Opinion
D074227
01-17-2020
In re the Marriage of DOUGLAS and BROOKE SAIN. DOUGLAS SAIN, Appellant, v. BROOKE SAIN, Respondent.
Douglas Sain, in pro. per., for Appellant. Niddrie Addams Fuller Singh and Rupa G. Singh for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D546753) APPEAL from orders of the Superior Court of San Diego County, Gerald C. Jessop, Judge. Affirmed. Douglas Sain, in pro. per., for Appellant. Niddrie Addams Fuller Singh and Rupa G. Singh for Respondent.
Petitioner Douglas Sain (sometimes, husband or father), appearing in propria persona, appeals the court's April 11, 2018 custody order following a multiday evidentiary hearing in which the court granted respondent Brooke Sain (sometimes, wife or mother) (husband and wife are sometimes collectively referred to as parties or parents) sole legal and primary physical custody of the parties' three minor children, M.S. (born August 2003), C.S. (February 2005), and A.S. (April 2008) (sometimes, M.S., C.S., and A.S. are collectively referred to as the children); and awarded wife $35,000 in attorney fees and costs. He also appeals the court's April 26, 2018 ex parte order denying his request for reconsideration of its April 11 order.
Husband on appeal contends the court erred in finding that the presumption against persons perpetrating "domestic violence" within the meaning of former Family Law Code section 3044 (section 3044), subdivision (d) applied to him and that he, in any event, did not overcome that presumption as set forth in subdivision (b) of this statute. He further contends the court erred in not granting his request for reconsideration of the April 11 order, based on new evidence he allegedly presented that allegedly showed wife had been less than forthcoming in her income and expense declaration, and that the money held in an account ending 5581—the source of the attorney fees and costs' payment to wife—was his separate property. Affirmed.
Section 3044 was amended effective January 1, 2020. (Stats. 2019, ch. 115 (Assem. Bill No. 1817), § 29, eff. Jan. 1, 2020.) Newly amended section 3044 added among others the requirement in subdivision (f) that the court make specific findings on various enumerated factors in subdivision (b) in determining whether a party has overcome the rebuttable presumption in subdivision (a) that the "award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child," as further defined by statute.
All further statutory references are to the Family Code unless noted otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Overview
Husband and wife married in August 2002 and separated on January 3, 2014. Before separation, their marriage had been "very strained," leading wife in April 2013 to file for divorce. They attempted to reconcile in September 2013, but "daily" confrontations led wife to take the children on December 31, 2013 to her mother's home in Lake Havasu City, Arizona, where wife and the children eventually settled. Shortly thereafter, husband filed for divorce.
Following a multiday hearing in August 2014, a California court on December 10, 2014 entered an order regarding child custody and visitation. The December 10 order awarded the parties joint legal custody of the children. In July 2015, husband sought to modify the December 10 order by requesting sole custody and permission to move the children back to San Diego. Wife in response also sought sole custody of the children, and to remain living with them in Arizona.
The parties' request to modify custody was finally heard in January 2018. At the time of the January hearing, and after the entry of myriad interim custody and visitation orders, the custodial arrangement provided that during the school year, the children would spend "every other weekend, rotating between San Diego and Lake Havasu, and then during the winter and summer breaks [custody was to be] shared equally." Thus, in a typical month during the school year, husband would have one weekend visit with the children in Lake Havasu and one in San Diego. Husband estimated the drive from Lake Havasu to San Diego was about five and one-half hours each way.
After the December 10 order, the parties' relationship continued to be contentious, to the point they were unable to communicate effectively "on any issues." At wife's request, visitation exchanges involving the children typically occurred at police stations, or in the presence of police escorts. As discussed in more detail post, the record shows an Arizona court issued multiple orders of protection against Husband, prohibiting all contact with wife except for communications directly relating to the children.
Husband's Testimony
Once the December 10 order was in place, husband estimated he missed about 50 visits with the children in San Diego. Husband stated wife made a variety of excuses why the children would miss visitations with their father in
San Diego. Wife also did not allow for "make-up time" when the children missed a visit with their father, regardless of the reason for the missed visit. Even when the children did come to San Diego, they typically arrived around 11:00 p.m. and were tired; and typically left San Diego around 3:00 p.m. on Sunday to return to Arizona. Husband claimed wife also denied him "virtual visitations" (such as through a computer program) with the children at least 450 times since the December 10 order became effective.
Husband stated he was first served with an "order of protection" issued by an Arizona court in early May 2015. Husband was served with that order in a public park, in front of the children, during a weekend visit in Lake Havasu. Husband further stated he was never provided with notice of any hearing before that order became effective, as the hearing in connection with the order took place on April 22, 2015, per the order itself. According to husband, the order was good for a one-year period.
