Marriage of Fletcher and Berquist CA2/7

Filed 4/26/23 Marriage of Fletcher and Berquist CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re the Marriage of MICHAEL B317379
FLETCHER and LIA (Los Angeles County
BERQUIST-FLETCHER. Super. Ct. No. ND070627)
MICHAEL FLETCHER,
Appellant,
v.
LIA BERQUIST,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph M. Lipner, Judge. Reversed.
Michael Fletcher, in pro. per., for Appellant.
No appearance for Respondent.
___________________
Michael Fletcher appeals from the family court’s
postjudgment order granting in part Lia Berquist’s request for
order modifying custody (RFO), awarding her sole legal custody
of their then-13-year-old daughter Callista for the limited
purposes of obtaining a passport and ensuring Callista attends
counseling with a therapist. Fletcher contends the family court
erred in denying his request to cross-examine Berquist at the
hearing, and further, Berquist failed to serve her RFO and
supporting exhibits on him. Fletcher also argues there was no
change in circumstances to support modification of custody in
favor of Berquist because, according to Fletcher, Berquist
physically assaulted Callista in April 2021. We agree with
Fletcher’s first contention—the family court erred in denying
Fletcher’s request to cross-examine Berquist. We reverse and
remand for the court to hold an additional evidentiary hearing at
which each party may cross-examine the other party.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Marital Dissolution
A judgment dissolving Berquist and Fletcher’s marriage
was entered on June 8, 2016 after a trial on reserved issues.1
The judgment included final orders for custody and visitation,
awarding the parents joint legal and physical custody of their two
daughters, Cressida (now an adult) and Callista. The parenting
plan provided roughly equal parenting time, with Callista
residing with Fletcher from Sunday morning until Wednesday or
1 Judge Michael J. Convey entered the judgment of
dissolution and final custody order.
2
Thursday morning during the school year, and shared holidays
and vacations.
On August 16, 2018 the trial court2 granted Berquist’s
request for a three-year domestic violence restraining order
(DVRO) requiring Fletcher not to contact Berquist and to stay at
least 100 yards away from Berquist and her home, vehicle,
workplace, and school, except for brief and peaceful contact to
effectuate custody transfers.
B. Berquist’s Request To Modify Custody
On July 13, 2021 Berquist filed an RFO seeking
modification of the family court’s judgment on custody and
visitation, to award her sole legal custody of Callista and physical
custody and visitation “as determined by [the] court,” in light of
Fletcher’s alleged refusal to allow Callista to live with Berquist.3
On the RFO form, Berquist attested that Fletcher “frequently
removes Callista from an after school program on [Berquist’s]
days, interfering with [Berquist’s] ability to make plans for and
with [Callista],” and when Berquist notified Fletcher of dates in
September 2021 when she wanted to take Callista on vacation,
2 Judge Joseph Lipner entered the 2018 domestic violence
restraining order and presided over this matter through the filing
of this appeal.
3 Fletcher’s designation of the record on appeal omitted the
RFO. On our own motion we augment the record to include the
following documents filed in the family court: (1) Berquist’s
July 13, 2021 RFO; (2) Berquist’s July 13, 2021 request to renew
the 2018 DVRO; (3) the family court’s October 5, 2021 minute
order continuing the hearing on the RFO; and (4) Berquist’s
October 14, 2021 supplemental declaration in support of the
RFO. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
3
Fletcher “refused and threatened to ‘keep’ the child from
[Berquist].”
In her supporting declaration, Berquist averred Callista
had been living almost exclusively with Fletcher for the past
three months following an incident on Saturday, April 10, 2021.
On that date, Callista was staying with Berquist but was
unhappy because she had been grounded. Callista called
Fletcher and asked him to pick her up. Berquist told Callista and
Fletcher she could not go with him, and Berquist wanted Callista
“to calm down and for us to have a rational conversation before
she left.” Instead, according to Berquist, Fletcher “told [Callista]
that I was holding her ‘hostage’ and that if I did not let her leave,
he was going to call 911. He called the police who came to my
home. The police determined that Callista was not in danger and
had not been physically abused. When the police left, [Fletcher]
was waiting outside my home about 50 yards from my front door
. . . . Callista ran from my house into his car. He took her to his
home. He has not returned her since and has not encouraged her
to come home.”
