Opinion
G053595
11-14-2018
In re Marriage of DENISE and GARY EVERETT THOMAS II. DENISE THOMAS, Appellant, v. GARY EVERETT THOMAS II, Respondent.
Law Offices of Ernest Calhoon and Ernest Calhoon for Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15D011067) OPINION Appeal from orders of the Superior Court of Orange County, Donald F. Gaffney, Judge. Affirmed. Law Offices of Ernest Calhoon and Ernest Calhoon for Appellant. No appearance for Respondent.
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In this marital dissolution case, appellant Denise Thomas (wife) ostensibly appeals from a number of orders and rulings issued by the trial court concerning everything from alleged domestic violence to child custody and visitation, and from judicial disqualification to appointment of a guardian ad litem. As we explain, certain items from which she appeals are not appealable, and wife's contentions concerning the remainder are without merit. Accordingly, we affirm.
FACTS
This marital dissolution case began in Ventura County. Sometime after a family law case was initiated there, wife obtained a domestic violence temporary restraining order (DVTRO) against respondent Gary Everett Thomas II (husband). While the parties awaited a hearing on a permanent domestic violence restraining order (DVRO), the court appointed a counselor to evaluate their situation and make a child custody recommendation regarding their then infant daughter. The counselor held a session with husband and wife, and prepared a confidential report for the court's review. In the meantime, husband and wife stipulated to, and the court entered, an interim custody and visitation order, which allowed husband monitored visitation with his daughter.
Notwithstanding the upcoming child custody and DVRO hearing in Ventura County, wife filed this separate family law case in Orange County, seeking legal separation from husband (and eventual dissolution of their marriage). She also filed a request for a DVRO against him. Because she did not seek a temporary order, the court set the DVRO hearing roughly four weeks out.
Meanwhile, back in Ventura County, the court held a hearing and issued an order consistent with the counselor's child custody recommendation—giving husband four hours of visitation, three days per week. It also, with wife's consent, dissolved the DVTRO and, at wife's request, transferred the case to Orange County.
Thereafter, husband brought the Ventura County court's temporary custody order to the attention of the Orange County court and requested it effectively adopt the Ventura County order as its own. The court, over wife's objection, did so.
Apparently upset about the child custody issue, wife filed an ex parte request for a DVTRO. Husband opposed the request, disputing all claims of physical violence and highlighting that the last alleged violent act purportedly occurred more than seven months earlier. The court denied the temporary relief, noting there was an upcoming scheduled hearing regarding a permanent restraining order. Less than one week later, the court denied another DVTRO request by wife.
The day after the court denied wife's first DVTRO request, wife's counsel filed what later became the first of four affidavits of prejudice against the judge assigned to the case—Judge Gaffney. After reviewing the disqualification statement, and another filed a few days later, Judge Gaffney struck both because they did not demonstrate on their face any legal grounds for disqualification. He did the same with two subsequently filed affidavits of prejudice, finding they were improper repetitive statements that alleged no facts suggesting new grounds for disqualification.
Wife filed two separate writ petitions, one concerning the striking of the first two affidavits of prejudice and the other concerning the denials of her DVTRO requests. We summarily denied both petitions.
By the time of the child custody and DVRO hearing, the court had two additional items to consider. The first was a motion to quash a subpoena duces tecum served by wife on the Ventura County court-appointed counselor whose custody recommendation was the basis of the Ventura court's temporary custody order. Wife did not file any written opposition to the counselor's motion, but her counsel orally argued the matter at length. The court granted the motion to quash, finding the documents and testimony identified in the subpoena were not relevant to the pending child custody issues.
The second additional item was an ex parte application by wife for the appointment of a guardian ad litem for one of her minor sons who had a different father. Because the son was not a party to the case and the court did not anticipate making any orders involving the son, the court denied the motion.
As for wife's DVRO request, it was wife's testimony versus husband's. Wife testified about an alleged incident that occurred 10 months earlier in which she and husband got into an argument and he pulled and tore the bathing suit she was wearing. She claimed his actions caused her pain and cut her skin. Another alleged incident wife described was an argument in which husband poked her in the eye, causing redness and swelling. She also claimed that on other occasions husband spit in her face, caused her to sustain bruises to her arms, and destroyed pictures of the injuries that were saved on her computer.
