Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RF07306843.
Margulies, J.
R.C. (Father) appeals from orders (1) awarding sole legal and physical custody of his daughter J. to her mother, T.B. (Mother); (2) reducing his visitation rights; (3) requiring him to take anger management classes; and (4) sanctioning him in the amount of $2,500. We affirm the challenged orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
J., born in November 2005, is Father and Mother’s biological child. Father and Mother dated at one time, but were never married to each other. Father filed this action in January 2007, after the parties were unable to agree on custody and visitation issues.
There have been numerous custody and visitation hearings, mediations, and orders in this case to address ongoing conflicts between Father and Mother. As described by the trial court, the parties’ disputes “have revolved around R.C. seeking more time with[ J.], and T.B. resisting based, in part, on R.C.’s refusal to recognize [J.’s] special medical needs.” The court found the parties’ conflict “makes joint decision making virtually impossible and any kind of orderly exchange extremely problematic.”
A. Relevant Proceedings in 2007 and 2008
The primary order in issue in this appeal was entered after an order to show cause (OSC) hearing on December 10, 2008. The events leading up to it may be summarized as follows: Based on a court-appointed mediator’s recommendation, the court ordered joint custody in March 2007, and later adopted a visitation schedule of two overnight stays per week. Father thereafter complained of ongoing conflicts with Mother. In October 2007, the court appointed an attorney for the minor who, in December 2007, reported difficulties dealing with Father. The parties were ordered back into mediation in February 2008, to address continuing disputes regarding J.’s medical condition. On April 30, 2008, the court entered a new order granting sole custody to Mother with daytime visits only for Father. Minor’s counsel was excused at that time. In September 2008, the court adopted a detailed order providing for joint legal custody, granting Mother temporary sole physical custody, and conditioning the resumption of overnight visits upon Father’s compliance with certain conditions, including taking a pediatric asthma class and meeting with J.’s doctors. Despite these orders, no visitation in fact occurred between April 30 and November 8, 2008.
In a September 2008 order, the court explained the significance of the dispute as follows: “[T]he parties’ differing views regarding the minor’s health.... is a matter of grave concern to the court because, on the one hand, it does not want an exaggerated presentation of the minor’s health issues to serve as a means of excluding the father from meaningful involvement in her life, and yet on the other hand, the consequences of discounting those concerns could be catastrophic if they are well-founded.”
Mother alleged Father simply did not show up for his visits and did not call to explain why he missed them. Father claimed Mother avoided his attempts to see J., and the court’s orders did not adequately protect him from any false claims Mother might make if he tried to enforce his visitation rights.
In October 2008, Father submitted a declaration reciting his compliance with the conditions established by the September order, and requested three days of overnight visitation per week. Mother objected. Citing J.’s lack of contact with her father for the preceding six months, she proposed he begin daytime, supervised visits with her at Safe Exchange for a period of time before any overnight visits, and also asked the court to order Father to show he understood J.’s medical condition and medication needs.
On November 4, 2008, the court entered a new custody and visitation order. It provided the parents were to have joint legal and physical custody except Mother was to have the sole legal right to control all non-emergency medical decisions regarding J. Mother was to have primary physical custody, with Father to have overnight visitation two weekends per month and dinnertime visitation every Thursday evening. All exchanges were to take place at the Richmond Police Department. The order also provided for appointment of new minor’s counsel.
Exchanges took place without incident on November 8 and 9, a weekend. An incident did occur on November 13, a Thursday. According to Mother’s counsel, Father arrived late at 5:30 p.m., as Mother was about to leave. As Mother was attempting to explain to him that the child had been sick and there were medication issues to discuss, Father started to leave with J. without listening to the information. Mother took the child back from Father, and Father called the police over and complained that Mother had assaulted him. Father filed his OSC application and an application for a domestic violence restraining order within a few days after this incident. Exchanges took place without incident on November 20 and 21 and December 4 and 5, 2008.
