Daniel R. v. Elizabeth N. CA2/5 ( 2022 )

Filed 2/18/22 Daniel R. v. Elizabeth N. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DANIEL R., B309235
Petitioner and Appellant, (Los Angeles County Super.
Ct. No. 20STPT01442)
v.
ELIZABETH N.,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Alison MacKenzie, Judge. Affirmed.
Jeff Dominic Price, under appointment by the Court of
Appeal for Appellant.
No appearance by Respondent.
____________________________
The trial court issued orders granting Elizabeth N.
(mother) a five-year domestic violence restraining order against
Daniel R. (father), sole custody of their three children, and child
support in the amount of $3,763 per month.1 The court limited
father’s time with the children to two-hour monitored visits every
two weeks. Father appeals from the trial court’s custody order,
contending reversal is required due to procedural errors.2 We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and mother have three children together. The
children were 17, 6, and 5 years old at the time father and
mother filed their respective petitions initiating the underlying
proceedings.
1. Father Files a Petition to Determine Parentage
On June 22, 2020, father filed a petition to determine his
parental relationship with the children.3 As part of his petition,
1 Out of respect for their privacy interests, we do not name
the children, and we identify the parents by their first names and
last initial only. (Cal. Rules of Court, rule 8.90(b)(1).)
2 Although father observes that a domestic violence
restraining order is appealable, he does not argue that order was
improperly issued. Nor does he argue the court erred in limiting
his visitation or in calculating or awarding child support.
3 Father and mother are not married. Father filed pre-
printed Judicial Council forms pursuant to the Uniform
Parentage Act (Fam. Code, § 7600 et seq.), which “ ‘provides the
framework by which California courts make paternity
determinations. (§ 7610, subd. (b).)’ [Citation.]” (In re L.L.
(2017) 13 Cal.App.5th 1302, 1309–1310.) In her written filings
2
father sought visitation with the children every weekend from
Friday after school to Sunday evening during the school year and
alternate weeks during summer break. He also sought joint legal
custody. He asserted mother had prevented him from seeing the
children since the parents ended their 18-year relationship on
March 15, 2020.
2. Mother Files a Petition for a Domestic Violence
Restraining Order, Custody, Visitation, and Child
Support
One week after father’s petition, mother filed a request for a
domestic violence restraining order, protecting her and the
children from father’s harassment and abuse. Mother also
sought child support and custody orders. She submitted a
declaration describing domestic violence that began at the end of
2012 and continued into 2020. During this time, father either hit
or struck her with an object over 100 times. He also kicked her
and gave her a bloody nose. The children were present during
some of these incidents.
Mother described the most recent incident, which occurred
on February 29, 2020, at her parents’ home. Her parents were
away for the weekend. Father and mother argued, and father hit
the left side of mother’s face with his open hand. He pulled her
up by her hair and pushed her head into the cushions of the
couch so that she could not breathe. She suffered vision and
hearing issues as a result of the beating.
and oral testimony, mother has consistently identified father as
the children’s father, and that issue is not before us.
All further undesignated statutory references are to the
Family Code.
3
In another incident occurring in 2015 or 2016, father
pushed mother into a dresser in their bedroom, causing her to cut
her forehead. The cut required five to seven stitches. In January
2019, while the family was in their car, father hit mother in the
mouth, causing it to bleed and swell. Mother’s declaration
included photographs of her injuries. She also submitted text
messages she sent to father regarding her injuries and begging
him to stop the abuse. He did not regularly respond to mother’s
entreaties but occasionally apologized for his actions.
On the day mother filed her request, the court issued a
temporary protective order protecting mother and her children.
Mother’s domestic violence petition was later deemed related to
father’s parentage case, and the matters were assigned to the
same department for hearing.
Father did not directly deny the specific violent incidents
mother described. In his written response, father asserted it was
mother who initiated the domestic violence and he was unable to
prevent the resulting altercations. He attempted to leave the
house on February 29, 2020, the date of their last incident, but
mother blocked the door. She assaulted him multiple times
before he defended himself, physically moved her, and left.
