Opinion
B323381
12-26-2023
JOSEPH B., Plaintiff and Respondent, v. Y.S., Defendant and Appellant.
Y.S., in pro. per., for Defendant and Appellant. Joseph B., in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from postjudgment orders of the Superior Court of Los Angeles County, Super. Ct. No. 20STPT02508 Bradley S. Phillips, Judge.
Y.S., in pro. per., for Defendant and Appellant.
Joseph B., in pro. per., for Plaintiff and Respondent.
MORI, J.
Defendant and appellant Y.S. (mother) appeals postjudgment orders concerning conditions under which plaintiff and respondent Joseph B. (father) may spend time with their child, G.B. Mother contends: (1) the family court erred by denying her request to reinstate father's alcohol testing; (2) the court should not have granted father's request to have G.B. on his yacht on the condition he not consume alcohol; and (3) the court abused its discretion by sanctioning mother $1,000 for attempting to relitigate father's duty to continue alcohol testing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father are the parents of G.B. (born in November 2017). They were never married to each other. Despite separating shortly after G.B.'s birth, mother and father continued to live together through 2020. In October 2020, father filed a petition to determine parental relationship over G.B., and following mediation, the parties submitted a stipulated judgment concerning custody and a parenting plan. The stipulated judgment provided both parents with joint legal and physical custody of G.B., with mother and father trading physical custody every two to three days (i.e., a 2-2-3 custody plan). The trial court signed and filed the stipulated judgment on February 17, 2021.
1. Provisions in the Stipulated Judgment
In the section dedicated to custodial rights and obligations, father agreed to submit to alcohol testing using the Soberlink testing program for a period of six months from the date he moved out of the parties' residence. During that period of testing, father was required to submit alcohol tests "on those days he has custody of [G.B.] as follows: at 7:00 a.m., 2:00 p.m.[,] and 7:00 a.m. the next day." Any test would be deemed "missed" if not performed within one hour of the agreed-upon time. A positive or missed test would result in (1) the immediate termination of father's custodial day; and (2) an extension of the testing period for an additional two months. Father began alcohol testing in February 2021 when the parties moved into separate homes. Under the stipulated judgment, father would be obligated to continue Soberlink testing until August 2021.
The stipulated judgment provided that mother and father would temporarily live in the same residence with joint custodial responsibilities until mother found suitable housing.
2. Mother's Request to Continue Alcohol Testing
On May 17, 2021, mother filed a request to modify the stipulated judgment. She argued that father tested positive for alcohol on April 25 and May 16, 2021, and missed 12 tests between February and May. Under the terms of the stipulated judgment, mother requested 28 months of continued alcohol testing. The family court set the matter for a hearing on June 4, 2021, and in the interim, ordered father to not consume any intoxicants 24 hours prior to or during his custodial time.
As provided in an attached Soberlink report, father's blood alcohol content was .022 on April 25 and .047 on May 16, 2021.
A. Initial Hearing and Order on Mother's Modification Request
At a hearing on June 4, 2021, mother informed the family court that father had tested positive for alcohol on May 30, 2021.Father acknowledged the recent test results and the fact he was "in recovery treatment for alcoholism [with] long periods of absolute sobriety ...." Father also informed the court of his course of treatment, which included seeing a psychiatrist and addiction specialist, and attending Alcoholics Anonymous meetings. As to allegations of missed tests, father stated neither he nor his attorney agreed to testing on any non-custodial days as opposed to testing three times (7:00 a.m., 2:00 p.m., and 9:00 p.m.) on custodial days. The days mother identified for missed tests were all non-custodial days. Mother agreed with father's recitation of the parties' agreement and stated she did not realize the stipulated judgment contained different terms, namely that father had to test at 7:00 a.m. and 2:00 p.m. on custody days, and "7:00 a.m. the next day." Mother agreed to modify the judgment to cover testing three times-7:00 a.m., 2:00 p.m., and 8:00 p.m. instead of 9:00 p.m.-on father's custodial days. Mother then asked the court to restrict father's ability to take G.B. on his yacht. Pending a full hearing on the issue, father agreed to temporarily refrain from having G.B. on his yacht.
