Opinion
H050409
04-16-2024
MELANIE H., Plaintiff and Respondent, v. WILLIAM V., Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 22FL00333)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
After a hearing, the trial court granted respondent M.H.'s application for a domestic violence restraining order (DVRO) against her husband, appellant W.V., under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).The July 25, 2022 DVRO, which is for a period of three years, also includes an order awarding temporary sole legal and physical custody of the parties' two minor children to their mother, M.H., with a schedule for unsupervised visitation by their father, W.V. The child custody order was also included in the August 8, 2022 findings and order after hearing.
All further statutory references are to the Family Code unless otherwise indicated.
On appeal, appellant W.V. contends that the trial court committed prejudicial error in the July 25, 2022 DVRO and August 8, 2022 findings and order by failing to provide a statement of reasons for awarding temporary child custody to M.V. despite her alcohol abuse, as required by section 3011, subdivision (a)(5)(A).
For reasons that we will explain, we will dismiss the appeal as moot and deny M.H.'s motion for sanctions.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Application for Domestic Violence Restraining Order
M.H. and W.V. are married and have two young children, a son and a daughter.M.H. applied for a DVRO under the DVPA, section 6200 et seq., on March 29, 2022. She sought protection from her husband, W.V., for herself and her two children and requested, among other things, a no-contact order, a stay away order, and an order for W.V. to move out of the family home.
The record reflects that a petition for dissolution of marriage has been filed in a separate proceeding.
In support of her application for a DVRO, M.H. attached her declaration detailing physical and emotional abuse by W.V. M.H. stated that W.V. would become enraged and scream verbal abuse at her in front of the children. On other occasions, W.V. yelled at their son and threaten to break his arm, became enraged when he discovered that M.H. wanted to get the Covid vaccine, and became angry with their son and hit his back. M.H. also stated in her declaration that W.V. had exhibited this angry and abusive behavior throughout their five-year marriage, including W.V. hitting their son in the face when he was a toddler.
M.H.'s application for a DVRO also included a request for child custody and visitation orders, in which she requested that she be given sole legal and physical custody of both children, with supervised visitation by W.V. at her discretion.
B. Temporary Restraining Order and Temporary Child Custody and Visitation Order
The trial court issued a temporary restraining order (TRO) on March 29, 2022, which was set to expire on the next hearing date. The TRO ordered W.V. not to abuse M.H. and their children and included a no-contact order, a stay away order, and a property restraint. W.V. was also ordered to move out of the family home. A child custody and visitation order was attached to the TRO, which gave sole legal and physical custody of the children to M.H. and supervised visitation by W.V. at M.H.'s discretion.
Prior to the hearing held on May 3, 2022, additional declarations were filed regarding the TRO and custody and visitation order. M.H.'s attorney stated in his declaration that M.H. had experienced a relapse and was undergoing inpatient medical "detox" from alcohol. M.H. had sent the children for an extended visit with their aunt and uncle in Southern California.
Both of M.H.'s sisters-in-law submitted declarations regarding the abuse they had observed, including W.V. becoming angry with his son, dragging him across the room, and shoving his face into a plate of food. W.V. had also been seen to hit, slap, shake, and drag his son across the lawn of their family vacation house on multiple occasions. M.H. filed a second declaration, stating that W.V. used marijuana to the extent that he was unable to parent, and also stating that he had attempted to rape her and keep her away from her family.
W.V. submitted a written response, stating that he did not agree with the orders included in the TRO. Additionally, W.V. requested an order of child custody that included joint legal custody and gave him sole physical custody. W.V. also submitted a declaration in opposition to M.H.'s application for a DVRO, in which he denied abusing M.H. or their children. W.V. also stated that he believed M.H. had sought a DVRO against him in retaliation for W.H.'s attempts to get her help for her depression, eating disorder, and alcoholism. Further, W.H. stated that one day in April 2022 his mother had found M.H. intoxicated and passed out at home and also had found that the children had not gone to school or been fed.
In the May 3, 2022, minute order, the trial court ordered that all prior orders remain in effect pending the next hearing date.
