H.S. v. J.M. CA4/1 ( 2020 )

Filed 9/23/20 H.S. v. J.M. CA4/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
H.S., D075319
Plaintiff and Appellant,
v. (Super. Ct. No. 18FL000977N)
J.M.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Enrique Camarena, Judge. Affirmed.
H.S., in pro. per.; Hellman Law Group and Lawrence P. Hellman for
Plaintiff and Appellant.
Antonyan Miranda, Anthony J. Boucek, Timothy Miranda, and Sara
Yunus for Defendant and Respondent.
Following trial in this Uniform Parentage Act action, the family court
denied the petition of H.S. (Appellant) to establish a parental relationship
between Appellant and M., the child of J.M. (Respondent). Appellant met his
initial burden by showing that he received M. into his home and openly held
out M. as his own, thereby presumptively establishing parental status under
Family Code section 7611, subdivision (d).1 Respondent then met her
responsive burden and rebutted the presumption, presenting what the family
court found to be clear and convincing evidence that “[Appellant] did not
significantly care for the child” and “[Appellant’s] relationship with [M.] was
incidental to his relationship with [Respondent.]”
On appeal, Appellant seeks a reversal of the judgment, contending that
the family court prejudicially erred in two respects: (1) in concluding that
Appellant was not a presumed parent of M.; and, alternatively, (2) in denying
Appellant’s request to reopen his case in chief to present additional
evidence—a request Appellant filed three weeks after the court issued its
proposed statement of decision. In July 2020, we filed an opinion affirming
the judgment. Four days later, the California Supreme Court filed its opinion
in Conservatorship of O.B. (2020) 9 Cal. 5th 989 (O.B.), in which the court
established a new standard of review of one of the issues decided in our
opinion. Accordingly, we granted rehearing on our motion (Cal. Rules of
Court, rule 8.268(a)(1)) and requested that the parties provide supplemental
1 Family Code section 7611 was amended in 2019, effective January 1,
2020. (Stats. 2019, ch. 115, § 87, eff. Jan. 1, 2020; further undesignated
statutory references are to the Family Code.) The prior version of
subdivision (d) in effect at all times relevant to the present appeal provided
as follows: “A person is presumed to be the natural parent of a child if . . . :
[¶] . . . [¶] [t]he presumed parent receives the child into his or her home and
openly holds out the child as his or her natural child.” (Former § 7611,
subd. (d); Stats. 2013, ch. 510, § 3.) Subsequent citations to section 7611,
subdivision (d), are to former section 7611, subdivision (d), effective
January 1, 2014. (Stats. 2013, ch. 510, § 3.)
2
briefing to address the application of this new standard to the applicable
issue on appeal.
As we explain, on rehearing Appellant did not meet his burden of
establishing reversible error by the family court. Accordingly, we will affirm
the judgment.
I. INTRODUCTION
“ ‘A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. This is not
only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ ” (Denham v. Superior Court
(1970) 2 Cal. 3d 557, 564; accord, Jameson v. Desta (2018) 5 Cal. 5th 594, 608-
609.) “It is well settled, of course, that a party challenging a judgment has
the burden of showing reversible error by an adequate record.” (Ballard v.
Uribe (1986) 41 Cal. 3d 564, 574; accord, Jameson, at p. 609.) A corollary to
this rule is that reviewing courts may disregard factual statements in any
party’s appellate brief that are not supported by accurate citations to the
record on appeal. (Delta Stewardship Council Cases (2020) 48 Cal. App. 5th
1014, 1079 (Delta Stewardship); Cal. Rules of Court, rule 8.204(a)(1)(C).2)
We apply this corollary here and disregard factual statements without
accurate record references—in particular, representations of the testimony
from witnesses at trial—in both parties’ appellate briefs.
The record in the present appeal consists of a clerk’s transcript, a
reporter’s transcript of proceedings from four dates between May and August
2 Each brief on appeal must “[s]upport any reference to a matter in the
record by a citation to the volume and page number of the record where the
matter appears. . . .” (Cal. Rules of Court, rule 8.204(a)(1)(C).)
3
2018, and the trial exhibits. In addition, Appellant has filed a request that
this court take judicial notice of: 10 documents from the family court files in
Respondent’s dissolution of marriage action against Appellant; and one
certified reporter’s transcript from the November 2018 hearing in the present
action on Appellant’s request to reopen his case in chief. Respondent opposed
Appellant’s request.
We deny the request in its entirety. “Reviewing courts generally do not
take judicial notice of evidence not presented to the trial court. Rather,
normally ‘when reviewing the correctness of a trial court’s judgment, an
appellate court will consider only matters which were part of the record at
the time the judgment was entered.’ ” (Vons Companies, Inc. v. Seabest
Foods, Inc. (1996) 14 Cal. 4th 434, 444, fn. 3.) No exceptional circumstances
exist that would justify deviating from that rule in this appeal.
