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Kringlie - Unpublished opinion of District 5 (Filed September 7, 2011) A finding based on suspicion or a hunch is not substantial evidence that support s a ruling that a child should have only therapeutic visitation with a parent. Sarah is the mother of Austin, 11 and Adrian, 9. Andrew is Austin s father and Aar on is Adrian s father. From the time the children were born until 2008, they lived with their mother and grandmother, Rebecca. In February 2008, the trial court ordered an immediate change of custody of Aust in and Adrian to Andrew s father based upon a finding that Sarah and her mother li ved in filthy unhealthy, dangerous living conditions and that they neglected the children s upbringing and education. In November 2008, the parties stipulated to an order for joint legal custody and agreed the children would live primarily with their fathers. The agreement prov ided gradually increasing parenting time for Sarah with the expectation that the parents would share joint physical custody equally within 6 to 12 months. Pendi ng modification, Sarah was given supervised visitation on each Saturday or Sunda y and for one or two days during the week after school. In 2009, Sarah s visitatio n became unsupervised and included one weekly overnight. In 2009, the court appointed parenting coordinator reported Sarah s increasing tim eshare had gone steadily and smoothly. Austin s father reported that he acted out at home and school at the commencement of the unsupervised day visits. Overnight s on the other hand were no problem. Based upon a number of very weak indicators, the coordinator said she suspected th e children were having unauthorized contact with their grandmother and speculate d that Sarah may have facilitated that contact. She offered the opinion that Moth er, grandmother, and children are capable of executing such a fraud and recommend ed that Rebecca submit herself to the jurisdiction of the court for the purpose of a psychological evaluation. In August 2009, Austin s father and the attorney appointed to represent the childr en filed an OSC seeking to require Sarah s visitation to be supervised. They alleg ed Sarah violated the terms of the court s order by allowing contact between the c hildren and Rebecca and asserted they were told to lie about it. At a contested hearing in September 2009 the coordinator was the only witness. S he admitted she did not know where the coaching came from although she suspected it was Rebecca. The coordinator explained that she had no way of knowing whethe r Sarah ever coached the children, but in spite of this, offered the conclusion S arah failed to protect the children by not instructing them that they had to tel l the truth.&rdquo. Nevertheless, the parenting coordinator recommended supervis ed visitation with Sarah for six to eight hours, three or four times per week. The trial court concluded Sarah either directed the children to lie about contac ts with their grandmother or acquiesced in her mother s instructions to them to li e about it. The court relied solely on testimony that Rebecca was seen at the ap artment complex where Sarah lived and that the children s reactions to inquiries ab out these things was suggestive. The trial court found that exposing the children to further inculcation of withho lding information from their fathers or being deceitful about what is going on w hen they re in the custody of their mother is very damaging.&rdquo. The trial cour t granted full legal and physical custody of the children to their fathers and l imited Sarah s visitation to therapeutic reunification once a week. Mother appeale d. REVERSED AND REMANDED WITH INSTRUCTIONS TO ASSIGN THE MATTER TO A DIFFERENT J UDGE. It was an abuse of discretion to limit Sarah to therapeutic visitation It is the policy of this state to assure that, when making any orders regarding child custody or visitation, the court s primary concern is the child s health, safe ty and welfare. (FC § 3020 (a).. State policy also directs the court to assure tha t children have frequent and continuing contact with both parents and to encoura ge parents to share the rights and responsibilities of child rearing. (FC § 3020 ( b).. Preservation of parental relationships is in the best interest of the child and the parent. (Camacho v. Camacho (1985) 173 Cal.App.3d 214, 218-219.) Moreover, the relationship between parent and child is so basic to the human equ ation that it is recognized as a fundamental right to be protected by all societ
y. Accordingly, interference with that right is justified only by compelling nec essity. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641.). Thus, an affirmative showing of harm or likely harm to the child is necessary in order to restrict parental visitation. (Irmo Birdsall (1988) 197 Cal.App.3d 1024, 1030.) The trial court s justification for modifying the 2008 custody and visitation orde r was the finding that Sarah violated the court s order by permitting her mother R ebecca to have contact with the children. But substantial evidence does not supp ort this essential finding since there was no solid evidence that Rebecca had co ntact with the children. Basing a finding on a suspicion or hunch is not proof. Further, the court s order is dramatically inconsistent with the coordinator s recomm endations that Sarah have supervised visitation with Sarah for six to eight hour s, three or four times per week. She also said the fathers were not mature enoug h to decide on behalf of their sons the nature and extent of the contact they sh ould have with their mother but nevertheless, the court left the decision as to additional visitation in their hands. The trial judge s apparent bias warrants reassignment [T]he actions of a judge must not only be impartial, but they must be seen as imp artial by a reasonable person.&rdquo. (Irmo Tharp (2010) 188 Cal.App.4th 1295, 1 328.) Here, the CA said the trial judge appeared predisposed to rule against Sarah. Th e panel cited a comment by the court that accused Sarah of engaging in a pattern of grift and deception and expressed doubt about her capacity to change. The CA s aid there was no evidence to support this disparaging description of Sarah. This, the CA concluded, would lead a reasonable person to believe the judge was inclined to rule against Sarah without regard to the evidence and to conclude th at the judge was biased against her. The CA also concluded that the severity of the restriction on Sarah s visitation under these circumstances suggested unfairne ss. The appearance of fairness will be achieved only if this case is reassigned t o another judicial officer.
