Opinion
D057695
08-11-2011
In re the Marriage of JENNY MILLER and ROBERT MARTIN DONALDSON. JENNY MILLER DONALDSON, Appellant, v. ROBERT MARTIN DONALDSON, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. D474009)
APPEAL from an order of the Superior Court of San Diego County, Edward P. Allard III, Judge. Affirmed.
In this marital dissolution action between Jenny Miller Donaldson and Robert Martin Donaldson, Jenny sought an order modifying custody and visitation of their two minor children. She requested sole legal and physical custody, and visitation by Robert on alternate weekends. The court denied Jenny's request.
In the interests of clarity and as is the custom in family law cases, we refer to the parties by their first names. We intend no disrespect.
Jenny appeals, in propria persona, asserting (1) the court denied her due process and equal protection of law by declining to consider all the pleadings and evidence she presented; (2) the court erred by failing to consider whether it was in the children's best interests to require supervised visitation or suspension or denial of visitation; (3) the court failed to follow the law and changed the time duration set by statute; (4) the court erred by failing to recognize the presumption against giving physical or legal custody to a perpetrator of domestic violence; (5) the court erred by basing its finding on the Family Court Services' recommendation instead of relevant, admissible evidence; (6) the court erred in refusing to consider her objection to using a confidential custody evaluation by Dr. Steven Sparta and a letter from Dr. Dianne Rosenberg; and (7) the court abused its discretion in ordering her to pay 50 percent of the cost of the minors' counseling. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Order To Show Cause (OSC) To Modify Custody
In December 2009 Jenny filed an OSC to modify custody and visitation as to the minor children. She sought sole legal and physical custody of the children and sought to have their visitation with Robert limited to alternate weekends. At that time they shared custody of the minor children.
Additionally, after they separated, the parties stipulated to a restraining order "without admitting fault or acknowledging the reasonableness of [Jenny's] fears." That restraining order has been renewed on several occasions since then, most recently in January 2010.
In support of the OSC she filed points and authorities alleging that Robert had repeatedly violated the domestic violence retraining orders and that an award of custody to a person who has committed domestic violence was not in the children's best interests. Jenny also alleged that Robert had "stranded" the children, dropping them off at a store at night and leaving them at a church. Jenny asserted that Robert had violated the terms of the existing visitation schedule on numerous occasions.
Thereafter, Jenny filed a supplemental declaration making further allegations against Robert. She alleged that he was "knowingly facilitating contact between our minor children and registered sex offender Paul Andre Montesinos," who was their adult daughter's boyfriend. She also asserted again that he had violated the terms of their visitation schedule and called the police to her home because he falsely accused her of custodial interference. She alleged that she should be awarded sole custody because of the alleged domestic violence he inflicted against her. She also alleged that Robert did not support her relationship with the minor children and had told them disparaging and derogatory things about her. She alleged Robert neglected the children's medical needs and refused to co-parent.
B. Robert's Response
In Robert's response, he sought joint legal custody and primary physical custody to him. He agreed to reasonable visitation of the children with Jenny. In his declaration, Robert asserted that the OSC was an attempt to alienate him from his children and cause harm and interference with his life.
In his declaration, Robert referred to a March 2006 psychological evaluation conducted by Dr. Steven Sparta. In that report, Dr. Sparta addressed "over 250 allegations by [Jenny] against me of sexual assault, physical abuse and related allegations." According to Robert, Dr. Sparta determined there was no evidence to substantiate any of Jenny's claims. In the evaluation, Jenny claimed Robert raped her, was violent and physically abusive, sexually abused the children, was addicted to pornography, neglected the children and their medical care, and that the children were afraid of him and were not safe with him. Robert quoted from Dr. Sparta's report that stated, "The mother's representation is at odds with more than 23 different child abuse referrals and repeated investigations by Child Protective Services [CPS] and two county law enforcement agencies as well as the writer and other professionals."
Robert also stated that the parties had stipulated to a mutually acceptable medical examiner, Dr. Dianne Rosenberg, to address Jenny's allegations and that Dr. Rosenberg reported there was no evidence to support Jenny's reports of spousal abuse.
Robert noted that Dr. Sparta's full report was in the court file and requested that the court take judicial notice of it.
C. Family Court Services Report
While the OSC was pending, a mediation was held before Family Court Services (FCS). Both sides made essentially the same contentions as in their papers filed in conjunction with the OSC. The mediator recommended that, "[g]iven the issues between the parents, the undersigned does not recommend a change in custody at this time." Given Robert's concession he had missed many of his Thursday visitations, however, the mediator recommended that they be discontinued if he missed five more.
The mediator recommended an alternative plan for summer vacations, whereby each parent would have three weeks with the children. The mediator recommended that exchanges continue to be supervised, except where the exchanges were at school.