B. The December 10 OSC Hearing
In his OSC application, Father sought modification of the November custody and visitation order to grant him sole legal and physical custody of J., allow only supervised visitation by Mother, and restrain Mother from interfering when J. was in his care. Referring to the incident on November 13, he asserted Mother “asulted [sic] me while I was carrying [J.] to car, ” and “wrestled [her] from my arms and would have broken them if I wouldn’t let go.” Father accused Mother of consistently violating the court’s orders without consequences.
Mother’s attorney did not receive Father’s OSC papers until Monday, December 8. They had been left under her office door after hours on Thursday, December 4, the last day she had been in the office, and did not include the date and time of the hearing. Counsel prepared a written opposition to the OSC, which she filed and served on the morning of December 10, the day of the scheduled OSC hearing. In it, Mother requested the court reconsider its November 2008 order granting joint legal custody. Mother also requested attorney fees of $2,500 as sanctions for time spent having to respond to Father’s OSC application “based upon false and inaccurate allegations.” She argued the sanctions were appropriate “to punish his conduct in deliberately bringing unnecessary and frivolous motions, not only without basis, but without notice.” Among other things, she cited various instances of court papers and applications being filed by Father without notice to Mother, and asserted that during a two-week period in August 2008, Father had summoned the Berkeley and Richmond Police to Mother’s door seven times demanding “ ‘assistance to enforce a court order, ’ ” even though Mother had never prevented him from exercising his visitation rights under the April 30, 2008 and ensuing orders.
Father failed to appear at the court hearing on December 10, and did not contact the court to explain his absence. On Mother’s request to restore sole legal custody to her, the court explained it had given Father joint custody in the November order so he would have standing to receive medical information concerning J. The court stated its intent had been to neutralize Father’s objection that he could not be blamed for failing to appreciate J.’s medical issues if he had no right to talk to her doctors. The court expressed its frustration that Father was “getting close to being a vexatious litigant” by continually filing baseless motions and applications, including the latest OSC, and not going to minor’s counsel with his issues. The court also expressed frustration that Father was apparently unwilling to pay for the services of Safe Exchange, which provided the most practical way for visitation to occur without conflict. Mother took the position at the hearing that she wanted J. to have a relationship with her father, but that she should be given sole legal and physical custody, and Father should be limited to visitation at Safe Exchange until he could demonstrate “a certain level of care and consistency.”
The court ruled (1) Mother should have sole legal and physical custody; (2) Father would have visitation every other Saturday at Safe Exchange at his expense; (3) Father would have to have 24 hours of anger management class and could not file further motions until he had done so; (4) minor’s counsel could file a motion for greater visitation if the minor desired it; (5) Father would have to pay for a medical evaluation through minor’s counsel; and (6) Mother would be awarded $2,500 in attorney fees as sanctions.
Father raises no objection on this appeal to the provisions of the order concerning minor’s counsel role or the cost of obtaining a medical evaluation of J.
C. Written Orders and Appeal
A proposed written order reflecting the court’s rulings was submitted by Mother’s counsel and entered by the court on March 9, 2009, after it made one minor handwritten correction to the proposed order. Although a copy of the proposed order was served on Father, the record does not reflect he was ever served with notice of entry of the March 9 order. On March 23, 2009, Mother submitted a proposed corrected order to the court containing some suggested nonsubstantive changes to the March 9 order pertaining to the attorney fee award. After making some minor, handwritten interlineations on the proposed corrected order, the court entered it on April 7, 2009. On April 23, 2009, Mother mailed notice of entry of the April 7 order to Father.