Husband testified wife sought the April 22 order based on an incident that took place on April 18. On that day, husband was scheduled to visit the children in Lake Havasu. He requested the visitation take place between 11:00 a.m. and 6:00 p.m. Wife, however, insisted the visit start at 1:00 p.m. and end at about 7:00 or 8:00 p.m. Husband did not agree because he had driven to Lake Havasu that morning, it already had been a "long day" for him, and it meant he would be driving across the desert at night and not arriving home until after midnight, after driving 10-plus hours in a day.
Husband, along with a supervision monitor, waited at an agreed-location for wife to drop off the children. When wife did not show up with the children, husband called the police, who instructed him to go to wife's residence. Husband went to wife's residence, parked across the street, and waited for the police. Other than this one instance, husband stated there were no other times he was within 1,000 feet of wife's residence.
Husband further stated that five more orders of protection were issued against him by an Arizona court on behalf of wife and/or one or more of the children, including on February 10 and 18, 2016; May 16, 2018; October 19, 2016; and February 10, 2017. According to husband, other than the October 19 order, all other orders were issued by an Arizona court without notice. With respect to the October 19 order, husband testified he participated in the hearing via telephone. Although the issue of custody over the children was to be heard by a California court, husband testified wife only sought protection for herself and/or the children in an Arizona court.
Husband testified the orders of protection of February 10 and 18 prevented him from having any contact with the children. In connection with the application for those orders, wife alleged husband had abused the children, including striking A.S. during a visit over the winter break, an accusation husband denied, and had been "yelling and cussing" at the children. Because these two orders involved the children, husband immediately moved to dismiss them, which the court did on May 16, 2016.
Husband also denied ever striking, or threatening to strike, M.S. or C.S.
Husband testified he was forced to hire a criminal defense attorney in Arizona because five criminal complaints were filed against him in that state. The first such case was filed in about July 2016 for violation of the February 10, 2016 order of protection as it applied to M.S., for which husband was "acquitted."
Husband next faced criminal prosecution in Arizona on August 13, 2016. At about 8:00 p.m., police pulled over husband, who had the children with him in the car. Police questioned husband, then informed him a warrant had been issued for his arrest for violation of an order of protection that, according to husband, he had no notice of. In front of the children, police handcuffed and arrested husband, who was then taken to an Arizona jail. Husband testified his August 13 arrest resulted from his leaving a voicemail on wife's phone. Husband, however, denied making any threat of physical violence in that voicemail.
The next two Arizona prosecutions against husband were in September 16, 2016, as a result of two separate e-mail communications husband made to wife through "Our Family Wizard." Husband was acquitted of both charges. Husband testified no California court had ever changed the order regarding his ability to correspondence with wife through this database.
The last criminal prosecution against husband took place in October 2016. In that instance, husband sent an e-mail to wife's new attorney. Wife's attorney responded back to husband, included wife in the e-mail, and stated that husband needed to communicate directly with wife about certain issues because wife's new attorney "was providing limited representation on certain issues" only. Husband sent a reply e-mail to all. As a result of his doing so, husband claimed he was convicted for violating an order of protection, even though he had not typed wife's e-mail address in the "sender bar." Husband stated this conviction was not based on any threat of physical violence or harassment. At the time of trial, wife had obtained, but not yet served husband with, another order of protection issued by an Arizona court.
Husband described an incident during a custodial visit in Arizona when wife took A.S. out of the park and began to drive away with her. Husband confronted wife, who called the police. The police returned A.S. to husband's care; however, A.S. was "traumatiz[ed]" by the event.
Husband testified the police on multiple occasions conducted "welfare checks" on the children during their visits with him in San Diego. In one such instance, the police demanded husband turn over the children. Husband estimated that since the December 10 order, there has been about 18 such checks at his home in San Diego; that such checks typically took between 15 minutes and two hours; that sometimes there would be multiple welfare checks during a single visit, including in January 2015 when the police conducted three such checks during a three-day period; that the police always spoke directly to the children; and that on occasion, the police spoke to the children without husband being present. Husband stated the children were traumatized by these repeated welfare checks.
According to husband, wife was placed on probation after being charged in Arizona with custodial interference of husband's custody and visitation with the children. As a result, wife was ordered to take an online class or program.
Husband testified that wife did not consult him when she decided all three children needed therapy, nor did he ever participate in any therapy session, or communicate with their therapists regarding a treatment plan for the children. Husband also was initially unable to obtain the therapeutic records of the children, and only gained access to them after making multiple trips to Arizona. Wife also did not consult him regarding the schools the children would attend in Lake Havasu.
On the latter point, husband stated that, if the children came to live with him in San Diego, as he requested, they would have access to much better educational opportunities than were available to them in Lake Havasu; that he personally had researched the schools in San Diego where the children could attend, which included onsite visits, speaking to school administrators, and reviewing test scores; and that the children had various options when it came to high schools in San Diego, whereas Lake Havasu allegedly had only one high school.
Wife's Testimony
Wife witnessed husband engage in conduct that negatively impacted the children. With regard to M.S., wife testified that since January 2014, she had seen husband throw objects at M.S., and heard him "cuss" at M.S. (and the other children), saying such things as "fuck off" and "fuck you," and calling him (and C.S.) a "shithead" and a "piece of shit." According to wife, M.S. had also heard his father calling their mother a "cunt, a fucked up mother, [and] a fucking whore," among other names. Wife testified M.S. would cry "excessively" when his father was abusive, as would the other children.
