J.M. v. L.H. CA4/2

Filed 6/14/16 J.M. v. L.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
J.M.,
Plaintiff and Respondent, E061742
v. (Super.Ct.No. TED006074)
L.H., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bradley O. Snell,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
L.H., in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On July 15, 2015, defendant and appellant L.H. (Mother) was granted sole legal
and physical custody of the daughter (Daughter) she shares with plaintiff and
respondent J.M. (Father). Mother contends the family court violated her rights of due
process on (1) August 1, 2014, because the court was biased against Mother and
because the court did not provide Mother sufficient time to present her evidence; and
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(2) March 20, 2015, when the family court denied Mother’s request for an evidentiary
hearing. We affirm the judgments.
FACTUAL AND PROCEDURAL HISTORY
A. AUGUST 1, 2014
On March 28, 2014, the family court held a trial on Mother’s request to modify
child custody. The trial began at approximately 9:30 a.m. and continued until 4:20 p.m.
on that day. Mother called four witnesses who testified. The court calendared the
second day of trial for August 1, so Daughter could be present and be questioned.
On April 25, the family court held a hearing concerning modifying the August 1
trial date. The court scheduled Daughter’s interview for July 29, but kept the August 1
date on calendar. The time estimate for August 1 was three hours.
On July 29, the second day of trial commenced at 1:55 p.m. Father, who had
been testifying when trial adjourned on March 28, resumed his testimony. The Child
Custody Recommendation Counselor, who interviewed Daughter, also testified. The
trial adjourned at 4:19 p.m.
On August 1, the third day of trial commenced at 9:21 a.m. Mother testified.
Father was recalled and again testified. The family court denied Mother’s request to
modify child custody because the court found there was not a change of circumstances.
In regard to visitation, the court explained it did not “have time right now to truly work
over the significant changes to the current order,” but agreed that modifying the
visitation order to provide greater flexibility “makes sense.” The court set the visitation
issue for a review hearing on October 6.
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B. MARCH 20, 2015
On March 20, 2015, the family court held a hearing on two issues. First, the
court addressed child support arrears. Father was sworn-in as a witness and provided
testimony about the arrears. The family court considered an audit by the Department of
Child Support Services, which included an arrears breakdown, and marked it as Exhibit
1.
Mother had two volumes of exhibits that “involve[d] transcripts and . . . much of
the history of this case.” Mother explained that the arrears were problematic because
she should not have lost custody of Daughter. Mother asserted she only lost custody of
Daughter because she was falsely accused of abusing Daughter. Mother argued, “I lost
custody because they said that I abused her, that she was—it’s all here in the transcripts.
Nobody has ever given me my day in court.” The court responded, “You’ve had plenty
of days in court, and you’ve exhausted your appeals.” Mother had previously been
designated a vexatious litigant. Mother said that, in 2007, “[i]t took [her] 13 months to
get back into court” after Daughter was removed.
The family court responded, “You’ve been fighting the system for years. And I
know you feel like you’ve been victimized. And I know you don’t want to accept that
the decisions that were made back then were, in the eyes of the court, the right
decisions. You might find discrepancies that you feel like prove what you’re trying to
say. But the reality is, sitting here today, on March 20th, 2015, everything that’s
happened before was done the right way. All right? I can’t go back and consider it
differently, so I’m not going to.”
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Mother said to the court, “But the rulings are not right.” Mother continued, “I’ve
lost everything because I was accused of domestic violence. Why can’t I address that?”
The family court responded, “I guess you can address it in the proper forum. And you
might want to vent—I mean, I don’t know how I can help, ma’am. But this isn’t that
forum.”
As to the issue of arrears and Mother being unable to access the court to adjust
the child support, the family court looked at the history of the case. The court explained
Mother had raised the issue of child support in 2009, but surmised that possibly because
she failed to file an Income and Expense Declaration, the matter was taken off calendar.
Mother tried to file a motion to adjust the child support on August 2, 2010, but was
prevented from doing so due to being a vexatious litigant. The court explained, “The
challenge I have is I don’t know what your income was back on August 2nd of 2010,
because I didn’t get the Income and Expense Declaration.” Mother explained that she
filed a tax return in 2010 but didn’t have any income.
