Opinion
C075673
06-30-2017
PAUL KWON, Plaintiff and Respondent, v. BARBARA LANDESMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12FL02826)
Defendant Barbara Landesman (Mother) appeals from a custody order awarding joint legal custody to both parents and sole physical custody to plaintiff Paul Kwon (Father) as long as Mother continues to reside in Toronto, Canada.
On appeal, Mother contends: (1) the trial court erred in failing to consider whether Father rebutted the Family Code section 3044 presumption that awarding custody to a parent who has committed domestic violence against the other parent would be detrimental to the best interests of the children; (2) the trial court abused its discretion in failing to correctly apply the section 3044 presumption to its findings of fact; (3) the court erred in placing the legal burden on Mother to show that custody factors favored relocation of the children from Sacramento to Toronto; (4) the court abused its discretion in awarding Father primary physical custody and ordering the children to move back to Sacramento from Toronto; (5) the court erred in failing to consider Father's activities with prostitutes as a safety factor related to the best interest of the children; and (6) the court denied Mother due process by citing research outside of the record in its decision.
Undesignated statutory references are to the Family Code in effect at the time of the trial.
While this argument has a separate issue heading in Mother's opening brief, it repeats the arguments developed under her first issue heading. Accordingly, we address these arguments together in our analysis post.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pretrial Proceedings
Mother and Father were married for approximately three and a half years and have two children, J.L-K. (born in May 2009) and E.L-K. (born in February 2011). On April 30, 2012, Father filed a petition for legal separation, requesting joint legal and physical custody of the two children and return of the children to their home in Sacramento from Toronto. At that time, Mother was staying in Toronto with her relatives and the children. In his petition, Father asked that Mother be ordered to return the children to their home in Sacramento, where the family had resided since 2009. On May 1, 2012, Father appeared for an ex parte hearing with a request for order (RFO), asking the court to order Mother to return the children to Sacramento. Father averred that Mother and the children were scheduled to return on April 15, and Mother was at that time denying Father contact with the children and refusing to return. The court set the matter for hearing on shortened time.
Mother responded to the RFO with a declaration, stating that she did not intend to return to California because she felt the children would be unsafe with Father due to his infidelity with prostitutes, and she requested that Father undergo a psychological evaluation. Among other allegations, Mother declared that Father "tackled [her] to the ground" on April 15, 2012, in order to get his phone back, causing injuries to her knee and arm. She alleged that this incident occurred in front of their children. Father filed a reply declaration; he denied assaulting Mother and claimed he "engaged in the minimum contact necessary to retrieve [his] cell phone" because Mother had taken his phone and refused to return it.
On June 20, 2012, Mother filed a request for marital dissolution, seeking sole legal and physical custody of the children with supervised visitation for Father. After child custody mediation, Mother and Father entered into an interim stipulation, agreeing that the children would remain in Mother's care in Toronto and Father would have monthly supervised visitation with the children in Toronto and complete a psychological evaluation. The children remained in Mother's custody pursuant to this agreement for 16 months, pending trial on the bifurcated issue of custody.
Prior to trial, Mother filed her statement of issues, contentions, and proposed disposition of the case. In this statement, she requested that she retain primary physical custody of the children and contended this custody arrangement would be in the best interests of the children, citing section 3011. Mother contended that Father's psychological evaluation with Dr. Kathryn Jaeger, Ph.D., was inadequate because, while Dr. Jaeger concluded the children were not at risk in Father's care, she did not explicitly "conclude whether Father is or is not a sexual addict." Mother also contended that the private child custody mediator, Penny Hancock, recommended that she retain primary physical custody. Mother did not discuss the April 15, 2012, incident or other domestic violence in her statement, nor did she identify as an issue the section 3044 custodial presumption against persons perpetrating domestic violence.
Father also filed a statement of issues, contentions, and proposed disposition of case. In his statement, he requested joint legal custody with Mother and primary physical custody of the children should Mother elect not to return to Sacramento. He asserted he had a "greater ability and willingness to foster a close and positive relationship between the children and the non-custodial parent." He contended that Hancock's recommendation that the children remain with Mother in Toronto was based, in part, on her concerns that "Mother [would] not support the children's relationship with their father and is openly hostile to such a relationship, [which] actually support a conclusion that the children should be in Father's custody."
Trial Proceedings
On the first day of trial, Mother filed a trial brief. She contended that she was the primary caregiver for the children and that she should be the primary custodian under the " 'best interests' standard." Mother did not mention the April 15, 2012, incident or raise section 3044 as a basis for awarding her primary custody in her brief.
Father did not file a trial brief but filed a motion in limine to exclude any lay or expert testimony regarding Father's alleged " '[s]exual [a]ddiction' " disorder or "on the subject of [Father's] alleged unfaithfulness or sexual conduct during the marriage, to which the children were not witnesses or in which they were not involved." The court ruled that the issue of excluding an expert on sexual addition was moot because Mother did not call such an expert, and the court reserved any ruling on the admissibility of other evidence regarding Father's sexual conduct.
Leo Chen, M.D., a neurologist and Father's coworker, testified that he observed both Mother and Father interact with the children on several occasions. On one occasion, prior to the separation, Dr. Chen and his family were with Mother and Father and their children for half a day at Fairytale Town in Sacramento. Dr. Chen observed that Father played with the elder child, J.L-K., while Mother attended to the younger child, E.L-K. He observed both parents interact normally with the children and noted that neither deferred parental responsibility to the other. While Father mostly attended to J.L-K. during this outing, he also changed E.L-K.'s diaper. On the other two occasions Dr. Chen spent time with the family, Mother and Father were both very interactive with the children. He never observed either parent behaving inappropriately with the children.
Dr. Chen further testified that because he shared an office with Father, he had occasion to observe more than 20 of Father's Skype sessions with the children while they were living in Toronto. He characterized these Skype sessions as "very poor"; while initially, the children were interested in the technology and talking to Father, as time went on, the children were frequently off-camera in another room playing with Mother during Father's scheduled Skype sessions. When asked if Mother supported the Skype sessions, Dr. Chen testified that, based on his experience using Skype with his own children, "it really takes a very active act of chasing them around with the camera to get them to really . . . act with the people on the other side, and in that sense I don't think [Mother] was trying to do that."
Suketu Khandhar, M.D., another colleague of Father, testified that he had observed Mother and Father together with the children on about six occasions. He described Father as "very hands-on," explaining that Father would hold, feed, and burp E.L-K. He found both Mother and Father to be loving parents, but Father was more calm when the children were upset whereas Mother was more flustered. He observed the children with Father on one occasion after the separation; both children were engaged and clung close to Father. He also observed Father attempting to Skype with his children; both cameras were on but the children were not in the room with the camera and could only be heard in the background.
