Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County, No. VFL226730, Melinda M. Reed, Judge.
Ronald E. Pierce, in pro. per., for Appellant.
No appearance for Respondent.
OPINION
Kane, Acting P.J.
In this marital dissolution case, Ronald E. Pierce (Pierce) appeals from the trial court’s order of February 19, 2010, denying his request for a modification of child custody and other relief. Under the existing custody order at that time, Pierce’s former wife, Nadira M. Arreola (Arreola), had legal and physical custody of their three children, subject to Pierce’s right to visit the children every Saturday at the paternal grandmother’s home. On appeal, Pierce argues the existing custody order was improper and should have been set aside or modified by the trial court because it was allegedly based on an unsubstantiated assertion that he had committed or threatened domestic violence. Pierce also raises other claims of procedural impropriety or unfairness relating to the custody order, including that the trial court should have stricken a custody evaluation and failed to ensure there was an adequate mediation. On the record before us, we are unable to conclude that the trial court abused its discretion and therefore we affirm the order from which Pierce has appealed.
FACTS AND PROCEDURAL HISTORY
Pierce and Arreola were married in 1992 and, during their 15-year marriage, they had three children. On January 30, 2008, Pierce filed a petition for dissolution of the marriage. Arreola filed a response to the petition on February 28, 2008, agreeing that the marriage should be dissolved. A status-only judgment of dissolution was entered on September 4, 2008, with all other issues reserved.
On February 29, 2008, Arreola filed a motion for temporary protective orders against Pierce to prevent domestic violence, including a request for a stay away order and an order to prevent acts of harassment and other personal contact. Arreola’s motion included a request that she be given sole physical custody of the children and that Pierce be allowed reasonable visitation on Sundays between 10:00 a.m. and 8:00 p.m. and on Thursdays between 5:30 p.m. and 8:00 p.m. In support of her request for such orders, Arreola’s declaration stated that Pierce was “violent and … unable to control his temper.” She asserted that “[h]is violent outbursts occurred at least two times each week during [their] marriage.” Further, according to her declaration, Pierce’s outbursts were directed sometimes at Arreola, sometimes at the children, and sometimes at both Arreola and the children, and allegedly included verbal abuse, yelling, intimidation, kicking in doors, throwing furniture, dishes and heavy objects, and punching holes in cabinets and walls. Allegedly, his verbal abuse toward the children included angry tirades against their autistic child, calling the child “‘an asshole’” and “‘a little shit.’” The autistic child allegedly reacted to Pierce’s tirades by trying to run away from Pierce and begging to be left alone. Another child “ha[d] cowered, cried, and [lost bladder control] during [Pierce’s] outbursts.” Arreola further stated in her declaration that Pierce had recently shown up at the house, demanded to be let in, and screamed in anger at her and the children. Other times, he had parked his car out front and waited, and, in light of “what [she knew] about [Pierce’s] inability to control his anger, ” this caused Arreola to be “scared” for her safety. On March 3, 2008, the requested orders were issued as temporary restraining orders, effective pending the hearing date on March 28, 2008.
On March 28, 2008, the trial court ordered that “[p]ending trial or until further order of the court, ” Arreola would have physical custody of the children, while Pierce would have supervised visits with the children each Sunday and telephonic contact on Thursday evenings. The protective restraining orders would otherwise remain in effect pending a future contested hearing. Further, at Pierce’s own request, a “Domestic Violence Assessment” was to be performed to evaluate both parties. A further contested hearing was held on April 25, 2008, at which the trial court confirmed the prior orders (with some additional elaboration) and provided for greater counseling and other therapeutic involvement of licensed mental health professionals. The prior “referral to Family Services of Tulare County re: Domestic Violence Assessment” was made an order of the court. The protective restraining orders were to remain in effect pending the next contested hearing regarding custody.
The domestic violence assessments were filed with the trial court on June 6, 2008. The assessments, prepared by a 7licensed mental health professional affiliated with Family Services (assessor) who had interviewed both Pierce and Arreola, reflected the assessor’s evaluation that Arreola’s testimony of Pierce’s angry and abusive behavior was credible. The assessor concluded that Arreola “ha[d] been a victim of domestic violence.” The assessor recommended that future visitation of the children by Pierce should be pursuant to a supervised program at “CHAT House” for the next four to six months. In response to the assessment, the parties appear to have stipulated to participation in additional counseling services and the trial court ordered “reunification therapy.” Meanwhile, the contested hearing regarding child custody was continued from June 27, 2008, to October 28, 2008.