Mother’s child support had been set at $1,300 per month. In November 2014,
the family court modified the child support to $350 per month. Father offered for
Mother’s child support to be $350 for the 96 months she failed to pay support; $350
multiplied by 96 months is $33,600, plus interest. Father explained he simply wanted
the matter resolved and did not want to return to court for a hearing involving tax
returns and bank statements.
Mother responded that she and Father, in 2009, had agreed Mother would pay for
Daughter’s transportation in lieu of child support. Father resides in Arizona, and
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Mother resides in California. The court found there was no written agreement, so an
agreement for Mother to pay for transportation in lieu of child support did not exist.
The family court modified the child support to $350 going back to July 1, 2009.
The court found $43,812 would have been owed during that period. Mother had made a
payment of $1,230.60, and there were credits from Aflac and a tax offset for the
amounts of $1,205, $115.34, and $102. The family court calculated Mother’s principal
arrearages at $42,364. The court calculated interest at 10 percent per annum, as agreed
to by the parties, which totaled $4,236. The court set the arrears at $46,600.
Second, the court addressed the allegation that Father was denying Mother
visitation. Father explained Mother was supposed to have Daughter the second
weekend of every month unless there were school functions or other activities that
weekend. Father asserted Mother was not willing to change weekends in order to
accommodate Daughter’s school functions or other activities—that Mother always
wanted the second weekend of the month regardless of Daughter’s schedule. Father
suggested Mother come to Arizona and see Daughter participate in the various
activities. Father explained the activities were things such as a school dance and a
friend’s birthday party.
Mother said Daughter was spending time with Daughter’s boyfriend—not at
school functions or other activities. Mother said she wanted Daughter to visit the
second weekend of every month, unless there was a school function.
The court ordered Daughter to visit Mother one weekend per month, and it would
be the second weekend of the month, unless there were a school event or other activity
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Daughter wanted to attend, in which case a different weekend of the month would be
selected.
Mother asked what form she needed to complete in order to raise the issue of
fraud on the court. Mother said, “[Y]ou said there is a different form [sic] to bring up
all this stuff that I say is wrong[.] What is the form[?]” The court said it did not
understand what form Mother was discussing. Mother responded, “Because you said
there was no fraud on the court because of what it is. So what form do I have to raise
to—” The court replied, “Forum, not form. Forum, meaning—I don’t know. Maybe
there’s a group out there of people who feel like they’ve been violated in court. The
forum—this is what we’ve just been discussing . . . .”
C. JULY 15, 20151
On July 15, 2015, the family court heard Father’s motion to relinquish his
parental rights. The court allowed Father to relinquish his rights and granted Mother
sole legal and physical custody of Daughter. The court awarded Father visitation with
Daughter at Daughter’s discretion.
DISCUSSION
A. CONTENTION
Mother contends the family court violated her rights of due process on
(1) August 1, 2014, because the court was biased against Mother and because the time
1 This court takes judicial notice of one of the July 15, 2015, minute orders filed
in the superior court case. The minute order of which we take judicial notice has as the
hearing “Ex-Parte Hearing re: Mod Ch.Cust/Temp Ords/Minor to be heard Granted
filed by [L.H.] represented by pro/per.” (All caps. omitted.)
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estimated for trial (three hours) was the only amount of time the court gave for
presenting evidence that day; and (2) March 20, 2015, when the trial court denied
Mother’s request for an evidentiary hearing.
In Mother’s Appellant’s Opening Brief, she “prays for a fair hearing in proving
the falsity of this case.” Mother explains that she is “asking to remand March 20, 2015
evidentiary hearing to bring in all the facts of the falsity.” (Sic.)
B. MARCH 20, 2015
Mother writes in her Appellant’s Opening Brief, in regard to the March 20
hearing, that the trial court “denied mother’s due process rights [again], violated her due
process by denying her a trial after an all day trial was scheduled, denying mother the
opportunity to complete or even offer her presentation of evidence and/or offer rebuttal
evidence to show the falsity of this case, and it’s fundamentally unfairness when the
transcripts and medical reports’ show the evidence of, opposing counsel . . . and minor’s
counsel . . . lied about material facts.” (Sic.) Mother cites to (1) the first page of this
court’s prior tentative opinion, which concerned an order from 2012; and (2) the first
page of another of this court’s prior tentative opinions, which concerned an order from
2012.
