Opinion
D070843
08-28-2017
In re the Marriage of S.R. and R.R. S.R., Appellant, v. R.R., Respondent.
Dunne & Dunne and Anthony J. Dunne, for Appellant. Judith Klein for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DS46416) APPEAL from a judgment of the Superior Court of San Diego County, Gerald C. Jessop, Judge. Affirmed. Dunne & Dunne and Anthony J. Dunne, for Appellant. Judith Klein for Respondent.
This appeal arises from a custody dispute between S. (Mother) and R. (Father) concerning their two sons. After an evidentiary hearing, the court awarded Father primary physical custody of the boys at his home in Washington state. Mother appeals, challenging the court's ruling on several procedural and substantive grounds. We determine the court's custody order was a proper exercise of discretion and there was no prejudicial error. Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
Relevant Background Facts
Mother and Father married in 2005. They had two children: S1, born in 2006; and S2, born in 2008. When the younger son was born, Father was on active duty in the United States Navy, and the couple was living in Connecticut. Shortly after, Mother moved with the boys to San Diego, where her extended family lives. Father later transferred to the San Diego area and the couple lived on a Marine base in San Diego.
In about August 2011, the couple separated and later filed for dissolution. The boys stayed with Father, and Mother helped care for them. A few months later, Mother and the boys moved to Henderson, Nevada. Father signed a stipulation allowing the move. He did so after Mother told him if he did not sign the stipulation, she would "ruin [his] career" and have him "thrown in jail" because he had improperly taken her name off their joint bank account.
Several months later, in February 2012, Father petitioned the family court seeking visitation. After attending mediation, the couple agreed Father would have visitation one weekend of every month, and the exchange would be in Barstow, California, a halfway point for the parents. The court entered the stipulated parenting plan as an order.
Mother then refused to meet in Barstow, requiring Father to make the roundtrip from San Diego to Nevada on numerous occasions. Although S1 was doing "[p]oorly" in kindergarten, Mother did not provide Father any information about S1's schooling. The next year, Mother moved to Las Vegas, pulling S1 from first grade in the middle of the year, without telling Father. Although the parties' agreement allowed Father to talk on the phone and Skype with the children, Mother generally refused to allow this.
In June 2013, Mother moved back to the San Diego area. During that summer, the boys lived with Father for about six weeks.
In September 2013, Father filed a motion for joint physical custody because he was concerned Mother was not taking proper care of the children. In about March 2014, the Navy transferred Father to Washington state.
Father's motion for shared custody was scheduled to be heard on July 29, 2014. Before this hearing, the boys spent about five weeks with Father and his new wife at their home in Washington. About two weeks before the boys were scheduled to return, S2 developed a skin rash on his face. After calling a nurse hotline, Father and his wife treated the rash with an ointment. Father informed Mother of the rash and also that S2 had bruises when he fell while learning to ride a bike. Father sent Mother photographs of the rash, told her it was healing, and asked Mother if she wanted him to "do anything." Mother responded "No, that's fine. We'll see what it's like when he gets back . . . ." Father said the rash appeared to be impetigo (a contagious condition) because other neighborhood children with similar rashes had received that diagnosis.
During the visit, Father heard the boys tell Mother that they wanted to live with Father. When it was time to return, S1 became very upset and did not want to go back to Mother. Father "had to peel him off . . . to get him in [the] car, get him to the airport and put him on the plane."
Shortly after the boys returned and a few days before Father's custody motion was scheduled to be heard, Mother made allegations that while the children were staying with Father in Washington, Father had used cigarettes to burn S2 on the child's face and other parts of his body, and Father had shot him with a BB gun. Mother obtained a continuance of the custody hearing based on these allegations. Father was not allowed to see or communicate with the children for several months while these allegations were being investigated. In about October 2014, a child protective agency or agencies determined the allegations were unfounded and/or inconclusive.
By early January 2015, Mother and the boys were living with Mother's new boyfriend Michael in Encinitas. On January 5 or 6, Michael was arrested for domestic violence against Mother. When Mother informed Father of these facts, he agreed she should move, but insisted that the boys stay in their same school. Without Father's knowledge or consent, Mother moved to Oceanside and enrolled them in a new school.
