Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. FL018328
Mihara, J.
Appellant Roger Schlafly, former husband of respondent Julie Schlafly, appeals from an order resolving child custody and support issues. On appeal, Roger raises issues relating to the sufficiency of the evidence, the admissibility of evidence, supervised visitation, individual counseling, and a custody evaluation, constitutional rights, jurisdiction, and the calculation of the amount of child support. We find no error and affirm.
Because the parties share a common surname, we use their given names to avoid confusion.
I. Statement of Facts
The parties were married in 1996 and have two children, Millicent (born in 1997) and Geneva (born in 1999). In October 2003, Julie filed a petition for dissolution of marriage. The parties initially split custody of the children 50-50. However, the trial court later adopted the recommendations of Dr. Bret Johnson, the child custody evaluator. These recommendations included, among other things, that the parenting schedule “outlined under item 6(a)” remain in effect pending Roger’s completion of a 10-week parenting class at Simply Your Best, and his participation in individual counseling at least two times per month as well as co-parent counseling. In December 2005, the trial court ordered that the parties return to the 50-50 custody arrangement.
Pursuant to this parenting schedule, Roger would be responsible for the children every Wednesday after school until 7 p.m., and every first, third, and fifth Friday after school until Sunday at 5 p.m.
In November 2007, Child Protective Services (CPS) received a complaint regarding Roger’s treatment of the children. Sally Mitchell, a social worker, conducted three interviews with the children while they were at school. During these interviews, the children revealed several incidents in which Roger was emotionally abusive to them.
Santa Cruz County Child Welfare Services conducted the investigation. However, since Roger and the trial court refer to this agency as “CPS,” we will also use this term.
On November 16, 2007, Julie sought sole legal and physical custody of the children based on the findings of CPS. On the same day, the trial court ordered that Julie would have temporary physical custody of the children and Roger would have professionally supervised visitation.
At the contested custody hearing in January 2008, Mitchell testified extensively regarding her interviews with the children. The CPS report was also admitted into evidence.
Roger sought to present the testimony of Connie Jo Neustadter regarding the allegations of emotional abuse. However, the trial court ruled that Neustadter had “no right to access the report from Child Protective Services and direct[ed her] to destroy any copies of the report or documents related to the report in her possession.” The trial court also informed Roger that if he wanted an attorney to have access to the CPS report, he was required to petition the court for permission. James Wills, one of Roger’s neighbors, then testified regarding his dog’s habits.
Roger testified that the CPS report was “unfounded in its entirety.” He asserted that no adult had confirmed that his children’s statements were true. He denied that certain incidents ever occurred, and provided justifications for other behaviors. He also acknowledged that he kept the children home from school after they spoke with Mitchell. Roger conceded that the children were very upset when he performed a science experiment to demonstrate that a frog would remain in a pot of slowly heated and then boiling water until it died. He acknowledged that the children must work in their math workbooks if they wake him up on a Saturday or Sunday. He does not regard this as punishment, and explained that if they “wake [him] up early on a Saturday or Sunday, it must be because [they] want to do some math workbooks.” Roger believed that he was “extremely open with” the children, and that the “biggest problem with them in openness” occurs because they are “under orders from [Julie] to keep secrets from [him], which frequently happens.” Roger also submitted a letter from the superintendent of the school district, which stated that both parties were “currently entitled to participate with their students’ education and school activities.”
Roger testified that he told the children that “complaining” to Mitchell “would not do any good.” He also “advise[d] them that there could be some harmful consequences as to what they’re doing.” Roger further testified that “there is a grain of truth to almost everything [in the CPS report], but it’s distorted.”
The trial court found “by a degree greater than a preponderance . . . the following: [¶] No. 1, Father has engaged in emotionally abusive behavior and conduct. [¶] No. 2, Father has an inability to discern and take responsibility for his own participation in such abusive conduct. [¶] No. 3, these children, when considering their best interest, . . . are not to continue to be exposed to such conduct. [¶] No. 4, a psychological evaluation is ordered by the Court. . . . [¶] No. 5, professional or nonprofessional supervised visitation will be continued unless and until it’s modified. . . . [¶] No. 6, Father will commence counseling pursuant to the recommendation of Dr. Johnson. [¶] No. 7, Mother and Father will engage in co-parent counseling, not classes, . . .”
