Opinion
A149941
06-11-2018
In re the Marriage of CLAIRE LOUISE MYERS and JOHN F. MULCAHY. CLAIRE LOUISE MYERS, Respondent, v. JOHN F. MULCAHY, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. FDI-10-772984)
John F. Mulcahy (John) appeals from the statement of decision issued by the family court in his dispute with his former wife Claire Louise Myers (Claire) about the custody of their two minor children. After a court-appointed custody evaluator submitted her written evaluation and recommendations, John and Claire stipulated that the family court would hold an evidentiary hearing to resolve five specific issues, which pertained to the only contested recommendations in the evaluator's report. The hearing was held, and John now challenges the statement of decision that followed, arguing that the family court abused its discretion in five respects: by appointing a counsel for the children to make recommendations relating to time share and custody, by denying motions to strike the recommendations made by the children's counsel and the report of the court-appointed custody evaluator, by ordering continuing therapy for the children, and by not addressing in the statement of decision John's claims that Claire had breached the parties' marital settlement agreement and made false accusations about him. Because John has not met his burden to show prejudicial error, we shall affirm.
We follow Respondent's convention in referring to the parties by their first names. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
John and Claire married in 2007, had two children (Minors), and separated in 2010, when Minors were 2 and 3 years old. In 2011, after a comprehensive mediation, they signed a marital settlement agreement (Agreement) that was incorporated in a judgment of dissolution filed in 2012 in San Francisco Superior Court. Under the Agreement, John and Claire shared legal and physical custody of Minors, who were then primarily residing with Claire. The Agreement provided that Minors would eventually split time evenly between their parents, and established parenting and visitation schedules, including a "Custody and Vacation Schedule in the Event of Parental Relocation."
In 2014, John, who was then living in New York, filed a request for an order to enforce the Agreement, claiming that Claire had violated provisions relating to travel, custody, mediation, communication, and education of Minors. In response, Claire submitted declarations expressing concerns about John's parenting. Further declarations and requests were filed by both sides. Among other things, Claire requested that their assigned Family Court Services mediator conduct a "Tier 2 evaluation" that would focus on custody and visitation arrangements consistent with Minors' best interests. A. The Court Appoints Minors' Counsel
John represented himself in the family court, and represents himself here as well. Claire has been represented by counsel throughout.
Under Superior Court of San Francisco County Local Rules, rule 11.15 (Rule 11.15), Family Court Services (FCS), a division of the Unified Family Court, may provide non-confidential mediation services, known as Tier II services, as well as confidential mediation services. "Tier II services may include, but are not limited to: fact-finding; interviews of children; interviews of collateral sources; document requests and reviews; service coordination; and, service referral. All non-confidential services offered through FCS staff will be provided by a mediator other than the mediator who provided confidential mediation unless the parties specifically waive confidentiality." (Rule 11.15(B).)
At a hearing in March 2015 the family court (Hon. Anne-Christine Massullo) ordered the appointment of Mark Wasacz as counsel for the children (Minors' counsel) under Family Code sections 3150 through 3153. The form order set forth the rights and duties of Minors' counsel under the statutes and the family court added, "1. Counsel for the children shall meet with the children and any other party he considers necessary, to provide to the Court a recommendation regarding a time share and vacation schedule that meets the best interests of the children over the next 12 months. [¶] 2. Counsel for the children shall make any other recommendations he believes serve the best[] interests of the children regarding limitations, if any, on parental behavior while the parent has custody of the children."
Statutory references are to the Family Code unless otherwise noted.
