Marriage of Wang and Cunningham CA1/2 ( 2014 )

Filed 1/14/14 Marriage of Wang and Cunningham CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of MARY WANG and
ARCHIBALD CUNNINGHAM.
MARY WANG,
Respondent, A135787
v.
(San Francisco County
ARCHIBALD CUNNINGHAM, Super. Ct. No. FDI03-753770)
Appellant.
Archibald Cunningham appeals from an order entered May 25, 2012, by the San
Francisco Superior Court, denying his order to show cause (sometimes OSC) requests for
modification of existing child custody and visitation orders, and for other relief arising
from the dissolution of his marriage to Mary Wang and related child custody
proceedings.1 The other relief sought by Cunningham and denied by the court included:
appointing a guardian and counsel for the minor child; a full psychological evaluation of
1
Cunningham has been declared a vexatious litigant and subject to a prefiling
order in this court. This appeal and a related writ petition were filed on behalf of
Cunningham by attorney Patrick Missud. Missud is currently the subject of a State Bar
recommendation for disbarment and has been ordered transferred to involuntary inactive
status pursuant to Business and Professions Code section 6007, subdivision (c)(4). (In re
Patrick Alexandre Missud, case No. 12-O-10026-LMA, filed July 1, 2013.) Under
Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1168, Cunningham may continue to prosecute
this appeal and writ in propria persona, despite having been declared a vexatious litigant
who is no longer represented by counsel.
1
Wang; a “two-tier evaluation” of the child; lifting of orders declaring him a vexatious
litigant; and vacating an order against him under the Domestic Violence Prevention Act
(Fam. Code, § 6200 et seq.) (DVPA).2
Cunningham raises numerous claims of error. Chief among them is his claim that
the trial court erred in denying him the right to call witnesses and to present oral
testimony in connection with his OSC requests. (§ 217; rules 5.113, 5.250 and former
rule 5.119.) Consistent with his past practice, Cunningham seeks to use this appeal as a
vehicle to attack previous trial court orders, long since final. We refuse to follow him
down this rabbit hole and shall address only those claims properly cognizable on this
appeal. That said, resolution of this appeal requires some description of a few of the
many previous proceedings and orders in this case.
BACKGROUND
1. Order Awarding Sole Custody to Wang
In May 2007, Wang was awarded sole legal and physical custody of the parties’
child. Cunningham was granted visitation. We affirmed that order in an unpublished
opinion on August 20, 2008. (Wang v. Cunningham (Aug. 20, 2008, A118629) at pp.*5,
20, review den. Nov. 12, 2008.) 3 In affirming, we referenced findings made by the trial
court, including its finding that “ ‘[t]he current joint physical and joint legal custody
arrangement [has] been detrimental to the child in that the frequent transitions and
instability has caused trauma to the child. [Citation.]’ The court specifically found:
‘The failure of this shared custodial arrangement is due to: a) Father’s inability to co-
parent with Mother; b) Mother has historically, and continues to this day, to make all
major decisions for the child, because Father unreasonably withholds his approval;
c) Father does not support [the daughter]’s academic progress; d) Father is not able to
2
Unless otherwise indicated, all statutory references are to the Family Code and
all references to rules are to the California Rules of Court.
3
Additional factual and procedural background may be found in our unpublished
opinions Wang v. Cunningham, supra, (Aug. 20, 2008, A118629) and Wang v.
Cunningham (March 30, 2011, A124717) [nonpub. opn.], review den. July 13, 2011.)
2
focus on the child’s needs and is instead focused upon conflict with the Mother; e) Father
is connected with Mother through these legal proceedings; f) Father is a poor role model
for his daughter; and g) the child continues to be traumatized because of this conflict.’ ”
(Id. at p. *17.)
2. Judgment On Reserved Issues, Including Orders Denying Motion to Modify
Custody, Denying Further Visitation, Declaring Cunningham Vexatious, and Granting
a DVPA Restraining Order
On April 12, 2010, following a hearing held February 22 through 25, 2010 at
which oral testimony was presented, the court issued its “Final Decision On the Issues of
[Wang’s] Request for a Restraining Order and to Declare [Cunningham] a Vexatious
Litigant and an Award of Attorneys’ Fees and [Cunningham’s] Request for a Change of
Custody.” Therein, the court adopted its tentative statement of decision of March 15,
2010, which, among other things, denied Cunningham’s request to modify the existing
custody and visitation plan, denied him visitation, granted Wang’s request for a
restraining order under the DVPA (§ 6200 et. seq.) and section 2047, restrained
Cunningham for five years from harassing Wang, including, but not limited to annoying
telephone calls, emails and letters, and declared him to be a vexatious litigant under Code
of Civil Procedure, section 391, subdivision (b) (1), (2) and (3).
On April 30, 2010, the superior court entered its judgment on reserved issues. 4
With respect to child custody and visitation, the judgment stated: “[Cunningham’s]
request . . . for a modification of the custody and visitation plan is hereby denied. Based
on the statements made by [Cunningham] in open court, and on the evidence presented in
this matter, [Cunningham] shall have no further visitation with the minor child. The
order specified that, “Should [Cunningham] seek the right to visit his daughter, he must
demonstrate a willingness to comply with the Court’s orders contained within the DV-
130 [restraining order after hearing] and that he is capable of peaceful communications
with [Wang] limited solely to the immediate welfare of his daughter.”
4
The court initially entered the order denying visitation on February 26, 2010.
3
Cunningham later sought to challenge the April 30, 2010 judgment by
bootstrapping a challenge to his appeal of a January 30, 2012 order. We refused to
entertain the appeal on the ground that the April 30, 2010 order “was final long ago.”
(Wang v. Cunningham (January 31, 2013, A134757 [nonpub. opn.], review den. Apr. 10,
2013.)
3. June 17, 2011 Denial of Ex-parte Application Seeking Reinstatement of 50-50
Custody
On June 17, 2011, the trial court issued an order denying Cunningham’s ex parte
application seeking reinstatement of the original 50-50 custody order, appointment of a
custody evaluator, and trial of the custody issue. The order stated his request was denied
by the court without a hearing and that “[t]he reasons for doing [so] are as follows:
“1. The relief [Cunningham] seeks has been addressed in the past, most recently in the
Judgment entered on April 30, 201[0] after trial.[5] [Cunningham’s] pleadings present
neither a factual or legal basis for the relief requested.
“2. The April 30, 201[0] judgment is a final Judgment on the issues addressed. One of
the issues was custody and visitation. [Cunningham’s] pleadings fail to present any
evidence even suggesting that there has been a change in circumstance, a requirement to
warrant consideration of the relief requested. [(Montenegro v. Diaz (2001) 26 C[al].4th
249, 256; [In re] Marriage of Burgess (1996) 13 C[al].4th 25, 37.]) Moreover, the above
Judgment requires that if [Cunningham] seeks visitation with his daughter that [he] ‘must
demonstrate a willingness to comply with the Court’s orders contained within the DV-
130 and that he is capable of peaceful communications with [Wang] limited solely to the
immediate welfare of his daughter.’ As set forth in [Wang’s] opposition, [Cunningham]
continues to harass [Wang] by making contact with her family and making threats to her
attorney.
“3. The record continues to support the finding that it is not in the minor’s best interest to
have contact with her father.
5
Although the court stated the date of this judgment as “April 30, 2011,” the court
clearly was referring to the judgment entered April 30, 2010.