rmo Pano - Unpublished opinion of District 1, Division 4 (Filed September 29, 20 11) Courts must fashion custody and visitation orders to promote: (1) the child s heal th, safety and welfare; and (2) frequent and continuing contact with both parent s. Husband and Wife married in 2000 and separated in 2004. Their daughter, V., was born in October 2001. Father did not have any unsupervised contact with V. from 2004 through the time of trial. The parties agreed to a court order appointing a custody evaluation pursuant to FC § 3111. The custody evaluation was submitted in April 2009. Mother s trial brief on the bifurcated custody and visitation issues requested an order for supervise d visitation for Father. At trial the custody evaluator focused on two concerns; viz., (1) whether it was likely the child s paternal grandfather molested his nieces 30 years ago, and (2) whether it was likely Father would molest V. The custody evaluator concluded th at grandfather had molested underage girls on multiple occasions. On the other h and, she concluded that father was not inclined to molest V. The custody evaluator said Mother s fear that Father might molest V. was exaggerat ed and that Mother showed some distortion of reality along with an hysterical ty pe of presentation of reality. The evaluator also thought that the Father-daught er relationship was strained because of Mother s attitude and because he was permi tted only limited access. When the custody evaluator interviewed V. in father s ho me, she was quite positive, playing and asking her dad questions. The custody evaluator said both parents were defensive and that Father had probl ems with impulse control, possessed limited social skills and lacked awareness o f how he upset others. A visitation supervisor testified that V. was happy and l aughing during visits with Father and said she never witnessed any untoward beha vior by Father.
The CA characterized Mother s various harsh allegations as unproductive.&rdquo. For example she said, Father cannot be trusted; his word is worthless. Father is mor e than a cad and a bounder, he is a con and a thief. . . . [T]he Court should ne ver allow Father the opportunity to complete a pilfering of this child or anythi ng else that is a fruit of the marriage.&rdquo. She also said that father engage d in cruelty to animals, frequented internet pornography sites, hired prostitute s, was excessively absent from the family home prior to separation, and treated her poorly in a variety of ways. The court-appointed custody evaluator discredit ed Mother s most serious allegation that he molested a female family member when h e was much younger. The trial court awarded sole physical and legal custody of V. to Mother, with vi sitation rights to Father. The general orders sharply restricted Father s contact with V. such as by prohibiting him from taking V outside five counties and requi ring him to abide by Mother s decisions about V even if he believed they violated the court s orders. Father was directed to secure joint counseling with V. for the purpose of securi ng a written recommendation about when Father was ready for unsupervised visits. A psychologist was appointed to report to the court on whether there was any su bstantial basis to believe Father would physically or sexually abuse V if he wer e permitted to have unsupervised visits with her. The trial court fashioned a parenting plan that began with professionally superv ised visits but after eight weeks entered a second phase of unsupervised visits each Sunday afternoon followed by two hours of supervised visitation. Phase thre e permitted eight weeks of supervised visits on Sunday afternoons with Father an d his mother. Phase four commenced when the court was satisfied Father was ready for unsupervised visits. These visits were to be on alternate weekends from Fri day at 6:00 p.m. to Sunday at 6:00 p.m. Mother appealed. AFFIRMED Two vital public policies must inform child custody and visitation orders. The f irst primary concern is the child s health, safety, and welfare and in this regard, the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.&rdquo. (FC § 3020 (a).. The second concern i s that the parenting plan provide for frequent and continuing contact with both p arents unless contact would not be in a child s best interest because of a history of abuse by one parent, as detailed in FC § 3011. Here, the CA noted that Mother resorted to unconstructive hyperbole and judgmenta l, conclusory statements premised on the assumption that the trial court was obl iged to credit all her accusations and statements as true, all of the time .