Berquist declared that after the April 10 incident, Callista
would randomly visit with Berquist and joined Berquist on a trip
to visit Callista’s maternal grandparents in June 2021, but she
refused to live in Berquist’s home. Berquist believed Fletcher
was “intentionally alienating” Callista, and further, there were
“historical behaviors where he speaks poorly of me and pits my
children against me.” Berquist made an appointment for Callista
to see a therapist in June 2021, but Callista was sick on the day
of the appointment, and Fletcher did not bring her to a
rescheduled appointment. Berquist did not trust Fletcher to
make decisions for Callista, and since April 2021 Fletcher had
not taken Callista to the doctor, dentist, or therapist, and had
4
missed two orthodontic appointments. Berquist stated, “I don’t
want to force [Callista] against her will to live in my home.
However, I don’t want to just let her go because I fear that she is
being emotionally abused at her father’s and might be making
decisions under duress.”
On July 13, 2021 (the same day she filed the RFO),
Berquist filed a request to renew the 2018 DVRO. Fletcher did
not file a responsive declaration to the RFO or to the request to
renew the DVRO. Instead, on October 5, 2021 (the date
originally noticed for a hearing on both of Berquist’s requests)
Fletcher filed a request for order seeking to modify guideline
child support to recognize that Callista now resided with him
95 percent of the time. Fletcher’s request stated, “On April 13,
2021[4] [Berquist] assaulted Callista . . . and refused to allow
Callista to leave which required me to call 911. Once the police
opened the door Callista ran from [Berquist’s] apartment and
refused to return because of her mother’s physical abuse. Since
that day Callista has resided with me 95% of the time. Under
California law [Berquist] cannot have custody and may only have
supervised visitation and must pay child support . . . .” Fletcher
also requested an order quashing Berquist’s RFO on the ground
Berquist failed properly to serve the RFO. On October 5, 2021
the family court, on its own motion, continued the hearing on
Berquist’s RFO and her request to renew the DVRO to November
8, 2021. The court’s October 5 minute order on Berquist’s RFO
reflects that Fletcher was “served in open court by the deputy
sheriff with a full and complete copy of the Request for Order re
4 We assume Fletcher was referring to the incident on
Saturday, April 10, 2021. There are no allegations or evidence of
a separate incident on Tuesday, April 13, 2021.
5
Modification of Custody and Visitation filed by Petitioner on
July 13, 2021.”
On October 14, 2021 Berquist filed a supplemental
declaration in support of her RFO in which she alleged Fletcher
was alienating Callista from her, manipulating and neglecting
Callista, and refusing to coparent. Berquist stated Callista’s
behavior had “change[d] dramatically” since April 2021, and
Callista “has almost no respect for me or my house rules” or for
teachers and other authority figures. Callista had a new habit of
criticizing Berquist, telling Berquist she was “‘mean,’” and
expressing disdain for maternal relatives. Berquist wanted to
obtain a passport for Callista so Berquist could take her on a
vacation with Berquist’s family, but Fletcher refused to sign the
passport paperwork.
Berquist attached multiple screenshots of Callista’s text
message exchanges with Fletcher. In one message sent in
December 2019, Callista asked Fletcher to sign her passport
application, and he responded, “You are going [nowhere] with
those people . . . now you are grounded and no texting[.]” In
January 2020 Fletcher wrote, “Listening to your mother is going
to hurt u.” In February 2021 Callista asked Fletcher, “Am I
gonna be able to bring my phone to ur house[?],” and she added,
“I promise I won’t call my mom or text her a lot.” Fletcher
responded, “Do u promise[?]” When Callista agreed, he stated, “I
will trust u,” and he allowed her to bring her phone.
C. The Hearing on the RFO
At the hearing on the RFO on November 8, 2021, Berquist
requested sole legal and physical custody of Callista. Berquist
testified there were no problems with Callista’s behavior before
the April 10, 2021 incident, but since that time Fletcher
6
manipulated Callista’s feelings about spending time at Berquist’s
home and “instill[ed] fear in anything that [didn’t] serve him.”
