Opinion
F073760
02-15-2018
In re the Marriage of MONICA and RAFAEL G., JR. MONICA G., Appellant, v. RAFAEL G., JR., Respondent.
Monica G., in pro. per., for Appellant. Rafael G., Jr., in pro. per., for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VFL-203589)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Monica G., in pro. per., for Appellant. Rafael G., Jr., in pro. per., for Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J. --------
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Appellant Monica G. (mother) appeals from a recent order in her ongoing custody dispute with her ex-husband, appellee Rafael G. (father), that did not award her custody of their minor children. Mother and father are both proceeding in propria persona. Although father attempted to file a responsive brief, this court struck it, following an objection, for failing to comply with court rules. Father received an opportunity to correct the errors, but submitted no further briefing. In addition, mother only filed one reporter's transcript, for the February 24, 2014, hearing referenced below. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Although the record on appeal is sparse concerning the earliest actions in this matter, mother's brief alleges the parties initially divorced in or around 2003. The parties eventually began a long-running series of contentious custody disputes regarding their two minor children, R.G. and L.G. An order entered in early 2010 gave custody of the two children to mother, subject to visitation by father. By September of that year, the parties were again before the court with both parties seeking modifications to the custody schedule. The court generally rejected these requests, subject to minor modifications.
In January 2014, father filed a request to modify the custody order, claiming R.G. had been living with him for some time and that L.G. was suffering in school and subject to abuse in mother's home. Mother failed to appear at the February 24, 2014, hearing on father's petition. Although initially hesitant to change custody with respect to L.G., the court ultimately did so after father alleged abuse by mother's boyfriend. Father received custody of both children, with mother receiving visitation.
Mother immediately filed a motion to set aside this order, claiming improper service. On May 5, 2014, the court held a hearing on mother's claims and determined they lacked merit. On or around June 30, 2014, mother then requested a custody modification and, on July 10, 2014, filed a request that father be held in contempt. On August 5, 2014, following a mediation which resulted in no agreement, the court adopted the recommendation of the mediation counselor and made no major changes to the custody plan, leaving primary physical custody with father.
On December 22, 2015, mother filed another motion for contempt, !CT 230-231)! and another request to modify custody. This is the operative motion in this appeal. On or about December 24, 2015, the parties appeared before the court to discuss custody issues. At this hearing, the court made no modifications to the custody orders, ordered father to respond to the latest request, and ordered mother to complete previously required parenting classes. The matter was continued until February 1, 2016, at which time no modifications were made to the custody order but both children were ordered to interview with the mediation counselor.
These interviews occurred by March 1, 2016. In his interview, R.G. stated mother was constantly trying to convince him to come live with her, but that they had a poor relationship. R.G. indicated he wanted to continue living with father and only visit with mother at his discretion. In her interview, L.G. stated mother had told her she was coming to discuss with the court where she wanted to live. L.G. told the counselor she lived with father now because mother forgot to check the mail one day and missed court, causing the judge to give father custody. L.G. did not express a strong connection with father. When discussing mother's living arrangements, L.G. initially stated mother lived alone when the truth was mother lived with others and was seeking her own place. L.G. stated she wanted to live with mother and visit father every weekend, but that mother had told her to consider visiting every other weekend. In summary, the counselor found R.G. to be the more accurate and mature child and, while noting L.G. had a strong desire to live with mother, expressed concern that mother appeared to be coaching L.G. on what to say. Accordingly, the counselor recommended giving father custody of R.G. subject to visitation with mother at the minor's discretion. With respect to L.G., the counselor recommended mother go through additional parenting classes and, if successful, receive custody of L.G. at the beginning of the next school year.
On March 8, the parties again convened before the court. The matter was continued to April 4, 2016, although visitation between mother and R.G. was modified to be at the discretion of R.G. and father. Shortly before the April hearing date, mother filed several documents seeking to add to her contempt claims against father, also scheduled to be heard on April 4.