Father explained mother has a history of alcohol abuse and
committed acts of physical and verbal abuse against him. Father
stated, “I defend myself and made the mistake of harming her in
self-defense to calm the conflict. Our relationship is toxic and I
decided to move out for the safety of our children and myself.”
3. The Hearing on the Domestic Violence Restraining
Order
On August 17, and September 14, 2020, the court held a
contested hearing on mother’s restraining order. Mother and
4
father testified as to the incidents described in their declarations.
The photographs and text messages were admitted into evidence.
Mother explained she failed to report the prior domestic
violence incidents because she was scared and also wanted the
children to have a family. She explained she decided to file for a
restraining order because she did not want the children to think
domestic abuse was “okay.”
Mother also testified she included the children in the
request for restraining order because father spanked the children
or flicked their ears. He once left a mark when he squeezed the
six-year old’s shoulder. Mother stated the children have observed
father hit mother at least 30 to 40 times. They pointed to bruises
on mother’s body and said, “Daddy did that to you.”
Father testified mother often grabbed his shirt, scratched
him on the arm and the chest, and he believed she would harm
him. He agreed to a restraining order protecting mother but
argued there was no basis to include the children because he had
not hurt them.4
At the end of the hearing on September 14, 2020, the trial
court issued a five-year restraining order, finding mother had
met her burden to demonstrate father engaged in an act of abuse
under sections 6203 and 6320. The trial court found mother to be
“entirely credible” and her testimony was supported by the text
messages, photographs, and scars the court observed. The court
found father “was entirely not credible,” lacked insight into the
abuse, and continued to blame mother for his violent actions.
The court determined the children were protected parties
4 Father has apparently abandoned this argument on appeal.
5
because, while they were not physically hit, they were present
and lived in a house “infused” with abuse.
The trial court continued the hearing to September 25,
2020, for the purpose of considering custody, visitation, and child
support issues. The date selected was the date originally set for
hearing on father’s parentage petition. At the end of the hearing,
the trial court granted mother sole legal and physical custody “for
now” with the caveat that “that may change after the hearing on
the 25th, but [the court] want[ed] to get you something in place
for right now. . . .” At the prompting of mother’s counsel, the
court cited to section 3044, found it applied to the case, and that
“at this point” father had not rebutted the presumption that it
was not in the children’s best interest for father to have joint or
sole custody.5 The court ordered two hours of monitored
visitation for father once every other week and ordered that he
participate in a batterer intervention program.
The parties were scheduled to attend mediation on custody
and other issues on September 18, 2020, but the record is silent
on whether any mediation took place.6
4. The Custody, Visitation, and Child Support Hearing
On September 25, 2020, at the scheduled custody,
visitation, and child support hearing, father’s attorney informed
5 Section 3044, subdivision (a) creates “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 . . . .”
6 In his opening brief, father alternately indicated the
mediation occurred but was “meaningless” and that it did not
occur. For our purposes, it is immaterial whether the parties
participated in the scheduled mediation.
6
the court that father no longer wished to retain him. Father
confirmed those were his wishes, and the court relieved counsel.
Father then requested a continuance to retain new counsel. He
stated he would be “signing the paperwork” that day. The court
denied the request because father had failed to demonstrate good
cause for the continuance. The court advised father he could in
the future seek modification of the court’s orders after he
retained new counsel.
At the hearing, the parties first discussed father’s
visitation, which the court ordered to remain monitored for two
hours every other week. Father did not request the court modify
its previous order granting mother sole physical and legal
custody and that order remained in place.
The parties then turned to child support issues. Father
submitted an Income and Expense Statement indicating he was
unemployed. On cross-examination, he admitted to running
several restaurants but claimed he received no income from these
operations, which had been affected by the pandemic. He
acknowledged he had received substantial profits from his
businesses in 2019. He also admitted he received $2,600 a month
to take care of his parents.