Husband denied the bathing suit incident, denied ever grabbing wife's arms hard enough to leave a bruise, denied having ever punched or poked wife in the eye, denied ever being violent toward her two other kids, denied spitting on wife, and denied knowingly destroying any pictures. He also submitted photos of him with wife, their daughter and wife's two other children that were taken at various events around the time of the alleged incidents of violence, as well as cell phone text messages between husband and wife during that time.
At the conclusion of the testimony, the court gave an oral statement of decision. It found wife was not credible and, therefore, specifically rejected her testimony concerning the purported incidents of domestic violence. Because she did not meet her burden of proof in establishing grounds for issuing a DVRO, the court denied the request.
Due to scheduling issues, the court took up the child custody and visitation issues roughly one week later. Wife testified she was willing to let husband have visitation with their then one-year-old daughter for three hours in the morning each day of the week while her other kids were in school. She stated she was breastfeeding and did not want visitation to interfere with it.
Husband testified he obeyed the court's interim orders, but wife did not. He went to the designated exchange location each time he was supposed to have visitation, but wife never came. As for taking care of the child, husband indicated he had all things needed to take care of her (e.g., stroller, bed, car seat), and that there was room for her in the three bedroom house where he lived. He asked the court grant him sole legal and physical custody, but stated he would ensure wife would have visitation with their daughter three days per week, from mid-morning to the evening time.
Following all testimony, the court announced its decision from the bench. It was bothered by the fact wife had consistently violated the temporary custody order and, for months, refused to allow husband to see their daughter. Consequently, it awarded joint legal custody, but sole physical custody to husband, with wife to have four-hour visitation periods three times per week. In addition, because of wife's utter disregard for the court's orders and misuse of the judicial system, it granted husband's request for approximately $14,000 in attorney fees.
DISCUSSION
Wife appears to take issue with a multitude of rulings by the trial court, but her brief is far from clear on the precise scope of her appeal. We have done our best to decipher and organize her arguments, and we address each below. None have merit.
Husband did not file a brief on appeal. "However, we do not treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but examine the record, appellant's brief, and any oral argument by appellant to see if it supports any claims of error made by the appellant." (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.)
Disqualification and Bias
Wife urges us to review whether the trial court erred in striking the four affidavits of prejudice she filed against Judge Gaffney. But, as expressly provided in Code of Civil Procedure section 170.3, subdivision (d), which she quotes, an order determining whether to disqualify a judge "is not an appealable order and may be reviewed only by writ of mandate . . . filed and served within 10 days after service of written notice of entry of the court's order . . . ." As our Supreme Court has explained, this language "forecloses appeal of a claim that a statutory motion for disqualification authorized by section 170.1 was erroneously denied, and [such] preclusion applies even when the statutory basis for the motion appears to codify due process grounds for challenging the impartiality of a judge." (People v. Brown (1993) 6 Cal.4th 322, 334.) Contrary to wife's assertion, requiring review by writ of mandate, as opposed to a traditional appeal, does not violate due process. (Ibid.)
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Though statutory claims of bias are not reviewable on appeal, a constitutional due process claim arguing the judge who presided over a hearing was not impartial is cognizable on appeal. (People v. Brown, supra, 6 Cal.4th at pp. 335-336.) It is a far stretch to interpret wife's statute-based contentions as including such an argument. However, even if we were to do so, we would find a lack of merit.
Wife's counsel asserts a "conspiracy theory"—that Judge Gaffney and a few other Orange County superior court judges are engaged in a "political hit" against wife's counsel—but provided no supporting evidence. All other claimed grounds for bias are equally devoid of evidentiary support, as well as legal authority. A reasonable person aware of the facts "would not entertain a doubt that Judge [Gaffney] 'would be able to be impartial.'" (People v. Brown, supra, 6 Cal.4th at pp. 336-337.)
Grant of Motion to Quash
Wife contends the court erred in granting the motion to quash the subpoena duces tecum brought by the Ventura court-appointed counselor. She argues she did not receive adequate notice of the motion and the sought after testimony was relevant to the matters before the court. We disagree.
