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Duperret v. Emel (In re Emel)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F060960 (Cal. Ct. App. Jan. 31, 2012)

Opinion

F060960

01-31-2012

In re the Marriage of DANIELLE J. and DONALD E. EMEL, JR. DANIELLE J. DUPERRET, Appellant, v. DONALD E. EMEL, JR., Respondent.

Danielle J. Duperret, in pro per., for Appellant. Donald E. Emel, Jr., in pro. per., for Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FL2557)


OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Douglas C. Boyack, Judge.

Danielle J. Duperret, in pro per., for Appellant.

Donald E. Emel, Jr., in pro. per., for Respondent.

Danielle J. Duperret (mother) appeals from the order of the family court transferring custody of her 16-year-old son to her former husband, Donald E. Emel, Jr. (father). Mother argues the family court abused its discretion in issuing its order. We disagree and affirm the order.

Father has filed a motion in this court to have mother declared a vexatious litigant. For reasons we shall explain, this motion is denied.

FACTUAL AND PROCEDURAL SUMMARY

The record in this case consists of nine volumes of clerk's transcripts and a supplemental volume of the clerk's transcript that contains compact discs from hearings held on August 20 and September 3, 2010. We have reviewed each volume of the clerk's transcripts and have listened to all the proceedings on the compact discs. Most of the information in the clerk's transcripts is not relevant to the issue in this appeal. We will, however, provide a summary of the pertinent information, including rather extensive background information.

Mother and father were married in 1980. In 1999, mother filed for dissolution of the marriage. The couple had seven children, six daughters and one son. Eric, the youngest child, was four at the time the petition was filed. In the 12 years since mother filed for dissolution, the parties repeatedly have returned to court. Although the issues have been numerous, the primary issues appear to have been custody of the children and medical treatment for the children.

To ease the reader's task, we will refer to the daughters of the marriage in general terms. No disrespect is intended. Each daughter is now over 18 years of age and no longer subject to the jurisdiction of the family court.

To provide background information for the issues in this case, we will review some of the decisions from the family courts. On November 29, 2001, the family court confirmed a prior order awarding the parties joint legal and physical custody, with the primary physical custody awarded to mother for the five youngest children. The oldest daughter had turned 18 by this time. Father was awarded custody of the oldest minor child. A visitation schedule was set up for each parent.

On July 28, 2003, the family court issued a tentative decision that became its order. Father had petitioned the family court for (1) custody of two of the daughters in mother's custody, (2) permission to declare the children dependents for tax purposes, (3) an order for medical treatment for Eric, and (4) an order for disbursement of the proceeds from the sale of the home. In response, mother had petitioned the family court for (1) modification of father's visitation with the children, (2) an injunction preventing father from obtaining medical treatment for Eric without mother's consent, and (3) an order prohibiting father from feeding Eric milk and wheat products. By the time the issues were tried, father had dropped his request for custody of two of the daughters. Every other issue was contested.

The family court resolved the issues regarding the tax dependency and the proceeds from the sale of the house and then proceeded to the issue of medical treatment for Eric. The family court explained that Eric was eight years old and a dwarf. He had been evaluated by several physicians at the request of father, although mother tried to prevent many of the visits as she deemed them unnecessary. The physicians who examined Eric on behalf of father recommended that Eric be seen by an ear, nose and throat specialist to determine the cause of Eric's sleep apnea. Father also testified that every physician who had treated Eric received a letter from mother attacking his or her recommendations and qualifications. Father sought custody of Eric so that he could obtain this treatment. Mother disagreed, arguing that Eric was congested when he visited father because father fed Eric wheat and milk products, to which Eric was allergic.

The family court denied father's request for custody of Eric, but ordered the treatment sought by father "without interference" from mother. The family court denied mother's request for a restraining order preventing father from obtaining medical treatment for Eric. The family court also concluded that it was more probable than not that Eric was allergic to wheat and dairy products and ordered father to refrain from providing such products to Eric.

On November 3, 2003, father filed an ex parte application seeking temporary custody of Eric so that Eric could have his adenoids and tonsils removed as recommended by Eric's treating physicians. The surgery and follow-up treatment required father to have custody of Eric for a short period during what normally would have been mother's time with the children. The family court issued the requested order.

