Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1501-FL-588418, James L. Compton, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kari Pressler, in pro. per., for Appellant.
Law Office of Michael L. Seidman and Michael L. Seidman for Respondent.
OPINION
CORNELL, J.
Appellant Kari Pressler challenges the trial court’s order transferring legal and physical custody of children A.C. and M.C. to their father, Michael Cotton. We will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
A judgment dissolving the marriage of Kari Pressler and Michael Cotton was entered on June 2, 2004. They are the parents of two minor children, A.C. and M.C., but separated before M.C.’s birth. In January of 2007, a mediation agreement was reached providing that Pressler and Cotton would have joint legal and physical custody of A.C. and Pressler would have physical and legal custody of M.C.
On September 17, 2007, Cotton moved to modify the child custody arrangements and sought a temporary order. A hearing on the temporary order was set for September 18, 2007, at 11:00 a.m.
Cotton submitted a declaration in support of the request to modify child custody. He stated in his declaration that the mediation agreement and the January 2007 custody order required prior court approval before the children could be relocated outside of Kern County. Cotton further stated that Pressler had relocated the children to Anaheim, Orange County, in violation of the custody order and without his consent. Pressler, her husband, and the children were living in a motel room, with the children sleeping on the floor. Cotton expressed concern for the children’s welfare because Pressler had (1) married an ex-felon, (2) lived in six locations during a one-year period, and (3) A.C. frequently was tardy to or truant from school and had been sent to six different schools in a two-year period.
Attached to Cotton’s declaration were letters from A.C.’s principal stating that A.C. had been classified as a truant because of excessive unexcused absences and, after having been classified as a truant, A.C. still continued to be tardy and absent from school with no valid excuses. School records showed that A.C. frequently was tardy, truant, or absent without excuse. A.C. had to repeat the first grade.
Also attached to Cotton’s declaration was a statement from Pressler’s mother, Tami Black, stating that Pressler’s care of the children had changed for the worse after Pressler married her current husband and that Black was concerned that her daughter was using drugs. Black stated that she had observed Pressler’s husband being verbally abusive to the girls by calling them “stupid” and belittling them. She also heard Pressler’s husband state that he was “going to be mean to the girls so [they] won’t want to live with him and [Pressler].” Because neither Pressler nor her husband was employed, Black stated that her daughter’s family lived in several different motel rooms and were homeless at one point. Black also expressed concern because she and Pressler used to have a “wonderful relationship,” with Black frequently seeing the children. Currently, Pressler had not returned Black’s calls for three months and would not let Black see the children.
At the September 18, 2007, hearing on the request for temporary custody, which Pressler did not attend, the trial court ordered that Cotton have custody of both children pending the hearing on the motion. The parties were ordered to attend mediation services and a hearing was scheduled for October 23, 2007.
The October hearing was rescheduled for November 21, 2007. At the November 21 hearing, Pressler and Cotton both appeared. A mediation appointment was set for November 29, with a further hearing on that date. On November 29 the trial court appointed counsel for the children and ordered Pressler and her husband to submit to a drug test. If Pressler tested negative for drugs, she was to be allowed reasonable visitation with the children. The hearing was continued to December 19, 2007, to allow counsel for the children to offer a recommendation.
The December 19, 2007, hearing was continued to January 30, 2008, in part because Pressler had failed to contact the children’s counsel, as ordered by the court. The January 30, 2008, hearing, which Pressler did not attend, was continued to April 2, 2008. Pending the April hearing, Pressler was to have visitation with the children on alternate weekends, supervised by Black or a mutually agreed-upon third party. Pressler’s husband was ordered not to be present during any exchange or visitation.
On April 2, 2008, Cotton’s attorney gave notice that he wanted Pressler and her husband to submit to a random drug test, as previously ordered by the trial court in November 2007. Pressler and her husband refused to submit to the drug test. The April 2, 2008, hearing was continued to May 19, 2008.
On April 3, 2008, Pressler filed a responsive declaration. She claimed that she and her husband were both employed and living in temporary housing until they could find a home that “met our approval.” Pressler stated that the differences between Cotton and her were the result of parenting styles -- she limited television and she did not allow video games or eating out, while Cotton permitted all of these.
Pressler further stated (1) she and her family had lived in three locations in one year, not six; (2) A.C. had attended three schools, not six, and frequent absences were due to A.C.’s illnesses; (3) Cotton agreed verbally to allowing her to relocate the children to Anaheim; and (4) her period of unemployment was because she chose not to work while pregnant with her third child. Pressler denied any involvement whatsoever with illegal substances.
