Opinion
NOT TO BE PUBLISHED
Superior Court County No. SM1091005 of Santa Barbara Zel Canter, Judge.
Robert Scott MacDonald, in pro. per., for Appellant.
Law Office of John Gregory Derrick, John Gregory Derrick for Respondent.
COFFEE, J.
In this marital dissolution action, Robert Scott MacDonald (Scott) appeals from judgment on reserved issues entered on June 16, 2006. The trial court denied Scott's request for a change of custody upon relocation of the custodial parent, Louise Jean Wheeler (Louise). Scott contends that the court violated his constitutional right to due process because it did not allow sufficient time for Scott to present evidence at the initial 2004 hearing, and because a further hearing was delayed for more than a year. Scott also challenges orders imposing monetary sanctions and awarding attorney's fees to Louise. We affirm.
FACTS
Scott and Louise were married in 1998 and separated in 2002. They have one child, born in September of 1998 in Santa Ynez.
In 2002 Scott filed a petition for dissolution. While the dissolution was pending, Scott relocated to San Diego. Louise and the child remained in Santa Ynez. The parties stipulated to an order awarding primary physical custody to Louise, with visitation every other weekend to Scott. Property and support issues were reserved. In October of 2003, Scott moved from San Diego to Arroyo Grande.
Louise decided to move to Spokane, Washington. In February of 2004 she requested modification of Scott's visitation in anticipation of the move. Scott retained a new attorney H. Kathryn Lamat. He opposed the move, and requested physical custody of the child. Louise planned her move for the summer of 2004, between school years. Both parties estimated three days for trial of reserved issues, including the change of custody, property and support.
In April of 2004, the parties stipulated to the appointment of James Tahmisian, Ph.D., to perform a custody evaluation. Scott retained a third attorney, Terrence C. Lammers, to join Lamat as his trial counsel. In an April 2004 case management statement, Lammers estimated three days for trial of all reserved issues. He requested that custody be bifurcated and tried before property and support issues in early July of 2004. When it became apparent that the evaluator's report would not be ready until the end of May, the parties stipulated to an order continuing a case management conference to June 2004.
The evaluator's report was completed on June 28, 2004. The evaluator recommended that the child remain with Louise should she relocate, based upon his assessment that the child had a strong attachment to Louise, and that the child would be able to maintain his relationship with Scott over distance and time given reasonable visitation. The evaluator was highly critical of Scott.
After discussions with counsel, the court set the custody and property issues for its short cause trial calendar on July 26, 2004, with a four-hour time estimate. The record does not contain any objection to the four hour limit. Scott did not include transcripts of any 2004 proceedings in his record on appeal.
The parties refer in their briefs to transcripts from 2004 contained in the record of Scott's previous appeal. (B180778, dismissed Oct. 24, 2005.) Neither party filed a motion requesting judicial notice of the 2004 transcripts. To obtain judicial notice by a reviewing court, a party must serve and file a separate motion. (Cal. Rule of Court, rule 8.252(a)(1).)
Four days before the July 26, 2004 trial, Scott discharged attorneys Lamat and Lammers, and retained attorney Penny Clemmons. The court denied Scott's motion to continue trial. The court also denied Scott's motion to exclude the evaluator's report. At the 2004 trial, the court heard testimony of the evaluator and Scott's counsel read portions from the deposition of Louise. Scott's new attorney sought to exceed the four hour time limit with additional evidence. The court's calendar was full. It entered an order allowing Louise to move with the child before school commenced, but stated that the order would be an interim order and that it would set the matter for further hearing. "I can also order her to give up the child if she remains up there . . . . So I'll try to hear it as soon as possible." In its interim order, the court adopted the evaluator's findings, concluding that the child was bonded with the mother as the primary caregiver and should remain with her. The minute order shows that the matter was placed on the trial setting calendar for August 25, 2004.
Although the 2004 transcripts are not a part of this record, we are able to reconstruct this portion of the July 26, 2004, proceedings from a November 29, 2005, transcript in which the trial court read aloud a portion of a July 26, 2004 transcript.
On August 24, Scott's counsel appeared and estimated two to three days for further trial of the custody issue. Louise's counsel represented that custody was already resolved, and only a minor property reimbursement issue remained for trial. The trial court, notwithstanding that it had agreed to a further hearing, stated that it was "ridiculous" to expect to "relitigate" the move way issue but that it would see when it had time to do so. It set the matter for September 21, 2004.
Louise relocated with the child as planned. Counsel continued the matter seven times while they worked on a comprehensive settlement negotiations and while Scott pursued, and then dismissed, an appeal from the July 26, 2004 custody order. Trial on reserved issues was ultimately scheduled for April 26, 2005.