In May 2015 Minors' counsel filed his recommendations, including recommendations that Minors begin individual therapy, that visitation between Minors and John be suspended until Minors had been in therapy for two months, and that any visitation be monitored by him or by Minors' au pair. Minors' counsel outlined the facts supporting his recommendations, writing that John moved to Ireland less than two months after the Agreement was signed, when Minors were 3 and 4 years old. Although the Agreement provided for the possibility that John would move to a distance where Minors would have to fly to visit him, John's decision to move to Ireland and then to New York "effectively ended his role as an active and engaged father to Minors and began his role as a visitor in [their] lives," leaving Claire as Minors' de facto sole legal and physical custodian. Noting "credible accounts" of three visits between John and Minors, Minors' counsel stated that the visitation contemplated by the Agreement in the event of a parent's relocation failed to consider the effect of such visitation on young children after extended absence by the visiting parent, and "has not been working, is not in Minors' best interests, and in some instances has been detrimental to one or both of [them]." Minors' counsel stated that John was vetoing efforts to get Minors "therapeutic relief as has apparently long been advised by school personnel and pediatricians." Minors' counsel urged the family court to limit John's veto power by giving Claire legal custody, and expressed hope that the court would order therapy for Minors, that the therapists could provide feedback as to how best to proceed, and that John would shift his focus to Minors' needs, rather than to the adult-centered terms of the Agreement.
In the filed statement, Minors' counsel summarized what he had done by way of investigation: he spoke three times by phone with John, who expressed the intention not to meet with Minors' counsel in person before the next scheduled hearing; reviewed and discussed with John documents that John provided, attempted to contact three people John identified, and had a conversation with one of the three; met with Claire twice and spoke with her by phone about six times, often to discuss coordinating his access to Minors; reviewed documents Claire provided, and met with four people Claire identified; and met or observed Minors in person on six separate occasions.
John then moved to strike Minors' counsel's recommendations and remove him as Minors' counsel. He argued that Minors' counsel did not meet the standards that apply to a custody evaluator under section 3110.5, did not meet personally with John or the witnesses John identified, failed to contact Minors' school or pediatricians, failed to investigate Claire's "erroneous representations" and exceeded the scope of the family court's order appointing him by recommending therapy for Minors.
At a hearing in May 2015, the family court (Hon. Newton J. Lam) heard argument from John, Minors' counsel and Claire's counsel. Minors' counsel argued that he was not governed by the rules pertaining to custody evaluations, but instead was governed by the rules pertaining to minors' counsel. He said he had followed Judge Massullo's directions in providing recommendations, that he had not purported to provide a report, that he was not charged with being an objective party, but rather was an advocate for his clients and that his advocacy was consistent with the existing rules, which gave him "a great deal of latitude in deciding who I meet with and how I conduct my job." The family court denied John's motions, explaining that whatever Minors' counsel's recommendations might be, he was representing Minors' interests, as he was appointed to do. B. First Long-Cause Hearing
There followed an evidentiary hearing that ran for four days in May and June 2015, at which John presented evidence and argument to enforce the Agreement and Claire, through her counsel, presented evidence and argument to modify it. Minors' counsel relied on evidence introduced by Claire to argue for "therapeutic intervention" for Minors individually and suspension of contact between Minors and John until there was some feedback from the therapists.
After hearing argument from John, Minors' counsel, and Claire's counsel, including statements by John that at least one of the children would likely benefit from therapeutic intervention and that a psychologist should interview Minors and make a recommendation to the court, the family court temporarily suspended John's visitation pending a psychological evaluation of Minors. The court later ordered Minors to begin individual therapy, and to have weekly online video calls with John once they had met with their therapists. C. Custody Evaluation
In September 2015, the court appointed Deborah Roberto, Ph.D., to conduct "a full child custody evaluation" under the authority of section 3111 and Evidence Code section 730. John agreed that Dr. Roberto could have ex parte communications with Minors' counsel and access to information Minors' counsel had gathered that concerned their best interests.
In October 2015, John filed a request for orders, including an order lifting the stay on his visitation. Minors' counsel filed a status conference statement reporting that Minors were engaged in therapy, that the therapists felt there should not be visitation until the conclusion of the custody evaluation, and recommending that the online video calls, which had become "problematic" because of inappropriate information and instructions John relayed to Minors, be monitored by an adult.
In November 2015, John again requested an order striking Minors' counsel's recommendations and vacating Minors' counsel's appointment. John argued that there was no statutory foundation for the court's directive that Minors' counsel make recommendations regarding the time share and visitation schedule, that the process by which counsel carried out his investigation was deficient, and that counsel deliberately misrepresented to the court Minors' therapists' recommendations concerning John's visitation.
