Marriage of Willis v. Costa-Willis ( 2023 )

Filed 7/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of RICKY ALLAN
WILLIS, JR., and SHAUNA COSTA-
WILLIS.
RICKY ALLAN WILLIS, JR.,
G061528
Respondent,
(Super. Ct. No. 17D009225)
v.
OPINION
SHAUNA COSTA-WILLIS,
Appellant.
Appeal from an order of the Superior Court of Orange County, Thomas S.
McConville, Judge. Affirmed in part, reversed in part.
Quinn & Dworakowski, David Dworakowski and Stephane Quinn for
Appellant.
Law Office of Paul D. Toepel Jr., and Paul D. Toepel Jr., for Respondent.
* * *
INTRODUCTION
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Family Code section 3044, subdivision (a) (section 3044(a)) creates a
rebuttable presumption that an award of sole or joint physical custody or legal custody of
a child to “a party seeking custody” who has perpetrated domestic violence against “the
other party seeking custody” within the past five years is detrimental to the child’s best
interests. The issue presented by this appeal is whether the presumption of section
3044(a) arises in a proceeding for issuance of a domestic violence restraining order
(DVRO) when neither party is seeking custody or a modification of a custody or
visitation order.
We conclude the presumption of section 3044(a) does not arise in that
situation. Our conclusion is based on the plain language of section 3044(a), which by its
terms applies only when a party is seeking custody of the child and is reinforced by other
statutory provisions.
In the present case, Shauna Willis appealed from an order granting her
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request for a DVRO against her ex-husband, Ricky Willis. She contends the family
court erred under section 3044(a) because the court maintained joint physical custody by
keeping in place a visitation order which had granted each approximately equal custody
time with their child, T.W. Based on our construction of section 3044(a), we affirm the
order keeping the visitation order in place because neither Ricky nor Shauna requested a
modification of custody. Because the presumption of section 3044(a) did not arise, the
family court erred by awarding Shauna sole legal and physical custody of T.W. Although
Ricky did not appeal, we reverse that part of the order in the interest of justice.
1
All statutory references are to the Family Code.
2
As is customary in family law cases, we refer to the parties by first
names. We intend no disrespect.
2
FACTS AND PROCEDURAL HISTORY
Ricky and Shauna were married in June 2010. They have one child, who
was born in 2011. In November 2017, Ricky filed a petition for dissolution of their
marriage, and a judgment of dissolution (the judgment) was entered in March 2022. In
section 4 of the judgment, entitled “Child Custody and Visitation,” (some capitalization
omitted), Ricky and Shauna were granted joint legal and physical custody of T.W. In
subsection 4.2 of the judgment entitled “Physical Custody,” the judgment provides a
detailed “custodial timeshare” schedule specifying when each party would have “physical
custody” of T.W. The judgment does not set forth a visitation schedule separate from the
specified custodial timeshare schedule. The visitation schedule granted Ricky and
Shauna each about the same amount of custody time with T.W.
In May 2022, Shauna filed a request for a DVRO against Ricky. She
sought a no contact order, a stay away order, an order for batterer’s intervention program,
and attorney fees. In a declaration attached to the request for a DVRO, Shauna stated that
since the judgment of dissolution was entered, Ricky had “launched a relentless
campaign of harassment” against her that included hundreds of abusive text messages and
“countless talking parent messages.” Shauna declared that Ricky had appeared at T.W.’s
extracurricular activities during Shauna’s custodial time, referred to Shauna as “Sugar
Tits,” and repeatedly told her to “f*** off” and “go f*** herself.”
On the request for a DVRO, Shauna did not check the box to indicate she
wanted the court to change child custody. She did not mention custody in either her
declaration or memorandum of points and authorities in support of her request. Shauna
did not request that the DVRO protect T.W.
On May 27, 2022, the family court issued a temporary restraining order
against Ricky. On the order, next to “Child Custody and Visitation,” the box for “Not
requested” was checked. The court scheduled a hearing on June 15, 2022, to determine
whether a permanent DVRO should issue.
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Ricky filed a response to the request for DVRO. He denied ever having
abused, harassed, or disturbed Shauna. In a supporting declaration, Ricky stated that
Shauna’s declaration contained many false allegations and misstatements and took his
text messages out of context.