It appears Mother is not taking issue with the trial court’s rulings on arrears and
visitation, which were the topics of the March 20 hearing. Rather, Mother is faulting
the trial court for not also holding an evidentiary hearing on the issue of fraud. Due
process requires Father be notified of the scope and nature of the hearing. (See In re
Marriage of Ryall (1984) 154 Cal. App. 3d 743, 750; see also In re Michael D. (1981)
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116 Cal. App. 3d 237, 245.) The March 20, 2015, hearing concerned child support
arrears and visitation. Father filed an order to show cause and affidavit for contempt
related to Mother’s arrears. Mother filed a request for an order directing the family
court to enforce its visitation orders. Because the noticed subject matter of the hearing
was arrears and visitation, we cannot fault the family court for not holding a hearing on
the issue of fraud—fraud was not within the scope of the hearing that day. Therefore,
the family court was correct in not addressing it.
To the extent Mother wanted the family court to overrule prior orders of the
family court and prior opinions of this court, the family court does not have that
authority. (Payne v. City of Perris (1993) 12 Cal. App. 4th 1738, 1742 [“‘one trial court
judge may not reconsider and overrule a ruling of another judge’”]; Auto Equity Sales,
Inc. v. Superior Court of Santa Clara County (1962) 57 Cal. 2d 450, 456 [a court of
inferior jurisdiction must follow the decisions of the court of higher jurisdiction].) So,
again, we cannot fault the family court for not taking evidence on the issue of fraud. In
sum, we conclude the family court did not err.
C. AUGUST 1, 2014
Mother contends the family court was biased against her and did not provide her
sufficient time to present evidence. At the August 1 hearing, the family court denied
Mother’s request to modify the custody order, and set Mother’s request to modify the
visitation order for review in October 2014.
If Mother is correct that the family court was biased against her, then the remedy
would be to reverse the ruling and conduct a new hearing on the issue of modifying
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child custody (Code Civ. Proc., § 657, subd. (1); Haluck v. Ricoh Electronics, Inc.
(2007) 151 Cal. App. 4th 994, 1009). If Mother is correct that the family court denied
her a sufficient opportunity to present her evidence, then the remedy would again be to
reverse the ruling and conduct a new hearing on the issue of modifying child custody.
(In re Sara D. (2001) 87 Cal. App. 4th 661, 673; In re Matthew P. (1999) 71 Cal. App. 4th
841, 844.)
On July 15, 2015, the family court granted Mother sole legal and physical
custody of Daughter. Thus, there is no relief that this court can provide to Mother—
Mother has already obtained the relief she was seeking, which was custody of Daughter.
Accordingly, the August 1, 2014, issue is moot. (In re Jessica K. (2000) 79 Cal. App. 4th
1313, 1315 [issue is moot when no effective relief can be provided].)
In Mother’s Appellant’s Opening Brief, she writes, “This process has caused
extreme irreparable financial loss, harm and hardship to mother and her children.” To
the extent Mother is seeking monetary damages for the alleged judicial bias or due
process issues, this appeal is not the proper procedural vehicle for such relief. As stated
ante, the remedy, if bias or a due process violation existed, would be a new hearing.
However, a new hearing would be unnecessary in this case because Mother has already
been granted sole legal and physical custody of Daughter.
Mother asserts the issue is not moot because it is an issue of public importance.
(People v. Harris (1993) 14 Cal. App. 4th 984, 989 [a moot issue may be reviewed if the
issue is of continuing public importance].) Mother does not explain why this is an issue
of public importance, and Mother fails to explain in what way the family court was
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biased against her. Additionally, Mother does not reconcile the court’s alleged bias
with the court granting Mother sole legal and physical custody of Daughter. We note it
was the same commissioner who conducted the August 1, 2014, hearing; the March 20,
2015, hearing; and the July 15, 2015, hearing; so the same commissioner who
conducted the August 1 hearing granted Mother sole custody on July 15. Due to the
lack of information and explanation relating to how this is an issue of public
importance, we find Mother’s “public importance” argument to be unpersuasive.
DISPOSITION
The judgments are affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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