On this date, father submitted two positive tests (.029 at 7:58 a.m. and .031 at 8:14 a.m.).
Following the hearing, the family court issued an order directing father to submit to alcohol testing "on the days of his custodial time at 7:00 [a.m.], 2:00 [p.m.], and 8:00 [p.m.]" The court added, "Any positive result on a test taken shall stay [all] custodial time with the minor child, until further order of the [c]ourt." The family court scheduled a second hearing on the matter.
B. Updates on Father's Alcohol Testing
In an August 19, 2021, declaration, father stated that all of his Soberlink tests were negative for alcohol since the last court hearing in June 2021. To prove this, father submitted Soberlink reports showing a total of 218 negative tests between June 1 and August 18, 2021. Father also declared he stopped drinking alcohol altogether while maintaining his treatment. In a letter dated August 17, 2021, the psychiatrist who had treated father since 2011 reported father had been in "full compliance" with all treatment recommendations and consistently tested negative for alcohol. As father was also participating in a 12-step support group and attending weekly psychotherapy, the psychiatrist reported that father's prognosis "in regards to alcohol use disorder, is excellent." Father requested the court reinstate the 2-2-3 custody plan set forth in the judgment. In addition, father agreed to continue alcohol testing on custodial days through December 8, 2021.
Following father's positive alcohol test on May 30, 2021, the court temporarily reduced his custodial time to every other weekend plus one weekday.
In her own declaration filed on August 23, 2021, mother requested continuation of alcohol testing "for an additional year . . . at which point we can re-evaluate its further use." In support, mother attached Soberlink reports confirming 223 compliant tests and zero non-compliant tests between June 1, 2021, and August 20, 2021. On each report, mother inserted a handwritten notation ("Missed Days") for days on which father submitted no alcohol test.
C. Second Hearing and Order on Mother's Modification Request
The second hearing on mother's request for order took place on September 1, 2021. The family court found father had tested negative for alcohol "for quite some period now." In light of the consistent, negative tests, the court stated it was inclined to apply the terms of the stipulated judgment and terminate alcohol testing as of December 2021. In response, mother argued father had missed 14 tests from the date of the prior hearing. After viewing the Soberlink reports itself, the court found mother's assertion was unsubstantiated; there were no missed tests between June 8 and August 18, 2021. As such, the court found no "material change in circumstances" warranting continuation of alcohol testing. In view of the court's tentative ruling, father agreed to submit alcohol testing through December 8, 2021, on the agreed upon times on custodial days to demonstrate his accountability with the court. The court accepted father's proposal. Mother then queried, "[W]hat happens to all the previous violations then?" In response, the court stated it was not "disregarding the prior violations, but we're going to give [father] another chance." In the event of any changed circumstances, mother could raise the matter again with "buil[t] in consequences." The court declined to change the order prohibiting custodial time with G.B. on father's boat.
In orders after hearing filed September 8, 2021, and November 19, 2021, father was directed, as he had agreed, to "continue testing on his custodial days through Soberlink at the following times: 7:00 a.m., 2:00 p.m. and 8:00 p.m. through December 8, 2021, with the other terms not in conflict set forth in the [stipulated judgment]." Mother did not appeal these orders.
3. Additional Requests by Mother to Continue Alcohol Testing
Several months later, on December 8, 2021, mother filed an ex parte application to continue alcohol testing. She argued the order "stopping alcohol testing on December 8, 2021," would jeopardize the safety of G.B. Under the terms of the stipulated judgment, mother also argued father was required to submit alcohol testing for 62 additional months. Mother attached Soberlink reports showing fully compliant tests (and no non-compliant tests) for the month of November and first week of December.
As before, mother made similar handwritten notations on each report.
In his response, father argued the reports showed he consistently tested negative for alcohol since the June 2021 hearing. As was previously the case, the days mother identified for missed tests were non-custodial days.
