Fathers limited contact with [the child], Father shall file an appropriate motion which shall need to contain (1) some verifiable evidence that he will not be impaired or effected [sic] in his parenting duties and responsibilities by the use of any controlled substances or alcohol, (2) an indication of his willingness to participate in some form of therapeutic process aimed at re-establishing his contact with [the child], and (3) an indication of his willingness to attend some form of co-parenting or parenting program designed to reduce and/or eliminate conflict between himself and Mother."

The court ordered the mother to give the father periodic updates concerning the child and not to make any derogatory comments about the father or his family.

Father appeals from the December 20, 2005, order. (Code Civ. Proc., § 904.1, subd. (a) [appeal may be taken from order made after judgment]; Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377 [post-judgment order regarding modification of custody is appealable].)

DISCUSSION

I. Timeliness of Appeal

We requested supplemental briefing on the question whether the appeal was timely, given that the notice of appeal (filed February 22, 2006) was filed more than 60 days after the court clerks service of the order (December 20, 2005). (Cal. Rules of Court, rule 8.104; former rule 2 [court clerks mail service of judgment begins 60-day time to appeal]; undesignated rule references are to the California Rules of Court.) We shall conclude the appeal is timely.

The court clerk served the order by mail and by facsimile (FAX) on December 20, 2005. FAX service will start the time to appeal, but only if the record shows an agreement for FAX service. (Rule 2.306; former rule 2008.) The record in this case does not show such an agreement, and we therefore disregard the FAX service.

Fathers appellate attorney has filed a declaration from fathers trial attorney, David Silber, attesting he did not receive the mailed copy of the order and:

"The order was mailed to a wrong address. The address was that of my prior office located at 10138 Commercial St., Penn Valley, California. When I had my office in Penn Valley I received my mail at P O Box 307; Penn Valley, California.

"At the time the Notice was mailed, my office was located at 222 Church Street; Nevada City, California and I received mail at my Nevada City Office or at PO Box 307 in Penn Valley."

Documents in the clerks transcript, predating the clerks proof of service, show the Church Street address and box 307 in Penn Valley, as well as box 417 in Nevada City, though we see no notice of change of address filed by Silber in the trial court, as required by rule 2.200 (former rule 385).

We shall accept Silbers attestations and consider them sufficient to rebut any presumption that the court clerk sent the order to the correct address. (Evid. Code, § 664 [presumption that official duty is regularly performed].)

Accordingly, we shall disregard the court clerks service of the order.

Since there was no service of the order by the court clerk or by any party, the deadline for filing the notice of appeal was 180 days after entry of the order. (Rule 8.104; former rule 2.) The notice of appeal was filed February 22, 2006, within 180 days of entry of the order on December 20, 2005.

We treat the appeal as timely.

II. Standard of Review

We review custody and visitation orders under an abuse of discretion standard, giving deference to the trial courts decision. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.) We will uphold the ruling if the trial court could have reasonably concluded that the order advanced the best interests of the child. (Ibid.)

III. Custody

Father contends the trial court abused its discretion in awarding sole legal and physical custody to mother. We disagree.

Father relies on the public policy expressed in section 3020, subdivision (b), "that children have frequent and continuing contact with both parents after the parents . . . end their relationship." However, that policy is tempered by the qualification "except where the contact would not be in the best interest of the child . . . ." (§ 3020, subd. b).) Section 3020, subdivision (a), states a public policy that the childs health, safety and welfare "shall be the courts primary concern." Where the policy favoring contact conflicts with the policy guarding the childs welfare, the childs welfare prevails. (§ 3020, subd. (c).)

Section 3040 states in part:

"(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

"(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parents sex. . . .

"[¶] . . . [¶]

"(b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child."

Section 3011 states that, in determining the childs best interests, the court shall consider, among other relevant factors, the health, safety and welfare of the child; any history of abuse by a parent; the nature and amount of contact with both parents; and the "habitual or continued illegal use of controlled substances or habitual or continued abuse of alcohol by either parent." Section 3011, subdivision (d) adds that before considering allegations of substance abuse, "the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities or other public agencies or nonprofit organizations providing drug and alcohol abuse services."

Father argues he and mother stipulated to joint custody (in 1998), creating a presumption under section 3080 that joint custody is in the childs best interests.