At the pretrial hearing on April 4, however, mother requested the contempt proceedings be dismissed. The parties then proceeded to a contested hearing on the custody issues raised in mother's December 22, 2015, motion. Following this hearing, the court modified custody with respect to R.G. such that visitation with mother was at R.G.'s discretion. No changes were made to the permanent custody arrangement with L.G. at that time, but mother was ordered to provide proof she had completed court ordered parenting classes and the court entered a summer custody schedule giving each parent week to week custody. Each party was further ordered to provide a declaration regarding the children's status and school records by July 22, 2016, and a review hearing was set for August 3, 2016. The clerk's minutes further state the court "adopted the recommendation of the Child Custody Recommending Counselor dated March 1, 2016."
This appeal timely followed.
DISCUSSION
We note that mother's brief appears to raise concerns with at least two different orders. Initially, mother states, "The last hearing prior to February 24, 2014, which order is being appealed before this court as void, was 2010," suggesting she is appealing the February 24, 2014, order. Her fact section also heavily disputes the correctness of this order. Mother later states, "This appeal is taken from the 04/04/2016 judgement" and, in her fact section, states "the issue being appealed" is the fact the judge did not take into account L.G.'s desire to live with mother. Mother's actual argument focuses exclusively on alleged errors with the April 2016 order, but her conclusion asks this court to "declare the [February 24, 2014,] judgment void, and vacate the order from that court, reverting back to the order from the superior court in 2010."
With respect to mother's concerns about the February 24, 2014, order, her appeal is untimely. Any appeal of that order was required to be filed long ago. (See Cal. Rules of Court, rule 8.104(a)(1)(C).) We will not review those stale concerns, particularly in light of the extensive substantive litigation since.
We also have significant concerns regarding the appealable nature of the April 4, 2016, order. It is well settled that temporary custody orders are not appealable. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 559-560.) The April 4, 2016, order appears to contemplate further modifications to custody, both in its setting of a future review and in its apparent consistency with the counselor's recommendation that L.G. live with mother after suitable parenting classes are completed. Moreover, there is no entry of judgment on the docket and, in fact, additional orders have since been issued. However, there is case law suggesting orders after contested hearings are appealable and the lack of a transcript disclosing the court's full intentions at the hearing leave this issue murky given the propria persona status of the litigants. (See Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378.)
We need not resolve that issue, however, because the trial court did not abuse its discretion when deciding not to award custody of L.G. to mother at the April 4, 2016, hearing. "The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) This is so because a "judgement or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) " '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. [Citations.]' [Citation.] 'Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.' [Citation.] 'Hence, conclusory claims of error will fail.' " (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.)
In this case, the baseline visitation schedule placed primary physical custody with father. Under controlling standards, when seeking to demonstrate changed circumstances warranting a modification of an existing custody order, "the noncustodial parent has a substantial burden to show that ' "some significant change in circumstances indicates that a different arrangement would be in the child's best interest." ' " (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088.) In reviewing mother's request for a modification of primary physical custody with respect to L.G., the court was obligated to consider whether the child's best interests would be served by changing custody, an analysis guided by Family Code sections 3011 and, potentially, 3042.
Although mother's brief alleges the trial court failed to consider the relevant factors set forth for determining a child's best interest, the record does not support this conclusion. In fact, it shows just the opposite. The court held multiple hearings on mother's request and received input from a counselor that had interviewed the children. The court's subsequent modifications, including the decision to deny making any changes to the custody arrangement for L.G. at the April 2016 hearing, were in line with the recommendations made to the court. These recommendations considered the children's relationship with both parents, their health, safety, and welfare, allegations of abuse and drug use, and the children's expressed desires. Indeed, as best the record reflects, the trial court appeared to place significant weight on the children's stated preferences. Nothing in the record shows, or even implies, the trial court failed to properly consider mother's request under the applicable law and we find nothing in the record suggesting the trial court abused its discretion in failing to find a change in circumstances warranting a change in custody for L.G. While mother cites extensively from many cases in her brief, these cases generally set forth the analysis required of the trial court and, in our review, none appear to support an assertion the trial court abused its discretion in this instance.
DISPOSITION
The order is affirmed. In the interests of justice, each side shall bear their own costs on appeal.