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Todd v. Archer

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 19, 2012
A133211 (Cal. Ct. App. Jan. 19, 2012)

Opinion

A133211

01-19-2012

DEREK A. TODD, Plaintiff and Appellant, v. CRYSTAL R. ARCHER, Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. SF019635)

Appellant Derek Todd (father) appeals from an order awarding respondent Crystal Archer (mother) continued sole legal and physical custody of their 17-year-old son. He contends that the court erred in denying his motion to disqualify the trial judge, that the court violated his right to due process by conducting the hearing in his absence, and that the visitation and custody order is not supported by substantial evidence. We affirm.

Factual and Procedural History

In July 2010, mother filed a petition seeking to modify a custody order from 1996 that awarded father physical custody of the son. The petition alleged that father was prohibiting the child from seeing mother and that mother had received telephone calls from her son on several occasions crying and begging for her to come get him. She also alleged that school counselors as well as other family members had reported incidents of physical and emotional abuse to the county child protective services agency. In response to her petition, the court temporarily suspended father's custody and visitation and transferred temporary custody to the mother. Following a hearing in September 2010, the court issued an order awarding joint legal custody to the parents and sole physical custody to mother. Visitation with father was suspended "unless the child wants to see him."

In January 2011, father apparently filed a petition seeking to modify the September custody order. Although father's petition is not contained in the record, an order was entered on his petition providing a visitation schedule for father. The parties were referred to mediation and the matter was continued until March 2011 for the return of the mediator's report.

On March 29, 2011, the court entered an order awarding mother sole legal and physical custody of the child. The order provided further that "visitation and communication [would be] at [the] discretion of [the] minor" and the "minor shall initiate contact." The case was continued to June 6, 2011, for a hearing on any remaining issues.

On June 1, 2011, father filed a motion to disqualify the trial judge for cause pursuant to Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), based on the trial judge's alleged bias. The court filed a verified answer to father's motion denying any bias against father.

A prior peremptory challenge under Code of Civil Procedure section 170.6 was denied in March 2011.
All statutory references are to the Code of Civil Procedure unless otherwise noted.

On June 2, father filed a request to appear by telephone at the June 6 hearing. His petition explains that he lives more that 30 miles from the courthouse, his car battery is weak and he has a fee waiver on file with the court. The trial court denied the motion, finding that there was no good cause and his request was untimely.

At the hearing on Monday, June 6, the court confirmed that it had received a phone message from father on Sunday in which father said he would not be appearing at the hearing because he was having car trouble. The court refused to continue the hearing, explaining, "I'm going to make a finding that Mr. Todd's failure to appear today is without good cause . . . . Furthermore, his complaint that his car wasn't working is not good cause here because he lives in Davis. This courthouse is in Fairfield. Davis is about a 20-minute train trip, maybe 30 from Davis. You can walk from the train station in Fairfield to this courthouse, and you can probably get to that train station in Davis using any form of public transportation. I've used that train myself. It is very efficient and easy to use, so he could have gotten here without a vehicle quite easily." The court added that it had not received a proper request to continue the hearing. The court also ordered father's petition for disqualification be stricken. The court found that it was untimely insofar as it was filed within 10 days of the hearing and that it failed to "state upon its face any legal ground for disqualification."

After hearing testimony from three witnesses, including the 17-year-old son, the court found that it was not in the child's best interest to modify the existing custody order. The court ordered that physical and legal custody remain with the mother and that visitation for the father would be at the discretion of the mother, with the agreement of the minor. Father filed a timely notice of appeal.

Discussion

1. The trial court did not err in striking father's disqualification petition.

The trial court struck father's disqualification petition under section 170.4, subdivision (b), which provides that "if a statement of disqualification is untimely filed . . . , the trial judge against whom it was filed may order it stricken." Defendant argues that the court erred in striking the petition for disqualification because his petition was "filed in a timely fashion under [section 170.3, subdivision (b)(4)]."

Section 170.3, subdivision (b) provides in relevant part: "(1) A judge who determines himself or herself to be disqualified after disclosing the basis for his or her disqualification on the record may ask the parties and their attorneys whether they wish to waive the disqualification . . . . [¶] . . . [¶] (4) If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge." This subdivision is not applicable to father's motion to disqualify nor does it govern the timeliness of any such motion.

The timeliness of father's motion to disqualify is governed by Section 170.4, subdivision (c). To be timely, a statement of disqualification must be filed more that 10 days prior to a hearing if the proceeding "has been assigned to a single judge for comprehensive disposition, and . . . the proceeding has been set for trial or hearing 30 or more days in advance before a judge whose name was known at the time." (§ 170.4, subd. (c)(2).) The present action had been assigned to the trial judge for all purposes and notice of the June 6 hearing was provided in the March 2011 order. Accordingly, father's statement of disqualification, based largely on events occurring many months before but filed less than five days prior to the hearing, was properly stricken as untimely.

