Opinion
A131586
01-23-2012
In re the Marriage of JANE AGNES HETRICK and WILLIAM THOMAS CLUSIN. JANE AGNES HETRICK, Respondent, v. WILLIAM THOMAS CLUSIN, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. FAM095601)
William Thomas Clusin, M.D., appeals from the "Findings and Order Regarding Contempt" made by the San Mateo Superior Court on February 1, 2011. Although Clusin launches a barrage of procedural and substantive objections that go back to a 2007 paternity judgment in San Diego, the sole issue before us is whether substantial evidence supports the four sustained instances of contempt. We conclude that three of the four counts of contempt are in proper form and supported by substantial evidence, but one is not. Accordingly, we affirm in part and reverse in part.
BACKGROUND
Some preliminary comments must be addressed to the nature and scope of this appeal.
Although Clusin was represented by counsel at all stages leading up to and including the contempt hearing, he has chosen to conduct his appeal in propria persona. That is his right, but it comes with corresponding responsibilities: "A lay person . . . who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse." (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) He is " ' "restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts." ' " (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.)
Among those rules is rule 8.204 of the California Rules of Court, which governs the form and contents of briefs. That rule requires that "Each brief must . . . [p]rovide a summary of the significant facts limited to matters in the record" and "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(2)(C), (a)(1)(C), italics added.) Clusin—and to a far lesser extent, his former spouse Jane Hetrick, too— have included in their briefs extensive discussion of matters that are not only extraneous to this appeal, but also are not supported by the requisite reference to the record establishing that the matter was raised before the trial court. " 'It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court's judgment, an appellate court will consider only matter which were part of the record at the time the judgment was entered. [Citation.] This rule preserves an orderly system of appellate procedure by preventing litigants from circumventing the normal sequence of litigation.' " (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2, quoting Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) "[A]n appellate court is required to ignore matters mentioned in a brief which are not presented by the record on appeal [citation]; and irrelevant matters in a brief have no persuasive weight in determining an appeal." (Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203, 206-207; see Cal. Rules of Court, rule 8.204(e)(2)(C).)
Having examined the record, we know there is a good deal of material that is not truly germane to the limited issue we are required to resolve on this appeal. The following narrative may appear unduly truncated, missing many of the details that the parties may deem significant, but it has been tailored to the legal requirements for disposition of this proceeding.
In 2005, Clusin was 56, and Hetrick was 52. United by the desire to become parents, they contracted to do so by surrogacy. A daughter, Audrey, was born to them in May 2007, in Fresno County. This was two months after they married on March 31, 2007, and three months before they separated on August 13, 2007.
Dr. Clusin, a physician at Stanford University, has three adult children from a prior marriage. Hetrick has taught in the San Mateo Community College District for more than 20 years.
In February of 2007, a month before they married and three months before Audrey's birth, Clusin and Hetrick filed a "Petition To Establish Parental Relationship" in San Diego Superior Court against the surrogate parents. Hetrick and Clusin filed a "Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act" (Fam. Code, §§ 3400-3465 (UCCJEA)), concerning the child who was "not yet born." The surrogates, Hetrick, and Clusin, each "specifically stipulate[d] to the jurisdiction of the San Diego County Superior Court," and further stipulated to entry of a sealed judgment that Clusin and Hetrick would be the child's legal parents and have sole legal custody. A judgment in accordance with the Uniform Parentage Act (Fam. Code, §§ 7600-7730) was entered on February 27, 2007. The judgment, which is on Judicial Council form FL-250, recites that "Child custody and visitation are as specified in . . . the . . . Attached Judgment," but no such attachment appears in the appellant's appendix submitted by Clusin for this appeal. There is a "Judgment of Paternity" submitted by Hetrick and Clusin that is executed by them, the surrogate parents, and a judge of the San Diego Superior Court, which might be the attachment, but it makes no reference to either custody or visitation.
The attorney who prepared the "Gestational Surrogacy Agreement," and who was acting for Hetrick and Clusin, advised the court that all four principals requested the court to order "the judgment in this matter filed under seal along with the balance of the Court Record, and to have their names stricken from the register of actions and the automated Case Management System of the Court and Public Index." It cannot be ascertained from the limited record before us whether this request was granted, and there is no mention of any secrecy measures ordered in the actual judgment.
The separation does not appear to have been amicable. A week after they separated, Hetrick applied to the San Mateo Superior Court for a restraining order, a "stay-away" order, a "move-out" order, and a "child custody and visitation" order. A hearing on the application was set for September 12, 2007. The reporter's transcript of September 12 shows that Clusin was present, and represented by counsel. Counsel for Hetrick advised the court that "We worked out a resolution, Your Honor, and I will recite it on the record."