&rdqu o. Mother speculated that unsupervised visits would place V. at great risk in ligh t of the clear and present danger that the Father will act selfishly, dishonorabl y, and in violation of Court Orders. . Her contention was rejected, as was her pre diction that Father would violate court orders. The trial court noted Father fol lowed the orders by prohibiting contact between V. and grandfather and by abidin g by the court s orders relating to his professionally supervised visits. The CA cited other examples of Mother s exaggerated arguments and rejected them be cause they were contradicted by substantial evidence to the contrary. The CA con cluded the trial court did an admirable job of crafting a custody and visitation plan that respects the twin public policies set forth above, advances the best i nterest of V., and affords mother substantial control over the child. ¶ The record amply upholds the court s thoughtful exercise of discretion in fashioning visitat ion and custody orders that protect the safety and well-being of V. Family Code Section 3118 Evaluation The CA rejected Mother s argument a FC § 3118(a) evaluation should have been ordered by the trial court because there was a serious allegation of child sexual abuse . A serious allegation of child sexual abuse is an allegation based in whole or in part on statements made by the child.&rdquo. First, for a mandatory evaluation, there must be some report by the child to a person specified in section 3118 (a) , or substantial independent corroboration, namely written reports from one or m ore of the listed relevant agencies listed in section 3011 (b). Here, the allegation that Father molested a cousin when she was a child and he wa
s an adolescent was made by the cousin as an adult, and repeated by others. Corr oborating reports were not received into evidence. The letter from mother s psychi atrist received into evidence was not substantial corroboration. Oral Argument is Not a Right Mother argued she was denied due process because the trial court declined to ent ertain closing argument. There is no due process right to deliver closing argume nt. In a civil proceeding tried before the court without a jury, oral argument is a privilege, not a right, which the court can afford the parties in its discret ion. (Gillette v. Gillette (1960) 180 Cal.App.2d 777, 781.) Irmo Preston Unpublished opinion of District 4, Division 3 (Filed November 1, 20 11) Choosing not to attend a hearing is not excusable neglect that warrants relief. In 2008, Father filed a motion to modify his child support obligation. It was c ontinued several times until February 10, 2009 when Father failed to appear. Fa ther elected not to appear on his motion incorrectly assuming that his motion to vacate the divorce judgment would cause the hearing on his support motion to be continued. Father pursued his motion to vacate the judgment through April of 2 009, and when he lost, he appealed. Slightly more than a year after the court had ordered Father s motion to modify su pport off calendar, Father moved to reset his support motion for hearing. The m otion was denied on the ground it was untimely. Father appealed. AFFIRMED Father relied upon CCP § 473 (b), as authority for his motion to reset the modific ation motion. He argued the the time limit within § 473 did not apply and that ot her legislation without a time limit was applicable. The CA rejected the argume nt. The CA said Father s motion for an order relieving him of the consequences of his failure to appear at the hearing on his motion to modify child support was not f iled within the six-month time limitation. The trial court had no choice but to deny it. The CA said that even if Father s motion were assumed to be timely, it had to be d enied. Father was aware of the date of the hearing and thus could not claim mis take or surprise as to the date. (State Farm Fire & Casualty Co. v. Pietak (200 1) 90 Cal.App.4th 600, 611 [ The term surprise, as used in section 473, refers to condition or situation in which a party . . . is unexpectedly placed to his inj ury, without any default or negligence of his own, which ordinary prudence could not have guarded against ].) Instead, Father freely chose not to attend based upon his assumption the motion would be continued because he filed a motion to vacate the underlying judgment. This choice did not reflect ordinary prudence since he did not bother to check with the court to confirm the assumption. A reasonable litigant, who intended to continue pursuing the modification request, would have done that. And that lit igant would have discovered, well within the six-month deadline for relief under section 473, that his motion had been taken off calendar. Father s neglect of th is motion, even if genuine and not feigned, was inexcusable. (Zamora v. Claybor n Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [excusable neglect is an er ror a reasonably prudent person under the same or similar circumstances might ha ve made].) Irmo Baeckel Unpublished opinion of District 4, Division 2 (Filed December 12, 2 011) A custodial parent's actions that are designed to frustrate the noncustodial par ent's visitation rights constitute grounds for changing custody. In 1997, Father and Mother stipulated to joint legal custody with primary physic al custody to Mother. They also agreed that Father would parent the children on alternating weekends and during certain holidays and for prescribed periods dur ing the summer months. They stipulated to mutual restraining orders that prohib it the removal of their child from the area.
