IN RE MARRIAGE OF GARCIANos. D057115, D057776

In re the Marriage of DONDREA MARIE and VINCENT PAUL GARCIA.
DONDREA MARIE GARCIA, Appellant,
v.
VINCENT PAUL GARCIA, Respondent.

Court of Appeals of California, Fourth District, Division One.
Filed July 25, 2011.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McINTYRE, J.

In these consolidated appeals, Dondrea Marie Garcia appears in propria persona to challenge orders dealing with custody of her two children with Vincent Paul Garcia. Dondrea contends that the family court abused its discretion by: (1) setting an evidentiary hearing without sufficient notice; (2) relying on a Family Court Services (FCS) report that was prepared without adequate investigation; (3) relying on a preliminary Child Protective Services (CPS) report; (4) denying her request for a custody evaluation; and (5) failing to consider all relevant factors in making its decision. Dondrea also moves to augment the record with four documents. We grant in part and deny in part Dondrea's motion to augment and affirm the family court's orders.

FACTUAL AND PROCEDURAL BACKGROUND

Dondrea and Vincent were married in 1997 and separated in 2004. They have two children together, Kyle and Jacob. In September 2009, Vincent applied for an order to show cause to modify a prior court order which granted primary physical custody of Kyle and Jacob to Dondrea, required him to pay child support, and set a visitation schedule for him. Vincent requested primary physical custody and an order permitting him to move the children to Los Angeles, where he resided, because Dondrea was verbally and physically abusive to them.

Dondrea opposed Vincent's request for modification, contending that she had always been the primary caregiver for Kyle and Jacob, it was not in the best interest of the children to move to Los Angeles, and Vincent did not participate in or support counseling needed for their children. Dondrea also denied Vincent's allegations of abuse.

In November 2009, Vincent and Dondrea participated in an ultimately unsuccessful mediation conference with FCS. Julie Taylor, the FCS mediator, provided a report to the court stating that she spoke with a San Diego County Child Welfare Services social worker who investigated a recent report regarding the family. The social worker informed Taylor that Dondrea acknowledged using corporal punishment with the children and stated that she cannot stop herself from hitting them. Taylor informed the court that she was not able to speak with Lisa French, a therapist working with the children, but that it was unlikely that any information from French would change her recommendations. Based on information gathered during the assessment, Taylor recommended that Vincent have primary physical custody of Kyle and Jacob and that Dondrea have supervised visits with them.

In January 2010, Vincent filed an ex parte request for temporary custody of Kyle and Jacob pending the hearing on the order to show cause. Vincent alleged that he filed a CPS report against Dondrea because Kyle informed him that Dondrea bit him, put him in a choke hold and told him that he would be in serious trouble if he told his father about the incident. Vincent also stated that CPS urged him to seek temporary custody. CPS filed a confidential report with the court stating that it was in the process of investigating the allegations of abuse and recommended that Dondrea have supervised visits with the children until the investigation was completed. At the ex parte hearing, the court provided Dondrea's counsel with an opportunity to review the CPS report. Dondrea's counsel opposed Vincent's request for temporary custody and requested instead that the hearing on the order to show cause be moved forward. The family court granted Dondrea's request and advanced the hearing day by about a month. It also granted Vincent's request for temporary custody.

At the hearing on the order to show cause, Dondrea testified and called three additional witnesses, Lisa French, Mark Spurlock, and Polly Milford. French and Spurlock, therapists that worked with Kyle and Jacob, both testified that they have never seen indications of abuse and believed that the children were safe while in Dondrea's care. Milford, a personal acquaintance of Dondrea, also testified that she spent a significant amount of time with Dondrea and her children and had never seen signs of abuse.

At the conclusion of the hearing, Vincent requested that the court adopt the recommendations set forth in the FCS report. Dondrea's counsel, on the other hand, argued that it was not in the best interest of the children to live with Vincent, and suggested that "maybe a custody evaluation is the answer." The court, having considered the FCS and CPS reports, and evidence presented at the hearing, adopted the recommendations in the FCS report. It granted primary physical custody of Kyle and Jacob to Vincent, provided Dondrea with supervised visits, and required Dondrea to pay child support to Vincent.