"First of all, there will not be a domestic violence CLETS restraining order, but there will be a restraining order of a no contact and no coming around the petitioner [Hetrick], the Pacific Athletic Club, her home, nor her work with the exception of some necessary child visitations that we will be setting up at the Brittan Heights Clubhouse . . . .[¶] . . . The specific times themselves are going to be worked out through the parties communicating by email and email only . . . . It will remain flexible. [¶] This will be temporary, Your Honor, pending the parties going to Family Court Services for mediation."
CLETS is an acronym for the California Law Enforcement Telecommunications System, which is maintained by the Department of Justice, and which collects criminal history and domestic violence information. (Fam. Code, § 6380, subd. (a); Gov. Code, § 15151 et seq.; People v. Martinez (2000) 22 Cal.4th 106, 113, 126-127) The system is used exclusively for official business of government agencies, primarily law enforcement agencies. (Gov. Code, §§ 15151, 15153, 15163.) Hetrick's application on Judicial Counsel form DV-110 was for a CLETS order.
Hetrick's counsel further advised the court that "we will be filing a petition for dissolution of marriage." In the meantime, "Dr. Clusin has been paying temporary child support at the rate of $900 per month," as well as health insurance and "child care expenses" of approximately $280 per month, and "he will continue to do that without prejudice to that matter being addressed through . . . the family court." "In addition, Your Honor, the issues of attorney fees, spousal support, child support, child care expenses, and [the] like . . . will all be reserved to the family court once the petition has been filed and an appropriate motion has been filed with the court."
The court then inquired of Clusin's counsel whether the recited terms reflected "your understanding of the agreement?" By raising only two details regarding visitation and child care, Clusin's counsel implicitly answered the court's query in the affirmative.
The court stated "So it sounds like we reached an agreement." Clusin's counsel replied, "There will be a dismissal of the petition."
The parties were then sworn and examined by their respective counsel as follows:
"MR. SCHECTER: . . . Ms. [Hetrick], did you hear the recitation as I made and Mr. Packard made on the record?
"THE PETITIONER: Yes.
"MR. SCHECTER: And did you understand what we presented to the Court?
"THE PETITIONER: Yes.
"MR. SCHECTER: And you're in full agreement with the recitation?
"THE PETITIONER: Yes, I am.
"MR. SCHECTER: And you realize that there won't be a domestic violence restraining order, but there will be a regular restraining order?
"THE PETITIONER: Yes.
"MR. SCHECTER: Okay.
"MR. PACKARD: Dr. Clusin, did you hear the stipulation that Mr. Schector read and I commented on?
"THE RESPONDENT: Yes, I did.
"MR. PACKARD: Do you have any questions about the stipulation?
"THE RESPONDENT: No, I don't.
"MR. PACKARD: Do you feel you understand it and agree with the terms that were read into the record?
"THE RESPONDENT: Yes, I do.
"MR. PACKARD: And you understand the petition for domestic violence restraining orders will be dismissed; that there will be a civil restraining order in effect? "THE RESPONDENT: I understand.
Nevertheless, throughout his brief Clusin insists on characterizing the subsequent restraining order as improper because it was not issued in response to established or demonstrated instances of violence or threatened violence by him. Such characterization cannot be accepted. To begin with, a restraining order may be issued without proof of violations of the Penal Code (see Fam. Code, § 6320, subd. (a) ["The court may issue an . . . order enjoining a party from . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of . . . the other party"].) Even more importantly, Clusin does not seem to realize that he—not his attorney—personally stipulated to the dismissal of the restraining order application filed by Hetrick, and to its replacement with a form of restraining order that was not based on—or dependent on—any violent behavior by him. It was because the substitution order entered with Clusin's express consent did not have a basis in violence that it was characterized as not a CLETS order. (See fn. 3 and accompanying text, ante.)
Concerning the quality of Clusin's trial representation, at several points in his briefs Clusin goes right to the edge of attacking the competence of his chosen attorneys. He certainly believes that his attorney(s) took steps or committed omissions that he now sees as illadvised or disadvantageous. That may be true, but only with the benefit of hindsight. We, however, are mindful that "in both civil and criminal matters, a party's attorney has general authority to control the procedural aspects of the litigation and . . . to bind the client in these matters. [Citations.] In the civil context, the attorney has authority to enter into stipulations binding on the client in all matters of procedure, though he or she may not stipulate in a manner to ' "impair the client's substantial rights or the cause of action itself." ' [Citation.] . . . [¶] . . . 'By choosing professional representation, the accused surrenders all but a handful of "fundamental" personal rights to counsel's complete control of defense strategies and tactics.' [Citations.]' " (In re Horton (1991) 54 Cal.3d 82, 9495.) "The attorney's apparent authority covers all the ordinary procedural steps in the prosecution of a legal proceeding, such as pleadings, remedies, trial, etc., and the attorney's actions in these matters will bind the client." (1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 244, p. 317.) Having examined the record, we have found no instances where either of Clusin's attorneys exceeded the bounds of professional propriety.
"MR. PACKARD: You agree to abide by the stipulation?
"THE RESPONDENT: Yes, I do.