On January 8, 2015, Mother petitioned for a domestic violence restraining order (DVRO) seeking protection from Michael. She alleged under penalty of perjury that in the past six months Michael had been " 'physically violent about seven or eight times,' " and detailed the events, including Michael smashing a guitar and then hitting her with a guitar part leaving a bruise; throwing a lit cigarette at her and burning her pants; choking her; pushing and shoving her; holding a broken bottle to her neck; and picking up the children's bunk bed, attempting to tear it apart and throw it. Mother said Michael threatened to kill her if she reported him to the police.
Mother obtained a temporary restraining order (TRO) based on these allegations, but Mother did not appear at the scheduled hearing to extend the restraining order into a permanent DVRO.
In late March or early April 2015, the boys spent their two-week spring break at Father's house in Washington. Shortly after their return to Mother's home, on April 27, 2015, Father filed a petition for sole legal and physical custody of the boys. In a supporting declaration, he described his home on the military base and the school the children would attend, and claimed that Mother had been unable and unwilling to properly care for the children, and provide them with a "modicum of stability [and] continuity . . . ." Father alleged the boys had attended numerous schools and were not doing well in school. He said the boys had informed him that Mother had moved back with Michael, and asserted that Mother's relationship with Michael is "violent, unstable, and dangerous."
The motion was set to be heard in late July 2015. Judge Albert Hartunian (who had presided over the matter for the prior two years) appointed Timothy Smith as counsel for the boys (Minors' counsel), and later ordered Minors' counsel to prepare a report on the custody issues.
Several weeks before the July 2015 hearing, the boys were scheduled to fly to Washington to spend one month with Father and his wife during the boys' summer vacation. However, three days before the departure date, Mother obtained a TRO against Father based on a new allegation that Father had sexually abused both children. Based on this order, Father's custody motion was postponed and Father was not permitted to visit with the children for the next 10 months.
The Naval Criminal Investigative Service (NCIS) conducted an extensive investigation of the sexual abuse allegations, consisting of multiple interviews, questioning neighbors, reviewing documents, and administering a polygraph examination. After completing the investigation, the NCIS concluded the allegations were unfounded.
Court Hearings
After numerous delays, Judge Hartunian scheduled a consolidated trial to begin in May 2016 on two matters: (1) Mother's petition for a DVRO against Father based on allegations that he sexually abused the two boys, and that he injured S2 by burning him with a cigarette and shooting him with a BB gun; and (2) Father's petition seeking primary physical custody of the boys. At a pretrial hearing, Judge Hartunian made various rulings, including that the boys would not testify at the hearing, and sustained Father's objections to Mother's request to call a recently disclosed expert witness (a clinical psychologist, who apparently had not interviewed the boys or the parents). A transcript of this pretrial hearing is not part of the appellate record.
On May 10 and May 13, 2016, Judge Hartunian presided over the portion of the trial concerning Mother's DVRO petition. At this trial, Mother testified about the abuse allegations, including claiming that S2 had reported the cigarette burning and BB gun injuries to Mother's sister, and that the boys told Mother of the sexual abuse allegations while they were in the car shortly before they were leaving for their June 2015 trip to see Father. In his testimony, Father denied the abuse allegations. At the end of the hearing, the court denied the DVRO petition. The court stated the evidence was "unpersuasive" that Father had engaged in the claimed "very serious and harmful conduct." On appeal, Mother does not challenge the denial of her DVRO petition.
The court and counsel then discussed scheduling the second part of the proceedings—the evidentiary hearing on Father's custody request. Because of Judge Hartunian's crowded calendar, the numerous prior delays on that motion (it was originally filed 13 months earlier) and the importance of obtaining a ruling on the petition before the summer, Judge Hartunian requested the presiding judge to reassign the custody trial. After doing so, the matter was reassigned to Superior Court Judge Gerald Jessop.
The record is not entirely clear regarding whether Judge Hartunian's pretrial rulings were communicated to Judge Jessop and/or were intended to apply to the custody trial.
About one month later, in early June 2016, Judge Jessop conducted a trial on Father's April 2015 custody petition. During that trial, Father testified to the facts summarized above, including his claims that Mother improperly interfered with his visitations and did not keep him informed on issues related to the boys. He presented evidence that Mother repeatedly moved and changed the children's elementary schools, and that both boys were having substantial academic and/or behavioral issues at school. He also testified and presented documentary evidence showing Mother continued her relationship with Michael after the January 2015 abuse allegations.