In March 2010, Dondrea sought to modify the family court's earlier findings and order. She claimed that Vincent was not following the court's prior orders because he did not allow her to participate in decisions concerning the children, had not enrolled in court-ordered counseling, and refused to give her unsupervised visits with the children. Dondrea informed the court that she was working to change her behavior and wanted unsupervised visitation. Dondrea also asked the court for an independent custody evaluation and to reduce her required child support payments. After hearing the matter, the family court denied Dondrea's requests.

Dondrea filed two separate notices of appeal. The first appeal challenges the family court's February findings and order following the order to show cause hearing in which the court granted primary physical custody of Kyle and Jacob to Vincent, and provided Dondrea with supervised visitation. The second appeal challenges the March order denying her request to modify the court's prior findings and order.

DISCUSSION

I. Preliminary Considerations

A. Motion to Augment the Record

Dondrea filed a motion to augment the record on appeal to include: (1) an FCS report, dated January 28, 2009; (2) an FCS report, dated November 20, 2009; (3) a CPS report, dated January 12, 2010; and (4) a Department of Justice Grievance Decision, dated August 24, 2010. Vincent does not oppose the motion.

It appears that the two FCS reports were part of the family court's record; accordingly, we grant Dondrea's request to augment with respect to those documents. However, we deny the request to augment with respect to the remaining two documents. The request is denied as to the CPS report because that document is already a part of the record before us. Additionally, we must deny the request as to the Department of Justice Grievance Decision as it was not produced in the proceedings below and was prepared after the matter was heard by the family court. (See In re Zeth S. (2003) 31 Cal.4th 396, 410, 412-413; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)

B. Scope of Appeal

Dondrea claims that the family court abused its discretion concerning three separate orders: (1) the January order after the ex parte hearing granting temporary custody of the children to Vincent, residing in Los Angeles; (2) the February order after the order to show cause hearing granting primary physical custody of the children to Vincent; and (3) the March order denying Dondrea's request to modify visitation and child support. We requested that the parties address the issue of appealability in their briefs.

1. January Order

Dondrea raises arguments concerning the family court's order after the January 13, 2010, ex parte hearing granting temporary custody of the children to Vincent in Los Angeles. "A temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial. [Citations]. Code of Civil Procedure section 904.1 bars appeal from interlocutory judgments or orders `other than as provided in paragraphs (8), (9), and (11). . . .' [Citation.] Temporary custody orders are not listed in any of those paragraphs. Therefore this statute precludes the appealability of such orders." (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559-560.) Here, the January 13, 2010, temporary custody order is not appealable as it was interlocutory and superseded by the court's February order. Thus, we do not consider Dondrea's arguments concerning the family court's January 13, 2010, order.

2. February Order

In regard to the family court's February order granting primary physical custody of the children to Vincent, we conclude that such order is an appealable order after final judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); see In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 705, fn. 1, disapproved on other grounds by In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) [finding that family court's ruling on mother's request for modification of judgment as to custody and visitation was "appealable as an order made after a judgment"]; Montenegro v. Diaz (2001) 26 Cal.4th 249, 253-254 [exercising jurisdiction over an appeal taken from an order entered after a contested hearing on custody].)

3. March Order

Dondrea addressed the issue of appealability of the family court's March order in her opening brief. However, the substance of her brief only addresses issues concerning the court's February order granting physical custody of the children to Vincent and permitting him to move them to Los Angeles. Dondrea did not renew these issues at the March hearing. Rather, the March hearing was limited to issues concerning visitation and child support as Dondrea informed the court that she was not seeking physical custody. Accordingly, we do not address the family court's March order denying Dondrea's request to modify visitation and child support as such matters were not discussed in her brief.

II. Issues on Appeal

A. Shortened Notice on Order to Show Cause Hearing

Dondrea contends that the family court abused its discretion by setting an evidentiary hearing with only eight days notice because the shortened notice did not provide her adequate time to dispute the CPS report or subpoena certain witnesses, including the FCS mediator and CPS social workers. We disagree with Dondrea's contentions.

