Opinion
E063790
03-07-2017
In re the Marriage of TIMOTHY and ELENA GROSS. TIMOTHY GROSS, Respondent, v. ELENA GROSS, Appellant.
Elena Gross, in pro. per., for Appellant. No appearance for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. IND098669) OPINION APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge. Affirmed. Elena Gross, in pro. per., for Appellant. No appearance for Respondent.
Appellant Elena Gross has been designated a vexatious litigant by the superior court and is required to obtain permission to file proceedings in this court. On September 9, 2015, we granted her permission to appeal from the trial court's orders dated December 15, 2014 and April 8, 2015, but denied permission to appeal an order dated April 20, 2015, in which the trial court denied her application to vacate her designation as a vexatious litigant.
As we discuss below, because Elena agreed to the order issued on April 8, 2015, she has waived appellate review of six of the eight issues presented in her opening brief. We also reject her contention that the court erred by not issuing a statement of decision and by not addressing a proposed order she submitted. Consequently, we will affirm the judgment.
Despite our unambiguous order denying permission to appeal from the April 20, 2015 order, Elena has included in her opening brief an argument as to why the application to vacate her designation as a vexatious litigant should have been granted. We will, of course, not address that argument.
Elena did not appear for oral argument after numerous continuances granted at her request. We recount the following history: On August 29, 2016, after the cause was first calendared for oral argument, Elena filed a motion for a continuance based on an unspecified illness. We granted the motion despite the absence of any supporting documentation but required that any further requests for a continuance be "accompanied by a doctor's letter stating current inability to make court appearances and a prognosis as to when the appellant will be able to make an appearance at oral argument."
On October 6, 2016, Elena filed a motion to continue oral argument on the ground that it conflicted with a trial date. We granted that motion unconditionally.
On December 5, 2016, Elena filed a motion to continue oral argument then set for December 7, 2016, again based on an unspecified illness. We granted that motion, but informed Elena that we would grant no further continuances based on illness unless her motion was accompanied by "a document signed by a doctor or certified physician assistant stating the medical diagnosis and prognosis of the illness, as well as how the illness prevents appellant's appearance at oral argument."
On February 6, 2017, Elena filed a motion to continue oral argument then set for February 8, 2017, again based on illness. She attached a copy of a form signed by a certified physician assistant stating that Elena was seen at an urgent care center on February 3, 2017, and checking the lines "May not return to Work/School: 2/13/2017" and "The same status applies for court appearances." The motion did not comply with our prior orders because it did not state either the nature of the illness or how the illness prevented Elena's appearance at oral argument. Because in the absence of this information, the motion failed to state good cause for a continuance, we denied the motion.
At oral argument on February 8, 2017, the court called this case in the order stated on the court's calendar. It was the first case to be heard by this panel. When Elena did not respond, the court trailed the case. The court called the case again after hearing argument in the second scheduled case, and again trailed it when Elena did not respond. The court called the case a third time at the end of the calendar for this panel. When Elena did not respond, the court deemed the cause submitted for decision. She never telephoned or otherwise communicated with the court.
BACKGROUND
Elena and Timothy Gross, whose marriage has been dissolved, are the parents of two young boys. On June 13, 2011, after protracted litigation, the trial court issued an order determining child custody and visitation. The court awarded joint custody and designated Timothy as the primary caretaker. His residence was designated as the primary residence for purposes of determining eligibility for public assistance and school enrollment. The order specified a visitation schedule.
Although Elena insists that this was a temporary order, the court's statement of decision expressly states that it is a final determination of custody.