Section 3080 provides, "There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child."

However, the stipulation did not render custody immune from modification. Section 3087 provides: "An order for joint custody may be modified or terminated upon the petition of one or both parents or on the courts own motion if it is shown that the best interest of the child requires modification or termination of the order. If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order."

Once a final judicial custody determination is in place, a party seeking to modify the permanent custody order can do so only if he or she demonstrates "changed circumstances" indicating that a different custody arrangement would be in the childs best interest. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256; accord, In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) Here, custody was originally ordered in a "STIPULATED JUDGMENT" after mediation, without a court hearing. A stipulated custody order may or may not be deemed a final judicial custody determination for purposes of the "changed circumstance" rule, depending on the intent reflected in the stipulation. (Montenegro, supra, 26 Cal.4th at pp. 257-258.) Although not addressed by the parties, we believe the "STIPULATED JUDGMENT" in this case reflected the parties intent for a final judicial custody determination, because the stipulated judgment stated both father and mother agreed to entry of judgment.

The changed-circumstance rule is not a different test, but an adjunct to the best-interest test. (Montenegro, supra, 26 Cal.4th at p. 256.) Once it has been established that a particular custodial arrangement is in the childs best interests, that arrangement should be preserved unless some significant change in circumstances indicates that a different arrangement would be in the childs best interest. (Ibid.; In re Marriage of Brown & Yana, supra, 37 Cal.4th at pp. 955-956 [once a court has entered a final custody order reflecting the childs best interest, the paramount need for continuity and stability weighs in favor of maintaining that arrangement].)

Here, father does not contend or demonstrate that mother failed to show changed circumstances justifying the modification in custody. Instead, father oddly contends, "there was no requirement to show a change of circumstances" in this case, because no change of circumstances is required when there is no change in the label given the arrangement but merely in the specific times the child spends with each parent. It is fathers burden as appellant to demonstrate grounds for reversal, and review is limited to issues adequately raised and briefed. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113-116.) Father has failed to meet his burden as appellant.

Moreover, our review of the record satisfies us that the trial court did not abuse its discretion in modifying the custody arrangement.

Assuming (in fathers favor) that changed circumstances were required, the record shows a changed circumstance, in that father has a problem accepting the authority of the Placer County court—a matter which impacts the childs best interests. Father believes the case should have stayed in Nevada County. He disobeyed Placer County court orders, by failing to follow through with reunification counseling and random drug tests, and he expressed his disregard for the authority of the Placer County court. Even assuming for the sake of argument that the 2003 change of venue could be considered an interim order reviewable in this appeal, father presents no legal analysis on the subject of transfer. He merely claims in his statement of facts that he defaulted due to an alleged lack of notice. Consequently, father has forfeited any challenge to the transfer. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3 [reviewing court need not address points unsupported by legal analysis].)

The order which is the subject of this appeal stated that father had not complied with the courts prior orders and lacked insight on the role his own behavior had played in the situation. The court also referred to the incident where father did not seek medical attention when the child was vomiting and had a fever of 104 degrees, and to the childs expression of concerns about fathers parenting behavior. Fathers noncompliance with court orders related to reunification counseling and drug testing designed to advance the childs welfare. Thus, this is not a case where the court awarded custody in order to punish a parent rather than ensure the childs best interests. This case is distinguishable from fathers cited authority, In re Marriage of Stoker (1977) 65 Cal.App.3d 878 at pages 880 through 882, where the courts sole reason for transferring custody to the mother was that the father had unclean hands in that he coerced the mother into initially agreeing to give him custody.

In his statement of facts, father says mother was unable to provide any evidence that she took the child to the emergency room when he had the fever. However, her testimony was evidence. Father also claims mother allegedly took the child to an emergency room 40 miles from the nearest hospital. However, he fails to cite to the record and fails to develop any argument that this assertion should result in reversal of the judgment. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [failure to provide appropriate references to the record may be deemed a forfeiture of the issue]; In re Marriage of Nichols, supra, 27 Cal.App.4th at pp. 672-673, fn. 3; rule 8.204, former rule 14 [appellate brief must support any reference to a matter in the record by citation to volume and page number of the record where the matter appears].)