Wife recalled an incident when husband, in front of the children, took their "nerf guns" and threw them across the room, causing them to fall apart. During this incident, husband called M.S. an "asshole" because one of the guns had scraped a table-top. Husband during this same incident called wife a "fucking bitch," which caused M.S. to cry and be fearful of his father.
Wife also testified she would receive phone calls from M.S. during the children's visits with their father. In some of these calls, M.S. stated he was fearful because their father was "flipping out," "cussing" at them, and was extremely "mad and upset." Also during these calls, M.S. would ask to come home, and would also ask his mother to call the police because M.S. was concerned for his safety and the safety of his siblings.
Wife testified many of these incidents involving husband and M.S. also occurred in front of C.S. and A.S. As a result, C.S. also was fearful of going on visits with his father. On one occasion while C.S. was on the phone with his mother while visiting his paternal grandmother in Cupertino, wife heard husband in the background say, "don't fucking let [wife] talk to the children," and also heard husband call her a "fucking bitch" in the children's presence.
Wife testified the children had an emergency plan or contact when visiting in San Diego, based on the recommendation of a counselor. The emergency contact lived near husband. Wife recalled an instance when C.S. and A.S. went to the home of the emergency contact and called her because husband was cussing at the children, including M.S. in particular, after the children told their father they wanted to leave the visitation early and return to Arizona.
Wife stated A.S. frequently referred to her father as a "scary monster" and was fearful of him. According to wife, in the fall of 2015 A.S. described an incident that took place while her brothers were in the car. During this incident, husband began cussing at A.S., calling her a "fucking bitch" and asking her why she never "fucking listen[s]" as he demanded she put on her "fucking clothes." As a result, A.S. did not want to go on additional visits with her father.
Wife recalled another incident when husband took the children to Utah. While on a hike, A.S. reported that her father cussed at her because she was walking more slowly than the group; and that he then struck her in the stomach, which wife claimed was also witnessed by M.S. and C.S. Wife also claimed A.S. became distraught at a swim meet when husband called the police after wife also showed up at the pool. A.S. told her father she wanted to swim in the meet, but husband refused, grabbed A.S. by the arm, put her over his shoulder, and with A.S. "kicking, and crying and screaming," took the children and left. Wife testified she took a "video" of the incident.
Witness L.J., who volunteered at the pool where this incident took place, testified at the hearing and for the most part, corroborated wife's version of the events of this incident.
Finally, A.S. told her mother after a visit in San Diego in April 2017 that father said he was "going to kill [wife] in Arizona if the judge lets [the children] stay in Arizona." According to wife, A.S. made this statement while crying uncontrollably. Wife also stated that A.S. made this statement as soon as wife picked up the children at a police department parking lot in San Diego; and that wife in response recorded the incident on her phone because A.S. "kept saying it multiple times." Wife testified she reported A.S.'s statement to San Diego police while driving back to Arizona.
On cross examination, wife admitted she seldom if ever sent husband any photographs of the children, including when they were participating in various school or weekend activities; that she often did not advise husband of the children's activities, including, by way of example only, when M.S. flew in a small airplane a few weeks before the January 2018 hearing because he was interested in obtaining his pilot's license; that she typically did not advise him (through the "Our Family Wizard" database) of the children's medical conditions, including medication they were taking; and that at times she neglected to include the children's medication when they visited their father in San Diego.
Neutral Expert's Testimony
Neil Ribner, Ph.D., testified as an Evidence Code section 730 child custody evaluator, after being appointed in this capacity by the court in December 2015. Dr. Ribner's role in the case was to create a custody and visitation plan in the best interest of the children. In connection with that plan, Dr. Ribner conducted extensive interviews, reviewed documentary evidence, and relied on other sources of information including testing. Dr. Ribner prepared a report dated May 1, 2017.
The record includes only a portion of Dr. Ribner's written report, starting with his "recommendations" which appear on page 21 of his 26-page report.
Dr. Ribner testified that each of the children was mature for their respective ages, with M.S.—the oldest child—showing "very significant maturity." He also testified each of the children understood that, as a result of their parents' divorce, decisions would be made about where they would live and with whom, including A.S., the youngest, who was about eight years old when interviewed by Dr. Ribner. He also did not believe the children had been "coached" by either parent. In preparing his report, Dr. Ribner gave weight to the children's statements regarding where they wanted to live and with whom.
Dr. Ribner testified that the children were "happy and flourishing" in Lake Havasu; that they reported "verbal abuse and threats" from their father, which he found credible and which were corroborated by other evidence; that the children were "embarrassed" by, and at times "scared" of, their father; that they expressed the desire not to spend any additional or "extra" time with their father beyond what they were then doing; and that he recommended the children remain in Arizona with their mother.