Fletcher also made health-related decisions for Callista without
consulting Berquist, and he would not cooperate in taking
Callista to therapy. Although Berquist was able to bring Callista
to a court-approved therapist on three occasions, Callista had
learned to “[work the] system” by going to Fletcher’s home to
avoid appointments. Fletcher also refused to allow Callista to
obtain a passport. Berquist hoped to take Callista to Mexico for a
family vacation, but Fletcher refused.
Fletcher testified that Berquist physically attacked Callista
on April 10, 2021,5 kicking her in the stomach. Fletcher received
calls from Callista “screaming, saying her mother will not allow
her to leave.” Fletcher called 911, and the police sent a police
officer to Berquist’s door. Callista “got up and ran for her life” to
Fletcher’s car, which he had driven to Berquist’s house. Fletcher
testified there was police body camera footage showing Callista
screaming and crying in his car. He represented that “[i]n that
police report—I think it is page 8—the officer testifies that
[Berquist] kicked my daughter in the stomach.”6
5 Fletcher testified the incident occurred on April 2, 2021,
but we assume Fletcher was referring to the April 10 incident.
6 The family court asked Fletcher if the court received the
police report, and Fletcher responded it was attached to the RFO.
The report was not attached to the RFO, but it was attached to
Berquist’s request to renew the DVRO. In the police report, the
officer does not state that Berquist kicked Callista. To the
contrary, Berquist made a statement to the police officer that
Callista “became physical with me & kicked me in the stomach &
knee” when she told Callista she was about to lose her phone.
7
Fletcher testified that after the April 10 incident, Callista
remained with Fletcher “100 percent of the time,” and Fletcher
“had to pay her to go” to Berquist’s house. Fletcher never
prevented Callista from living with Berquist and even “begged
her to go be with her mother,” but Callista was “afraid of her
mom.” Fletcher argued the “status quo” for custody was that he
had custody of Callista 95 percent of the time, and Berquist “has
no contact with [Callista] other than when I make her go see her
mother one night a week.” Fletcher argued, “you can’t change a
custody order based upon her attacking my daughter.”
The family court asked Fletcher to address “all these sad
texts between you and your daughter where it says things like
. . . [‘]Please, can I have my Phone? I won’t call mom.[’]” Fletcher
responded Berquist had cherrypicked his messages to paint an
incomplete picture. Fletcher also testified he had not been an
impediment to therapy; rather, he went to the therapist and
begged the therapist to see Callista but the therapist told him
Berquist was lying (presumably about Callista resisting seeing
the therapist). As to Berquist’s request to obtain a passport for
Callista, Fletcher testified Callista “doesn’t have a passport
because she wasn’t going to go with [Berquist] anywhere,” and as
an abuser, Berquist had “no say” under the law to request
additional custody.
After hearing the parties’ testimony, the family court
ordered that the existing judgment for joint physical custody
would remain in place, admonishing the parties they needed to
ensure Callista spent time with each parent. The court found
The responding officer reported that Callista “stated she was
okay and that her mother did not hit her,” but Callista “refused
to step out of her bedroom during the conversation” with police.
8
Berquist’s RFO did not seek any specific modification of physical
custody or the visitation schedule, and the court was not
prepared to order Callista to live with Berquist. The court
ordered that joint legal custody would remain in place, subject to
two modifications: the court awarded sole legal custody “for the
purposes of picking a therapist and trying to ensure that
[Callista] goes to the therapist” and “for purposes of applying
for[,] obtaining[,] and holding the passport.” The court set a
hearing on Berquist’s renewed request for sole custody in March
2022 and appointed minor’s counsel for Callista. The court also
granted Berquist’s request to renew the 2018 DVRO for five
years. The court entered separate minute orders on the RFO and
the request to renew the DVRO.
Fletcher timely appealed from the order modifying
custody.7
7 Fletcher’s notice of appeal stated he was appealing from an
order that “modified an existing custody order and gave partial
custody to [Berquist],” and his civil case information statement
attached only the minute order on the RFO. Neither submission
referred to the family court’s separate order renewing the DVRO.