4
“a. As set forth in detail in the Court’s Tentative Statement of Decision filed on
March 15, 2010 (which became a Final Decision) at pages 4 through 10, the record
demonstrates that [Cunningham] possesses an extreme level of hostility to
[Wang]. At page 10 of this decision, the Court recites [Cunningham’s] reference
to an event reported in SFGATE.COM where a parent kills a child and then
commits suicide. In [Cunningham’s] words: ‘In light of my experience, I’m
surprised most custody disputes don’t end up in murder-suicide. . . . The only
difference I see between you and the Mount Diablo Mom is a lot of money and the
fact that she had more resolve and honesty in her megalomania and
selfishness . . . .
“b. [Cunningham] continues to reference this event in a November 13, 2010 letter
to [Wang’s] counsel: ‘Of course that smear works and murder-suicides are
rampant in custody disputes. . . . did you read about Judith Williams and her 16
year old son, the scene of the Mr. Diablo crime? . . . yes, I used to think those
people are crazy too . . . now I know better . . . now I read about those tragedies
and recognize that behind the scenes are sleaze bag lawyers and outrageously
incompetent judges pushing them over the brink.’
“c. On February 11, 2010, [Cunningham] stated on the record that he had no
intention of following the existing custody and visitation order that the Court had
reaffirmed after giving [Cunningham] the opportunity to present evidence of
changed circumstances. After rejecting [Cunningham’s] request for relief,
[Cunningham] announced that he had no intention of following the Judgment of
February 21, 2008, affirmed by the Court of Appeal on August 20, 2008; that he
intended to move to France and have no contact with his daughter. That conduct
lead [Wang] to request that visitation be terminated; a request the Court granted
based on the facts before it.
“d. [Wang’s] opposition also contains a note that [Cunningham] sent to the
daughter along with what appeared to be sand. However, it was not sand from a
beach she used to visit with [Cunningham]; rather, the package contained the
5
ashes of the family dog when the child had not known of the dog’s demise. The
child became deeply upset at the receipt of this package and [Cunningham’s]
heartless way of telling the child of the dog’s death.
“e. [Cunningham] is a deeply troubled man, who poses a risk to mother, child and
mother’s attorney. Unless and until [Cunningham] addresses his deep seated
hatred for mother, it is not in the child’s best interest to see her father. As his
words indicate, the child is at risk of serious harm.
“4. Finally, the Court required that [Cunningham] file an updated I&E [Income and
Expense Declaration] if he wished to address the issue of custody and visitation so as to
determine whether the vexatious litigant requirement of posting a bond of $5,000 should
be imposed before consideration of this issue. [Cunningham’s] I&E reflects that he has
monthly income of $7,705 and expenses of $3,565. Plainly, [Cunningham] has the
financial wherewithal to post the bond and he has not done so.”
4. Request for OSC Regarding Modifications and Case Resolution Order #1
On April 11, 2012, through his attorney Missud, Cunningham filed a request for
an order to show cause regarding modification of visitation in which he sought to modify
custody and the order of February 26, 2010 denying him visitation (apparently also
intending to modify the judgment on reserved issues entered April 30, 2010), which he
characterized as having “[t]erminated father’s parental rights.”6 Additional relief sought
in that request included: appointment of a guardian for the minor child; a full
psychological evaluation of Wang; a “two-tier evaluation” of the child; lifting of orders
declaring him a vexatious litigant; and vacating of the DVPA restraining order. Hearing
was set for May 15, 2012.
We note that sole custody granted to one parent “does not, however, serve to
‘terminate’ the other parent’s parental rights or due process interest in parenting. He or
she has secondary visitation rights as ordered by the court [citation] and retains the right
to seek and obtain a custody modification based on a proper showing of changed
circumstances. [In re Marriage of Brown & Yana (2006) 37 Cal. 4th 947, 958.]”
(Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group, 2013)
¶ 7:301, p. 7-110.) (Hogoboom and King, Family Law.) Nor does the court’s restriction
or denial of visitation constitute a “termination” of parental rights.
6
The request for an order to show cause also contained a “Witness List as
Mandated by Family Code Section 217,” wherein Cunningham proposed to call as
witnesses Dr. Melinda Miller, the child’s therapist; Dr. William Perry, the former child
custody evaluator; Hon. Donald Sullivan, a judge involved in previous custody
proceedings and proceedings involving the DVPA and contempt actions against
Cunningham; Honorable Laurie Zelon, the chairperson of the Elkins task force7; Maria
Schopp, Wang’s attorney; Wang herself; and the child. Individual “notices” denominated
“Notice of Presentation of Oral Testimony” were also filed pursuant to section 217 and
rule 3.1306 (b), as to each proposed witness except for Justice Zelon. They again
summarized the substance of the testimony expected from each witness.
On April 18, 2012, the court filed “Case Resolution Order #1” (hereafter CRO #1)
in connection with the hearing calendared for May 15. In CRO #1, the court recognized
that the case had “been in single assignment since January 2009, and that since that time
the court [had] issued orders addressing many substantive issues, including custody and
visitation, a permanent restraining order against [Cunningham] and a finding that
[Cunningham] is a vexatious litigant.” The court found that the case met the criteria for
the superior court’s Case Resolution program, adopted by the San Francisco Superior
Court in 2011. The order stated in relevant part: “Accordingly, this case is now a part of
Case Resolution and subject to the following orders regarding setting matters for hearing.
“1. This case remains singly assigned to Judge Patrick J. Mahoney and is assigned
to Department 405 for all purposes unless otherwise ordered.
“2. For the hearing calendared by [Cunningham] for May 15, 2012, parties are
ordered to file on or before May 10, 2012 a statement addressing the issues set forth in
paragraph 3 to enable the Court and the parties to address the remaining issues in this
case in a manner consistent with the applicable law and the prior findings of the Court
7
The task force had been set up by the Judicial Council at the recommendation of
the California Supreme Court in Elkins v. Superior Court (2007) 41 Cal. 4th 1337
(Elkins), “to study and propose measures to assist trial courts in achieving efficiency and
fairness in marital dissolution proceedings and to ensure access to justice for litigants,
many of whom are self-represented.” (Id. at p. 1369, fn. 20.)
7
that are final determinations of fact and law. Until these issues are addressed, the Court
finds that it is not appropriate to take oral testimony at the May 15, 2012 [hearing] and
the parties are ordered not to subpoena any witness for that hearing. At the conclusion
of the hearing on May 15, a determination shall be made on the need for oral testimony
and if so, when that shall occur. [Italics added.]
“3. The issues to be addressed in the parties’ May 10, submission:
“a. Compliance with the Judgment of April 30, 2010 and subsequent order of
June 17, 2011 related to visitation.
“b. If [Cunningham] contends that the Judgment of April 30, 2010 is not a final
determination of the issues, he must provide legal support for that proposition.
“c. List each appeal taken or writ filed since the Findings and Order After Hearing
on February 26, 2010 and the results thereof.
“d. What facts is [Cunningham] prepared to offer to meet the two prong burden of
proof that the proposed new arrangement is in the child’s best interest and there is a
substantial change in circumstances warranting a modification. [Citations.]
“e. Whether it is in the best interest of [the child] to have counsel appointed for
her.
“f. Whether it is in the best interest of [the child] to be interviewed by a Family
Court mediator who then would issue a Tier II report on visitation with [Cunningham].
“g. Whether there should be supervised visits between [Cunningham] and [the
child].
“h. The legal basis for the request that Judge Sullivan be a witness.
“i. Whether the parent having legal custody must consent to testimony from [the
child’s] therapist.