Given the issues between the parties, the court recommended that the children participate in counseling and that the parties share the costs of counseling equally. The mediator also recommended that the children have no contact with their adult daughter's boyfriend.
D. Hearing on OSC
At the outset of the OSC hearing, the court noted that Jenny had set the matter as a 20-minute short-cause hearing, but had filed documentation so voluminous that it finished filling up one file and started another at least an inch thick. Because of that, the court was unable to read all the documents or limit the hearing to 20 minutes. The court then noted that FCS recommended that there be no change in custody and visitation, and its tentative decision was to adopt its recommendations.
The court then stated that it was giving Jenny an opportunity to be heard, but that her arguments were mere "rehashing" of matters that had been brought up when she had previously tried to modify custody. The court then allowed Jenny to give a lengthy statement of the reasons for her OSC. However, when Jenny asserted that this was a domestic violence case, the court stopped her and informed her that, if that were the case, there were remedies available to her, but that the OSC was concerning custody and visitation, and it was not the appropriate forum to air those allegations.
Jenny tried to bring up the issue of domestic violence and the restraining order again, saying there was a presumption that custody to the perpetrator was detrimental to the children. In response, the court referred to an FCS report from December 2007, in which FCS essentially made the same recommendation of joint custody as for the current OSC. The court quoted a passage from that report that stated, "The mother's request for sole legal and physical custody of the children with no contact for the father does not appear to be justified. The father has been investigated repeatedly since the parents' separation by CPS, law enforcement, and Dr. Steven Sparta. None of the investigating agencies have found any evidence to support the mother's allegations that he poses a threat to her or the children." The court then stated that FCS knew of these allegations going back to 2007 and had rejected them. Further, the court found that even if the presumption applied, it had been rebutted.
Robert has filed a request that we augment the record to include (1) the March 20, 2006 confidential psychological evaluation by Dr. Sparta; and (2) the FCS report dated December 10, 2007. We deny the request to augment the record as to item 1 and grant the request as to item 2.
Jenny objected to the FCS recommendation that the parties share the costs of counseling for the minor children. The court stated that it was reserving jurisdiction over any reallocation, but that any request to modify the allocation of such costs would need to be heard by the Family Support Division of the court.
The court then adopted the FCS recommendations, with minor modifications.
DISCUSSION
I. STANDARD OF REVIEW
Appellate courts review rulings on motions to modify child custody, visitation and child support for an abuse of discretion. (Montenegro v. Diaz ( 2001) 26 Cal.4th 249, 255; Edwards v. Edwards (2008) 162 Cal.App.4th 136, 141.) "In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.) To the extent an appellant challenges the trial court's factual findings, review is limited to whether there is any substantial evidence, contradicted or uncontradicted, that supports the trial court's ruling. The reviewing court resolves conflicts in the evidence in favor of the prevailing party and draws all reasonable inferences to uphold the trial court's decision. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1317.) The appellate court reviews questions regarding interpretation of the Family Code de novo. (Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536.)
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Appellant must affirmatively show error. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.)
II. ANALYSIS
A. Denial of Due Process Right To Present Evidence
Jenny asserts that the court denied her due process by failing to consider the evidence she presented at the hearing on the OSC. This contention is unavailing.
It is true that "[o]ne of the elements of a fair trial is the right to present relevant and competent evidence on a material issue." (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 3, p. 28.) However, courts also have the power to limit the introduction of cumulative evidence or evidence whose probative value is outweighed by the probability it will consume too much time. (Evid. Code, § 352; Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 960, overruled on other grounds in Adams v. Murakami (1991) 54 Cal.3d 105, 114.)
Here, as the court noted, Jenny had set the matter as a short-cause, 20-minute hearing, but filed with the court voluminous materials, much of which, as the court noted, was a "rehash" of arguments she had made in the past. Nonetheless, the court afforded her an opportunity to be heard and allowed her to present a lengthy argument detailing her contentions. The court only stopped her when she began making irrelevant accusations of alleged spousal abuse. The court recited a previous FCS report that concluded her accusations in this regard were unfounded.
Moreover, the same allegations Jenny made at the OSC were made at the mediation before FCS. The court read and considered the current FCS report and recommendations and adopted them. Jenny cannot show that the court abused its discretion in adopting those recommendations.
B. Supervised Visitation or Suspension or Denial of Visitation
Jenny asserts that the court erred when it refused to consider whether visitation should be supervised, suspended, or denied. We reject this contention.
Jenny asserts that the court should have applied Family Code section 3031, subdivision (c). (Undesignated statutory references will be to the Family Code.) That section states: "When making an order for custody or visitation in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the court shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any custody or visitation arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether custody or visitation shall be suspended or denied."