By minute order, the family court denied mother's ex parte request, finding father had submitted over 175 negative tests since September 2021 with "not a single positive test."
In another request for order filed December 15, 2021, mother reasserted the same arguments to extend father's alcohol testing. In opposition, father submitted reports showing full compliance with testing during the previously ordered period (September and December 2021) and extending into his own period of voluntary testing between January and March 2022.
4. Father's Requests to Change Custody and Impose Sanctions
In March and April 2022, father filed requests for orders permitting G.B. on his yacht and imposing $5,591.95 in sanctions against mother for attempting to relitigate alcohol testing. Father discussed his experience and certification in boating and scuba diving and verified his yacht was in safe, working condition. Father discussed how the yacht could be used to travel to nearby islands such as Catalina or to hunt lobster. He argued that G.B. enjoyed being on the yacht prior to the parties' separation. In addition, father argued mother's requests for orders were abusive within the meaning of Code of Civil Procedure section 128.7 and Family Code section 271.
Mother opposed both requests and requested sanctions against father for filing his requests for orders in bad faith.
5. Hearing and Order on Parents' Requests
On July 11, 2022, the family court held a joint hearing on the requests for orders filed by mother and father. Addressing mother's modification request first, the court found no violations of alcohol testing by father between December 2021 and the hearing date, including the period father voluntarily subjected himself to testing. In reply, mother argued that father was an admitted alcoholic with verified relapses in May 2020 and April 2021. Mother then requested the court "infer" from prior orders the requirement that father continue to test on any days he had custody of G.B. The court declined to make the requested inference and disagreed with mother it had previously "overlooked" father's missed tests.
Following argument by father, the family court denied mother's request to reinstate alcohol testing, finding no evidence demonstrating a material violation of the prior order. In so ruling, the court found mother's testimony about the Soberlink reports lacking in foundation and based on hearsay.
Proceeding to father's requests, the family court found mother violated Code of Civil Procedure section 128.7 by attempting to relitigate alcohol testing without admissible evidence. After hearing argument by father, who requested $6,000 in sanctions, and mother, who when questioned by the court stated she received $1,833 in total income from child support, the court ordered mother to pay father $1,000 in sanctions. The sanctions could be paid "in installments of $100 a week for . . . [10] weeks, . . ." making them easier to pay. The court then granted father's request to spend custodial time with G.B. on his yacht provided father not consume alcohol within six hours before or during their time together on the yacht. The court rejected mother's argument that father previously used the yacht for binge drinking and partying. Mother timely appealed.
DISCUSSION
1. Standards and Principles of Appellate Review
We review a family court's postjudgment custody orders and orders imposing sanctions for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro); Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 501 (Anne H).) "An abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we disagree with the trial court's determination, we uphold the determination so long as it is reasonable. [Citation.] We do not reverse unless a trial court's determination is arbitrary, capricious, or patently absurd." (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1163.) "'"Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.'"' [Citation.]" (Anne H., supra, at p. 501.)
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) To demonstrate error, an appellant must "present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citations.] Hence, conclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408 (S.C.).) Litigants are "not exempt from the foregoing rules because [they are] representing [themselves] in propia persona." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu).)
2. The Court Did Not Abuse Its Discretion When Ruling on Parents' Modification Requests
Mother contends the court abused its discretion by failing to consider G.B.'s best interests when (1) denying her request to continue father's alcohol testing and (2) granting father's request to have G.B. on his yacht. We disagree with these contentions.
A. Governing Law
Family Code section 3087 authorizes a parent to request modification of a final custody order "if it is shown that the best interest of the child requires modification or termination of the order." This statute furthers California's "'overarching concern [which] is the best interest of the child.' (Montenegro[, supra,] 26 Cal.4th [at p.] 249.)" (In re Marriage of Brown &Yana (2006) 37 Cal.4th 947, 955 (Brown & Yana).)
Subsequent unspecified references to statutes are to the Family Code.