Father testified he lives in a home on the Washington military base, where there are good schools, parks, and many neighborhood children. Father said he could provide stability for the boys, and there would be no potential for violence. He said he would "absolutely" ensure the children would continue their relationship with Mother, including by providing visitations and phone calls. Father testified the children told him that they wanted to live with him and they did not want to live with Mother.
Father's wife (Stepmother) testified and corroborated Father's testimony. She said she is very close with the boys, and she heard the boys say that would prefer to live with Father.
In her testimony, Mother said she has taken care of the children since they were born and they were strongly bonded with her. She testified that the boys were close with her extended family in San Diego, including her mother, her sister, and her sister's teenage children. Mother acknowledged S1 has had substantial academic difficulties, and S2 has severe behavioral problems at school, resulting in numerous suspensions. But Mother testified that the boys have recently improved their school performance. She also reasserted the abuse allegations against Father, explaining that S2 told her sister that Father had burned him with cigarettes and shot him with a BB gun. Mother said she then took S2 to the doctor and told him about her son's claims, and said that the doctor directed her to go to Children's Hospital and file a police report. Mother did not produce any corroborating evidence of these claimed injuries. Mother also reasserted her claims that the children had told her they had been sexually abused by Father, and detailed those allegations.
With respect to her former abusive boyfriend (Michael), Mother denied she had any continuing relationship with him after she obtained the TRO in January 2015. But she admitted that Michael cosigned her apartment lease in the end of February 2015; he had stayed with her for one week in March 2015; she had written a note to the boys' school allowing Michael to pick them up "at any time [and] for any reason"; and Michael came to S2's graduation in June 2015. Mother also said Michael was "good with the boys," and the boys "miss[ed]" him.
Mother called only one other witness: Carmen Jaime, the Family Court Services (FCS) counselor, who met with Mother and Father in August 2015. Based on those meetings, Jaime recommended Mother retain primary custody of the children. Jaime testified she based this recommendation on the fact that Mother had been the primary caretaker since the parties separated, and that "[i]f there's no evidence to prove otherwise, then the children should remain—the stability that they have . . . followed through in the past years." However, Jaime indicated she was unaware of many relevant facts, including the children's substantial behavioral and academic problems; the extent of Michael's violence against Mother; Mother's continuing contact with Michael; Mother's refusal to involve Father in parenting decisions; and Mother's conduct that has deprived Father of contact with the children.
In response to Minors' counsel's strong support of Father's position at the custody trial, Mother's counsel repeatedly objected to Minors' counsel's participation, claiming he was biased and unqualified to offer opinions about the boys' welfare. Counsel also objected to the court's consideration of the Minors' counsel's written report (that had been ordered by Judge Hartunian). As explained below, Judge Jessop sustained the objections to the written report, finding the report was inadmissible under court rules and procedures. But the court allowed Minors' counsel to cross-examine witnesses, assert arguments on the boys' behalf, and seek affirmative relief based on the evidence presented at trial.
After taking the matter under submission, the court granted Father's petition for primary physical custody of the boys. In explaining its ruling, the court stated it analyzed the custody issues "from a 'best interests' standard" because the prior agreements/orders were not "intended . . . to be a final adjudication" of custody rights. Applying this standard, the court recognized that Mother has been the primary custodial parent and therefore Father had the burden to show the need for a custody change outweighed the boys' "paramount need . . . for stability and continuity of environment."
The court then identified numerous reasons for its conclusion that Father met this burden, including its findings that: Mother's testimony was "not credible" and "evasive"; the children "have not benefitted by living with" Mother and continue to "suffer" while in her care; the children have substantial behavioral and academic problems that have not been adequately addressed by Mother; Mother engaged in actions designed to "thwart" Father's visitations; Mother failed to keep Father informed regarding important school and medical issues; Mother made (or claimed her children had made) unsubstantiated abuse allegations shortly before custody hearings and Father's scheduled visitations; Mother lacked stability in her housing, resulting in the boys attending many different elementary schools; Mother exposed the children to serious domestic violence for a six- month period and has "continu[ed] her relationship with [Michael]" even if she is not living with him; and Mother's claims that Father abused the boys were determined to be "unfounded or inconclusive," and "there was no corroboration brought before the court to support" these assertions.