Dr. Ribner was informed by wife's counsel that both M.S. and C.S. had testified in this case under "controlled circumstances" based on questions posed only by the court. Dr. Ribner confirmed he was not surprised by the testimony of both children that they wanted "less time with their father," and that they did not want to come to San Diego for weekend visitations.
We have reviewed and considered in this case the testimony of M.S. and C.S., but purposely excluded such testimony in the summary of evidence.
Dr. Ribner confirmed that, when he interviewed M.S. and C.S., they both stated they wanted to spend less time with their father because of his "anger" and "verbal abuse"; that husband's "behavior" has led the children to have "negative feelings" about their father; that husband has said "unsavo[ry]" things about wife in front of the children; that husband was required by two court orders to attend "anger management[-]type sessions"; and that the situation between the family was "an extremely high-conflict case," a point on which the court also agreed.
Dr. Ribner testified that A.S. did not disclose during their interview that her father had "punched" or struck her in the stomach. Dr. Ribner also stated that, when wife brought the children to him for interviews, at times she seemed "overwhelmed and somewhat disconnected"; that husband "did a good job interacting with the [children]" during their interviews; and that in their father's presence, the children did not express being fearful of him.
Court's Observations and Ruling
After hearing additional testimony from husband and wife and closing argument, the court took the matter under submission. Before going off the record, the court made the following statement: "Well, I made my observation before and I will make my observation again, these children, I think, are collateral damage in a very litigious and contentious custody proceeding. It is unfortunate that they are. All I can do is try to do what other judges have tried to do in the past and make a workable order. I don't know what workable order. Everything that I tried, that they tried, apparently hasn't worked for one reason or another.
"I find it very telling that Dr. Ribner made his observations, and I did talk with [C.S.] who I found to be a very—well, it's sad to see a child break down like that. But I did ask him at least twice, maybe three times if he wanted to tell me what was on his mind and he said he did. And at least two of those times, neither mother or father were present in court, he said that. To have a child give a gut-wrenching statement like that is difficult for me and it must be difficult for both mother and father, but that is the kind of damage that we are seeing here.
"And I do understand that sometimes people cannot get along well and they can blame one or the other for the misfortunes of the children. But that doesn't subtract from the fact that the children do indeed love you both very much and to see you tear each other apart does not help you. It does not help you at all. All it does is it hurts the things that you love, your kids. And episodes at the pool, the park, have the police come to the birthday party, apparently I'm shocked. I think it is a gross understatement to say that it was insensitive. It happened.
"And I don't know how to help. I wish I could. I would like to give you guidelines so it doesn't happen in the future. I would like to give you guidelines that you can have a relationship with the children. And I will try and do my very best to make an order which I think is in the children's best interest pursuant to [the] Family Code.
"It doesn't mean I will be successful. It means I will try. And that is it. It will really be coming on the two of you to do what you can because when you decide to get together and have children, you assume the very important role and that is a parent. And it means that sometimes you don't get to do what you want to do. Sometimes you do things that you don't want to do. Not because you want to make the other person happy, the other parent, but because you are a parent and you want to make your children happy. And I think that is one of the collateral damage issues that I will try and address."
On January 31, 2018, the court made an oral ruling in this custody case. The court again repeated the difficulty of this case, exacerbated by the fact that wife lived with the children in Lake Havasu, Arizona, and husband in San Diego. It noted that the custody issue had previously been litigated before Judge Hallahan, who had issued the December 10 order; that as such, the court would be guided by the best interest of the children; and that going forward, any change to the custody order would require a showing of "change of circumstances."
Looking at the history of the custody dispute, the court noted that since Judge Hallahan's December 10 order, there had been at least 12 custody modifications; that also since that order, the court could not discern much difference between the situation then and the one pending before the court; and that it observed the children were "literally being torn apart" by the behavior of both parents. The court noted it was clear both parents loved the children, but their animosity toward each other was "hurting" the children, as demonstrated by their testimony in this case.
The court found the testimony of M.S. and C.S. credible. It noted much of that testimony was also confirmed by the testimony of Dr. Ribner and his written report, both of which the court found very helpful in the custody dispute. The court further found that the children were in a "settled and stable relationship" with their mother in Lake Havasu, which it found was one of the most important factors in ascertaining the children's best interest; and that it questioned husband's credibility when he testified he would facilitate contact between the children and their mother if the children lived with him and went to school in San Diego, inasmuch as husband appeared unwilling to facilitate contact between wife and the children during his custodial visits.
Regarding husband's claim that wife had "coached" the children into saying negative things about him, including that they feared him, the court found otherwise, noting Dr. Ribner concluded the children had not been coached, a conclusion the court also reached after extensively questioning M.S. and C.S. at the hearing.