That said, the certified copy of the reporter’s transcript from the
November 2018 hearing is from posttrial proceedings in this case and
resulted in a specific order that Appellant directly challenges in this appeal.
Accordingly, on our own motion, we augment the record on appeal to include
the certified reporter’s transcript of oral proceedings on November 1, 2018, a
copy of which is identified as Exhibit K to Appellant’s request for judicial
notice and found at pages 69-85 of the request.3 (Cal. Rules of Court,
rule 8.155(a)(1)(B).)
Appellant represented himself at all stages from the filing of the appeal
through the lodging of trial exhibits approximately one week before oral
3 At the hearing, the parties, through counsel, presented only oral
argument—i.e., no evidence. Thus, Appellant is not advantaged and
Respondent is not prejudiced by the inclusion of this reporter’s transcript in
the record on appeal. However, we now have a more complete understanding
of what occurred at the hearing.
4
argument.4 The procedural rules apply the same to him and his submissions
as to a party represented by counsel. (Rappleyea v. Campbell (1994) 8
Cal. 4th 975, 984-985 [“the rules of civil procedure must apply equally to
parties represented by counsel and those who forgo attorney representation”],
accord, Burkes v. Robertson (2018) 26 Cal. App. 5th 334, 344-345 [“ ‘ “the same
restrictive procedural rules” ’ ” apply to self-represented litigants]; In re
Marriage of Rothrock (2008) 159 Cal. App. 4th 223, 235 [self-represented party
“not entitled to special treatment from the court”]; Nwosu v. Uba (2004) 122
Cal. App. 4th 1229, 1246-1247 [self-represented party “not exempt” from
procedural rules on appeal].) The fact that a party is representing himself is
not a basis for special treatment that would be unfair to the other litigants.
(Rappleyea, at pp. 984-985; McClain v. Kissler (2019) 39 Cal. App. 5th 399,
416; see Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8).) Thus, in
the event Appellant’s self-represented status contributed to deficiencies in
the presentation of Appellant’s case on appeal, it does not excuse them.
(Rappleyea, at p. 984 [self-representation is not a basis for lenient treatment];
Nwosu, at pp. 1246-1247.)
II. FACTUAL AND PROCEDURAL BACKGROUND
We view and recite the evidence in a light most favorable to the
judgment on appeal. (In re M.Z. (2016) 5 Cal. App. 5th 53, 64 (M.Z.).) We note
Appellant’s “classic mistake” of relying on evidence favorable to him, rather
than on “evidence favorable to the judgment.” (In re Marriage of Whealon
(1997) 53 Cal. App. 4th 132, 143, italics added.) We limit this background
4 Appellant substituted retained counsel a few days before oral
argument. Counsel argued the matter and submitted Appellant’s brief on
rehearing.
5
presentation to the facts and procedures properly cited by the parties in their
briefs5 or observed in our independent review of the record on appeal.
M. was born in April 2013 to biological parents with substance abuse
issues and psychological needs. He was immediately placed in foster care,
and Respondent met and received M. from child protective services when he
was two days old. At the time of the trial in this action, five-year-old M. had
special needs based on delayed speech, learning disabilities, and behavioral
issues.
Respondent began the adoption process at the end of 2013, before she
met Appellant, when M. was approximately eight months old. Appellant
knew that Respondent was in the process of adopting M. when they began
dating in or around February 2014. Appellant finalized M.’s adoption in June
2014, and M.’s birth certificate, issued the next month at a time when
Appellant and Respondent were engaged to be married, does not list
Appellant as the father. Appellant had met M. only three times before the
parties married, and Appellant did not pay for any of M.’s expenses prior to
the marriage.
Appellant and Respondent married in August 2014. According to
Respondent, their marriage was “emotionally abusive, verbally abusive, just
really unstable.” She described his behavior toward M. as “very rough”:
Appellant “would antagonize him, bully him,” would “say inappropriate
5 As explained in the text, ante, we have disregarded factual statements
without accurate record references in both parties’ appellate briefs. (Delta
Stewardship, supra, 48 Cal.App.5th at p. 1079.) In addition, we have
disregarded the evidence that Appellant relies on by the citation to his
“Responsive Declaration,” since it does not contain evidence from trial. In its
statement of decision, the family court granted Respondent’s request to
exclude the parties’ declarations, and Appellant has not challenged that
ruling in this appeal.
6
things to him,” and would “constantly torment[] him.”6 As a result, from a
very young age, M. was afraid of Appellant and afraid of being left alone with
Appellant. Throughout their marriage, Respondent (with M.) would live
apart from Appellant a few times a year. In August 2015 and December
2015, for example, Respondent (with M.) lived with a friend in Los Angeles
and with family in New Jersey, respectively, for approximately two months
each. During these periods of separation, Appellant did not “seek out M[.],”
did not “ask to see M[.],” did not ask Respondent “how is M[.] doing,” and did
not “financially assist [Respondent] with M[.] in any way.”
