Marriage of Kouvabina and Veltman CA1/3 ( 2024 )

Filed 1/31/24 Marriage of Kouvabina and Veltman CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of ELENA
KOUVABINA and JACOB VELTMAN.
A165033
ELENA KOUVABINA,
(San Mateo County
Appellant, Super. Ct. No. 17-FAM-01346)
v.
JACOB VELTMAN,
Respondent.
Elena Kouvabina appeals from the trial court’s April 8, 2022 statement
of decision concerning custody and visitation. She primarily contends the
court erred by selecting — and then by denying her multiple motions to
disqualify — the child custody evaluator (evaluator). We affirm.
BACKGROUND
Kouvabina and Jacob Veltman — both attorneys — married in 2010,
had a child in 2012, and separated in 2017. Kouvabina filed a petition for
dissolution in 2017, and Veltman thereafter filed a request for order
concerning child custody. Ultimately, the trial court ordered a child custody
evaluation (evaluation), and both parties submitted two proposed evaluators;
in June 2018, the court selected Dr. Michael Kerner, who had been proposed
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by Veltman. The parties executed a waiver pursuant to People v. Sanchez
(2016) 63 Cal.4th 665 and stipulated the child custody evaluation report
(report) could be admitted into evidence.
In opposing Veltman’s request for order, Kouvabina alleged his health
impacted his ability to care for their child. The trial court’s order appointing
the evaluator indicated the report was to provide a “comprehensive
examination of the health, safety, welfare, and best interests of the child” and
recommendations regarding various issues, including “timeshare limitations
to the father’s parental availability regarding his medical diagnosis.”
The evaluation began in June 2018, but it soon was delayed due to a
discovery dispute over Veltman’s medical records. The evaluation resumed in
May 2019, and Kerner issued his report in July 2019. Among his
recommendations were that the parties share joint legal and physical
custody, with a rotating timeshare. But he declined to opine about Veltman’s
health or to make recommendations regarding health-related limitations on
his timeshare. Kouvabina objected to the report, and the trial court set the
matter for trial in February 2020.
The trial was repeatedly delayed and began in September 2021.
Although the trial court initially anticipated a two-day trial, in the end it
lasted five days due, in large part, to Kouvabina.1 After considering the
testimony of the parties, witnesses, experts, and the evaluator; other
evidence presented by the parties; closing arguments; and objections to the
tentative decision, the trial court issued its statement of decision. The court’s
1 The trial court ordered the courtroom clerk to track the amount of
time used by each party — Kouvabina used approximately thrice as much as
Veltman. At trial, as here on appeal, the parties represented themselves.
(Veltman began representing himself in January 2019, and Kouvabina began
representing herself soon thereafter.)
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orders largely mirrored Kerner’s recommendations, albeit with some
differences. Kouvabina appealed from the statement of decision.2
DISCUSSION
Kouvabina urges us to reverse the child custody order and to remand
for retrial. Her contentions principally concern the evaluator and his report.
She also alleges various other errors. We address her arguments and find
none persuasive.
I.
In a contested custody proceeding, a trial court may appoint an
evaluator to conduct an evaluation “where the court determines it is in the
best interest of the child.” (Fam. Code, § 3111, subd. (a); further
undesignated statutory references are to this code; rule 5.220(b); In re
Marriage of Winternitz (2015) 235 Cal.App.4th 644, 649 (Winternitz).)3
Although evaluations are often given great weight (In re Marriage of Adams
& Jack A. (2012) 209 Cal.App.4th 1543, 1563), they are not conclusive. It is
for the court to weigh the evidence — including the report — and determine
what orders are in the child’s best interests. (In re Marriage of C.D. & G.D.
(2023) 95 Cal.App.5th 378, 386 [court not “ ‘mere rubber-stamp’ ”].) We
2 Statements of decision are generally not appealable; we exercise our
discretion to construe the appeal as having been filed after entry of the April
25, 2022 judgment. (See Cal. Rules of Court, rule 8.104(d)(2); further
undesignated rule references are to these rules.)