The court found troubling husband's testimony that it was "normal" for children to be "fearful" of their parents. Specifically, the court noted that husband made these remarks both on direct and cross-examination; that husband did not use the words "respect" or "obey," but instead the word "fearful"; that husband's approach to parenting was consistent with the report of Dr. Ribner, the testimony of M.S. and C.S., and the testimony of wife, including how husband called her "vulgar" names in front of the children and may have even threatened her life in the presence of A.S.; and that Dr. Ribner observed husband exhibited "angry," "belligerent behavior" during his examination of husband, which Dr. Ribner found "worrisome."
Regarding the former section 3044(d) presumption discussed post, the court noted husband had been arrested and charged with a violation of a court order, "which appears to be a violation of [a] domestic violence order," which was "Exhibit I." On this issue, the court further found as follows: "The Court notes that [husband] was directed to attend a domestic violence counseling as a result of the condition. He was sentenced to 21 days, 15 days suspended, three days to be served. That, at least in this Court's mind, in addition to the other factors that we will be going into, causes this Court to feel that the presumption set forth in . . . [former] Section 3034(d),[] applies in this case. There was no evidence that . . . he had taken steps since the November 3, 2017 conviction to overcome the presumption."
It appears the court was referring to the presumption set forth in section 3044(d), as there is no section 3034 in the Family Code.
The court also expressed concern about wife's behavior. Specifically, the court found that wife had admitted being "guilty of custodial interference"; and that she had taken a six-month, court-ordered program or class, as a result; that Dr. Ribner summarized this case as "extreme high conflict and set the blame at the feet of both parents" (italics added); and that wife "place[d] a lack of value on [husband's] presence in the children's lives, which the Court view[ed] as very important," and which view was also shared by Dr. Ribner.
Nonetheless, the court found "important" mother's bonding with the children, noting it was "stable, dependable, and somewhat more solid than both the normative and custody examples. That it appears her caring can be counted on to protect the interests of the children over time. Her scores [from Dr. Ribner's report] do not suggest that the respondent [wife] is likely to alienate the [children] against their father." The court agreed with Dr. Ribner's assessment that husband's behavior was to blame for the children's animosity towards their father.
The record shows the court then used the recommendations in Dr. Ribner's report as a "skeleton," adopting them with modifications. The court's ruling was subsequently memorialized on April 11, 2018, as noted, in a 10-page written order.
Among its many terms, the court in its April 11 order awarded wife sole legal custody of the children, including when they were with husband; and concluded the children's primary residence would be in Lake Havasu. The order provided husband would have unsupervised visitation with the children in Lake Havasu on the first weekend of every month, as described in detail in the order, and also provided husband could have another visitation on the third weekend of every month—again in Lake Havasu—if he provided wife with 30 days advance notice of his intent to exercise such visitation.
On the issue of attorney fees, the record shows wife requested fees of $134,000, which the court assumed was the amount to "cover all of her attorney's fees incurred in these proceedings," with the exception of fees and costs she incurred in the multiday custody hearing, which she claimed was $42,000.
The court noted it had reviewed the parties' income and expense declarations, and an account statement from husband's brokerage firm dated October 31, 2017, among other documents. The court noted that both parties enjoyed the support from their respective family members. Husband's income and expense declaration showed a loan from his father of $793,540; and wife's declaration disclosed a loan from her mother of $349,428. Based on wife's income of about $550 per month, and husband's income of about $1,300 per month, the court concluded the parties were "litigating way beyond their means," particularly since both parties admitted "they [had] exhausted their families largesse."
The court found husband's income and expense declaration "disclosed no liquid or non-liquid assets. There's nothing. There's zero. This is awkward[] for him, contrary to the evidence. The evidence clearly shows he was not being honest with the Court. In fact, he had $135,000 in an IRA on October 31, 2017, Exhibit III. And he accessed $65,000 from this account in 2016. So at some point there was . . . almost $200,000 in that account. That's exhibit JJJ. He admitted he had withdrawn $70,000 since October 31, 2017, and the amount—and $35,000 for this attorney's fees recently. The court has discretion to order attorney's fees from any type of property, community property or separate property. [Citation.]
"[¶] . . . [¶]
"In light of the amount of litigation, the need for custody evaluation, and the duration of the hearing, the Court will order that [husband] is to pay [wife] the sum of $35,000 for attorney's fees and costs. The money is to be drawn from [husband's IRA account], and paid to [wife's attorney] within seven days." The court subsequently modified its ruling to allow husband additional time to pay wife's fees. The court also noted the $35,000 payment included wife's portion of the costs to Dr. Ribner.
The record shows husband on April 20, 2018, sought reconsideration of the court's April 11 order. The court by ex parte minute order dated April 26, 2018, denied that request, finding husband's request did not comply with Code of Civil Procedure section 1008, including the requirement that there be a "satisfactory explanation for the failure to present the alleged 'new' or 'different' evidence at the time of the hearing."
DISCUSSION
On appeal, husband bore the burden of providing an adequate appellate record "even if he did not bear the burden in the trial court. [Citation.]" (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230). This burden at a minimum required him to provide a full and complete appellate record, citations to the record evidence, and legal authority and analysis in light of such evidence to demonstrate the court erred in its April 11 and April 26 orders in this case. Unfortunately, because husband did not adhere to these basic requirements, we have difficulty providing meaningful review of his appeal.