On April 26, 2004, father filed a motion seeking custody of the three youngest children for various reasons. The family court appointed an attorney for all of the minor children. The children's attorney filed a report with the family court that recommended custody not be changed. Father's motion started a new round of motions from each party. By the time contested hearings were held on May 10, 11, and 13, 2005, the following motions were before the family court:

1. Father's motion for modification of child custody, with supervised visitation for mother;
2. Father's motion for modification of child support;
3. Father's motion for child abduction orders;
4. Fathers' motion for temporary modification of child support due to disability;
5. Mother's motion for appointment of an attorney;
6. Father's motion for a vocational examination of mother;
7. Department of Child Support Services motion for modification of child support; and,
8. Mother's motion for modification of visitation, child support, and spousal support.

An opposition was filed to each motion and a contested hearing was held on each issue. Numerous declarations were filed by each party and extensive testimony was presented at the hearings.

On September 21, 2005, the family court issued its order. The family court summarized the issues, the evidence presented, and its conclusions. The family court began by addressing the issue of the education of the children. It noted that mother had homeschooled the children and father questioned the effectiveness of the schooling for the remaining five minor children. Father's experts concluded that Eric was performing substantially below grade level. Two of the minor daughters also performed poorly on standardized tests. In response to this information, mother asserted the children were late readers because a child's eyes are not ready to read until the child is nine or 10 years old; she believed it was better for the children to play outside rather than study; and puzzles were a better source of learning than workbooks. The family court concluded that the children's education was being neglected by mother.

On the issue of medical care, the family court found that mother had frustrated father's attempts to get appropriate medical care for the children. Mother frequently expressed disdain for any medical professionals who treated the children and interfered with treatment whenever she disagreed with the diagnosis. Mother refused to give medication to the children when prescribed by a physician when father took the children to the appointment and refused to authorize medical treatment when the children were in an automobile accident. The family court concluded that mother had not and would not obtain appropriate and necessary medical care for the children.

The family court also concluded that mother had failed to protect two of the daughters. One incident involved mother's interference with the prosecution of a young man accused of molesting one of the daughters. The other incident involved permitting another minor daughter to spend the night alone at the theater where the daughter worked.

The family court observed that mother and father would not cooperate in any manner regarding the children. Mother continually made disparaging remarks about father and actively encouraged the older daughters to refuse to visit with their father. Father, on the other hand, failed to demonstrate any ability to deal effectively with the children. Mother allowed the children to do as they pleased with little supervision and, consequently, father was viewed as a "prison warden" because of the structure he attempted to impose.

Finally, the family court found that mother refused to acknowledge Eric's special education needs, and she attempted to frustrate father's efforts to obtain educational help for Eric.

Based on its findings, the family court gave mother physical custody of the two oldest minor daughters (ages 17 and 16 at the time of the hearing). The girls were given discretion to visit with father. The family court gave mother physical custody of the remaining two minor daughters (ages 14 and 13 at the time of the hearing) because of their attachment to mother, father's lack of contact with them, and father's lack of ability to cope with them. Father retained the sole ability to obtain medical care for the girls and was ordered to obtain counseling so that he could reestablish a relationship with them. Visitation was to resume at the discretion of the counselor. Finally, the family court gave father legal and physical custody of Eric. Mother was granted visitation.

The two oldest children were over the age of 18.

The same day that the family court filed the above order, father filed another motion seeking a change in child custody and child support. In this motion, father alleged that mother refused to return Eric to his custody and refused to allow his visitation with his youngest daughter. Mother did not appear for the hearing, and the family court granted father temporary legal and physical custody of all of the minor children.

On September 29, 2005, the family court issued an order finding mother in contempt and set bail at $5,000. On October 27, 2005, the family court granted father legal and physical custody of all of the minor children. Mother was provided visitation at father's discretion. On November 22, 2005, the family court issued a stay-away order precluding mother from coming within 100 yards of father, father's residence, the children, or the children's school.