The court then stated that "the stipulation as recited by counsel and agreed to by the parties will become the order of the court forthwith."
At the court's direction, Hetrick's counsel prepared an order, which Clusin's counsel approved as to form, but which was not filed until December 4, 2007. The operative portion of the order was paragraph 3, which read: "Respondent [Clusin] is enjoined and restrained, and is herein ordered, to stay at least 100 yards away from petitioner [Hetrick], petitioner's residence at **** La Mesa Drive, San Carlos, California, petitioner's vehicle, petitioner's place of employment, and the Pacific Athletic Club when either petitioner and/or the minor child are in attendance as petitioner utilizes the Pacific Athletic Club's childcare facility for the parties' daughter, Audrey. The only exception to this stay-away and restraining order is in connection with the scheduled visitation at the Brittan Heights Clubhouse and only as necessary for said visitation sessions."
In October 2007, Hetrick filed a petition for dissolution of the marriage in the San Mateo Superior Court. On February 7, 2008, that court was set to hear Hetrick's "Motion Re: Custody, Visitation, Child Support, Attorney Fees and Costs" that would address many of the issues mentioned at the September 12, 2007 hearing. Both Hetrick and Clusin were present and represented by counsel (although Clusin had changed his attorney).
Many issues were addressed at the hearing, but only one is sufficiently significant to deserve mention here. Once the issue of custody was broached, Clusin's counsel stated: "I'm sure the court . . . has become aware of the underlying jurisdictional problem in this case in that Mrs. Clusin has no legal relationship . . . or biological relationship to the child. The judgment from San Diego is void based on the fact that the court had no jurisdiction whatsoever over these parties or this child. [¶] In the absence of any true legal relationship, I don't think this court can or should order an award of custody to essentially a nonparent."
After the court ascertained from both counsel that the San Diego judgment had not been set aside, the following occurred:
"THE COURT: It's a stipulated judgment, is it not? The parties cannot stipulate to confer jurisdiction to a court that would not otherwise have it. . . . I am well aware that if a court lacks jurisdiction, the parties cannot confer it upon a court. [¶] . . . [¶] Ms. Ward [Clusin's counsel], so what you're saying is there's no connection whatsoever to San Diego?
"MS. WARD: There never was, Your Honor. They hired a surrogate agency that had an attorney working for them that was based in San Diego. And attached to the declaration under the UCCJEA are the petition for parental relationship and all the subsequent pleadings that are predicated upon.
"THE COURT: Is the contract negotiated and signed in San Diego?
"MS. WARD: No, Your Honor. It just says the child is found in San Diego. That's what the petition says, and the child has never been to San Diego. [The] [p]arties were not in San Diego as part of this process. The child was born in . . . Fresno.
"THE COURT: Mr. Schecter, your response on the jurisdiction issue?
"MR. SCHECTER: First of all, Your Honor, every Superior Court in California would have jurisdiction. It's not a jurisdiction issue. It's a venue issue. It's whether or not somebody picked the proper place of venue. And if someone wants to object as improper place of venue, they would do that in a proceeding and move it to a different Superior Court. That didn't happen here. All of the participants that were involved in this process and this surrogacy all stipulated and agreed to the jurisdiction in the venue of San Diego County. . . . Dr. Clusin's relationship to the child is only based as well on this court order. Both he and Mrs. Clusin, their relationship as mother and father to this child, is based on the judgment of the court out of San Diego County. . . .
"It seems to be ridiculous that, you know, months after this child has been born and this process occurred, that there would be an objection now voiced. Not even objection to lack of venue, but objection to lack of jurisdiction. There's no authority that's been provided to this court or myself that says the court didn't have jurisdiction. It had jurisdiction. What it might not have had—it might not have been adequate venue. . . .
"THE COURT: Let me make a ruling. Anything further, Ms. Ward, on [the] jurisdiction issue only?
"MS. WARD: Only to say that I think Mr. Schecter . . . made a distinction between jurisdiction and venue that is meaningless. . . . The petition itself and the Uniform Parentage Act define jurisdiction. And the entire case was predicated on a child's presence at some point in San Diego County. And that did not happen.
"THE COURT: Well, the difficulty I have in this case is that I have a judgment that was prepared by an attorney, stipulated and signed off by all parties, and this is not your everyday parental action. And I think it specifically noted that this was a surrogacy case. So it's different in the way that it came to the court and the way that the child was conceived, so to speak.
"My difficulty is if this judgment is void, it's void as to both parents. And then technically I don't have the ability to make custody orders for this child at all. And I don't think that is really what is in the child's best interest at this point in time for me to just completely throw in the towel and not make any order.
"What I have now is a valid judgment that has not been set aside. And I think there is something to be said for the fact that the parties did stipulate to that, and . . . I'm not prepared to find that it's void.
" . . . [W]e can call it urgency jurisdiction. I don't think it is what the Legislature intended for them to throw out the whole thing and not be able to make any custody orders for this child. . . .
