Opinion
2d Civil No. B194376
4-17-2008
In re Marriage of KAREN LIEBSCHER and ROLF FORDE ERIKSON. DOREEN WEBB et al., Appellants, v. KAREN LIEBSCHER ERIKSON, Respondent.
Doreen and Richard Webb, in pro. per., for Appellants. Margaret A. Thurn for Respondent Karen Erikson.
NOT TO BE PUBLISHED
Doreen Webb and Richard Webb (Webbs), paternal grandparents, intervened in the dissolution action of their son, Rolf Forde Erikson, and his former wife, Karen Liebscher Erikson, to obtain visitation with their grandchildren. They have appealed several orders. We conclude the trial court did not abuse its discretion by ordering that grandparent visitation be left to the sole discretion of Karen, the childrens mother. It did not err by denying the Webbs motion for new trial, by rejecting their motion to disqualify the trial judge, and by ordering the Webbs to pay attorney fees as sanctions. We affirm.
We refer to parties by their first names to avoid confusion.
FACTS
Karen and Rolf were married in 2003. In 2005, the court entered a judgment of dissolution of their marriage. It awarded legal custody of their two young children to Karen and Rolf, and sole physical custody to Karen.
The Webbs filed an order to show cause seeking grandparent visitation with the children. In her declaration, Doreen said that Karen was not a fit parent and had neglected the childrens medical needs. Doreen said Karen did not provide for the childrens day care, their psychological health, their safety and that Karen had ongoing mental health issues.
In her response, Karen denied Doreens accusations and said Doreen had "repeatedly badgered" her about the daily care of the children. She said the Webbs had been granted Sunday visitation with the children, but those "visitations should end immediately."
At trial, Jeanne Sterling, a psychologist, testified there was no evidence to support Doreens accusations that Karen failed to meet the childrens medical needs or abused them. There was no basis for the claim that Karen had failed to provide for the childrens child care, their psychological health, or their safety. Dr. Sterling said the relationship between Karen and Doreen was strained and involved a mutual "pattern of attack." She recommended grandparent visitation, but said Doreen should change "her accusatory behavior" towards Karen as a condition to obtain it. She noted that Doreens criticism of Karen "trigger[s] defensive responses that erode her self esteem and directly and indirectly impact the children." "It is amazing how attuned small children are to conflicts within their family."
Doreen testified that she had never accused Karen of being an unfit parent. On cross-examination, Karens counsel introduced Doreens deposition where she testified, "I think [Karen is] unfit given her present mental state . . . ." He asked Doreen if she had accused Karen of not meeting the childrens medical needs in her declaration. Doreen said, "No, no. I wouldnt say that. I would not agree with your word `accuse." After further questioning, she said, "I would certainly like to talk about how I feel the medical needs were not met, yes."
The court awarded sole legal and physical custody of the children to Karen. It ruled it is not in their best interests to have court-ordered visitation with the Webbs. It said, "The frequency and duration of the time the children spend with their paternal grandmother and her husband must be left to the sole discretion of their mother." It noted that Dr. Sterling said, "Doreens access to the children should be conditioned on proof that she can stop making denigrating . . . remarks about Karen." The court said, "On this record, that seems very unlikely." It said Doreen continued to accuse Karen of neglect, "even when confronted with unequivocal evidence to the contrary," and that at trial she "could not bring herself to retract her false statements about Karens fitness as a parent . . . ."
The trial court awarded $25,000 attorney fees to Karen as sanctions against the Webbs and denied the Webbs motion for new trial.
The Webbs filed a motion to disqualify Judge Burke, the trial judge. Judge Brown, who was assigned to hear the motion, denied it and ruled that the Webbs failed to show bias or prejudice.
DISCUSSION
I. Grandparent Visitation
The Webbs contend the trial court erred by giving Karen sole discretion to determine if they could visit the grandchildren. We disagree.