Even so, Father and Mother s trouble with one another frequently took them back to court to resolve parenting disputes. Psychological evaluations and a custody t rial in 2002 produced a parenting plan but seemed to settle nothing. Physical cu stody and visitation was heavily litigated. The most recent order in 2010 resul ted in a change of physical custody from Mother to Father. Mother appealed. AF FIRMED The court has the widest discretion to choose a parenting plan that is in the be st interest of the child. (FC § 3040 (b).) Once it has been established that a p articular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it 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, supra , at p. 256.) The CA rejected Mother s contention that it was an abuse of discretion to change c ustody because the child was happy and doing well with Mother. The record showe d Mother engaged in an ongoing course of conduct designed to frustrate visitation rights and to interfere with the normal development of a healthy father-[daught er] relationship during [S. s] formative years. (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 932.) Mother consistently interfered with Father s visitation/vacation time and making i t difficult, sometimes impossible, for him to have access to the child. As an e xample, Mother would tell Father the wrong place or the wrong time to pick up th e child. A custodial parent s actions that are designed to frustrate the noncustod ial parent s visitation rights constitute grounds for changing custody. (Burchard v. Garay (1986) 42 Cal.3d 531, 540, fn. 11; Moffat v. Moffat (1980) 27 Cal.3d 6 45, 652 [ The deliberate sabotage of visitation rights not only furnishes ground f or modification, it is a significant factor bearing on the fitness of the custod ial parent ].) The CA said that on this record, the trial court was within its discretion to ch ange custody. Regarding Mother s argument that the trial court erred in failing t o consider the child s preference of remaining with Mother, we note that the court is not bound to decide [change in custody] according to [the child s] preference a nd may award custody consistent with its finding of the best interest of the chi ld. (Irmo Hopson (1980) 110 Cal.App.3d 884, 907.) Here, the trial court s explana tion of its conversation with the child provided solid reasons for orders that d id not reflect one element of the child s parenting preferences. There was no abuse of discretion in changing primary physical custody from Mothe r to Father. Irmo Conrad Unpublished opinion of District 4, Division 1 (Filed December 20, 20 11) "Uncooperative" parenting supports an award of sold physical custody. Mother and Father married in 1995 and separated in 2008. They have a daughter a nd a son. Mother has an older daughter from a previous relationship. Father requested primary physical custody of the parties' minor children because Mother. He said she is a shopping addict and hoarder that made the family's life unbearable, limiting movement within the house. Father also described the effe ct of Mother's conduct on the parties' children and the family as a whole. For example, she created $50,000 in credit card debt after Husband refinanced the ho use to pay off her previous credit card spending. Mother admitted to a problem an d treatment for it, but objected to Father s discovery requests for her mental hea lth records. Mother alleged Father physically and psychologically abused her and said he viol ently attacked her oldest daughter. She claimed that in April 2008 she became a ware of an incident in 2007 that she claimed started with a "frantic" telephone call from her daughter. Father produced telephone records showing the call neve r occurred and pointed out other inconsistencies. Mother's request for domestic violence restraining orders was denied. Similar allegations of abuse against the parties son and daughter were made to CP S. These claims were initially classified as "substantiated," but on appeal, th
e findings were changed to "unfounded. Father presented evidence that Mother changed the children's school and health c are providers without consulting him and filed a change of address with the post office for the children so that no mail could be sent to them. As further evid ence of her alleged refusal to co-parent, Father stated Mother failed to provide him with her new telephone number and when he had the number, Mother refused to answer the phone. Father alleged that when the children were in Mother's custody she left the chil dren alone after school for hours until she returned from work. Father found hi s son sitting alone in front of the school an hour after all of the other childr en had gone home. Father lodged exhibits of the children's MySpace pages showin g their youngest daughter claimed when she was only 12, that she was 18. The pa rties' son claimed he was 16 years old when he was actually 10. Father asserted that his time with the children went very well. He alleged that he gave the children structure, supervising the children and correcting them wh en their behavior was out of line. Following a two-day trial, the trial court awarded the parties joint legal custo dy but placed the children in the primary physical custody of their Father. Mot her appealed. AFFIRMED Custodial Orders Evidence of a parent's past conduct