At the outset of the hearing on June 15, 2022, the court announced, “I have
this on calendar today for a request for a domestic violence restraining order.” Ricky and
Shauna testified. At no point during the hearing did Shauna or her counsel request a
modification of custody or visitation. At the conclusion of the hearing, the court found
that Ricky “was the perpetrator of domestic violence” and that Shauna “was the victim of
the domestic violence.” The court issued a one-year DVRO that included a no-abuse
order, a stay-away order, a no-contact order, and an order that Ricky attend a 52-week
batterer intervention program.
After reciting its ruling, the court stated: “The minor was not listed as a
protected person. I haven’t heard any testimony that makes me believe that [Ricky]
poses a threat to the minor child. So it would be my inclination not to modify the
visitation order at this time.” Shauna’s counsel expressed his understanding that the
presumption under section 3044 “kicks in about fitness,” a hearing would have to be held
for Ricky to overcome that presumption, and that “[n]o evidence has been presented
regarding custody.” The court stated it was dealing with visitation and section 3044
relates only to custody. Ricky’s counsel argued that Shauna had not requested a change
in custody, “[i]t’s not before the court,” and “if she wants to request a modification to the
[custody] order, she needs to bring a motion to the court to do it.”
The family court concluded the presumption under section 3044(a) arose
and for that reason, sua sponte granted Shauna sole legal and physical custody of T.W.
After hearing argument and comments by counsel, the court stated: “There’s no box
checked regarding custody and visitation modifications. But a presumption has arisen
under [section] 3044 as it relates to legal custody. . . . I think I’m obligated under the
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code to modify custody at this point to the sole legal custody to [Shauna] until [Ricky]
overcomes the presumption.” The court also modified the custody order to grant Shauna
sole physical custody of T.W. but stated, “The visitation order is going to remain.” The
DVRO orders visitation in accordance with the judgment.
DISCUSSION
I. Standard of Review
We review orders granting or denying a DVRO, as well as custody and
visitation orders, under the abuse of discretion standard. (Salmon v. Salmon (2022) 85
Cal.App.5th 1047, 1054.) Whether the trial court applied the correct legal standard in
exercising its discretion is a question of law subject to de novo review. (Ibid.)
Interpretation of a statute is a legal question subject to de novo review. (People v. Ollo
(2021) 11 Cal.5th 682, 687.)
II. Section 3044(a)
Section 3044(a) states: “Upon a finding by the court that a party seeking
custody of a child has perpetrated domestic violence within the previous five years
against the other party seeking custody of the child, or against the child or the child’s
siblings, or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of
Section 3011 with whom the party has a relationship, there is a rebuttable presumption
that an award of sole or joint physical or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to the best interest of the child, pursuant to
Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of
the evidence.” (Italics added.)
For the presumption to be overcome, the court must make two findings.
First, the court must find “[t]he perpetrator of domestic violence has demonstrated that
giving sole or joint physical or legal custody of a child to the perpetrator is in the best
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interest of the child pursuant to Sections 3011 and 3020.” (§ 3044, subd. (b)(1).)
Second, the court must find the factors in section 3044, subdivision (b)(2) “on balance,
support the legislative findings in Section 3020.” (Id., subd. (b).) If the court determines
the presumption has been overcome, the court must make “specific findings” in writing
or on the record “on each of the factors in subdivision (b).” (Id., subd. (f)(1) & (2).)
III. The Presumption of Section 3044(a) Does Not Arise When No Party Is Seeking
Custody or a Modification of Custody
The family court found Ricky was a perpetrator of domestic violence yet
maintained the visitation order, which gave Ricky and Shauna each about equal parenting
time. Shauna argues the family court erred by failing to modify the judgment’s visitation
provision because that failure had the effect of maintaining joint physical custody.
It has been held that “an arrangement authorizing children to spend roughly
equal time with each parent [has been called] a joint physical custody arrangement.”
(Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 658 (Celia S.).) However, we need not
decide whether the effect of the family court’s decision in this case was to maintain joint
physical custody. The court did not err, even if it effectively maintained joint physical
custody, because no party sought a change in or modification of custody and, therefore,
the presumption of section 3044(a) never arose.
Whether the presumption of section 3044(a) arises when no party is seeking
custody or a change in custody is a matter of statutory interpretation. “We first consider
the words [used in section 3044(a)], as statutory language is generally the most reliable
indicator of legislation’s intended purpose.” (McHugh v. Protective Life Ins. Co. (2021)
12 Cal.5th 213, 227.) The plain meaning of the statute controls if the statutory language
is unambiguous. (Stirling v. Brown (2018) 18 Cal.App.5th 1144, 1155.)