II. Discussion
A. Child Custody
1. Sufficiency of the Evidence
Roger argues that the trial court abused its discretion in ordering a change in custody. Roger asserts that “[t]here is not even any allegation in this case that actually meets a statutory or actionable form of abuse, no matter how emotional abuse is defined, and the lower court decision must be reversed for that reason alone.” Thus, he argues that since his conduct did not fall within the parameters of either Penal Code section 11166.05 or Welfare and Institutions Code section 300, subdivision (c), the trial court erred in ordering a change in custody.
There is no merit to Roger’s argument. Neither statute applies in the present case. Penal Code section 11166.05 specifies when a mandated reporter must report incidents of child abuse. Welfare and Institutions Code section 300, subdivision (c) states that the juvenile court may adjudge a child a dependent of the court if the child is at risk of, or is, suffering serious emotional damage. Here, the issue involves a child custody dispute in family court, and is governed by the standard articulated by the California Supreme Court in In re Marriage of Brown and Yana (2006) 37 Cal.4th 947: “Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining that custody arrangement. In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates a significant change of circumstances indicating that a different custody arrangement would be in the child’s best interest. Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy.” (Id. at p. 956, internal citations and quotation marks omitted.) Thus, here, the trial court was not required to find that Roger’s conduct was governed by either Penal Code section 11166.05 or Welfare and Institutions Code section 300, subdivision (c) before it ordered a change in custody.
Penal Code section 11166.05 states that “[a]ny mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9.”
Welfare and Institutions Code section 300 provides in relevant part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (c) The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. No child shall be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.”
Roger also contends that Julie failed to establish that there were a change of circumstances sufficient to justify a custody change. We disagree. In the present case, the children recounted several examples of Roger’s abusive behavior towards them. Such evidence established “ ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child[ren]’s best interest.” (In re Marriage of Brown and Yana, supra, 37 Cal.4th at p. 956.)
Roger next argues that “the CPS report was entirely unfounded.” He points out that there “was no adult confirmation of anything.”
An appellate court reviews custody and visitation orders under the abuse of discretion test. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) We review the trial court’s factual findings under the substantial evidence test. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Here, the CPS report was admitted into evidence and Mitchell testified regarding the children’s statements about Roger’s behavior towards them. Though the children’s statements constituted hearsay, Roger did not object to their admission. “Material and relevant evidence that is technically incompetent and inadmissible under the exclusionary rules, if offered and received without proper objection or motion to strike, will be considered in support of the judgment.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 393, p. 484.) The children gave several examples of Roger’s mistreatment of them, but Roger focuses on two examples and claims that he proved that they were false. However, “[c]redibility is an issue for the fact finder. As we have repeatedly stated, we do not reweigh evidence or reassess the credibility of witnesses. We have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. When, as here, the evidence gives rise to conflicting reasonable inferences, one of which supports the findings of the trial court, the trial court’s finding is conclusive on appeal.” (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623, internal citations and quotation marks omitted.) Moreover, even assuming that the trial court found that the children’s statements regarding two examples of Roger’s behavior were not credible, several other statements by the children established that his behavior was abusive. Thus, there was substantial evidence to support the trial court’s factual findings.
Roger asserts that “[c]luelessness about feelings is not grounds for a custody change.” Though he disputes the trial court’s determination that he is unable to understand his children’s feelings, he claims that any such handicap does not justify the court’s action. Relying on In re Marriage of Carney (1979) 24 Cal.3d 725 (Carney), he argues that the trial court was required to find that his handicap would have “a substantial and lasting adverse effect.”