On October 17, 2008, Arreola filed an ex parte request for an order to show cause hearing to modify the child visitation arrangement. Arreola sought to curtail Pierce’s visitation because of alleged concerns that he was mentally unstable and suicidal. In her supporting declaration, Arreola referred to an online website posting in which Pierce allegedly admitted to being depressed, suicidal, and struggling with misuse of alcohol. The trial court granted her request for modification, and “[e]ffective immediately, ” Pierce’s visitation was to be “supervised through the CHAT [H]ouse.”
On October 28, 2008, the trial date of the reserved contested issues was set for January 29, 2009. On the date of trial, although some issues were resolved at that time, a further trial date was scheduled for June 9, 2009, and later continued to July 16, 2009, to address the matters of custody and visitation. Prior to that continued hearing, each party filed declarations accusing the other of improper conduct. For example, Pierce accused Arreola of “[c]yber [s]talking” him, and of allowing the children to be exposed to inappropriate movies and engaging in discussion of sexual matters that were not age-appropriate. Arreola’s declaration referred to additional online website postings written by Pierce that allegedly evidenced his mental instability, including a statement by Pierce that if he had the power to do so, he would go on a “killing spree of … global proportions.” Pierce did not deny making the statement, but explained he was merely expressing his thoughts in the context of a vampire game where he “waxed artistic about [his] despair.”
On July 16, 2009, at the conclusion of the contested hearing, the trial court ordered that a full “custody evaluation” shall be performed “which shall include a psychological evaluation” of the parties. The hearing date on the issue of custody was continued once again to allow sufficient time for the evaluation to be conducted. The process of selecting a qualified evaluator was to begin with Pierce selecting three qualified private custody evaluators and notifying Arreola’s attorney of his selections, and then Arreola was to choose one of the three. Thereafter, Ronald Gandolfo, Ph.D., was selected to act as custody evaluator. The date of the contested hearing on child custody was continued to December 8, 2009.
On October 8, 2009, Dr. Gandolfo filed a declaration of private child custody evaluator regarding his qualifications.
Pierce filed objections challenging a number of Tulare County Superior Court judges, claiming systemic bias, corruption and conflicts of interest on the part of all Tulare County judicial officers, and he sought their immediate disqualification from any further participation in the instant family law case, including Judges Jennifer Shirk, Lloyd Hicks and Brett Alldredge. Pierce’s motions for disqualification of these judges were denied by Judge J. Richard Distaso, on special assignment to Tulare County Superior Court.
The contested hearing on the issue of child custody was finally held on December 8, 2009. Dr. Gandolfo’s custody evaluation was on file with the trial court, and the parties were given an opportunity to read the report prior to commencement of the hearing. The custody evaluation recommended a resumption and gradual expansion of Pierce’s visitation with his children under controlled conditions. The trial court ordered that, pending further hearing, Arreola would have sole legal and physical custody of the minor children. The trial court expressly stated it was following the recommendations of the custody evaluation. Pierce was granted visitation every Saturday at the home of the paternal grandmother from 12:00 p.m. until 6:00 p.m. A further review hearing would occur on April 9, 2010, at which time an expanded parenting plan would be considered. In regard to the factor of alleged domestic violence, the trial court held that Arreola’s allegations “do not rise to the level of domestic violence pursuant to Family Code section 3044.” Further, the trial court held that “[t]he restraining order against [Pierce] that is currently in effect shall expire on April 9, 2010, unless there are ongoing issues that warrant an extension of the orders.”
On January 8, 2010, Pierce filed a written statement of objections to the trial court’s December 8, 2009, order. Pierce’s written objections were set forth in said document, but the document did not include any notice of motion or other application for affirmative relief concerning the order.
On January 13, 2010, Pierce filed a notice of motion seeking to strike the custody evaluation upon which the trial court had relied in its December 8, 2009, order. The motion was made on the ground that the person appointed to act as evaluator (Dr. Gandolfo) was not qualified. Pierce’s motion sought not only to strike the custody evaluation, but also to set aside the visitation order that was apparently based on the custody evaluation. Additionally, Pierce filed papers seeking an order to show cause to modify the December 8, 2009, custody order so as to require his prior consent before one of the children could receive any psychotropic medications for anxiety or depression. Pierce believed such medications were unnecessary and/or harmful, but Arreola had a different opinion and had allowed them to be administered at the recommendation of the child’s doctor.
On February 19, 2010, a hearing was held regarding Pierce’s requested relief from certain aspects of the existing custody order. At that time, Pierce’s motion to strike the custody evaluation was denied. Pierce’s request to modify the prior child custody or visitation order was denied, including with respect to one of the children’s medications. Pierce filed a notice of appeal from the trial court’s February 19, 2010, order.
DISCUSSION
I. Standard of Review
The trial court has wide discretion to choose a parenting plan that is in the best interests of the child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Once there has been a final custody determination, the parent “seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child’s welfare.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.) However, if the requested modification would only alter the details of the parenting schedule or visitation arrangements, and would leave the existing custody order otherwise the same, the trial court applies the best interest of the child standard. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077-1080.)
