Opinion
B301702
04-15-2021
In re Marriage of ULYANA RUBTSOVA and IVAN V. RUBTSOV. ULYANA RUBTSOVA, Respondent, v. IVAN V. RUBTSOV, Appellant.
Ivan V. Rubtsov, in pro. per., for Appellant. Ulyana Rubtsova, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. BD484894 APPEAL from a post-judgment order of the Superior Court of Los Angeles County, Michael R. Powell, Judge. Affirmed. Ivan V. Rubtsov, in pro. per., for Appellant. Ulyana Rubtsova, in pro. per., for Respondent.
____________________
Ivan V. Rubtsov appeals from the trial court's post-judgment order after his former spouse Ulyana Rubtsova asked the court to modify the visitation order governing his visitation of their son and then-minor daughter, and Ivan's responsive request to grant him joint custody of the children. Both parties represented themselves in the trial court and do so on appeal. Because the couple's daughter reached the age of majority while this appeal was pending, Ivan's appeal as to her is moot. We otherwise find no prejudicial error and affirm.
For clarity, we will refer to the parties by their first names. We intend no disrespect to them by doing so.
BACKGROUND
To the extent they are relevant, we have drawn additional facts from the appellate record filed in Ivan's related appeal from the trial court's May 16, 2019 child support order, Rubtsova v. Rubtsov (Mar. 9, 2021, B298533) [nonpub. opn.], and from our opinion in Rubtsova I, discussed post.
1. Original child custody and visitation orders
Ulyana filed for divorce from Ivan in May 2008. A highly contentious dissolution proceeding ensued, including a lengthy custody battle over their three children. Two of the couple's children are relevant to this appeal: V.R., who turned 18 in June 2020, and I.R., now age 14.
In October 2011, the trial court awarded sole legal and physical custody of V.R. and I.R. to Ulyana and gave Ivan monitored visitation for two hours per week. Final judgment incorporating the custody and visitation provisions was entered in July 2013. Ivan appealed the award of sole custody of the two younger children to Ulyana. In an unpublished opinion, this court affirmed the judgment's custody and visitation provisions. (See Rubtsov v. Rubtsova (July 24, 2015, B251506) [nonpub. opn.] (Rubtsova I).)
The court awarded sole custody of the couple's oldest child to Ivan. She turned 18 in 2017.
In April 2018, Ivan and Ulyana entered a post-parenting plan assessment agreement and stipulated order concerning custody and visitation of V.R. and I.R. Under that agreement and order, Ulyana retained full custody of V.R. (15 years old at the time) and I.R. (11 years old at the time). The order provided Ivan was to have unmonitored visitation every first Sunday of the month from 10 a.m. to 4 p.m., but V.R. had discretion to visit father or not. The children could have additional parenting time if they requested it and upon mutual agreement of parents.
2. Ulyana's request to change visitation
On April 5, 2019, Ulyana filed a judicial council form request for order to modify child support and visitation (RFO). She asked the court to change the April 2018 visitation order to two hours of monitored visitation, once or twice per month. She brought the RFO on behalf of both children, but because V.R. had discretion to visit Ivan and had chosen not to, Ulyana's main concern was with I.R.'s visits with his father. In her declaration, she asserted I.R. was upset by his visits with Ivan and monitored visits were in his best interest.
Ulyana's request to modify a January 9, 2019 child support order is the subject of Ivan's appeal in Case No. B298533.
Ulyana said she believed V.R. "might consider" attending some visitations if they were monitored and shorter, however.
Ivan filed a judicial council form responsive declaration to Ulyana's RFO. Although Ulyana did not request a change to child custody, Ivan's form response checked that he did not consent to the order requested for child custody and visitation. He checked he consented to the following order: "Under Family [C]ode 213, I request a change in child custody both legal and physical." He asked the court to change the order to award him joint legal and physical custody of both children. He also asked the court to order significantly more visitation. In his supporting declaration, Ivan asserted Ulyana prevented him from having contact with V.R. and that he had not seen her for a year. He also declared Ulyana refused to let I.R. have additional visitation with him despite his son's request for more time.
Ivan also requested "live witness[ ] testimony" under Family Code section 217. He separately filed a list of witnesses to testify about visitation at the hearing, including Ulyana and himself, his oldest daughter, and two others.
Statutory references are to the Family Code.