demonstrating uncooperative parenting that is l ikely to disrupt the child's relationship with the other parent is highly releva nt in making a custody determination. (Irmo LaMusga (2004) 32 Cal.4th 1072, 110 1.) Courts must consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. (Keith R. v. Superior Cour t (2009) 174 Cal.App.4th 1047, 1053; FC § 3040 (a)(1).) Here, the trial court found based upon ample evidence that Mother was an uncooper ative parent, tried to discourage Father's relationship with the children and her parenting skills were not in the children's bests interests. The trial court a lso found that Father was a capable parent who would likely share parenting resp onsibilities. The existing parenting orders were temporary and did not require proof of a subs tantial change in circumstances to warrant their modification. (Burgess at pp. 34-35.) Neither party was required to demonstrate either detriment to the minor or any particular need for a change in custody. The CA rejected Mother s reliance on the original CPS findings regarding Father's alleged abuse, recommendations of FCS mediators who testified and the requests o f the minor children. The CPS findings were reversed and the trial court expre ssed doubt about Mother s credibility in this regard. The FCS report was only a r ecommendation and the testimony of the FCS mediators was not included in the rec ord on appeal. As to the preferences of the children, regardless of their age a nd "capacity to reason," the court has no mandatory duty to follow the follow th e child's wishes. (Irmo Mehlmauer (1976) 60 Cal.App.3d 104, 110-111.) Here, gi ven the court's findings as to the parents' respective parenting skills and the other evidence presented to the court, Mother cannot show it was not in the chil dren's best interest to reside with Father. Irmo Good -- Unpublished opinion of District 2, Division 2 (Filed May 24, 2012) The party who moves to set aside a judgment based upon fraud must show that the fraud could not have been discovered within one year of the filing of the motion . Husband and Wife married in 1979. In 1999, a judgment of divorce was entered. In April 2011, Husband filed a motion to vacate the judgment due to fraud, verbal threats, coercion, and forgery. Husband alleged that when he was unrepresented he received countless telephone c alls from Wife s counsel demanding that he sign papers or he would go to jail. Hus band also alleged that that he recently discovered that a witnesses signature to an Interspousal Transfer Deed was forged. He also claimed his signature on a stipu lation and order regarding his California State Teachers Retirement System was al so a forgery.
Following a hearing, the trial court observed that a motion to set aside a judgm ent based on fraud must be filed within one year of when the fraud was discovere d or should have been discovered. The court concluded the fraud asserted by Husb and should have been discovered 10 years ago and said Husband failed to show tha t if the relief requested were granted that there would be a different outcome. The motion was denied. Husband appealed. AFFIRMED The CA approved the trial court s conclusion that Husband s motion to vacate the jud gment on the grounds of fraud or perjury was untimely because it was not brought within a year. Husband failed to establish that the alleged fraud could not have been discovered earlier. Furthermore, Husband did not establish that, were the court to grant the motion, a different outcome would result. The CA distinguished the authority cited by Husband. The CA said that in Rubenst ein v. Rubenstein (2000) 81 Cal.App.4th 1131the wife raised a claim that her for mer husband possessed ownership rights to the music of Jimi Hendrix and George C linton. At trial six years later, the wife s former husband testified under oath t hat he had no ownership interest in the record catalogs. But about five years af ter that, the Wife filed a complaint again seeking to vacate the dissolution jud gment. She attached to her complaint pleadings filed in a federal court action i nvolving Jimi Hendrix s music, in which her former husband admitted proprietary ri ghts in Hendrix s music. A summary judgment in favor of the wife s former husband wa s reversed in part because the facts did not establish as a matter of law that t he wife previously knew or should have known the facts regarding her former husb and s fraud and perjury. (Id. at p. 1148.) Here, the facts here are different. There was no evidence that the alleged fraud , duress and perjury could not have been discovered at an earlier time. Irmo Downing Unpublished opinion of District 2, Division 6 (Filed July 3, 2012) Irmo Downing Unpublished opinion of District 2, Division 6 (Filed July 3, 2012) A FC § 2122 motion to set aside a judgment must show not only fraud, perjury, mist ake or a failure to disclose but must also show the original outcome was affecte d and that the moving party would materially benefit from the set aside. Husband's petition for dissolution was filed in December 2009 and Wife was perso nally served shortly thereafter. The petition alleged the parties were about 9 ½ y ears. Husband requested the entry of Wife's default in May 2010. His community p roperty declaration listed the family residence as the only community asset and set its value at $334,000 