Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. ED59506 Lantz Lewis, Judge. .
BENKE, Acting P. J.
Robert L. appeals an order granting joinder of the mother's sister, Janet C. and her husband, and determining child custody and visitation issues. We affirm the order.
FACTS
Robert and Cheryl S. had a daughter together. By July 2007 Cheryl was terminally ill. She has since died.
At a hearing in July 2007, the court, over Robert's objection, granted Janet's request to be joined in the case. The court noted that Janet had been caring for the daughter during Cheryl's illness and claimed a right to custody of the daughter based on Cheryl's wish that Janet and her husband be designated as the daughter's guardian. The court then addressed Janet's request to be granted custody as well as Robert's request for modification of custody and visitation.
A mediator had made a recommendation about custody and visitation, including that Janet and Robert would share custody after Cheryl's death. At the hearing, Janet stated she wanted custody of the daughter because Cheryl's wish was that the daughter remain in her care, she and her husband had a strong relationship with the daughter, the daughter had stated she preferred to live with Janet rather than with Robert and they wanted to avoid inflicting any additional emotional trauma on the daughter who was having to deal with Cheryl's illness.
The court noted this was "a very, very delicate time" for the daughter and expressed concerns that any major changes in the status quo would not be in the daughter's best interests. Therefore, the court was not inclined to immediately award Robert full custody. The court also indicated Robert and the daughter should participate in conjoint therapy to prepare to become a family unit because ultimately it would be in the daughter's best interests to be in a family unit with Robert. Robert agreed that custody should be shared, but wanted some change in the visitation. He also stated that when Cheryl died, he and the daughter would "probably both . . . like to be together during that time and see a therapist." In response, Janet stated that Robert's request for sole custody seemed premature given that Cheryl had not yet died and that they had assumed that at some point the daughter would be living with Robert because he was her father.
The court ultimately adopted the recommendations of the mediator with some modifications. The court emphasized "that these are very temporary orders."
DISCUSSION
I
Scope of Appeal
Robert raises a number of issues that are outside the scope of this appeal. This appeal is from a July 2007 order dealing only with issues relating to custody, visitation and joinder. Thus, the issues that Robert raises relating to the division of property, unlawful detainer, a previous order of therapy, violations of other orders and a peremptory challenge to a different judge are not cognizable on this appeal. Robert's claim he was not timely informed about her death—a matter disputed by Janet—has been mooted by his subsequent knowledge of her death.
We note that Janet in the "Conclusion" of her brief, after discussing why Robert's arguments are without merit, states: "Respondents respectfully request dismissal of [the appeal] based on foregoing." In context, it appears Janet is seeking an affirmance, rather than a dismissal. We also note that in her "Statement of the Case" Janet contends she was not properly served, but she does not pursue this argument. Therefore, we conclude she has abandoned the argument.
II
Joinder
Robert contends the court improperly granted the request for joinder.
California Rules of Court, rule 5.154 provides for the joinder of parties who claim custody or physical control of a child in a family court proceeding. Janet and her husband claimed that during Cheryl's illness, they had physical custody and control of the daughter, and Cheryl desired that they continue to have custody of the daughter after her death. These facts were sufficient to support the court's determination to grant the request for joinder.
Robert also claims the service of joinder was improper, but does not further explain what error occurred. His argument consists of stating that a court has discretion to accept late filed pleadings. It is a basic rule of appellate review that an appellant, like Robert, bears the burden of showing error. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) Robert has not met that burden. Moreover, to the extent that Robert is arguing the court improperly accepted a late-filed pleading from Janet, we find no abuse of discretion, given Cheryl's terminal illness and Robert's request for a modification of custody and visitation.
III
Shared Custody
Robert contends the court improperly ordered he share custody with Janet. He contends he was entitled to sole custody now that Cheryl has died.
Robert also argues the Family Services mediator was biased against him and there was "extrinsic fraud." These arguments appear to be variant attacks on the court's order of joint custody.
Initially, it is important to point out that this order was made in July 2007, before Cheryl died. It was intended only as a temporary order; the court stressed to both Robert and Janet that its order was "very temporary." The court also indicated it was highly likely that Robert would be given full custody following a period of transition. In other words, the order was not intended to provide for a permanent custody arrangement or preclude Robert from seeking full custody after Cheryl's death.
Second, Robert waived any objections to temporarily sharing custody with Janet during Cheryl's last remaining months and immediately following her death. During the hearing, Robert expressly abandoned his request for sole custody and agreed to share custody with Janet in light of the fact the daughter was then going through a difficult time. He also conceded that after Cheryl's death, it would be appropriate to engage in therapy with the daughter before having full custody.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, J., IRION, J.