In February 2006, mother was residing in Las Vegas, Nevada, and attempted to have the proceedings transferred to that forum. In the Nevada pleadings, mother explained what had occurred in the preceding six months. She alleged that on September 16, 2005, two of the minor daughters and Eric ran away from father. Mother alleged she had no involvement in this episode, but Tuolumne County officials threatened to charge her with kidnapping. On September 19, 2005, mother moved to Las Vegas. Mother did not see the children until December 23, 2005, at which time she took the children to child protective services. Mother then filed for a temporary protective order in Nevada and filed an action seeking custody of the children.

On February 9, 2006, Tuolumne County officials obtained an order for a protective custody warrant for the minor children.

The next filing in this case occurred on September 12, 2007, over one year later. This filing included a declaration from mother that stated she had been arrested on April 17, 2006, by United States Marshals and spent six months in jail. Mother sought legal and physical custody of the minor children, which by this time consisted of the two youngest daughters and Eric.

A contested hearing was held on February 22, 2008. On March 14, the family court issued its order finding that while father had provided a stable home for the children, the children were unhappy and wanted to live with mother. Accordingly, the family court modified custody so that mother had temporary physical custody of the remaining minor children (the youngest two daughters and Eric). The parties shared legal custody of the children. The order also permitted mother to homeschool the children but ordered mother to obtain conventional medical care.

The family court stated that it awarded temporary custody of the minor children to mother, despite concerns over mother's ability and willingness to ensure the children received adequate health care and progressed in their education. To ensure mother complied with the court orders, the family court ordered regular review hearings to monitor the children's health and educational status. Mother was required to provide medical (from a doctor) and educational (from a school official or other qualified individual) reports 15 days before the scheduled hearings to the family court and to father.

In an August 2008 review hearing, mother was reminded by the family court that if she did not provide proper education for the children, the court would award custody to father.

In the ensuing two years, the family court held numerous hearings, each party filed motions directed at the other, father unsuccessfully sought contempt findings against mother, and the family court repeatedly emphasized that mother retained custody on a temporary basis.

Further review hearings were held on August 20, 27, and September 3, 2010. The family court received testimony from an educational therapist, Lloyd Schneider, regarding Eric's progress in school. Schneider opined that Eric was not making sufficient educational progress. The family court awarded temporary custody of Eric to father based on this testimony and on its opinion that Eric needed to spend more time with his father. It is from this order that mother appeals.

DISCUSSION

Mother contends the family court made two errors that require reversal of the order granting temporary physical custody of Eric to father. First, she argues the family court erred because it refused to provide her with the necessary accommodations for her disability. Second, she claims the family court erred in making its ruling. I. Denial of Accommodations Pursuant to the Americans with Disabilities Act Mother claims the family court erred in refusing to accommodate her disabilities

as required by the Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.). Mother relied on a report from Karin Huffer to support her claim of disability. The order identified by mother denying her ADA accommodations, however, was issued on December 17, 2010. This appeal is from the family court's order after the September 3, 2010, hearing. Therefore, anything that occurred after September 3, 2010, including denial of her request for ADA accommodations, is not relevant to this appeal. Relevant evidence in this appeal must have occurred before the September 3, 2010, hearing.

Moreover, California Rules of Court, rule 1.100(g)(2) provided mother 10 days to file a petition for a writ of mandate to challenge the ruling that denied her request for accommodation. An appeal is not an appropriate remedy simply because we cannot provide mother with any effective relief. Over one year has passed since the family court denied mother's request and, were we to decide the family court erred, reversal of that order would not change the outcome of whatever proceedings occurred in the family court after the request was denied. Therefore, we reject mother's argument about the denial of ADA accommodations because she failed to pursue the proper remedy.

II. Eric's Placement with Father

Applicable law

The primary concern when initially determining who shall have custody of the child is the best interest of the child. (Fam. Code, § 3040, subd. (b).) Accordingly, when the issue of custody initially is presented to the family court, it has the widest discretion to determine what plan is in the best interest of the child after considering all of the relevant circumstances. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro); In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess).)

All further statutory references are to the Family Code unless otherwise stated.

When a parent challenges an order previously issued by the family court that was intended to be a final determination of custody, however, the family court no longer may look simply to the best interest of the child. Instead, the Supreme Court has established "a variation" on the best interest rule, which is commonly referred to as the changed circumstance rule. (Montenegro, supra, 26 Cal.4th at p. 256.) Under this rule, "the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare. [Citation.]" (Burgess, supra, 13 Cal.4th at p. 37.)