On April 29, 2009, the court issued a new, sua sponte order which by its terms expanded upon the terms of the April 7 order. The April 29 order recited that the prior order had laid out two paths. First, Father could register with Safe Exchange, which would allow him visitation, and he could take anger management classes, which would allow him to seek modification of the visitation arrangements. Second, minor’s counsel could seek modifications if he deemed it to be in J.’s best interests, and Father would be free to contact minor’s counsel and suggest modifications, particularly if Mother did not cooperate with supervised visitation at Safe Exchange. The April 29 order went on to propose a third alternative not addressed by the prior order—J.’s possible eligibility for a supervised visitation program funded by the “First Five Supervised Visitation and Exchange Grant Program”—and ordered minor’s counsel to investigate the feasibility of that option. The order further noted Father had not thus far availed himself of the Safe Exchange option and had therefore had no visitation with J. since November 2008. It directed Mother to provide Father with a package of information, including J.’s recent photographs, artwork, and school report cards and progress reports, and directed minor’s counsel interview the minor and undertake other activities. The court clerk served notice of the order on the parties on the day it was entered.
Father filed a notice of appeal on June 26, 2009, purporting to appeal from the court’s orders of April 7 and April 29, 2009.
II. DISCUSSION
A. Scope of Appeal
Father purports to appeal from the April 7 order, but he filed his notice of appeal on June 26, 2009, which is more than 60 days after Mother served notice of entry of the April 7 order. Under California Rules of Court, rule 8.104(a), Father’s time to appeal the April 7 order had already expired on June 22, 2009, four days before this appeal was filed. Dismissal of an appeal from that order would be mandatory. (Cal. Rules of Court, rule 8.104(b).) However, the April 7 order made only nonsubstantive corrections to the original order entered by the court on March 9. Under rule 8.104(a) the earlier order was still appealable on June 26, under the 180-day rule because no notice of entry of the March 9 order was served by Mother or the clerk.
In fact, the March 9 order is the only order from which Father could have appealed even if he had filed his notice of appeal on an earlier date. When an appealable judgment (or order) has been modified, an appeal must be taken from the original judgment if the change was clerical, and from the modified judgment if the change was material and substantial. (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743–744.) Here, the modifications made to the March 9 order by the April 7 order were entirely clerical and nonsubstantive. Accordingly, only the March 9 order was appealable. However, because the March 9 and April 7 orders are substantively identical, and the notice of appeal adequately apprised Mother and minor’s counsel of the issues on appeal, we will construe Father’s appeal to be from the first of the two orders. (See Cal. Rules of Court, rule 8.100(a)(2); In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 252 [appellate court will liberally construe a notice of appeal in favor of its sufficiency so as to permit, if possible, a hearing on the merits].)
Father’s notice of appeal also references the trial court’s order of April 29, but his appellate brief contains no argument or claim of reversible error directed specifically to that order. We therefore conclude Father has abandoned his appeal from that order, at least to the extent it goes beyond the March 9 order. (In re Sade C. (1996) 13 Cal.4th 952, 994; County of Kern v. Dillier (1999) 69 Cal.App.4th 1412, 1424–1425.) We therefore dismiss, as abandoned, Father’s appeal from the April 29 order. (In re Sade C., at p. 994; County of Kern v. Dillier, at pp. 1424–1425.)
B. The March 9 Order
“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. [Citation.]” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, italics added.) “The test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but ‘whether the trial court could reasonably have concluded that the order in question advanced the “best interest” of the child.’ [Citation.]” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)
In this case, the court changed its November 4 custody order—joint legal and physical custody with Mother having primary physical custody—by granting Mother sole legal and physical custody. It changed Father’s visitation from overnight visitation to two weekends per month and weekly two-hour home visitation to supervised visitation every other Saturday at Safe Exchange. It did so in the context of an OSC hearing Father requested but which, without adequate explanation or excuse, he did not attend. The court had before it evidence from the declaration of Mother’s counsel, and drew upon its own long experience with the parties in trying to find a stable, workable arrangement that would allow Father to maintain a relationship with his daughter without exposing her to medical and emotional harm.
In his brief on appeal, Father states merely that he failed to appear due to an unspecified “situation beyond his control.”