To support her position, Dondrea cites In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar). However, the circumstances in Seagondollar were significantly different from the circumstances of this case and do not support her contention. The court in Seagondollar concluded that the family court erred in a number of ways, such as in:

"(1) failing to require [the mother] to file a responsive pleading to [the father's] March OSC or to file a counter-OSC requesting custody and a move-away; (2) granting [the mother]'s request to hear her October OSC on shortened notice without good cause; (3) refusing to hear [the father]'s motion to quash before the hearing on [the mothers]'s October OSC; (4) refusing to trail or continue the matter for three days to permit [the father]'s rebuttal expert to testify; and (5) failing to issue an order defining in detail the purpose and scope of the Evidence Code section 730 evaluation." (Seagondollar, supra, 139 Cal.App.4th at p. 1127.)

In these circumstances, the Seagondollar court concluded that the "cumulative effect" of the family court's errors "was to deny [the father] a fair hearing." (Seagondollar, `supra, 139 Cal.App.4th at p. 1127, italics added.) Significantly, in Seagondollar, the family court erred by granting the mother's request for an order shortening time over the father's objection and denying the father's motion to quash the order to show cause for failure to provide the requisite notice. (Id. at pp. 1123-1124.)

Here, unlike in Seagondollar, Dondrea herself requested to advance the hearing on the order to show cause. Specifically, at the ex parte hearing on Vincent's request for temporary custody, Dondrea's counsel requested to move the hearing forward and did not object to the hearing date suggested by the court. Moreover, Dondrea made the request to move the hearing date after her counsel had an opportunity to review both the CPS and FCS reports. At this time, Dondrea's counsel knew of the potential witnesses for the hearing, yet agreed to the date without informing the court that she needed additional time to subpoena them. Therefore, Dondrea forfeited her right to object to the shortened notice as she herself requested it after having an opportunity to review the FCS and CPS reports.

Dondrea's claim that she did not have the ability to subpoena witnesses is also unavailing as she did, in fact, call three witnesses at trial, and there is nothing in the record indicating that she even attempted to subpoena the FCS mediator or CPS social workers. Accordingly, we conclude that the family court acted within its discretion by advancing the order to show cause hearing.

B. FCS Report

Dondrea contends the family court abused its discretion by: (1) relying on an FCS report that was "incomplete" because it did not address the impact of a change in custody on the children, and the FCS mediator did not interview the children and their therapists and teachers; and (2) improperly "rubber stamp[ing]" the FCS report without considering all relevant evidence. We disagree.

To support her contention that the court improperly relied on an "incomplete" FCS report, Dondrea cites to In re Marriage of Bryant (2001) 91 Cal.App.4th 789 (Bryant). However, the court in Bryant did not consider the issue of whether the court can rely on an "incomplete" FCS report or the information that must be included within that report. Rather, the court's holding in Bryant, which has since been disapproved, pertained to the court's consideration of the reasons for a parent's request to move with the children. (Id. at pp. 793-796, disapproved in LaMusga, supra, 32 Cal.4th at pp. 1097, 1099.) Accordingly, Dondrea's reliance on Bryant is misplaced.

Next, Dondrea cites to Family Code section 3044, subdivision (e), for the proposition that the family court did not consider all relevant evidence. That section states: "[w]hen a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties." Here, in making its custody determination, the family court relied on more than the FCS report. Rather, it considered evidence presented by Dondrea, including testimony from two treating therapists and an acquaintance of the family. Thus, contrary to Dondrea's suggestion, the family court did not merely "rubber stamp" the FCS report. We conclude that the family court acted well within its discretion in considering the FCS report along with evidence submitted by the parties, including the testimony of both parents.

C. CPS Report

Dondrea next complains that the family court erred in relying on a preliminary CPS report when granting primary physical custody of the children to Vincent. Dondrea claims that the court should have either ordered CPS to complete its investigation prior to the order to show cause hearing or waited to hold the hearing until the investigation was completed. We disagree.