Five days before the scheduled trial, attorney Clemmons withdrew as Scott's counsel, based on a breakdown of the attorney-client relationship. The case was continued to June of 2005. In May of 2005, Scott retained new counsel, attorney Anna Karczag. At Karczag's request, the case was further continued for settlement negotiations. Louise moved to disqualify Karczag. Scott replaced Karczag with attorney Michael Pina on the day of the hearing on the disqualification motion. The case was continued to October of 2005.
While awaiting hearing, Scott filed a complaint against the custody evaluator with the State of California Department of Consumer Affairs, Board of Psychology, alleging that that the evaluator was not qualified and had fabricated responses in his report, among other things. After the evaluator responded, the Board closed its investigation without further action.
On November 29, 2005, the case came on for a two day trial of reserved issues. Attorney Pina announced that he was not available for a two day trial. He agreed with opposing counsel and the court that only property claims remained to be tried. Pina reduced his trial estimate from three days to half a day and stated that he was available the following afternoon. "[A]ll we have now is to deal with reimbursement claims before the court," Pina said, "We have to be done tomorrow afternoon, Your Honor." The court set the matter for the following afternoon for a half day property trial.
The parties appeared the following afternoon, and reached a court supervised settlement agreement pursuant to which Scott waived his property reimbursement claims and both parties agreed to bear their own attorney's fees. (Code Civ. Proc., § 664.6.) Louise and the court understood this agreement to resolve all outstanding issues.
After the agreement was put on the record, Scott's counsel announced that his client was insisting that there was to be a further hearing on custody. Pina produced a transcript of the July 26, 2004, hearing. After reviewing it, the trial court acknowledged that it had indeed promised a further hearing on custody. Accordingly, the trial court vacated the settlement agreement and announced that the case would proceed that afternoon with a two day trial concerning custody and property issues.
Attorney Pina stated that he was not ready to proceed because he had released his witness the day before. Expressing exasperation, the court granted Scott a continuance, but did so on the condition that Scott would be responsible for Louise's travel expenses for both the current and future trial dates and for the fees for the appearance that day of Louise's fair market value expert. The court reserved the issue of attorney's fees. The court set the case for trial on all reserved issues for January 18, 2006.
On January 18, 2006, the court heard testimony concerning custody and property from Scott, Louise, the evaluator and Scott's expert, Daniel J. Rybicki. The court denied Scott's renewed motion to strike the evaluator's report, and confirmed its award of primary physical custody to Louise. The court found that "[s]o far, as stability and continuity are required, it is imperative that physical custody of the child be with the mother." One and a half years had passed since the mother and child had moved to Spokane. Since the 2004 interim move away order, Scott had spent 12 months in San Diego, 5 months in Tuolumne County, and had spent time in Houston.
The court denied Scott's property reimbursement claims, and awarded Louise $25,000 in needs-based attorneys' fees pursuant to Family Code section 2030. The court awarded Louise $1,700 in travel costs associated with her appearance at trial, and awarded $6,000 in discovery sanctions for Scott's "failure to produce records at the multiple sessions of his deposition scheduled for that purpose."
The clerk mailed notice of entry of the final judgment on June 16, 2006, but the notice erroneously identified the judgment as a judgment of dissolution, rather than a judgment on reserved issues. Scott filed a notice of appeal on September 6, 2006, after replacing attorney Pina with attorney Ring. In April of 2007, Ring withdrew as counsel. Scott now represents himself on appeal.
DISCUSSION
Timeliness of Appeal
The appeal is timely. The notice of appeal was filed September 6, 2006, fewer than 180 days after entry of judgment on June 16, 2006. (Cal. Rules of Court, rule 8.104(a)(3).) The record contains no proof of service of the judgment. (Rule 8.104(a)(1).) The record also does not support Louise's contention that notice of entry of judgment on reserved issues was served more than 60 days before the notice of appeal was filed (rule 8.104(a)(1)), because the notice of entry of judgment upon which she relies refers to entry of judgment of "dissolution," an event that occurred long before the June 16, 2006, judgment from which Scott appeals.
Due Process
Scott contends that he was denied due process of law, because the interim hearing was limited to four hours and because the subsequent hearing was delayed for 18 months. We reject the contention because the time limitation and the delay were either brought about by Scott or his counsel.
Scott's counsel, Lammers, acquiesced in the four hour trial setting. The trial court was authorized to hold Scott to the four hour trial estimate and to submit the custody issue for decision on July 26, 2004, without further hearing. "To the extent permitted by law and in the discretion of the judicial officer presiding, any matter may be deemed submitted for decision on the evidence presented . . . if time estimates are exceeded." (Super. Ct. Santa Barbara County Local Rules, rule 1003 [promulgated pursuant to the superior court's authority to "expedite and facilitate the business of the court" Code Civ. Proc., § 575.1].)