In early November 2017, Respondent gave birth to the parties’
daughter, Z.
Respondent petitioned to dissolve the parties’ marriage in December
2017, and she and M. moved out the family’s residence in January 2018.
Since that date, Appellant has provided no financial support for M.
In late January 2018, Appellant filed the underlying action, seeking: a
judgment of paternity, on the basis that Appellant is a presumed parent of
M.; joint legal and physical custody of M.; and consolidation of this paternity
action with the parties’ pending action for dissolution of their marriage.
Respondent filed a response to Appellant’s petition in which she stated that
Appellant was not M.’s father, but that he should have weekend visitation
with M. on the same visitation schedule as he visited with Z.
Over the course of five days during the May - August 2018 time period,
the parties tried their case in the family court. They called eight witnesses,
6 For example, and without limitation, if M. was building something with
his toys, Appellant “would knock it down just to upset him or just mess him
up.” At one of M.’s birthday parties, Appellant “smashed [M.’s] head . . . in
his birthday cake.” In addition, Appellant “put [M.] in a closet and closed the
door and shut the lights out just to see what he would do.”
7
and the court received into evidence more than 50 exhibits. Following closing
argument, the court took the matter under submission and later issued a
proposed statement of decision.
In its proposed statement of decision, the family court denied Appellant
both parental status and a judgment of paternity. After first providing a
summary of the evidence, the court found and concluded in relevant part:
“[O]n balance [Appellant] did not significantly care for [M.].
. . . [¶] . . . [¶ ] . . . [Appellant’s] relationship with M[.]
was incidental to his relationship with [Respondent].
[Appellant] met his burden by [a] preponderance of the
evidence. [Respondent] rebutted the presumption with
clear and convincing evidence.”
Appellant filed objections to the proposed statement of decision.
Before Appellant’s objections could be heard and after the deadline for
filing further objections, Appellant filed a request for an order “to re-open
[his] case in chief” to present the testimony of five identified witnesses (RFO).
Respondent opposed the RFO, and Appellant filed a reply. Following
hearing, the family court denied Appellant’s RFO, finding that it was
untimely.7 At this hearing, the court also ruled that the proposed statement
of decision, as originally issued, would be the final statement of decision.
The court entered a judgment in favor of Respondent, attaching and
incorporating its statement of decision. Appellant timely appealed from the
judgment.
In July 2020, we filed an opinion affirming the judgment. In part, we
ruled that the record contains substantial evidence to support a specific
finding that the family court made based on clear and convincing evidence.
7 We will present the facts, the parties’ positions, and the details of the
family court’s ruling in our discussion of the merits at part III.B.2.a., post.
8
We granted rehearing on our own motion (Cal. Rules of Court,
rule 8.268(a)(1)) when, before our opinion was final, the Supreme Court
established a new standard of review of factual findings that may be made in
the trial court only upon a showing by clear and convincing evidence. (O.B.,
supra, 9 Cal. 5th 989.) We then requested supplemental briefing to address
this new standard, received the supplemental briefing, and resubmitted the
matter.
III. DISCUSSION
On appeal, Appellant seeks a reversal of the judgment, arguing that
the family court erred: (1) in concluding that he was not a presumed parent
of M., and alternatively, (2) in denying his request to reopen his case in chief.
As we explain, Appellant did not meet his burden of establishing reversible
error.
A. Denial of Parental Status
1. Law
A person is presumed to be the natural parent of a child if the person
both receives the child into his or her home and openly holds the child out as
his or her natural child. (§ 7611, subd. (d); see fn. 1, ante.) “ ‘ “ ‘[T]he
statutory purpose [of section 7611] is to distinguish between those fathers
who have entered into some familial relationship with the mother and child
and those who have not.’ ” . . . “[T]he premise behind the category of
presumed father is that an individual who has demonstrated a commitment
to the child and the child’s welfare—regardless of whether he is biologically
the father—is entitled to the elevated status of presumed fatherhood.” ’ ”
(Jason P. v. Danielle S. (2017) 9 Cal. App. 5th 1000, 1019.) The section 7611,
subdivision (d) presumption may be used even though the person is not the
biological parent of the child, because the “ ‘[parentage] presumptions are
9
driven, not by biological [parentage], but by the state’s interest in the welfare
of the child and the integrity of the family.’ ” (Elisa B. v. Superior Court
(2005) 37 Cal. 4th 108, 121-122; accord, In re Nicholas H. (2002) 28 Cal. 4th
56, 58-59 (Nicholas H.).)