The hearing on Ulyana's RFO was scheduled for May 16, 2019. Ulyana and Ivan both testified about visitation issues. Ulyana said I.R. was refusing to visit Ivan, and Ivan said Ulyana was interfering with the visitation. Each accused the other of bad behavior in their declarations. Ivan asked the court to award him joint custody so that he would have more time with both children. The court wanted to find out from I.R. what issues he was having before ruling on visitation. It ordered a parenting plan assessment (PPA) and appointed a family court services specialist to interview I.R. and make an oral report to the court. The hearing on Ulyana's RFO to change visitation was continued to August 9, 2019. 3. The August 9 , 2019 hearing
The reporter's transcript of that hearing is part of the appellate record in Case No. B298533. The parties testified about both child support and visitation.
In June 2019, Ivan filed an ex parte application to ask the court to correct the May 16, 2019 order nunc pro tunc to include V.R. in the PPA and August 2019 hearing. The trial court denied the application on the ground the PPA "was only for one child."
During the May 2019 hearing, the court said it thought the RFO was only for I.R., but Ivan said it was for both children. The court then told the clerk, "It's going to be a PPA-2." Ulyana appears to have objected on the ground V.R. had discretion to visit. Ivan then interrupted and argued Ulyana had alienated him from V.R. In any event, the court ultimately ordered the PPA for I.R. alone.
Ivan and Ulyana appeared at the August 9, 2019 hearing. They and the family court services specialist (therapist) who interviewed I.R. were sworn in to testify. The therapist testified to what she had learned from her almost two-hour interview with I.R. At the time, I.R. was almost 13. In short, the therapist said it was "clear" from the interview that I.R. felt comfortable with the current visitation arrangement of seeing his father the first Sunday of each month for the day. The therapist testified that during the interview "it became clear that [I.R.] feels that his father pressures him, puts pressure on him and guilts him and, in his words, puts him in rough situations." I.R. felt uncomfortable when his father talked about court and custody with him. I.R. also mentioned he sometimes asked to spend an additional hour or two with his father. His mother often would allow it, but other times she would not.
I.R. told the therapist that the "idea of court" and being in court made him nervous. He felt nervous about his parents, particularly his father, hearing about what he said to the therapist. He felt uncomfortable when his father asked him lots of questions about visitation.
The therapist also testified that I.R. was a bit more immature than a typical child his age "in the sense of his progress along in the stage of separating and individuating from his parents. From his mother in particular." I.R. relied on his mother to make decisions. He gave the example of having decided in consultation with his mother to block his father on his phone. I.R. did not want his father to call and ask for more time "and put him on the spot and pressure him and . . . make[ ] him uncomfortable."
I.R. revealed he had heard his parents say "bad things about each other." They did not relay messages to each other through him, however. Nevertheless, he had seen text messages between his parents when his mother asked him to read an incoming text while she was driving or to check the grammar in one of her texts.
After the therapist testified, the court gave Ivan five minutes to question her. The therapist added that when she asked I.R. to name three wishes, one was, " '[t]o be able to respond if I feel uncomfortable to say no.' "
After a break—referring to the matter as Ulyana's RFO—the court stated it would give her five minutes to explain why it should grant her RFO and then give Ivan five minutes. Ivan responded, "So I can't call witnesses today?" The court responded, "No. . . . This was not scheduled for a 2[17] hearing." Ulyana said keeping the same visitation order was fine based on what her son had told the therapist. She also informed the court that I.R. was upset because he did not expect everything he said to the therapist to be repeated in the courtroom. Apparently, I.R. was in the hallway and Ulyana told him the judge would decide if there would be more visitation hours and they had just heard what he had said in his interview.
Ivan began discussing what I.R. had told the therapist. The court asked him to address the issue of the changes to visitation Ulyana had asked for in her RFO. The court continued,
"I don't want you to go through the history of this case because to be frank with you the history of this case is nothing short of tragic what's happening with your son. And, frankly, it's because of both of you, your conduct with him.
"The court gave great thought about the words that I was going to use today because I feel almost unclean after I heard this testimony because I think that this minor's interview did nothing but damage your son. He felt nervous that he was going to have to do this. He wanted this to be over. The last time the PPA happened he wanted it to be over. Every time you come into court, this is what you do to him. You injure him. It's almost like you take a knife and you cut him every time you bring him into this. It's a tragedy. It's a slow moving train wreck. And it is almost abusive to [I.R.] to do this. Almost abusive.
"Sir, I think I've heard enough."