The trial court found father was not credible. Although he
claimed he was unemployed, he admitted he continued to operate
several businesses, including opening a new downtown
restaurant in 2020. Using the information father provided from
2019 and 2020, the trial court calculated father’s monthly income
as $13,925. The court ordered monthly child support in the
amount of $3,763. On appeal, father does not contend the trial
court erred when it calculated his monthly income or the amount
of child support ordered.
7
Father timely appealed from the court’s custody order
issued on September 25, 2020.
DISCUSSION7
We begin our analysis by stating what father does not
challenge on appeal: he does not challenge the court’s visitation
order, the domestic violence restraining order, or the child
support order. Nor is there any issue before us concerning
father’s original parentage petition. His appeal is limited to the
custody order.
Father argues that if he had been fully advised of the
presumption created by section 3044 and its impact on
subsequent custody orders, he would have tried harder or hired a
better lawyer to dispute the finding that he perpetrated domestic
violence against mother. Father thus faults the trial court for
failing to provide him notice and a copy of section 3044 before the
domestic violence finding, failing to consider mother’s alcohol
abuse when it granted mother sole custody, and failing to grant
him a continuance to hire new counsel. We conclude none of
these claimed errors require reversal.
1. Procedural Errors Related to Section 3044
Father asserts the trial court failed to determine prior to
issuing the custody order whether section 3044 applied. In a
related argument, father complains that the court did not provide
a copy of section 3044 to the parties as required under
subdivision (h) of that section.
7 Although mother requested, and this court granted, several
extensions of time, she did not file a respondent’s brief. We
therefore decide this case based on the record, father’s opening
brief and father’s oral argument.
8
A. Section 3044
A custody award may only be made if it is in “the best
interest of the child.” (§ 3040, subd. (d); In re Marriage of Brown
& Yana (2006) 37 Cal.4th 947, 955.) “When determining the best
interest of the child, relevant factors include the health, safety
and welfare of the child, any history of abuse by one parent
against the child or the other parent, and the nature and amount
of contact with the parents. (§ 3011.)” (Montenegro v. Diaz
(2001) 26 Cal.4th 249, 255.)
The Legislature has declared that “the perpetration of child
abuse or domestic violence in a household where a child resides is
detrimental to the health, safety, and welfare of the child.”
(§ 3020, subd. (a).) Thus, “section 3044 establishes a rebuttable
presumption that it is not in the child’s best interest to award
joint or sole legal or physical custody to a parent who a court has
found to have committed domestic violence against the other
parent within the previous five years. (§ 3044, subds. (a), (d)(2).)
The presumption can only be rebutted if the court finds both that
the perpetrator of domestic violence has demonstrated it is in the
child’s best interest to grant the perpetrator custody and the
enumerated factors on balance support the legislative findings in
section 3020. (§ 3044, subd. (b).) When a party in a custody
proceeding has alleged the other party has perpetrated domestic
violence, the court is required to: (1) inform the parties of the
existence of section 3044 and give them a copy of the section prior
to custody mediation (§ 3044, subd. (h)); and (2) in an evidentiary
hearing or trial in which custody orders are sought, determine
whether section 3044 applies before issuing a custody order
(§ 3044, subd. (g)).” (Noble v. Superior Court (2021)
71 Cal.App.5th 567, 571.)
9
B. Proceedings Below
The parties were ordered to attend mediation on
September 18, 2020, “to discuss any disagreements about the
custody and/or visitation of the child(ren).” Four days prior to the
scheduled mediation, at the time the court found father had
perpetrated domestic violence against mother and granted her a
five-year restraining order, the court advised father: “then with
respect to the DV-140, the custody and visitation, there’s a
presumption when I found that you committed at least one act of
abuse which is what I have found that it’s not in the [children’s]
best interest for you to have sole, or joint custody of them given
what I’ve found.” 8 Mother’s counsel then suggested, “So the court
is making its finding under the Family Code that respondent
inflicted domestic violence for purposes of child custody.” The
court responded, “3044, yes, yes, yes. I do find that the Family
Code 3044 applies in this case. At this point I don’t find that
[father] has rebutted the presumption that it’s not in the
[children’s] best interest for him to have sole or joint custody.”
