Lee v. Pasulka CA2/6 ( 2024 )

Filed 2/26/27 Lee v. Pasulka CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
SARAA DORIS LEE, 2d Civil No. B320206
(Super. Ct. No. D401660)
Plaintiff and Respondent, (Ventura County)
v.
TROY PASULKA,
Defendant and Appellant.
Troy Pasulka appeals from a child custody order awarding
Saraa Lee sole custody of their daughter and determining
Pasulka’s visitation rights. Pasulka contends the trial court
should have granted him sole custody, erred in denying him
attorney’s fees, and erred in denying sanctions against Lee. We
affirm.1
1 We deny Pasulka’s motion to strike the respondent’s brief
and request for sanctions.
FACTS AND PROCEDURAL HISTORY
Pasulka and Lee were previously in a relationship and had
one daughter, T.P., together. In June 2021, Lee requested a
domestic violence restraining order (DVRO) protecting her and
T.P. from Pasulka. Lee also indicated she wanted a child custody
and visitation order.
At the DVRO hearing in November 2021, the parties
presented evidence, including several videos and Pasulka’s
testimony. The trial court denied the DVRO, finding Lee did not
meet her burden of proof to support a DVRO pursuant to Family
Code2 section 6320. However, the court temporarily granted sole
legal and physical custody to Lee. As to Pasulka’s visitation
rights, the court ordered supervised visits up to three times per
week, up to an hour per visit in person or on Zoom, a video
conferencing platform. T.P. was four years old at the time.
The court explained that these visits would have to be
supervised because Pasulka exhibited conduct over the course of
the hearing that caused the court to be “concerned with the
emotional well[-]being of [T.P.].” The court noted that one video
reflected his “lack of emotional control and profanity in the
presence of the child,” and showed that he “neglect[ed] that
crying, screaming child, and took no action to stabilize the child.”
The court further noted that Pasulka had said “harsh things”
about Lee in the presence of T.P., which upset her greatly.
The court stated that the finality of the temporary custody
and visitation orders would depend on a future review hearing
regarding compliance with the orders. The court instructed
Pasulka that if he wanted “to evolve from sole legal and
2 Further unspecified statutory references are to the
Family Code.
2
supervised visitation back to the joint custody scenario, [he has]
to demonstrate trust” and “demonstrate that if the child is in
[his] presence, that [he and Lee] can communicate and get along
greatly.” The court further instructed Pasulka that by the next
review hearing, he needed to obtain a letter showing he
participated in counseling and demonstrate he could have
positive interactions with T.P. during visits.
Lee moved to vacate the denial of her DVRO or,
alternatively, secure a new trial or reconsideration of the denial
of her DVRO. Pasulka moved for attorney’s fees and costs as the
prevailing party in the DVRO proceedings. He also moved for
sanctions, arguing that Lee’s motion for reconsideration was
frivolous and in bad faith. The trial court denied all motions.
The court described its decision regarding the DVRO as a
“contested issue.” And while it acknowledged there was “a basis
for the motion to reconsider,” the court ultimately disagreed with
Lee’s position. It noted: “There were definitely facts alleged by
each side that needed to be played out, litigated, determined, and
that takes time.” The court also found that the parties were of
“equal potential income scenarios” and ordered them to bear their
own costs.
On March 14, 2022, the trial court held the review hearing
regarding compliance with the temporary custody and visitation
orders. The court found that Pasulka had not exercised any of
his visitation rights since the November 2021 DVRO hearing.
The court ordered Pasulka’s visitation with T.P. to be facilitated
by a licensed therapist in a therapeutic setting. With those
modifications, the court ordered that the custody and visitation
orders from November 2021 remain in full force and effect.
3
DISCUSSION3
Custody and visitation order
Pasulka contends he should have been granted sole custody
and that the trial court “disregarded” the law. We disagree.