C. DVRO and Child Custody and Visitation Order
The hearing on M.H.'s application for a DVRO was set for July 7, 2022. The parties submitted additional declarations before the hearing. W.V. submitted the declarations of three former co-workers attesting to their observations that W.V. was a good husband and father In her declaration, W.V.'s mother described the incident in April 2022 in which she was called to the family home after M.H. and her children failed to attend a play date, and W.H. was found intoxicated and the children in need of food. W.V.'s therapist stated in her declaration that W.V. had attended anger management/domestic violence therapy sessions and in her opinion W.V. did not pose a threat of violence to his wife or children.
M.H. submitted a declaration in which she acknowledged her relapse in April 2022 and stated she had completed an in-patient treatment program. M.H. also stated in her declaration that upon her return to the family home, she found that that someone had been in the house, canceled her Wi-Fi account, and had taken her personal files and the passports belonging to her and the children.
During the hearing, the trial court asked the parties if they agreed with the tentative ruling to grant M.H.'s request for a DVRO. W.V.'s counsel responded, "Yes, Your Honor, we do agree with the tentative and also have a couple clarifying point questions." As a "clarifying point," W.V. requested that the children not be included in the DVRO. The trial court declined the request on the basis of the evidence, finding that it was appropriate for the children to be protected parties.
At the conclusion of the July 7, 2022 hearing, the trial court made the following findings: "I find by a preponderance of the evidence that a violation of the domestic violence prevention act has been committed by [W.V.]. Pursuant to that finding I find pursuant to Family Code Section 3044 that [W.V.] should not be allowed at this time sole joint or legal or physical custody and I award to [M.H.] at this time sole, legal and physical custody with unsupervised visitation to [W.V.] on Friday evening to Sunday evening at 6:00 p.m. and alternate weekends. And I also refer the parties to Family Court Services for mediation on further discussion of custody and visitation."
The trial court granted M.H.'s request that the court's rulings be divided into two orders. The July 25, 2022 DVRO granted M.H.'s request for a DVRO and ordered W.V. not to abuse M.H. or their children. The DVRO also included a no-contact order (with exceptions relating to visitation), a stay away order (with an exception relating to visitation), an order to move out of the family home, and a property restraint. The expiration date for the DVRO is July 7, 2025.
The child custody and visitation order attached to the July 25, 2022 DVRO provides that M.H. shall have sole legal and physical custody of the children and a schedule of visitation for W.V.
The findings and order after hearing filed on August 8, 2022, includes, among other things, the trial court's finding that, pursuant to section 3044, W.V. should not be allowed to hold sole or joint custody of the children, and awarding sole legal and physical custody to M.H. The August 8, 2022 findings and order also referred the parties to Family Court Services for counseling and a recommendation regarding custody and visitation.
During the hearing, W.V. did not attempt to rebut the section 3044, subdivision (a) 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." W.V. also did not object on the grounds that the trial court had failed to state the court's reasons for finding that awarding custody to M.H. was in the children's best interest despite the evidence of her alcohol dependency, pursuant to section 3011, subdivision (a)(5)(A).
D. Subsequent Proceedings
On September 2, 2022, the trial court adopted on an interim basis the recommendations following child custody counseling with Family Court Services that M.H. have sole legal and physical custody of the children, with a parenting plan in which the parties shared time with the children according to the schedule provided in the plan.
On September 28, 2022, W.V. filed a request for temporary emergency orders changing legal and physical custody of the children to W.V., with M.H. to have supervised visitation upon completion of treatment for alcohol dependency. The request for temporary emergency orders was supported by W.V.'s declaration, in which he stated that on September 24, 2022, a parent who brought a meal to M.H. and her children, who were sick with Covid, found that M.H. was unable to walk and had been drinking. The parent contacted the authorities, and Child Protective Services removed the children and placed them in W.V.'s care after they spent the night in a hotel with a teacher. A welfare check the next day showed that M.H. needed to be taken to the hospital. W.V. requested that he be given sole legal and physical custody of the children and exclusive use of the family home and vehicle.
The September 28, 2022 temporary emergency order provides that temporary physical custody, care, and control are awarded to W.V., with M.H. to have supervised visitation upon completion of an alcohol dependency recovery program. The October 5, 2022 minute order states that a hearing was held, and the trial court found that W.H. had rebutted the section 3044 presumption only as to the temporary emergency situation and it was in the best interests of the children to remain with W.V. temporarily. The trial court also ordered M.H. to have professionally supervised visitation.