No specific amount of notice is required for a motion to quash. Rather, there simply must be reasonable notice. (See § 1987.1, subd. (a) [court may quash subpoena "upon motion reasonably made"].) Such was the case here. The motion to quash was filed seven days prior to the hearing at which wife desired the counselor to testify. This gave wife sufficient time to consider the matter and prepare a response, which in this case was an oral response on the day of the hearing when the court took up the motion to quash. (See Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal.App.4th 575, 582-583 ["seven days' notice [for motion to quash subpoena] cannot be deemed unreasonable"].)
As for relevance, we review the trial court's determination for an abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) Wife makes no effort to explain how the testimony sought was relevant to any of the issues before the Orange County court. Instead, she simply states who she subpoenaed and that the testimony would have been relevant. She, therefore, fails to meet her burden of demonstrating error. (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815 ["'"The burden is on the party complaining to establish an abuse of discretion"'"].)
Denial of Motion to Appoint a Guardian Ad Litem
The court denied wife's oral request for appointment of a guardian ad litem for one of her sons, to whom husband is not the father. Contrary to her assertion, this was not error. Under section 372, a guardian ad litem may be appointed to represent a person "who lacks legal capacity to make decisions" in litigation. (Id., subd. (a)(1).) As the trial court explained, however, the son for which wife wanted a guardian appointed was not a party to this case and none of the matters before the court concerned him. Under these circumstances, the court acted appropriately in denying wife's request. (See In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 222-223 [no authority for appointment of guardian ad litem in dissolution action because minor not party to the action]; Williams v. Superior Court (2007) 147 Cal.App.4th 36, 47 ["The purpose of a guardian ad litem is to protect the minor's interests in the litigation"].)
Wife does not address whether denial of a motion to appoint a guardian ad litem is separately appealable, and we have doubts on the issue. (See In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149 [order appointing guardian ad litem or revoking appointment is not appealable].) However, because wife appears to have made the oral motion during the hearing on her request for a DVRO, we exercise our discretion to consider the guardian ad litem issue in the context of her appeal from the denial of the DVRO.
Denial of Domestic Violence Restraining Order
Without citing the record or explaining her position, wife claims "[t]here is plenty of evidence" to support the grant of a DVRO and it was, therefore, error for the trial court to deny her request. She also argues the court incorrectly determined that her testimony was not credible.
To begin, wife's argument is woefully deficient. "'An appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, [we] may treat it as waived, and pass it without consideration." [Citation.] [¶] . . . This court is not inclined to act as counsel for . . . appellant and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion.'" (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767.) Given wife's conclusory statement and failure to explain how the court's ruling is unsupported by the evidence, we may treat the argument as waived. (Ibid.; see People v. Stanley (1995) 10 Cal.4th 764, 793.)
Even if we consider the merits, wife's argument fails. It is not our province to reweigh testimony or judge credibility. We defer to the trial court's determination on those issues. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 ["'When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court'"]; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823 ["'"'"[I]t is the exclusive province of the [trier of fact] to determine the credibility of a witness"'"'"].) The trial court did not believe wife and there were no third party witnesses to the alleged abuse. Thus, the court did not abuse its discretion in concluding wife did not meet her evidentiary burden.
Child Custody Modification
Wife challenges the court's grant of husband's child custody modification request on multiple fronts, none of which concern the sufficiency of the evidence supporting the ruling. She claims (1) husband did not properly serve and file his request; (2) the court wrongfully refused to let her child custody expert testify; and (3) the court failed to consider her "lack of transportation." There is no merit to any of these contentions.
As for the filing and service of husband's request and supporting documents, wife once again fails to cite the record and explain why she believes the proper procedures were not followed. She, therefore, waives the claimed error. (Doe v. Lincoln Unified School Dist., supra, 188 Cal.App.4th at p. 767.) Even so, our review of the record reveals no deficiency in husband's actions concerning filing and service.