Therefore, although Fletcher in his opening brief argues the
family court abused its discretion in granting Berquist’s motion
to renew the DVRO, that order is outside the scope of this appeal.
(Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173 [“‘“[W]here
several judgments and/or orders occurring close in time are
separately appealable . . . , each appealable judgment and order
must be expressly specified—in either a single notice of appeal or
multiple notices of appeal—in order to be reviewable on
appeal.”’”].)
9
DISCUSSION
A. Governing Law on Modification of Custody
“Under California’s statutory scheme governing child
custody and visitation determinations, the overarching concern is
the best interest of the child.” (Montenegro v. Diaz (2001)
26 Cal.4th 249, 255.) In determining the best interest of the
child, the court must consider “all relevant factors, including the
child’s health, safety, and welfare, any history of abuse by one
parent against any child or the other parent, and the nature and
amount of the child’s contact with the parents.” (In re Marriage
of Brown & Yana (2006) 37 Cal.4th 947, 955-956.)
“Once the trial court has entered a final or permanent
custody order reflecting that a particular custodial arrangement
is in the best interest of the child, ‘the paramount need for
continuity and stability in custody arrangements—and the harm
that may result from disruption of established patterns of care
and emotional bonds with the primary caretaker—weigh heavily
in favor of maintaining’ that custody arrangement. [Citation.] In
recognition of this policy concern, we have articulated a variation
on the best interest standard, known as the changed
circumstance rule, that the trial court must apply when a parent
seeks modification of a final judicial custody determination.” (In
re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956.)
Under the changed circumstance rule, “a party seeking to modify
a permanent custody order can do so only if he or she
demonstrates a significant change of circumstances justifying a
modification. . . . [A court] should preserve the established mode
of custody unless some significant change in circumstances
indicates that a different arrangement would be in the child’s
best interest.” (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256;
10
see In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089-
1090 [family court’s modification of custody order from joint to
sole custody was abuse of discretion because of lack of evidence of
changed circumstances].)
We apply an abuse of discretion standard to review of
custody and visitation orders and review the factual findings as
to the child’s best interest for substantial evidence. (In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32; In re Marriage of
Fajota (2014) 230 Cal.App.4th 1487, 1497.) We review questions
regarding interpretation of the Family Code de novo. (Chalmers
v. Hirschkop (2013) 213 Cal.App.4th 289, 300; Elsenheimer v.
Elsenheimer (2004) 124 Cal.App.4th 1532, 1536.)
B. The Trial Court Erred in Denying Fletcher’s Request To
Cross-examine Berquist
1. Right to examine parties in family court hearings
Family Code8 section 217, subdivision (a), states, “At a
hearing on any order to show cause or notice of motion brought
pursuant to this code, absent a stipulation of the parties or a
finding of good cause . . . , the court shall receive any live,
competent testimony that is relevant and within the scope of the
hearing and the court may ask questions of the parties.”9
California Rules of Court, rule 5.113(b) provides that the family
8 Further statutory references are to the Family Code.
9 A “‘request for order’” in a family law proceeding has the
same meaning as a “‘motion’” or “‘notice of motion.’” (Cal. Rules
of Court, rule 5.92(1)(A); see In re Marriage of Swain (2018)
21 Cal.App.5th 830, 840, fn. 7 [there was “no question” that
section 217 applied to a hearing on a postjudgment request for
order to terminate spousal support].)
11
court “must consider” six factors, in addition to the rules of
evidence, in making a finding of good cause to refuse to allow live
testimony under section 217: “(1) Whether a substantive matter
is at issue—such as child custody, visitation (parenting time),
parentage, child support, spousal support, requests for
restraining orders, or the characterization, division, or temporary
use and control of the property or debt of the parties; [¶] (2)
Whether material facts are in controversy; [¶] (3) Whether live
testimony is necessary for the court to assess the credibility of the
parties or other witnesses; [¶] (4) The right of the parties to
question anyone submitting reports or other information to the
court; [¶] (5) Whether a party offering testimony from a non-
party has complied with [section 217, subdivision (c)]; and [¶] (6)
Any other factor that is just and equitable.” “If the court makes a
finding of good cause to exclude live testimony, it must state its
reasons on the record or in writing,” including “those factors on
which the finding of good cause is based.” (Cal. Rules of Court,
rule 5.113(c).)