Dr. Khandhar's wife, Dr. Hetal Lakhani, testified that she had also spent time socializing with Mother, Father, and their children. She described Father as "very involved with the children" and "very vigilant, very watchful, and very careful with the children." She described Mother as "more anxious about the children" and more deferential to Father but said that she "never felt they were unsafe around [Mother] either."
Teagil Kwon, Ph.D., a retired child and adolescent psychiatrist and the paternal grandfather of the children, testified that during his multiple visits with the family, he observed that Father was very interactive with both children, and that J.L-K. in particular was strongly attached to Father. There was a roughly equal division of responsibilities between the parents. After the children went to Toronto, Dr. Kwon would visit the children monthly with Father in Toronto. During these visits, the children were very happy and excited to see Father. Dr. Kwon testified that he never observed either parent behave inappropriately with the children. However, he testified that after the separation, Mother ceased sending him videos and pictures of the children, as she had done before.
None of these witnesses indicated they observed acts of physical or emotional abuse of any sort by Father against Mother.
James Brentt, Ph.D., MFT, testified that he provided individual therapy to Father, beginning in April 2012 and ongoing as of the time of trial. He testified that Father consistently attended therapy sessions. He initially diagnosed Father with adjustment disorder with mixed mood disturbance because Father was somewhat depressed and anxious about his marital dissolution and loss of contact with his children. He described this disorder as a "transitional" state that "reflect[ed] a response to a particular situation." Dr. Brentt testified that this condition did not affect Father's ability to parent or endanger the children. He opined that the children would not be endangered by Father's sexual practices. Dr. Brentt specifically evaluated Father for addictive behavior, and Father did not exhibit any clinical symptoms of addiction, such as compulsive behavior or difficulty with impulse control. Dr. Brentt also testified that he was still seeing Father about once a month, but the therapy was tapering off because Father was adjusting well and no longer had the adjustment disorder diagnosis as of the time of trial.
Dr. Jaeger testified that she conducted a psychological evaluation of Father at Mother's request, pursuant to the interim stipulation. She conducted multiple in-person examinations of Father and multiple psychological tests; she also interviewed Mother, Dr. Brentt, and the parents' former joint marital therapist as a part of her evaluation. Dr. Jaeger testified that her task was to "determine whether or not [Father's] involvement with prostitutes and pornography would pose a danger with children, and also set a possible diagnosis and treatment recommendation." She concluded that Father had no issues with respect to parental competency and was very motivated to be a parent. She found that Father was shy and lacked self-confidence in social situations, but she did not find that Father had any mental health or personality disorders. She did not find that Father had any issues that would affect his parental competency or suggesting compulsive behaviors. Dr. Jaeger concluded that Father did not pose a danger to his children and that he never exposed them to pornography or prostitutes. She noted that Mother did not think that Father would physically abuse the children. Dr. Jaeger consulted three experts on sexual addiction in reaching her conclusions. She also testified that she agreed with Dr. Brentt's diagnosis of adjustment disorder and his treatment plan.
Penny Hancock, a licensed marriage and family therapist and the mediator in this case, testified that the mediation process began in June 2012, resulting in the interim stipulation. She observed that both parents interacted well with the children and were both very involved in caring for the children. She testified that at the beginning of mediation, Mother expressed concern about Father's mental health and that he had a "serious addiction." Father agreed to the psychological evaluation with Dr. Jaeger as part of the interim agreement. Hancock hoped that Mother would be more amenable to agree to shared custody after the evaluation to "put her at ease" that there was no risk to the children. However, the report did not change Mother's position; she continued to request that Father have only supervised visitation with the children. Mother continued to express concern that Father would expose the children to prostitutes and pornography, based on her belief that Father had a sexual addiction that would escalate; but she did not provide any evidence that this ever occurred in the past. Mother also expressed concern that Father may have molested the children. Hancock did not have any indication that Father might abuse the children. Hancock noted that Mother had done extensive online research of sexual addiction and consulted people that held themselves out as experts in this area, and this "only amped up her worry." At one point during the mediation, Mother said that she was seeing a therapist named Dr. Omar Minwalla. However, when Hancock called Dr. Minwalla, she found out that he was not treating Mother but was consulting her about Father's purported sexual addiction. Dr. Minwalla indicated that he had never met or examined Father.
Hancock testified that Mother claimed that Father lacked empathy and parenting competency. Hancock's observations of Father and review of his psychological evaluation did not support these claims. Hancock discussed reports from Dr. Jaeger and Dr. Brentt with Mother in an effort to alleviate her concerns. Mother did not accept either Hancock or the doctors' opinions that Father was healthy and not a risk to the children. While initially, Hancock understood Mother's concerns, she testified that Mother's ongoing concerns after the multiple evaluations were unreasonable. Hancock also testified that Mother represented that she would "lose her job" if she had to return to California. As to this statement, Hancock further testified it would raise a doubt in her mind about Mother's veracity if she discovered that Mother had the same employer and performed the same job from home in Toronto as she did in Sacramento.
Hancock further testified that during the mediation process, she asked each parent to develop four custodial plans based on different scenarios: (1) both parents living in Toronto; (2) both parents living in Sacramento; (3) children primarily in Mother's custody in Toronto; and (4) children primarily in Father's custody in Sacramento. Father complied with Hancock's instructions and provided four distinct custody plans. However, Mother proposed only one plan, namely, that the children would live with her as the primary custodian in Toronto. At the end of mediation, Hancock found that Mother would still not support unsupervised visitation with Father. Father was most willing of the two parents to support the relationship between the children and the other parent. Hancock testified that she ultimately recommended that Mother have primary custody in Toronto for three reasons: (1) because there were delays in mediation, by the time the process was complete, the children had already lived in Toronto with Mother for eighteen months, and Hancock believed this arrangement would provide more stability for the children; (2) Mother worked from home more frequently than Father, and while she had a full-time nanny, she was more accessible to the children during the day; and (3) Mother had family support in Toronto whereas Father's family lived farther away from him. She testified that if both parents were living in the same area, she would recommend shared custody because both parent-child bonds were very strong.
Mother testified that she worked remotely as a self-employed contractor for a company called Impulse, monitoring patients' nervous systems during neurosurgery. She acknowledged that she performed the same work for Impulse while living in Toronto as she did in Sacramento and that she could work in either location. When Mother was working in Sacramento and living with Father there, they had a full-time nanny to take care of the children while she worked. Mother testified that she agreed during the mediation with Hancock to provide bi-weekly updates about the children to Father but had not done so for three months.