“j. Whether it is in [the child’s] best interest to testify in open court and
alternatives thereto.
“k. Whether Dr. Perry and Dr. Miller have been contacted and are willing to
testify.
8
“l. Whether [Cunningham] has arranged to pay the expert fees for Dr. Perry and
Dr. Miller to appear and testify.
“m. The proposed testimony of Ms. Schopp [, Wang’s attorney,] relates to issues
in which the Court has made rulings that are now final. As a consequence, what is the
basis for seeking this testimony.
“4. On May 10, 2012, the parties are to file current Income and Expense
declarations and [Cunningham] is to address his ability to retain counsel and bring
forward expert witnesses while insisting that he ought not to be required to post a bond.
“5. Requests for New Hearings: All new requests for hearings, including, but not
limited to, orders to show cause, notices of motion, orders to show cause re: contempt,
and at issue memorandum, shall be directed to Department 402 and shall follow the
procedure set forth in this paragraph. Ex parte requests shall follow the procedure set
forth in Paragraph 6. Domestic Violence Prevention Act restraining order requests shall
follow the same procedure as set forth in San Francisco Local Rule 11.9.
“[¶] . . . [¶]” (Bolding omitted.)
Cunningham filed a petition for writ of mandate challenging this CRO #1. We
denied the petition on April 16, 2012.
On April 25, 2012, counsel for Wang filed a response to CRO #1, stating that
counsel had never been served with the OSC or any pleading filed by Cunningham for
that hearing, in the manner required by the court.
Missud filed a case resolution statement on behalf of Cunningham, that
erroneously characterized the February 26, 2010 custody order as having “terminated all
of [Cunningham’s] parental rights.” He maintained Cunningham had a right to call
witnesses at the May 15 hearing under Family Code section 217. In response to the
questions posed by CRO # 1, the statement reiterated Cunningham’s grievances against
previous court orders and rulings. It offered no argument that since the April 2010 order
denying visitation, Cunningham had dealt with the issues the court had found warranted
denial of visitation or that he was willing to comply with the domestic violence
restraining order. Rather, it challenged the court’s findings regarding Cunningham’s
9
“deep hatred” of Wang, complained Cunningham was denied contact with the child and
maintained that he could not “show any ‘facts’ unless he [could] call witnesses and
subpoena school documents . . . .” The statement maintained Cunningham needed to call
professional evaluators and the therapist to answer whether severing of one parent’s
contacts with the child was in that child’s best interest. It speculated that Drs. Miller and
Perry would express “shock” that Cunningham was denied visitation.
With respect to the inquiry about his compliance with the June 17, 2011 order, the
statement challenged the court’s finding with respect to Cunningham’s need to deal with
his “deep-hatred” of Wang before restoration of visitation as unconstitutionally vague.
The statement also urged the court to appoint counsel for the child so that such counsel
would protect her right to a relationship with Cunningham.
Responding to the inquiry as to the legal basis for calling Judge Sullivan,
Cunningham’s statement merely cited Evidence Code section 703.5, which was clearly
inapplicable, as Judge Sullivan was no longer presiding at the trial. Further, it completely
ignored the prohibition of Evidence Code section 703.5 on calling a judge who had
presided at a civil proceeding in any subsequent civil proceeding “as to any statement,
conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding,”
with certain exceptions not here applicable.
Cunningham acknowledged he had not contacted either Dr. Perry or Dr. Miller,
but speculated they would testify in his favor that severing the child’s relationship with
him was not in her best interest.
As to supervised visitation, Cunningham stated he would be satisfied with nothing
less than a return to 50-50 custody, arguing there had been no hearing on detriment or the
child’s best interest. He sought to have the child testify, as permitted by Family Code
section 3042, stating he “suspects that [she] will cry inconsolabl[y] when she testifies
about how she feels and whether she has missed her father and whether her mother has
tried to suppress any talk of the father and repress her feelings toward the father.” He
argued for a second two-tier evaluation of the child, acknowledging she had participated
in such an evaluation in 2008 when she was nine years old, and he accused Wang and
10
attorney Schopp of securing a fraudulent custody order that was detrimental to the child’s
wellbeing.
Cunningham’s statement also argued that the previous visitation and custody
orders were not “final” because there had never been a fully litigated hearing in the
underlying custody matter. The statement challenged our affirmance of the custody order
in 2008 (Wang v. Cunningham, supra, A118629, at p. *20), contending that our
determination was contrary to Elkins, supra, 41 Cal.4th at page 1357. Similarly, the
statement contended that the February 26, 2010 order and the April 30, 2010 judgment
denying Cunningham visitation (which the statement persisted in characterizing as
“terminating all his parental rights”) were not based on a fully litigated hearing and so
were not “final.” The statement accused Judge Mahoney of being “complicit in
Ms. Schopp[’]s deliberate violation of the law and violation of [Cunningham’s] due
process rights . . . .” The statement also challenged the June 17, 2011 order denying
Cunningham’s ex parte application for reinstatement of 50-50 custody, as being full of
“factual errors, misrepresentations, and bad faith conclusions” and accusing the court of a
“pure fabrication, a deliberate lie to justify an order made in excess of all of a family law
judge’s authority.” (Our review of the February 26, 2010 hearing transcript discloses that
Judge Mahoney accurately summarized the substance of Cunningham’s diatribe, wherein
Cunningham announced that he had no intention of following the existing custody and
visitation orders.)
5. May 15, 2012 Hearing
At the May 15, 2012 hearing, Missud represented Cunningham. The minutes for
the hearing reflect that the court confiscated Missud’s tape recorder on the ground that no
authority or permission was given to Cunningham or his counsel to allow them to record
the proceedings. The court noted that no proof of service showed that Wang’s counsel
Schopp had been served, as required by the court’s prior orders. After argument, the
court found there was no basis for Cunningham’s requests for appointment of a guardian
for the child, for a full psychological evaluation of Wang or for a two-tier evaluation of
the child, for lifting the vexatious litigant order or for vacating the DVPA order. It
11
denied these requests. The court took remaining issues under submission and allowed
further pleadings and responses, including requiring Missud to file further briefing
pursuant to Code of Civil Procedure section 128.7 on sanctions, visitation, and
Cunningham’s most recent motion to disqualify the judge.8 The parties did so.
6. Case Resolution Order #2 Findings and Order After Hearing
On May 25, 2012, the court filed its Case Resolution Order #2 (CRO #2), denying
Cunningham’s requests, including his request to present oral testimony and call
witnesses. The order provided as follows:
“Prior to the hearing, the Court direct[ed] the parties to address a series of
questions to elicit legal arguments relevant to [Cunningham’s] pending request for relief,
including determining that [Cunningham] is no longer a vexatious litigant, termination of
the restraining order against [Cunningham] and reinstatement of a 50/50 custody
arrangement. In support of this relief, [Cunningham], represented by counsel, declined to
file the previously set vexatious litigant bond on the grounds this deprived [Cunningham]
of due process and [Cunningham’s] expressed desire to call witnesses to testify regarding
8
This hearing was not reported, as noticed by the San Francisco Superior Court
website which provided: “Pursuant to Rule 2.956 (b)(1), and effective immediately, the
Superior Court of California, County of San Francisco, will post the Departments in
which the services of Official Court Reporters will not normally be available during
regular Court hours. A notice shall be posted on the outside of each affected Department
and in the Clerk’s Office, Room 103, Civic Center Courthouse.