In Carney, the father, who was a quadriplegic, had custody of the parties’ two children for almost five years when the mother sought custody. (Carney, supra, 24 Cal.3d at p. 729.) The California Supreme Court reversed the order granting custody to the mother based on the trial court’s finding that the father was physically handicapped. (Carney, at pp. 734-735.) The court then outlined the appropriate test to be employed by the trial court in determining the children’s best interests: “If a person has a physical handicap it is impermissible for the court simply to rely on that condition as prima facie evidence of the person’s unfitness as a parent or of probable detriment to the child; rather, in all cases the court must view the handicapped person as an individual and the family as a whole. To achieve this, the court should inquire into the person’s actual and potential physical capabilities, learn how he or she has adapted to the disability and manages its problems, consider how the other members of the household have adjusted thereto, and take into account the special contributions the person may make to the family despite -- or even because of -- the handicap. Weighing these and all other relevant factors together, the court should then carefully determine whether the parent’s condition will in fact have a substantial and lasting adverse effect on the best interests of the children.” (Carney, at p. 736.) Even assuming that Carney is applicable to the present case, here, the trial court found that Roger’s behavior towards his children was detrimental to their well-being.
Roger next contends that “[f]amily court cannot do what would be forbidden in juvenile court.” Relying on In re Henry V. (2004) 119 Cal.App.4th 522, and Santosky v. Kramer (1982) 455 U.S. 745, Roger claims that the trial court “cannot, as a matter of law, take the sort of extreme action that is usually relegated to juvenile court unless [it] meets the standards that the juvenile court has to meet. That means that he has to have clear and convincing evidence of some actionable form of abuse.” Roger does not understand the differences between dependency and family law proceedings. The clear and convincing standard is applicable in dependency proceedings, because the children have been adjudged dependents of the court and their parents are facing termination of their parental rights. Here, however, Roger’s children have not been adjudged dependents of the court and his parental rights have not been terminated.
Roger also claims that the trial court did not rely on the evidence. The trial court’s statements refute this claim.
At the conclusion of the hearing, the trial court explained the basis for its ruling: “First, one does not have to beat their child to be an abuser. [¶] Second, one doesn’t have to have one spectacular event easily recalled and reported in detail to be an emotional abuser. [¶] Third, this Court is not relying on what Sally Mitchell said. [¶] This Court is relying on what the children said and the Court received evidence without objection from either side in the form of the report. [¶] This court is relying on the report of Dr. Johnson, which now seems fairly prophetic in view of what has transpired in the intervening two years, . . . [¶] This Court is relying on the evidence adduced at hearing, including the testimony of Father wherein the Father continues to indicate that he has little, if any, understanding of what his eight and ten-year-old children are feeling and how they are made to feel. [¶] He does not recognize when they are in distress, even though he has placed them in distress. [¶] He does not recognize what their expectations are and how his unilateral change of things affects their expectations and how that makes them feel. [¶] He does not understand how it makes them feel when he proposes that one enter a contest that she is unqualified because of her age or grade level to enter and she knows it, but Dad insists that she do it anyway. [¶] What is happening now is that these young children, who previously were too young to stand up to Dad and say, ‘You’re not listening to me. You’re not understanding how I feel. You’re making me feel horrible. You make me feel anxious and distressed and frustrated and manipulated and put upon and disregarded’ -- Dad isn’t hearing any of that. [¶] . . . [¶] According to the children, as described by their lawyer, the Court-appointed lawyer, and all the evidence I have received in open court, these children are in distress.” Contrary to Roger’s claim, the trial court stated that it was relying on the evidence in making its determination.
Roger further asserts that the trial court improperly relied on the report of James M. Ritchey.
The trial court appointed Ritchey as the children’s counsel to represent the best interests of the children. After meeting with both parties and the children, Ritchey recommended that the order for supervised visitation continue until the parties and the children participated in counseling. Ritchey also outlined the children’s views regarding Roger. Both parties received a copy of Ritchey’s report. After Julie and Roger stated that they did not have any questions for Ritchey, the trial court excused him.
Family Code section 3150, subdivision (a) states: “If the court determines that it would be in the best interests of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding.”
Family Code section 3151, subdivision (a) provides: “The child’s counsel appointed under this chapter is charged with the representation of the child’s best interests. The role of the child’s counsel is to gather facts that bear on the best interests of the child, and present those facts to the court, including the child’s wishes when counsel deems it appropriate for consideration by the court pursuant to Section 3042. The counsel’s duties, unless under the circumstances it is inappropriate to exercise the duty, include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain facts relevant to the custody or visitation hearings.”