Parents have the fundamental right to make decisions concerning the care, custody and control of their children. (Troxel v. Granville (2000) 530 U.S. 57, 66.) There is a "rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child . . . objects to visitation by the grandparent." (In re Marriage of Harris (2004) 34 Cal.4th 210, 230.) Here Karen has physical custody of the children and objected to visitation by the Webbs.
The trial court determined the Webbs did not overcome the presumption. It also found that grandparent visitation was not in the best interests of the children. It noted Doreen was incapable of crediting Karen for any of her accomplishments as a single parent, and was very unlikely ever to support Karens role or speak positively of her to the children. It concluded such an environment is detrimental to the children.
"We presume the evidence supports every finding of fact unless appellant demonstrates otherwise, and we must draw all reasonable inferences from the record to support the judgment. [Citation.]" (El Escorial Owners Assoc. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1357.) We do not weigh the evidence or decide the credibility of the witnesses. "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
Here the Webbs have not shown that the trial courts findings are unsupported by the record. From Dr. Sterlings testimony, the court could reasonably infer that Doreen had falsely accused Karen of abusing the children and neglecting their medical needs. There was a vitriolic relationship between Karen and Doreen. Dr. Sterling felt Doreen should change her accusatory behavior towards Karen as a condition for obtaining grandparent visitation. Given the friction in this relationship, the trial court could find that grandparent visitation was not appropriate, unless Karen consented. The Webbs have not shown an abuse of discretion.
The Webbs claim that after the judgment Karen has prevented any visitation with the grandchildren. They suggest that her conduct is contrary to the reasonable expectations of the parties and Karens prior assurances. But this issue is not properly before us because it is not part of the record. The validity of post-judgment conduct should initially be determined by the trial court. It has discretion to decide whether a modification of its prior visitation order is appropriate or necessary.
II. Motion for New Trial
The Webbs contend the court erred by denying their motion for new trial. Karen correctly responds that the motion was untimely, not properly served and did not comply with the requirements for a valid motion.
A motion for a new trial must be timely and comply with the statutory procedure. (Smith v. Superior Court (1976) 64 Cal.App.3d 434, 436.) It may not be considered without meeting these requirements. (Ibid.) A notice of motion must be accompanied by a memorandum of points and authorities and all supporting papers. (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rules 3.1112, 3.1113.) Where the motion is based on facts not of record, it must include a declaration. (Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, 546.) Here the notice of entry of judgment was filed June 28, 2006. On July 11, 2006, the Webbs filed a document labeled, "Order for New Trial." It did not contain a declaration or a memorandum of points and authorities.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
On July 21, 2006, the Webbs filed a motion for new trial with a declaration and points and authorities, but it was untimely. It was not filed within the 15 days of the date of the notice of entry of judgment. (§ 659.) Even if we treat the July 11 order for new trial to be a notice of motion for new trial, it was defective as it was not accompanied by a memorandum and declaration. In addition, it was not properly served. The Webbs served it by fax. But "[s]ervice by facsimile [fax] transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made." (§ 1013, subd. (e).) Here there was no agreement between the parties to permit that type of service and Karen made a proper objection based on improper service. Because of these deficiencies, the motion was properly denied. (Smith v. Superior Court, supra, 64 Cal.App.3d at p. 436.)
But even on the merits, the result is the same. A trial court has broad discretion in ruling on a motion for new trial. (Plancarte v. Guardsmark, LLC (2004) 118 Cal.App.4th 640, 645.) The Webbs claimed, among other things, that they were entitled to a new trial because the court did not follow Dr. Sterlings recommendation that grandparent visitation was appropriate. But the trial court is not bound by an experts conclusion. (In re Marriage of DeRoque (1999) 74 Cal.App.4th 1090, 1096.) It may rely on the experts factual findings and reach a different conclusion based on the best interests of the children. (Ibid.; People v. Lawley (2002) 27 Cal.4th 102, 132.) Moreover, Dr. Sterling said Doreen should meet conditions prior to visitation.