"The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest." (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)

Mother appears to be confused as to which test applies to the family court's decision, although the record leaves no room for doubt about the appropriate test. The family court stated when it returned custody of the children to mother that it was making only a temporary order. It repeated at virtually every review hearing that mother had temporary custody of the children. When the family court returned custody of Eric to father, it again granted temporary custody. Therefore, the family court did not make a final determination of custody, and a change in custody required only that the family court conclude Eric's best interests required a change in custody.

The family court has the "widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd. (b).) In making this determination, relevant factors include the health, safety, and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (§ 3011, subds. (a)-(c); Montenegro, supra, 26 Cal.4th at p. 255.)

We review custody orders using the deferential abuse of discretion test. (Montenegro, supra, 26 Cal.4th at p. 255.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Burgess, supra, 13 Cal.4th at p. 32.) A trial court abuses its discretion if its ruling is arbitrary, capricious, or beyond the bounds of reason. (People v. Ledesma (2006) 39 Cal.4th 641, 705; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Analysis

We now apply these principles to the family court's decision. The first day of the hearing occurred on August 20, 2010. The only witness called on father's behalf was Schneider, an education specialist. This testimony was not reported by a court reporter but was recorded on the family court's recording system. We have listened to Schneider's testimony. Some of this testimony was difficult to hear because the volume level was low, but most of the testimony was audible.

Father's comments and questions were the most difficult to hear. Mother's questions and comments, for the most part, were audible.
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Schneider stated his qualifications to testify as an expert witness and no serious objection was made to his qualifications. Schneider met with Eric for a period of four to five hours over two days. Several tests were administered by Schneider. Eric did not appear to be uncomfortable or under undue stress.

In summary, Schneider testified that Eric was performing below grade level and that the method of education he had received in the past was not helping him to achieve his potential. Schneider believed Eric would benefit from a more structured educational setting and regular classroom assistance from teaching professionals. At the end of the hearing, the family court found Schneider's testimony to be compelling and ordered custody be given to father to further Eric's education. The family court also stated that it had spoken with Eric in chambers and outside the presence of mother and father. The family court found Eric to be comfortable and stated that while Eric enjoyed living with mother, he also enjoyed living with father.

The hearing was continued for one week to August 27, 2010. On that date, testimony was presented by one of mother's expert witnesses, Huffer. While the recording from this hearing is unavailable, the record contains a letter written by Huffer that appears to have been written specifically for this hearing. We now briefly summarize Huffer's letter.

Huffer indicated that in April 2010 she had spoken with Eric for an extended period of time by phone. She stated Eric was exhausted from the litigation between his parents and looked forward to the day when his fate would no longer be controlled by the family court. Eric understood he had some learning difficulties but felt that he had a plan to become independent by learning to be an automobile mechanic. Huffer felt Eric was emotionally mature for his age and that he tried to mitigate the conflict between his parents. Eric wanted the ability to control his future and Huffer felt he would make wise choices if given that opportunity.

Schneider also testified at this hearing, although the substance of his testimony is unclear. It appears he may have testified about the best school placement for Eric in Tuolumne County. After hearing from the two witnesses, the family court continued the hearing for another week.

On September 3, 2010, the family court heard testimony from five of the daughters and from Barry Goldstein, another expert witness testifying on mother's behalf. Goldstein testified generally about deficiencies in previous reports prepared in the case. The daughters testified about the lack of involvement father had in their education and father's lack of involvement in their lives in general.

After receiving the testimony, the family court expressed its concern over the education Eric had received and the lack of socialization Eric was experiencing while in mother's custody. The family court reiterated its conclusion that custody of Eric would be returned to father and that Eric should be enrolled in a local charter school.

We emphasize that our review is limited to determining whether the family court abused its discretion in ordering father to have physical custody of Eric. On this record, there is no abuse of discretion.

Mother presents a passionate argument, but makes a fundamental, but common, mistake. She focuses on the testimony from her experts while ignoring Schneider's testimony. Her main point is that since Schneider's report was not entered into evidence, there is no evidence to support the family court's ruling. This is incorrect. Schneider testified at trial, and his testimony provided ample support for the family court's ruling. In summary, Schneider testified Eric was underperforming scholastically while in mother's care, and he would have a better chance of educational success if he were in a more structured setting. While mother's experts generally disagreed with Schneider's conclusions, the family court had the right and obligation to determine which testimony it found to be the most compelling.