"At this point in time I find that at least for purposes of the hearing today, based on the parenting order [sic] that was entered, Ms. Clusin and Dr. Clusin are at this point in time parents of this child and [I] do have the ability to make custody orders."
The court went on to establish a visitation schedule. However, the specifics of the schedule cannot be summarized here because the court's remarks at the hearing largely incorporate by reference ("I'm going to adopt the Family Court Services recommendations") documents that not included in the record on appeal.
The written order generated by the hearing was filed on March 18, 2008. A judgment dissolving the marriage was filed in January 2009.
In June 2010, Hetrick filed an affidavit in support of her application for an order directing Clusin to show cause why he should not be found in contempt for violating the December 2007 stipulated stay-away order. Hetrick alleged that Clusin "refuses to abide by the restraining order. He repeatedly violates the restraining order by being physically present on my premises; he violates the spirit of the restraining order by parking his car near my home and watching my comings and goings, checking for my car, or attempting to know of our daughter's whereabouts while in my custody, and by going as far as harassing our daughter's daycare provider." Hetrick provided seven instances when, she claimed, Clusin violated the order.
Hetrick asked that the restraining order be expanded, so that the stay-away distance was increased from 100 yards to 300 yards, and Clusin be prohibited from "all forms of harassment." In addition, because law enforcement authorities were treating the restraining order as effective only until December 3, 2010, Hetrick asked the court "to modify the wording to ensure that it is clear to policing authorities and . . . Clusin that the Order does not expire in . . . December 2010 but is, in fact, permanent."
Hetrick's contempt application was the subject of an extensive hearing held on December 8, 2010. Clusin was present, and represented by the same attorney who appeared for him at the February 7, 2008 hearing. Seventy of the 88 pages in the reporter's transcript record the testimony of Hetrick, who was the sole witness.
At the conclusion of the hearing, the court sustained four of the 13 claimed instances of contempt and dismissed the remaining nine. The relevant portions of the court's oral decision are as follows:
"The Court will find there was a valid court order, that would be the . . . court order [i.e., the "stay-away" order of December 4, 2007] . . . . That Dr. Clusin did have knowledge of this order."
"What the Court is going to do is sentence Dr. Clusin to five days in the county jail for each count. So that's a total of 20 days in the county jail. Execution of that sentence will be suspended, so that there will be no necessity of doing that.
"The Court is going to set certain purging conditions in lieu of that sentence. The first purging condition will be that the restraining order . . . that was filed December 4, 2007, will be complied with.
"The Court is going to add to that restraining order that Dr. Clusin is not to be within 300 yards of [Hetrick], her residence, her vehicle, or her place of employment or the Pacific Athletic Club when she or the [child is] present.
"The Court is going to modify the . . . restraining order to provide further that there should be no contact whatsoever until further order of the Court between Dr. Clusin and [Hetrick] except as to scheduled visitations and emergencies regarding the child. Contact should be by email only unless it is an emergency in which case other contact would be appropriate.
"All of the other restraining orders contained in the previous order will remain in effect as a purging condition.
"The Court will reserve jurisdiction to modify the purging conditions following our resolution of the full custody and visitation hearing to make sure that none of this will conflict with whatever we end up doing. So the purging conditions will be modifiable.
"The purging conditions will be for a period of 18 months unless sooner terminated by the Court. . . ."
At this point Hetrick's attorney asked the court "would you just make clear that the existing order is indefinite? [That] [i]t doesn't terminate this December 10th." The court declined to do so, but did effectively make the restraining order effective for 18 months because it was "part of [the] purging condition[s]."
The "Findings and Order Regarding Contempt" from which Clusin has appealed was filed in the San Mateo Superior Court on February 1, 2011. In addition to the matters addressed at the hearing, the court spelled out the particulars of the four instances of contempt it found true:
When Hetrick's attorney prepared an order for the court's signature, he included the following, which was deleted by the court: "The Court further acknowledges that the existing Restraining Order filed Dec. 4, 2007, has therein no termination date and hence, remains in full force and effect indefinitely."
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"Citee, William Thomas Clusin, M.D., is guilty of contempt of Court for violating Count 1on Feb. 23, 2010, driving with Ten (10) feet of the person of [Hetrick] and questioning [Hetrick] as follows: 'Why aren't you at work?'
"Citee, William Thomas Clusin, M.D., is guilty of contempt of Court for violating Count 2 on Jan. 1, 2010, with Dr. Clusin appearing at [Hetrick]'s home on La Mesa Drive, having previously placed Christmas presents at [Hetrick]'s front door on or about Dec. 25, 2009.
"Citee, William Thomas Clusin, M.D., is guilty of contempt of Court for violating Count 5 when on Aug. 3, 2008, citee came to the residence of [Hetrick] and was found hiding in the bushes adjacent to [Hetrick]'s residence.