After a hearing in December 2015, the family court denied the request to vacate Minors' counsel's appointment, and granted John, who was then residing in San Francisco, supervised weekly visitation. The supervised visits were ordered to be extended at a hearing in January 2016.
Dr. Roberto submitted a detailed custody evaluation in March 2016, based on her consultations with John, Claire, Minors' counsel, Minors, Minors' therapists, and others, including friends and family members requested by John and Claire; her review of documents submitted by the parties as well as supervised visitation reports and Minors' counsel's status reports; and her administration of psychological tests to John and Claire. Her evaluation included 13 specific recommendations. Minors' counsel asked the court to implement Dr. Roberto's recommendations as a package, and John asked the court to implement just one—that he have unsupervised visits, beginning with 8-hour visits on Sundays. D. Second Long Cause Hearing
In April 2016, the family court (Hon. Monica F. Wiley) approved a stipulation signed by John, Claire and Minors' counsel (Stipulated Order) that limited the disputed issues following Dr. Roberto's evaluation and set a method of resolving them through an evidentiary hearing set for May 2016. Five issues were to be resolved: John's objections to Dr. Roberto's recommendation that Claire have primary legal decision-making authority; the parties' different positions regarding the recommendation that John have unsupervised visitation; John's objections to the recommendation that the parties wait six months for a further status review; John's objections to the recommendation that at the six-month review an assessment would be made whether his custodial time be increased to include a week-long vacation; and John's objection to the recommendation that Minors remain in weekly psychotherapy.
After the Stipulated Order was entered, and in advance of the scheduled hearing, John asked the court to strike Dr. Roberto's evaluation, remove her as custody evaluator, appoint a new custody evaluator, and order unsupervised visitation, which, he said, would "enable a proper, non-prejudicial, custody evaluation." John argued that the results of one of the psychological tests Dr. Roberto administered (the Minnesota Multiphasic Personality Inventory, II or MMPI-2) were invalid. He claimed that the MMPI-2 answer sheet that Dr. Roberto attributed to him was not his, suggesting that this was a result of Dr. Roberto failing to follow the American Psychological Association guidelines for the test's administration. He argued that Dr. Roberto's report was inadmissible because the invalid MMPI-2 test results formed the basis of her analysis and recommendations.
At the beginning of the May 2016 hearing, the family court denied John's motion to strike Dr. Roberto's report, stating that the issues John raised went to the weight of the report and not the admissibility, and noting that John would have the opportunity to cross-examine Dr. Roberto about the administration of the test and any test data that she used in forming her opinions and recommendations. Three days of evidentiary hearings followed, at which the court heard testimony from Dr. Roberto, John, Claire, and a consultant who had been proposed as a visitation supervisor.
In August 2016, the family court issued a proposed statement of decision, to which John and Claire filed objections. In September, the family court issued its statement of decision, describing the proceeding as "a bitterly contested custody battle." The family court found that "[t]there is a high degree of conflict between the parties," and that "[w]eekly psychotherapy visits for the [Minors] will be beneficial because the family has a history of instability in terms of [John's] relationship with [them] and this will give [them] an opportunity to speak to someone outside of [John or Claire]." The court also found that Minors "value talking to their therapist about their feelings."
The court found that because of the conflict between the parties, joint legal custody was not then in Minors' best interest, and that Claire was in the best position to foster the relationship between Minors and John; it therefore ordered that Claire have primary legal and physical custody. The court ordered unsupervised overnight visits on alternating weekends from Saturday morning to Sunday afternoon, to increase after about six weeks to overnight visits on alternating weekends from Friday afternoon to Sunday afternoon. The parties were to return to court for a review hearing on parenting time in about two months. The court ordered Minors to remain in weekly psychotherapy with their present therapists, each of whom was to "receive a copy of the custody evaluation to provide a better understanding of the family dynamics." John and Claire were ordered to equally divide the costs of the therapy to the extent not covered by insurance.
After briefing of the appeal was completed, we granted the application of Jon B. Eisenberg for leave to file an amicus brief in support of John. Amicus states that his interest in the case is limited to the proper role of minors' counsel, and he takes no position on other issues before the court in this appeal. We granted the application to join Mr. Eisenberg's amicus brief filed by the Amicus Curiae Committee of the Northern California Chapter of the American Academy of Matrimonial Lawyers.
