Opinion
G052721
07-26-2018
DAWN L., Plaintiff and Respondent, v. GABRIEL W., Defendant and Appellant.
Gabriel W., in pro per., for Defendant and Appellant. Law Offices of John A. Bledsoe and John A. Bledsoe for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14P001278) OPINION Appeal from orders of the Superior Court of Orange County, James L. Waltz, Judge. Orders affirmed. Gabriel W., in pro per., for Defendant and Appellant. Law Offices of John A. Bledsoe and John A. Bledsoe for Plaintiff and Respondent.
I. INTRODUCTION
Actors have their Oscars, journalists have their Pulitzers. If there were an award for patience and insight among family law judges - let's call it a Solomon - this appeal would win the trial judge here at least a nomination in a very crowded field.
This appeal arises out of a very contentious child custody and visitation case, involving numerous instances of acrimony (perhaps even violence) during visitation exchanges. Those matters were brought to the trial judge's attention in two discrete hearings in the summer of 2015. One hearing involved an allegation of child sexual abuse against the father. No sexual abuse was found. (Cf. Fam. Code, § 3027.1 [trial court has power to impose money sanctions on party in custody proceeding who make knowing false accusation of child abuse].) The other hearing involved dueling requests for changes in visitation. In each, the trial judge steered the middle course between two warring parents, making orders that essentially continued the status quo pending the main trial, which had not yet been scheduled. The two orders were eminently reasonable and we affirm both of them.
II. BACKGROUND
R. was born in January of 2014. Dawn L. filed a petition about seven months later, in August 2014, to establish that Gabriel W. was R.'s father, and for an order giving her physical custody of R. with supervised visitation to Gabriel. Dawn wanted supervised visitation because of what she alleged was a "history of abuse against [her]." In a declaration filed in September 2014, in connection with a formal request for order (RFO), Dawn asserted that Gabriel, while a resident of Tennessee, had had his "visitation with his [other] children suspended due to [an] accusation of sexual abuse he committed against [another] daughter." Dawn's RFO would not be heard until August of 2015, but it set the stage for acrimony to come.
The record shows some disagreement between the parties over the child's last name. We will therefore refer to her as "R."
Appellant prefers to be called Gabriel instead of Lucas, and we oblige.
In October 2014, Gabriel filed his own RFO for child custody, alleging that since August, Dawn had been denying him visitation. That too would not be heard until August of 2015, but it immediately resulted in an order for a child custody evaluator and a stipulation for certain visitation rights for Gabriel. In December, the court made a formal order for Gabriel to have visitation on certain days.
Gabriel was to have visitation with R. every Sunday and Monday 4 p.m. to 6 p.m. and every Wednesday 5:15 p.m. to 7:15 p.m.
By mid-February 2015, the evaluator's very thorough report had been filed, recommending a graduated program of "stepped-up" unsupervised "parenting time" for Gabriel in five successive phases. The record indicates the couple agreed to abide by the phased-in increased visitation plan.
These ranged from phase 1's 2 hours on Monday and Wednesdays and 6 hours on Sunday afternoons to phase 5's 2 hours every Monday, plus Wednesday afternoon at 4 p.m. to Thursday at 10 a.m., plus alternating weekends.
On April 10, 2015, Gabriel applied for a temporary restraining order against Dawn based on the allegation that Dawn had grabbed at his chest, pushed him, and yanked R. out of his arms during a February child exchange. The temporary order was denied pending a hearing that took place four days later, then continued to June 2, along with Dawn's September 2014 custody RFO and Gabriel's own custody RFO filed in October. In the interim, the parties formally stipulated to Gabriel having "phase one" visitation. The June 2 hearing, in turn, was continued to August 18, 2015.
However, on July 10, 2015, Dawn filed a new RFO seeking modification of the visitation arrangements, based on her surmise that Gabriel had sexually abused R. during recent visits. The new request resulted in the appointment of a counsel for the minor and was heard by the court five days later on July 15. At the hearing the minor's counsel reported that Dawn had brought R. to a pediatrician's office who referred the matter to Children's Hospital of Orange County. The hospital did an initial examination and found no evidence of sexual abuse.