"Citee, William Thomas Clusin, M.D., is guilty of contempt of Court for violating Count 12 when on Jul. 3, 2009, at 6:52 A.M. citee parked his car on La Mesa Drive near the fortnight lilies in close proximity to [Hetrick]'s residence, while seeking to observe [Hetrick] and the parties' daughter, Audrey."
REVIEW
What We Do Not Decide
Clusin structures his appeal around specific types of "relief sought." If possible, they will be addressed in the order presented by Clusin. If that is not feasible, his arguments will be considered in chronological order.
Although Clusin has reconsidered his earlier position and now disclaims any intent to challenge the San Diego judgment of paternity, he does want us to "declare void the contested judgment of divorce in this case." The time to challenge the dissolution judgment was by commencing an appeal with a notice of appeal filed within 180 days after the judgment was filed on January 7, 2009. (Cal. Rules of Court, rules 8.100(a)(1), 8.104(a).) Clusin did not do so, which puts the judgment beyond our power to review. "The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) "If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal." (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; see Code Civ. Proc., § 906.)
Clusin next "contends that the Superior Court abused its discretion in issuing a temporary restraining order against the Appellant in 2007 because . . . there was no basis for a protective order against Appellant." An appeal could have been taken from that order (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1257-1258 ["The restraining order is separately appealable as an order granting an injunction (see Code Civ. Proc., § 904.1, subd. (a)(6))"]), but Clusin did not do so within the allotted time. The consequence is that the order filed December 4, 2007, like the dissolution judgment, cannot be challenged on this appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th 51, 56; In re Marriage of Lloyd, supra, 55 Cal.App.4th 216, 219.)
Clusin first states that "relief is sought to lift personal conduct orders which originally derived from the 2007 application for a domestic violence temporary restraining order." It has already been shown that we cannot review the original restraining order filed on December 4, 2007. Clusin's use of the language "originally derived" may be interpreted to mean he also aims to get review of the order of March 18, 2008. The notice of appeal Clusin filed is incapable of reaching that order. However, the notice will bring before us the implicit modification made in the contempt order.
The next several types of relief Clusin seeks overlap. Clusin advises that "additional relief sought is to enforce the 2007 order of the Superior Court of San Diego County that the intended parents (William Clusin and Jane Hetrick) have joint physical and legal custody of Audrey Ann Clusin . . . and that no party to the gestational surrogacy agreement that produced Audrey is to have visitation. That is to say, the Intended Parents are both to have full physical and legal custody rights, and not visitation . . . . Appellant contends that it was an error for the San Mateo Court to have made custody orders that differed from those of the San Diego Court." In fact, Clusin goes so far as to insist that "the Superior Court in San Mateo has no right to make custody orders" that differed from those supposedly already made by the San Diego Superior Court, but only the positive "duty to enforce the custody orders in the San Diego judgment." Next, Clusin asserts it that "further relief sought is for both parents to have equal time with their daughter since there is no basis for any other arrangement, and this would be consistent with [the argument just made]." In addition, Clusin states that "further relief is to dismiss . . . the mother's motion for sole custody, since all parties waived the right to move for a new trial in the [San Diego] matter."
It has already been shown that the record cannot establish whether the February 2007 judgment entered by the San Diego Superior Court actually and explicitly addressed the issue of the unborn Audrey's custody. (See fn. 2, ante.) Even if it did, a custody decision made at that time would not be forever set in stone. Custody is too important a matter for parental agreement to be permanently dispositive. Indeed, custody is an issue that may always be revisited and modified, as the best interest of the child may require. (Fam. Code, §§ 3020, subd. (a) ["it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining . . . the physical and legal custody"], 3022 ["The court may . . . at any time . . . make an order for the custody of a child during minority"], 3087 ["An order for joint custody may be modified or terminated . . . if it is shown that the best interests of the child requires modification or termination of the order"], 3120 [custody order "may be modified or terminated at any time . . . as . . . the best interest of the children may require"]; Titcomb v. Superior Court (1934) 220 Cal. 34, 39 ["custody decrees, whether entered in divorce proceedings or independently thereof, . . . are not final or conclusive, but subject to modification"].) As our Supreme Court has held: "A trial court . . . is not restricted to any particular formula . . . nor is it required to make a custody determination that preserves the predissolution status quo." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 36; see also In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 794 [determinative issue is best interest of children, "not fairness" to either parent].)
Because there is no timely appeal from either the January 2009 judgment of dissolution, or the December 2007 restraining order, or the custody and visitation order filed in March 2008, no argument or attack on their validity will be entertained at this time.
Another instance of 'relief sought" is described by Clusin is "for the Court of Appeal to void certain orders that were made after conferences (status conferences) where the judge met with the attorneys in his chamber and the parties could not hear what was said or confer with their attorneys regarding matters of fact or matters of law in this very complicated case." The only "status conference" order in the record Clusin submitted is one dated "8-24-10," which recites that "At the Conclusion of a judicially supervised Status Conference held on this date [and concerning which the boxes for Hetrick's and Clusin's counsel's presence are checked but those for Hetrick and Clusin are not] it is ordered as follows: [^] 8-31-10 OSC Re Contempt is advanced to today. Respondent [Clusin] waived formal arraignment and advice of rights thru his attorney and entered a plea of not guilty. Trial is set for 12-8-10 at 9 am for 3 hours." The only other similar order in the record is an "Order After Mandatory Settlement Conference" filed on June 3, 2009. The order is largely devoted to the subject of "a full and comprehensive psychiatric evaluation/assessment" of Clusin.