On the day of the 2004 trial, Scott requested a continuance because he had retained a new attorney, Clemmons. The court had discretion to deny the request, which was not accompanied by an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c).) Scott did not demonstrate "that the substitution [was] required in the interests of justice." (Id., rule 3.1332(c)(4))
The trial court did more than it was required to do when it extended to Scott an opportunity to present further evidence after the July 26, 2004 trial. Scott did not diligently pursue that opportunity. The record contains no objection to the numerous trial continuances, some of which were initiated by Scott's counsel.
Custody Determination
The trial court acted within its discretion when it denied Scott's request for a change of custody. We review a child custody decision under the deferential abuse of discretion standard. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We affirm if "the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (Ibid.)
If a parent plans to relocate, the court is required to consider the right of a custodial parent to change the residence of the minor child as long as relocation will not prejudice the rights or welfare of the child. (Fam. Code, § 7501.) The non-custodial parent seeking a change must prove that relocation would be detrimental to the child. (In re Marriage of La Musga (2004) 32 Cal.4th 1072.) "The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (Id. at p. 1097.)
Based on the evidence presented, the trial court reasonably concluded that an order denying Scott's request for change of custody was in the best interest of the child. The trial court received evidence that the child perceived Louise to be the most trusted parent, that Louise provided more emotional stability and security than Scott, and that Scott was not prepared to care for the child on a full time basis. The custody evaluator offered the opinion that the child had formed an adequate relationship with Scott and the relationship would not be undermined by distance if reasonable visitation occurred. The testimony of Louise supported the trial court's conclusion that the move was motivated by good faith financial reasons, and was not for the purpose of alienating the child from Scott.
Scott states in his opening brief that the evaluator's report was inadmissible and that the evaluator committed fraud. These assertions are not developed with citation to the record or legal authority and are deemed waived. It is the appellant's responsibility to affirmatively demonstrate error by citation to the record and supporting authority. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.)
Sanctions and Attorney's Fees
Scott contends that the court abused its discretion by awarding travel costs, attorney's fees, and discovery sanctions to Louise and that these orders were designed to punish Scott for insisting on a full custody hearing. We disagree.
The trial court was authorized to impose the award of $1,760 in travel costs as a condition of granting Scott's request to continue the August 30, 2006, trial. "When an application is made to the court or referee to postpone a trial, the payment of the expenses occasioned by the postponement may be imposed, in the discretion of the court or referee, as a condition of granting the same." (Code Civ. Proc., § 1024.) The court did not abuse its discretion when it determined that the documented expenses were reasonably necessary.
The court's award of $25,000 in attorney's fees to Louise was authorized by Family Code sections 2030 and 2032, based upon the relative circumstances of the parties. Louise testified that she had incurred $80,000 in attorney's fees and $20,000 in costs. A motion for attorney's fees in a dissolution proceeding is left to the sound discretion of the trial court and it will not be disturbed absent a clear showing of abuse. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.) Scott has not demonstrated any abuse.
Although the parties had previously reached an agreement that they would each bear their own attorney's fees, substantial evidence supports the court's finding that the agreement was based upon a mistaken fact that the agreement would end the litigation. The court was authorized to vacate the agreement pursuant to Code of Civil Procedure, section 473, subdivision (b), having found that Louise entered into it upon the mistaken belief that the agreement would resolve all reserved issues.
The court imposed $6,000 in sanctions against Scott for failure to comply with his discovery obligations. Monetary sanctions are authorized against a deponent who fails to produce documents described in a deposition notice unless the deponent acted with substantial justification. (Code Civ. Proc., § 2025.450, subds. (a) & (c)(1).) Scott has not provided an adequate record for this court to determine whether the court complied with the procedural requirements necessary to imposition of the sanction. The trial court's order is presumed to be correct, and the appellant bears the burden of providing an adequate record to establish prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Claim of Judicial Bias
Scott's claim of judicial bias is unsupported by citation to the record. No transcripts of the 2004 proceedings appear in the record. All intendments and presumptions are indulged to support the judgment on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
The record does demonstrate that the court became confused as to the procedural posture of the custody issue, largely due to Scott's revolving representation. It also demonstrates the court's exasperation with counsel's shifting time estimates and lack of readiness. However, the court fully and objectively considered the evidence presented and we are satisfied that a reasonable person would not entertain doubts concerning the judge's impartiality. (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 246.)
We affirm the judgment. Respondent is awarded costs on appeal.
We concur: YEGAN, Acting P.J., PERREN, J.