3 At oral argument, Kouvabina asserted the Legislature abrogated
Winternitz in Senate Bill No. 594 (2015–2016 Reg. Sess.), which amended
section 3111. But she acknowledged she did not raise that argument in her
briefing; nor can we find it in her objections to the trial court’s proposed
statement of decision. In any event, we think it is more accurate to say the
Legislature responded to reasoning on which we do not rely. (Assem. Com.
on Judiciary, Analysis of Sen. Bill No. 594 (2015–2016 Reg. Sess.) as
amended June 11, 2015, pp. 1, 3–4 [discussing Winternitz].)
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review custody orders for abuse of discretion and factual findings for
substantial evidence, and we are “required to uphold the ruling if it is correct
on any basis.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).)
We review evidentiary rulings for abuse of discretion. (Winternitz, at p. 653.)
At the outset, Kouvabina contends the trial court abused its discretion
by selecting Kerner as evaluator instead of one of her proposed candidates.
But she concedes Kerner previously conducted over 450 evaluations, and
there were differences in availability and location between Kerner and her
candidates. The record also indicates the court was aware of Kerner’s
qualifications, and it selected him after considering all proposed candidates.
No abuse of discretion appears. (Burgess, supra, 13 Cal.4th at p. 32.)
Nor did the trial court err by admitting Kerner’s report. Kouvabina
argues the report’s age at the time of trial rendered it “obsolete” and
“unreliable.” The court acknowledged the report was two years old by the
time of trial but nonetheless concluded, after hearing testimony, there’d been
no major change in circumstances as to the family dynamic. For example, the
parties resided in the same cities, and the child attended the same school.
And multiple witnesses — including Kouvabina and Kerner — testified
extensively about the report’s conclusions at trial. On this record, the court
did not abuse its discretion by admitting the report, and it could consider the
report’s age in determining what weight to accord the evidence. (Winternitz,
supra, 235 Cal.App.4th at p. 653.)
Finally, Kouvabina contends the trial court erred by denying her
multiple motions to disqualify Kerner and exclude his report. Her first
motion alleged Kerner failed to disclose conflicts of interest, and her second
motion argued he failed to comply with the order appointing him as
evaluator, violated rules governing evaluations, and was biased. After a
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hearing, the court declined to disqualify Kerner for bias or conflicts of
interest, but it deferred resolution of the remaining claims until trial.
After considering the evidence presented at trial, the court again declined to
disqualify Kerner. Although “what standard of review applies to a court’s
ruling on a motion for removal of the evaluator” is unresolved, courts have
generally applied an abuse of discretion standard. (In re Marriage of
Adams & Jack A., supra, 209 Cal.App.4th at p. 1564; Winternitz, supra,
235 Cal.App.4th at p. 652.)
Rules 5.220(j)(10) and 5.225(l)(6) require evaluators to disclose conflicts
of interest. Kouvabina contends Kerner violated the rules by failing to
disclose his “ongoing professional and financial relationship” with the law
firm that represented Veltman when Kerner was appointed. She argued his
work in other cases in which the law firm was involved made him biased and
resulted in a report “heavily and obviously skewed in” Veltman’s favor. The
law firm argued Kouvabina’s counsel made no disclosure when proposing
evaluators, there was no legal basis to require such disclosure, and this was
merely a belated attempt to disqualify an evaluator because of dissatisfaction
with the report. The court nevertheless ordered the firm to disclose cases in
which Kerner served as an evaluator, and Kouvabina deposed Kerner on the
issue. After a hearing, the court declined to disqualify Kerner or exclude his
report for conflict of interest or bias.
Assuming the rules obligated Kerner to disclose matters where he
served as evaluator and where the law firm was involved, Kouvabina fails to
persuade that the failure to do so was disqualifying per se. Jolie v. Superior
Court (2021) 66 Cal.App.5th 1025 is distinguishable. The issue there was the
disqualification of a temporary judge, exercising full judicial powers, for
failing to make mandatory disclosures required by the Code of Judicial
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Ethics. (Jolie, at pp. 1032, 1043–1044.) After considering the breach and the
surrounding facts, the court determined disqualification was required. (Id.
at p. 1053.) But here, Kerner decides nothing; his report is for the court to
consider, alongside other evidence, in making its decision. (In re Marriage of
C.D. & G.D., supra, 95 Cal.App.5th at p. 386.) Moreover, the court heard and
considered the evidence and arguments about Kerner’s alleged bias. (To the
extent Kouvabina argues the court made erroneous evidentiary rulings, we
find no abuse of discretion. (Winternitz, supra, 235 Cal.App.4th at p. 653.))