“Pursuant to Rule 2.956(c), if the services of an Official Court Reporter are not
available for a hearing or trial in a civil case, a party may arrange for the presence of a
certified shorthand reporter to serve as an official pro tempore reporter. It will be that
party’s responsibility to pay the reporter’s fee for the attendance at the proceedings, but
the expense may be recoverable as part of the costs, provided by law.
“If a party arranges and pays for the attendance of the certified shorthand reporter,
none of the parties will be charged the reporter’s attendance fee provided for in
Government Code [section] 68086[, subdivisions] (a)(1) or (b) (1).
“It is further noticed that the stenographic notes of the certified shorthand reporter
are the official records of the Court and shall be secured by the Court in either paper
and/or electronic format in accordance with [Government Code section] 69955[,
subdivisions] (a), (b), (c) and (d).”
12
the issues presented. Having considered the parties’ submissions and the arguments of
counsel, the Court makes the following Order.
“1. [Cunningham]’s request to find that he is no longer a vexatious litigant is
denied. [Cunningham]’s pleadings continue to assert his alleged right to share 50/50
custody of his daughter and [Cunningham]’s refusal to accept the fact that this issue has
been addressed repeatedly in the trial court and affirmed on appeal. [Cunningham]
makes no effort to present evidence of changed circumstances.
“2. The Court’s Order of June 17, 2011 delineates the reasons for denying
[Cunningham] custody and visitation with his daughter. That Order was challenged by
[Cunningham] in the Court of Appeal which declined to accept [Cunningham]’s
arguments. As a consequence before there can be any change in custody or visitation,
[Cunningham] must present evidence that he has engaged in meaningful efforts to
address the rage he directs toward [Wang] and that he is willing to resume visitation with
his daughter in a supervised setting. [Cunningham]’s rage continues as reflected in the
exhibits submitted by [Wang] in [her] Statement re: Case Resolution Order # 1. It was
further illustrated by [Cunningham’s] behavior during the hearing when he engaged in
repeated and loud ‘conversations’ with his attorney disparaging [Wang]’s counsel and the
Court despite admonitions by the Court that such conduct was unacceptable. At one
point, [Cunningham] stormed out of the Court in the middle of the proceedings.
“3. For the reasons stated in paragraph 2, the Restraining Order must remain in
place.
“4. [Cunningham] presents no evidence warranting consideration of the
appointment of a Legal Guardian for the minor. The record reflects that the child is
doing well and [Wang] has done an exemplary job in parenting the child in the face of
[Cunningham’s] overriding hostility. [Cunningham]’s request for a full psychological
evaluation of mother is denied.
“5. The request to appoint counsel for the minor and/or to order a two-tier
evaluation of the child is denied. Unless and until [Cunningham] is able to demonstrate
that he is capable of managing his anger and is willing to engage in supervised visits,
13
there is no reason to involve the child. In so ruling, the Court is willing to assume that
the child desires to see her father. In fact that is the desire of the Court. However
visitation cannot resume unless and until [Cunningham] addresses his rage and is willing
to engage in supervised visits. That is the only way to ensure that the child will be safe
for the reasons delineated in the Order of June 17, 2011.
“6. [Cunningham]’s request to call witnesses is denied. The reasons stated in
[Cunningham]’s Case Resolution Statement filed April 30, 2012 are without merit.
“7. [Wang]’s request for attorneys’ fees and sanctions for once again being
required to address these issues is granted. [Wang] is awarded $2,000 in sanctions
pursuant to Family Code [section] 271. At the outset, [Wang] was required to appear at a
hearing on April 3, 2012 which was continued at [Cunningham]’s request that [his] [Code
of Civil Procedure section] 170.1 motion to disqualify be addressed. Subsequently, that
motion was struck, a ruling challenged unsuccessfully by [Cunningham] by writs to the
Court of Appeal and the California Supreme Court. Then, [Wang]’s counsel [was]
required to attend the hearing on May 15, 2012 to once again respond to [Cunningham]’s
contentions simply because [he] refuses to abide by the Court’s rulings on this subject
and because [Cunningham] was able to find counsel to file the papers on his behalf.
“8. Going forward, the Court finds that [Cunningham] remains a vexatious litigant
and that a bond must be filed in the amount of $1,500 to protect [Wang] from further
harassment and the need to respond to [Cunningham]’s repeated claims. The only
exception to the bond would be a filing by [Cunningham] that is limited to resuming
visitation, an acknowledgement that the visitation plan begins with supervised visits and
[Cunningham] explains the steps that he has taken to address his expressed anger toward
[Wang] and demonstrate that he can safely maintain visits with his daughter.
“9. At the conclusion of the hearing on May 15, 2012, the Court directed
[Cunningham]’s counsel to file a pleading addressing the issue of sanctions under [Code
of Civil Procedure section ] 128.7. [Cunningham]’s counsel has done so.
“a. California Rule[s] of Court[, rule] 1.150(d) specifies the steps that must be
taken before a party is authorized to use a personal recording device to transcribe a court
14
proceeding. [Cunningham]’s counsel did not follow this procedure and began to record
the proceedings absent the consent of the judge presiding over the hearing. Counsel
apparently contends that an email to Court’s Presiding Judge or Chief Executive Officers
of [sic] the Manager of Court Reporters is sufficient compliance. It is not.
“b. Counsel acknowledges that he advised [Cunningham] that counsel ‘knew
nothing about family law’ and agreed to represent [Cunningham] on the vexatious
litigant issue. [Citation.] Yet, the pleadings counsel puts his name to are replete with
family law issues and on their face, appear to be written by [Cunningham] himself with
counsel merely lending his name to the filing.
“c. The pleadings filed are replete with an inaccurate statement of the facts and
the law to be applied to the facts of the case. It is for this reason that the Court issued
Case Resolution Order #1 and directed the parties to address among other issues the
effect of the Court’s earlier rulings and [Cunningham]’s failure to overturn those rulings.
The pleading filed by counsel is devoid of any meaningful analysis that would support
the relief requested. As to the visitation issue, counsel fails to address the Court’s prior
findings; rather, counsel’s filings are replete with arguments made in the past and
rejected. When asked to address the testimony of witnesses, it is obvious that the experts
were not consulted, nor any thought was given to securing their testimony, let alone any
theory that would authorize the taking of testimony from a judge who made earlier
rulings in the case.
“d. [Code of Civil Procedure section ] 128.7 authorizes the imposition of
sanctions for presenting to the Court or advocating to the Court an unwarranted legal
contention and/or unsupported factual contention. Counsel has an affirmative duty to
investigate the positions taken before filing pleadings reflecting such positions. The
inquiry must be reasonable under the circumstances. [Citation.] The test is an objective
one. Here, the pleadings filed by counsel seeking disqualification, termination of the
vexatious litigant finding, termination of the restraining order, the challenge to the
present visitation order, and the asserted need for testimony fail to meet the mandate of
15
[Code of Civil Procedure section] 128.7. Moreover, counsel failed to comply with
California Rules of Court regarding the recording of proceedings.
“e. For the reasons stated, sanctions in the sum of $1,500 are assessed against
Paul Missud, counsel for [Cunningham]. The sanctions are to be paid within 30 days to
[Wang].”
On May 31, 2012, Missud on behalf of himself and Cunningham, filed a “Request
for Clarification of Case Resolution Order #2,” challenging the court’s order in numerous
respects and accusing the judge of corruption. On June 7, 2012, the court denied the
request for clarification.
This timely appeal followed.
