Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05FL01718
SIMS, J.Kimberly Perotti (Mother) appeals from a family court order denying her request to modify the court’s judgment awarding sole custody of the parties’ minor child to Timothy Perotti (Father). We shall affirm the order.
BACKGROUND
Mother and Father were married in August 1999, and had one child, a daughter, in January 2001. They separated in March 2005. As a result of Mother’s allegations that Father sexually abused the minor, the trial court initially awarded Mother temporary, sole physical custody of the child and limited Father’s parenting time to weekly supervised visits. Minor’s counsel was appointed shortly thereafter.
In March 2006, minor’s counsel moved ex parte to modify the custody order, to obtain a psychological evaluation of Mother pursuant to Family Code section 3111, and to change the minor’s therapist. Minor’s counsel argued there was no evidence the child had been sexually abused, and asked the court to give Father sole physical custody of the child pending trial.
Undesignated statutory references are to the Family Code.
After a hearing with all parties present, the court modified the custody order, awarding temporary custody of the minor to her maternal grandmother. The court further ordered Mother and Father to submit to a section 3111 psychological evaluation, and, under Evidence Code section 730, appointed Larry Nicholas, Ph.D., to perform the evaluation.
Father did not participate in the section 3111 evaluation, claiming he could not afford the additional expense. Mother, however, was examined by Dr. Nicholas and on May 8, 2006, Dr. Nicholas delivered his report to the court, concluding that Mother suffered from numerous psychiatric and psychological problems rendering her incapable of parenting the child.
Two weeks later, minor’s counsel applied ex parte to have the child removed from the maternal grandmother’s custody and placed in the paternal grandparents’ custody pending trial. The court granted counsel’s request and on May 31, 2006, Mother moved to set aside the court’s order. The court denied Mother’s motion, but granted her supervised visits.
Trial was to begin on June 8, 2006, but on that day, Mother’s counsel was “relieved... due to prior service as judge pro tem” and the matter was trailed to the following day. The following day, Mother was present without counsel; Father’s counsel and minor’s counsel also were present. Mother asked to continue the trial, but her request was denied.
There is no transcript from that hearing and it is not clear from the subsequent hearings why her request was denied.
After the presentation of evidence, including oral testimony, the court concluded there was no evidence to support Mother’s allegations that Father sexually abused the minor. The court awarded Father sole legal and physical custody of the minor child, limiting Mother’s parenting time to weekly supervised visits. The court also made orders regarding child and spousal support, and by the parties’ agreement, the matter was assigned to the court’s “case management” program, which precludes either party from filing a motion without the court’s permission.
In spite of the assignment to case management, in August 2006, Mother filed a motion to modify custody. In a handwritten minute order, dated September 11, 2006, the trial court denied Mother’s request, finding no material change of circumstances. Approximately two weeks later, Mother, now represented by counsel, filed a motion for a new trial and to vacate the court’s order of June 9, 2006. The court denied that motion as well.
Five months later, in March 2007, Mother filed another motion to modify custody and requested a referral to Family Court Services for mediation. Minor’s counsel opposed the motion. The parties subsequently agreed to attend Family Court Services for confidential mediation, and to expand Mother’s supervised visits to eight hours per week.
Despite the parties’ agreement to attend confidential mediation, in June 2007, Family Court Services produced a mediation report, reflecting a parenting plan agreed to by both parents that increased Mother’s visitation. Two months later, Mother filed another motion to modify custody, and requested another referral to Family Court Services mediation. Father and minor’s counsel both opposed the motion; however, minor’s counsel stated that he would support a new section 3111 evaluation to assess Mother’s “mental status.” Mother then requested an evidentiary hearing. On October 1, 2007, the parties were ordered to Family Court Services’ mediation.
Two months later, Family Court Services produced another mediation report, which included a recommendation that Mother be allowed unsupervised visits with the child. Minor’s counsel challenged the recommendation and, again, indicated his support for a new section 3111 evaluation. Pursuant to the parties’ agreement, the court subsequently ordered Dr. Jonathan E. French to perform a new section 3111 evaluation of Mother.
On February 19, 2008, the day before the hearing on Mother’s request to modify the custody order, Dr. French issued his report. After considering Dr. French’s report, the trial court denied Mother’s request to modify custody, and rejected the Family Court Services’ recommendation to give Mother unsupervised parenting time. The court found that Dr. French’s report “reflects improvement but not [a] material change in circumstances.” Mother appeals from that order.