The parental presumption under section 7611, subdivision (d) “is a
rebuttable presumption affecting the burden of proof and may be rebutted in
an appropriate action only by clear and convincing evidence.” (§ 7612,
subd. (a).) This rebuttal provision “ ‘seeks to protect presumptions of
[parental status], once they have arisen, from being set aside except upon
clear and convincing evidence and only in an appropriate case.’ ”
(Nicholas H., supra, 28 Cal.4th at p. 66.) Thus, a party disputing a presumed
parent finding in the family court has the burden to rebut the presumption
by clear and convincing evidence. (County of Orange v. Cole (2017) 14
Cal. App. 5th 504, 509.) “ ‘ “Clear and convincing” evidence requires a finding
of high probability[, or] evidence . . . “ ‘so clear as to leave no substantial
doubt’; ‘sufficiently strong to command the unhesitating assent of every
reasonable mind.’ ” ’ ” (Katie V. v. Superior Court (2005) 130 Cal. App. 4th
586, 594.)
On appeal, we review a finding of presumed parent status under the
substantial evidence standard. (M.Z., supra, 5 Cal.App.5th at p. 64.)
Because Appellant challenges a family court finding that must be based on
clear and convincing evidence, we “must account for the clear and convincing
standard of proof when addressing a claim that the evidence does not support
a finding made under this standard.” (O.B., supra, 9 Cal.5th at p. 1011.) In
conducting this review under the new standard established by our Supreme
Court in O.B., we “must view the record in the light most favorable to
[Respondent] and give appropriate deference to how the trier of fact may
10
have evaluated the credibility of witnesses, resolved conflicts in the evidence,
and drawn reasonable inferences from the evidence.” (Id. at pp. 1011-1012)
We must then “determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could have made
the finding of high probability demanded by th[e clear and convincing]
standard of proof” applied by the family court. (Id. at p. 1005.)
In doing so, we are nonetheless limited by the well-known standard:
“ ‘If there is substantial evidence to support the ruling, it will not be
disturbed on appeal even if the record can also support a different ruling.’ ”
(M.Z., supra, 5 Cal.App.5th at p. 64, italics added.) As particularly applicable
given Appellant’s presentation on appeal, “ ‘[w]e do not review the evidence to
see if there is substantial evidence to support the losing party’s version of
events, but only to see if substantial evidence exists to support the [ruling] in
favor of the prevailing party.’ ” (In re Marriage of Brooks (2019) 33
Cal. App. 5th 576, 592 (Brooks); accord, Campbell v. General Motors Corp.
(1982) 32 Cal. 3d 112, 118 (Campbell) [“the evidence most favorable to
[the ruling on appeal] must be accepted as true and conflicting evidence must
be disregarded”; italics added].)
In short, Appellant has the burden of showing that there is no evidence
“from which a reasonable trier of fact could have made the finding of high
probability” necessary to support the family court’s ruling that Respondent
rebutted the presumption of parentage of M. by clear and convincing
evidence. (O.B., supra, 9 Cal.5th at p. 1005; see In re A.E. (2014) 228
Cal. App. 4th 820, 826 (A.E.).)
2. Analysis
Quite a bit of Appellant’s presentation on appeal emphasizes the
evidence that supports the family court’s ruling that Appellant met his initial
11
burden of showing that he received M. into his home and openly held out M.
as his own, thereby presumptively establishing parental status under
section 7611, subdivision (d). However, that finding is not being challenged
in this appeal. The issue is whether Respondent met her responsive burden
and, thus, for purposes of appeal, whether the record contains substantial
clear and convincing evidence to support the court’s findings that “[Appellant]
did not significantly care for the child” and “[Appellant’s] relationship with
[M.] was incidental to his relationship with [Respondent.]”
Appellant has not attempted to explain whether the record lacks
sufficiently “substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by th[e clear and
convincing] standard of proof” applied by the family court. (O.B., supra, 9
Cal.5th at p. 1005.) Accordingly, based on firm precedent, Appellant has
forfeited appellate consideration of this substantial evidence issue:
“ ‘The rule is well established that a reviewing court must
presume that the record contains evidence to support every
finding of fact, and an appellant who contends that some
particular finding is not supported is required to set forth
in his brief a summary of the material evidence upon that
issue. Unless this is done, the error assigned is deemed to
be waived. . . . It is incumbent upon appellants to state
fully, with transcript references, the evidence which is
claimed to be insufficient to support the findings.’ ”
(In re Marriage of Fink (1979) 25 Cal. 3d 877, 887, italics added, citing
Supreme Court authority from 1931 and quoted in Court of Appeal authority
as recently as 2017 in In re Marriage of Dalgleish & Selvaggio (2017) 17
Cal. App. 5th 1172, 1183.)8
8 In our original (now vacated) opinion, we ruled that Appellant had
forfeited appellate consideration of his substantial evidence argument
because he failed to set forth the material evidence in support of the findings
12
In any event, based on our independent review of the record, we are
satisfied that substantial evidence—i.e. “evidence from which a reasonable
trier of fact could have made the finding of high probability demanded by
th[e clear and convincing] standard of proof” (O.B., supra, 9 Cal.5th at
p. 1005)—supports the family court’s findings that “[Appellant] did not
significantly care for the child” and “[Appellant’s] relationship with [M.] was
incidental to his relationship with [Respondent.]” We discuss below some of
this rebuttal evidence—which is just a sampling of the testimony from
Respondent, Respondent’s friend, and one of M.’s nannies—presented by
Respondent. To have avoided forfeiture of our consideration of the
substantial evidence issue on the merits, at a minimum, Appellant should
have argued why this (and other evidence favorable to the judgment) is not
sufficiently substantial to support the court’s findings. (A.E., supra, 228
Cal.App.4th at p. 826.)