The court then extended Ivan's visitation time with I.R. by two hours from 9:00 a.m. to 5:00 p.m. instead of 10:00 a.m. to 4:00 p.m. on the first Sunday of the month. The court concluded the therapist's testimony indicated I.R. sometimes wanted to spend more time with his father, rather than less time. The court also remarked on the therapist's testimony that I.R. said his father was busy with his foster children during their visits. The court admonished Ivan to block the visitation time off for his son and to stop pressuring him.
The court also "couldn't believe" Ulyana had discussed what had happened in the courtroom with I.R. Addressing both parents, the court ordered, "You're not to talk about each other in front of him. You're not to disparage each other in front of him. Ever. You are not to have him read the text messages. . . . If you need to follow up on the text message, then you pull over. Do not have him read text messages. You are the parent[,] not him."
The court continued, "[T]he court is ordering you not to disparage each other in front of [I.R.]. You're not to use him for any communication whether it's to read text or to send text or anything else between him. . . . I don't know what else to say. The issue, you know, with your daughter, like I said, she's almost at the age of majority right now. So I think that ship has sailed." The court referred to case authority about children becoming "self-guided" around 14 years of age. The court did not see any changes happening with V.R.'s visitation.
At both the May and August hearings the court referred to Coursey v. Superior Court (1987) 194 Cal.App.3d 147, 154-155, in which the Court of Appeal annulled a contempt order against a mother where there was no evidence she could "reasonably compel a teenaged daughter to visit against the daughter's strong wishes."
The court also expressed its concern that I.R. did not feel comfortable making decisions without his mother's approval. The court told Ulyana she needed to "work on this with him so that he makes his own decisions."
Ivan again asked the court for two Sundays a month. The court responded that if I.R. wanted to spend more time with his father, Ulyana "should let him potentially go to see his father." The court ruled it would not order additional time because I.R. said he was "fine" with the current arrangement, and the court was "not going to upset [I.R.] anymore." Ivan also asked the court to change custody to joint legal custody so that it would be easier for him to do activities with I.R. The court declined.
DISCUSSION
Ivan contends the trial court denied him a hearing and opportunity to be heard on his request for joint custody of V.R. He also seems to contend the trial court erred by basing its decision concerning custody of I.R. on only the therapist's testimony. Ivan asserts he was not afforded an evidentiary hearing, and the trial court erred by considering the parties' declarations alone, rather than permit "oral testimonies."
Ivan asks this court (1) to order the trial court to grant a custody hearing nunc pro tunc for V.R., who now is 18 years old, (2) to order the trial court to grant joint custody of I.R., (3) to reverse the "de facto termination" of his parental rights over the children and find it unconstitutional, and (4) to "invalidate" Family Code section 3040, subdivision (d) as unconstitutional "as to the lack of preference over the joint custody over the sole custody." 1. Ivan's appeal as to V.R. is moot
V.R. is now 18. Even if we were to agree with Ivan that the trial judge should have changed the custody and visitation order as to her, it would be impossible for us to grant effective relief. The family law court's jurisdiction over the custody and visitation of V.R. has ended. (§§ 3022 [the court may "make an order for the custody of a child during minority"], 6500 [a minor is "under 18 years of age"]; see also In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594 ["Visitation is a form of custody . . . and thus . . . the court had no authority to issue a visitation order regarding [the child] after he reached the age of majority."].) Because the trial court may no longer issue a custody or visitation order regarding V.R., it is impossible for us to grant Ivan any effective relief regarding the court's allegedly erroneous refusal to consider changing the custody and visitation order as to her in August 2019. Therefore, this portion of Ivan's appeal is moot. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419 ["A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire that prevent the appellate court from granting any effectual relief."].)
Ivan argues the issue of custody of his daughter is not moot because—as in Roe v. Wade (1973) 410 U.S. 113—it is a situation capable of repetition yet evading review. He notes a parent has a right to petition the court for the custody of a child until the child reaches age 18, but an older teen may fall outside the court's jurisdiction by the time the issue is adjudicated—an issue capable of repetition. Ivan argues the trial judge here applied an "illegal" " 'that [ship has] sailed' " standard—instead of the best interests of the child—depriving him of a hearing to change custody when V.R. was still a minor. Ivan argues a trial judge who is able to apply the wrong standard may do so in future cases and deprive another parent of "several years of custody" (capitalization omitted) effectively terminating the parent's parental rights, while escaping review.