We also find no error in the trial court's decision to preclude wife's expert, a psychologist, from testifying. First, the psychologist was not present in court on the day of the hearing, he was not served with a subpoena, and wife provided no explanation for his absence. The court acted well within its discretion in deciding not to delay the proceedings. (See Pham v. Nguyen (1997) 54 Cal.App.4th 11, 18 [denial of continuance request not an abuse of discretion where party failed to subpoena witness and offered no evidence of unavailability].)
Wife's claim concerning the evidence she actually presented fares no better. Nothing in the record indicates the court ignored her evidence concerning transportation. It demonstrates the opposite. The court assured wife's counsel multiple times that "if [wife] has a problem with a dropoff [sic] area, that's relevant to custody and visitation." And it expressly implored her to present testimony on the subject to the extent there was an issue. When she did, although her counsel argued she had no means of getting to the contemplated child visitation exchange location—the same location included in the court's interim order—wife testified she had access to a vehicle which she used on multiple occasions to travel outside of Orange County. In the end, as with the remainder of wife's testimony, the court did not find credible her claim that she lacked the means to travel to the visitation exchange location.
Statements of Decision
Citing various sections of the Family Code and section 632, wife argues the court committed reversible error by refusing to issue a written statement of decision after the DVRO hearing, the child custody and visitation hearing, and the denial of the ex parte request for a guardian ad litem. No written statement of decision was required for any of those items.
Family Code section 2127 generally requires a court to issue a statement of decision, upon a timely request, when "the court has resolved controverted factual evidence" in ruling upon an action or motion brought pursuant to chapter 10, division 6 of the Family Code (e.g., motion to set aside dissolution of marriage judgment). Because none of the proceedings identified by wife concern that chapter of the Family Code, section 2127 is inapplicable here.
Equally unavailing is Family Code section 3087. That statute applies when a court modifies or terminates a joint custody order over the opposition of one of the parents. In those circumstances, it requires a court to "state in its decision the reasons for modification or termination of the joint custody order." (Ibid.) Here, assuming for the sake of argument that the court's action was a modification to which the statute applies, the court provided reasons for its decision orally at the end of the hearing. Nothing in Family Code section 3087 requires the reasons be in writing, be it a formal statement of decision or otherwise.
The other Family Code section wife relies upon, Family Code section 3022.3, dovetails with section 632. The former provides: "Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure." (Fam. Code, § 3022.3.) In turn, the relevant portion of section 632 specifies that a statement of decision need not be in writing if the trial of the question of fact concludes "within one calendar day or in less than 8 hours over more than one day . . . ." In such situations, the court may announce its statement of decision "orally on the record in the presence of the parties." (§ 632.)
The hearing on the child custody and visitation issues concluded within one day. Thus, the court's oral statement of decision was sufficient; a written one was not required. (§ 632.)
Due Process
In a rather broad sweeping, "catchall" argument, wife asserts the trial court violated her due process rights in a variety of ways. Aside from the matters already addressed above, she claims the court deprived her of the opportunity to present a substantial portion of her case by allowing multiple unnoticed hearings, removing requests for orders from the calendar, denying her the right to present certain evidence and precluding her from arguing certain issues. A thorough review of the record reveals no such error.
Wife was given every opportunity to present live and documentary evidence on each issue that came before the court. She participated in each hearing, whether ex parte or otherwise; there were no "unnoticed" hearings. And to the extent the court excluded evidence, it did so because husband's counsel objected and the court sustained the objection. Wife does not challenge those evidentiary rulings, so any concerns about their correctness have been waived. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
As for argument by wife's counsel, it is clear from the record that the court was simply attempting to enforce its rulings and maintain orderly proceedings. Wife's counsel repeatedly interrupted the court, ignored its rulings and refused to heed its admonitions. The court gave her counsel considerable leeway and allowed him to make a thorough record of objections. At times, however, counsel's conduct was "so unprofessional" the court had to put a stop to it. On the record before us, we find no error. (See People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151 ["[A] trial court has the duty to control the trial proceedings" and "[w]hen an attorney engages in improper behavior, such as ignoring the court's instructions or asking inappropriate questions, it is within a trial court's discretion to reprimand the attorney, even harshly, as the circumstances require"].)
DISPOSITION
The orders are affirmed. No costs are awarded.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.