that he challenged and to explain how that evidence was not sufficiently
substantial to support the adverse findings. Instead, Appellant relied on
evidence that arguably supported findings in his favor that were not made.
In particular, we explained that, in conducting our substantial evidence
review on appeal, we do not consider what Appellant described as evidence
“ ‘ contradictory’ ” to the family court’s findings.
Nonetheless, in his brief on rehearing, Appellant did nothing to
attempt to overcome this forfeiture. Appellant again fails to explain why the
family court’s findings lack substantial evidence under the new standard of
review established by our Supreme Court in O.B., supra, 9 Cal.5th at
page 1005. Instead, Appellant again relies on “conflicting evidence” that he
contends supports his position. As before, however, we “disregard[]” such
conflicting evidence (Campbell, supra, 32 Cal.3d at p. 118), since we only
consider the evidence in support of the findings actually made when
determining whether such findings are supported by substantial evidence
(Brooks, supra, 33 Cal.App.5th at p. 592). That is because we resolve “all
conflicts” in contradictory evidence “in support of the judgment.” (M.Z.,
supra, 5 Cal.App.5th at p. 64.)
13
One of M.’s nannies testified that, based on her observations,
“[Appellant] didn’t care about [M.] . . . . As a father, he was never a father.
. . . I feel like [Appellant] was too aggressive of a father with [M.].” Most
evenings, M. was asleep when Appellant returned home from work, but even
if M. was awake, there would not be “any interaction between [Appellant]
and [M.].” In addition, Appellant “never took care of [M.]” and “never taught
him anything.” The nanny also described Appellant’s aggressive behavior
toward M., including physically shaking him. Since the parties separated in
January 2018, M. has not asked the nanny or anyone else in her presence
anything about Appellant.
Respondent’s friend, with whom Respondent and M. lived in Los
Angeles for over two months in mid-2015, testified that Appellant did not
once telephone or FaceTime M. or contact the friend to inquire about M.
During this time, the friend never heard M. mention or ask about Appellant.
Based on the friend’s observations of Appellant and M. together during the
2014-2016 time period (e.g., at the parties’ wedding, M.’s birthday party, New
Year’s Eve, etc.), Appellant did not “t[ake] any interest in [M.] at all.”
“[T]here wasn’t a lot of interaction between them,” and when there was, the
interaction was not positive. For example, the friend described an incident at
M.’s third birthday party, confirmed by Respondent, where Appellant
physically pushed M.’s face into the cake, causing M. to “completely melt[]
down.” Finally, the friend never heard Appellant tell anyone that he wanted
to be M.’s father or adopt M.9
9 A second nanny, one who worked for the family five nights a week from
6:00 p.m. to 9:00 p.m. during the September 2016 - December 2017 time
period, also testified that Appellant never told her that he was or wanted to
be M.’s father.
14
Respondent testified that, although her adoption of M. was completed
at a time when the parties were engaged to be married in mid-2014,
Appellant never asked to be added to M.’s birth certificate prior to filing for a
dissolution of the marriage in December 2017. Nor did Appellant buy M. any
presents, for celebrations or otherwise, until the end of 2017. During the
parties’ marriage, there were approximately five periods of separation, some
as long as two months. Respondent always had M. with her, and Appellant
did not once ask to see M., ask about M., ask to speak to M., or ask to
FaceTime with M. Likewise, during these separations, M. never asked about
Appellant. Over the years, Appellant “was very rough with [M.]” Appellant
“would scream at him,” “would antagonize him, bully him,” “would say
inappropriate things to him” and “would just do . . . very awful things to this
young child.” Examples include: knocking down M.’s toys just to “upset him”
or to “mess him up”; smashing M.’s head into M.’s birthday cake; and putting
M. in a closet, shutting off the lights, and closing the door, “just to see what
he would do.” As a result, M. was “so afraid” of Appellant that he “just didn’t
want to be left alone with [Appellant].”