C. The Trial Court Timely Found Section 3044
Applied
Father first asserts the trial court failed to determine
whether section 3044 applied prior to issuing its custody order, in
violation of section 3044, subdivision (g). The record shows
otherwise. At the hearing on September 14, 2020, the trial court
cited to section 3044, found it applied, and advised father of the
8 Courts typically use Judicial Council form DV-140 to issue
custody and visitation orders. Here, the court issued DV-140
after the September 14, 2020 hearing to grant legal and physical
custody over all three children to mother. The court granted
father supervised visitation.
10
presumption. Father thus had notice of the presumption 11 days
before the September 25, 2020 hearing on custody, visitation, and
child support. We conclude the trial court complied with section
3044.
Father appears to confuse the court’s temporary order
granting sole custody to mother “for now” with its final order
issued after the hearing on September 25, 2020. Father has
presented no authority for the proposition that section 3044’s
notice requirement applies in this setting. On the contrary,
section 3044 contemplates a temporary custody order may issue
prior to a final determination of the applicability of section 3044:
If the court finds that “a continuance is necessary to determine
whether this section applies, . . . the court may issue a temporary
custody order for a reasonable period of time, provided the order
complies with Sections 3011 and 3020.”9 (§ 3044, subd. (g).)
D. Father Has Forfeited His Claim That the Trial
Court Failed to Provide Father With a Copy of
the Statute
Father next asserts “the record reflects that the trial court
never gave [father] a copy of [section] 3044.” We agree the
statute requires delivery of a copy of the statute before the
mediation date. Father, who was represented by counsel at the
September 14, 2020 hearing, did not object when the court
allegedly failed to provide a copy of the statute, before or after the
court specifically cited to section 3044. Father has therefore
forfeited this claim. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
9 We discuss section 3011 separately. Father makes no
argument pertaining to section 3020.
11
Even if father did not forfeit the argument, any error was
undoubtedly harmless. Father must show it is reasonably
probable he would have achieved a more favorable result in the
absence of the error. (Code Civ. Proc., § 475; In re Marriage of
Goddard (2004) 33 Cal.4th 49, 56 [“ ‘any error as to any matter of
procedure’ is subject to harmless error analysis and must have
resulted in a ‘miscarriage of justice’ in order for the judgment to
be set aside”].)
Father contends he was prejudiced by the court’s failure to
provide him with a copy of the statute because he was not given
notice of the presumption, which led to his loss of custody and
resulted in limited, monitored visitation with the children. We
fail to see how the failure to receive a copy of the statute, if that
were the case, led to his loss of custody. The trial court advised
father of the presumption and cited the statute in open court at a
hearing where father was represented by counsel. The failure to
have a piece of paper did not contribute to loss of custody.10
10 Father contends in passing that the trial court violated
(former) rule 5.19(a)(3) of the Los Angeles Superior Court Local
Rules, which requires the parties seeking child custody or
visitation orders to participate in court-connected mediation prior
to appearing at a hearing or trial regarding the custody or
visitation of their children. The court complied with this rule by
setting the mediation for September 18, 2020, before the
September 25, 2020 hearing on custody, visitation, and support.
The record does not show whether a mediation took place, and
father does not show prejudice from any non-compliance with the
rule.
12
2. Father Forfeited His Section 3011 Argument
Father next contends the trial court failed to take into
account mother’s alcoholism as required by section 3011 when it
made its custody orders.11 Father forfeited this challenge to the
court’s custody order because he failed to raise it below. (Doers v.
Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1
(Doers).) At the September 25, 2020, final custody and support
hearing, father did not seek sole or joint custody of the children,
nor did he argue that the court should consider mother’s alcohol
abuse as a factor in the ruling the court made that day.12
Instead, the parties focused on visitation and amount of support.