DISCUSSION
Initially, we reiterate that the May 2007 judgment awarding sole custody of the
child to Wang and the April 30, 2010 judgment denying Cunningham visitation and
declaring him to be a vexatious litigant were final long ago, as was the order granting the
DVPA restraining order.
The only issues properly before us on this appeal relate to the May 25, 2012
CRO #2, denying Cunningham’s OSC requests, and specifically:
1. Whether the San Francisco Superior Court Case Resolution Program and the
CROs issued under that program deny due process and equal protection of the law.
Whether they contravene state statutes and case law by denying litigants the right to
present oral testimony on any orders to show cause. (See Elkins, supra, 41 Cal.4th at
pp. 1351-1352.)
2. Whether the court erred in denying Cunningham the right to present oral
testimony with respect to his OSC regarding modification of the custody and visitation
orders and his other claims for relief.
3. Whether the court erred in requiring Cunningham to demonstrate changed
circumstances in order to modify the custody order.
4. Whether the court erred in denying his other requests for relief, i.e. ,
reinstatement of visitation, appointment of a guardian or counsel for the minor child; a
16
full psychological evaluation of Wang; a “two-tier evaluation” of the child; lifting of
orders declaring him a vexatious litigant and vacating an order against him under the
DVPA.
6. Whether the court erred in refusing to allow him to tape record the May 15,
2012 hearing.
I. The right to an evidentiary hearing in family law cases
We begin with the seminal case of Elkins, supra, 41 Cal. 4th 1337. There, the
California Supreme Court held that at contested family law trials leading to judgment,
courts may not prohibit oral testimony or require parties to present their case at trial by
affidavits. (Id. at pp. 1355-1357.) The parties have a right “ ‘to present all competent,
relevant, and material evidence, bearing upon any issue properly presented for
determination.’ ” (Id. at p. 1357, italics added.) Each party has the right to testify in his
or her own behalf, to call witnesses to testify and to proffer admissible evidence. (Id. at
p. 1357.)
The Supreme Court in Elkins distinguished the “requirement that at a contested
marital dissolution trial, prior to entry of judgment, the court must hold an evidentiary
hearing on the disputed issues, at which the usual rules of evidence apply” (Elkins,
supra, 41 Cal.4th at p. 1361), from established authority holding that “once a judgment
has been entered in the custody matter, a postjudgment motion or request for an order to
show cause for a change in custody . . . requires an evidentiary hearing only if
necessary—that is, only if the moving party is able to make a prima facie showing [of
detriment] to the child or has identified ‘a material but contested factual issue that should
be resolved through the taking of oral testimony.’ ([In re Marriage of] Brown & Yana
[(2006)] 37 Cal.4th [947,] 962; see id. at p. 959.)” (Elkins. at p. 1360.) “Indeed, we
explained that a trial court had authority to deny a full evidentiary hearing in Brown &
Yana in part because the custody issue already had been fully litigated and the resulting
judgment therefore was entitled to substantial deference in the absence of a showing of a
significant change of circumstances. [Citations.]” (Id. at p. 1361.)
17
This distinction appears to have been undermined by the subsequent enactment of
Family Code section 217, subdivision (a), and rule 5.113 (formerly rule 5.119), which
effectively extend to the parties at OSC and motion hearings in family law proceedings
the rights that Elkins, supra, 41 Cal. 4th 1337 concluded must be afforded the parties at
contested family law trials leading to judgment. (See Hogoboom and King, Family Law,
supra, at ¶ ¶ 5:491.1, 7:562.3, pp. 5-193, 7-225.)
Family Code section 217 provides:
“(a) At a hearing on any order to show cause or notice of motion brought pursuant
to this code, absent a stipulation of the parties or a finding of good cause pursuant to
subdivision (b), the court shall receive any live, competent testimony that is relevant and
within the scope of the hearing and the court may ask questions of the parties.
“(b) In appropriate cases, a court may make a finding of good cause to refuse to
receive live testimony and shall state its reasons for the finding on the record or in
writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court
regarding the factors a court shall consider in making a finding of good cause.
“(c) A party seeking to present live testimony from witnesses other than the parties
shall, prior to the hearing, file and serve a witness list with a brief description of the
anticipated testimony. If the witness list is not served prior to the hearing, the court may,
on request, grant a brief continuance and may make appropriate temporary orders
pending the continued hearing.” (Italics added.)
At the time the court issued the CROs here, the factors to be considered by the
trial court in making a finding of good cause to refuse to receive live testimony under
Family Code section 217 were set forth in former rule 5.119. 9 (Former rule 5.119 was
9
Former rule 5.119, effective January 1, 2011, provided:
“(a) Purpose [¶] Under Family Code section 217, at a hearing on any order to show cause
or notice of motion brought under the Family Code, absent a stipulation of the parties or a
finding of good cause under (b), the court must receive any live, competent, and
admissible testimony that is relevant and within the scope of the hearing.
“(b) Factors [¶] A court must consider the following factors in making a finding of good
cause to refuse to receive live testimony under Family Code section 217:
18
repealed and replaced by rule 5.113, effective January 1, 2013, which is substantially
similar.)
Consequently, absent a finding of good cause by the court, Cunningham had a
right to present live, competent testimony, that was relevant and within the scope of the
hearing on his order to show cause. The right is statutorily based on Family Code section
217.
“(1) Whether a substantive matter is at issue—such as child custody, parenting
time (visitation), parentage, child support, spousal support, requests for restraining
orders, or the characterization, division, or temporary use and control of the property or
debt of the parties;
“(2) Whether material facts are in controversy;
“(3) Whether live testimony is necessary for the court to assess the credibility of
the parties or other witnesses;
“(4) The right of the parties to question anyone submitting reports or other
information to the court;
“(5) In testimony from persons other than the parties, whether there has been
compliance with Family Code section 217(c); and
“(6) Any other factor that is just and equitable.
“(c) Findings [¶] If the court makes a finding of good cause to exclude live testimony, it
must state its reasons on the record or in writing. The court is required to state only those
factors on which the finding of good cause is based.
“(d) Minor children [¶] When receiving or excluding testimony from minor children, in
addition to fulfilling the requirements of Evidence Code section 765, the court must
follow the procedures in Family Code section 3042 and California Rules of Court
governing children’s testimony.
“(e) Witness lists [¶] Witness lists required by Family Code section 217(c) must be
served along with the order to show cause, notice of motion, or responsive papers in the
manner required for the service of those documents. If no witness list has been served,
the court may require an offer of proof before allowing any nonparty witness to testify.
“(f) Continuance [¶] The court must consider whether or not a brief continuance is
necessary to allow a litigant adequate opportunity to prepare for questioning any witness
for the other parties. When a brief continuance is granted to allow time to prepare for
questioning witnesses, the court should make appropriate temporary orders.
“(g) Questioning by court [¶] Whenever the court receives live testimony from a party or
any witness it may elicit testimony by directing questions to the parties and other
witnesses.” (Bolding omitted.)
19
II. The Case Resolution Program
In issuing its CRO # 1, the family court referenced the San Francisco Superior
Court’s adoption of a Case Resolution Program in 2011, and found the case met the
criteria for the program. Cunningham argues the Case Resolution Program adopted by
the San Francisco Superior Court denies him and other litigants like him due process and
equal protection of the law, in that it places obstacles in the way of those involved in
protracted custody disputes or other “difficult” cases who seek to exercise their right to
present oral testimony and live witnesses. He further argues the program is
constitutionally vague. We disagree.