against debt of $500,000. The proposed disposition was $0.00 for each party. A June 2010 default judgment set spousal support at $2,600 per month until 2019, stated the residence would be sold and the proceeds divided equally and provide d any pensions would remain the sole and exclusive property of the party who ear ned it. In May 2011, Wife moved to set aside the judgment alleging Husband's fraud, perj ury, failure to disclose, and cited her own mental incapacity and duress. Wife d eclared she suffers from a variety of health issues and said that when she was s erved, she was too ill to comprehend the documents. Wife said Husband was aware of how ill she was and denied she ever received the disclosures, or the request for default or the judgment. Wife explained that after she began living near the ocean her health improved. Husband resisted the relief requested saying that after October 2009 Wife was ca pable of caring for herself. Husband acknowledged that the judgment did not divi de the community property portion of his pension and said he would pay for a QDR O to do so. Husband also admitted that the $500,000 he listed as a mortgage on t he family residence was a "placeholder" and that he inadvertently neglected to i nsert the correct amount before filing the paperwork. Husband said this made no difference however because the judgment provides that the property will be sold and the proceeds divided equally. Husband declared his income is $6,844 per month and he pays $2,600 per month in support. The trial court found Husband's non-disclosure, if any, was immaterial because t
he judgment was not materially affected. The court also found Wife failed to car ry her burden of showing fraud, duress or mental incapacity. The court set aside the portion of the judgment that waived the community's interest in any pension plan but in all other respects, the court denied Wife's motion. Wife appealed. AFFIRMED If the motion is timely, FC § 2122 allows a stipulated or uncontested judgment to be set aside upon a showing of fraud, perjury, duress, mistake of law or fact or a failure to disclose as required by FC § 2100 et seq. Relief depends, however, u pon a finding that the facts "materially affected the original outcome and that the moving party would materially benefit from the granting of the relief." (FC § 2121 (b).) Here, the trial court found Husband's admitted failure to disclose his pension f und and the amount of the debt secured by the family residence did not materiall y affect the judgment. The CA said the evidence in the record fully supported th e finding, noting Husband agreed the judgment should be set aside as to his pens ion fund and that misstating the value of the family residence at $ 0 because th e mortgage exceeded its market value meant nothing. The property was to be sold. The CA also rejected Wife's argument Husband fraudulently failed to disclose hou sehold furnishings and her personal property. "Husband declared that Wife had fr ee access to all of those assets. He even offered to put them in storage for her . Wife does not show how the failure to disclose the assets can materially affec t the judgment." A number of other kindred arguments were rejected for the same reason; viz., "Wife fails to show how [her complaint] would have made a material difference." The CA emphasized that FC § 2120 (c) restates the legislated public policy in favo r of finality of judgments. FC § 2121 (b) facilitates that policy by providing a j udgment cannot be set aside unless the moving party shows the grounds for relief materially affected the original outcome and that the moving party would materi ally benefit from the granting of relief. The CA said, "Such a showing of prejud ice is not only mandated by statute, it is mandated by the California Constituti on. (Cal. Const., art. VI, § 13; Irmo Steiner and Hosseini (2004) 117 Cal.App.4th 519, 526.)" Merely showing a failure to disclose is not enough. As to spousal support, the CA first noted that the trial court did not deny Wife spousal support but instead simply refused to modify the provisions in the judg ment awarding her $2,600 per month. The CA rejected Wife's argument that the tri al court should have set aside the termination date because she was unable to wo rk during her marriage and will not be able to work in the future. But the only support she offered for this contention was a note from her doctor that she coul d not attend court in August 2011 "due to medical condition." The CA said that t his showing "hardly requires the trial court to modify the 2019 termination date ." Irmo Akerlund Unpublished opinion of District 6 (Filed July 6, 2012) Failing to file a statement of decision following a timely request is reversible error. In February 2004, the court allowed Wife temporary exclusive use of the family h ome and ordered Husband to pay child support and spousal support. In December 20 09, remaining issues were tried. At the end of the second day of trial, there was a discussion between the court and counsel about Husband's counsel's request for statement of decision. The cou rt's "Intended Decision" was filed in November 2010. It disposed of various issu es including Husband's request for Watts credits and Wife's request for permanen t spousal support, arrearages and attorney fees and costs. The Intended Decision included the remark that "neither party requested a statement of decision." Judgment was entered in January 2011 and it too stated neither party requested a statement of decision. Husband appealed the rulings on support, Watts charges a nd attorney fees. REVERSED The Statement of Decision Under CCP § 632, a court is obligated after a trial, upon a timely request by a pa rty, to provide a statement of decision "explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial." The