A. Failure to Provide a Complete Appellate Record
Husband's clerk's transcript was 121 pages long. As noted ante, although the court relied extensively on Dr. Ribner's report, which appears to have been 26-pages long, the record only includes pages 21 through 26 of this report. Also missing from the record is Judge Hallahan's December 10 custody order, and the additional 12 or so other custody orders that were made in this case prior to the multiday custody hearing that is the subject of this appeal; husband's motion to reconsider, including any documents in support thereof, which was the subject of the April 26 order; and myriad exhibits relied on by the court, including husband's income and expense declaration, documents pertaining to his IRA, which he claims is his separate property, and text messages and e-mails sent by the children and/or the parties, including through Our Family Wizard, among many other records relied on by the court.
It is axiomatic that an appellate court presumes that the trial court's orders are correct and supported by the facts of the case, and any error must be affirmatively demonstrated. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140 (Ketchum); Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a corollary to this rule of appellate review, an appellant such as husband is obligated to furnish us with a complete and adequate record: "The appellant must affirmatively demonstrate error by an adequate record. In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. 'If any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.' " (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.)
When, as here, the record is inadequate to assess the errors raised, the claims are deemed to have been forfeited. (See Ketchum, supra, 24 Cal.4th at pp. 1140-1141; see also Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [noting a party seeking to challenge an order or judgment on appeal has the burden of providing an adequate record to assess error, and further noting when that "party fails to furnish an adequate record of the challenged proceedings, his [or her] claim on appeal must be resolved against him [or her]"], citing Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296, and Ketchum, at pp. 1140-1141.)
We recognize husband is self-represented. Nonetheless, his propria persona status does not exempt him from the rules of appellate procedure or relieve him of his burden on appeal. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu) [noting that self-represented litigants "must follow correct rules of procedure" and that their failure to do so forfeits any challenge on appeal].)
B. Failure to Include All Material Evidence and the Lack of Citations to the Record Evidence
Husband on appeal is challenging the finding he committed "domestic violence" against wife, which finding the court in part relied on (as discussed post) when it applied the presumption in former section 3044(d) and granted wife sole legal custody of the children.
Unfortunately, husband's "statement of facts," and his brief in general, fail in at least two key aspects. First, husband did not set forth all material evidence, as opposed to " 'merely [his] own evidence.' " (See Nwosu, supra, 122 Cal.App.4th at p. 1246, quoting Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Fallon); see also Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [recognizing that a " 'party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient,' " or risk having the claim of error forfeited on appeal]; Cal. Rules of Court, rule 8.204(a)(2)(C) [requiring an appellant to "[p]rovide a summary of the significant facts" (italics added)].) Husband's failure to include all the material facts relevant to his case—including those pertinent to the issue of whether (or not) he committed domestic violence against wife as defined in former section 3044(d)—forfeits on appeal any challenge of error with respect to such facts. (See Nwosu, at p. 1246; Fallon, at p. 881.)
Second, husband's opening brief did not include record cites to support his factual summary. (See rule 8.204(a)(1)(C) [requiring "any reference to a matter in the record" to be supported by a citation to its location].) His failure to include all record cites forfeits any claim that the court's orders are unsupported by the record evidence. (See Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [recognizing the principle that an "appellate court is not required to search the record on its own seeking error"]; see also Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [noting it " 'is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations,' " and further noting that if a "party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived [or forfeited]"].)
Although husband's preparation of the record is less than satisfactory, as we have noted, we nonetheless reach the merits of this case, inasmuch as it is by all accounts a "high-conflict" case involving three children who have, in the court's own words, been "literally torn apart by the behavior of both parents."
C. Former Section 3044 Presumption
1. Guiding Principles
We apply a deferential abuse of discretion standard of review of custody and visitation orders. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) In making a custody determination, a trial court, considering all of the circumstances, has the widest discretion to choose a parenting plan that is in the best interest of a child. (Id. at pp. 31-32; see former § 3040, subd. (c) [providing section 3040 "establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child"].)
Section 3040 was amended effective January 1, 2020. (Stats. 2019, ch. 551 (Sen. Bill No. 495), § 3, eff. Jan. 1, 2020.) This amendment has no substantive bearing on the issues presented in this case.
In making a determination of the best interest of a child, a trial court should consider various factors, including the health, safety, and welfare of the child (former § 3011, subd. (a)); the nature and amount of contact with both parents (id., subd. (c)); and which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent (former § 3040, subd. (a)(1)). A trial court abuses its discretion only if "there is no reasonable basis upon which the court could conclude that its decision advanced the best interests of the child." (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610.)
Section 3011, like section 3040 discussed ante, was also amended effective January 1, 2020. (Stats. 2019, ch. 551 (Sen. Bill No. 495), § 3, eff. Jan. 1, 2020.) The amendment to section 3011 likewise has no bearing on the issues in this case.