Here, Ritchey was appointed to represent the children, and thus his role was to advocate for their best interests. The trial court did not err in relying on Ritchey’s statements regarding the children’s best interests.
Relying on Elkins v. Superior Court (2007) 41 Cal.4th 1337 (Elkins), Roger asserts that “the family court cannot rely on … unsworn statements by counsel.” Roger misunderstands the law as it applies to the present case. In Elkins, a local trial court rule and order in the family court provided that the parties in a dissolution proceeding must present their cases through written declarations. (Elkins, at p. 1344.) Our Supreme Court held that the “rule and order are inconsistent with the hearsay rule to the extent they render written declarations admissible as a basis for decision in a contested marital dissolution trial.” (Elkins, at p. 1356.) In contrast to Elkins, here, Ritchey was not a witness who submitted a declaration. He was the attorney representing the children.
Roger next argues that the trial court improperly relied on Dr. Johnson’s November 2004 report.
The trial court stated: “I . . . reread last night the report of Dr. Johnson in . . . which Father said, quote, nothing bad ever really happened, almost the identical words that I heard in this hearing. [¶] Dad at that time confirmed that he does tend to do the same thing, quote, over and over again, not inconsistent with the Costco visits and the meal plans. [¶] Dad says, ‘My parenting habits may be somewhat unorthodox, but they achieve results. And I never put my children into any danger.’ [¶] I’m not going to go into . . . the original complaint that was raised that resulted in Dr. Johnson being cross-examined before Judge Kelly.” The trial court also summarized issues that were similar in both proceedings. The trial court then stated: “It was apparent to Dr. Johnson that both parents loved the children a great deal. [¶] He says, quote, the fact that the children are smart and nothing negative has yet happened to them or that Father has used unorthodox approaches to encourage their independence is no excuse for a lack of supervision and risky judgment. [¶] This does not mean that Father has malicious desires to hurt the children or is purposefully neglectful. Rather, he needs to work on these issues and his level of awareness.”
In our view, Roger has misinterpreted this portion of the trial court’s statement. The trial court was not relying on this report in making its custody determination. Rather, the trial court was noting that Roger’s lack of awareness regarding the effect of his behavior on his children’s emotional well-being was a long-standing issue in this case.
2. Admissibility of Evidence
a. Neustadter’s Testimony
Roger contends that the trial court erred in excluding Neustadter’s testimony. We disagree.
Roger made an offer of proof that Neustadter had “expertise about police reports,” had interviewed Roger and the children, and had reviewed the CPS report. The trial court explained to Roger that it had already informed him in open court that the CPS report was restricted and that he, as a parent, had a right to see it. Relying on Welfare and Institutions Code section 827, the trial court ruled that Neustadter could not testify regarding the CPS report, because she was not entitled to see it. The trial court also issued a protective order that Neustadter destroy any document that related to the CPS file.
Welfare and Institutions Code section 827, specifies which individuals are entitled to inspect a juvenile case file. Roger claims that Neustadter was entitled to view this file under section 827, subdivision (a)(1)(L) which provides: “a case file may be inspected only by the following: [¶] . . . [¶] . . . a court-appointed evaluator or a person conducting a court-connected child custody evaluation, investigation, or assessment pursuant to Section 3111 or 3118 of the Family Code . . . .”
Roger’s claim that the trial court appointed Neustadter as a custody evaluator in March 2005 is not supported by the record. In March 2005, the trial court ordered that Roger participate in individual and co-parent counseling, and complete a 10-week parenting class at Simply Your Best. Dr. Johnson had included Neustadter on the list of possible therapists to provide individual counseling for Roger. The trial court’s order in January 2008 also required that he begin individual counseling as recommended by Dr. Johnson. However, a parent’s therapist for individual counseling does not conduct a custody evaluation, and thus is not authorized to inspect the CPS file.
Roger contends that he did not know that the CPS report was confidential, because it was not marked as such, and was not subject to any court order. He also asserts that the CPS file does not include the CPS report.