Both Cotton and Pressler acknowledged that from the time of M.C.’s birth until the temporary change of custody on September 18, 2007, Cotton had little contact with M.C.
The children’s counsel, Terry Dennis, stated in a letter dated April 29, 2008, that the children needed “a stable home, adequate food, a safe and loving environment, and contact with both parents.” Dennis reported that the children remembered “fighting, arguments, and yelling” in the Pressler home and being afraid. A.C. recalled one incident where Pressler’s husband threw M.C.’s plate of food at the wall because M.C. did not want to eat it, while Pressler did nothing to calm the situation. Dennis stated that she found Pressler’s husband to be “explosive, irrational and verbally abusive” and that the children and Pressler had suffered because of her husband’s “severe anger management problem.” Dennis opined that this problem, coupled with the Presslers’ refusal to drug test, could cause a change in custody. Dennis also noted that Pressler had failed to exercise visitation rights with the children.
On May 13, 2008, Pressler filed another responsive declaration stating that she and her husband refused to drug test because there was no court order for a test.
At the May 19, 2008, hearing, Pressler did not attend. Cotton appeared through counsel. Counsel for the children appeared. The trial court ordered that Pressler submit to random drug tests on four hours’ notice by Cotton. If she refused to test, she would be deemed to have a “dirty drug test.” The trial court awarded sole legal and physical custody to Cotton. Visitation rights were as previously specified.
On May 23, 2008, Pressler filed another declaration responding to statements and opinions of the children’s counsel. Pressler acknowledged that she had failed to visit with A.C. and M.C. as provided for by the trial court because she refused to be around Black, her mother. Pressler also claimed the children’s counsel was not neutral. Pressler apparently filed a complaint against Dennis with the State Bar of California.
Pressler filed a notice of appeal of the May 19, 2008, order changing custody and elected to proceed without a transcript of any court hearings.
DISCUSSION
Pressler contends the trial court erred in (1) issuing the temporary child custody order ex parte, (2) assigning more than one judge to the matter, (3) failing to follow the change in circumstance rule, and (4) failing to provide a fair hearing.
I. Issuance of Temporary Order
Pressler contends the trial court erred in issuing the ex parte order because there was insufficient evidence to support a showing that a change in custody was necessary to prevent immediate risk or harm to the children, as required by Family Code section 3064.
All further statutory references are to the Family Code unless otherwise specified.
We first note that the docket indicates a hearing was held on September 18, 2007, prior to issuance of the temporary order. Pressler received notice of the hearing, but did not appear. She claims it was because she was driving a car with an expired registration, was pulled over, and her car was impounded. The order, therefore, was not ex parte.
Pressler’s contention that the evidence was insufficient to support the order changing custody fails because she opted to proceed on appeal without a reporter’s transcript. Therefore, there is no record of what evidence was presented and considered or what transpired during the September 18, 2007, hearing.
When the party challenging a decision has failed to provide a transcript, and therefore failed to provide an adequate record to evaluate the contention, we reject the contention. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 (Aguilar).) In Aguilar, the defendant challenged the trial court’s issuance of an injunction prior to a full trial on the merits. The Supreme Court rejected the defendant’s contention that the evidence was insufficient to warrant the issuance of the injunction because the defendant had failed to provide a reporter’s transcript of the hearing at which the injunction was granted. (Ibid.)
Furthermore, regardless of whether the temporary order was issued ex parte or after a hearing, it is not a final order and therefore is not appealable. (Code Civ. Proc., § 904.1; Banning v. Newdow (2004) 119 Cal.App.4th 438, 456.) If Pressler believed the facts were not sufficient to warrant the issuance of the temporary order, she had the opportunity to seek relief immediately by way of a writ. Moreover, Pressler had the ability to litigate the custody issue fully when the trial court held a hearing. (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 657.)
II. Judicial Officers
Pressler contends the trial court abused its discretion because different judges presided over proceedings, in violation of section 2330.3. Section 2330.3 provides that to the greatest extent possible, all matters in a dissolution proceeding shall be assigned to the same department “in order that all decisions in a case through final judgment shall be made by the same judicial officer.” Assuming for the sake of argument that this section applied after the issuance of a final judgment dissolving the marriage, Pressler has forfeited any objection.
From September 18, 2007, the date of the issuance of the temporary order, to May 19, 2008, when the trial court awarded sole legal and physical custody to Cotton, more than one judicial officer presided over proceedings. There is no indication in the docket that Pressler at any time objected to different judicial officers hearing matters in the case. To the contrary, she apparently affirmatively stipulated to different judicial officers on at least three occasions when she stipulated to allowing a commissioner to serve as judge pro tempore and preside over the proceedings.