DISCUSSION
A. Appointment and Recommendations of Minors' Counsel
John argues that the family court abused its discretion in appointing Wasacz as Minors' counsel, claiming that there is no legal foundation for the court's instructing him to recommend a 12-month time share and vacation schedule that meets Minors' best interests and to provide other recommendations that serve their best interests regarding the behavior of the parents while they have custody. Separately, John argues that the family court abused its discretion in "accepting" Minors' counsel's recommendations, which were filed with the family court in May 2015, and which, John claims, rested on Minors' counsel undertaking his work in a manner inconsistent with professional standards. We understand this second argument as a challenge to the family court's denial of John's request to strike those recommendations.
1. Applicable Law
The family court appointed Minors' counsel under the authority of section 3150, subdivision (a), which "provides that '[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 Rules 5.240, 5.241, and 5.242 of the California Rules of Court.' [¶] California Rules of Court, rule 5.240 (hereafter all [undesignated] rule references are to these rules) sets forth specific factors the court should take into account in determining whether to appoint minor's counsel . . . . Rule 5.241 addresses the proper payment of the minor's counsel, and . . . Rule 5.242 addresses the qualifications, rights and responsibilities of the minor's counsel." (In re Marriage of Metzger (2014) 224 Cal.App.4th 1441, 1446 (Metzger).)
Under section 3151, Minors' counsel is "charged with the representation of the child's best interests. The role of the child's counsel 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. If the child so desires, the child's counsel shall present the child's wishes to the court. The counsel's duties . . . include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain evidence relevant to the custody or visitation hearings." (§ 3151, subd. (a).)
Neither section 3151 nor rule 5.242 expressly refer to counsel submitting reports or making recommendations to the court. The 2010 amendments to section 3151 show the Legislature's intent that a minor's counsel should act in a way consistent with the traditional role of an attorney in presenting information and argument to the court, as distinguished from the role of an evaluator or a guardian ad litem. Before 2010, section 3151 described the role of minor's counsel as gathering "facts that bear on the best interests of the child" and presenting "those facts" to the court (former § 3151, subd. (a)); at the court's request, counsel was required to "prepare a written statement of issues and contentions setting forth the facts that bear on the best interests of the child." (Former § 3151, subd. (b).) The 2010 amendment replaced "facts" with "evidence" or "admissible evidence"—the role of minor's counsel now 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." (Stats. 2010, ch. 352, § 15 (Assem. Bill No. 939).)
An evaluator is appointed by the court under the authority of section 3111, "to assist [the court] in determining . . . the best interest of children with regard to disputed custody and visitation issues." (Rule 5.220(b).) Among other things, an evaluator must "[m]aintain objectivity, provide and gather balanced information for both parties, and control for bias." (Rule 5.220(h)(1).) "A guardian ad litem is a party's representative; his or her role is ' "more than an attorney's but less than a party's. The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian's charge in mind." ' " (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 220-221.)
An analysis for the Senate Judiciary Committee explains that the 2010 bill amending section 3151 implemented some of the recommendations made by the Elkins Family Law Task Force, which had been created in response to our Supreme Court's recommendation in Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1369, footnote 20, that the Judicial Council establish a task force to study ways "to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 939 (2009-2010 Reg. Sess.) June 28, 2010, p. 1.) The task force recommended that "minor's counsel should never be called on to take the place of a mental health evaluator or to assume the court's role of weighing and determining the facts of the case," and that "minor's counsel fact gathering should be presented to the court in the same manner as other admissible evidence so that parties' due process rights are protected." (Id. at p. 13.) To address those points, the bill provided that minor's counsel was required "to present the admissible evidence it gathers that bears on the best interest of the child to the court in the same manner as counsel for a party." (Id. at p. 14.)