Section 217 was adopted in the wake of Elkins v. Superior
Court (2007) 41 Cal.4th 1337 (Elkins), in which the Supreme
Court invalidated a local rule requiring parties in marital
dissolution proceedings to present their case by written
declarations in lieu of live testimony (other than cross-
examination of declarants) because the procedure was
inconsistent with the hearsay rule and other fundamental rules
of evidence and civil procedure. (See In re Marriage of Swain
(2018) 21 Cal.App.5th 830, 838 (Marriage of Swain) [tracing the
12
development of section 217 in response to Elkins].)10 The Elkins
court emphasized that “a party’s opportunity to call witnesses to
testify and to proffer admissible evidence is central to having his
or her day in court,” and “‘[s]ubject to such obvious qualifications
as the court’s power to restrict cumulative and rebuttal evidence
[citation], and to exclude unduly prejudicial matter [citation],
denial of this fundamental right is almost always considered
reversible error.’” (Elkins, at p. 1357.)
In Marriage of Swain, supra, 21 Cal.App.5th at page 832, a
husband filed a request for order seeking termination of spousal
support because he had retired and the wife was receiving a
portion of the husband’s retirement benefits that roughly equaled
the amount of spousal support. The wife did not oppose the
request or appear at the hearing, but she filed an updated income
and expense declaration. (Id. at p. 834.) The husband objected to
10 The Legislature adopted section 217 in 2010 to implement
recommendations made by the Elkins Family Law Task Force,
which the Judicial Council established in response to the
Supreme Court’s suggestion in Elkins, supra, 41 Cal.4th at
page 1369, footnote 20, that the Judicial Council establish a task
force to “study and propose measures to assist trial courts in
achieving efficiency and fairness in marital dissolution
proceedings and to ensure access to justice for litigants, many of
whom are self-represented.” (Judicial Council of Cal., Elkins
Family Law Task Force, Final Report and Recommendations
(Apr. 2010) p. 9; see Sen. Com. on Judiciary, Analysis of Assem.
Bill No. 939 (2009-2010 Reg. Sess.) as amended June 17, 2010,
p. 1 [“This bill would make various changes to family law
proceedings thereby implementing a number of the legislative
recommendations issued by the Elkins Family Law Task Force”];
accord, Marriage of Swain, supra, 21 Cal.App.5th at p. 840.)
13
the court’s consideration of the declaration without his ability to
cross-examine the wife. (Id. at p. 834.) In its statement of
decision reducing but not terminating the husband’s spousal
support obligation, the family court considered the declaration
over the husband’s objection. (Id. at pp. 833-835.) Division Two
of this district concluded the court erred in considering the wife’s
declaration, explaining “the lack of an opportunity to cross-
examine the declarant deprives the opposing party of important
evidence concerning the credibility of the declarant and the
reliability of testimony in the declaration,” and absent a
stipulation or a finding of good cause to limit live testimony, the
proper remedy under section 217 was the exclusion of the wife’s
declaration. (Id. at pp. 841-842.) Because the wife’s declaration
should have been excluded, there was nothing in the record
rebutting the husband’s showing of changed circumstances, and
on this basis the Court of Appeal reversed the order denying the
husband’s request to terminate spousal support, and it ordered
the spousal support obligation terminated. (Id. at pp. 842-844.)
2. Denial of Fletcher’s request to examine Berquist
requires reversal of the order modifying custody
Early during the November 8, 2021 combined hearing on
the RFO and the request to renew the 2018 DVRO, Fletcher
called Berquist as a witness. The family court asked Fletcher to
make an offer of proof, and Fletcher responded that he wanted to
“take [Berquist] through the allegations contained in the DRVO
petition to ascertain the basis for the allegations.” Later in the
hearing the court stated, “You are entitled to cross-examine her.”