Thereafter, the November 16, 2022 minute order reflects that M.H. requested modification of her visitation schedule and had provided documentation of her treatment plan. The findings and order filed on November 16, 2022, continued M.H.'s visitation schedule. The December 23, 2022, findings and order stated that W.V. had rebutted the section 3044 presumption in an emergency temporary situation only, and that it was in the children's best interests for them to remain with W.V. temporarily. M.H.'s visitation schedule was continued.
In the May 1, 2023 order the trial court adopted the recommendations following child custody counseling with Family Court Services, which included joint legal custody with W.V. to have sole physical custody, and a parenting plan. The May 1, 2023 order also ordered W.V. to follow the terms of the DVRO until July 7, 2025.
III. DISCUSSION
W.V. filed a timely notice of appeal from the August 8, 2022 findings and order. This court ordered W.V. to show cause why the appeal should not be dismissed as taken from a nonappealable interim custody order. W.V. responded that he is appealing a domestic violence restraining order. After receiving a copy of the July 25, 2022 DVRO that W.V. had stated was the subject of this appeal, this court discharged the order to show cause.
On appeal, W.V. contends that the trial court committed prejudicial error in the July 25, 2022 DVRO by failing to provide a statement of reasons for awarding temporary child custody to M.V. despite her alcohol abuse, as required by section 3011, subdivision (a)(5)(A). W.V. requests that the matter be remanded with directions to the trial court "to make factual findings as to why awarding joint or sole child custody to [M.H.] is in the children's best interest, and to state those findings on the record during a re-hearing on the issue, or to provide a written statement of reasons that meets the statutory requirements of § 3011."
Section 3011, subdivision (a)(5)(A) provides in part: "When allegations about a parent pursuant to paragraph (2) or (4) [alcohol abuse] have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody or unsupervised visitation to that parent, the court shall state its reasons in writing or on the record that the order is in the best interest of the child and protects the safety of the parties and the child."
We will begin our evaluation with a brief overview of the DVPA.
A. The DVPA
Under the DVPA, the trial court may issue an order to restrain a person in order "to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved" (§ 6220) upon "reasonable proof of a past act or acts of abuse" (§ 6300, subd. (a)). Domestic violence is abuse against a spouse, among others. (§ 6211.)
A DVRO issued under the DVPA may enjoin specific acts of abuse, exclude a person from a dwelling, or enjoin other specified behavior. (§ 6218; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1494 (Nadkarni).) The DVPA also authorizes the trial court to make orders regarding child custody and visitation in conjunction with a DVRO after notice and a hearing. (See §§ 6227; 6340, subd. (a)(1); 6323, subd. (a)(1).)
B. Presumption Regarding Child Custody Upon a Finding of Abuse Under the DVPA
Section 3044, subdivision (a) provides in part: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child's siblings, . . . 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 Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence."
Section 3020, subdivision (a) provides: "The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child."
Thus, "a finding of domestic abuse sufficient to support a DVPA restraining order necessarily triggers the presumption in section 3044" because the "DVPA restraining order must be based on a finding that the party being restrained committed one or more acts of domestic abuse." (S.M. v. E.P (2010) 184 Cal.App.4th 1249, 1267.)
"Determinations about the custody of children are to be made based on a determination of the child's best interests. (. . ., §§ 3011, 3022.) In making that determination, the court must consider, among other relevant factors, the health, safety, and welfare of the child; any history of abuse by one parent against the child or the other parent; the amount and nature of the existing contact between the child and parents; and the habitual use of controlled substances or alcohol by either parent. (. . ., § 3011, subds. (a)-(d).)" (Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1020.)
C. Analysis
At the outset, we consider two threshold issues raised by M.H. in response to W.V.'s contention of trial court error.
1. Appealability
M.H. first argues that W.V. appeals from a nonappealable temporary child custody order, since the August 8, 2022 order did not resolve all custody issues and contemplated further custody proceedings, which did take place. Since the August 8, 2022 temporary custody order is not an appealable order, M.H. asserts that this court lacks jurisdiction and the appeal must be dismissed.