Former section 3044, subdivision (a), provided: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence."
A person is determined to have " 'perpetrated domestic violence' when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320[] to protect the other party seeking custody of the child or to protect the child and the child's siblings." (Former § 3044, subd. (c).)
Section 6320, in turn, provides in relevant part: "(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."
"[T]he requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211[] and of abuse contained in Section 6203. . . ." (Former § 3044, subd. (d)(1).) "The requirement of a finding by the court shall also be satisfied if any court . . . has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years." (Id., subd. (d)(2).)
Section 6211 provides in relevant part: " 'Domestic violence' is abuse perpetrated against any of the following persons: [¶] (a) A spouse or former spouse. . . . [¶] . . . (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act . . . ."
Section 6203 in part provides: "(a) . . . '[A]buse' means any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the actual infliction of physical injury or assault."
2. Analysis
Reaching the merits, as best as we are able, husband contends the April 11 order must be reversed because the court solely relied on the rebuttable presumption in former section 3044(a) in awarding wife sole legal custody of the children. Husband further contends the court should not have relied on his alleged domestic violence conviction rendered by the Arizona court because that conviction was pending before a court of review in Arizona at the time of the January 2018 custody hearing.
The record includes two documents issued by the Lake Havasu City Consolidated Court, one dated November 2 and the other November 3, 2017. The former document applies to case No. MCR201600889, and the latter to case No. MCR201601221; both documents charge husband in count 1 with "interference w/ judicial proceedings DV-C1M"; both fine husband $500; both sentence husband on count 1 to "20 days jail/ 15 days susp/ credit 2 days/ 3 imposed"; and both require husband to enroll in "D/V counseling" within 60 days of the date of the orders and to complete such counseling within 180 days.
The November 2 order also includes a count 2 and an additional $350 fine for "FTA Warrant C1M." It appears husband signed the November 2 order acknowledging his receipt, but not the November 3 order.
Other than the parties' testimony, there is no other record evidence pertaining to these two orders, including any underlying charging documents, police and/or probation reports, if any, or husband's appeal(s) to such orders. As such, it is not altogether clear whether the court's finding that husband perpetrated domestic violence against wife and/or the children, as defined under former section 3044(a) and (b), is supported by record evidence.
Indeed, we note that, although the issue of custody was litigated and decided by a California court, at no time did wife seek for herself or the children any protection from husband in this forum. This is true despite the fact that wife was often in California to drop off and pick up the children during their custodial visitations with husband in San Diego; and that certain alleged conduct by husband potentially deserving of protection took place within California, including, by way of example only, husband's alleged threats to kill wife if the court ruled against him.
Moreover, the record shows wife was clearly concerned about the children's welfare during their custodial visits with husband in San Diego. As noted, since the issuance of the December 10 (2014) order, San Diego police conducted about 18 welfare checks of the children at the home of husband. Wife also arranged an emergency contact for the children when they visited in San Diego.
Although it appears from the oral transcript that the court more or less found husband "perpetrated domestic violence" against wife for purposes of the former section 3044 presumption based on the "DV" references in the November 2 and 3 orders, which candidly, might be insufficient to support such a finding, and although husband as appellant had the obligation to provide a sufficient record to allow this court to make that determination one way or the other, we conclude any error by the court in relying on the presumption in former section 3044 was harmless.
As summarized in detail ante, there is more than sufficient record evidence to support the finding that the court properly exercised its broad discretion when it ruled the best interest of the children was for wife—the children's primary caretaker—to have sole custody over them and for them to continuing residing in Lake Havasu, Arizona, where they were thriving and happy. (See Burgess, supra, 13 Cal.4th at p. 32 [noting a court of review is "required" to uphold custody and visitations orders "if it is correct on any basis, regardless of whether such basis was actually invoked"], citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; see also D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [" 'If right upon any theory of the law applicable to the case, [a decision] must be sustained regardless of the considerations which may have moved the trial court to its conclusion' "].)
Moreover, as noted by Dr. Ribner and the court, M.S. and C.S. both testified that they preferred to remain in Arizona and live with their mother, who the court found to be the most stable parent; that they loved both parents but driving back and forth between San Diego and Lake Havasu each month was negatively impacting their lives, including preventing them from participating in various school and weekend activities; and that they did not want additional visitation with father, either in San Diego or in Lake Havasu. The record also supports the finding of the court that the children did not want more visitation with their father, not because of wife and any alleged "coaching" of the children, as suspected by husband, but because of husband's own behavior, which is summarized in detail ante.
In light of the fact this case by all accounts is a "high-conflict" case that has involved more than a dozen custody orders since 2014, and the fact the parties' inability to get along has caused "collateral damage" to the children, we conclude the court properly exercised its discretion when it strived to fashion an order in the children's best interest, in which the children would continue living in Arizona with their mother, who would have sole legal custody over them; and which allowed husband unsupervised visitation with them at least once a month during the school year. (See Keith R v. Superior Court (2009) 174 Cal.App.4th 1047, 1056 [noting a "minor child's best interests must remain at the forefront of the family court's considerations on custody" in determining whether the former section 3044 presumption applies or has been rebutted].)