Evidence at the custody hearing established that Elena, a permanent resident but not a citizen of the United States, held dual South African and German citizenship. Her mother resided in South Africa. Timothy and Elena had obtained passports for the children before they separated, but those passports were stolen when the safe in which Timothy kept them, which belonged to a friend of his, was stolen from the friend's home. Elena had obtained replacement passports for the children, and Timothy was concerned that Elena would use the passports to remove the children from the country and take them to South Africa. (In re Marriage of Gross (Dec. 10, 2014, E054567) [nonpub. opn].) The court found that there was a risk that Elena would take the children without permission because she had a history of not cooperating with Timothy in parenting, because she had family and emotional ties to another country, and because she had applied for passports for the children. The order directed Elena to provide "any and all passports for" the children to Timothy on or before July 1, 2011.
This information is alluded to in the current proceedings but is not fully developed. We take judicial notice of the opinion and of the record in In re Marriage of Gross, supra, E054567, for the purpose of more fully explaining the history underlying the issues in the current appeal. (Evid. Code, § 452, subd. (d).) In that opinion, we rejected Elena's claims that the August 5, 2011 order (see next paragraph) was invalid and affirmed the trial court's denial of two applications by Elena for permanent domestic violence restraining orders.
Elena filed a motion to set aside the statement of decision and for a new trial. As of the August 5, 2011 hearing on Elena's motion, Elena had not delivered the passports to Timothy. Elena had previously told the court that she had sent the passports to her mother for safekeeping and had submitted a declaration by her mother stating that the passports "no longer exist." The declaration did not explain what had happened to the passports. Elena said that her mother had destroyed them. The court was not satisfied with that explanation. It became concerned that Elena was a flight risk, in part because she was unemployed and was facing a hearing on eviction from the former family home, which was in foreclosure, and in part because of what the court perceived to be Elena's evasiveness concerning the status of the children's passports. The court issued an OSC "regarding custody, visitation, and sanctions under Code of Civil Procedure 177.5" based upon Elena's failure to comply with the order to provide the passports to Timothy despite twice being ordered to do so. The court set a hearing on the OSC for August 26, 2011. Because the court believed there was a risk that Elena would abduct the children, the court gave temporary physical custody to Timothy pending the hearing, subject to Elena's rights to reasonable visitation, but only under supervision at Elena's expense. (In re Marriage of Gross, supra, E054567.) The order for supervised visitation was still in effect at the time of the hearing that is the subject of the current appeal.
On August 22, 2014, Elena filed a request for a domestic violence restraining order. After a hearing on September 12, 2014, the trial court issued a domestic violence restraining order, ordering Timothy not to engage in threatening and harassing conduct against Elena or the children and to stay at least 100 yards away from Elena's home, workplace and automobile. The court declined to apply the stay-away order to the children, as Elena had requested. On September 16, 2014, Elena filed a request to modify the restraining order to include the children and to modify the custody and visitation orders issued on June 13, 2011, and the supervised visitation order issued on August 5, 2011.
The hearing on the request began on December 15, 2014. At that hearing, Elena asked the court to advance a hearing then set for February 19, 2015 to December 15, 2014. The court denied that request. After taking evidence and hearing argument on the matters then before it, the court granted Elena's request for additional time to present her case and continued the matter to April 8, 2015, the earliest date available.
On April 8, 2015, Elena filed an amended request for a written statement of decision, in which she set forth multiple contentions as to why the orders that were the subject of her modification request were invalid for failure to comply with various provisions of law.
On April 8, 2015, the court took further evidence and heard further argument. The court concluded that the order for supervised visitation should be vacated and the June 13, 2011 visitation order reinstated, affording Elena liberal unsupervised visitation. In reaching that conclusion, the court acknowledged Timothy's belief that Elena did still have the children's passports and his concern that even though the passports could not be used for entry into the United States, there was nothing to preclude Elena from using the passports to take the children out of the country. The court concluded, however, that Elena had done all that she could do to resolve the question of the children's passports by filing a declaration of lost or stolen passports with the United States Department of State. At the court's suggestion, Elena and Timothy agreed to the reinstatement of the June 13, 2011 custody and visitation order, with modifications agreed to by both and stated on the record. The court stated that the minute order would be the court's formal order, but agreed that Elena could submit a written order "that conforms to the minute order."