After explaining these findings, the court granted Father's motion to be awarded primary custody at his Washington home, and ordered that the parties share legal custody and jointly make decisions relating to the children's health, education, and welfare. The court adopted the custody/visitation plan recommended by Minor's counsel, including rules for child sharing and other coparenting issues (vacation/holiday/school breaks; telephone/email communication; travel arrangements).
The court also ruled on various spousal and child support issues (including that Mother was required to repay certain support payments because she married a third party between the time of her relationships with Father and with Michael). These rulings are not challenged on appeal, and we therefore do not discuss them.
DISCUSSION
Mother challenges the court's custody award on numerous grounds. She contends the court erred by: (1) applying incorrect legal standards; (2) allowing Minors' counsel to exercise authority beyond his permissible statutory powers; (3) refusing to permit her to call a clinical psychologist as an expert witness; (4) refusing to permit the children (who were 10 and seven years old at the time) to testify; (5) failing to order an Evidence Code section 730 evaluation; and (6) conducting an unfair trial. For the reasons explained below, we reject these contentions.
I. Court Applied Correct Legal Standard
The legal standard governing a custody modification request depends on whether the existing custody order was intended to be final and permanent. An order intended to be final may be changed only upon a showing the child's best interests warrants the change and a substantial change in circumstances. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro)). But to modify a custody arrangement before a final custody order, the moving party need establish only the proposed modification is in the child's best interests, and need not show changed circumstances. (Id. at pp. 255-258.)
Judge Jessop found there had been no final judicial custody determination when Father sought a custody change, and thus applied a "best interests" standard, citing Montenegro. Mother does not challenge this standard on appeal, and instead claims the court misapplied the standard because the court did not consider the fact the boys would be moving to a different geographical location.
"In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest[s] of the child.' [Citation.] It must look to all the circumstances bearing on the best interest[s] of the minor child. [Citation.]" (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32.) These factors include: " '(a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent against the child or against the other parent. . . . [¶] (c) The nature and amount of contact with both parents.' " (Ibid.; Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1125.)
When a custody request involves relocation, the court should additionally consider: "the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (LaMusga).)
In this case, the record affirmatively shows the court considered all relevant factors and reached a reasoned conclusion that the children's best interests would be served by moving to Washington to live with Father. The court specifically recognized the children had been living with Mother for most of their lives, and that "stability and continuity" were "paramount" considerations in making a custody determination. But the court found Father met his burden to "overcome the need for continuity and stability" based on numerous specific factual findings, including: (1) the children were not doing well while living with Mother; (2) Mother had frequently acted to "thwart" Father's visitations and contact with the children, by refusing to follow court orders requiring contact, making serious but unsubstantiated claims against Father, and refusing to provide Father access to school records; (3) Mother had a continuing relationship with the abusive boyfriend, who she admitted abused her over a six-month period; and (4) Mother has an unstable lifestyle resulting in numerous moves and school changes. The court also considered the evidence showing the children had a close, bonded relationship with Father and Stepmother, and that Father could provide them with stability and a healthy environment in Washington. These are all proper factors in the custody evaluation.
We find unavailing Mother's argument that the court did not consider the hardship on the boys resulting from the need to move from their familiar surroundings. The record makes clear the court was fully aware that Father's request would require a geographical relocation, resulting in a substantial change to the boys' lives. In explaining its decision that the children's best interests nonetheless would be served by selecting Father as the custodial parent, the court discussed factors relevant to the relocation (such as their educational issues and instability while living with Mother), and specifically cited to the portion of LaMusga in which the high court discussed the need for a trial court to consider the effect of a proposed move on the children's best interests. (See LaMusga, supra, 32 Cal.4th at p. 1093.) On this record, we are satisfied the court properly considered the relocation factor in reaching its custody determination.
Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, relied upon by Mother, arose under different circumstances. In Jane J., it was undisputed the prior custody order was intended to be final and permanent, thus requiring the moving party to show changed circumstances. (Id. at pp. 901-902.) Under this standard, the reviewing court found the lower court had not adequately considered the relevant LaMusga factors, including the "the children's paramount interests in the stability and continuity of their current custodial arrangement," and "the children's existing relationships and living situation" (Jane J., at p. 906), and instead the family court had improperly focused solely on the custodial parent's conduct and its view that it was "time to switch sides to give the other parent the opportunity to take control" (id. at pp. 903, 907). Here, there was no earlier final custody order, and the court did consider all relevant factors.
Mother contends this case is similar to Jane J. because the court did not adequately evaluate the children's close relationships with their grandparents and extended family in San Diego. However, the only supporting evidence showing these purported relationships was Mother's testimony, and the court had a reasonable basis to decline to credit this testimony. Although she identified them as potential witnesses, Mother did not call any of her relatives to testify at the hearing, nor did the reports suggest the existence of a bonded relationship with relatives that would cause substantial detriment to the boys if they moved from the San Diego area.
We also find unavailing Mother's argument that the trial court erred because it "completely ignore[d]" the testimony of the FCS counselor (Jaime), who opined that the children's best interests would be served by remaining with Mother. There is no evidence Judge Jessop (who took detailed notes throughout the proceedings) failed to consider this testimony. Absent contrary facts, we are required to presume that the trial court considered all relevant evidence, which included Jaime's testimony. (See Evid. Code, § 664; In re Julian R. (2009) 47 Cal.4th 487, 499; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67.) The fact the court reached different conclusions from the FCS counselor does not establish error. The evidence showed that the counselor was unaware of various important facts, including the extent of Michael's violent conduct towards Mother, the fact that Mother continued to have a relationship with Michael, and the fact that the children were doing poorly in school.
"[T]he value of an expert's testimony depends on the material upon which the opinion is based and the reasoning used to form that opinion, . . . and a trial court is not obligated to accept even unanimous or uncontradicted expert opinion." (People v. McCoy (1995) 40 Cal.App.4th 778, 785; see In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1345; In re Marriage of deRoque (1999) 74 Cal.App.4th 1090, 1096 [it was "the essence of intelligent judging" that the trial court was "[n]ot willing to be a mere rubber-stamp for what the . . . expert thought was best" in a custody proceeding, but instead came up with its own conclusion].)
Additionally, contrary to Mother's argument, the court's determination did not violate San Diego Superior Court Local Court Rule 5.11.2(B)(2), which states: "Absent timely evidentiary objections, the entire FCS report will be considered by the court and may be used as a basis for the court's order." The requirement that a court consider an FCS report does not mean it is required to agree with the report's conclusions. The court's role in making the difficult custody decision is not to uncritically follow the FCS recommendations, but to consider those recommendations and all other evidence to reach a reasoned conclusion on the issues. That is precisely what the court did in this case.
II. Minors' Counsel
Mother next contends the court abused its discretion by (1) "allow[ing]" Minor's counsel to "collud[e]" with Father; (2) permitting Minors' counsel to act as a "trained child custody evaluator"; and (3) adopting Minor's counsel's custody recommendations.
A. Legal Standards
Family Code sections 3150 through 3153, and California Rules of Court rules 5.240 through 5.242, govern the appointment of independent counsel for a minor in a custody proceeding. "If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in [the applicable] Rules of Court." (§ 3150, subd. (a).)
All unspecified statutory references are to the Family Code, and all rule references are to the California Rules of Court.
A minor's counsel has a legal and ethical obligation to represent the minor's best interests and is charged with making " 'a reasonable, independent determination of the minor's best interests.' " (In re Alexandria P. (2016) 1 Cal.App.5th 331, 358.) The minor's counsel's role is "to gather evidence that bears on the best interests of the child, and present that admissible evidence to the court in any manner appropriate for the counsel of a party." (§ 3151, subd. (a).) In so doing, the minor's counsel may take any action available to a party, including presenting evidence, cross-examining witnesses, and presenting arguments to advance the child's interest. The minor's counsel also has the right to conduct thorough investigations, including meeting with and interviewing the child and parents, and all other relevant witnesses.
B. Facts Relating to Minors' Counsel Appointment and Services
Judge Hartunian appointed Minors' counsel shortly after Father filed his petition seeking primary custody of the boys, and later ordered Minors' counsel to prepare a report regarding the issues, evidence, and recommendations. There is no indication in the record that either party objected to the appointment or to the requirement that the Minors' counsel prepare the report.