DISCUSSION
On appeal, we must presume the trial court’s judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
Mother claims the trial court committed “structural error” by not conducting an evidentiary hearing; however, parties are not entitled to an evidentiary hearing on a post judgment motion as a matter of right. Rather, trial courts are vested with the discretion to determine whether such a hearing is “necessary.” (See In re Marriage of Dunn-Kato & Dunn (2002) 103 Cal.App.4th 345, 348.)
Here, the trial court ruled on the merits of Mother’s motion at the law and motion hearing, presumably finding that an evidentiary hearing was not necessary. With no reporter’s transcript of that hearing, we must presume the court found sufficient evidence to support that decision. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) On the face of this record, we find nothing to suggest otherwise. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.) Accordingly, we find no error.
Mother also contends that by ruling on her motion without an evidentiary hearing, the trial court violated her right to due process by precluding her from cross-examining Dr. French. Parties are entitled to an opportunity to cross-examine court appointed experts whose reports inform the court’s decision. (Evid. Code, § 732 ; Wheeler v. Wheeler (1973) 34 Cal.App.3d 239, 242.) Such a right, however, is not absolute, and a party’s failure to object to the expert’s report, or to request a hearing to present evidence in rebuttal, results in a forfeiture of the right to challenge the expert’s findings. (Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 427.)
“Any expert appointed by the court under Section 730 may be called and examined by the court or by any party to the action. When such witness is called and examined by the court, the parties have the same right as is expressed in Section 775 to cross-examine the witness and to objection to the questions asked and the evidence adduced.” (Evid. Code, § 732.)
Here, Mother does not cite to any evidence in the record that she objected to Dr. French’s report in the trial court, or that she asked to cross-examine Dr. French or present evidence to rebut his findings. Accordingly, on this record, we find no error.
Although not set forth under a separate heading, Mother asserts that she was denied due process because Dr. French’s report was not produced until the day before the law and motion hearing. Section 3111, subdivision (a), requires that custody evaluation reports, like the one prepared by Dr. French, be made available to the parties or their attorneys “[a]t least 10 days before any hearing regarding custody of the child.” Dr. French’s report was, therefore, untimely. Nevertheless, there is no evidence in the record that Mother objected to the untimely production of Dr. French’s report. Accordingly, the issue is forfeited on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18; In re Marriage of Christie (1994) 28 Cal.App.4th 849, 865.)
Finally, Mother argues the trial court abused its discretion in finding there was no material change in circumstances to justify a modification of custody. We disagree.
In August 2006, after an evidentiary hearing, the trial court adopted the report of Dr. Larry Nicholas, who concluded Mother was not mentally fit to care for the parties’ minor child. Presumably based on those findings, the trial court awarded sole legal and physical custody of the child to Father. In March 2007, Mother moved to modify that order.
To succeed on her motion, Mother was obligated to prove that her circumstances had materially changed, i.e., that her mental status was materially improved. (Burchard v. Garay (1986) 42 Cal.3d 531, 535.) The trial court determined that Mother failed to meet her burden. We review that decision for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)
Mother, Father, and minor’s counsel each submitted declarations in support of their positions on Mother’s motion to modify custody. To better inform the trial court’s decision, the court also appointed Dr. French to perform a new section 3111 evaluation of Mother. After performing his evaluation, Dr. French concluded that Mother’s mental status had changed “to some extent[,]” in part due to the current course of medications she was on.
Nevertheless, Dr. French found it “abundantly clear [] that one session a month with her therapist does not come close to meeting [Mother’s] clinical needs at this juncture. The more disturbing symptomatology may have subsided, but it has left in its wake an individual who still seems to harbor the old suspicions, and who has more or less just gone through the motions of evaluation and treatment. Where before she was fearful and scattered, now she appears brittle and controlled, and she willfully refuses comment on matters that previously she could not leave alone. In my opinion, [Mother’s] stance does not represent solely attention-deficit/hyperactivity disorder, but also reflects more durable personality characteristics that will remain problematic until more is learned about them and how to treat them.”
Having considered Dr. French’s report, the trial court concluded that while some improvement may have been made, the change was not “material.” Such a decision was well within the trial court’s discretion given the evidence before the court.
DISPOSITION
The order is affirmed. Mother shall reimburse Father for his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.