Marriage of Schmidtke CA3

Filed 3/4/15 Marriage of Schmidtke CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada) ----

In re the Marriage of TIFFANY NICOLE and C073244 STUART J. SCHMIDTKE.

TIFFANY NICOLE KEELING, (Super. Ct. No. T083200FL)

Appellant,

v.

STUART J. SCHMIDTKE,

Respondent.

Tiffany Keeling (mother) appeals from an order granting Stuart Schmidtke (father) primary physical custody of their son. Mother claims (1) the trial court committed evidentiary errors, and (2) an evaluator’s ex parte communication with the trial court subjected mother to substantial danger of undue prejudice and violated her due process rights.

1

We conclude mother’s contentions lack merit. We will affirm the trial court’s order. BACKGROUND Mother and father were divorced when their son was a toddler. Mother then moved to the San Francisco Bay Area and father remained in Truckee. The parents shared legal and physical custody of their son as recommended in a 40-page report from a psychologist appointed by the trial court to evaluate the best interests of the child. But when the son was approaching kindergarten age, mother requested primary physical custody. The trial court ordered a new evaluation by the same psychologist, including new assessments of the parents, their support systems and the relative merits of the schools in which the son might be enrolled. The psychologist’s new 30-page report recommended that shared legal custody continue but that the son live primarily with father and attend school in Truckee. The psychologist’s report mentioned a cell phone recording presented by father; the psychologist believed mother was emotionally abusive toward her son during the recorded call, but the psychologist concluded the abuse was not common. Before a scheduled custody hearing, mother moved in limine to preclude admission into evidence of the cell phone recording or any testimony about it. The trial court denied her motion. On January 25, 2013, following a custody hearing, the trial court ordered the continuation of joint custody but designated father’s home as the child’s primary residence. After the trial court ruled, mother said she wanted to terminate her parental rights and would have no further parenting involvement with the child. The trial court conducted voir dire of mother, noted that mother’s attorney did not join in mother’s request, and suspended all orders relating to mother’s parenting time with her son. The trial court said the suspension could be modified by regularly scheduled law and motion proceedings. The trial court did not find mother unfit.