Mother testified that on April 15, 2012, she and Father had an altercation, and she suffered injuries that she attributes to Father. She testified they were in a park. At the time, they were in a "phase of disclosure" where she wanted full honesty and Father had showed her his cell phone. Father "disclosed he had sought a lawyer." When Mother questioned him about why he had done so, Father "did not wish to answer any more questions." According to Mother, the blanket fell off the children who were situated in a stroller and she asked Father to pick it up. "He did, and he started to run toward me. I started to run away. He jumped me. I landed on the ground on my left side. I was just screaming 'Help. Get off.' " Mother testified that the oldest child became "hysterical" and screamed, " 'Daddy, stop.' " Then Father "peeled the phone away and jumped off" her and left. She called the police. Mother produced photographs of her injuries she attributes to this incident, depicting bruising on her left knee and left elbow.
On direct examination, Mother did not explain how Father showed her his cell phone or how it came to be in her hand. On cross-examination, Mother denied taking the phone from him and said that Father gave it to her. She then admitted the phone was in her pocket when Father tried to get it back. She did not explain how the phone got in her pocket or why it was there. She twice denied that Father asked her to give the phone back. According to Mother, Father just refused to answer any more questions and jumped her, although she thought he asked for the phone while he was jumping her.
Specifically, Mother testified as follows on cross-examination:
"Q You took the phone, without his permission, put it in your pocket, and ran away; isn't that true?
A No, not true at all. [Father] gave me the phone.
Q Did you have the phone in your pocket?
A I did.
Q Did he ask for it back?
A No. He jumped me.
Q You say he didn't say a word before he just jumped you?
A No. He said he refused to answer anymore questions.
Q Didn't he ask for his phone back?
A No. He jumped me.
Q Didn't he ask for his phone back?
A I believe in the -- while he was jumping me, he said he wanted his phone back, and I was just screaming for help."
Father, also a neurologist, testified that he, Mother, and the children had traveled to Toronto together. Father returned from the trip early, and during this time, Mother found out about his infidelity. When he returned to Toronto in April 2012 to bring his family home, Mother only allowed him to see the children for 30 minutes on the first day and 10 to 15 minutes on the second day.
On the second day after his return, April 15, Father met with Mother in a park. At the time they met, he was scheduled to leave for a return flight to Sacramento in about three hours. Mother confronted him about his seeing prostitutes and told him that he could only see the children if he allowed her to see his bank records, credit card statements, and phone records. Father testified that he allowed Mother to look at his phone while he held on to it, but she took it out of his hand and refused to return it. He asked her to give him his phone back repeatedly, and she told him that she was going to scream. She put the phone in her left pant pocket and she started to run back to her mother's house. Father testified that he caught up with Mother, stepped in front of Mother to block her flight, and grabbed the phone from her pocket. He testified that as she was trying to hold onto the phone and he was trying to pull it away, she fell backward to the ground. Mother went back to her mother's house and Father then went to the airport as scheduled. After he cleared customs, he received a call from the Toronto police. The police could not pass through customs and told him they would notify the authorities in Sacramento. Father then voluntarily went back through customs to answer questions. After he talked to the police, he was not arrested or detained. He missed his flight, but flew back to Sacramento the next day.
Father testified that prior to the interim stipulation, he wanted to have Skype sessions with the children twice daily. However, Mother would not agree to that and wanted Father to have Skype sessions four times per week, which Father agreed to in the interim stipulation. In November 2012, Father e-mailed Mother about a planned visit for the weekend of January 19, 2013, and he requested to schedule a visit with the children that weekend. Mother responded that he could not see the children at that time because she was planning to take a vacation with the children that month. Father was able to see the children with the assistance of his attorney.
Father testified that Mother came to Sacramento several times after the separation and before a planned trip in June 2012. Father asked her to bring the children with her so that he could visit with them, but she refused to do so. Mother did bring the children back to California in March 2013 so that Hancock could observe the parent-child interactions. Father asked that he be able to see the children ahead of the observation session, but Mother declined. Mother agreed to allow Father to see the children after the observation session; however, Mother would not turn over the children to Father until she confirmed an airline itinerary for Father and the children's trip back to Toronto.
Father testified that his ideal custody plan was to have the children live primarily with him in Sacramento and live with Mother during the summers. He said he would want the children to spend a weekend or an extended weekend with Mother at least once a month while they were in his custody during the school year, and he would want them to spend a weekend with him at least once a month while they were in her custody during the summer. Father's parents were willing to come to Sacramento to assist him with the transition. He testified that he would want the same custody plan he described in reverse if Mother were to be awarded custody.
The attorneys made brief closing arguments at the conclusion of testimony. They reiterated their client's positions but notably, Mother's counsel did not contend that Father should not have custody of the children because of the alleged domestic violence; nor did counsel raise section 3044 presumption during the closing argument. Indeed, he did not even mention the April 15, 2012, incident. The court took the matter under submission.
Statements of Decision and Custody Order
The trial court issued its first statement of decision on November 25, 2013. Mother filed a request for statement of decision shortly thereafter, which the court treated as objections pursuant to California Rules of Court, rule 3.1590. On December 5, 2013, the court issued an amended statement of decision. Mother then filed objections to amended statement of decision. In this document, Mother raised for the first time the argument that the court did not consider and apply the section 3044 presumption. Thereafter, the court then issued a second amended statement of decision. The court noted that upon reviewing Mother's objections, it would "make[] no further significant modifications to its decision."
Mother did not make her request for statement of decision part of the record on appeal.
In the second amended statement of decision, the court reviewed the evidence in detail. In its summary of the evidence, the court found, inter alia: "An incident, involving domestic violence, occurred. Mother reported the event to the Toronto police and, following his response to a police investigation, he departed Toronto for Sacramento without his wife and the children." (Fn. omitted.) Later, the court stated a finding that "Father imprudently assaulted mother." The court noted, "Neither a conviction nor findings followed. [Father] claims his contact with [Mother] was to retrieve his phone. She claims he knocked her to the ground."
The trial court had written the same finding in its first amended statement of decision.
This brief statement was set forth in a cell within a spreadsheet of the trial court's findings as to the section 3011 best interests of the child considerations. The court had made the same notation in the initial statement of decision and the first amended statement of decision.
The court went on to find, "[W]hile the [F]ather has availed himself of every opportunity to gain insight, maintain and develop his relationship with the children; [M]other, in sharp contrast, rested on past events to persist in an approach, despite cogent and competent evidence, that impaired, or at least delayed, paternal access, paternal collaboration, and paternal parenting frequency with the parties' children." The court found that Mother was a good parent but not "a parent who will foster the other parent's relation with the children."
The court applied the best interest of the child standard under section 3011, as suggested by Mother in her trial brief. In considering the various applicable factors, the court found that five of the factors favored joint custody: the children's health, the children's safety, parental education level, parental physical health, and parental fiscal responsibility.