As Pressler elected to proceed without a reporter’s transcript, we have no evidence that she ever objected to the use of different judicial officers at any of the hearings. Likewise, the docket contains no indication that she ever objected to different judicial officers.
A party who fails to raise an issue in the trial court has forfeited the issue for purposes of appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.) Therefore, to the extent Pressler could have asserted section 2330.3 and requested that a single judicial officer hear all matters, she has forfeited that objection.
III. Applicability of Change of Circumstance Rule
Pressler contends the trial court did not apply the change of circumstance rule in awarding sole legal and physical custody to Cotton. Her contention fails because the change of circumstance rule was inapplicable.
Trial courts retain jurisdiction to modify child custody whenever it is “necessary or proper” in the child’s best interests. (§ 3022; see also In re Marriage of Kreiss (2004) 122 Cal.App.4th 1082, 1085 (Kreiss).) Once there is a final judicial determination of custody, any modification of custody requires a showing of a significant change of circumstances. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088 (LaMusga).)
Stipulated custody orders generally are not intended by the parties as a final judicial determination of custody. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 258 (Montenegro).) They are treated as a final judicial determination of custody only if there is a clear affirmative indication in the stipulated order that this is the intent of the parties. (Ibid.) Any ambiguity on this issue is resolved against finality. (Id. at p. 259.)
The January 2007 mediation agreement that addressed custody cannot be deemed to be a final judicial determination of custody. The agreement was stipulated to by the parties and, because we do not have the agreement or subsequent order in our record on appeal, there is no record evidence that the parties intended this as a final judicial determination that would be subject to the change of circumstance rule. (Montenegro, supra, 26 Cal.4th at pp. 258-259.) Therefore, the trial court was to apply a standard of best interests of the children in determining custody at the show cause hearing. (Kreiss, supra, 122 Cal.App.4th at p. 1085.)
IV. Lack of a Fair Hearing
Pressler also argues the trial court did not provide her a fair hearing. She claims that Cotton did not produce any evidence to support his accusations and the trial court did not explain its reasoning in modifying custody.
We again note that no reporter’s transcript was included in the record. When the party challenging a decision has failed to provide a transcript, and therefore failed to provide an adequate record to evaluate his or her contention, we reject the contention. (Aguilar, supra, 21 Cal.4th at p. 132.)
In reviewing permanent custody orders, we employ the abuse of discretion standard of review. (LaMusga, supra, 32 Cal.4th at pp. 1087-1088.) Trial courts have broad powers to fashion custody and visitation plans in the best interests of the child, and the weight to be accorded to the applicable factors is left to the trial court’s sound discretion. (Ibid.)
The decision of the trial court is presumed to be correct on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Parties wishing to avoid inferences in favor of the judgment or order must obtain a statement of decision. (Id. at pp. 1133-1134.) The trial court is not required to issue a written explanation of its decision unless a party requests a statement of decision. (Code Civ. Proc., § 632.) Pressler failed to request a statement of decision. Thus, this court implies all findings necessary to support the judgment. (Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal.App.4th 1128, 1134, 1135.)
Here, Pressler had moved the children to Orange County without first obtaining approval of the trial court and in apparent violation of a court order. She did not always keep Cotton apprised of the current whereabouts of the children in a timely manner. While in Pressler’s custody, A.C. had missed numerous days of school and had been declared a truant. When asked to drug test, Pressler refused. When afforded the opportunity to visit with the children, Pressler failed to visit. The children’s counsel recommended that Cotton be granted custody of the children, in part because Pressler’s husband was “explosive, irrational and verbally abusive” and the girls “remember feeling afraid” in the Pressler home. Pressler frequently moved, necessitating that A.C. change schools.
Cotton, on the other hand, maintained a stable home environment. A.C. was doing well in school while under his care. Both girls were adjusting to their new home with Cotton. In addition, Cotton allowed the children’s grandmother, Black, visitation with and access to her grandchildren.
Assuming all inferences in favor of the order, we conclude the trial court did not abuse its discretion in determining that the best interests of the children required that Cotton be granted sole legal and physical custody, with visitation rights to Pressler. (Kreiss, supra, 122 Cal.App.4th at p. 1085.)
DISPOSITION
The order is affirmed. Costs are awarded to Michael Cotton.
WE CONCUR: ARDAIZ, P.J., VARTABEDIAN, J.