Pursuant to this order, Minors' counsel filed a lengthy report. In preparing the report, Minors' counsel spoke privately with each boy, interviewed numerous individuals (including both parents), visited both parents' homes, and reviewed hundreds of pages of filed documents. During the visit to Father's home in Washington, Father was not home as he had been deployed. The Minors' counsel report states this visit was paid for by paternal grandmother, and that paternal grandmother also paid for Minors' counsel to retain a private investigator to determine whether Michael (the abusive boyfriend) was living with Mother. No evidence of the private investigator's findings was presented at trial. In his report, Minors' counsel concluded: "the interests of the children can only be served by a change of custody from Mother to Father."
At the DVRO trial, Minors' counsel advocated for the court to deny Mother's request for a restraining order based on his argument that the evidence did not show Father engaged in abuse against the children. Mother's counsel argued that Minors' counsel's position was unfair to her because Minors' counsel was not qualified to determine whether the children were telling the truth about the abuse. In response to the court's questions, Minors' counsel said that he has represented minors "hundreds of times over the last 10 years" and understands his limited role (including that he is prohibited from testifying about what the boys told him), but asserted that he has an ethical obligation to represent the children's interests; he had spoken to the children; and was arguing on the children's behalf based on the evidence and his view of their best interests. The court overruled Mother's objections and allowed Minor's counsel to assert arguments on the boys' behalf.
At the custody trial, Mother reasserted strong objections to Minors' counsel's participation in the trial, arguing counsel was not neutral and had judged the case before he knew all the facts. Judge Jessop allowed Minors' counsel to question witnesses, make arguments, and request affirmative relief, but sustained Mother's counsel's objections to Minors' counsel's written report. With respect to the report, Judge Jessop stated that the current policy and practice of the San Diego Superior Court is not to permit minor's counsel's reports, but to allow a minor's counsel to "act as an advocate" for the child, including "to cross-examine just like any other attorney in the case." After further argument, the court ruled: "I'm going to follow the court procedures, and that is that Minors' counsel is not making [written] recommendations to this court. . . . [Minor's counsel has] no training in counseling, marriage and family counseling specifically. And the court found it to be improper. . . ."
C. Analysis
Mother contends the court improperly allowed Minors' counsel to exercise authority beyond the power permitted under the applicable statutes and rules. The argument is without merit.
Mother first asserts the court erred because it allowed Minors' counsel to "present inadmissible hearsay statements . . . based on out-of-court interviews in the form of a 'report.' " However, the court sustained Mother's objection, and made clear it would not consider any statements asserted in Minors' counsel's report for purposes of its custody determination.
Mother argues this ruling does not preclude her argument because the court later stated it was "going to adopt . . . the [M]inor's counsel's schedule for child custody . . . ." (Italics added.) This latter statement does not show the court changed its earlier evidentiary ruling. After sustaining Mother's objection to the Minors' counsel's report, the court determined that Father had met his burden to show the boys' best interests would be served by being placed with Father. In reaching this conclusion, the court relied only on the evidence presented at trial and did not consider the hearsay statements in Minors' counsel's report. However, once the court made the ruling, it then stated it would adopt the Minors' counsel's recommendation for child sharing "schedule[s]" (e.g., vacation/holiday/school breaks; telephone/email communication; travel arrangements). In relying on the Minors' counsel's recommendations on the scheduling issues, the court was not considering any inadmissible hearsay, but the practical recommendations of a knowledgeable advocate for the boys. Mother does not challenge the scheduling decisions made by the court.
We also reject Mother's argument that Minors' counsel was not independent because the record shows Minors' counsel "colluded with" Father's attorney to hire a private investigator paid for by Father's mother. Collusion means a "secret agreement or cooperation, esp[ecially] for an illegal or deceitful purpose." (Merriam-Webster's 11th Collegiate Dict. (2006) p. 244.) There is no evidence that Minors' counsel had a "secret" or "illegal" agreement with Father or Father's counsel, or that Minors' counsel intended to or did deceive others. The trial court was fully aware of the fact that the paternal grandmother was the source of the funds for the Washington visit and private investigator, and could consider these facts in deciding the amount of weight to place on Minors' counsel's arguments. This disclosed fact does not mean the court was prohibited from considering any of Minors' counsel's arguments or that Minors' counsel could not be objective. A minor's counsel may conduct a more extensive investigation of one parent if the facts support such an investigation, and based on the investigation, may side with one parent during a custody dispute.