The plain language of section 3044(a) is controlling. The first sentence of
section 3044(a) states the presumption arises “[u]pon a finding . . . that a party seeking
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custody of a child has perpetrated domestic violence within the previous five years
against the other party seeking custody of the child . . . .” (Italics added.) The word
“party” is subject to the restrictive modifier “seeking custody.” The statutory language is
unambiguous: The presumption under section 3044 arises only when a party is seeking
custody; if no party is seeking custody there can be no presumption.
In construing section 3044(a), we also consider the language of the entire
statute and the overall statutory scheme. (Reilly v. Marin Housing Authority (2020) 10
Cal.5th 583, 609; Stirling v. Brown, supra, 18 Cal.App.5th at p. 1155.) Other parts of
section 3044 reinforce our conclusion that the presumption of section 3044(a) does not
arise when no party is seeking custody or a change in custody. Subdivision (d)(1) of
section 3044 repeats the condition that a party must be seeking custody by stating, “For
purposes of this section, the requirement of a finding by the court shall be satisfied by,
among other things, and not limited to, evidence that a party seeking custody has been
convicted within the past five years . . . of a crime against the other party that comes
within the definition of domestic violence . . . .” (Ibid., italics added.)
Subdivision (g) of section 3044 reads: “In an evidentiary hearing or trial in
which custody orders are sought and where there has been an allegation of domestic
violence, the court shall make a determination as to whether this section applies prior to
issuing a custody order, unless the court finds that a continuance is necessary to
determine whether this section applies, in which case the court may issue a temporary
custody order for a reasonable period of time, provided the order complies with Section
3011 and 3020.” (Italics added.) “Thus, the court is required to determine whether
section 3044 applies whenever there is an evidentiary hearing or trial in which custody
orders are sought and domestic violence has been alleged.” (Noble v. Superior Court
(2021) 71 Cal.App.5th 567, 580, italics added.)
Subdivision (h) of section 3044 states: “In a custody or restraining order
proceeding in which a party has alleged that the other party has perpetrated domestic
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violence in accordance with the terms of this section, the court shall inform the parties of
the existence of this section and shall give them a copy of this section prior to custody
mediation in the case.” (Italics added.) Subdivision (h) requires the court to provide the
parties a copy of section 3044 only in cases involving custody mediation. Custody
mediation is required “[i]f it appears on the face of a petition, application, or other
pleading to obtain or modify a temporary or permanent custody or visitation order that
custody, visitation, or both are contested.” (§ 3170, subd. (a).) Custody mediation is not
required when no party is seeking custody or a change in custody. Thus, by negative
implication, section 3044, subdivision (h) means that in a restraining order proceeding in
which obtaining or modifying custody or visitation is not being sought, the court need not
inform the parties of section 3044 and provide them with a copy.
In construing a statute, we give its words “their ordinary, usual, and
commonsense meanings.” (Stirling v. Brown, supra, 18 Cal.App.5th at p. 1155.) To seek
means to go in search of, look for, request, ask for, or try to acquire. (Webster’s 3d New
Internat. Dict. (2002) p. 2055.) Neither Ricky nor Shauna was going in search of,
looking for, requesting, asking for, or trying to acquire custody or modification of
custody. Shauna sought only a DVRO. She did not request a modification of custody
with her request for a DVRO; neither her supporting declaration nor memorandum of
points and authorities requested a modification of custody; on the temporary restraining
order, next to “Child Custody and Visitation,” the box for “Not requested” was checked;
at the evidentiary hearing, her counsel never made a request to change custody; and at the
evidentiary hearing the family court stated, “There’s no box checked regarding custody
and visitation modifications.”
In addition, as Ricky argues, the family court did not refer the parties to
custody mediation, which would have been required by section 3170, subdivision (a) if it
appeared on the request for a DVRO that Shauna was requesting a modification of
custody or visitation and Ricky was contesting that request. Because neither Ricky nor
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Shauna was “a party seeking custody of the child” no rebuttable presumption arose under
section 3044(a) that an award of sole or joint physical or legal custody to Ricky would be
detrimental to the child’s best interest.