However, in Jenny's OSC papers and at the hearing on her OSC, she never requested such relief. Therefore, she has forfeited this issue on appeal. (Giraldo v. Department of Corrections and Rehabilitation (2008) 168 Cal.App.4th 231, 251.)
She also asserts that the court erred in refusing to consider whether Robert was allegedly facilitating contact between the minor children and a registered sex offender (their adult daughter's boyfriend). However, the record reflects the court did consider this allegation and adopted the FCS recommendation that the minor children have no contact with that person.
C. Rebuttable Presumption Under Section 3044
Relying on section 3044, Jenny asserts the court did not correctly apply that statute's presumption against an award of custody to a perpetrator of domestic violence when there is a finding by a court that one spouse has perpetrated domestic violence within the past five years. Relying upon the fact that the court reissued a restraining order against Robert within the past five years, she states that was a finding of domestic violence that triggered the presumption under section 3044. We reject this contention.
Section 3044, subdivision (a) provides: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence 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." (Italics added.)
It is true that the initial issuance of a domestic violence restraining order can be a finding of domestic violence that triggers the presumption of section 3044. (See S.M. v. E.P (2010) 184 Cal.App.4th 1249, 1267-1268.) However, by simply reissuing the restraining order the court did not make a new finding that Robert had committed domestic abuse within the last five years. (See Ritchie v. Conrad (2004) 115 Cal.App.4th 1275, 1290 [while initial domestic violence restraining orders are based upon abuse or threats of abuse, courts may reissue them upon a showing that the protected party has a "reasonable apprehension" that future abuse may occur].) Indeed, the court relied upon a previous FCS report that found that her claims of abuse were unsupported and that Robert was not a danger to the children. The court then found that even if the presumption applied, it had been rebutted.
D. Failure To Consider Factors To Rebut Section 3044's Presumption
Jenny next contends that the court failed to consider all the factors listed in section 3044, subdivision (b) that courts are to apply in considering whether the presumption against custody to a perpetrator of domestic violence has been overcome. We reject this contention.
Section 3044, subdivision (b) provides:
"(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. [¶] (2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. [¶] (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. [¶] (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. [¶] (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. [¶] (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions. [¶] (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence."
As stated above, section 3044's presumption does not apply because there has been no finding that Robert committed domestic abuse within the last five years. Thus, the court did not need to consider the factors listed in section 3044, subdivision (b).
Moreover, even assuming that the court was required to consider the factors set forth in section 3044, subdivision (b), it properly considered those factors relevant to this case. Factors 2 through 5 were not relevant as Robert has not been ordered to attend a batterer's program, there was no evidence presented as to alcohol or drug abuse, there was no order for a parenting class, and he was not on probation or parole.
The court did consider whether joint custody was in the best interests of the child and whether he had violated the restraining order or committed any further acts of domestic violence. Thus, if the court was required to consider the relevant factors under section 3044, subdivision (b), it properly did so.
E. Reliance on FCS Recommendation
Again relying on section 3044, Jenny asserts that the court erred when it relied on the recommendations of FCS. This contention is unavailing.
Section 3044, subdivision (e) provides: "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."
Here, the court was not asked to and did not make a finding Robert committed domestic violence. The only issues before the court were custody and visitation. Indeed, the court rejected Jenny's attempt to turn the hearing into one involving allegations of domestic abuse. Accordingly, subdivision (e) of section 3044 is not applicable, and the court acted well within its discretion in considering the recommendations of FCS.
F. Reliance on Dr. Sparta's Report and Dr. Rosenberg's Letter
Jenny next asserts, on numerous grounds, that the court improperly relied upon Dr. Sparta's report and Dr. Rosenberg's letter in determining custody and visitation, in particular because they were allegedly supposed to remain confidential. She argues the court should have considered her written objection to Robert's use of those documents in his response to her OSC. We reject this contention.
A review of the record reflects there is no evidence the court considered either item in making its ruling. Indeed, on appeal Jenny does not even argue that it did. Rather, the court relied on the recommendations of FCS and adopted them. Accordingly, there was no need for the court to rule on her objection.
G. Costs of Counseling for the Minor Children
Jenny asserts the court erred in ordering the parties to share the costs of counseling for the minor children, arguing that she does not have the financial resources to pay for it. This contention is unavailing.
The court exercised its discretion to adopt FCS's recommendation that the minor children attend counseling and that the parties share those costs equally. When Jenny objected that she was unable to pay, the court stated that it would reserve jurisdiction over a reallocation, but that Jenny would have to raise that issue with the Family Support Division. This was a reasonable order that allowed Jenney to seek to avoid her share of the costs of counseling if she could prove that she was financially unable to do so. We cannot say the court abused its discretion in making that order.
DISPOSITION
The order denying Jenny's OSC for a change in custody and visitation is affirmed. Robert shall recover his costs on appeal.
NARES, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.