From this, we conclude that minor's counsel may present evidence and argument and advocate for or against the court taking an action, just as other parties' counsel may do so. Minor's counsel is expected to advocate for the custody and visitation orders he or she believes to be in the child's best interest, which necessarily requires counsel to determine what he or she believes the child's best interests to be. But any positions taken by minor's counsel, regardless of whether they are called "recommendations," are distinct from the "recommendations" that a custody evaluator is required to include in his or her presentation of findings. (Rule 5.220(e)(3)(D).) An evaluator's report, including his or her recommendations, is received into evidence (§§ 3111, 3118; Evid. Code, § 730; Rule 5.220(b) & (e)(3)), and evaluators are subject to cross-examination. (§§ 3115, 3117; Rule 5.220(j).) In contrast, any positions taken or recommendations made by a minor's counsel should be based on admissible evidence (§ 3151), but are not themselves evidence, and minor's counsel may not be called as a witness. (Rule 5.242(i)(14).)
We review a trial court's appointment of minor's counsel for abuse of discretion. (Metzger, supra, 224 Cal.App.4th at p. 1450.)
2. Analysis
John argues that the family court abused its discretion in appointing Minors' counsel to make "recommendations" because there is no legal foundation for such an appointment. We disagree. The family court's order appointed Minors' counsel under sections 3150 through 3153, and focused Minors' counsel on particular issues to address: a time share schedule that met the best interests of the Minors, and any limitations that might be imposed on parental behavior during the parent's custody time. The court sought Minors' counsel's position on those issues, which was appropriate. In view of the potential for confusion between the recommendations that must be made by a custody evaluator under Rule 5.220(e)(3)(D) and any positions taken or recommendations made by a party or a party's counsel, the family court used infelicitous language in choosing the word "recommendation" in its order. But the use of the term does not invalidate the order. Revisions to the statutory provisions and rules governing minor's counsel make it clear that minor's counsel's role is one of an attorney advocate, and not a court-appointed expert. Minors' counsel understood his role, as shown by his statements to the family court that he was acting as an advocate and not an objective party. The family court also understood Minors' counsel's role, as reflected in its ordering first a psychological evaluation of the Minors, and then appointing a custody evaluator to perform a full custody evaluation, which Minors' counsel clearly could not perform.
That said, we emphasize that the family courts and attorneys appointed to represent minors must scrupulously adhere to the statutes and rules governing the role of minor's counsel.
John argues that that the family court abused its discretion in "accepting" the recommendations of Minors' counsel, claiming that Minor's counsel did not follow the procedures and standards required of a neutral custody evaluator. This argument rests on an incorrect premise, because Minors' counsel was not appointed as a custody evaluator. The record is clear that Minors' counsel and the family court understood that Minors' counsel served strictly as an attorney for Minors and not as a custody evaluator. In denying John's first motion to strike the recommendations, the family court concluded that Minors' counsel had been appointed to represent Minors' interests and had done so.
In any event, John fails to show prejudice from the appointment of Minors' counsel or the acceptance of his May 2015 recommendations. John argues that Minors' counsel's recommendations "influenced" the family court to order a stay on John's visitation after the first long-cause hearing, and that this stay prejudiced the subsequent custody evaluation by Dr. Roberto, on which the family court relied in issuing its statement of decision. He claims that "his case was prejudiced in the mind of [Dr. Roberto] by: (a) the stay on his visitations ordered by the Superior Court; (b) by the input given to the Custody Evaluator contained in [Minors' counsel's] report; (c) by the therapists providing feedback to the custody evaluator knowing that [John] (whom they never met) had a stay on his visitations ordered by the court." To show prejudice, John must demonstrate that in the absence of Minors' counsel's recommendations, it is reasonably probable that Judge Wiley's statement of decision would have been more favorable to John. (See People v. Watson (1956) 46 Cal.2d 818, 834-836; In re Joshua J. (1995) 39 Cal.App.4th 984, 995.) He has not done so.
Judge Lam imposed a temporary stay on John's visitation after a four-day evidentiary hearing. John does not discuss the evidence or argument presented to the family court at that hearing, and therefore gives us no basis to conclude that the temporary stay would not have been imposed absent Minors' counsel's recommendations. And John does not demonstrate any connection between the temporary stay on visitation and Judge Wiley's statement of decision. As for Dr. Roberto's report, which figured in Judge Wiley's statement of decision, John points to nothing in her report or testimony to show how she was "prejudiced" by the temporary stay on visitation, or by Minors' counsel's recommendations, or by the therapists' reports to her. Nor does he explain how the therapists' reports were affected by their knowing of the temporary stay on his visitation.