Even assuming that such orders could be independently appealed (see 9 Witkin, Cal. Procedure, supra, Appeal, § 152, p. 229; Munoz v. Florentine Gardens (1991) 235 Cal.App.3d 1730 [order generated by status conference not appealable]), the actions apparently taken, or decisions made, by Clusin's counsel are well within the scope of an attorney's authority. (See fn. 4, ante.) Moreover, it is not obvious how reversing these orders would benefit Clusin in overturning the contempt order. For example, Clusin attacks one of the directives in the settlement conference order as involving "a breach of medical confidentiality," but he does not explain the particulars so that his assertion can be comprehended. Another example is that within the context of "another status conference," Clusin attacks a declaration by Hetrick that supported the affidavit that was the basis for the OSC. However, at the request of Clusin's counsel, the declaration was not considered by the court at the contempt hearing. How the use—if any—of the declaration at a status conference when that declaration is subsequently excluded from any substantive consideration prejudiced Clusin is neither apparent on its face nor explained by Clusin.
The final relief sought is "for both parents to have equal time with their daughter since there is no basis for any other arrangement." As already shown, there is such a basis—the existing custody order—an order we cannot review . If Clusin wants a change in the existing "arrangement," his remedy is to file a motion in the trial court asking the court to modify custody and/or visitation.
What We Do Decide
"The willful refusal to obey a valid court order is an act of contempt. [Citation.] The contempt may take one of two forms. Direct contempt is that committed in the immediate view and presence of the court or of the judge in chambers. Contempt that occurs outside the presence of the court is indirect contempt . . . . This case concerns indirect contempt.
"A trial court may take action to punish contempt under section 1218 of the Code of Civil Procedure. The elements of proof necessary to support punishment for contempt are: (1) a valid court order, (2) the alleged contemnor's knowledge of the order, and (3) noncompliance. [Citations] . . . [^] . . . [^] . . . [T]o review an adjudication of contempt, our inquiry is whether there was any substantial evidence before the trial court to prove the elements of the contempt." (In re Marcus (2006) 138 Cal.App.4th 1009, 1014-1015, fn. omitted; see also Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1160.)
There are also procedural requirements of the actual written order of contempt. "A valid written contempt order consists of . . . a recitation of the facts constituting the contempt; the fact the person was adjudged to be in contempt; and a statement of the punishment." (In re Ringgold (2006) 142 Cal.App.4th 1001, 1011.)
As previously shown, there is no basis for not treating the terms of the restraining order as valid. And, as shown by his statements at the September 12, 2007 hearing, Clusin certainly knew of those terms. Moreover, the docket shows that Clusin was personally served with the order to show cause and supporting documents.
Clusin begins by attacking the adequacy of the "accusatory pleading," which in the case of indirect contempt is the affidavit. (See Code Civ. Proc., § 1211; Lyon v. Superior Court (1968) 68 Cal.2d 446, 452; Koehler v. Superior Court, supra, 181 Cal.App.4th 1153, 1169.) Clusin complains he "was never furnished with an edited version of the accusatory declaration [by Hetrick]," with the consequence that he "does not know for certain what he is guilty of." What Clusin appears to mean by "edited" is a version of the Hetrick declaration that has the alleged instances/counts of contempt numbered from one to 13. Insofar as this is Clusin's contention, it is without merit.
Clusin does not contend that he or his attorney never received a copy of the "unedited" declaration because the trial court docket shows that Hetrick's declaration was personally served on Clusin on July 26, 2010, almost six months before the contempt hearing. The next month, on August 24, 2010, at the status conference, Clusin's counsel is recorded as having "waived formal arraignment and . . . entered a plea of not guilty" on Clusin's behalf. It is hardly credible that either of these actions would have been taken had counsel not been aware of Hetrick's declaration. Counsel's decision to accept the adequacy of the declaration as the accusatory pleading was within her authority. (See In re Horton, supra, 54 Cal.3d 82, 94; 1 Witkin, Cal. Procedure, supra, Attorneys, § 244, p. 317, quoted at fn. 4, ante.) It is equally apparent that the declaration was sufficiently clear to counsel in that she was able to have more than two-thirds of the counts dismissed. Moreover, the trial court had no difficulty in differentiating the 13 "counts" from the Hetrick declaration. As for Clusin not now being able to discover "what he is guilty of," he has only to read the portions of the written contempt order already quoted in this opinion.