“The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether 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. [Citation.]” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) “The test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but ‘whether the trial court could reasonably have concluded that the order in question advanced the “best interest” of the child.’ [Citation.]” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)
In regard to our review in this matter, we note the record does not show that Pierce requested a statement of decision in the trial court. “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Parties wishing to avoid implied findings in favor of the judgment must obtain a statement of decision under Code of Civil Procedure sections 632 and 634. (In re Marriage of Arceneaux, supra, at pp. 1133-1134; see also Fam. Code, § 3022.3 [providing for statement of decision on custody determinations].) Here, as there was no statement of decision, all presumptions, intendments and implied findings will be made in support of the order.
Unless otherwise indicated, all statutory references are to the Family Code.
II. No Abuse of Discretion Shown
The present appeal is taken from the trial court’s order of February 19, 2010. In that order, the trial court denied Pierce’s request for modification of existing custody arrangements (e.g., as to medications) and other relief (e.g., to strike the custody evaluation and obtain a new trial on the visitation issue). In applying the deferential abuse of discretion standard, we must affirm if the trial court could have reasonably concluded that the order in question advanced the best interest of the children. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.)
Pierce’s notice of appeal specifies that the instant appeal is taken from the February 19, 2010, order of the trial court. A notice of appeal “defines the scope of the appeal by identifying the particular judgment or order being appealed” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967); therefore, we limit our consideration to the issues Pierce has raised with respect to that order.
A. Domestic Violence
The first of Pierce’s arguments on appeal is that the trial court abused its discretion because the subject order was allegedly premised on an assumption, without sufficient proof, that he committed or threatened domestic violence. This argument must be rejected because Pierce’s supposition about what the trial court assumed is not supported by an adequate record. Since Pierce has not provided reporter’s transcripts, together with specific page citations, regarding the December 8, 2009, hearing (determining custody) or the subsequent February 19, 2010, hearing (seeking modification), and since the order itself does not support his claim, he failed to meet his burden as appellant. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [an appellant’s burden is to demonstrate the existence of reversible error by reference to an adequate record]; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 [an appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record].) “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.) Here, the record on appeal does not affirmatively show the claimed error, and no statement of decision was requested; therefore, we presume the order to be correct. This ground for appeal fails.
Earlier in the dissolution proceedings below, a hearing was held at Arreola’s request on whether a temporary restraining order should be imposed based on her declaration describing alleged angry tirades and verbal intimidation by Pierce. Such a restraining order was issued, but that order is not the subject of the present appeal. (See, ante, fn. 3.)
Further, we note that in the trial court’s determination of custody, it had very broad discretion and was authorized to consider all of the circumstances bearing on the best interest of the children, including the factors set forth in section 3011. (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32; Lester v. Lennane, supra, 84 Cal.App.4th at p. 591; § 3011.) The trial court may consider any factors that are relevant to its decision (§ 3011), including but not limited to “[t]he health, safety, and welfare of the child” (id., subd. (a)), and “[a]ny history of abuse by one parent … against any of the following: [¶] … [t]he other parent” (id., subd. (b)(2)). Inasmuch as one of the trial court’s findings on December 8, 2009, was that the alleged conduct “does not rise to the level of Domestic Violence necessitating orders pursuant to Family Code [section] 3044, ” it is reasonable to conclude the trial court had some evidence before it that described the nature of Pierce’s conduct. Even assuming for the sake of argument that the trial court may have weighed and considered, along with all the other evidence before it, any evidence tending to substantiate the alleged incidents of out-of-control anger, etc., on Pierce’s part, we fail to see how that judicial consideration constituted error, much less reversible error. Moreover, it has not been explained at all, much less with adequate legal argument and citation to the record, how that particular consideration may have materially affected the order entered on February 19, 2010, from which Pierce has appealed.
As discussed above, Arreola’s earlier declaration filed in the trial court purports to describe Pierce’s episodes of uncontrolled anger in which he allegedly punched walls, threw things, and verbally ridiculed and intimidated Arreola and the children.
The trial court may also have considered the prior online posts by Pierce that admitted he was depressed and suicidal at times. The one thing we do know the trial court relied on was the custody evaluation, since the December 8, 2009, order stated as much.
It is fundamental to appellate law that a trial court’s order is presumed to be correct and an appellant must affirmatively show prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557.) With respect to this first claim of error, Pierce has utterly failed to do so. Additionally, although the record before us is inadequate to support Pierce’s claim of error, the record we do have is sufficient to reflect that the trial court could have reasonably concluded the order in question served the best interests of the children. In short, no abuse of discretion is shown.