W.V. responds that the July 25, 2022 DVRO and the temporary custody order are linked, such that the trial court's flawed order awarding child custody to M.V. in the August 8, 2022 findings and order may be reviewed on appeal. W.V. relies on the principle stated in In re Marriage of Willis &Costa-Willis (2023) 93 Cal.App.5th 595, 605 (Willis): "When the part of the judgment appealed from is so 'interwoven and connected' with the rest of the judgment such that the appeal involves a consideration of the whole judgment, a reversal should extend to the entire judgment. [Citation.] 'The appellate court, in such cases, must have power to do that which justice requires and may extend its reversal as far as may be deemed necessary to accomplish that end.' [Citation.]"
However, in his opening brief, W.V. clarifies that he is not seeking review of the merits of the DVRO, with the exception of the attached custody order: "Specifically, [W.V.] contests the restraining orders against him with respect to his children . . . and the award of sole legal and physical custody of the children to [M.H.], with award of visitation to Appellant only on alternating weekends." W.V. has not argued that the trial court abused its discretion in issuing the July 25, 2022 DVRO upon the court's finding that W.V. had committed domestic abuse in violation of the DVPA or the court's finding that that it was appropriate for the children to be protected parties. (See Nadkarni, supra, 173 Cal.App.4th at p. 1495 [DVRO is reviewed for abuse of discretion].)
W.V. is therefore appealing only from the child custody order included in the July 25, 2022 DVRO and the August 8, 2022 findings and order. We agree with M.H. that the child custody order is a temporary order because the record reflects that no final determination regarding custody had been made. (See Smith v. Smith (2012) 208 Cal.App.4th 1074, 1090.) Moreover, it has been held that a DVRO does not constitute a" 'de facto final custody determination[].'" (Ibid.)
We are also not convinced that the August 8, 2022 custody order is so intertwined with the other provisions of the July 25, 2022 DVRO that a consideration of the other provisions of the DVRO is necessary to do justice in this matter. (See Willis, supra, 93 Cal.App.5th at p. 605.) As we have noted, W.V. has not sought review of the trial court's findings that he committed domestic abuse and it was appropriate for the children to be included as protected parties in the DVRO. W.V. argues only that the trial court erred in failing to make findings pursuant to section 3011, subdivision (a)(5)(A) in giving child custody to M.H. despite her alcohol abuse, and seeks a remand for the court to make such findings.
Accordingly, we determine that the child custody order included in the July 25, 2022 DVRO and the August 8, 2022 findings and order is a nonappealable temporary child custody order. However, as we will discuss, even assuming that the child custody order included in the July 25, 2022 DVRO and the August 8, 2022 findings and order is an appealable order, we determine that the order is moot.
2. Mootness
Alternatively, M.H. contends that the August 8, 2022 temporary child custody order is moot because that order has been superseded by subsequent child custody orders, and no longer governs the custody of the children.
W.V. disagrees, arguing that the child custody order is not moot because "granting the relief requested-remanding to the trial court to consider [M.H.'s] alcohol abuse in [sic] whether a DVRO was justified for the best interests of the children-could lead to an analysis required by the statute which could lead to a denial of the DVRO. Although [W.V.'s] position has been vindicated by the trial court in awarding him full physical custody, a DVRO is still in effect and lasts three years from date of issuance and carries with it substantial obligations."
Having reviewed the record, including the augmented record, we determine that the appeal is moot. "It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed." (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557; see also Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.) Thus, appellate courts will neither decide moot controversies nor render decisions on abstract propositions. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
Appellate courts ordinarily "do not take judicial notice of evidence not presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) This is based upon the fundamental principle that "an appellate court will consider only matters which were part of the record at the time the judgment was entered. [Citation.]" (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) An exception to this rule exists in cases in which "subsequent events have caused issues to become moot [citation]." (Ibid.) We therefore grant M.H.'s unopposed motion to augment the record with records of trial court proceedings that occurred subsequent to the August 8, 2022 findings and order. We take judicial notice of the court records submitted with the motion. (Evid. Code, § 452, subd. (d).)