R. was exhibiting signs of vaginal irritation.
The upshot of the July 15, 2015 hearing, was that Gabriel did not sexually abuse R., but that Dawn's report was not malicious. The trial judge, to his great credit, took a considerable amount of court time to explain to the parties that the stress and drama surrounding the visitation exchanges was not good for R.
The scheduled August 18, 2015 hearing was continued to August 21. At the August 21, 2015 hearing the court ordered: (1) Gabriel was to progress to phase three visitation on September 5, 2015; (2) Gabriel was to submit to a vocational examination; and (3) Dawn was to give Gabriel certain information about a woman who was providing day care services for R. during the workday; concomitantly Gabriel was to pay one-half of the cost of the daycare; (4) It was agreed that if Gabriel didn't show up by 4:15 p.m. for a visit, he lost his time, but Dawn had to have R. ready by 4:00 p.m. Finally, the court (5) denied Gabriel's request for "make-up parenting time."
The August 21, 2015 order was reified in a formal "Findings and Order After Hearing" filed October 13, 2015. Gabriel's notice of appeal from the July 15, 2015 and August 21, 2015 orders was filed eight days later, on October 21, 2015.
The trial court's orders made July 15, 2015 and August 21, 2015, are also listed in the notice of appeal filed in the companion case, G053822 ("the 22 appeal"). We do not deal with their merits in the 22 appeal because the notice of appeal there was filed way too late for this court to have appellate jurisdiction.
III. DISCUSSION
First we address the problem of appealability. The July 15 order was embodied in a minute order, and the record does not indicate a copy of it was served on Gabriel. That means the 180-day deadline for Gabriel to appeal (see Cal. Rules of Court, Rule 8.104 (1)(C)) applies, and the July 15 order is within that time limit. The same may also be said for the October 13 findings and order. We thus have jurisdiction to consider Gabriel's appeal, so we turn to the arguments in Gabriel's opening brief. Though Gabriel had counsel at the July 15 hearing, he is self-represented in this appeal. But the basic principles of appellate procedure apply to the represented and unrepresented alike:
Our job, as an appellate court, is circumscribed by the California Constitution. It is to determine whether an appellant has demonstrated prejudicial error by the trial court. Section 13 of article 6 of the California Constitution provides: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
And, because trial court orders and judgments are presumed correct, it is the appellant who bears the burden of demonstrating prejudicial error to the appellate court. "It is appellant's burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court's findings. [Citation.] We presume the trial court's order was correct and indulge all presumptions and intendments in its favor on matters as to which it is silent." (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224.)
Next - apropos Gabriel's appeal here - to demonstrate prejudicial error, the opening brief must identify that error in headings or subheadings. (E.g., Conservatorship of Hume (2006) 139 Cal.App.4th 393, 395, fn. 2; Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17.)
Gabriel, however, has organized his brief by letter headings. (E.g., "statement of facts A," "argument A" "conclusion A.") If that was all he did, we might conclude right here that by failing to follow the court rules on briefing he has waived all matters mentioned or touched on in the mass of text in his opening brief. (See Cal. Rules of Court, rule 8.204 (a)(1)(B) [issues should be set forth under separate headings]; Citizens Opposing A Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 380, fn. 16 [declining to address contentions "not listed 'under a separate heading or subheading'"]; Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [argument "forfeited" by not presenting it "in an appellate brief under a separate heading"]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) [¶] 9:91, p. 9-32 ["The court may disregard arguments not properly segregated under appropriate discrete headings"].)
Gabriel has, however, under each letter heading, articulated two general theories. These are (a) the trial court's putative failure to "resolve material issues in dispute" in regard to "domestic abuse and parental abduction" and (b) the denial of "parenting [time] without review." By the latter, Gabriel appears to mean the denial of make-up parenting time as set forth in the August 21 and October 13 orders.
To the degree that Gabriel complains in the text of his opening brief about being required to pay half the cost of the minor's counsel or half family therapy costs, he has waived those issues by not identifying them in a separate heading or subheading. In any event, he makes no attempt in that text to try to show how those cost orders could have been beyond the trial court's discretion.
As to (a), "parental abduction" - which Gabriel regards as criminal - and the putative failure of the trial court to "resolve material issues" in that regard, Gabriel's assertion founders on a fundamental principle of law: Elementary due process requires notice to the party to be adversely affected. Due process further requires that party be given the opportunity to be heard in the proceeding. (See Elbert, Ltd. v. Gross (1953) 41 Cal.2d 322, 333.)