III. Mother's Proposed Expert Witness
Mother contends the court erred in refusing to permit her to call a clinical psychologist, Dr. Yanon Volcani, as an expert in her case.
A. Factual Background
Father filed his motion for custody in April 2015. Thirteen months later and six days before the combined DVRO/custody trial was scheduled to begin, Mother identified Dr. Volcani as an expert witness. The written notice stated: "Dr. Volcani will testify regarding his beliefs and opinions regarding custody and visitation of minor children, including but not limited to the recommendation of family court services and minor's counsel's statement of issues and contentions [in his report]."
Shortly after, Father filed numerous objections to this proposed testimony, including: (1) Mother did not follow the rules relating to expert witnesses, including timely designating the expert, producing reports, or submitting the expert declaration; (2) Mother had not previously notified Father of her intent to call this expert; (3) the expert testimony would "consume unduly large amounts of time not previously allocated by the court" and will make it impossible to complete the trial in the allocated time; (4) the identification of the expert reflects another delay tactic by Mother to "postpone, or continue the court's ability to adjudicated the disputed issues"; and (5) the proposed testimony was "not sufficiently beyond common experience [that it] would assist the trier of fact."
The appellate record does not contain Mother's response to these arguments (if any), nor does the record contain any oral argument on this motion, or Judge Hartunian's court's ruling on the motion.
B. Contention and Analysis
Mother contends Judge Hartunian erred in not allowing Dr. Volcani to testify because the expert witness exchange rules do not apply unless the opposing party makes a " 'timely written demand' " after the trial date is set, citing Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1445. Mother contends that Father did not make a timely written demand under the expert rules, and therefore her identification obligation never triggered. (See Code Civ. Proc., § 2034.230.)
The argument fails on several grounds.
First, Mother forfeited the claimed error by failing to designate a record sufficient to permit us to evaluate the contention. A lower court's order or judgment is presumed to be correct. As the party seeking reversal, the appellant has the burden to provide an adequate record to overcome the presumption of correctness and show prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
Under these rules, an appellant who challenges an order without including the underlying motions and the documents reflecting the trial court's ruling forfeits her right to argue that the court erred in denying the motion. Particularly where the error pertains to the court's exercise of discretion, we cannot evaluate error unless we know the evidence and arguments that were before the court when it issued its ruling. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) The appellate record does not include any transcript or documents showing Mother's arguments in opposition to Father's motion to exclude the testimony or the court's ruling on the motion. Additionally, Mother never reasserted the issue before Judge Jessop. On this record, Mother has forfeited her challenge to the court's evidentiary ruling.
Additionally, the contention fails on its merits. A trial court's decision to exclude expert testimony will be reversed only if a manifest abuse of discretion has occurred. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) Regardless whether Father timely requested information about Mother's expert witnesses, the court had other valid grounds for exercising its discretion to exclude Dr. Volcani, including that his proposed opinions on the FCS counselor's and Minors' counsel's recommendations would provide no meaningful assistance to the court. (See Evid. Code, § 801, subd. (a).) The experienced trial court judge was fully capable of evaluating these recommendations on its own. Additionally, the court had a reasonable basis to conclude Mother's last-minute expert designation would substantially prejudice Father because he would not have the opportunity to discover the grounds for the expert's opinions, and prepare to address or rebut those opinions. The court also could have reasonably concluded that Mother's identification of this witness 13 months after Father filed his custody petition was solely an effort to further delay the hearing.
Moreover, Mother has not met her burden to establish prejudice. An evidentiary error requires reversal only if "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." (Cal. Const., art. VI, § 13.) An appellant is required to demonstrate "it is reasonably probable a result more favorable to the appellant would have been reached absent the error." (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 24.)