Father assumes the custody and visitation changes were made based on a local Alameda County Superior Court rule allowing the court, as a sanction against a nonappearing party, to make a summary determination of any contested issue based on the opposing party’s papers. We find no evidence for that. Except for the attorney fees expressly awarded as sanctions, we find no indication in the record the court made any other order at the December 10 hearing as a sanction against Father. It is doubtful child custody or visitation rights could properly be awarded or denied as a sanction for a parent’s nonappearance in any event. Such orders may only be based on the best interests of the child.
As the trial court explained at the hearing, it had only granted Father joint legal and physical custody on November 4, 2008, so that he would have standing to receive medical information about J., and to neutralize his objection that he could not be blamed for failing to appreciate her medical issues if he had no right to talk to her doctors. Even then the court had given primary physical custody and the sole right to control all non-emergency medical care to Mother. The conflict over medical issues had nonetheless continued unabated. As shown by the incident on November 13, there were still questions about whether Father was willing to take Mother’s medical concerns about J. seriously. Although Father characterizes the incident as an unprovoked violent assault against him by Mother, he entirely ignores the triggering event, which was Mother’s attempt to discuss J.’s medications with him before he left with her. Given this event, evidence of multiple other incidents in which Father had summoned the police to Mother’s house based on false claims she was preventing visitation, and other conduct by Father the court characterized as “getting close to being a vexatious litigant, ” the court could have rationally concluded it was in J.’s best interests to reduce Father’s custody and visitation rights so as to minimize his opportunity to cause friction and conflict around her, and eliminate the potential risk to her well-being caused by his dismissive attitude toward Mother’s medical concerns. (Lester v. Lennane, supra, 84 Cal.App.4th at p. 595.)
Requiring Father to take an anger management class and limiting his ability to file motions until he had done so were also rational responses to the circumstances presented. As discussed, Father had shown a predilection toward taking baseless, hostile actions toward Mother, and wasting the court’s time with frequent, groundless motions and applications. The court was justified in concluding that it was in the interests of all concerned to assist him in gaining greater control over his emotions and learning to be less confrontational and more measured in his use of the legal system.
Father also objects to the attorney fee award. The award was based on Father’s failure to properly serve notice of the OSC hearing on Mother, the exaggerated and inaccurate allegations on which the OSC application was based, and Father’s repeated practice of failing to serve copies of his court filings and applications on opposing counsel. At the hearing, the court made a point of cataloguing the instances in which Father had failed to serve counsel, and put Mother’s counsel under oath to have her document the time spent on her opposition to Father’s latest OSC application. The trial court did not abuse its discretion in awarding monetary sanctions on this record.
Father claims his due process rights were violated with respect to all of the rulings to which he objects because he had no opportunity to review the opposition papers before the hearing, and the court proceeded to make its rulings on an ex parte basis. But Father brought these consequences on himself. First, Mother’s written opposition was served late because her counsel did not receive Father’s untimely-served application papers until two days before the date of the hearing. Those papers did not even notify counsel of the date and time set for the hearing. Had Father appeared at the hearing he requested, he would nonetheless have been able to review the opposition papers at that time. Second, the court bent over backwards to allow Father an opportunity to appear. The hearing was scheduled for 9:00 a.m. on December 10. When Father failed to appear at that hour, the court asked Mother’s counsel and minor’s counsel to come back at 1:30 p.m. in case Father had misunderstood the time of the hearing. The court only proceeded without Father at that time because he still failed to appear and had made no contact with the court or counsel. In our view, Father’s unexplained failure to appear waived any due process right he had to an opportunity to be heard. (See Menge v. Reed (2000) 84 Cal.App.4th 1134, 1143 [school employee voluntarily relinquished her right to challenge the termination of her employment by failing to appear at the board hearing].) Father fails in any event to establish prejudice from the alleged due process violation. He has not suggested any evidence or argument he might have presented at the hearing that would have affected the result. We find no prejudicial due process violation.
Mother has moved for sanctions on appeal based on Father’s failure to serve her with the same brief he filed in this court. We deny the motion.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: Marchiano, P.J., Banke, J.