B. Custody Evaluation and Mediation
The trial court’s order of February 19, 2010, denied Pierce’s motion to strike the custody evaluation. Pierce contends the trial court erred. He argues, as he did in the trial court, the following grounds: (1) the evaluator was unqualified and failed to file a declaration regarding his qualifications, and (2) the custody evaluation was untimely filed prior to the hearing.
We reject the first ground for several reasons. The record reflects that a “DECLARATION OF PRIVATE CHILD CUSTODY EVALUATOR REGARDING QUALIFICATIONS” was filed with the trial court by Dr. Gandolfo on October 8, 2009, a full two months prior to the custody hearing date. Furthermore, Pierce, who initially stipulated to have Dr. Gandolfo serve as evaluator, has not brought to our attention any evidence in the record showing that he timely and specifically objected below to Dr. Gandolfo’s qualifications to act as evaluator. Finally, Pierce has failed to explain, with supporting facts and legal argument, why he believes Dr. Gandolfo is or was unqualified. We therefore disregard Pierce’s challenge to Dr. Gandolfo’s qualifications as wholly unsupported, inadequately argued, and forfeited due to failure to object.
Pierce later vaguely objected in a document filed on January 8, 2010, one month after the custody hearing at which the custody evaluation was received.
Pierce’s second ground raised in support of his motion to strike was that Dr. Gandolfo’s custody evaluation was not filed and served at least 10 days prior to the hearing date in accordance with section 3111. (See § 3111, subd. (a).) Pierce is technically correct that the filing of the custody evaluation did not comply with the 10 day notice provision, since it appears the custody evaluation was filed with the trial court on December 7, 2009.
However, there is no indication in the record that any objection was made at the December 8, 2009, custody hearing. Certainly, if either party had objected based on failure to comply with the procedural or notice requirements of section 3111 relating to the timing of filing and service of the custody evaluation, the trial court could have easily remedied the situation by continuing the hearing to allow further time to review the custody evaluation. It is well-settled that when a party appears at a hearing and argues the merits of the issues at hand, he waives any defects or irregularities in the notice and that party cannot thereafter raise the issue of insufficient notice on appeal. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) We hold that Pierce forfeited or impliedly waived this issue by failure to object at the time of the custody hearing, when the evaluation and custody issues were argued by the parties to the trial court. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [forfeiture of alleged child support error due to failure to timely object]; Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 262 [failure to timely object to inadequate polling of jury resulted in waiver].)
“An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.… [¶] … Often … the explanation [for this rule] is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §400, pp. 458-459, italics added.) That is precisely the case here.
Additionally, and equally fatal to his appeal of this aspect of the trial court’s ruling, Pierce has failed to meet his burden of demonstrating that the procedural defect of a late-filed custody evaluation was prejudicial in this case. (Cal. Const., art. VI, § 13; Code. Civ. Proc., § 475.) “‘The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.’” (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) That is, an appellant must not only show that error occurred, but that it likely affected the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836 [reversal not warranted unless it appears “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].) Pierce has not done so. Accordingly, we must reject Pierce’s contention that the trial court committed reversible error when it denied his motion to strike the custody evaluation.
In a further argument, Pierce contends he did not receive a fair and adequate mediation. On the record before us on appeal, we are unable to ascertain whether there is any validity to Pierce’s contention. Lacking an adequate record, we summarily reject Pierce’s claim of error. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557.) Additionally, Pierce failed to demonstrate that the purported error, if any, was prejudicial. (In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337.)
C. Other Issues
Miscellaneous other matters are mentioned by Pierce in a perfunctory way, without sufficient legal argument or citation to an adequate record. For example, throughout Pierce’s opening brief, he provides a generalized narrative of the events or proceedings that allegedly occurred in the trial court and, within that narrative, he interjects at several points his conclusions that a particular event or proceeding, as described in his brief, constituted a violation of a provision of the Family Code or violated due process. We have disregarded such vague contentions. When points are perfunctorily raised, without adequate analysis and authority, and without citation to an adequate record, we pass them over and treat them as abandoned. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
Pierce broadly concludes that the trial court, by repeatedly continuing the hearing as to custody and support issues and otherwise failing to adequately consider his rights, unfairly placed him under a severe financial burden and interfered with his parental rights. But such general conclusions only beg the question. Certain premises must be established before an order or judgment may be reversed on appeal. As appellant, Pierce was required to affirmatively demonstrate that prejudicial error was made by the trial court with respect to the particular order from which he has appealed. The question remains: Did the trial court prejudicially err or abuse its discretion in its order of February 19, 2010? It was Pierce’s burden, as appellant, to make such a showing. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.) As we have endeavored to explain, Pierce failed to do so.
DISPOSITION
The order of the trial court is affirmed. Costs on appeal are awarded to Arreola.
WE CONCUR: Poochigian, J., Detjen, J.