Here, the trial court specifically informed Roger at a hearing on December 6, 2007, that Welfare and Institutions Code section 827 provided “guidance as to access to the records of CPS.” The trial court also advised Roger that the CPS report of which he had a copy was “5 percent of the file in terms of pages and interviews and documents,” and that “[i]f all you want to do is look at the file, not take photocopies, not remove any portion of the file, not copy it for anyone else, you can do that directly with CPS. [¶] Anything beyond looking at the file requires that you get a Court order.” Even if the trial court had not advised Roger of the appropriate statute and that the CPS report was included in the CPS file, his contention has no merit. “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.’ [Citations.]” (Lombardi v. Citizens Nat’l. Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.) Thus, Roger’s alleged ignorance does not exempt him from the requirements of the law.
In his opening and reply briefs, Rogers claims that he received the CPS report on December 3, 2007, immediately sent the report to Neustadter, and she contacted him on December 5, 2007 to give her opinion regarding the CPS report. Even assuming the truth of this claim, Roger fails to explain why he was not required to follow the law, as set forth in Welfare and Institutions Code section 827, governing the confidentiality of juvenile case files.
Roger next argues that Welfare and Institutions Code section 827 applies only to a juvenile court case file, and thus does not apply in a proceeding in family court. His argument has no merit. This statute applies to “[j]uvenile case file inspection,” and thus, it is irrelevant whether the proceedings are in juvenile court or family court.
Roger further claims that he did not have sufficient time to petition the juvenile court for release of the juvenile case file. We also reject this claim. A party may make a request for a continuance for good cause. “Circumstances that may indicate good cause include: [¶] . . . [¶] (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” (Cal. Rules of Court, rule 3.1332 (c)(6) Thus, Roger could have requested a continuance to obtain the juvenile case file in a lawful manner.
Roger argues that he has the right to show the CPS report to his attorney without petitioning the court, and “can publish the report if [he] wish[es].” Roger is wrong. As explained by the court in In re Gina S. (2005) 133 Cal.App.4th 1074, “[t]he juvenile court has exclusive authority to determine the extent to which confidential juvenile records may be released and controls ‘the time, place and manner of inspection.’ [Citations.] ‘The juvenile court has both “the sensitivity and expertise” to make this determination. [Citation.]’ [Citation.]” (Id. at pp. 1081-1082.)
Roger also seems to be challenging the trial court’s order sealing the transcript of Mitchell’s testimony. The order provides in relevant part that “[t]he Court recognizes that pursuant to Welfare and Institutions Code Sec. 827, the content of the testimony of Sally Mitchell on 1/4/08 should be kept confidential. The Court should have closed the session including her testimony to the public. Therefore the Court makes the following orders: [¶] The transcript of the testimony of Sally Mitchell on 1/4/08 shall be deemed confidential. It may not be copied or reproduced in any manner without Court order. The original transcript shall be sealed. Distribution of the transcript is prohibited. The transcript may be used for any legitimate appellate purpose.” Roger maintains that section 827 “doesn’t say anything about court testimony or transcripts,” and thus the trial court misunderstood the statute. As previously discussed, the CPS report and Mitchell’s testimony regarding its contents were confidential. Since the trial court erred in failing to close the session, it properly ordered that the transcript be sealed.
b. Neustadter’s 2005 Report
Roger argues that the trial court erred in excluding Neustadter’s testimony regarding a report that she wrote in 2005.
Roger sought to introduce Neustadter’s 2005 report, claiming that the report had been ordered by the court. The trial court stated that Neustadter’s report was irrelevant, because “the CPS report dealt with no issues that occurred before June of 2005.” When the trial court asked Roger whether he had seen Neustadter since June 2005, Roger replied that he has seen her “in connection with the CPS report.” Roger also claimed that Neustadter’s report had been ordered by the court. The trial court responded: “I know, because June of 2005 was the month that I took over this calendar. [¶] And I remember clearly that you brought in reports that were unsolicited and not court ordered. You decided that you would find someone to evaluate you and the children in order to prop up your claim of being a good parent at that time.”
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) This court reviews the trial court’s determination as to the admissibility of evidence under the abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) Here, Neustadter’s 2005 report was not relevant to whether Roger was abusive to the children in 2007. Accordingly, the trial court did not abuse its discretion in excluding this evidence.