D. Attorney Fees Award
Husband also challenges the $35,000 attorney fee and cost award to wife. Husband contends the fee award should be reversed because he submitted "new evidence" in connection with his April 20, 2018 motion for reconsideration showing that wife had "significantly" misled the court in her income and expense declaration by "understating" her income. As such, husband further contends the court "should have dismissed the attorney fee award for the same reason it made the fee award."
As noted ante, husband's motion for reconsideration—and any documents supporting it—were not included in the appellate record. For this reason alone, we conclude he forfeited on appeal this claim of error. (See Ketchum, supra, 24 Cal.4th at pp. 1140-1141 [noting when, as here, the record is inadequate to assess the errors raised, the claims are deemed to have been forfeited and must be rejected].)
In any event, "trial courts enjoy broad discretion in awarding attorneys' fees in marital proceedings. [Citation.] The exercise of that discretion is guided by [Family Code section 2032] . . . . [This] statute permits an award of attorneys' fees and costs where 'just and reasonable under the relative circumstances of the respective parties.' [Citation.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314 (Cheriton), citing In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768; see § 2032, subd. (b) [providing that in "determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320"].)
" 'It is well established in California that, although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.' [Citation.]" (Cheriton, supra, 92 Cal.App.4th at p. 315.) "Similarly, trial courts 'have a duty at the conclusion of the case to make a just and reasonable award of attorney fees and costs, considering the circumstances of the parties.' [Citation.]." (Ibid.)
Here, the record shows wife asked the court to award her fees and costs of $134,000, which did not include the $42,000 in fees she incurred in connection with the January 2018 custody hearing. The record also shows that husband had an IRA with an account balance of about $135,000, which account husband had accessed to pay his own attorney fees. Based on this evidence and the state of the record, as noted, we conclude the court properly exercised its discretion when it awarded wife about 25 percent of the requested fees and costs.
E. Sanctions
Wife also seeks $35,000 in sanctions against husband for filing what she claims is a frivolous appeal, violating the California Rules of Court, and causing needless delays.
Whether to impose appellate sanctions is a matter within our broad discretion. (Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1181-1182.) Under Code of Civil Procedure section 907 and California Rules of Court, rule 8.276(a)(1), we may award sanctions when an appeal is frivolous and taken solely to cause delay. "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) "The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." (Id. at p. 649.)
Code of Civil Procedure section 907 provides: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just."
California Rules of Court, rule 8.276(a)(1) provides in relevant part: "On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: (1) Taking a frivolous appeal or appealing solely to cause delay. . . ."
As discussed ante, this is a high-conflict case. That conflict did not end in the family court, but continues in this appeal. As further noted ante, Dr. Ribner and the court did not just blame husband for the conflict, but instead placed the responsibility "at the feet of both parents" (italics added), a finding that is amply supported by the record.
As noted, the record shows wife was placed on probation by an Arizona court for "custodial interference" and was required to take a six-month program or class; that wife did not value the importance of husband's "presence in the children's lives, which the Court view[ed] as very important"; that wife also refused to allow husband "make-up time" with the children when visitations were missed, including as a result of the children's weekend activities and/or wife's inability to transport the children to San Diego as required under an earlier custody order; that wife in May 2015 had husband served in front of the children with an order of protection, where service was effected at a public park; that wife also sought orders of protection on behalf of the children, which orders were later dismissed; that wife obtained an order of protection against husband, which ostensibly was issued without husband's knowledge, which led to husband's arrest in front of the children on August 13, 2016, and his incarceration in an Arizona jail; and that husband and wife were so busy "tear[ing]" each other apart, they failed to recognize the "collateral damage" being done to the children, as poignantly demonstrated by the testimony of C.S. at the January 2018 custody hearing.
Moreover, the record also shows that wife chose Arizona to litigate the issues of alleged abuse and/or domestic violence by husband, where she sought and obtained multiple orders of protection, including on behalf of the children, some of which it appears the Arizona courts issued without notice to husband, subject to his right to challenge such orders within a specified period. At no time, however, did wife seek such protection in California, as we have noted, despite the fact a California court was to decide the issue of custody of the children, as is evident by this appeal. It is not beyond reason to conclude that wife moved for such relief in Arizona in part because it made it more difficult and more expense for husband to challenge and overturn such orders of protection.
Finally, as also discussed ante, it appears husband's contention that the court erred in applying the former section 3044 presumption was not lacking in merit, as we have discussed, although that error was harmless, as we also have discussed. Exercising our broad discretion, for these reasons we therefore conclude wife is not entitled to sanctions in this case.
DISPOSITION
The court's April 11 and 26, 2018 orders are affirmed. In the interest of justice, each party to bear his or her own costs of appeal. (Cal Rules of Court, rule 8.278(a)(5).)
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.