When making a custody determination or modification, the family court must consider, among other factors, the child's health, safety, and welfare; the nature and amount of contact with the child's parents; ensuring frequent and continuing parental contact; and the habitual or continual abuse of alcohol by either parent. (§§ 3011, subds. (a)(1), (a)(3), (a)(4), 3020, subd. (b), 3040, subd. (a)(1).)
Prior to considering any allegation of alcohol abuse, "the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, . . . medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services." (§ 3011, subd. (a)(4).) And while the family court may order any person to undergo testing for alcohol, it must make a "determination based upon preponderance of evidence that there is . . . the habitual or continual abuse of alcohol by the parent, ...." (§ 3041.5.) Upon such finding, when fashioning any order for alcohol testing, the court must order "the least intrusive method of testing" and must not consider any positive test result as grounds for an adverse custody decision. (Ibid.)
Section 3041.5 was enacted out of constitutional concerns inherent in governmentally compelled drug and alcohol testing. (Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1189; see Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 268 [drug testing has never been sanctioned without "first subjecting the . . . practice to a close assessment of the individual's legitimate expectation of privacy, the character of the intrusion, the nature and immediacy of the governmental concern at issue, and the efficacy of drug testing in meeting the governmental concern"].) Beyond these constitutional concerns, the Legislature also considered the danger that "litigation over testing and the results of such testing might [ ] detract from the main mission of the court in determining the best interest of the child." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1108 (2003-2004 Reg. Sess.) as amended May 6, 2003.)
B. The Order Denying Mother's Request to Reinstate Alcohol Testing
Mother does not establish the trial court abused its discretion when it denied her request to continue alcohol testing. As a threshold matter, mother's argument for alcohol testing is based in significant part on allegations that father engaged in alcohol-related misconduct in the past. Many of the allegations appear to involve events that occurred more than two years ago. Mother does not, however, provide record citations to facts supporting these allegations in the lengthy appellate record. Absent legal analysis with citations to facts in the record supporting her claims of error, mother has forfeited her arguments on appeal. (S.C., supra, 138 Cal.App.4th at p. 408; see Nwosu, supra, 122 Cal.App.4th at p. 1246 ["'The appellate court is not required to search the record on its own seeking error'"].)
Considering mother's arguments on the merits, we find no abuse in the trial court's discretion. To begin, the September and November 2021 orders terminated father's alcohol testing effective December 8, 2021. As mother never timely appealed from these orders, mother cannot now challenge them in this appeal. (See Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 304; Code Civ. Proc., § 906 [appellate courts may not "review any decision or order from which an appeal might have been taken"].) Both orders finalized the termination date for father's alcohol testing.
Once the termination date ended, mother's subsequent request to "continue" alcohol testing was subject to section 3041.5. (See Heidi S., supra, 1 Cal.App.5th at pp. 1168-1170 ["before ordering mother to submit to new drug testing, the family court had to comply with the requirements in . . . section 3041.5"].) Before issuing any order for alcohol testing under that statute, the family court was dutybound to make "a judicial determination based upon a preponderance of evidence that there is the . . . habitual or continual abuse of alcohol by the parent...." (§ 3041.5.)
When discussing mother's modification request, the family court recognized father's history of alcoholism and the steps he took to ensure he had a system in place to address the possibility of a relapse. Father had also consistently-and for a period, voluntarily-tested negative for alcohol for more than one year. The court found mother offered no new or recent evidence of father's abuse (or use) of alcohol. Instead, the court found her testimony and arguments on Soberlink reports lacking in foundation and based on hearsay. The handwritten notations mother made about missed tests were supported by no evidence father was required to test on the particular days she identified.
These findings constitute a finding by the family court under section 3041.5 that there was insufficient evidence of habitual or continuing alcohol abuse. (See Heidi S., supra, 1 Cal.App.5th at pp. 1170-1171 [findings of fact issued by family court meet the "'judicial determination'" required under section 3041.5].)