Rogers seems to suggest that Neustadter’s report was admissible, because the trial court had referred to Johnson’s report in reaching its determination regarding custody. As previously discussed, Roger has taken these statements out of context.
3. Supervised Visitation, Counseling, and Custody Evaluation
Roger argues that the “order for supervised visitation appears punitive, and has no justification. Even if all of the allegations against me are true, there is not the slightest threat of harm to my kids.” This argument ignores the trial court’s finding that Roger “has engaged in emotionally abusive behavior,” which was harmful to his children. The order for supervised visitation prevents further emotional harm to the children, and thus protects the welfare and best interests of the children.
Roger claims that he “did not even get visitation.” He recounts his difficulties in arranging supervised visitation pursuant to the trial court’s order. We do not consider this issue, since these facts are not included in the record on appeal.
Roger also contends that the order to participate in counseling “is similarly bizarrely punitive. . . . [¶] . . . There is no evidence of any kind that either my kids or I would benefit from me going to counseling, therapy, parenting classes, or anything like that.”
Family Code section 3190 provides in relevant part: “(a) The court may require parents . . . involved in a custody or visitation dispute, . . . to participate in outpatient counseling with a licensed mental health professional, . . . for not more than one year, . . . if the court finds both of the following: [¶] (1) The dispute between the . . . parent . . . and the child, . . . poses a substantial danger to the best interest of the child. (2) The counseling is in the best interest of the child.”
Roger asserts that “there is no such danger tha[t] anyone has identified. And [he has] already spent over a year of seeing various counselors . . . so the statutory limit has already been exceeded.” First, as previously discussed, the children’s statements to Mitchell and Ritchey established that the dispute between them and Roger posed a substantial danger to their best interests. By ordering that Roger participate in counseling, the trial court implicitly found that counseling would be in the children’s best interests. Second, even assuming that the record established that Roger participated in counseling for “over a year,” such counseling occurred before the instant dispute arose.
Roger next claims that “Family Code section 3191 requires that the counseling be ‘specifically designed’ to facilitate communication, reduce conflict, and improve parenting skills. But Comm. Joseph’s order is not directed at any of those things.”
Family Code section 3191 provides: “The counseling pursuant to this chapter shall be specifically designed to facilitate communication between the parties regarding their minor child’s best interest, to reduce conflict regarding custody or visitation, and to improve the quality of parenting skills of each parent.”
Here, the trial court’s lengthy statements made it very clear that Roger’s behavior constituted emotional abuse, and that Roger had “an inability to discern and take responsibility for his own participation in such abusive conduct.” Thus, the order to participate in counseling was directed at the facilitation of communication between Roger and the children, the reduction of conflict between himself and his children, and the improvement of his parenting skills.
Roger also challenges the trial court’s order that the parties obtain a child custody evaluation on the grounds that it “is unwarranted and unlawful.” The trial court may appoint a child custody evaluator in “any contested proceeding involving child custody or visitation rights.” (Fam. Code, § 3111, subd. (a).) Roger argues that “[t]here is no contested proceeding pending” and “[t]here is no child abuse, no changed circumstances, no harm to [his] kids, and nothing that is even outside the norms of good parenting.”
The trial court appointed Elizabeth Lee to conduct a child custody/visitation evaluation. The trial court explained that the purpose of the evaluation was to obtain recommendations regarding “legal custody . . . which may include division of authority for decision making, physical custody, visitation, whether visitation shall be supervised, exchange provisions, whether either party should be required to attend counseling, rehabilitation, and co-parenting programs, whether the children shall participate in counseling, and any other recommendations related to any of these issues required to address the health, safety, welfare, and best interest of the children.” The trial court also ordered that “[v]isitation shall remain professionally or non-professionally supervised and shall be modified to include up to two hours of unsupervised time once the minors have been interviewed by an evaluator. The evaluator is requested to recommend appropriate increases in the unsupervised time between the supervised hours.” The trial court later issued findings and an order after hearing, which stated in relevant part: “No. 6. Visitation shall remain professionally or non-professionally supervised. Once the children have been interviewed by the evaluator, the evaluator can recommend appropriate increases in the unsupervised time between hours of supervised visitation.” As previously discussed, custody and visitation orders may be modified. (In re Marriage of Brown and Yana, supra, 37 Cal.4th at p. 956.) Since the trial court was contemplating that Roger would possibly have unsupervised visitation and physical custody, these issues were pending.