Mother makes no effort in her appellate brief to show prejudicial error, nor is there any basis in the record to conclude the outcome would have been different if Dr. Volcani had testified. It is not reasonably probable the expert testimony would have affected the court's evaluation of Mother's credibility; the undisputed facts (e.g., photographs and notes) showing Mother continued her relationship with the man who assaulted her on numerous occasions; the overwhelming evidence showing Mother has repeatedly and intentionally thwarted Father's visitations and communications with his children; and the undisputed facts that the children had substantial academic and behavioral problems while in Mother's care.
IV. Court's Ruling on Children's Testimony
Mother contends the court abused its discretion by not allowing the boys (who were 10 and seven years old) to testify.
Mother forfeited this contention because the appellate record does not contain the parties' (oral or written) arguments and/or the court's pretrial ruling on this issue. As discussed, without this information, Mother has not met her appellate burden to establish error. (See Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348; Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1589.) The fact the parties briefly referred to this ruling during the custody trial does not provide grounds for this court to adequately review the issue.
In support of her argument, Mother notes that under section 3042, subdivision (d), a child under the age of 14 may be permitted to testify "if the court determines that is appropriate pursuant to the child's best interests," and Rule 5.250(c)(3) identifies factors the court should consider in evaluating the child's best interests on the decision whether to permit the testimony. Mother then argues: "Here, nothing was considered." This unsupported assertion is insufficient to establish error on appeal. We are required to presume the court considered the proper factors, absent any indication to the contrary. The appellate record does not support any error.
Further, on the record before us, there were valid grounds for the court to decide the children's testimony was not necessary and/or would not be in the children's' best interests, including that both parents were permitted to, and did, testify about their children's desires; the children were aware of the substantial conflicts between their parents' wishes regarding custody and thus requiring them to testify could place them in a difficult emotional position; and there was substantial question whether the children would be of sufficient age and capacity to understand the nature of the questions, given the children's documented educational and behavioral issues. Moreover, there is no showing of prejudice because Mother did not provide evidence or an offer of proof that the children's testimony would have supported her case.
We also reject Mother's related challenge to Judge Hartunian's purported ruling that the court would apply " 'relaxed' " hearsay rules pertaining to the children's out-of-court statements. First she does not cite to the portion of the record in which Judge Hartunian made this ruling so it is not possible for us to properly evaluate the ruling. Equally important, Mother does not cite to anywhere in the record showing Judge Jessop applied this "relaxed" hearsay rule to her detriment. Absent this showing, Mother's challenge fails.
V. Evidence Code Section 730 Evaluation
Mother contends the court erred in failing to order an Evidence Code section 730 evaluation.
Evidence Code section 730 states: "When it appears to the court, . . . that expert evidence is or may be required by the court or by any party to the action, the court . . . may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court." The Family Code contains a similar provision: "In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child." (§ 3111; see also Rule 5.220(d).)
A court has broad discretion in deciding on the need to appoint an expert under these code sections, and the determination will not be set aside absent an abuse of that discretion. (In re Marriage of E.U. and J.E. (2012) 212 Cal.App.4th 1377, 1389; In re Daniel C.H. (1990) 220 Cal.App.3d 814, 835; Harris v. Harris (1960) 186 Cal.App.2d 788, 801.)
Mother again forfeited her right to raise this issue by failing to include the relevant portions of record. Mother does not cite to, nor have we been able to locate, a motion requesting the appointment of a child custody evaluator or the court's ruling on this issue. In addition, the appellate record contains ample grounds for the court to decline to appoint an expert. The judge had a full report from the FCS counselor and competent counsel represented the parties at the multi-day evidentiary hearing. As both counsel and the court recognized, the core issues involved factual determinations, including the credibility of the parties. Given these factual issues, the court could reasonably conclude that it did not require additional expert testimony and that it could best evaluate the children's best interests by considering the testimony and exhibits presented by the parties.
VI. Fairness of Trial
Mother lastly contends her trial was unfair and the cumulative errors violated her due process rights. Because we have found no error, the cumulative-error argument is without merit. Additionally, on our review of the entire record, we are satisfied the experienced family court judge afforded Mother the full opportunity to present evidence supporting her claims and considered the parties' evidence in a full and fair trial. Mother was represented by able counsel who presented affirmative evidence; conducted vigorous and effective cross-examination; and made forceful and reasonable arguments. The fact that the court found Mother was not credible and credited Father's evidence does not show the trial was unfair.
DISPOSITION
Judgment affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.