With respect to the factor of the children's welfare, the court determined that "Father [was] focused on promoting maternal parenting time," whereas Mother unilaterally relocated to another country. Thus, the court determined that this factor disfavored maternal custody and relocation to Toronto.
The court considered the factor of parental abuse under section 3011, subdivision (b), and noted in a footnote that this consideration was "in conjunction with [sections] 3020(a), and 3044(a)." It found that "Father imprudently assaulted [M]other" and this factor disfavored paternal custody and relocation to Toronto.
The court also considered the factor of parental contact with each child and found that while Father was "[a]ffected by geography," he visited his children frequently and consistently. However, the court found that Mother "persisted in concerns that did not promote paternal-children relationship." Thus, the court found that this factor favored joint custody but disfavored maternal relocation to Toronto. The court also noted that while Father sought joint custody, Mother sought sole custody, and found that factor favored joint custody but disfavored maternal relocation to Toronto. With respect to attachment, the court found that the older child, J.L-K., was attached to Father and both children were attached to Mother, favoring joint custody and maternal relocation of the children to Toronto.
Regarding the factor of parental mental health, the court determined that Father had gone through "[t]reatment with no residual therapeutic concern," and "Mother requires counseling." The court determined this factor favored paternal sole custody.
As for familial support, the court found that Father had no family locally in Sacramento, but Mother had local family support in Toronto. This factor, the court ruled, favored maternal custody and relocation to Toronto.
The court also considered the parenting plans of the two parents as another relevant factor and found that Father requested resumption of the children in their environment from two years prior where Mother requested retention of the children in their current known environment. The court determined that this factor favored maternal custody and relocation to Toronto.
Finally, the court considered the factor of parental communication as another relevant factor and found that Father was communicative where Mother had an "evident propensity toward rectitude." The court concluded this factor favored sole custody to Father.
After considering these factors, the court found that while both parents "possess[ed] the capacity to parent," only Father possessed "the present capacity to collaboratively co-parent." The court expressly found that Mother lacked that capacity. The court stated that it "fully comprehend[ed] the etiology of [Mother's] angst" but observed that it was "compelled to examine not the spousal relationship but the parental relationship." By that measure, the court found: Mother "wanting"; "[M]other, notwithstanding her developing original primacy as a parent, subsequently subverted her role to the evident exclusion of [F]ather except on terms as she set forth to effectively limit and impair his parenting time out of original maternal concern but subsequent spousal intransigence"; Mother "continually persisted in various and repeated behaviors that did not promote or further the children's best interest in a paternal-child relationship"; "Mother is a parent who, without individual psychotherapeutic intervention and conjoint co-parenting counseling, will engage in continuing and future behaviors that will frustrate: [¶] i. Co-parenting collaboration in the joint care and supervision of the children, and [¶] ii. Father's interactions with the children, and [¶] iii. Each child's frequent and continuing contact with [F]ather"; Mother was unlikely to "facilitate [Father]'s ability to parent and thereby serve each child's best interests"; and Mother's "attitude must be demonstrably shown to change, as evinced by therapeutic reports and conduct, in any future proceeding before the court may properly consider modifications of further particular significance."
Based on these findings, the court ordered Mother to participate in individual counseling, and upon completion of the individual counseling, ordered both parents to participate in joint co-parenting counseling. The court ordered that the parents would have joint legal custody of the children. The court further ordered that the parents would have joint physical custody with variation depending on whether Mother continued to reside in Toronto or returned to Sacramento. If Mother continued to reside in Toronto, the court ordered Father to have primary physical custody and the children to return to reside with Father in Sacramento, and Mother to have parenting time from the third Friday of each month until the Monday following the fourth Friday of each month, until the oldest child commences kindergarten. This parenting time could be exercised in either Toronto or Sacramento. Additionally, the court awarded Mother five weeks of continuous parenting time during the summer. The court further ordered that, after the oldest child commences kindergarten, Mother would have one weekend of parenting time per month in Sacramento and six continuous weeks during the summer. If Mother returned to reside in Sacramento, the court ordered the parents to share physical custody and exercise an alternating 2-2-3-day schedule until the oldest child commences kindergarten and an alternating 3-4-4-3-day schedule thereafter.
DISCUSSION
I. Rebuttable Presumption Under Section 3044
A. The Parties' Contentions
Relying on section 3044, Mother asserts the trial court erred in awarding joint legal custody and physical custody to Father without a finding that he had rebutted the statutory presumption against an award of custody when there is a finding by a court that one spouse has perpetrated domestic violence within the past five years. Additionally, Mother contends that that the trial court abused its discretion in failing to correctly apply that statutory presumption to its findings of fact. Relying upon the fact that the court found that "Father imprudently assaulted [M]other" in its second amended statement of decision, she contends that was a finding of domestic violence that triggered the presumption under section 3044. Father responds that Mother forfeited her section 3044 argument by failing to raise it in the trial court until her post-trial objections to the second amended statement of decision. We reject Mother's contention.
We note that Mother's assertion the trial court did not apply the presumption in section 3044 is debatable. As we have noted, the trial court indicated in a cell in its best-interests-of-the-child spreadsheet that "Father imprudently assaulted [M]other." This notation was accompanied by a footnote which read, "Family Code sections 3011(b)(2) or 3011(b)(3), in conjunction with 3020(a) and 3044(a)." (Italics added.) The trial court's reference to section 3044, subdivision (a), could be read as an indication the trial court did consider the presumption.
While the trial court used the word "assaulted," it appears that there was a touching here and thus the incident might be more accurately characterized as a battery. "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.) "A battery is any willful and unlawful use of force or violence upon the person of another" and includes any harmful or offensive touching. (Pen. Code, § 242; People v. Dealba (2015) 242 Cal.App.4th 1142, 1149.) " '[T]he least touching' may constitute a battery." (Dealba, at p. 1149.) "An assault is an incipient or inchoate battery; a battery is a consummated assault." (People v. Colantuono (1994) 7 Cal.4th 206, 216.)
B. Analysis
1. Section 3044
Section 3044, subdivision (a), provides in pertinent part: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child . . . within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence." (Italics added.) Section 3044 thus establishes a presumption that granting custody to a parent who committed spousal abuse is detrimental to the best interests of the children, but the presumption is rebuttable and " ' "may be overcome by a preponderance of the evidence showing that it is in the child's best interest to grant joint or sole custody to the offending parent." ' " (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 662 (Celia S.).) While section 3044 "establishes a rebuttable presumption concerning the burden of proof, it does not remove the central element of any initial custody determination: What is in the 'best interest' of the minor child based on all the circumstances?" (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1051 (Keith R.), italics added.) The section 3044 presumption "does not change the best interest test, nor supplant other Family Code provisions governing custody proceedings." (Keith R., at p. 1055.) Thus, the presumption "changes the burden of persuasion as to the best interest test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement." (Id. at p. 1054.)