" 'Stated differently, moot cases "are '[t]hose in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist.'"' [Citation.] 'The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.' [Citation.]" (Committee for Sound Water &Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, 405 (Committee).)
Here, it is undisputed that the trial court issued child custody orders subsequent to the August 8, 2022 findings and order, including the most recent order in our record, the May 1, 2023 order. In that order, the trial court adopted the recommendations following child custody counseling with Family Court Services, which included joint legal custody and gave W.V. sole physical custody. Thus, any previous child custody orders, including the July 25, 2022 DVRO and the August 8, 2022 order giving sole legal and physical custody to M.H., are no longer in effect, and no effectual relief can be provided with respect to those previous orders. (See Committee, supra, 79 Cal.App.5th at p. 405.) W.V.'s contention that review of the August 8, 2022 child custody order could lead to reversal of the July 25, 2022 DVRO lacks merit in light of W.V.'s clarification in his opening brief that he is not seeking review of any provisions of the DVRO with the exception of the child custody order.
" 'When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) We will therefore dismiss the appeal as moot.
Having reached this conclusion, we need not address M.H.'s other arguments that section 3011 does not require a statement of reasons; W.V. waived his contention that the trial court erred in failing to provide a statement of reasons by failing to object; and any trial court error with respect to a statement of reasons under section 3011 was harmless error.
D. Motion for Sanctions
M.H. has filed a motion for sanctions arguing that W.V. should be sanctioned for appealing from August 8, 2022 temporary child custody order that is clearly nonappealable and has been superseded by subsequent child custody orders. M.H. also contends that W.V. misled this court by advising that he was appealing from the July 25, 2022 DVRO that is appealable as an injunction (Code Civ. Proc, § 904.1, subd. (a)(6)), although he acknowledged in his opening brief that he was not appealing from the restraining order. M.H. has supported her motion for sanctions with a declaration of appellate counsel, which states that "[t]o date, my firm has incurred a total of $44,650 in fees and expenses for services provided to [M.H.] in this appeal."
We understand W.V. to argue in his opposition to the motion for sanctions that sanctions are not warranted because he properly appealed from the appealable July 25, 2022 DVRO. W.V. explains that "[t]he aim of the appeal is to overturn the DVRO, or rather to remand to the trial court to reconsider the DVRO in light of [M.H.'s] issues with alcohol." W.V. further asserts that "[i]f the trial court's analysis of the best interests of the children was flawed when making custody determinations in connection with the DVRO, then the DVRO must be overturned in its entirety since these issues are interwoven."
W.V. also denies that the appeal is moot, again arguing that "[t]he appeal is not moot because granting the relief requested-remanding to the trial court to consider [M.H.'s] alcohol abuse in whether a DVRO is justified for the best interests of the children, could lead to a denial of the DVRO."
Code of Civil Procedure section 907 provides that "[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." California Rules of Court, rule 8.276(a)(1), authorizes an appellate court to impose sanctions against a party or an attorney for "[t]aking a frivolous appeal or appealing solely to cause delay."
In In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), the California Supreme Court set forth the standard for determining whether an appeal is frivolous and deserving of sanctions: "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (Id. at p. 650.)
However, our Supreme Court in Flaherty, supra, 31 Cal.3d 637, also cautioned that sanctions "should be used most sparingly to deter only the most egregious conduct." (Id. at p. 651.) Thus, "[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal." (Id. at p. 650.)
In the present case, we determine that M.H. has not shown in her motion for sanctions that W.V. prosecuted this appeal for an improper motive or that W.V.'s conduct in bringing the appeal was so egregious that sanctions are warranted. Following the direction of our Supreme Court in Flaherty, supra, 31 Cal.3d at page 651 that sanctions "should be used most sparingly," we therefore deny M.H.'s motion for sanctions.
We decline W.V.'s alternative request that he be allowed to amend his briefs to clarify the basis of his appeal. We also deny W.V.'s request that sanctions be imposed on M.H. for filing a frivolous motion for sanctions.
III. DISPOSITION
The appeal is dismissed as moot. Respondent's motion for sanctions on appeal is denied. Costs on appeal are awarded to respondent.
WE CONCUR: DANNER, J. BROMBERG, J.