Opinion
2d Civil No. B232603
02-15-2012
JET JOHNSON, Plaintiff and Appellant, v. JOEY KEVIN BENNETT, Defendant and Respondent.
Jet Johnson, in pro. per., and for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SD034708)
(Ventura County)
Jet Johnson appeals from the judgment and orders entered in this paternity action in which the court declared respondent Joey Kevin Bennett to be the father of appellant's child, granted respondent's request to change the child's name, and denied respondent's request for attorneys' fees, among other things. Appellant contends that she was denied her right to trial on contested issues, that the court should not have granted the name change because the request had previously been denied and was based on an inadmissible declaration, and that the court should not have considered respondent's fee request because that request had also previously been denied and because respondent was self-represented. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, appellant filed this action to establish that respondent Joey Kevin Bennett was the father of her expected child. She requested reasonable expenses of pregnancy and birth and, after the child was born in 2007, requested support and sole legal and physical custody. Respondent acknowledged paternity, which was confirmed by genetic testing. He requested joint legal and physical custody.
On our own motion, we take judicial notice of the trial court's entire file, which we have obtained and reviewed.
In November 2007, after hearing testimony and oral argument, the family court granted joint legal and physical custody. It granted primary residence to appellant and required respondent to pay support. The court deferred ruling on a request by respondent to change the child's surname.
In August 2008, after two days of oral testimony and argument, the family court granted respondent increased time with the child and ordered psychological evaluation of both parties and the child. Respondent renewed his request to change the child's name. The court deferred the request until after the evaluations.
Meanwhile, the child became the subject of a dependency action as a result of hostility between the parties. After a contested hearing, the juvenile court ordered sole legal custody to respondent, joint physical custody, primary residence to respondent, and three weeknights of visitation to appellant. The juvenile court entered a final judgment on its custody order in September 2009.
Based on his increased visitation, respondent asked the family court to reduce his child support obligation, which it did. At the same time, he renewed his request to change the child's name and asked the court for attorney's fees and costs. The family court denied the request to change the child's name, without prejudice, because "it would be inappropriate to consider a change of name during the pendency of [the dependency] case." It denied his request for fees and costs because his Income and Expense declaration showed no expenses incurred.
One month after final judgment in the dependency case, appellant moved the family court to modify custody. She sought sole legal and physical custody of the child. The family court judge transferred the case to the dependency court judge, who heard argument on the matter in January 2010, sitting as a family court judge. The court found there had been no significant change in circumstances, and denied appellant's request for modification. It found that the child's best interest continued to be served by giving the father sole legal custody and joint physical custody with the previously ordered visitation schedule.
In June 2010, appellant filed another request in the family court case to modify custody. She sought sole legal custody and primary physical custody. She submitted an extensive declaration, with exhibits, "in lieu of personal testimony" in support. The court denied her request for change of custody based on its finding there had been no significant change in circumstances. Over appellant's objection, the court modified visitation to require that exchanges occur at the home of appellant's ex-husband, who was acting as care provider, rather than a police station.
Respondent filed a request for a mandatory settlement conference and trial setting, which the court set in November 2010. The parties appeared before a mediator and were unable to reach agreement on any change to custody or visitation. The mediator made a recommendation to the court, to which both parties objected. The court swore the mediator in as a witness and both parties cross-examined her. The court heard argument and adopted the mediator's recommendation. As recommended, the court continued sole legal custody to respondent, joint physical custody to both parties with primary residence to respondent, and three weeknights to appellant, shared holidays, and therapy for both parents and the child. The court ordered that exchanges continue at the home of appellant's ex-husband.
In March 2011, respondent renewed his request to change the child's name, declaring that the change would give the child ties to the child's family heritage. He was concerned that appellant would remarry and change her name. Two days before the hearing, he filed a supporting declaration from the child's court-appointed therapist. The therapist stated, "I do support [respondent's] effort for the name change to reinforce [the child's] connection to him as her father." She also reported that the parties' "ongoing custody/visitation battles" were negatively effecting the child, and urged the court to "reinforce to both parents the importance of not making any negative statements to [the child] about the other parent." Respondent also requested a declaration of parentage and $45,000 in attorney's fees and costs.
Appellant objected to the name change and the fee request. She orally requested a trial on appellant's requests, which the court denied. The court granted respondent's request for a name change, finding it to be in the best interests of the child. The court entered judgment of paternity, included the previously ordered custody and visitation schedule, and changed the child's name.
The court took respondent's request for attorney's fees under submission and ordered both parties to file updated income and expense declarations. The court denied the fee request after reviewing the income and expense declarations. It found that appellant had no funds with which to pay a fee award, and that respondent had not adequately supported his fee request. The court also wrote that appellant's litigation tactics as frivolous, but that it could not sanction her without notice. The court "put[] [her]on notice that all future unnecessary motions or game-playing of the system similar to that with which she has previously engaged in this case to date will be met with stiff penalties which may or may not be monetary in nature."
DISCUSSION
Trial
The record does not support appellant's contention that she was denied a trial on any contested issue. The juvenile dependency court fully adjudicated custody and visitation after a contested hearing on the merits, and the family court properly deferred to its determination. (Welf. & Inst. Code, § 302, subd. (c).) "When a child is adjudged a dependent of the juvenile court, any issues regarding custodial rights between his or her parents shall be determined solely by the juvenile court . . . so long as the child remains a dependent of the juvenile court." (Ibid.) A custody or visitation order issued by the dependency court becomes a final judgment that remains in effect after jurisdiction terminates and "shall not be modified . . . unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child." (Id., subd. (d).) Appellant did not demonstrate a significant change of circumstances after full and fair opportunity to do so.
Name Change
We reject appellant's contention that the court should not have granted the name change because it had been denied in 2009, it was based on an inadmissible declaration with which she was not timely served, and there was no demonstrated "irrefutable need" for the change. The 2009 order denying respondent's request for a name change did not preclude the subsequent order granting it, because it was made without prejudice. Respondent was not required to demonstrate an "irrefutable need" for the change because the court in a parentage action may grant a request to change the child's name if it is in the best interest of the child. (Fam. Code, §§ 7637, 7638; Code Civ. Proc., §§ 1277, subd. (d), 1278, subd. (c).) Appellant forfeited her objections to the declaration of the therapist because she did not raise them at the hearing before the family court judge. Moreover, she has demonstrated no prejudice because she had a copy of the declaration at the hearing and the court gave her a full and fair opportunity to respond to it.
Attorney's Fees
Appellant's contention that the court should not have taken respondent's request for attorney's fees under submission because the request was previously denied and because respondent was self-represented is moot because the court denied the fee request.
DISPOSITION
The judgment and orders appealed from are affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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GILBERT, P.J.
YEGAN, J.
Roger L. Lund, Judge
Tari L. Cody, Judge
Superior Court County of Ventura
Jet Johnson, in pro. per., and for Plaintiff and Appellant.
No appearance for Defendant and Respondent.