Father asserts, without citation to the record, that there is no history of drug or alcohol abuse or domestic violence in this case, but "only the mother/respondents allegations of drug abuse on the part of the father/appellant-which said allegations were investigated by the court through its resources and found to be inclusive [sic: inconclusive?]. Further, the father/appellant volunteered to be tested for drugs, did so, and was clean. [¶] The mother/respondent made safety allegations, also unfounded."

We need not address these assertions because they are unsupported by any citation to the record. (Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; In re Marriage of Nichols, supra, 27 Cal.App.4th at pp. 672-673, fn. 3; rule 8.204, former rule 14.)

Moreover, father fails to acknowledge evidence favoring the court order, e.g., the parties stipulated that Carol Johnson of Family Court Services would testify, if called as a witness, that father "did not follow through by ever calling Ms. Johnson to initiate the random [drug] testing, and that no random tests were ever scheduled or completed." Moreover, father testified he did not follow up on drug testing because he does not consider himself a drug addict. He admitted using marijuana the night before his testimony but it was medical marijuana for insomnia. By failing to acknowledge evidence favorable to the court order, father forfeits any challenge to sufficiency of the evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

We conclude father fails to show grounds for reversal of the custody order.

IV. Visitation

Father contends the trial court abused its discretion in denying him visitation rights. He fails to show grounds for reversal.

We first specify father has it within his control to resume visitation by filing an appropriate motion, as stated in the court order, showing evidence that his parenting duties will not be impaired by alcohol or controlled substances, and that he is willing to participate in reunification counseling and a parenting program.

Father cites section 3100, which provides in part: "(a) In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child."

We question whether section 3100 applies, because it refers to Chapter 4, commencing with section 3080, which is titled "JOINT CUSTODY," whereas here the court gave mother sole custody.

Nevertheless, the right to visitation is reflected in section 3020, subdivision (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 . . . ."

Additionally, as father notes, he has a constitutional interest in visitation as parent of the child. (Stanley v. Illinois (1972) 405 U.S. 645, 649-659 .)

However, a fathers right is not absolute and is subject to restriction if visitation would be detrimental to the best interest of the child. (In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 955; In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, Brasher v. Brasher (1967) 253 Cal.App.2d 867, 869 [visitation should be allowed unless best interests of child require isolation from parent]; 33 Cal.Jur.3d (2005) Family Law, §§ 928-929, pp. 453-456.) Section 3020, subdivision (c), states, "Where the policies set forth in subdivisions (a) [health, safety, and welfare of child is courts primary concern] and (b) [continued contact with parent] are in conflict, any courts 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."

Changed circumstances are not required for a change in visitation. (Enrique M. v. Angelina V., supra, 121 Cal.App.4th at pp. 1379-1380.)

Father fails to show grounds for reversal. He says, without citing to the record, that he expressed to the court his willingness to participate in reunification therapy. Father claims he has not been convicted of any crime that would limit his ability to parent, and he has not seen his son since December 2003. Father claims the problem is not him, but the mother. He suggests she is selfish, vindictive, and has maliciously tried to alienate the boy from father.

However, father again forfeits any substantial evidence challenge by failing to acknowledge evidence favorable to the trial courts determination (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881), including evidence of fathers disobedience of court orders, his failure to follow through with reunification counseling or random drug testing, his subjecting the child to an environment of drugs, and his failure to provide adequate care when the child developed a fever of 104 degrees.

Father finally contends mother has little family and, if anything happens to her, the burden of caring for the child will fall to the State of California, whereas father has an extended family with a good history with the child. Father fails to show that the burden would fall to the state. In any event, we reiterate resumption of visitation is within fathers control.

We conclude father fails to show grounds for reversal of the December 2005 court order.

DISPOSITION

The December 20, 2005, court order is affirmed. Mother shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)

We concur:

ROBIE, J.

BUTZ, J.


Summaries of

Dion v. Lisa Blake (Whitehurst)

Court of Appeal of California
Jul 30, 2008
No. C052005 (Cal. Ct. App. Jul. 30, 2008)
Case details for

Dion v. Lisa Blake (Whitehurst)

Case Details

Full title:TIMOTHY JAMES DION, Plaintiff and Appellant, v. LISA BLAKE (WHITEHURST)…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. C052005 (Cal. Ct. App. Jul. 30, 2008)