statement of decision need not address all legal and factual issues that the par ties have raised; rather, it must " state only ultimate rather than evidentiary fa cts because findings of ultimate facts necessarily include findings on all inter mediate evidentiary facts necessary to sustain them.' In other words, a trial co urt rendering a statement of decision is required only to set out ultimate findi ngs rather than evidentiary ones." (Muzquiz v. City of Emeryville (2000) 79 Cal. App.4th 1106, 1125.) Section 632 requires the request for a statement of decision to be made within 1 0 days of the announcement by the court of its tentative decision if the trial i s more than one day. If the trial is less than one day (or less than an aggregat e of eight hours if conducted over multiple days), a party must make the request "prior to the submission of the matter for decision." If no party makes a timel y request for a statement of decision, the judgment is presumed to be correct an d because of the application of the doctrine of implied findings, a trial court' s failure to issue a statement of decision can have a significant adverse effect on an appeal. (Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 66 1.) A court's failure to file a statement of decision following a timely request therefore constitutes "per se reversible error." (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126.) The CA began by concluding the record on appeal documented the timely request by Husband's counsel for a statement of decision on the second day of trial and th e trial court's acknowledgment of the request. "It is plain that once we have de termined that Husband in fact requested a statement of decision and none was for thcoming, the principle of per se reversal applies." Wife, however, argued that the Intended Decision and judgment satisfy the requir ements of a statement of decision. The CA rejected the argument. CCP § 632 and CRC, rule 3.1590 provides alternative procedures to follow when any party makes a timely request for statement of decision. The tentative decision m ay indicate that either the court will prepare a statement of decision or it may state that its tentative decision will be its proposed statement of decision, s ubject to a party thereafter asserting formal objections thereto. (CRC, rule 3.1 590(c)(1).) "But because a tentative decision is not binding on the court (CRC, rule 3.1590(b)), unless the court expressly orders otherwise, the tentative deci sion may not be considered the statement of decision. (Irmo Ditto (1988) 206 Cal .App.3d 643, 647.) Here, the court did not state that its Intended Decision would serve as its stat ement of decision in accordance with subdivision (1) or (4) of rule 3.1590(c). T here is no authority for treating an Intended Decision or the judgment itself as a surrogate statement of decision under these circumstances. Adoption of J.R. Unpublished opinion of District 1, Division 3 (Filed July 19, 2 012) The failure to interview a child in a termination of parentl rights case is harm less error if there is other reliable evidence of the child's feelings and prefe rences. In May 2011, Stepfather filed a petition to adopt his stepdaughter, along with a petition to declare her free from the parental custody and control of Father. F ollowing an evidentiary hearing, the trial court found that although Father had made some attempts to contact the daughter over the years, there were still two periods of time, one of which was at least two years, and the other was no less than one and a half years, in which there were "zero efforts." The trial court granted the petition terminated Father's parental rights. Father appealed. AFFIRMED On appeal, Father did not challenge the sufficiency of the evidence in support o f the court's abandonment finding, but argues that the order must be reversed no netheless because the trial court failed to comply with its sua sponte statutory duty to interview the daughter in chambers before terminating his parental righ ts. Stepfather conceded the error but argued it was harmless. The CA agreed. FC § 7891 (a) provides that "if the child who is the subject of the petition is 10 years of age or older, the child shall be heard by the court in chambers on at