However, after the hearing shifted from the parties’ arguments
concerning the DVRO to consideration of the RFO, and after
Berquist testified about Callista’s behavioral changes following
14
the April 10 incident as evidence of parental alienation, Fletcher
again requested he be allowed to examine Berquist. Fletcher
stated, “I’m asking can I call [Berquist] so we can go through
these allegations . . . . Put her under oath, and let’s ask her, did
you punch your daughter on April [10th]?” The court then asked
Berquist (who had already been sworn), “Did you, Ma’am?”
Berquist responded, “No.” Fletcher asked again, “Can I put her
under oath and ask?” The court replied, “No. This isn’t—nobody
made a request for an evidentiary hearing on the RFO.” Despite
his continuing objections, the court did not allow Fletcher to
cross-examine Berquist.
The family court’s ruling preventing Fletcher from
questioning Berquist about the RFO was legal error. Berquist
submitted two declarations in support of the RFO and testified at
the hearing to facts supporting her request for sole custody.
Fletcher was entitled under section 217 to present live testimony,
including to cross-examine Berquist. (Marriage of Swain, supra,
21 Cal.App.5th at p. 842 [“Under section 217, absent a stipulation
or a finding of good cause, [husband] had a right to any live
testimony that was ‘relevant and within the scope of the
hearing,’” including “the opportunity to cross-examine [wife]
concerning statements in her [d]eclaration on which the trial
court might rely.”].) The parties here did not stipulate to a
waiver of their right to live testimony, and the court did not make
a finding of good cause to proceed on Berquist’s declarations. Nor
can we conclude good cause existed as a matter of law where a
substantive matter—child custody—was at issue, and there were
material controverted facts and questions of credibility. (Cal.
Rules of Court, rule 5.113(b)(1)-(3).)
Section 217 and California rule of court 5.113 do not
require, as the family court erroneously found, that Fletcher had
15
to request an evidentiary hearing in order to cross-examine
Berquist about her RFO. (Cf. § 217, subd. (c) [“A party seeking to
present live testimony from witnesses other than the parties shall,
prior to the hearing, file and serve a witness list with a brief
description of the anticipated testimony.” (Italics added.)].)
Although some appellate courts have held a party can forfeit the
right to cross-examine the opposing party, these cases are
inapposite because Berquist was present, sworn, and testified,
and Fletcher requested to cross-examine her. (See In re Marriage
of Binette (2018) 24 Cal.App.5th 1119, 1128 [under section 217
husband forfeited right to live testimony, explaining “[i]f husband
wanted to testify or examine wife, he could have informed the
court of his intent to do so. He did not.”]; see also In re Marriage
of Deamon (2019) 35 Cal.App.5th 476, 483 [where wife failed to
secure the presence of ex-husband living abroad by serving a
notice to appear in connection with husband’s section 281 motion
for sanctions, wife “effectively forfeited her right to present live
testimony by not providing any live witnesses whose testimony
the family court could ‘receive’ pursuant to requirements of
section 217, subdivision (a)”].)
Although the Court of Appeal in Marriage of Swain, supra,
21 Cal.App.5th at page 842 concluded the proper remedy for
denial of an opportunity to cross-examine a declarant was to
exclude the declaration, Fletcher has not requested this remedy
in the family court or on appeal. We therefore reverse the family
court’s order granting Berquist’s RFO and remand for the court
to hold an additional evidentiary hearing at which Fletcher and
Berquist are allowed an opportunity to cross-examine each other.
16
The court retains discretion to consider current circumstances in
ruling on the RFO.11
DISPOSITION
The November 8, 2021 order modifying custody to award
Berquist sole legal custody of Callista for the purposes of
obtaining a passport and selecting and seeing a therapist is
reversed. The matter is remanded for the family court to hold an
additional evidentiary hearing and to allow cross-examination of
the opposing party upon request. Fletcher is entitled to his costs
on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
11 Because we reverse the order modifying custody, we do not
reach Fletcher’s additional contentions other than his argument
he was not served with Berquist’s RFO and supporting exhibits.
Substantial evidence supports the family court’s finding Fletcher
was served, including the October 5, 2021 minute order
continuing the hearing on the RFO, which states Fletcher was
served in open court.
17