"For purposes of [section 3044], a person has 'perpetrated domestic violence' when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings." (§ 3044, subd. (c), italics added.)
Where allegations of domestic abuse by a parent "have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record." (§ 3011, subd. (e)(1).)
2. Forfeiture
Mother testified about the circumstances of the assault during trial. However, she never mentioned the incident or section 3044 in her statement of issues and contentions or her trial brief. And not only did she fail to raise a section 3044 in those pretrial submissions, but she also failed to make any argument about the presumption any time during trial or in her closing argument at the conclusion of the trial. Rather, as set forth in her pretrial submissions, Mother's legal theory at trial was that it was in the best interests of the children under section 3011 to remain in their Mother's custody in Toronto. (See fns. 9 & 10, ante.) As a result, neither the court nor Father was on notice that mother was relying on the section 3044 presumption. She did not even raise it in her request for statement of decision. Indeed, Mother did not raise the issue until she retained new counsel and filed her objections to amended statement of decision. In the 17th out of 31 objections Mother stated: "Objection: the court makes a finding on Page 13 of the Amended Statement of Decision that 'father impudently assaulted mother,' but does not discuss the presumption prescribed by Family Code Section 3044 or otherwise weigh this finding in relation to all other custodial factors, nor is there substantial evidence to support the implied finding that [F]ather successfully rebutted the Section 3044 presumption." On appeal, Mother argues that it was sufficient to raise her section 3044 theory in this post-trial objection to the trial court's amended statement of decision and has thereby preserved this issue for appeal. We disagree.
The Superior Court of Sacramento County, Local Rules, rule 5.29(C) provides that "[t]he Statement of Issues and Contentions shall identify each issue in dispute, the contention of the party as to each issue in dispute, and the legal authority supporting the party's contention, excluding extensive argument." (Italics added.) In Mother's statement of issues and contentions, she stated that custody was the only issue before the court. Therein she advised the court, "Mother seeks an order that she remain the primary physical custodial parent of the two very young children pursuant to an evaluation of the best interests per Family Code [section] 3011 ." (Italics added.)
Mother's trial brief included the factual and procedural history of the case, which she began by saying, "The factual and legal history of this case is as follows:" What followed did not include any reference to the April 15, 2012, incident. Under the heading of "Legal Analysis of the Issue of Custody" (underscoring omitted), Mother discussed the best interests standard at length, but never mentioned section 3044. In summary, Mother argued, "It is respectfully submitted that the best interests of the two very young children of the parties lie in the stability and security of continuing to reside primarily with their Mother who has been their primary caretaker since birth."
As we have noted, after the court issued its first statement of decision, Mother filed a request for statement of decision, which the court treated as objections. Mother did not include this document in the record on appeal and has not asserted that she referenced the section 3044 presumption in that document. From these failings, we conclude that Mother did not reference the presumption in her first set of objections. This conclusion is buttressed by the fact that after the court amended its statement of decision, Mother filed new objections which did not mention having previously made an objection related to section 3044.
Under Code of Civil Procedure section 632, a "request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision." Accordingly, objections to a statement of decision serve a limited purpose: "If a statement of decision fails to resolve a controverted issue, the parties identify that issue in objections to the statement of decision. [Citation.] A statement of decision, however, covers only issues litigated in the case." (Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750-751 (Colony), citing Crews v. Johnson (1962) 202 Cal.App.2d 256, 259 [court properly made no finding on issue neither raised in any pleading nor at issue in case], Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1259 court's failure to address issue in statement of decision explained by party's failure to raise it]; see also Code Civ. Proc., § 632.)
Here, rather than identifying an unresolved controverted issue in her objections to the trial court's amended statement of decision, Mother raised a new legal argument. Because the applicability of the section 3044 presumption was not a controverted issue at trial, "the trial court was under no obligation to address it." (Colony, supra, 188 Cal.App.4th at pp. 750-751.) Likewise, we are under no obligation to address this argument on appeal. "It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried." (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) Because Mother failed to raise the issue of the domestic violence presumption under section 3044 until her second set of post-trial objections to the statement of decision, she forfeited the argument. To permit this belated change in strategy would be unfair to Father, who perhaps would have presented additional evidence to rebut the presumption at trial and made additional legal arguments. (See In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 [permitting a party to adopt a new and different theory on appeal is unfair to the trial court, and " 'manifestly unjust to the opposing litigant' "].)
For example, none of the non-expert witnesses indicated they observed acts or conduct that could be described as physical or emotional abuse or mistreatment by Father against Mother, and had the section 3044 presumption been raised by Mother, Father may have sought to ask them specific questions about Father's interactions with Mother. Father may also have sought to obtain the Toronto police report or introduce testimony from the Toronto police officers who took the report from Mother, interviewed Father and then let him proceed on his way back to California without making an arrest. Also, Father's counsel only briefly cross-examined Mother about the April 15, 2012, episode and may have had a different strategy if Mother had indicated the presumption in section 3044 was in play. Indeed, Father may have asserted that his attempt to retake his phone was legally justified (see Civ. Code, § 50), and/or he may have sought to ask the court invoke section 3011, subdivision (b)(3), which in pertinent part provides: "As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence." (Italics added.)
On this point, Mother's testimony as to whether Father asked for his phone before he "jumped" her is seemingly different from what she wrote in her declaration in response to Father's RFO at the beginning of this custody litigation. Mother stated the following in her declaration: "[Father] wanted to show me he was being 'honest and open' so I asked to see [Father]'s cell phone and he gave it to me. As I was checking the calls[,] I asked [Father] about one and he admitted it was to a lawyer. I asked [Father] why he was speaking with a lawyer when he was telling me he wanted to work things out. [Father] became angry, demanded his phone back, then tackled me to the ground yelling at me. I was crying for help." (Italics added.) As can be seen from the italicized text in Mother's original statement, she said Father "demanded his phone back" before he tackled her, whereas she testified that Father did not ask for the phone before he jumped her. (See fn. 3, ante.) Father's testimony, on the other hand, was consistent with his earlier declaration in reply to Mother's declaration. Father stated in his reply declaration that he "did not assault [Mother] during the April 15th incident. I engaged in the minimum contact necessary to retrieve my cell phone, which [Mother] had taken without my permission and, despite my repeated requests, had refused to return."
