Opinion
A155982
11-27-2019
KENDRA B., Plaintiff and Respondent, v. WENDELL C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 17FL000419)
In this child custody dispute between defendant Wendell C. and plaintiff Kendra B., defendant appeals from an order awarding plaintiff sole legal and physical custody of E.C., the parties' daughter, and denying defendant visitation. We affirm.
I. BACKGROUND
When E.C. was approximately eight months old, plaintiff filed a petition to establish a parental relationship and a request for child custody and visitation (case No. 17FL000419). On the same day in a separate case, plaintiff filed a request for a restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) (DVPA) (case No. 17FL000422). Defendant sought an order for custody and for visitation in the DVPA case.
All further statutory references are to the Family Code unless otherwise stated.
In her statement supporting her request for a DVPA restraining order, plaintiff stated that defendant had a drug problem, his paranoia had recently increased, he was "verbally abusive," and he was "quick to fly into a rage." She recounted that, a couple of nights before she filed her request for a DVPA restraining order, defendant woke her up in the middle of the night and accused her of cheating on him. He played her a recording that he secretly made of her at home, claiming it proved her unfaithfulness. However, plaintiff said the recording only recorded her performing household chores. The next day, defendant came home visibly angry and told plaintiff that an enhancement of the recording contained proof of her infidelity. The two listened to the recording again, but plaintiff told defendant she did not hear anything different from the night before. Defendant became angry and slammed his speaker into a desk. Plaintiff ran to get E.C. and tried to leave the house through a sliding glass door. She said that defendant stopped her by grabbing her face and pulling the baby away, and, afterward, she had blood and bruises on her face. She called the police, and defendant was arrested.
The trial court heard testimony in the DVPA case and the child custody case on October 17, 2018. No transcript was made of plaintiff's testimony or of the testimony of defendant's first witness, the parties' child visitation supervisor, because the parties did not retain a court reporter for the hearing's morning session and the court does not provide a court reporter in family law matters. For the afternoon session, plaintiff retained a court reporter, and defendant's testimony is part of the record.
After hearing the evidence, the trial court granted plaintiff sole physical and legal custody of E.C. and denied defendant visitation; it also granted plaintiff a DVPA restraining order for five years. Defendant filed a notice of appeal from the judgment in the child custody matter (case No. 17FL000419).
Defendant's notice of appeal does not indicate an appeal from the court's order granting a DVPA restraining order in case No. 17FL000422.
II. DISCUSSION
A. Legal Standards
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Diaz).) The court has "the widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd. (c).) When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (§ 3011.)
The standard of review for custody and visitation orders is abuse of discretion. (Diaz, supra, 26 Cal.4th at p. 255.) We therefore uphold the trial court's ruling if it is correct on any basis, regardless of whether that basis was actually invoked. (Ibid.) We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment, to determine whether there is any substantial evidence, contradicted or uncontradicted, that supports the trial court's finding. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) B. Analysis
Defendant's brief contains rambling accusations, lacks citations to the record, and is largely unintelligible. As best we can discern, he raises a substantial evidence challenge to the factual findings supporting the trial court's custody and visitation order, and he appears to claim that his guardian ad litem provided ineffective assistance of counsel. Defendant's challenges are forfeited due to his failure to adhere to established rules of court. (See Cal. Rules of Court, rule 8.204(a)(1)(B), (C) [each point in an appellate brief must be stated under a separate heading and must be supported by argument and citation to authority and the record]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [a defendant challenging the sufficiency of the evidence is required to state in the opening brief all evidence pertinent to that point].) But his challenges also fail on the merits.
Defendant makes numerous accusations against the Napa judiciary, district attorney, sheriff, and police department related to criminal charges brought against him. We do not address these as his criminal case is not at issue.
The trial court found that it was in E.C.'s best interest to award plaintiff sole legal and physical custody and to deny defendant visitation. Two main justifications support this order: Defendant had pending criminal charges and serious mental health problems, and defendant had committed an act of domestic violence with E.C. present. With respect to defendant's mental health problems, the court reasoned that defendant was on a Penal Code section 1368 commitment, he had been found mentally incompetent to stand trial, and it was not clear if or when he would be restored to competency or what would happen with his criminal case. Additionally, the court credited plaintiff's testimony that defendant heard imaginary things on the secret recording he made of her and that defendant wrote notes stating, "I need help; I have something in my head and I can't stop it; these ideas, I don't know where they came from."
With respect to the domestic violence incident, defendant testified that he had never been verbally or physically abusive to a woman. He said that plaintiff was emotional on the night of the incident, she grabbed their sleeping baby in the midst of a discussion on a personal matter, and she headed for a sliding back door that led to a four-foot drop. He testified that he made physical contact with plaintiff's face when she got to the door only to stop her from falling and to keep E.C. safe. The record does not contain plaintiff's testimony regarding the incident; however, in making its factual findings, the trial court expressly found plaintiff credible, including her testimony regarding the act of domestic violence and the injuries defendant inflicted upon her. In contrast, the court found that defendant's testimony lacked credibility.
We presume plaintiff's testimony and the trial exhibits that are not part of the record on appeal support the trial court's findings. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [a judgment is ordinarily presumed to be correct and the burden is on an defendant to demonstrate, on the basis of the record, that the trial court committed an error justifying reversal]; see also Estate of Fain (1999) 75 Cal.App.4th 973, 992 [it is presumed that the unreported trial testimony would demonstrate the absence of error].) Thus, the trial court did not abuse its discretion in awarding plaintiff sole legal and physical custody of her daughter and denying defendant visitation.
Next, defendant accuses his guardian ad litem of numerous errors in litigation strategy, including failing to call unidentified witnesses, failing to use case law suggested by defendant, and failing to impeach plaintiff. To the extent that defendant seeks to assert an ineffective assistance of counsel claim, such a contention is not well taken, as the general rule is that there is no right to effective counsel in civil cases. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116; Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978 ["we are aware of no authority, and counsel has cited us none, which would permit a trial or appellate court to grant a retrial to an unsuccessful litigant in a civil case, with or without punitive damages, on the grounds of incompetency of counsel."].)
We note that a guardian ad litem generally does not have an attorney-client relationship with his or her ward. (McClintock v. West (2013) 219 Cal.App.4th 540, 555.) --------
To the extent defendant argues that his guardian ad litem's actions exceeded his powers and prejudiced defendant's fundamental rights, this challenge also fails. A guardian ad litem's purpose is to protect the rights of the incompetent person, and he or she has the right to control the litigation on behalf of the incompetent person. (Cf. De Los Santos v. Superior Court (1980) 27 Cal.3d 677, 683-684.) A guardian ad litem has the power to control the procedural steps incident to the conduct of the litigation, and, with court approval, to make stipulations or concessions that are binding on the incompetent person, provided his or her actions are not prejudicial to the latter's interests. (Id. at p. 684.) Defendant's guardian ad litem called the child visitation supervisor assigned to this matter as a witness; afforded defendant the opportunity to testify as he desired; and the trial court, not the guardian ad litem, declined to accept defendant's case law during his testimony. Further, on direct examination, defendant read from plaintiff's statement to police in an effort to impeach her testimony. Importantly, defendant does not establish that any act of his guardian ad litem was prejudicial or taken without defendant's interests in mind.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.