Roger has attached various documents to his opening brief relating to this contention. However, since they were not made a part of the record on appeal, we do not consider them.
Relying on In re Marriage of Matthews (1980) 101 Cal.App.3d 811 (Matthews), Roger argued at oral argument that the trial court improperly delegated the issue of visitation to the custody evaluator. In Matthews, the court held that the “provision authorizing [the member of the conciliation department] to alter the visitation schedule in any way she deemed reasonable and necessary constituted an improper delegation of judicial power to a subordinate court attaché.” (Matthews at p. 817.) However, “[a]bsent a sufficient showing of justification for the failure to raise an issue in a timely fashion, we need not consider any issue which, although raised at oral argument, was not adequately raised in the briefs. [Citations.]” (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 266.) Here, Roger neither raised this issue in his briefs nor explained his failure to do so. Thus, we need not consider his contention. In any event, the trial court’s order did not improperly delegate the issue of visitation.
Roger’s reliance on In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 is misplaced. In that case, the order appointing an evaluator failed to specify the purpose and scope of the evaluation at all. (Id. at p. 1132.) Here, the order included the information absent in Seagondollar.
Relying on a “recent Scientific American article,” Roger next claims that “[t]here is even a growing body of evidence that psychological custody evaluations do more harm than good.” By enacting Evidence Code section 730, and Family Code sections 3110 through 3112, the Legislature has concluded otherwise.
4. Constitutional Rights
Roger contends that he has been deprived of his constitutional rights.
Relying on Troxel v. Granville (2000) 530 U.S. 57, Roger first asserts that he has “the constitutional right to direct the upbringing and education of” his children. Roger, however, ignores the trial court’s finding that his behavior towards his children constituted emotional abuse, and that awarding him custody of the children would not be in their best interests. Thus, the case law does not support Roger’s position.
Roger also asserts: “I have a First Amendment right to publish Sally Mitchell’s testimony against me, just as I have published other aspects of the case in an online journal on angry-dad.com. I contend that I have a Fifth Amendment right to show Ms. Mitchell’s report to my attorney in order to prepare my defense. . . . [¶] I contend that the forced psychotherapy is an infliction of cruel and unusual punishment, contrary to my Eighth Amendment rights.” Roger has failed to cite any legal authority to support his position, and thus this court may consider it waived. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).)
Relying on In re James Q. (2000) 81 Cal.App.4th 255 (James Q.), Roger argues that he was deprived of his Fourteenth Amendment right to present witnesses on his behalf. In James Q., the reviewing court held that the juvenile court “may not, consistent with the requirements of statute and principles of due process, deny a party the right to a contested review hearing based on an allegedly inadequate or even nonexistent offer of proof.” (James Q. at p. 258.) In contrast to James Q., here, Roger was not deprived of his right to a contested hearing. He exercised his right to cross-examine and confront witnesses, testified on his own behalf, and presented a witness. Moreover, to the extent that Roger has failed to provide any case law to support his position that he had a constitutional right to present either evidence that the Legislature has deemed confidential to protect a child’s privacy rights or evidence that is irrelevant, he has waived the issue. (Stanley, supra, 10 Cal.4th at p. 793.)
5. Jurisdiction
Roger argues that “[a] Commissioner had no authority to take this action.” He “believe[s] that Julie and [he] sign[ed] a form authorizing Comm. Joseph to act on the allegations contained in our pleadings, but her child custody pleadings had been litigated and resolved by final judgment by the end of 2005. The Nov-2007 action was an entirely new action, and I never consented to allowing a commissioner to preside over a child custody trial.”