To the extent that John argues that he was prejudiced by the temporary stay on visitation, the issue is moot because the temporary stay cannot be undone. John's remedy for relief from the stay and its allegedly prejudicial effects was to seek immediate review by petition for writ relief. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.)
In sum, we conclude that John has shown no prejudice from the family court's appointment of Minors' counsel or from the court's refusal to strike Minors' counsel's recommendations. B. Dr. Roberto's Report and Testimony
John argues that the family court erred in admitting Dr. Roberto's report and testimony into evidence. He claims that the trial court abused its discretion in "accepting" his MMPI-2 test results, which, he says, "underpinned the conclusions and recommendations in the Custody Evaluator's Final Report." He claims that Dr. Roberto "failed to adequately supervise the test taking," and that the MMPI-2 test results she attributed to him were not actually his. He also claims that the court erred in denying his repeated request to order the organization that scores the MMPI-2 test "to release all their test information relating to the Parties' MMPI 2 test data directly to the Court so that the discrepancies in the raw test data sheet provided by [Dr. Roberto] could be evaluated by the Court." The arguments lack merit.
We review a trial court ruling excluding or admitting expert testimony for abuse of discretion, except where the trial court bases its ruling on a conclusion of law, which is not the case here. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) In admitting Dr. Roberto's testimony, the family court determined that her opinion related to a subject beyond common experience, and was based on the type of material on which an expert may properly rely. (Id. at pp. 769-771, citing Evid. Code, §§ 801 & 802.) As Judge Wiley recognized in her ruling on John's motion to strike Dr. Roberto's report, the issues John raised concerned only the portion of the report addressing his MMPI-2 test results, and did not make the entire report inadmissible. John was free to explore any weaknesses in the factual foundation of Dr. Roberto's opinion during cross-examination, which he did.
John's argument that the family court erred rests on his related contentions that the MMPI-2 test results "underpinned" Dr. Roberto's report and that Dr. Roberto's evaluation of him was "based largely" on his MMPI-2 test results. These contentions are belied by the record. Dr. Roberto explained that her evaluation was based on interviews with John, Claire and others over a period of five months, on the review of documents provided to her by John and Claire, and on the administration of two psychological tests, the MMPI-2 and the Rorschach Inkblot Test. In her report, she explained that "[t]he psychological test interpretations presented are hypotheses and should not be considered in isolation from other information in this report." She continued, "Personality test results reflect characteristics of people who have provided test response patterns similar to those of the current individual. From test results alone, it is impossible to tell if any patterns, personality strengths, or deficits are directly or indirectly related to parental competencies. Therefore, the reader should examine the test interpretation for general trends and put limited weight on any one specific statement. No clinical decisions were made from this information alone but rather, were confirmed, disconfirmed, or qualified based on other data gathered in the evaluation process." Dr. Roberto testified that psychological testing "does not carry the weight of the evaluation. It is just a portion of it. You look at where everything sort of interfaces to come up with your conclusions." She emphasized that testing should not be considered in isolation, and that "any information that is not supported by other data is not necessarily considered helpful." John never addresses this testimony. Accordingly, even if John had demonstrated irregularity in his MMPI-2 test results, it would not follow that Dr. Roberto's report and testimony are inadmissible.
Finally, we see no merit in John's claim, unsupported by any citation to authority, that the family court erred in denying his untimely requests to order the organization that scored the MMPI-2 tests for Dr. Roberto to release all its information relating to the parties' MMPI-2 tests. John did not request this third-party discovery to address purported "anomalies" on his test form until after Dr. Roberto had testified at trial and been excused, even though he had identified the "anomalies" two weeks before the trial began. In making his request to examine the form, John offered no explanation for his delay in requesting it, nor did he explain what he expected the form to reveal. As he conceded to the family court, "It might be nothing. I'd just like to see it."