We review the trial court’s custody determination for an
abuse of discretion. (Holsinger v. Holsinger (1955) 44 Cal.2d 132,
135.) We will not disturb the ruling unless the court exercised its
discretion in an arbitrary, whimsical, or capricious manner. (In
re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1343.)
Here, Pasulka does not demonstrate the trial court
exercised its discretion in an arbitrary or capricious manner. Nor
does he demonstrate that the court disregarded the law. In
granting Lee sole custody, the court considered extensive
evidence of the parties’ relationship, including videos and
Pasulka’s testimony. At the conclusion of the DVRO hearing, the
court explained it was awarding sole legal and physical custody
to Lee. The court ordered supervised visitation based on
Pasulka’s behavior exhibited throughout the proceedings and the
videos. Furthermore, during the review period, Pasulka did not
participate in supervised visits with T.P. or obtain a letter
showing he participated in counseling as ordered by the court.
There was no abuse of discretion in ordering sole custody to Lee.
3 Lee moved to dismiss the appeal on the grounds that the
appeal was untimely and the disentitlement doctrine precluded
the appeal. We deny these motions. We construe the notice of
appeal as filed from the final custody and visitation order and
review the appeal on the merits.
4
Attorney’s fees
Pasulka also contends the trial court erred in denying him
attorney’s fees as the prevailing party in the DVRO proceedings.
We again disagree.
Section 6344, subdivision (b) provides: “After notice and a
hearing, the court, upon request, may issue an order for the
payment of attorney’s fees and costs for a prevailing respondent
only if the respondent establishes by a preponderance of the
evidence that the petition or request is frivolous or solely
intended to abuse, intimidate, or cause unnecessary delay.” We
review the trial court’s denial of attorney’s fees for an abuse of
discretion. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495,
1509.)
The trial court did not abuse its discretion in denying
Pasulka attorney’s fees. As the prevailing respondent in the
DVRO proceedings, Pasulka was required to show that the DVRO
was “frivolous or solely intended to abuse, intimidate, or cause
unnecessary delay.” (§ 6344, subd. (b).) He did not carry his
burden. As the trial court observed, the determination of
whether there was sufficient evidence to sustain a DVRO was a
“contested issue” that required the facts to be “played out,
litigated, determined” in a multi-day court proceeding.
Sanctions
Pasulka argues the trial court erred in denying sanctions
(§ 271) against Lee for her unsuccessful motion for
reconsideration of the DVRO denial. We review the trial court’s
denial of monetary sanctions for an abuse of discretion. (In re
Marriage of Blake & Langer (2022) 85 Cal.App.5th 300, 308.)
We conclude there was no abuse of discretion. In her
motion for reconsideration, Lee argued the court’s denial of her
5
DVRO was based, in part, on legal authority that was now
depublished. A change in law is an appropriate basis for a
motion for reconsideration. (See State of California v. Superior
Court (Flynn) (2016) 4 Cal.App.5th 94, 100; Code Civ. Proc.,
§ 1008, subd. (c).) As the trial court recognized, there was “a
basis for the motion to reconsider.” Because he did not show the
motion for reconsideration was frivolous, there was no abuse of
discretion in denying Pasulka’s request for sanctions.4
DISPOSITION
The judgment is affirmed. Lee shall recover her costs on
appeal.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
YEGAN, Acting P. J. CODY, J.
4 We deny Lee’s request for judicial notice filed October 24,
2023, and Pasulka’s request for judicial notice filed December 11,
2023, because they are not relevant to our decision. (Soukup v.
Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21.)
We also deny Pasulka’s requests for judicial notice received on
February 5 and 13, 2024, and filed on Feb 13, 2024, because the
documents were not considered by the trial court and are not
relevant to our decision.
6
William R. Redmond and R. Paul Kawai, Commissioners
Superior Court County of Ventura
______________________________
Troy Pasulka, in pro. per., for Defendant and Appellant.
Law Offices of J. Ellie Sweeny and J. Ellie Sweeney for
Plaintiff and Respondent.