Here, Roger has not included the document in which the parties agreed that Commissioner Joseph had jurisdiction to try the case. Thus, we are unable to determine the scope of the parties’ agreement. We also note that Roger participated in the proceedings without objection. (See In re Horton (1991) 54 Cal.3d 82, 98 [“ ‘[A]n implied stipulation arises from the parties’ common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a judge.’ ”].) Moreover, Roger has failed to provide any legal authority to support his position. Thus, we deem the issue waived. (Stanley, supra, 10 Cal.4th at p. 793.)
B. Child Support
Roger contends that the trial court did not follow this court’s holding in his prior appeal. He claims that the trial court could not “arbitrarily add $3000 to [his] monthly income based on [his] not having a mortgage on [his] house, and use the Dissomaster to increase [his] child support payments by a resulting $1062 per month.”
In In re Marriage of Schlafly (2007) 149 Cal.App.4th 747 (Schlafly), this court addressed Roger’s contention that the trial court “erroneously ‘deviated’ from the guideline in including $3,000 in the income calculation to account for his mortgage-free home.” (Schlafly, at p. 757.) This court noted that “[u]nder section 4057, subdivision (b)(5), the presumption that the guideline amount of child support is rebuttable based on evidence showing that application of the guideline formula ‘would be unjust or inappropriate due to the special circumstances in the particular case.’ ‘Special circumstances’ may include the fact that one parent, in a case with substantially equal custody, uses a much higher or lower percentage of income on housing. (§ 4057, subd. (b)(5)(B).)” (Schlafly, pp. 758-759.) After summarizing the different approaches used by the courts in Stewart v. Gomez (1996) 47 Cal.App.4th 1748, and In re Marriage of Loh (2001) 93 Cal.App.4th 325, in resolving the issue of free housing on child support payments, this court adopted the Loh approach. (Schlafly, at pp. 757-758.) This court then explained that the case involved “both the approach outlined approvingly in Loh and the approach used in Stewart. Judge Kelly used the Loh-sanctioned approach and elected not to include the $3,000 rental value of Roger’s house as non-taxable income. The court instead departed from the guideline amount, after the guideline amount was calculated, by approximately $1,000 to reflect the fact that Roger had fewer housing expenses than otherwise would be expected. The court referred specifically to the ‘special circumstance’ of Roger having reduced living expenses and cited Loh as support for the deviation. We find no error in this consideration of Roger’s mortgage-free housing situation in determining the appropriate amount of child support. [¶] . . . [¶] In calculating the child support payments effective January 1 and January 23, 2006, in contrast, Commissioner Joseph adopted the approach used in Stewart. In the order, the court acknowledged that it included $3,000 of non-taxable income as ‘a part of the dissomaster calculation.’ The $3,000 of imputed income, based only on the purported rental value of the house, bears little or no relation to Roger’s actual monthly income. Roger’s mortgage-free housing is not an employee benefit, nor is there evidence that it resulted from an effort to funnel income into a form that would not be recognized in the dissomaster calculation. We therefore conclude the court abused its discretion in including the purported rental value of Roger’s residence as non-taxable income. We reverse the December 20 child support order and remand to the court to determine the proper guideline amount. On remand, the court may again consider whether Roger’s mortgage-free housing is a special circumstance under section 4057 justifying deviation from the guideline amount.” (Schlafly, at pp. 759-760.)
Here, on remand, the parties testified regarding their housing expenses. Roger does not have a mortgage, but he does pay taxes and insurance. Julie and her husband’s mortgage is at least $3,600 without taxes. All of her monthly income pays community expenses. The trial court found “a special circumstance here, a great differential in the amount paid between these parties and invokes, pursuant to 4057-B-5-B, the same calculations as Judge Kelly. [¶] $1,062 will be imputed as the value of that differential. And the Court therefore deviates to that amount.” Contrary to Roger’s claim, the trial court followed this court’s holding in the prior appeal.
As he did in the prior appeal, Roger also argues that the contribution to housing made by Julie’s boyfriend, now husband, should be incorporated in the guideline calculation. (Schlafly, supra, 149 Cal.App.4th at p. 759, fn. 7.) This court rejected the argument, stating that “[s]ection 4057.5 prohibits such a consideration.” (Ibid.) For the same reason, Roger’s argument is now without merit.
III. Disposition
The order is affirmed. Julie is awarded her costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.