In 2010, Family Code section 2450 was amended to allow the court to order case
management without the stipulation of the parties. (See Fam. Code, §§ 2450 and 2451;
Hogoboom and King, Family Law, supra, ¶¶ 5:200-5:203, pp. 5-95 through 5-100.) “The
purpose of family centered case resolution is to benefit the parties by providing judicial
assistance and management to the parties in actions for dissolution of marriage for the
purpose of expediting the processing of the case, reducing the expense of litigation, and
focusing on early resolution by settlement. Family centered case resolution is a tool to
allow the courts to better assist families. . . .” (Fam. Code, §§ 2450, subd. (a).) “ ‘Family
centered case resolution’ had its genesis in the former statutory program for a ‘judicial
case management plan’ that could be ordered only upon the parties’ stipulation. That
program is now significantly expanded . . . .” (Hogoboom and King, Family Law, at ¶
5:200.1, p. 5-95.) Hogoboom and King observe that a family court may now order a
family case resolution plan in an appropriate dissolution case on motion of a party or sua
sponte, subject to due process limitations. (Ibid.; see Fam. Code § 2450, subd. (b).)
“The current statutory scheme for a family centered case resolution plan eliminates the
party stipulation requirement [citations]. In its place, however, the Code expressly states
that a family centered case resolution plan ‘must be in conformance with due process
requirements . . . .’ (Fam. C[ode] § 2451[, subd.] (a).)” (Hogoboom and King, Family
Law, at ¶ 5:201, p. 5-96, italics added.)
20
In his related writ petition (Cunningham v. Superior Court (A137742)),
Cunningham has requested we take judicial notice of the response of Ann Donlan,
Superior Court Communications Director, to his public records request and of the two
records attached thereto, described in the Donlan response as: “A March 2011 list of
cases included on a list titled ‘Family Case Resolution Hearings Department
Assignments’ [hereafter, Department Assignments]” and “ ‘[a] policy document titled,
‘Case Resolution Calendar Protocol and Guidelines [(hereafter, CRC Protocol)].’ ” ’10
This case, Wang v. Cunningham [Superior Court No. FDI-03-753770], is listed on the
“Dormant List” of the Department Assignments list. The reason given for its dormant
status is “On Appeal”. It is unclear whether the San Francisco Superior Court currently
utilizes the program. The response from Donlan states, in pertinent part: “Unfortunately
the list [of cases included on the Department Assignments] has not been updated beyond
its initial creation because the court employees responsible for maintaining it were laid
off in September 2011.”
In his request for judicial notice, Cunningham maintains that these records are
relevant because they show the family court uses the CRC Protocol to deny hearings that
would otherwise be required by Family Code section 217 and principles of due process.
CRC Protocol, section 2, provides: “2. Purpose: The Case Resolution calendar will
allow the judicial officer to track the litigation to ensure timely resolutions. The Court
will determine the outstanding issues and the steps needed to resolve those issues. The
Case Plan will limit multiple hearings by requiring judicial approval before a new
hearing is set. (See “Request for Hearing and Order Thereon.)” (Italics added.)
At the outset, we observe that the superior court’s implementation of family
centered case resolution, pursuant to Family Code sections 2450 and 2451, cannot be
utilized to undermine a litigant’s statutory right to an evidentiary hearing to which the
litigant is otherwise entitled. Sections 2450 and 2451 do not purport to provide such
10
We grant the request for judicial notice and deny the writ petition in
Cunningham v. Superior Court (A137742) by separate order filed with this opinion.
21
authority. Indeed, they expressly provide that “[a] court-ordered family centered case
resolution plan must be in conformance with due process requirements . . . .” (§ 2451.)
However, we reject Cunningham’s claim that the family centered case resolution
process, as it existed at the time the CROs here were issued, denied him or others due
process. To the extent the live testimony requirement of Elkins, supra, 41 Cal. 4th 1337,
was based upon due process principles—and the Supreme Court expressly refused to
determine that question, basing its determination on hearsay rule requirements (id. at
p. 1345) —the Supreme Court acknowledged that motions and OSC requests after
judgment were not subject to the requirement. (Id. at pp. 1360-1361, 1363, 1345 &
fn. 1.) The requirements with respect to hearings on motions and OSC requests were put
into place by statute and rule and are subject to the good cause exception set forth therein,
as well as to the requirement that the live testimony sought to be presented be “competent
testimony that is relevant and within the scope of the hearing.” (§ 217; see former rule
5.119; rule 5.113.)
Cunningham claims that the “purpose” statement of the San Francisco Superior
Court’s CRC Protocol has been used to deny him access to court and to undermine his
rights to present live testimony, to call witnesses and to present evidence at a hearing on
his OSC requests. Because the family court could not limit Cunningham’s statutory right
to present live testimony at a hearing on his OSC requests in a manner inconsistent with
section 217 or with due process, the key question here is whether the court in the
circumstances met the requirement of that statute.
III. Section 217 – Good Cause
Section 217 requires that in making its finding of “good cause” to refuse to receive
live testimony, the court “shall state its reasons for the finding on the record or in
writing.” (§ 217, subd. (b).) Standing alone, the court’s finding that the reasons for
calling witnesses and presenting live testimony stated in Cunningham’s April 30, 2012
response to the court’s prehearing CRO # 1 “are without merit” is insufficient to comply
with the requirement of subdivision (b) that the court “state its reasons on the record or in
writing.” However, that statement does not stand alone. To find the court’s reasons
22
inadequate in a vacuum would ignore the comprehensive statements of the court’s
reasons for requiring Cunningham to respond to the questions raised in CRO #1 before
allowing him to call the witnesses he requested and the court’s explanation of the bases
for denying his requests in CRO #2 and orders referred to therein.
Consequently, in determining whether good cause supported the trial court’s
refusal to allow Cunningham to present the live testimony he requested, we look to the
witness list proffered by Cunningham pursuant to section 217, to the two CROs issued by
the court and the orders referenced therein, to the parties’ responses to CRO #1, and to
their supplemental papers filed pursuant to the court’s request following the May 15,
2012 hearing. Considered together, these orders and pleadings constitute a more than
sufficient statement of reasons for the court’s refusal to allow Cunningham to present the
live witness testimony he sought.11
We reiterate that the family court’s obligation is to receive proffered live
testimony that is “competent, and admissible,” “relevant and within the scope of the
hearing.” (§ 217, subd. (a), italics added; former rule 5.119(a), rule 5.113.) “Clearly
then, [section] 217 and Rule 5.113 [or former rule 5.119] do not open the door for a party
to present his or her entire case or air and argue all of his or her accusations and
complaints at an OSC or motion hearing. Nor does the statute or Rule give the parties or
the court a license to ignore the rules of evidence (‘competent’ testimony means
admissible evidence—i.e., based on personal knowledge, no inadmissible hearsay, etc.).”
(Hogoboom and King, Family Law, supra, ¶ 5:492, p. 5-194.)
In its CRO #1, the court explained that in light of the numerous previous orders in
the case addressing substantive issues, the finding that Cunningham was a vexatious
litigant, and the permanent restraining order against him, it was requiring the parties to
answer a series of questions before determining the need for oral testimony. Such was
11
The court did not expressly use the phrase “good cause” in denying
Cunningham’s request to present live testimony and review would have been easier had it
done so with a concise summary of its reasons. However, to reverse and remand on this
basis would serve little purpose in this case, where good cause is abundant and was
adequately articulated by the court, albeit without expressly denominating it as such.