We have reviewed each of mother's arguments and conclude they do not establish that the family court abused its discretion. We will address some of these arguments, hoping that this discussion will aid mother in understanding our decision.

Mother complains that the August 20, 2010, hearing was supposed to be a review hearing and she was unprepared to address the issues raised by Schneider's testimony. Accepting, but not deciding, that mother was surprised by the events on August 20, we point out that hearings also were held on August 27 and September 3 and mother presented substantial testimony on the issues. Even if she was unprepared on August 20, she had sufficient time to prepare for the next two hearings and was given ample opportunity to present her arguments in opposition to the change in custody.

Mother also complains that Schneider's report was not admitted into evidence. As explained above, however, Schneider's testimony provided more than adequate support for the family court's ruling. Moreover, to the extent mother was not able to prepare for Schneider's August 20 testimony, his testimony on August 27 gave mother ample opportunity to raise any issues she failed to raise on August 20.

Mother's main complaint is that the family court limited the scope of the testimony of her witnesses. Essentially, the family court wanted to focus the testimony on Eric's educational needs and in which household those needs best would be met. Mother wanted to revisit her allegations of father's abuse against her, and her witnesses apparently were prepared to testify about the consequences of that abuse. The family court refused to allow the testimony.

The family court has discretion when ruling on the admission of evidence, especially when admission of such evidence would result in an undue consumption of the family court's time. (Evid. Code, § 352; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We review its ruling for an abuse of that discretion. (People v. Brady (2010) 50 Cal.4th 547, 558.) As the family court noted, these allegations were repeated by mother many times and were the subject of prior hearings. The family court did not abuse its discretion when it refused to hear the testimony again. The efficiency of the court system demanded it do so.

Finally, mother argues that Eric wanted to live with her and that he was unwilling to express this desire because of his fear his answers would result in mother's incarceration. This argument is unpersuasive for two reasons.

First, there is no evidence in the record to support this contention. Eric did not claim any such reluctance. Also, no answer provided by Eric would have resulted in mother being incarcerated, unless his testimony established some new crime had been committed. It appears mother previously was incarcerated because of allegations that she either took the children from father's custody against court orders or facilitated one of the daughters when she did so. At the time of the hearing, mother had been awarded physical custody of Eric; therefore mother was not violating any court order.

Second, the family court interviewed Eric in chambers and described the conversation as relaxed and Eric's answers as forthcoming. There is no evidence that Eric was coerced into giving false testimony or felt compelled to do so for any reason.

For each of these reasons, we conclude the family court did not abuse its discretion when it determined that it was in Eric's best interests that physical custody be returned to father.

III. Father's Motion to Have Mother Declared a Vexatious Litigant

Father filed a motion in this court seeking to have mother declared a vexatious litigant pursuant to Code of Civil Procedure section 391 et seq. In his motion father lists numerous motions he asserts were filed by mother in the family court, in different counties, in different states, in the Nevada Supreme Court, in the California Court of Appeals, the First and Fifth Appellate Districts, in the federal district courts, and in the Ninth Circuit Court of Appeals. The only records before this court are those from Tuolumne County and this court. In this court, mother has filed two appeals and sought writ relief from prior family court orders.

We do not think that mother's appeals and writs in this court were frivolous or should result in her being deemed a vexatious litigant. Father's showing is simply inadequate to meet the requirements of Code of Civil Procedure section 391. Therefore, his motion is denied.

DISPOSITION

The order appealed from is affirmed. Father is awarded his costs on appeal.

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CORNELL, J.
WE CONCUR: ____________
WISEMAN, Acting P.J.
____________
GOMES, J.


Summaries of

Duperret v. Emel (In re Emel)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F060960 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Duperret v. Emel (In re Emel)

Case Details

Full title:In re the Marriage of DANIELLE J. and DONALD E. EMEL, JR. DANIELLE J…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 31, 2012

Citations

F060960 (Cal. Ct. App. Jan. 31, 2012)