Clusin contends that his counsel was "not given time to make a summary statement at which she could have explained that . . . Appellant was not guilty beyond reasonable doubt of willful violation of the order or of contempt." This is the first of several utterly baseless attacks on the trial court. Clusin's counsel made an opening statement and a closing argument in which she asked the court to "dismiss and discharge all counts of contempt" because "[t]hey are not appropriate, and there has not been sufficient evidence" introduced to find against Clusin. At neither of these points is there a hint in the reporter's transcript of the contempt hearing that the trial court limited Clusin's counsel in arguing for his innocence.
In the course of arguing that the first instance of contempt is invalid because Hetrick had moved before February 23, 2010, and thus could not have violated the restraining order in count one, Clusin states: "[t]he issue of an unanticipated and not willful breach of the provisions or the order was never adequately explored at the trial, because the Judge cut off the testimony.'" (Italics added.) Clusin explains: "At the time of the Feb. 23 incident, [Hetrick] was refusing to communicate with the Appellant about her circumstances, and had convinced her friend Nancy Grossman, who was also Audrey's day care provider, not to communicate with the Appellant. . . . A declaration subsequently submitted by Ms. Grossman (on file in the Superior Court) acknowledged that she was not having conversations or cooperating with the Appellant. Hence the concern that Jane [Hetrick] had moved away would have been quite plausible, until the Appellant discovered on his own . . . that this was not the case. Counsel for the Appellant explored the possibility that Jane's absence from the exchanges [of Audrey] was due to a surgical operation on her foot, but Jane testified that the surgery had occurred a month before the weekend when she was not present at the exchanges. Testimony was cut off by the Judge before the significance of Ms. Ward's [Clusin's counsel] questioning became clear. In fact, the Judge admitted that [he] had not understood the Appellant's concerns, which were being put forward through the content of Dawn Ward's cross examination of Jane. (Page 56, line 3: THE COURT: 'We will have to end this series. I don't see where we are going.')"
The transcript shows that Ms. Ward, Clusin's counsel, was cross-examining Hetrick about surgery to her foot. When Hetrick's counsel objected, and the court sought to ascertain the relevance of the questions, Ms. Ward responded: "It is related to her absence from the visits is where it is going and surrounds the issue of February 2010, whether or not there was a willful disobedience of the court order." The court overruled Hetrick's objection "so long as we won't spend very much time on it." Hetrick then testified that she was able to drive Audrey to all the exchanges, including the one on the Saturday preceding February 23. The only exchange she missed was the weekend immediately after her surgery on January 22, and Nancy Grossman drove Audrey to that exchange When Clusin's counsel asked "Did Nancy Grossman's son do any of the exchanges that weekend?," Hetrick's counsel reiterated his relevance objection. It was at that point that the court stated "We will have to end this series. I don't see where we are going."
It is clear that Clusin's counsel was not developing the issue of whether Hetrick had moved, but merely whether her physical condition impaired her ability to make the exchanges of Audrey with Clusin. In fact, the only suggestion that Hetrick had moved comes from Clusin's brief, relying on a declaration that was not even in existence at the time. If Ms. Ward had such information, we would expect her response to Hetrick's objections would have been entirely different. In short, Clusin is presently assuming a state of knowledge in his trial counsel that did not exist. Only if Ms. Ward had that knowledge, and communicated it to the court, could the court be accused of prematurely curtailing proper cross-examination. Because both these factual predicates are absent, there is no basis for criticizing the court's ruling.
This is not the sole instance of Clusin making erroneous assumptions about the judicial state of mind. He contends that "At the Feb. 2008 hearing Commissioner Jakubowski granted joint legal custody (temp.) to the parties and used the word 'visit' and not 'visitation,' to describe the Appellant's frequent trips to San Carlos. . . . . [T]his language should have been used in the original order that Commissioner Greenberg signed on December 3, 2007." In other words, the language used by one judge should have been anticipated by another judge three months before. Not only are trial courts not required to be clairvoyant, "a judgment will not reversed on appeal because of the failure of the lower court to give relief . . . which it was not asked to give, that is, in effect, for an error which the trial court did not make." (Buck v. Canty (1912) 162 Cal. 226, 238.) In other words, because no one asked Commissioner Greenberg to use the language subsequently used by Commissioner Jakubowsky, there is no way we can fault what Commissioner Greenberg did. This is particularly true because, as previously discussed, we do not have jurisdiction to review Commissioner Greenberg's order.
Clusin goes on: "Review of the transcript of the hearing of February, 2008 shows that Commissioner Jakubowski had almost no knowledge of the San Diego orders when she made her temporary custody orders and she had never seen a copy of the documents from the San Diego Court. Appellant contends that if Commissioner Jakubowski had seen these orders, it would have been appropriate for her to order Joint Legal and Physical Custody, and to omit the ruling that these orders were temporary, and to give the Appellant a less restrictive schedule of contact with his daughter . . . ." Again, if someone had brought Commissioner Jakubowsky's attention to any custody provisions of the San Diego judgment, and if we had had jurisdiction to review Commissioner Jakubowsky's action, we might need to address the merits of Clusin's contention. Lacking that jurisdiction, we stop here.