23
necessary to “enable the Court and the parties to address the remaining issues in this case
in a manner consistent with the applicable law and the prior findings of the Court that are
final determinations of fact and law.” In CRO #2, the court further explained that it had
issued CRO #1 because Cunningham’s “pleadings filed are replete with an inaccurate
statement of the facts and the law to be applied to the facts of the case.” The court further
found that the pleadings filed by Cunningham’s attorney were “devoid of any meaningful
analysis that would support the relief requested. As to the visitation issue, counsel fails
to address the Court’s prior findings; rather, counsel’s filings are replete with arguments
made in the past and rejected.”
We agree with the court’s characterization of Cunningham’s pleadings. The vast
majority of the evidence sought to be presented by Cunningham was outside the scope of
the hearing. Rather than seeking a modification of the orders for custody and visitation in
light of changed circumstances, indicating a willingness to comply with the court’s
visitation prerequisites, or attempting to show that he was no longer vexatious, the
evidence Cunningham sought to present was aimed at revisiting and challenging orders
already final, on the basis that they were erroneous when made. In these circumstances,
there was “good cause” for the court’s decision to require Cunningham to answer the
questions raised in CRO #1.
As to the specific witnesses Cunningham sought to call and the testimony he
sought to elicit from them, Cunningham failed to show that they could present competent,
admissible, and relevant evidence that was within the scope of the hearing.
He presented no applicable legal authority that could allow him to call Judge
Sullivan regarding the legality of the DPVA order, the judge’s previous rulings in the
case, or the judge’s opinion regarding proceedings in the case. (See Evid. Code, § 703.5,
[prohibiting such].) Similarly, Cunningham utterly failed to identify any testimony that
Judge Sullivan or Wang’s attorney Schopp (whom he stated would testify about her
previous “improper[] and illegal” behavior in relation to the visitation order, the
vexatious litigant order, and obtaining sanctions against Cunningham) could provide that
would be within the scope of the hearing.
24
Similarly, the testimony Cunningham sought to present from therapist Miller and
former custody evaluator Perry was clearly aimed at challenging the order granting sole
custody to Wang and the order denying visitation unless and until Cunningham
demonstrated he was not a risk to the child. Cunningham did not claim, and it does not
appear, that such testimony was presented in order to support modification of custody on
the ground of changed circumstances or that it would address the concerns that led to the
court’s imposition of a no visitation order. Rather, Cunningham refused to accept the
finality of the previous orders and his filings repeated his “arguments made in the past
and rejected.” In addition, the court found it was “obvious that the experts were not
consulted, nor any thought . . . given to securing their testimony . . . .”
With respect to his desire to call Wang, the notice states the testimony to be
elicited from her related to her actions preventing him from knowing about his daughter
and the alleged smearing of Cunningham’s character as part of a “legal strategy
calculated to destroy the father’s custody rights and because she does not want and is
incapable of sharing custody or visitation.” In its CRO #2, the court referenced its
previous final order of June 17, 2011, stating it “delineates the reasons for denying
custody and visitation.” CRO #2 states that before any change in custody or visitation,
Cunningham “must present evidence that he has engaged in meaningful efforts to address
the rage he directs toward [Wang] and that he is willing to resume visitation with his
daughter in a supervised setting.” The court found Cunningham’s “rage continues,” as
reflected in the exhibits submitted by Wang in her response and by Cunningham’s
behavior at the May 15, 2012 hearing. Findings incorporated into the June 17, 2011
order delineating reasons for denying custody and visitation, included reiterating findings
detailed in the May 9, 2007 order granting sole custody to Wang, including finding that
Cunningham was unable to co-parent the child, as reflected in his e-mail correspondence
with Wang, “and his investment in continuing the conflict with [Wang].” “Father is not
able to focus on the child’s needs and is instead focused upon conflict with Mother; . .
.Father is connected with Mother through these legal proceedings; . . . and . . . the child
25
continues to be traumatized because of this conflict.” (Italics added.) 12 These findings
present ample “good cause” for the court’s refusal to allow Cunningham to call Wang to
testify at the hearing on his motion to modify custody. Not only was the testimony he
wished to elicit from Wang outside the scope of the hearing, which was addressed to
modification of the existing orders and required evidence of changed circumstances; but
also, good cause for denying the oral testimony by Wang was provided by the findings
that Cunningham was using the legal proceedings as a way to continue his connection
with Wang and was focused upon his conflict with her and his rage at her, rather than
upon the best interests of their child.
Finally, the court had ample reason to deny Cunningham’s request to call the 12-
year-old child to testify. In CRO #1, the court had asked the parties to address “[w]hether
it is in [the child’s] best interest to testify in open court and alternatives thereto.”
Cunningham speculated in his request that the child would testify that her mother would
not allow her to speak to or have contact with her father; that Wang had told the child
Cunningham means to harm the child; that the child misses being with Cunningham and
that she wants a relationship with him; that she cried after her dog died and was upset that
she was not allowed to visit the dog. Section 3042 provides that “[i]f a child is of
12
In the custody order of May 9, 2007, the court cited to the custody evaluation
conducted by Perry in finding: “Additional reasons which demonstrate an order of sole
legal and sole physical custody to Mother is in the child’s best interest is Father’s
inability to focus on the child’s needs, because his judgment is clouded-over by his rage
at Mother for ending their relationship. (Child Custody Evaluation, page 10, ¶ 3.) The
facts presented in this case show Father is not able to focus on and serve the child’s best
interests, because his anger at Mother, rather than the best interests of his daughter,
remains his primary focus from which he cannot or will not detach. (Child Custody
Evaluation, ¶ 4.) Father’s communications with Mother are often mean-spirited,
insulting, insensitive, disrespectful, threatening and pejorative. Father is, therefore,
clear[ly] not serving the needs of [the child] and his negative and destructive conduct do
not serve [her] best interests. Mother, on the other hand, is a good and conscientious
parent, and is the parent who is primarily focused on the child and the child’s needs.
(Child Custody Evaluation , ¶ 3.) . . . .” In the June 17, 2011 order referenced by the
court in its CRO #2 of May 25, 2012, the court stated that it “remains true today as it
was in 2007,” that Cunningham “does not want resolution of this case and he is attached
to the conflict between himself and Mother.” (Italics added.)
26
sufficient age and capacity to reason so as to form an intelligent preference as to custody
or visitation, the court shall consider, and give due weight to, the wishes of the child in
making an order granting or modifying custody or visitation.” (§ 3042, subd. (a).) Here,
in denying Cunningham’s requests to appoint counsel for the child and to order a two-tier
evaluation of the child, the court explained: “Unless and until [Cunningham] is able to
demonstrate that he is capable of managing his anger and is willing to engage in
supervised visits, there is no reason to involve the child. In so ruling, the Court is willing
to assume that the child desires to see her father. In fact that is the desire of the Court.
However visitation cannot resume unless and until [Cunningham] addresses his rage and
is willing to engage in supervised visits. That is the only way to ensure that the child will
be safe for the reasons delineated in the Order of June 17, 2011.” (Italics added.)
As observed by Hogoboom and King: “[A] child’s participation in family law
matters must be considered on a case-by-case basis. No statutory mandate, rule, or
practice requires children to participate in court or prohibits them from doing so. When a
child does wish to participate, ‘the court should find a balance between protecting the
child, the statutory duty to consider the wishes of and input from the child, and the
probative value of the child’s input while ensuring all parties due process rights to
challenge evidence relied upon by the court in making custody decisions.’ [Citations.]”