Civil Code section 50 provides in pertinent part: "Any necessary force may be used to protect from wrongful injury the person or property of oneself." (See McLean v. Colf (1918) 179 Cal. 237, 238 [right to retake property and regain "momentarily interrupted possession" is limited by the condition that the force be no more than is reasonably adequate and necessary].)
Additionally, the expert witnesses were not asked to address domestic abuse by Father or otherwise opine about how any such acts may have impacted Father's ability to parent the children or their best interests. Indeed, Dr. Jaeger became involved at Mother's request and focused on Mother's assertion of sexual addiction. Father agreed to an evaluation based on Mother's assertion as part of their interim agreement. Had the section 3044 presumption been raised, Father may have further agreed to an evaluation that also focused on that issue and sought to introduce additional evidence through the expert witnesses; or he may have consulted and called additional expert witnesses to testify specifically on the subject of domestic abuse and the impact on the best interests of the children.
The record also does not reflect that the issue of domestic abuse was raised with Hancock, although the issue could have been addressed as part of the mediation process. While mother told Hancock about her perception of Father's "serious addiction" problem, the record does not disclose that mother mentioned any acts of physical or emotional abuse perpetrated by Father against her. And the mediation process resulted in a stipulation, which did not include any matters related to domestic violence, e.g., attendance at a batterer's treatment program.
Of course, it was seemingly unnecessary for Father to take the above courses of action since Mother never raised the section 3044 presumption in her statement of issues and contentions or at any time before or during trial. Mother's belated invocation of section 3044 should not be condoned and we decline to do so here. Mother forfeited the contention she raises on appeal.
3. Harmless Error
Even if mother did not forfeit the contention and the trial court erred in failing to expressly apply the presumption, any error was harmless. There was ample evidence in the record rebutting the presumption. "Before any judgment can be reversed for ordinary error, it must appear that the error complained of 'has resulted in a miscarriage of justice.' [Citation.] Reversal is justified 'only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.] A reasonable probability for these purposes does not mean an absolute probability; the likelihood that the error affected the outcome need not be greater than the likelihood that it did not. [Citation.] The test is satisfied, and prejudice appears, if the case presents 'an equal balance of reasonable probabilities.' " (In re J.S. (2011) 196 Cal.App.4th 1069, 1078-1079.) Here, it is not reasonably probable that a result more favorable to mother would have been obtained had the trial court expressly included the section 3044 presumption in its analysis.
As we have noted, "a domestic violence finding in a family law case changes the burden of persuasion as to the best interest test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement." (Keith R., supra, 174 Cal.App.4th at p. 1054.) Because the ultimate consideration is the best interests of the minor child, the section 3044 "presumption may be overcome by a preponderance of the evidence showing that it is in the child's best interest to grant joint or sole custody to the offending parent." (Keith R., at p. 1055; accord, Celia S., supra, 3 Cal.App.5th at p. 662.) This determination must be made "based on all the circumstances." (Keith R., at p. 1051.)
Here, the trial court made significant findings regarding the best interests of the children based on the evidence adduced at trial. The court found, "[W]hile the father has availed himself of every opportunity to gain insight, maintain and develop his relationship with the children; mother, in sharp contrast, rested on past events to persist in an approach, despite cogent and competent evidence, that impaired, or at least delayed, paternal access, parental collaboration, and paternal parenting frequency with the parties' children." The court also found that while both parents "possess[ed] the capacity to parent," only Father possessed "the present capacity to collaboratively co-parent." Moreover, the court found that Mother "continually persisted in various and repeated behaviors that did not promote or further the children's best interest in a paternal-child relationship."
Additionally, while the court found that "[a]n incident, involving domestic violence, occurred," the court also noted that the parties each had a different version of the incident and there was no conclusive law enforcement finding: "Neither a conviction nor findings followed. [Father] claims his contact with [Mother] was to retrieve his phone. She claims he knocked her to the ground." It seems clear from the court's findings that it did not find the nature of this single domestic violence incident conclusive or particularly egregious. Indeed, while Father recklessly caused injury in trying to retrieve his phone (Mother did not deny refusing to return Father's phone and provided no explanation for how or why it ended up in her pocket), this case presents quite a different situation from those where children witness repeated episodes of physical and mental abuse that are indelibly imprinted in their minds and for whom custody with the perpetrator would be detrimental to their interests. To be sure, based on the record before us what occurred here qualified as an act of domestic violence under section 3044, subdivision (b). However, the evidence disclosed a single isolated episode stemming from Father's attempt to recover his personal property, an episode the trial court characterized as an imprudent assault.
Based on the trial court's factual findings and the evidence at trial, we conclude it is not reasonably probable the outcome would have been more favorable to Mother had the court began its analysis with the presumption in section 3044. The second amended statement of decision contains detailed and firm findings that it was in the children's best interest for the parents to share joint legal and physical custody. The decision expressed concerns about Father's behavior prior to the separation but also expressed stronger concerns about Mother's behavior after the separation, particularly with respect to her ability to effectively co-parent. The decision also recognized the efforts Father made, noting that Father availed himself of every opportunity to gain insight, maintain and develop his relationship with the children. Further, the trial court found that "Mother emerges as a parent who without appropriate intervention and insight will remain particularly challenged in fomenting and furthering a paternal relationship with the children."
Section 3044, subdivision (b), lists the factors that courts "shall consider" in determining whether the presumption has been overcome. In summary, the courts must consider: "[w]hether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child" (§ 3044, subd. (b)(1); whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in Penal Code section 1203.097, subdivision (c) (§ 3044, subd. (b)(2)); whether the perpetrator has successfully completed an alcohol or drug abuse program if determined appropriate by the trial court (§ 3044, subd. (b)(3)); whether the perpetrator has successfully completed a parenting class if determined appropriate by the trial court (§ 3044, subd. (b)(4)); whether the perpetrator is on probation or parole and if so, complied with the terms and conditions thereof (§ 3044, subd. (b)(5)); whether the perpetrator is restrained by a protective order and if so, complied with its terms and conditions (§ 3044, subd. (b)(6)); and whether the perpetrator committed further acts of domestic violence (§ 3044, subd. (b)(7)). Tellingly, Mother fails to address these factors on appeal.