We recognize this court has the discretion to consider issues otherwise rendered moot if they " ' "pose[ ] an issue of broad public interest that is likely to recur" ' " (Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172), but that is not the case here. The issues leading to the trial court's denial of Ivan's request for joint custody over V.R. are case specific and do not raise a question of continuing public importance.
Moreover, contrary to Ivan's contentions, we do not view the trial court as having applied the wrong standard. Its comment "that ship has sailed" related to V.R.'s ability—as a 17-year old—to choose not to visit her father. Based on the trial judge's comments at both the May and August hearings, we can infer the judge concluded from the testimony provided through the parties' declarations, as well as their testimony at the two hearings, it was not in V.R.'s best interests either to force her to visit Ivan or to change her custody arrangement in the final year of her minority.
Despite the trial court's inability to issue a custody order over V.R., Ivan nevertheless asserts we can grant him relief by finding he was "de facto deprived of parental rights, restore [his parental rights] retroactively to 08/18/2009 and clear [him] to sue the responsible individuals and organizations for the wrongful interference with the parental rights." This we will not do. Nor will we declare section 3040, subdivision (d) unconstitutional, as Ivan requests, on the ground it allows the court to deprive an "individual of parental rights without clear and convincing evidence of any allegations against the parent as prescribed in Santosky v. Kramer (1982) 455 U.S. 745." Santosky concerned a state's termination of parental rights in a dependency proceeding. Moreover, as we explained in Rubtsova I, "[t]he standards applicable to custody awards in California have been frequently considered by both our courts and our Legislature." (Rubtsova I, at p. 13.) We need not revisit them here.
2. Law applicable to the remainder of Ivan's appeal and standard of review
After a final custody order has been entered, the court "should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest." (Burchard v. Garay (1986) 42 Cal.3d 531, 535.) Thus, a noncustodial parent seeking to modify a custody order ordinarily "can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37 (Burgess).) In other words, the parent must both persuade the court that a new custody arrangement is in the child's best interests and present evidence of a substantial change in circumstances justifying the modification. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 17:311.) A change to an existing visitation schedule also must be in the best interests of the child, but changed circumstances are not required if the modification would not create a de facto joint custody arrangement (when requested by a noncustodial parent). (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077, 1079-1080.)
We review custody and visitation orders under the deferential abuse of discretion standard. (Burgess, supra, 13 Cal.4th at p. 32.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Ibid.)
In evaluating the factual basis for an exercise of discretion, we give broad deference to the trial judge. (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.) The reviewing court should interfere only if it finds that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order he or she did. (Ibid.) " 'The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
3. Ivan has failed to show how the court's purported failure to permit testimony was prejudicial
Ivan appears to contend the trial court erred by deciding Ivan's request for joint custody of I.R. based on his and Ulyana's declarations and the therapist's testimony rather than allowing an evidentiary hearing on the issue under section 217, subdivision (a). He argues he was denied due process as a result.
Section 217, subdivision (a) requires a trial court, absent limited exceptions, to receive relevant live testimony at a hearing on a family law motion, including a postjudgment request for order. (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 839-840 & fn. 7; Cal. Rules of Court, rule 5.113(a).) A court may refuse live testimony if it finds good cause and states its finding on the record or in writing. (§ 217, subd. (b).) In his response to the RFO—and attendant request for affirmative relief—Ivan asked to have live witness testimony at the May 2019 hearing under section 217. He filed a witness list naming potential witnesses as himself, Ulyana, his oldest daughter, his significant other, and another witness.
The trial court swore in both Ulyana and Ivan at the May 2019 hearing. They both gave their version of the events. Ivan spoke about the visitation issues with I.R. and asked for more visitation time and joint custody. Nothing in the record indicates Ivan asked to cross-examine Ulyana or to call any of the witnesses on his list at that hearing. The court had to cut Ivan off, but neither due process nor the Family Code guarantees a party unlimited time to present testimony. Accordingly, the court did not prevent Ivan from presenting live testimony under section 217 at the May 2019 hearing.
At the August 2019 hearing, Ulyana and Ivan again were sworn in. The therapist testified first, and the court gave Ivan the opportunity to question her, contrary to his contention that he was unable "to show the limitations" of her testimony. The court limited Ivan's questioning to five minutes, but Ivan has not demonstrated how that time limitation impaired him. The trial court also said it would give each party about five minutes to argue the RFO, and it did. The trial court told Ivan he could not call witnesses, however, because "[t]his was not scheduled for a 2[17] hearing."