Again, Dondrea fails to recognize that she requested to expedite the order to show cause hearing after having an opportunity to review the CPS report, which clearly stated that the investigation concerning allegations of abuse was not completed. Moreover, the family court did not solely rely on the preliminary CPS report in making its custody determination. Rather, the family court considered the FCS report and testimony from both parents and the children's therapists. We must uphold a court's custody order if it can be "reasonably concluded that the order . . . advance[s] the `best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32; see also In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 758-759.) "`An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal.'" (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) We find that, even without the CPS report, there was ample evidence in the record from which the family court could reasonably conclude that it was in the best interests of the children to grant primary physical custody to Vincent; accordingly, we find no abuse of discretion.

D. Custody Evaluation

Dondrea contends that the family court erred by denying her request for a custody evaluation. We disagree.

Family Code section 3111 (§ 3111) provides: "In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child." (Italics added.) The child custody evaluation under section 3111 "is an expert investigation and analysis of the health, safety, welfare, and best interest of children . . . ." (Cal. Rules of Court, rule 5.220(c)(3).) Among other things, it includes a meeting with each child and observations of parent-child interaction. (See Cal. Rules of Court, rule 5.220(d)(2)(C) & (e)(2)(B).) Although a family court may appoint a child custody evaluator, there is no authority requiring it to do so. (Harris v. Harris (1960) 186 Cal.App.2d 788, 801 [finding that, in view of a lengthy trial and extensive testimony, it was not an abuse of the family court's discretion to deny mother's request for appointment of a custody evaluator].)

Here, during closing argument at the order to show cause hearing, Dondrea's counsel suggested that "maybe a custody evaluation is the answer." Even if we construe this suggestion as a request, we conclude the family court acted within its discretion by not appointing an evaluator. Although not stated in the record, we infer that the family court, after having heard extensive testimony from the children's parents and therapists, determined that it was not in the children's best interest to appoint an evaluator at that time. Dondrea has not cited to and we find no authority requiring the family court to appoint a child custody evaluator. Dondrea's reference to Evidence Code section 730 is also unavailing as that section simply refers to appointment of "experts" and does not support her position. Accordingly, we find no abuse of discretion.

E. LaMusga Considerations

Lastly, Dondrea contends the family court abused its discretion because there is "no evidence that [it] performed an analysis of the LaMusga factors."

In LaMusga, the court set forth factors that the family court should consider when deciding whether to modify a custody order based on the custodial parent's request to move the children's residence, including: "the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p. 1101.)

"[A] reviewing court generally will leave it to the trial court to assess the detrimental impact of a proposed move in light of other relevant factors in determining what is in the best interest of the child." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 961.) Even where the trial court's ruling does not expressly enumerate the criteria considered, "the lack of such a statement does not constitute error and does not indicate that the court failed to properly discharge its duties. [Citation ['A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness'].]" (LaMusga, supra, 32 Cal.4th at p. 1093.)

Here, after an ex parte hearing, the family court granted Vincent's request for temporary custody of the children and thereby permitted him to move them to Los Angeles, where he resided. Thus, at the time of the subsequent order to show cause hearing, Vincent was the custodial parent seeking to make his temporary physical custody arrangement permanent. Although the family court did not specifically state that it considered the LaMusga factors, we must presume that it did. (See LaMusga, supra, 32 Cal.4th at p. 1093.) Moreover, LaMusga does not require that a court make specific findings as to the enunciated factors. Rather, LaMusga requires only that the court consider the factors that it deems relevant to a determination of the child's best interests. We have no reason to question whether the family court discharged its duty in considering the LaMusga factors as the record contains an ample basis for the family court to determine that it was in the best interests of the children to reside with Vincent in Los Angeles. Accordingly, we find no abuse of discretion.

DISPOSITION

The orders are affirmed. Vincent is awarded costs on appeal.

WE CONCUR.

HUFFMAN, Acting P. J.

AARON, J.


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