Having carefully reviewed the transcript of the contempt hearing, we conclude that the record has ample substantial evidence to sustain counts 1, 2, and 12 as found by the trial court. However, that review also establishes that the no such conclusion is possible with respect to count 5.
To reiterate, the court found in Count 5 that Clusin violated the restraining order "when on Aug. 3, 2008, [Clusin] came to the residence of [Hetrick] and was found hiding in the bushes adjacent to [Hetrick]'s residence." August 3 was the date identified in Hetrick's declaration. However, as Clusin notes in his brief, "there was no mention during the trial of an incident on August 3, 2008," and thus there is a lack of substantial evidence to support this count. On this point, we agree with Clusin.
As already mentioned, the sole witness at the contempt hearing was Hetrick. Her testimony concerning this incident was as follows:
"[MR. SCHECTER]: Do you recall, Jane, you also in your declaration discussed the situation in which you found Dr. Clusin hiding in the bushes near your home?
"A. Yes.
"Q. And that resulted in a police report dated August 11, 2008. Do you recall that?
"A. Yes.
"Q. Can you describe to the Court what occurred on that date?
"A. There's fortnight lilies on the perimeter of my property, and he was darting in between them as I had gone out to recycle. And he fled to Sequoia Hospital, and the police interviewed him. He was obviously watching us for some reason. I don't know why. I find all of this extremely disturbing.
"Q. And that occurred in early August, around August the 8th?
"A. Correct.
"Q. Of 2008?
"A. Uh-huh. . . ." (Italics added.)
Because we are examining a contempt proceeding, the normal rules of appellate review are inapplicable. As we recently noted, "there is no presumption of regularity in contempt proceedings [citations], nothing can be implied in support of an adjudication of contempt [citation], and the record must be strictly construed in favor of . . . the one found in contempt. [Citation.]" (Koehler v. Superior Court, supra, 181 Cal.App.4th 1153, 1166-1167.) " 'Specificity is an essential prerequisite of a contempt citation.' " (In re Marcus, supra, 138 Cal.App.4th 1009, 1016.) Because the only evidence establishes the bushes incident as occurring on August 8, there is no substantial evidence showing that it occurred on August 3, as found by the trial court. Count 5 must therefore be reversed. (In re Ringgold, supra, 142 Cal.App.4th 1001, 1011; In re Marcus, supra, at p. 1015.)
One other matter requires mention. In addition to asking that Clusin be found in contempt, Hetrick also essentially asked the trial court to modify the December 2007 restraining order to expand the stay-away zone from 100 yards to 300 yards, and "to modify the wording to ensure that it is clear to policing authorities and . . . Clusin that the Order does not expire in . . . December 2010 but is, in fact, permanent." We know that the court denied Hetrick's latter request (see fn. 6, ante), but the matter of the yardage is somewhat hazy.
On this matter, the San Mateo law enforcement authorities got it right. A non-CLETS order is good for up to five years, and may be renewed "for five years or permanently." (Fam. Code, § 6345, subd. (a).) "The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance." (Id. at subd. (c).) The December 2007 restraining order has no expiration date on its face, meaning that it would expire three years after it was issued on December 4, 2007, in other words, in December 2010. Put bluntly, it has already expired, unless it has been renewed subsequent to the record before us on the contempt order. However, the court may have made a de facto extension with its "purging conditions." According to its terms, Clusin has 18 months after February 1, 2011, to purge his contempt by complying with the restraining order that already may have expired. In addition, the purging conditions give Hetrick the expanded yardage she sought. Thus, while the possibly expired restraining order set the stay-away zone at 100 yards, the purging conditions set by the trial court extend it to 300 yards. And oral remarks made by the court only increase the confusion. At the contempt hearing, the court stated that it was "going to add" the 300 yard distance to the restraining order, and also "modify the . . . restraining order to provide further that there should be no contact whatsoever until further order of the Court between Dr. Clusin and [Hetrick] except as to scheduled visitations and emergencies regarding the child."
This uncertainty is in no one's interest. To judge from this record, we cannot ascertain whether the December 2007 restraining order was actually modified. More fundamentally, Hetrick may no longer have the protection of a restraining order that the police will or can enforce. Whether the purging conditions can or will be enforced in the same manner as an actual restraining order seems an open question. The differing sizes of the stay-away zone has the potential to cause an additional layer of complication. Given the very precise requirements for contempt, punishing any further violations might be problematic. When the filing of our remittitur reinvests the trial court with jurisdiction, the parties and the court may wish to consider these matters.
DISPOSITION
That portion of the order finding William Thomas Clusin guilty of Count 5 is reversed. The order is affirmed in all other respects. The parties shall bear their respective costs of appeal.
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Richman, J.
We concur: ____________
Kline, P.J.
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Lambden, J.