We understand mother's concern that father remains at risk of relapse. (See In re Morganti (2012) 204 Cal.App.4th 904, 921 [the risk a former drug or alcohol abuser will relapse "can never be entirely eliminated"].) However, father displayed a sustained commitment to his sobriety through professional treatment and submitting negative alcohol tests. When assessing the best interests of G.B., the family court did not find evidence of continued alcohol abuse that would interfere with the child's ability to benefit from frequent and continuing contact with father. (See §§ 3011, subd. (a), 3020, subds. (a)-(c), 3041.5; see also Ramsden v. Peterson (2022) 76 Cal.App.5th 339, 345 [appellate courts may infer best interest determination from evidence and argument before the family court].) As the family court was best positioned to weigh the facts when issuing its ruling, we do not find its determination to be arbitrary or capricious. (See Heidi S., supra, 1 Cal.App.5th at p. 1163; Niko v. Foreman (2006) 144 Cal.App.4th 344, 365.)
C. The Order Permitting G.B. on Father's Yacht
Mother next contends the trial court abused its discretion by granting father's request to allow G.B. on his yacht during custodial time, as long as father does not consume alcohol. We disagree.
Our Supreme Court has articulated a variation on the best interest standard, known as the changed circumstance rule, which the family court must apply when a parent seeks modification of a final custody arrangement. (Montenegro, supra, 26 Cal.4th at p. 256, relying on Burchard v. Garay (1986) 42 Cal.3d 531, 535 (Burchard); accord, In re Marriage of Burgess (1996) 13 Cal.4th 25, 37 [changed circumstances rule applies "in the case of a custodial parent's relocation, as in any other proceeding to alter existing custody arrangements"].)
Contrary to mother's suggestion, the changed circumstances rule "'is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.' (Burchard, 42 Cal.3d at p. 535.)" (Montenegro, supra, 26 Cal.4th at p. 256.) To meet the burden of establishing a change in circumstances, "the moving party bears the burden of persuasion to show how the circumstances have changed and why the modification is in the children's best interests." (In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089; accord, Brown & Yana, supra, 37 Cal.4th at p. 955.)
Mother has not met her burden of affirmatively establishing error in the family court's order. The family court addressed father's request and supporting evidence, which showed a change of circumstances-father's continued sobriety and ability to safely navigate his yacht-and how that change would benefit G.B. by spending family time on father's yacht. (See Burgess, supra, 13 Cal.4th at p. 38 ["[t]he dispositive issue is, accordingly, not whether relocating [custodial time] is itself 'essential or expedient' either for the welfare of the custodial parent or the child, but whether a change in custody is '"essential or expedient for the welfare of the child"'"].) Best positioned to weigh the evidence and credibility of the parties, the family court found father's evidence more persuasive when finding in his favor. (See Heidi S., supra, 1 Cal.App.5th at p. 1163.) We discern no abuse of discretion in the court's order.
3. Mother Forfeited Her Argument Challenging the Sanctions Order
Where a self-represented litigant files a meritless motion or a motion for an improper purpose, the trial court may impose monetary sanctions to deter future abuse of the litigation process. (Code Civ. Proc., § 128.7, subds. (a), (b)(1), (b)(2), (c); Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) We review the challenged sanctions order for abuse of discretion. (Id. at p. 441.)
Mother challenges the order imposing $1,000 in sanctions against her for attempting to relitigate father's duty to continue alcohol testing. In doing so, mother has provided a short argument in her opening brief without any substantive legal analysis or citation to legal authority. In addition, mother failed to provide any citation to the record in which she filed a written opposition or objection to father's request for sanctions. She identifies no testimony or documentary evidence provided to the family court to substantiate her financial circumstances or inability to pay a sanctions order. Mother has not provided sufficient evidence or argument the sanctions imposed against her ($1,000 subject to weekly $100 payments) were unreasonable or arbitrary.
As such, mother has forfeited her contention and, alternatively, not carried her burden of establishing an abuse of discretion on appeal. (S.C., supra, 138 Cal.App.4th at pp. 406407; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1247-1248; see Cal. Rules of Court, rule 8.204(a)(1).)
DISPOSITION
The postjudgment orders are affirmed. The parties shall bear their own costs on appeal.
We concur:
CURREY, P. J. COLLINS, J.