The Webbs note that the trial court denied the motion without setting it for a hearing. They claim this requires reversal. (Steele v. Conway (1955) 135 Cal.App.2d 363, 370.) The court may have concluded that because the Webbs motion was untimely, it could not be considered and a hearing would be futile. (Smith v. Superior Court, supra, 64 Cal.App.3d at p. 436.) But even had the court erred procedurally, the result would not change because the Webbs have not shown grounds for reversing the judgment. There is no reasonable likelihood they could overcome the presumption that it is not in the best interests of the children to have grandparent visitation without Karens consent, given the evidence in this record. (In re Marriage of Harris, supra, 34 Cal.4th at p. 230.)
III. Motion to Disqualify Judge Burke
The Webbs contend the trial court erred by denying their motion to disqualify Judge Burke. We disagree. They claimed Judge Burke had repeatedly ruled against them at trial and had failed to disclose that he practiced law with the father of Karens trial attorney.
Judge Burke denied that he was biased. He said he ruled against the Webbs based on his view of the facts and the law. He had practiced law with the father of Karens current counsel, but that business relationship ended 25 years ago. He said he "never had any business or social relationship" with Karens current counsel. He said he had not violated a duty to disclose relevant facts to the Webbs because "[t]here was nothing to disclose . . . ." Judge Brown found there were no grounds for disqualification. The Webbs have not shown error.
A judge is properly disqualified where "a lawyer in the proceeding was associated in the private practice of law with the judge" within the past two years. (§ 170.1, subd. (a)(2)(B)(ii); Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 426.) But Judge Burke did not have any association with Karens current counsel and had never represented Karen. He "never had any business or social relationship with . . . any other member of the law firm where [Karens current attorney] is employed." His association with the father of Karens lawyer ended 25 years ago. Judge Burkes declaration shows he decided the case based solely on the evidence and the law. The Webbs did not show he was influenced by matters outside the record.
The Webbs claim Judge Burke was biased because he ruled against them on every issue. But their dissatisfaction with his decisions is not a ground for disqualification. (§ 170.2, subd. (b); Keating v. Superior Court (1955) 45 Cal.2d 440, 444.) He made negative findings about Doreen and did not believe her testimony. But "[i]t is the duty of a judge when acting as the trier of the facts to pass upon the credibility of witnesses, and if he believes that a party has testified falsely, and chooses to say so rather than remain silent, he is not disqualified from proceeding to render judgment." (Keating, supra, at p. 444.) "[A] partys unilateral perception of an appearance of bias cannot be a ground for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration dispute-resolving tribunals. `A judge should not be disqualified lightly or on frivolous allegations or mere conclusions. [Citation.]" (Andrews v. ALRB (1981) 28 Cal.3d 781, 792.)
IV. Attorney Fees
The Webbs contend the trial court erred by awarding attorney fees to Karen as a sanction against them. We disagree. A trial court has discretion to award attorney fees against a party who caused an opponent to incur unnecessary litigation costs. (Fam. Code, § 271; In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.)
Here the court awarded fees of $25,000 to Karen and found the "cost of these proceedings was unnecessarily inflated by needless inflammatory allegations and abusive trial tactics" by the Webbs. It said, "False claims of neglect and abuse were deliberately made to mislead the court for the purpose of securing an advantage in these proceedings."
Doreens application for order to show cause re visitation included several serious accusations. She claimed that Karen 1) was not a fit parent, 2) neglected the medical needs of her children, 3) did not provide child care, 4) ignored the childrens psychological health, 5) did not provide nurturing, 6) was oblivious to the childrens safety, and 7) had ongoing mental health issues. In Karens motion for attorney fees, her trial counsel declared that Karen incurred substantial litigation expenses to disprove these false allegations. He had to depose the childrens physicians and "retained Dr. Sterling to appear at trial . . . ." He said he made reasonable settlement offers which the Webbs rejected and they continued to make false allegations against Karen. The court could reasonably infer the Webbs false claims unnecessarily prolonged this litigation. There was no abuse of discretion.
We have reviewed the Webbs remaining contentions and conclude they are without merit.
The judgment and orders are affirmed. Costs on appeal are awarded to Karen Erikson.
We concur:
YEGAN, J.
PERREN, J.