As we have noted, the trial court discussed at length the children's best interest. And "the minor child's best interests must remain at the forefront of the family court's considerations on custody in determining whether the section 3044 presumption has been rebutted." (Keith R., supra, 174 Cal.App.4th at p. 1056; accord Celia S., supra, 3 Cal.App.5th at p. 661 ["[t]he guiding principle" for the court in making any custody or visitation order, even in the context of a section 3044 domestic violence situation, is that the order must be in the child's best interest].) Further, as the court noted, Father had not committed any other acts of domestic violence nor were any other incidents alleged by Mother. There is no evidence he was on probation or parole for this episode or any matter. Indeed, relevant to this factor, the trial court expressly noted, Father was not arrested in connection with the incident. This circumstance naturally speaks to the seriousness of a battering incident and consequently should be considered in determining the detriment to the child. There is no evidence in the record concerning alcohol or drug abuse by Father; thus, there is no evidence showing a likelihood the trial court would have found it appropriate that Father undergo alcohol or drug abuse counseling. The trial court had no evidence before it suggesting that Father was subject to a protective order or restraining order (§ 3044, subd. (b)(6)) and indeed, the record does not show that Mother ever requested one. As for parenting classes, the trial court determined that it was Mother who was in need of such a program and ordered that Father attend a parenting class jointly with Mother only after Mother first completed a parenting class on her own. Based on the evidence, including three expert witnesses, the trial court found that Father was a capable and competent parent.
Section 3044 does not establish a presumption for or against joint custody; the paramount factor is the child's health, safety, and welfare. (Keith R., supra, 174 Cal.App.4th at p. 1055.) The second amended statement of decision makes it plain that the trial court strongly believed joint custody was the best arrangement for the children and that it had concerns about both parents' behavior but particularly Mother's ability to collaboratively co-parent with Father. We conclude it is not reasonably probable the trial court would have found Father failed to overcome the section 3044 presumption. Thus, any error in failing to apply the presumption in analyzing the custody issue this case was harmless.
II. Burden of Proof Regarding Custody Factors Favoring Relocation
A. The Parties' Contentions
Mother contends that the trial court abused its discretion in treating the case as a maternal "move away" case and placing the burden of proof on her to show that custody factors favored maternal relocation. Father responds that this contention is an inaccurate characterization of the trial court's ruling and contends that both parties had the same "burden to show what custody plan was in the children's best interests." He contends, "[I]n no part of its Statement of Decision or order[] did the court suggest that one party or the other had a special legal burden or that one party of the other succeeded or failed to meet any burden of proof." Again, we reject Mother's contention.
B. Analysis
We review custody and visitation orders using the deferential abuse of discretion standard, and we must uphold the trial court's ruling if it is correct on any basis. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) "Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.)
Mother's argument is primarily centered around the trial court's usage of the phrase "maternal relocation" and "maternal custody and relocation" in its findings of fact on the various custody factors. However, Mother fails to observe that the court similarly used the phrase "paternal custody and relocation" in its findings of fact as a shorthand indicator in the cells of its spreadsheet of custody factors for whether each custody factor favored the children living with Mother or Father. There is no indication in the court's ruling that the court treated Mother's "request for custody as a request to relocate to Toronto," as she contends on appeal. Rather, the court clearly stated that it only considered "the effects, if any, of parental relocation," in weighing the bests interests of the children. This is an appropriate consideration under Burgess, where our high court held: "[I]n considering all the circumstances affecting the 'best interest' of minor children, [the trial court] may consider any effects of [parental] relocation on their rights or welfare." (Burgess, supra, 13 Cal.4th at p. 32; see also § 7501.) Additionally, there is no indication in the court's ruling that it imposed an additional burden on Mother "to establish that custody factors favored her 'relocation,' " as she contends. In fact, the court acknowledged that Mother was the "primary custodial parent and caretaker" between the move to Toronto in April 2012 and the date of trial, and the court considered that fact in relation to the "children's needs for continuity and stability." Accordingly, the court did not abuse its discretion.
III. Substantial Evidence Supporting the Custody Order
A. The Parties' Contentions
Mother contends that the trial court abused its discretion in awarding Father primary physical custody, and she proceeds to challenge a number of the court's factual findings under this heading in her brief. She contends, inter alia, that "the court overlooked the reality that [Mother] and [Father] agreed that the children would relocate from Sacramento and live in Toronto." She further contends the court failed to adequately consider the strength of the children's bonds with her. She argues that the court lacked substantial evidence to conclude that she failed to foster Father's relationship with the children. Finally, she asserts the court erred in finding that she failed to collaboratively co-parent with Father. We conclude that substantial evidence supports the court's findings and custody order.
B. Analysis
To the extent Mother challenges the trial court's factual findings, review is limited to whether there is any substantial evidence, contradicted or uncontradicted, that supports the court's ruling. Appellate courts must resolve conflicts in the evidence in favor of the prevailing party and draw all reasonable inferences to uphold the trial court's decision. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1317, fn. 4.) " '[A]s is true in all appellate reviews, and most emphatically in this type of controversy, it is not the function of this court to reweigh conflicting evidence and redetermine findings.' " (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513, quoting Sanchez v. Sanchez (1961) 55 Cal.2d 118, 126.) "In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest of the child.' [Citation.] It must look to all the circumstances bearing on the best interest of the minor child." (Burgess, supra, 13 Cal.4th at pp. 31-32.)
A trial court's award of custody is ultimately determined by considering the best interest of the child. (§ 3011.) The court may consider any relevant factors in making that determination (Burgess, supra, 13 Cal.4th at pp. 31-32), but it must consider the health, safety, and welfare of the child, as well as any history of abuse (§ 3011, subds. (a), (b)). In its second amended statement of decision, the trial court carefully considered a number of factors and found that while both parents "possess[ed] the capacity to parent," only Father possessed "the present capacity to collaboratively co-parent." The court expressly found that Mother lacked that capacity. The court found: "[M]other, notwithstanding her developing original primacy as a parent, subsequently subverted her role to the evident exclusion of [F]ather except on terms as she set forth to effectively limit and impair his parenting time out of original maternal concern but subsequent spousal intransigence"; Mother "continually persisted in various and repeated behaviors that did not promote or further the children's best interest in a paternal-child relationship"; "Mother is a parent who, without individual psychotherapeutic intervention and conjoint co-parenting counseling, will engage in continuing and future behaviors that will frustrate: [¶] i. Co-parenting collaboration in the joint care and supervision of the children, and [¶] ii. Father's interactions with the children, and [¶] iii. Each child's frequent and continuing contact with [F]ather"; Mother was unlikely to "facilitate [Father]'s ability to parent and thereby serve each child's best interests [fn. omitted]." The court further found Mother's "attitude must be demonstrably shown to change, as evinced by therapeutic reports and conduct, in any future proceeding before the court may properly consider modifications of further particular significance."
The trial court's findings are supported by substantial evidence. Dr. Chen testified that he observed more than 20 of Father's Skype sessions with the children while the children were living in Toronto, and he characterized these sessions as "very poor" because the children were frequently off-camera in another room playing with Mother during Father's scheduled Skype sessions. When asked if Mother supported the Skype sessions, he testified that, based on his experience using Skype with his own children, "it really takes a very active act of chasing them around with the camera to get them to really . . . act with the people on the other side, and in that sense I don't think [Mother] was trying to do that." Similarly, Dr. Khandhar testified that he also observed Father attempting to Skype with his children and saw that both cameras were on but the children were not in the room with the camera and could only be heard in the background. Further, the paternal grandfather, Dr. Kwon, testified that after the separation, Mother ceased sending him videos and pictures of the children.