After doing so, the court concluded the cases were not conflicts requiring
disclosure and, even if they were, any conflict was “negligible,” did not
constitute bias, and could be considered in assessing the weight of the
evidence. (§ 3111, subd. (a) [report may be considered despite
“nonsubstantive or inconsequential errors”].) Kouvabina’s allegations that
the report treated the parties’ concerns and allegations differently was a
matter the court was best suited to consider. The court did not err by failing
to disqualify Kerner or excluding his report on this basis.
Kouvabina next argues the trial court should have disqualified Kerner
due to his failure to opine about Veltman’s health. The order appointing the
evaluator indicated the report should include recommendations regarding
“the timeshare limitations to the father’s parental availability regarding his
medical diagnosis.” The report recounted Kouvabina’s concerns, quoted her
medical expert’s opinion, and described Veltman’s medical records and
history at length. But it declined to offer conclusions about Veltman’s health,
saying they should “only come through a medically sophisticated opinion.”
Nonetheless, before making custody orders, the court heard testimony from
medical experts and the parties, considered medical history and records, and
reviewed the report’s discussion of Veltman’s health. Moreover, the court
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correctly concluded that the report’s failure to offer an opinion on Veltman’s
health went to what weight the report should be given, not to whether it was
admissible. (Winternitz, supra, 235 Cal.App.4th at p. 653.) Kouvabina cites
no rule or statute Kerner violated; while she cites Mark T. v. Jamie Z. (2011)
194 Cal.App.4th 1115, that case is distinguishable. There, both the evaluator
and the trial court failed to address “the ultimate question.” (Id. at p. 1128.)
Here the court was presented with considerable evidence about Veltman’s
health and considered it in making custody orders.
Similarly, Kouvabina contends Kerner should have been disqualified
for failing to provide a “reasoned opinion” about where the child should go to
school. Not so. The order that appointed Kerner indicated the report should
contain recommendations regarding “school enrollment for the next school
year.” The report did address the “school issue” and make recommendations,
and the trial court issued orders about where the child would go to school. No
error appears.
Kouvabina further argues the trial court should have disqualified
Kerner because his “manner of questioning [the child] . . . was outside of any
bounds of professional conduct.” And she contends he also should have been
disqualified because his retainer agreement contained a provision making a
party who complains about him to a professional association responsible for
his incurred fees and costs.4 She cites no authority for disqualifying an
evaluator or excluding a report on either basis; the Commission on Judicial
Performance and arbitration decisions she cites are inapposite. Thus, the
court correctly concluded her objections go to the evidence’s weight.
4 This provision gives one pause and — as Veltman notes — it may be
unenforceable. But we have no occasion to address that issue.
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Finally, Kouvabina faults the trial court for not giving her more time to
present evidence on other bases for disqualification. We are unpersuaded.
After a judicially supervised conference, the court set the trial for two days.
Ultimately, however, the trial lasted five days, which the court attributed to
Kouvabina. She repeatedly argued from the witness stand and argued
evidentiary rulings; she was admonished numerous times and warned she’d
be held in direct contempt; and she was advised of time limits but chose to
present the case as she did, using “a substantial portion of her time to
attempt to re-argue previously litigated matters, or to ask duplicative or
irrelevant questions.” In the end, she was allowed to use three times the
amount of time as Veltman — almost 12.5 hours of trial time to four hours.
On this record, we cannot conclude the court abused its discretion.
(California Crane School, Inc. v. National Com. for Certification of Crane
Operators (2014) 226 Cal.App.4th 12, 19–20, 23; Evid. Code, §§ 765 [control
over mode of interrogation], 352 [exclusion of evidence requiring undue
consumption of time].) Moreover, the remaining issues are not bases for
disqualification or exclusion of the report; to the extent Kouvabina identified
any noncompliance with rules or statutes, the court concluded they were
“nonsubstantive or inconsequential.”5 (§ 3111, subd. (a).)