Assuming—without deciding—the trial court should have permitted Ivan to call witnesses at the August 2019 hearing, which was a continuation of the RFO hearing, Ivan has not demonstrated any purported error was prejudicial. An appellant has the burden not only to show error but prejudice from that error. (See Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, his argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citations.]" (Ibid.)
Ivan's primary complaint seems to be with the court's refusal to include V.R. in the PPA or to permit him to argue further about her custody arrangement. As we have concluded Ivan's appeal as to V.R. is moot; we do not address these contentions.
While we are mindful Ivan is representing himself on appeal, he "is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
Ivan has not identified the witnesses he would have called at that point in the proceeding or what evidence he would have presented through their live testimony that would have been any different from the testimony he and Ulyana provided in their declarations and at the two hearings. Ivan's declaration—in support of his response to Ulyana's RFO and his own request for a custody change—outlined in detail what had and had not occurred with his visitation since the entry of the April 20, 2018 order and his grounds for changing custody.
Ivan presents a chronology of facts from the onset of the case in May 2008—all without citation to the record—that he asserts "could have been properly presented to the trial judge had he held a hearing regarding the custody and future of the children." The long history of the case before the court first made the sole custody arrangement in 2011 was not relevant to how circumstances had changed to warrant a new arrangement. Moreover, this court already reviewed those facts in Rubtsova I and affirmed the order for sole custody based on them. In any event, Ivan's declaration already included historical facts and argument he asserted showed changed circumstances.
The trial court had the parties' extensive declarations before it, heard their testimony and argument, and heard the therapist's testimony about I.R.'s feelings on the matter, as well as Ivan's cross-examination of the therapist. Based on all of that information, the trial court concluded it was in the best interests of I.R. to increase Ivan's monthly visitation day by two hours, but otherwise to maintain the status quo. Ivan has not demonstrated how additional testimony from him, Ulyana, or the others on his witness list likely would have resulted in the court finding otherwise. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 308 ["appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred"].) No additional testimony from anyone would have changed what I.R. revealed in his interview with the therapist—the primary basis for the court concluding change would not be in I.R.'s best interest. 4. The trial court reasonably concluded a change in custody or additional visitation would not be in I.R.'s best interests
Substantial evidence supports the trial court's finding that it was in I.R.'s best interests to maintain the current sole custody arrangement and monthly visitation schedule. The trial judge clearly was moved by I.R.'s statements to the therapist. It placed great weight on the therapist's testimony in reaching its decision and found I.R.'s statements credible. The parents' testimony and declarations and I.R.'s statements through the therapist demonstrate both parents engaged in problematic behavior, but nothing in the record leads us to conclude the court's order maintaining sole custody was unreasonable.
Ivan declared Ulyana had prevented him from visiting and developing his relationship with his minor children. " 'Conduct by a custodial parent designed to frustrate visitation and communication may be grounds for changing custody.' " (Burgess, supra, 13 Cal.4th at p. 36, fn. 6.) Yet, even if Ulyana engaged in the alleged obstreperous conduct, a change in custody was not warranted unless it was essential to I.R.'s welfare. (Id. at p. 37.) The evidence does not compel such a finding. The court concluded both Ivan and Ulyana had engaged in conduct detrimental to I.R.'s psyche. The court found the therapist's testimony "really important." The trial judge gave greater weight to I.R.'s statements to the therapist about events and how they affected him than Ulyana's and Ivan's explanations. We will not reweigh the evidence or ignore the trial court's credibility determinations. (E.g., Niko v. Foreman (2006) 144 Cal.App.4th 344, 365.) The therapist's testimony demonstrated, as the court concluded, any change to the custody or visitation arrangement, other than the minor one the court ordered, would upset I.R. to his detriment. Based on the evidence, the trial court reasonably could conclude maintaining the original custody order with a small increase in visitation hours promoted I.R.'s best interests.
In Rubtsova I, we noted the trial court awarded sole legal and physical custody of the children in part because Ivan and Ulyana's relationship had so deteriorated that they could not be expected to be able to communicate with each other to decide issues affecting their children's welfare. (Rubtsova I, at p. 12.) Based on the evidence, the trial court could infer that has not changed. --------
Accordingly, the court's August 9, 2019 order was not an abuse of discretion and any failure to allow Ivan to present additional testimony or witnesses was not prejudicial.
DISPOSITION
The August 9, 2019 order is affirmed. Ulyana Rubtsova is to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
LAVIN, J.