Hancock testified that she hoped that Mother would be more amenable in agreeing to shared custody after Dr. Jaeger's evaluation of Father concluding he did not pose a danger to his children and had never exposed them to prostitution or pornography. However, the report did not change Mother's position; she continued to request that Father have only supervised visitation with the children and continued to express unsubstantiated concern that he had a sexual addiction that would escalate or he would molest the children. At one point during the mediation with Hancock, Mother claimed she was seeing a therapist named Dr. Minwalla, but when Hancock called Dr. Minwalla, she found out that he was not treating Mother but was consulting her about Father's purported sexual addiction and he had never met or examined Father. Mother did not accept either Hancock's or the doctors' opinions that Father was healthy and not a risk to the children. While initially, Hancock understood Mother's concerns, she testified that Mother's ongoing concerns after the multiple evaluations were unreasonable. At the conclusion of mediation, Hancock found that Father was most willing of the two parents to support the relationship between the children and the other parent.
We also note that Mother's credibility was in question because she told Hancock that Father lacked empathy and parenting competency, but Hancock's observations and review of Father's psychological evaluations did not support these claims. Mother's veracity was further damaged when she told Hancock she would lose her job if she moved back to California and this proved not to be true by Mother's own admission during her trial testimony. And as we noted, Mother told Hancock that she was seeing a therapist when she was not; rather, she had consulted the therapist she named about Father.
Collectively, the testimony provided ample support for the court's findings regarding Mother's inability to co-parent, the need to give primary physical custody to one parent due to the distance between the parents' domiciles, and Mother's unwillingness to promote the paternal-child relationships. The trial court did not abuse its discretion in concluding that awarding primary physical custody to Father was in the children's best interests if Mother continued to reside in Toronto and awarding a shared custody schedule should Mother reside in Sacramento.
Based on the foregoing, we conclude that substantial evidence supported the court's factual findings and custody order.
IV. Safety Factors
A. Additional Background and the Parties' Contentions
At the outset of trial, the trial court heard argument on the admissibility of evidence of Father's misconduct with prostitutes. The court determined that the evidence would only be relevant if there was evidence showing that the misconduct affected the children in some way but deferred ruling on the admissibility of the evidence. Later, the court allowed some testimony on Father's sexual conduct.
This is the appropriate standard to determine the admissibility of a parent's sexual conduct in custody proceedings. In In re Marriage of Wellman (1980) 104 Cal.App.3d 992, the court held that evidence of the mother's sexual relationship was irrelevant to custody where there was no evidence as to the impact of the relationship upon the children. The Wellman court reasoned, "It is not the function of a trial court in cases of this sort to punish parents for what the court may regard as their shortcomings, nor to reward an 'unoffending' parent for any wrongs suffered by the 'sins' of the other; '[t]he prime question is, what is the effect upon the lives of the children.' " (Id. at p. 998.)
Dr. Brentt testified that the children were not endangered by Father's sexual practices. Similarly, in response to a question asking whether Dr. Jaeger would consider Father's sexual conduct a danger to the children in a hypothetical custody evaluation, she testified, "I'm right now having a hard time seeing how I could conclude that is a danger to the children, but I don't have that information in front of me, so it's very hypothetical." Dr. Jaeger testified that Father did not pose a danger to his children and that he never exposed them to pornography or prostitutes. The remaining testimony on the subject was Father's own testimony regarding his activities with prostitutes and particularly how much money he spent on prostitutes, but there was no testimony tending to show a nexus to the children.
The hypothetical question posed to Dr. Jaeger was as follows: "If the intervals or the frequency, whichever you wish to use[,] of the use of escorts was more frequent than your understanding, this is a hypothetical, would that have any impact on your conclusions about Dr. Kwon's . . . [¶] . . . about your conclusion that Dr. Kwon was not a danger to his children?"
On appeal, Mother contends that the trial court erred in failing to consider Father's activities with prostitutes as a safety factor in its consideration of the best interest of the children under section 3011. Conversely, Father contends that the court did consider Father's sexual conduct and there was no evidence that this conduct presented a safety issue for the children or showing a nexus to the children. We agree with Father.
B. Analysis
As noted, section 3011, subdivision (a), requires that, among other relevant factors, the trial court must consider "[t]he health, safety and welfare of the child." Contrary to Mother's position on appeal, there is no evidence at trial to show that Father's conduct endangered the children. Indeed, in her appellate brief, she cites her trial counsel's unsupported argument about potential risks to the children and her own e-mail to Father chiding him on the matter rather than evidence showing ill effects of his conduct on the children here. The lack of evidence to support Mother's argument is amplified by the fact that this section of her brief contains no citations to pertinent authority and the legal argument is incoherent. (See Cal. Rules of Court, rule 8.204(a)(1)(B)-(C).) "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408 (In re S.C.), italics added.) We disregard claims perfunctorily asserted without development. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Accordingly, we find no abuse of discretion.
For example, Mother focuses primarily on her speculation that the prostitutes that Father had seen might have pimps and that said pimps might track Father down if a prostitute lied about getting paid.
V. Citation to Research Articles Without Judicial Notice
A. Additional Background and the Parties' Contentions
In its second amended statement of decision, the trial court cited several journal articles and a research paper on topics involving child attachment, child well-being, and parenting stress without taking judicial notice of these documents. These documents were cited in the footnotes as supplemental authority to the pertinent Family Code citations and were not discussed in the body of the decision.
Mother contends that the trial court's citations to these materials denied her due process because she did not have an "opportunity to cross-examine or rebut the information contained in these journal articles." Father responds that Mother failed to object to the court's citation to these materials in her objections to the statement of decision. Additionally, Father contends that any error in citing these materials was harmless. Again, we reject Mother's contention.
B. Analysis
In the argument section of her brief on this issue, Mother again fails to cite any pertinent authority to support her argument that the references to these materials in the trial court's second amended statement of decision violated her right to due process. (See In re S.C., supra, 138 Cal.App.4th at p. 408.) Further, Mother failed to raise this claim of error in the trial court in her objections to amended statement of decision. Accordingly, her claim of error on appeal is forfeited. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 501 [" ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial" ' "], italics added.)
DISPOSITION
The judgment is affirmed. Mother shall pay Father's costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1), (5).)
MURRAY, J. We concur: NICHOLSON, Acting P. J. ROBIE, J.