least the following matters: [¶] (1) The feelings and thoughts of the child concer ning the custody proceeding about to take place. [¶] (2) The feelings and thoughts of the child about the child's parent or parents. [¶] (3) The child's preference as to custody, according to Section 3042." A trial court has a sua sponte duty t o comply with section 7891. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 170 .) But where there is a failure to comply with a statutory procedure and there is n o statutory consequence for noncompliance, an appellant must demonstrate prejudi ce to prevail. (In re M.F. (2008) 161 Cal.App.4th 673, 680.) Here, the CA said i t was not reasonably probable that Father would have prevailed in this action ha d the daughter been interviewed. There was ample, reliable evidence regarding th e daughter's preferences with respect to the petition. The CA distinguished Neumann v. Melgar (2004) 121 Cal.App.4th ???, 170 where "[t ]he record contains no indication what the minor would have said." Moreover, the evaluator's report in Neumann contained the statement that the minor was open t o visitation with father if another adult were present. Similarly, in Adoption of Jacob C. (1994) 25 Cal.App.4th 617 the court found the failure to interview the minor was prejudicial because there was evidence that the minor had previously expressed "clear opposition" to the termination of his mother's parental rights and "[h]e only changed his mind when he was assured tha t termination of his mother's parental rights would not result in his inability to see her." Irmo Padgett-Godden v. Godden Unpublished opinion of District 3 (Filed July 25, 2012) The large age difference and high conflict between siblings, the detrimental soc ial and educational environment in the family and the children's parenting prefe rences justifies an order splitting physical custody of the children. Father and Mother have two children. In January 2011, their son was an 8-year ol d second grader and their daughter was a 15-year old high school student. Mother had physical custody of the children after the parties separated in 2008. An evidentiary custody and visitation hearing was held in 2011. Father testified that Mother changed her residence among several counties seven times in 2 ½ years without notifying Father or the court. Father said the children deserved a more stable home environment. He pointed out that that their son was struggling in s chool and had behavioral problems until Father began volunteering at the school. Father also said the children fight constantly, that the daughter is bossy and very hard on her brother and does not allow father to parent him. Mother testified that even with the moves, their daughter excelled in school and that she and her brother have a positive, healthy, and close sibling relationsh ip with little conflict. The children's counsel stated that the parties' son stressed how much he enjoyed spending time alone with his father, especially since it freed him from the con stant fighting with his sister. He said he wanted to live with father and strong ly preferred not to live with his sister because he dislikes the constant fighti ng. The daughter expressed a preference to live with her mother. The trial court decided to separate the siblings because of the conflict between the children, the difference in their ages and because the frequent moves of mo ther provided an unstable environment, particularly for the son. The trial court awarded Mother primary physical custody of their daughter. Fathe r was awarded primary physical custody of their son. A visitation schedule prov ided each parent with a substantial parenting time. Mother appealed. AFFIRMED On appeal, mother contends the trial court abused its discretion in finding suff icient evidence of compelling circumstances to separate the siblings' households , under the standards set forth in Irmo Williams (2001) 88 Cal.App.4th 808 and I rmo Heath (2004) 122 Cal.App.4th 444. The CA disagreed. In Williams, the trial court divided four minor siblings because the mother rema rried and was moving to Utah. In reversing the order the CA reasoned, "At a mini mum, the children have a right to the society and companionship of their sibling s." The Williams court conceded however that it could "envision a case in which
an extraordinary emotional, medical or educational need, or some other compellin g circumstance, would [warrant] the separation of siblings." (Williams at p. 814 .) In Heath, the family law court separated two brothers -- born two years apart, t he oldest of whom had autism. After hearing testimony that the younger brother w as displaying autistic-like behavior, the family law court theorized without any evidence to support the suppositions, that the younger brother was mimicking th e older brother. Based on this conclusion, the family law court believed it was in the best interest of the children to be separated. The CA reversed noting the re was no proof of compelling circumstances and no evidence regarding the relati onship between the children. In this case however, the CA said the trial court considered the interests of th e two children in having a meaningful opportunity to share each other's lives, a nd the potential detriment of their separation. And unlike Williams and Heath, t here was evidence of the relationship between the children. The children were co nstantly at odds with one another, and that, rather than having a sibling relati onship, the relationship was more like one of mother and child. The children's p references were clearly developed. Additionally, unlike Williams and Heath, there was sufficient evidence of compel ling circumstances in the large age difference between the siblings, the extensi ve conflict between them, the detrimental social and educational environment cre ated by mother's frequent moves and the living preferences of the children.
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