II.
Kouvabina contends the trial court failed to “independently assess” the
issue of Veltman’s health. To the contrary, the record demonstrates the court
5 Kouvabina contends the trial court improperly discounted her
rebuttal expert’s opinion when deciding whether to disqualify Kerner. Not
so. The court heard and considered her expert’s opinion about alleged
inadequacies in the evaluation. But the court found the expert’s testimony
“unpersuasive,” and we do not second-guess its determination. (Gamboa v.
Northeast Community Clinic (2021) 72 Cal.App.5th 158, 166.)
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took her concerns seriously and carefully considered the ample evidence
presented at trial. In particular, the court weighed and considered the
medical records she provided and heard testimony from various witnesses,
including both parties’ medical experts. The court simply found Veltman’s
evidence and expert more credible. We do not reweigh evidence or second-
guess the court’s assessment of credibility. (Gamboa v. Northeast Community
Clinic, supra, 72 Cal.App.5th at p. 166.) Kouvabina identifies no abuse of
discretion in the court’s custody orders, evidentiary rulings, or control of trial
proceedings. (Burgess, supra, 13 Cal.4th at p. 32; Winternitz, supra,
235 Cal.App.4th at p. 653; California Crane School, Inc. v. National Com. for
Certification of Crane Operators, supra, 226 Cal.App.4th at pp. 19–20, 23.)
Kouvabina next argues the trial court abused its discretion when it
barred “travel to Russia until further Court order.” She asserts the court
issued the ban without any notice in violation of her due process rights. Not
so. Kerner’s report contained recommended orders concerning travel with
the child, and the tentative decision contained proposed travel orders. In
Veltman’s objections to the tentative decision, he asked the court to order the
parties to obtain consent or a court order “before travelling to Russia, the
Ukraine, and to any country . . . where a state department travel advisory is
in effect.” Kouvabina later filed a motion seeking court authorization to
travel with the child to Moscow, Russia to visit maternal grandmother. In
opposition, Veltman noted “Russia is currently engaged in a major war with
Ukraine . . . . The state department has issued a ‘Level 4 – Do Not Travel’
warning with respect to travel to Russia.” He also expressed concerns about
the child’s safety while in Russia and her ability to return to the United
States. Kouvabina subsequently withdrew her request given the Russia-
Ukraine war, which had recently started. The court issued its statement of
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decision one month later. Given the foregoing, we can neither conclude the
court abused its discretion in making its travel orders nor that Kouvabina
lacked sufficient notice or opportunity to address the issue. (Burgess, supra,13 Cal.4th at p. 32.)
At trial, Kouvabina asked the trial court to find Veltman committed
domestic violence against her, which would have impacted custody. (§ 3044
[presumption against sole or joint custody where party committed domestic
violence within previous five years].) After hearing the evidence presented
throughout the trial, the court determined there was insufficient evidence to
support such a finding. Kouvabina contends the court erred. We disagree.
She principally faults the court for not allowing her to present additional
evidence. As previously discussed, the court did not abuse its discretion by
limiting time or presentation of evidence. (California Crane School, Inc. v.
National Com. for Certification of Crane Operators, supra, 226 Cal.App.4th
at pp. 19–20, 23.) She also argues the court erred in excluding a police report
as hearsay. Even assuming error, it was harmless. The court admitted other
evidence of the event precipitating the police report. The court found
Kouvabina’s evidence “unpersuasive and insufficient” and noted her
allegations lacked corroboration. We do not second-guess its credibility
determination. (Gamboa v. Northeast Community Clinic, supra,
72 Cal.App.5th at p. 166.)
Finally, Kouvabina argues the trial court’s orders concerning (1) each
party’s timeshare with the child, (2) where the child would go to school, and
(3) the parties sharing joint legal custody constituted an abuse of discretion.
We find no such abuse in the orders. (Burgess, supra, 13 Cal.4th at p. 32.)
DISPOSITION
The judgment is affirmed. Veltman is entitled to his costs on appeal.
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_________________________
RODRÍGUEZ, J.
WE CONCUR:
_________________________
FUJISAKI, Acting P. J.
_________________________
PETROU, J.
A165033
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