Respondent also described a rocky marriage during which the parties
discussed divorce at least three times. In his effort to make the marriage
work, Appellant used M. “as a tool of manipulation” by only engaging with M.
if the contact might resolve the conflict between the parties. According to
Respondent, “the history of the marriage has shown that [Appellant] has
used [M.] as a tool,” and Appellant was prosecuting this parentage action
only as “another opportunity to control a situation he finds uncontrollable at
this point. And . . . he is using [M.] against me.”
Finally, Appellant had not provided any financial support for M. since
January 2018.
15
Moving on from our substantial evidence analysis, we are not
persuaded by any of Appellant’s related arguments.
First, Appellant argues that the family court’s judgment “is
tantamount to separating siblings.” (Some capitalization omitted.) However,
separation of siblings is only an issue when considering custody and/or
visitation; and to adjudicate such issues, the family court must have
jurisdiction. Custody and visitation disputes may be litigated in the parents’
dissolution, nullity or legal separation action (Fam. Code, §§ 2010, subd. (b),
3021, subds. (a), (b) & (c)) or in an independent custody/visitation action
between the parents for exclusive custody (Fam. Code, §§ 3021, subd. (d),
3120). In such an action, except as otherwise permitted by statute, the
court’s jurisdiction is limited to minor children of the parties’ marriage or
domestic partnership. (Fam. Code, §§ 2010, subd. (b), 3120; In re Marriage of
Lewis & Goetz (1988) 203 Cal. App. 3d 514, 518 (Lewis & Goetz).) Since
consideration of the child’s “best interests” does not create subject matter
jurisdiction to adjudicate custody or visitation (Lewis & Goetz, at pp. 518-
51910), neither does consideration of “sibling separation.” In short, because
the family court determined Appellant was not M.’s parent, the court lacked
jurisdiction to adjudicate custody or visitation. For this reason, the
authorities cited by Appellant—in each of which the parties had established
their status as parents prior to the consideration of custody/visitation
10 In Lewis & Goetz, the appellate court ruled that, since a stepchild is not
a child of the parties’ relationship, family courts have no jurisdiction to
entertain a stepparent’s custody request based on the stepparent-child
relationship. (Lewis & Goetz, supra, 203 Cal.App.3d at p. 518; accord,
Chalmers v. Hirschkop (2013) 213 Cal. App. 4th 289, 305 [stepparents have no
legal right to custody]; but see Fam. Code, § 3101 [upon a specified showing,
stepparent visitation claims may be adjudicated in certain family law
actions].)
16
issues—are inapposite. (In re Marriage of Williams (2001) 88 Cal. App. 4th
808, 809; In re Marriage of Steiner & Hosseini (2004) 117 Cal. App. 4th 519,
529 [affirmed the sibling separation]; J.M. v. G.H. (2014) 228 Cal. App. 4th
925, 938 [unrelated stepsiblings].11)
Second, Appellant suggests that “Dr. Dupee’s testimony should not
have been weighted [sic] heavily.”12 (Some capitalization omitted.) In that
the statement of decision does not mention Dupee in its extensive findings,
Appellant’s contention regarding the weight given to Dupee’s testimony is
unsupported by the record.13 Regardless, even if the family court had
“heavily” weighed Dupee’s testimony, as an appellate court, we lack the
power to reweigh the evidence. (M.Z., supra, 5 Cal.App.5th at p. 64.)
Finally, Appellant argues that the joint custody and regular visitation he
requested in his petition are in M.’s best interest, relying on sections 3011,
3040, 3041, and 3020. As we just explained, however, without establishing
parentage, the child’s “best interests” do not create subject matter
jurisdiction to adjudicate custody or visitation. (Lewis & Goetz, supra, 203
11 Appellant also cites “Heath, supra, at 447-448.” (Sic.) We will not
speculate as to the authority Appellant intended.
12 Dupee is a medical doctor, retained and called as an expert witness by
Respondent.
13 Prior to trial, the family court denied Appellant’s motion to exclude
Dupee’s testimony, ruling that the anticipated testimony is “relevant to the
issues at hand,” and Appellant’s objection “goes to the weight and not
admissibility of the evidence.” The record does not indicate what weight, if
any, the court gave Dupee’s testimony. To the contrary, the two principal
findings in support of the judgment—namely, that Appellant “did not
significantly care for [M.]” and his relationship with M. “was incidental to his
relationship with [Respondent]”—are not based on evidence from expert
Dupee, but rather on evidence from the parties and percipient witnesses.
17
Cal.App.3d at pp. 518-519.) Since Appellant is not M.’s parent, the family
court in this action lacked jurisdiction to adjudicate custody or visitation.