There are cases with language saying a court must apply the section
3044(a) presumption “‘in any situation in which a finding of domestic violence has been
made.’” (Celia S., supra, 3 Cal.App.5th at p. 661, quoting In re Marriage of Fajota
(2014) 230 Cal.App.4th 1487, 1498.) That proposition is broader than what the statutory
language permits, and we decline to follow it. Further, in both Celia S. and In re
Marriage of Fajota, at least one parent was seeking custody or modification of custody.
(Celia S., at p. 659, In re Marriage of Fajota, at p. 1490.) The same is true for other
cases stating the section 3044(a) presumption arises whenever a finding of domestic
violence has been made. (See Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 196
[request for DVRO and custody bifurcated for trial]; City and County of San Francisco v.
H.H. (2022) 76 Cal.App.5th 531, 538 [mother requested custody with request for
DVRO]; Noble v. Superior Court, supra, 71 Cal.App.5th 567, 575-576 [motion to modify
custody in marital dissolution action].) In none of those cases did the Court of Appeal
consider whether the section 3044(a) presumption arises when no party is seeking
custody or modification of custody. (See People v. Mendoza (2015) 240 Cal.App.4th 72,
81-82 [“Cases are not authority for propositions not considered”].)
Shauna argues there is no authority to support the proposition that the
presumption of section 3044(a) does not arise when no party is requesting custody or a
modification of custody. As we have explained, the statutory language, the most reliable
indicator of the legislation’s purpose, is itself such authority. Shauna also argues that her
request for a DVRO and supporting documents provided Ricky adequate notice that his
acts of domestic violence would trigger the rebuttable presumption of section 3044(a) and
cause a change in custody. But in her DVRO request and supporting documents, Shauna
never requested a modification of custody, which would be necessary for the presumption
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of section 3044(a) to arise. At the DVRO hearing, the issue of custody did not arise until
after the family court had recited its ruling. Ricky’s counsel then argued that Shauna had
not requested a change in custody and “if she wants to request a modification to the
[custody] order, she needs to bring a motion to the court to do it.”
At oral argument, Shauna’s counsel argued adequate notice of a possible
change in custody had been given because any competent family law attorney would
know that the presumption under section 3044(a) would arise at a DVRO hearing. Our
decision must be based upon an interpretation of section 3044(a) under principles of
statutory interpretation and in light of reasoned authority.
IV. The Family Court Erred by Modifying the Judgment to Award Shauna Sole Legal
Custody of T.W.
Ricky argues that because the presumption of section 3044(a) did not apply
we should reverse the family court’s order vesting sole legal and physical custody with
Shauna. Ricky did not file a notice of appeal. “As a general rule, where only one of
several parties appeals from a judgment, the appeal includes only that portion of the
judgment adverse to the appealing party’s interest, and the judgment is considered final
as to the nonappealing parties.” (Estate of McDill (1975) 14 Cal.3d 831, 840.) The
general rule has an important exception: When the part of the judgment appealed from is
so “interwoven and connected” with the rest of the judgment such that the appeal
involves a consideration of the whole judgment, a reversal should extend to the entire
judgment. (Ibid.) “The appellate court, in such cases, must have power to do that which
justice requires and may extend its reversal as far as may be deemed necessary to
accomplish that end.” (Ibid.)
“‘The test of whether a portion of a judgment appealed from is so
interwoven with its other provisions as to preclude an independent examination of the
part challenged by the appellant is whether the matters or issues embraced therein are the
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same as, or interdependent upon, the matters or issues which have not been attacked.’”
(In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 690.)
In the present case, the issue of joint physical custody and the issue of legal
custody are so interwoven and connected that both must be considered together. For both
joint legal custody and physical custody, the dispositive question is whether the
rebuttable presumption of section 3044(a) arose or not. Our conclusion that the
presumption of section 3044(a) never arose in these DVRO proceedings means the family
court did not err by keeping the visitation order in place but did err by granting Shauna
sole physical custody. Considering the importance of legal custody and power that sole
legal custody gives to Shauna, we believe that justice requires us to reverse the award of
sole legal custody notwithstanding Ricky’s failure to file a notice of appeal.
DISPOSITION
That portion of the DVRO modifying the judgment’s joint legal and
physical custody provisions to award Shauna sole legal and physical custody is reversed.
In all other respects the DVRO is affirmed. Our decision is without prejudice to any
party seeking a change in custody or visitation. Respondent shall recover costs on
appeal.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOTOIKE, J.
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