Our record is devoid of any showing Dawn was ever given notice of any criminal proceeding against her for an alleged violation of Gabriel's visitation rights. And without that notice, Gabriel cannot complain that the trial court was required to find her guilty of any such child abduction. (See People v. Ramirez (2003) 109 Cal.App.4th 992, 999 [notice is satisfied in criminal case "when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial"].) Indeed, the Sixth Amendment to the federal Constitution explicitly requires such notice in a criminal prosecution: "In all criminal prosecutions, the accused shall . . . be informed of the nature and cause of the accusation[.]" (U.S. Const., 6th Amend.) For us to give Gabriel the relief he seeks in this appeal would be, quite literally, unconstitutional.
Likewise, our record is also devoid of any indication that Gabriel ever instigated a formal proceeding for relief in regard to any allegations of "domestic abuse" as such. To the degree such "abuse" might have been touched on in his own RFO (e.g., by Dawn's grabbing at his chest during a visitation exchange) it was only in the context of Dawn's alleged interference with Gabriel's visitation rights. Again, for us to grant such relief directly on appeal would be to do so without proper notice to Dawn and thus violate her due process rights.
The second issue (b), involving make-up time, is a little more complex. At the August 21 hearing, Gabriel specifically requested make-up parenting time based on a list he gave the trial judge of the times he was not allowed to see R. The judge impliedly denied the requests for "make-up time" as such, instead announcing that the visitation order would be enforced "prospectively."
Visitation orders are subject to the broad discretion of the trial judge with the main focus being the child's best interest. "Trial courts generally have broad discretion in defining a parent's 'reasonable visitation' rights and establishing a visitation schedule. Subject to a few statutory limitations . . ., the sole guideline is the child's best interest . . . ." (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 7:485, p. 7-221.)
We cannot say the trial judge's decision to treat make-up time prospectively at the August 21, 2015 hearing was an abuse of discretion, i.e., was unreasonable. (See Piscitelli v. Salesian Society (2008) 166 Cal.App.4th 1, 11 [test of abuse of discretion is whether "ruling was beyond the bounds of reason"].) Until the July 15 hearing the month before, it had not been determined whether Gabriel had sexually abused R. It was an open question. Events in Tennessee had created a cloud over Gabriel's head. That cloud was not dispelled until July 15, when the trial court explicitly laid the Tennessee matter to rest by finding Gabriel had not abused R.
The Penal Code statutes bearing on interference with visitation rights undergird our conclusion the trial court's refusal to afford make-up visitation time was reasonable. The way the Penal Code visitation interference statutes work is this: Penal Code section 278.5 first makes the malicious withholding of visitation rights to a parent with those rights a crime. But then Penal Code section 278.7 exempts from the scope of Penal Code section 278.5 any withholding of visitation rights when based on a good faith belief in the possibility of immediate emotional injury or bodily harm to the child. In this case, given the vaginal irritation and Gabriel's alleged history in Tennessee, there was substantial evidence on which the trial court could find Dawn's withholding of visitation rights on certain dates to have been nonmalicious. And since there was substantial evidence by which the trial court could find that Dawn's concerns up to July 15 were not malicious, it was reasonable for the trial court not to penalize Dawn for having acted on those concerns.
Penal Code section 278.5, subdivision (a) provides: "Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment." (Italics added.)
Penal Code section 278.7, subdivision (a) provides: "Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child." (Italics added.) --------
We note in that regard that Gabriel did not identify any instances when Dawn failed to afford visitation in the short period from July 15 to August 21. Nor does his supplemental declaration filed for the August 21 hearing contain such allegations.
We will add, though, for what it is worth, that the record in the companion appeal (G053822) shows that the trial court reserved the issue of make-up visitation time for the main trial in the case, then set for July 2016. (We have nothing in the records before us to give us any information now, in 2018, about that trial, since this appeal involves orders from 2015.) That approach was eminently reasonable because, looking ahead, the court would have far more facts about the case and be able to gauge the degree to which "make up" visitation time might - or might not - be in R.'s best interest. (See In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) If R.'s best interests are indeed served by increased visitation or custody on Gabriel's part, we have every confidence this experienced family law judge will figure that out.
The orders appealed from are affirmed. Dawn will recover her costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.