(Hogoboom and King, Family Law, supra, ¶ 7:324, p. 7-131.) Moreover, before
allowing a child under age 14 to testify, “the court must first determine it would be
appropriate pursuant to the child’s best interests. [Citations.]” (Id. at ¶ 7:324.2, p. 7-132,
citing Fam. Code, § 3042, subd. (d); Chalmers v. Hirschkop (2013) 213 Cal. App. 4th 289,
313 [statute simply requires court give “due weight” to child’s preferences and the court
may permit a child under 14 years to address the court if it finds doing so is in child’s
best interest].)
Here, the court could well determine it was not in the child’s best interest to testify
in this proceeding. In stating its willingness to assume the child desires to visit with her
father and in view of the high level of conflict between the parents, Cunningham’s
investment in maintaining the conflict, rather than pursuing his daughter’s best interest,
27
the suffering of the child due to the conflict, and the level of vitriol and disrespect for the
court and opposing parties that Cunningham brings to the proceedings in which he has
participated, a case-specific consideration of the child’s participation supports the court’s
determination. Moreover, given the court’s willingness to assume the child desired visits,
Cunningham was not prejudiced in the court’s refusal to let him call the child to testify.
The court did not abuse its discretion in refusing Cunningham’s request to call the child.
Nor, in these circumstances, did the court abuse its discretion in refusing to appoint
counsel for the child to communicate her wishes to the court.
The court did not err in denying Cunningham’s requests for another two-tier
custody evaluation of the child and in refusing to appoint a guardian for the child.
Nothing in Cunningham’s pleadings indicated any reasonable bases for such requests nor
did Cunningham present any evidence supporting a need for a psychiatric evaluation of
Wang.
Nothing in Cunningham’s pleadings or papers suggested a need for live testimony
relating to his request for lifting of orders declaring him a vexatious litigant and vacating
an order against him under the DVPA. He provided no reason to believe that he had in
any way changed his attitude or the behaviors that led the court to declare him vexatious
and to impose the restraining order again him. His arguments boiled down to his many
times rejected legal claims that the court erred in declaring him vexatious and in granting
the restraining order in the first place. The court did not err in refusing to lift the
vexatious litigant order or the DVPA restraining order.
Assuming, without deciding, that section 217 applies to requests to lift vexatious
litigant orders and DVPA restraining orders in family law cases, we are convinced that
good cause supports the trial court’s refusal to entertain oral testimony at the hearing on
the OSC.
IV. Changed Circumstances – Custody Modification
Cunningham contends here, as he contended below, that the doctrine of changed
circumstances did not apply to his requests for modification of custody. He is wrong.
28
As observed by our Supreme Court in Montenegro v. Diaz (2001) 26 Cal. 4th 249,
256: “Although the statutory scheme only requires courts to ascertain the ‘best interest of
the child’ [citations], this court has articulated a variation on the best interest standard
once a final judicial custody determination is in place. Under the so-called changed
circumstance rule, a party seeking to modify a permanent custody order can do so only if
he or she demonstrates a significant change of circumstances justifying a modification.
([In re Marriage of ] Burgess [(1996)] 13 Cal.4th [25,] 37.) According to our earlier
decisions, ‘[t]he changed-circumstance rule is not a different test, devised to supplant the
statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it
has been established that a particular custodial arrangement is in the best interests of the
child, the court need not reexamine that question. Instead, it should preserve the
established mode of custody unless some significant change in circumstances indicates
that a different arrangement would be in the child’s best interest. The rule thus fosters
the dual goals of judicial economy and protecting stable custody arrangements.’
(Burchard [v. Garay (1986)] 42 Cal.3d [531,] 535.)”
Consequently, to justify a change in custody, there must be a persuasive showing
by the noncustodial parent of substantial changed circumstances relating directly to the
child’s best interests. (In re Marriage of McLoren (1988) 202 Cal. App. 3d 108, 116
[family court abused its discretion in changing custody from sole to joint legal custody in
the absence of a showing of substantially changed circumstances].) The moving party
has the burden not only of establishing that circumstances now warrant a change in
custody, but also that modification of custody is in the child’s best interests. (Id. at
p. 114; see In re Marriage of Burgess, supra, 13 Cal.4th at pp. 37-38; Burchard v. Garay,
supra, 42 Cal.3d at p. 535; Hogoboom & King, Family Law, supra, ¶¶ 17:310- 17:311,
pp. 17-75 to 17-76.) Although the decision to modify the custody arrangement generally
should be based upon the circumstances existing at the time of the requested
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modification, prior conduct may be considered by the court in determining which parent
will serve the best interests of the child. (In re Marriage of McLoren, at p. 115.)
The court did not err in applying the changed circumstances test or in refusing to
modify the order granting Wang sole physical and legal custody. Cunningham’s claim
that the custody order was not final has been repeatedly rejected. We need not address it
further.
V. Modification of Visitation
“[T]he changed circumstances rule does not apply when a parent requests only a
modification of the visitation arrangement (whether in a joint custody or sole custody
situation). Because such a modification does not change ‘custody,’ the trial court
considers a visitation modification solely under the child’s best interests standard.
[([In re] Marriage of Lucio (2008) 161 [Cal.App.]4th 1068, 1077–1080 (citing text)
(collecting cases)—noncustodial parent who had supervised visitation not required to
show changed circumstances in support of request for unmonitored visits and additional
visitation time not amounting to ‘de facto joint custody’].” (Hogoboom and King,
Family Law, supra, at ¶17:302.3, p.17-74; see also, Chalmers v. Hirschkop, supra,
213 Cal.App.4th at p. 305 [“When a legal parent seeks to modify a visitation schedule set
forth in a final custody order, the changed circumstance rule does not apply. [Citations.]
The court has residual and broad discretion to modify visitation orders for legal parents to
‘ “obviate time-consuming custody litigation . . . .” ’ [Citation.]”].)
The court here explained its reasons for refusing to modify the visitation order.
Those reasons were rooted in its determination of the best interests of the child. In its
CRO #2, the court stated explicitly that despite its wish that visitation could be resumed,
“visitation cannot resume unless and until [Cunningham] addresses his rage and is willing
to engage in supervised visits. That is the only way to ensure that the child will be safe
for the reasons delineated in the Order of June 17, 2011.” Ample evidence supports the
court’s determination that visitation would not be resumed until Cunningham complied
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with the requirements the court set in place to provide for the child’s safety. Such
requirements are consistent with the mandate of section 3100, subdivision (b), that in
making a visitation order, “the court shall consider whether the best interest of the child
requires that any visitation by [the parent to whom a protective order as defined in section
6218 has been directed] shall be limited to situations in which a third person, specified by
the court, is present, or whether visitation shall be suspended or denied. . . .” (§ 3100,
subd. (b); see also §§ 3031, subd. (c) [essentially the same where emergency protective
order “or other restraining order” has been issued]; 6323, subd. (d) [same in DVPA
proceedings]; Hogoboom and King, Family Law, supra, ¶ 7:489, p. 7-190.) “The
ultimate decision lies within the court’s discretion. However, the exercise of discretion
must reflect a consideration of the nature of the acts from which the parent was enjoined
and the period of time elapsed since the order issued. [Citation.]” (Hogoboom and King,
Family Law, supra, ¶ 7:489.1, p. 7-190.) Such was the case here.
CONCLUSION
Ample evidence supported the court’s denial of the OSC requests in this case.
Further, the court’s refusal to take oral testimony at the hearing on the OSC was
supported by good cause, pursuant to section 217.
DISPOSITION
The order after judgment entered May 25, 2012 is affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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