11 A court must consider a parent’s alleged “habitual or
continual abuse of alcohol” in making a determination of the best
interests of the child in a custody proceeding. (§ 3011, subd.
(a)(4).) The court must state its reasons when it makes an order
for sole or joint custody in favor of the parent against whom the
allegation has been made. (§ 3011, subd. (a)(5).)
12 Father contends he attempted to proffer evidence of
mother’s drinking at the domestic violence hearing to show she
initiated certain incidents because she had been drinking. The
trial court properly found that evidence was irrelevant to
whether father perpetrated domestic violence. Father’s counsel
did not argue the evidence was relevant to custody at the time of
the proffer.
13
3. The Trial Court Did Not Abuse Its Discretion in
Denying Father a Continuance
Lastly, father contends the court erred when it denied his
request for a continuance at the September 25, 2020 custody and
child support hearing.13
We review a trial court’s order denying a continuance for
an abuse of discretion. (Reales Investment, LLC v. Johnson
(2020) 55 Cal.App.5th 463, 468.) To warrant a continuance, the
moving party must establish good cause. (Cal. Rules of Court,
rule 3.1332(c).) Substitution of trial counsel may constitute good
cause for a continuance, “but only where there is an affirmative
showing that the substitution is required in the interests of
justice[.]” (Id., rule 3.1332(c)(4); Lazarus v. Titmus, supra,
64 Cal.App.4th at p. 1250.) Courts have long held, “ ‘Parties
litigant have no absolute right to insist upon a change of counsel
at the last moment before the time set for the commencement of
the trial, where such change of counsel requires a continuance in
order that the case may be properly prepared for trial.’ ” (County
of San Bernardino v. Doria Mining & Engineering Corp. (1977)
72 Cal.App.3d 776, 783–784; Agnew v. Parks (1963)
219 Cal.App.2d 696, 701–702.)
Here, father decided to fire his attorney the day before the
hearing, which was scheduled at the time father filed his
parentage petition, three months before. His reason was that he
believed his attorney was not prepared. He did not elaborate on
13 As part of his argument, father claims he did not receive
statutory notice that mother was seeking child support. Father
failed to raise the issue of adequate notice at the time of the
hearing, again forfeiting the issue. (Doers, supra, 23 Cal.3d at
p. 185, fn. 1.)
14
counsel’s claimed lack of preparation.14 Father knew the hearing
would cover custody, visitation, and child support issues. Having
voluntarily relieved his attorney at this late date, father was not
entitled to a continuance based solely on his status as a self-
represented litigant. (Agnew v. Parks, supra, 219 Cal.2d at
p. 702.) The trial court did not abuse its discretion when it
denied the request for a continuance.
Father also asserts that, in ruling on the requested
continuance, the trial court failed to consider any of the factors
listed in California Rules of Court, rule 3.1332.15 Rule 3.1332
does not require express findings and father has not cited any
appellate authority for that proposition. We instead apply
fundamental principles of appellate review to affirm the denial
order: “(1) a judgment is presumed correct; (2) all intendments
and presumptions are indulged in favor of correctness; and (3) the
appellant bears the burden of providing an adequate record
14 Father merely stated, “There is inadequate representation
on my side, and as I was getting closer and closer I see that this
attorney that I hired was not going to be prepared, as he was last
time, and I made the final decision yesterday as we were getting
close that this guy was not going to be prepared at all, and he
didn’t have his game plan.”
15 California Rules of Court rule 3.332(d) requires the court to
“consider all the facts and circumstances that are relevant to the
determination” including whether there was any previous
continuance, the length of the continuance requested, the
prejudice that parties or witnesses will suffer as a result of the
continuance and “[a]ny other fact or circumstance relevant to the
fair determination of the motion or application.”
15
affirmatively proving error.” (Fladeboe v. American Isuzu Motors
Inc. (2007) 150 Cal.App.4th 42, 58.)
DISPOSITION
The order is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR J.
16