Elena submitted a proposed order, but the order was returned by the court because it lacked a proof of service. On June 19, 2015, the assistant presiding judge of the superior court wrote to Elena, acknowledging her complaint that the proposed order had been returned in spite of the fact that she did submit a proof of service. The assistant presiding judge suggested that Elena resubmit the proposed order and attach a copy of the proof of service. Elena subsequently submitted a document entitled "File on Demand," to which a proposed order was attached. The court did not sign the proposed order.
On June 12, 2015, Elena submitted a notice of appeal from the proceedings on December 15, 2014, April 8, 2015 and April 20, 2105. The notice of appeal was filed on September 9, 2015, after this court granted permission as described above.
On June 29, 2015, Elena submitted objections to the minute order filed on April 8, 2015. On July 8, 2015, Elena submitted an objection to the trial judge's failure to file the proposed order. The trial court apparently denied permission to file those documents.
LEGAL ANALYSIS
1.
ISSUES ONE THROUGH SIX ARE WAIVED BY ELENA'S
AGREEMENT TO THE ORDER
Elena raises six issues arguing that the trial court abused its discretion and/or failed to follow applicable law with respect to her request for modification of the restraining order and/or the custody order. All of these arguments ignore the fact that Elena and Timothy elected to settle the dispute and stipulated to the order issued by the court on April 8, 2015. A party lacks standing to appeal from a judgment or order to which he or she stipulated as part of a settlement, unless the judgment does not conform in some respect to the parties' stipulation. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666; Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 843.)
Here, the court's minute order conformed exactly to the terms the parties agreed to, i.e., that the supervised visitation order is vacated, and the custody and visitation order filed on June 13, 2011 is reinstated, with modifications stipulated to by the parties. Elena does not contend otherwise. Having agreed to it, she cannot now challenge it.
Neither the minute order of April 8, 2015, nor the parties' stipulation expressly addresses the restraining order. Nevertheless, it is implicit in their agreement that Elena waived the modifications to the restraining order that she sought. Among other things, she sought to modify the restraining order to include the children as parties from whom Timothy must stay away and to change custody. Such a modification would have nullified the custody order Elena stipulated to because Timothy obviously could not be ordered to stay 100 yards away from the children while the children were residing in his home. Accordingly, by agreeing to the modified June 13, 2011 order, Elena implicitly agreed to abandon her request that the restraining order be modified to order Timothy to stay away from the children. Moreover, by failing to seek a ruling on her request to modify the restraining order in any other respect or a stipulation to any such modification, Elena forfeited appellate review. (Ventura v. ABM Industries, Inc. (2012) 212 Cal.App.4th 258, 265.)
2.
THE STATEMENT OF DECISION
Elena's seventh contention is that the court's failure to issue a statement of decision requires reversal. However, Elena expressly waived a statement of decision. The court told her that it would take "substantial time" for the court to prepare a statement of decision and told her that if she waived that request, she could have an order that day that would allow her to commence unsupervised visitation with her sons the following weekend. Elena agreed, obviously wanting the new visitation order to take effect immediately. Accordingly, she cannot now complain that the court did not issue a statement of decision.
3.
THE PROPOSED ORDER
Finally, Elena contends that the court's failure to address her proposed order requires reversal. As noted above, the court told Elena that she could submit a proposed order "that conforms to the minute order." However, the proposed order that Elena submitted does not conform to the minute order. On the contrary, it does not contain the terms of the parties' agreement, but includes modifications to the restraining order that Elena sought but did not obtain a ruling on. Elena states that the proposed order "was filed with objections . . . as to the proceeding of [April 8, 2015]." Clearly, she did not intend it to formalize the stipulated order but rather used it as an attempt to seek reconsideration of that order. Moreover, even if the court was required to "address" the proposed order, as Elena asserts, her failure to seek a ruling precludes review. (Ventura v. ABM Industries, Inc., supra, 212 Cal.App.4th at p. 265.)
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.