2. The trial court did not violate father's rights by conducting the hearing in his absence.

Father contends that his "right to be heard, right to fair trial and right to due process were violated in the 06/06/2011 trial when the Solano County court denied [his] request for a telephonic appearance and held the trial without [him] present." We find no error in this regard.

The trial court denied father's request to appear by telephone on the grounds that there was no good cause to permit a telephonic appearance and his request was untimely. Appearances by telephone in family law cases are generally governed by local court rules. (See Advisory Com. com. to Cal. Rules of Court, rule 3.670 [rule of court governing telephonic appearances in general civil cases "does not apply to family law matters, except in certain respects as provided in rule 5.324 relating to telephone appearances in proceedings for child or family support under Title IV-D of the Social Security Act"].) Solano County Superior Court Local Rules, rule 5.9(f)(16), which governs appearances by telephone in the family law division, provides, "At his or her discretion, the assigned judicial officer may make procedures applicable to his or her department for all matters in which telephonic procedures are used." The record in this case does not include any evidence of procedures adopted by the family court for telephonic appearances. In any event, there is no doubt that the court acted within its discretion in denying father's request considering the contested nature of the hearing and the limited notice provided by father's request.

California Rules of Court, rule 5.324(a) recognizes that "[t]he opportunity to appear by telephone fosters parental participation." The rule vests the trial court with discretion to "permit a telephone appearance in any hearing or conference related to an action for child support when the local child support agency is providing services under title IV-D of the Social Security Act," but expressly adds that counsel or a party in pro per must personally appear at "(1) Contested trials, contempt hearings, orders of examination, and any matters in which the party or witness has been subpoenaed to appear in person; and [¶] (2) Any hearing or conference for which the court, in its discretion on a case-by-case basis, decides that a personal appearance would materially assist in a determination of the proceeding or in resolution of the case." (Cal. Rules of Court, rule 5.324(c), (d).) Although not directly applicable to the present proceedings, the rule is relevant to our evaluation of the trial court's exercise of discretion in this case.
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Similarly, the court did not abuse its discretion in refusing to continue the hearing based on father's phone message left the day before the hearing stating that he would not be attending the hearing because he was having car trouble. First, father did not request a continuance. More importantly, the explanation offered by the court clearly sets forth why father's car troubles were not good cause to continue the hearing.

Finally, Solano County Superior Court Local Rules, rule 5.9 (f)(15) gives parties ample notice that if a party fails to appear, the matter on calendar "may be ordered off calendar, continued, or heard as an uncontested matter and decided on the merits, at the court's discretion." Given that mother and son had traveled from Red Bluff and two additional witnesses had appeared at the hearing, the trial court did not abuse its discretion by conducting the hearing in father's absence.

3. The court did not err with respect to entry of the custody and visitation order.

Father argues that the court "violated [his] presumption of innocence, right to fair trial, right to due process and right to a trial by jury for serious crime by ordering all legal and physical custody of the child to the other party and no visitation time for [him] based on contradicting child abuse hearsay. There were no founded Child Protective Services reports, no medical records that indicated abuse or neglect and no prior convictions of child abuse or neglect." Initially we note that because custody proceedings in family court are not criminal proceedings, father's presumption of innocence of criminal charges and his right to a jury trial are not implicated in this proceeding. (See In re Marriage of Kim (1989) 208 Cal.App.3d 364, 373 ["a party is not entitled to a jury trial in a family law case as a matter of right"].) Likewise, the change in physical custody occurred in September 2010 and the order awarding mother sole legal custody and suspending father's visitation was entered in March 2011. Father has not challenged those rulings in this appeal. Therefore, any challenge to the sufficiency of the evidence in support of those rulings is beyond the scope of the present appeal. With respect to the June 2011 order properly on appeal before this court, our review is limited to whether the court abused its discretion by refusing to modify the existing custody and visitation order.

The son's testimony establishes that he wanted to remain with his mother. He had a summer job and was planning to return to his current school to complete his senior year of high school. He did not want any contact with his father. Although the record does not contain transcripts of the prior hearings, we have no reason to doubt the trial court's observation that the minor's emotional state had improved in the months since custody was changed and visitation suspended. Based on this evidence, the trial court did not abuse its discretion in finding that the best interests of the child would be served by continuing the existing custody and visitation order.

Disposition

The custody and visitation order is affirmed. Respondent is to recover her costs on appeal.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Jenkins, J.


Summaries of

Todd v. Archer

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 19, 2012
A133211 (Cal. Ct. App. Jan. 19, 2012)
Case details for

Todd v. Archer

Case Details

Full title:DEREK A. TODD, Plaintiff and Appellant, v. CRYSTAL R. ARCHER, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Jan 19, 2012

Citations

A133211 (Cal. Ct. App. Jan. 19, 2012)

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