B. Denial of Appellant’s Request to Reopen Case in Chief
1. Law
A motion to reopen the evidence prior to judgment “invoke[s] the court’s
fundamental authority to control the order of proof and the conduct of
proceedings before it. (Evid. Code, § 320; Code Civ. Proc., § 128,
subd. (a)(3).)”14 (Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal. App. 3d
1035, 1052, fn. 7 (Rosenfeld).) “A motion made after submission to reopen a
case for the purpose of introducing further evidence is addressed to the sound
discretion of the [trial] court.” (Stewart v. Cox (1961) 55 Cal. 2d 857, 866;
accord, Rosenfeld, at p. 1052 [motion filed after issuance of proposed
statement of decision].) In an appeal from an order denying a motion to
reopen the case, the “ ‘ “test for abuse of discretion is whether the trial court
exceeded the bounds of reason.” ’ ” (Estate of Young (2008) 160 Cal. App. 4th
62, 82 (Young).) “ ‘ “To be entitled to relief on appeal from the result of an
alleged abuse of discretion [in denying a motion to reopen the case,] it must
clearly appear that the injury resulting from such a wrong is sufficiently
grave to amount to a manifest miscarriage of justice.” ’ ” (Ibid.)
2. Application of the Law to the Facts
In his briefing on appeal, Appellant presents no references to the trial
proceedings, only to the posttrial proceedings related to his motion to reopen
the case. Throughout this nine-page argument, Appellant cites to his
14 “Except as otherwise provided by law, the court in its discretion shall
regulate the order of proof.” (Evid. Code, § 320.)
“Every court shall have the power to . . . [¶] . . . [¶] . . . provide for the
orderly conduct of proceedings before it . . . .” (Code Civ. Proc., § 128,
subd. (a)(3).)
18
declaration in support of the motion four times15 and to the family court’s
order denying the motion once. Rather than declining to reach the merits
because of inadequate record references, we will merely disregard Appellant’s
factual statements that are unsupported by accurate record references.
(Delta Stewardship, supra, 48 Cal.App.5th at p. 1079; Cal. Rules of Court,
rule 8.204(a)(1)(C); see fn. 2, ante.)
a. Additional Facts
During the first day and a half of the trial, Appellant presented and
closed his case in chief by calling two witnesses—himself and a work
colleague.
Respondent submitted three witness lists. She submitted one list on
the first day of trial (identifying Appellant, Respondent, Respondent’s expert,
and one of M.’s nannies); she submitted a second list on the second day of
trial (identifying Respondent’s friend); and she submitted a third list on the
fifth day of trial (identifying Respondent’s friend again and another of M.’s
nannies).16
15 Two of the four citations to Appellant’s declaration are to the entire
seven pages, not to any specific testimony.
Appellant’s declaration refers to seven exhibits. None of them are in
the record on appeal, and Appellant has not provided copies to this court.
16 Trial dates included May 14, June 15, June 27, July 25, and August 20,
2018. Appellant has not provided a reporter’s transcript for day 4, July 25,
2018. Based on the clerk’s minutes of that date, no evidence was presented;
counsel argued Respondent’s in limine motion to preclude the admissibility of
five home videos that Appellant wanted to present as part of his rebuttal
case. The family court denied Respondent’s motion, allowing Appellant to
present the videos in his rebuttal case and allowing Respondent to call the
two witnesses on her third witness list (Respondent’s friend and one of M.’s
nannies) as part of her “sur-rebuttal” case.
19
Based on an in limine ruling on the fourth day of trial, as part of
Appellant’s rebuttal case, Appellant presented five home videos, and the
court admitted them into evidence. (See fn. 16, ante.)
During the presentation of one of Respondent’s surrebuttal witnesses,
Appellant objected, arguing that the witness’s testimony exceeded the scope
of Appellant’s rebuttal case. Respondent countered with an oral “motion . . .
to reopen evidence and to call [Respondent’s] witness who was already
indicated on [Respondent’s] witness list[.]”17 The court granted
Respondent’s oral motion, explaining: “In part, the Court wants to hear
about this. Frankly, [the first nanny’s] testimony was rather strong [against
Appellant]. And [Appellant] felt the need to rebut it. I don’t think it is a bad
thing for the Court to hear more evidence about the nature of the relationship
between [Appellant] and [M.] from people who were present[.]” Respondent
presented the remainder of the surrebuttal testimony from Respondent’s
friend and a second nanny. Appellant cross-examined both of Respondent’s
surrebuttal witnesses.
At the close of Respondent’s surrebuttal case, in response to a direct
question from the court, Respondent’s counsel stated that Respondent did not
have any further witnesses, and Appellant’s counsel stated: “Your Honor, at
this point I could call another witness to rebut the testimony we just heard
[from Respondent’s surrebuttal witnesses], but then I think we could be here
for 10 days, so at this time I am not going to do that.” (Italics added.)