In sum, we find no error in the family court's denial of John's motion to strike Dr. Roberto's report, and no error in the family court's admission of her report and testimony into evidence. C. Order that Minors Continue Therapy
The Family Code authorizes the court to require the minor children involved in a custody dispute to participate in outpatient counseling with a licensed mental health professional "for not more than one year," if the court finds that the dispute between the parents "poses a substantial danger to the best interest of the child" and that "counseling is in the best interest of the child." (§ 3190, subd. (a).) Section 3190, subdivision (d) states that in making its findings, the family court "shall set forth reasons why it has found both of the following: [¶] (1) The dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child. [¶] (2) The financial burden created by the court order for counseling does not otherwise jeopardize a party's other financial obligations."
John argues that the family court abused its discretion by ordering continuing therapy for Minors, claiming that court-ordered therapy has extended beyond the statutory maximum period of one year, and that the family court ordered counseling without making required findings regarding Minors' best interest and the financial burden on the parties. We disagree.
As John points out, Minors began court-ordered therapy in the summer of 2015, and by the time of Judge Wiley's September 2016 statement of decision ordering continued therapy, they had already been in therapy for more than one year. But nothing prevents the family court, having once issued an order for counseling, from issuing another such order, even if the result is that counseling is ordered, through multiple orders, for a period exceeding one year, and John cites no authority to suggest otherwise. To the contrary, section 3190, subdivision (e) specifically provides that the court can enter successive orders for counseling in appropriate circumstances. John makes no reference to that subdivision, and therefore we presume that Judge Wiley's order is in accord with the law, and that the circumstances here are appropriate for a successive counseling order. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562.)
The doctrine of implied findings defeats John's claims that the family court erred in ordering counseling without making the required findings about the Minors' best interest and the financial burden. In reviewing a statement of decision on appeal, we presume that the court impliedly made any omitted findings in favor of the prevailing party unless the omissions in the statement's factual findings were brought to the trial court's attention. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59.) Judge Wiley's proposed statement of decision ordered Minors to remain in weekly therapy, with John and Claire to equally divide the uninsured costs. In his objections to the proposed statement, John did not object that the court had omitted required findings. To the contrary, he improperly reargued the merits, proposing a substantive amendment to the court's ruling, so that therapy would be discontinued. John's proposed alternative ruling on the issue of Minors' therapy does not constitute an objection to the omission of findings that would overcome the doctrine of implied findings. (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380 [failure to file specific objections that pinpoint alleged deficiencies in the statement waives defects in the statement of decision]; see also Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292 [primary purpose of objection to proposed statement of decision "is not to reargue the merits, but to bring to the court's attention inconsistencies between the court's ruling and the document that is supposed to embody and explain that ruling"].) D. Claims of Breach and False Accusations
After the first day of the May 2016 evidentiary hearing before Judge Wiley, John filed a request for a statement of decision. As relevant here, he asked the court to answer two questions: did Claire breach the Agreement, and did she make false accusations of parental abuse against him. On appeal, John argues that the family court abused its discretion by failing to address those two issues in its statement of decision. The argument lacks merit.
In April 2016, the family court entered a stipulated order that limited the evidentiary hearing to address specific controverted recommendations that Dr. Roberto made in her report. None of those recommendations concerned breaches of the parties' Agreement or allegations of parental abuse. Having stipulated to the scope of the hearing and the issues to be decided, John cannot now claim that the family court's adherence to the stipulation constitutes error. (See Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420-421 [party cannot assert error where party participated in its commission].) Furthermore, it is up to the court, not the parties, to determine the issues on which the outcome of the case turns (Vukovich v. Radulovich (1991) 235 Cal.App.3d 281, 294-295), and therefore even in the absence of the April 2016 stipulation, the family court would not be required to address the issues John raised in his request for statement of decision.
Even if the family court had erred in refusing to make the rulings John requested, we would have no basis to reverse, because John provides no argument or authority to show that the omission has prejudiced him. It is not enough for him to simply state in his opening brief that the omission was prejudicial to the case. John's argument in his reply brief that the family court's ruling on these issues is "critically needed . . . , as otherwise [Claire] would continue to make such false allegations of abuse again, . . . into the future" is speculative and untimely. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295 ["we will not address arguments raised for the first time in the reply brief"].)
DISPOSITION
The judgment is affirmed. Claire's motion for sanctions is denied. Claire shall recover her costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.