17 In his declaration in support of his oral motion to reopen his case in
chief, Appellant testified that Respondent’s motion was “to reopen
[Respondent’s] case in chief.” (Italics added.) That statement is not borne out
by the reporter’s transcript, which discloses clearly that Respondent’s motion
was “to reopen the evidence.” (Italics added.)
20
After the noon recess, the parties presented their closing arguments,
and the court took the matter under submission.
Approximately 10 days later, the family court issued a proposed
statement of decision in favor of Respondent, described ante, ruling that
Appellant was not entitled to be M.’s presumed parent under section 7611,
subdivision (d). Pursuant to the applicable procedures, Appellant timely filed
objections.
Before the court ruled on Appellant’s objections, Appellant filed the
RFO—i.e., a request for an order “to re-open [his] case in chief” to present the
testimony of five identified witnesses. In principal part, Appellant argued
that “the evidence he now seeks to introduce is necessary to address
testimony by two witnesses that this Court unexpectedly allowed Respondent
. . . to introduce on the last day of trial after she had rested her case-in-chief.
This testimony was allowed at the last minute over [Appellant’s] objection
that it did not address the . . . rebuttal evidence introduced by [Appellant],
but rather, went well beyond the scope of proper sur-rebuttal evidence.”
Respondent opposed the RFO. Substantively, she argued that, since
the family court had tentatively ruled that Appellant met his initial burden
to establish presumed parent status under section 7611, subdivision (d),
“there is no legal basis upon which to reopen [Appellant’s] case-in-chief.”
Procedurally, she argued that Appellant’s RFO was untimely.
After full briefing and oral argument, the family court denied
Appellant’s RFO, ruling in part that Appellant’s request was untimely,
because Appellant did not make his request to present his additional
witnesses prior to closing argument.
b. Analysis
“[D]enial of a motion to reopen [the evidence] will be upheld if the
21
moving party fails to show diligence or that he had been misled by the other
party.” (Guardianship of Phillip B. (1983) 139 Cal. App. 3d 407, 428.) Here,
the record on appeal does not support a showing that Appellant either acted
diligently or was misled by Respondent.
The only evidence of diligence (which is not cited in Appellant’s briefs
on appeal) is the following testimony from Appellant in support of the RFO:
“I have acted diligently in directing my attorney to file this [RFO] as soon as
possible . . . .” Appellant tells us—without a record reference—that he filed
his RFO within 12 days of service of the family court’s proposed statement of
decision. Our review of the record establishes that Appellant filed his RFO
21 days after the filing of the proposed statement of decision.18
The family court found that Appellant was not diligent by failing to
bring the request prior to closing argument. (Compare Rosenfeld, supra, 191
Cal.App.3d at p. 1052 [no diligence where motion to reopen evidence was filed
after trial court had issued a tentative decision].) The family court has “the
power to . . . [¶] . . . [¶] . . . provide for the orderly conduct of proceedings
before it” (Code Civ. Proc., § 128, subd. (a)(3)) and the “discretion [to] regulate
the order of proof” (Evid. Code, § 320). Here, the court allowed Appellant to
present five home videos in rebuttal over objection, allowed Respondent to
reopen the evidence to present testimony over objection in response to
Appellant’s rebuttal case, and then expressly asked both counsel whether
either had any further witnesses. After regulating the order of proof over four
days of testimony, in posttrial proceedings the experienced trial judge who
presided over the trial exercised his discretion to disallow the further
18 While the nine days difference may arguably be immaterial for
purposes of determining diligence in this case, misrepresentations of the
record on appeal are not.
22
reopening of evidence after closing argument.
Finally, Appellant presented no evidence to the family court, nor does
he argue on appeal, that he was seeking to reopen his case in chief because
Respondent had misled him. Although Appellant testified in support of the
RFO that he did not “have any indication that [Respondent] was going to
move to re-open her case,” the court gave Appellant the opportunity to call
additional witnesses. These facts neither establish nor imply that
Respondent misled Appellant.
On this record of diligence by Appellant and the opportunity for
Appellant to present evidence prior to closing argument, the family court did
not “ ‘ “exceed[] the bounds of reason” ’ ” in precluding Appellant from
reopening his case in chief, and Appellant’s inability to call the additional five
witnesses is not “ ‘ “sufficiently grave to amount to a manifest miscarriage of
justice.” ’ ” (Young, supra, 160 Cal.App.4th at p. 82.) Accordingly, the family
court did not abuse its discretion in denying Appellant’s RFO to reopen
Appellant’s case in chief.19
IV. DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on
appeal. (Cal. Rule of Court, rule 8.278(a)(2).)
19 Substantively, the family court could have denied the RFO on the basis
that Appellant wanted to reopen his case in chief. By the time he filed the
RFO, Appellant had received the proposed statement of decision, pursuant to
which he knew that he had met his burden under section 7611,
subdivision (d). Thus, there was no basis on which Appellant could have
wanted to reopen his case in chief.
23
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
24