California Court of Appeal Nov 14, 2022 No. E078373Unpublished
Filed 11/14/22 Marriage of Stott CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of JOSHUA and GRISEL STOTT.
JOSHUA STOTT, E078373 Appellant, (Super.Ct.No. FAMSS1900041) v. OPINION GRISEL STOTT,
Respondent.
APPEAL from the Superior Court of San Bernardino County. Candice Garcia-
Rodrigo, Temporary Judge. (Pursuant to Cal. Const., art VI, §21.) Affirmed.
Joshua Stott, in pro. per., for Appellant.
Westover Law Group and Andrew L. Westover for Respondent.
1
Appellant Joshua Stott (Husband) appeals from the denial of a Request for Order
(RFO) filed by him seeking an order terminating all visits between his two children, B.S.
and A.S. (hereinafter, Minors) and their mother, respondent Grisel Stott (Wife), and
appointment of minor’s counsel. Husband alleged that Wife had been involved in a
domestic violence incident in front of Minors. The trial court denied the RFO without
hearing live testimony from any witnesses.
In this appeal, Petitioner contends the trial court (1) used an improper standard in
denying the RFO; (2) abused its discretion by denying the RFO without hearing
testimony pursuant to Family Code section 2171 ; and (3) abused its discretion by refusing
to appoint minor’s counsel pursuant to section 3150..
FACTUAL AND PROCEDURAL HISTORY
A. CUSTODY JUDGMENT
Husband and Wife have two children together, B.S. (born November 2009) and
A.S. (born March 2013). After a hearing, on June 1, 2021, the trial court made final
orders as to custody. The custody order has not been made part of the record on appeal.
Based on information in the pleadings, Husband and Wife were granted 50/50 physical
and legal custody.
B. REQUEST FOR ORDER
On October 8, 2021, Husband filed his RFO. He sought an order from the trial
court modifying visitation and appointment of minor’s counsel. He also sought a
1 All further statutory references are to the Family Code unless otherwise indicated.
2
temporary emergency order. The trial court denied any emergency temporary order and
the matter was set for a hearing.
Husband sought to modify the court order entered on June 1, 2021. Husband
requested that no visitation occur between Wife and Minors before they could be
interviewed about a domestic violence incident involving Wife and her sister (Aunt). In
addition, he sought to have counsel appointed for Minors to ascertain what had occurred
while they were in Wife’s custody.
Husband provided a declaration. A.S. had recorded a video of Wife discussing the
custody hearing directly with her, which Husband argued was in violation of the “court’s
order.” The video would be available for the hearing. Wife threatened to take away
Minors’ extracurricular activities when she would become upset or inconvenienced. This
caused Minors extreme stress. Husband and Wife had problems working out the court’s
order as to custodial time. Husband declared, “It has always been believed that [Wife]
fails to comply with the court’s order not to drink alcohol within 24 hours of the visits,
because the children frequently come back from their visits reporting that their ‘mom got
drunk and drove them in the car.’ ”
Husband declared that on Monday, October 4, 2021, Minors were dropped off at
school by Wife. They immediately asked their teachers if they could go to the office.
Once in the office, they reported being stressed, unfocused and scared. Minors claimed
they had not slept all weekend while at Wife’s house. Minors also reported to office staff
that Wife had taken them to a party and was drunk at the party. Other partygoers had to
intervene when she attempted to drive them home. Their aunt took Wife’s keys and had
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someone else take them home. Once they arrived home, Aunt and Wife got into an
altercation. Minors had to lock themselves in the bathroom because they were scared.
They believed they heard gunshots. When Minors came out of the bathroom, they
observed that Wife had a black eye. Husband claimed B.S. had texted an older half-
sibling, Jackie, while they were hiding during the domestic violence incident and Jackie
showed Husband the text messages.
Husband confronted Wife by texting her that he knew that she had been drunk. He
claimed to have seen a video of her drinking on social media and Husband’s dad had
received a “drunk text” from her. Wife did not admit to drinking. Husband concluded
his declaration, “Based on all of the above reasons, I respectfully request that the Court
grant my request ex parte and cease visitation with [Wife] pending appointment of
minor’s counsel and that the children be interviewed by the Family Court Services. I am
fearful that my kids are in danger. The children have reported that they are scared to tell
me anything because [Wife] tells them that they will go back to court. I believe that with
minor’s counsel they will have a voice and feel like they are finally being heard and these
issues can be addressed without it appearing as if I am looking for issues. I really always
hoped [Wife] would do the right thing by our children.”
Attached to the RFO were several exhibits. Exhibit 1 was a text message in
Spanish that had not been translated. Exhibit 2 was a text message with the name Jackie
on the top. An exchange by text message occurred, as follows:
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“Where are you”
“Where’s [A.S]
“We’re in the room
“Moms room?
“I’m to[o] scared to come out
“Me to[o]
“I thought you left
“No
“Where’s [A.S]
“On her bed
“And mom?
“Sleeping.”
Exhibit 3 was a text message to Wife from Husband: “I know you got in a fight
with [Aunt] this past weekend and the kids are terrified from hearing and seeing all that
went with it. And I’m aware of this drunk text you sent my dad at 1:00[a.m.] also about
not living with [Aunt] anymore and stuff. The kids are really traumatized right now in
returning so soon. Let’s just let things cool off this week and let the kids stay here this
week and resume everything back to normal next week.” Wife responded, “Josh . . . I am
not going to argue with you because it’s really pointless. . . . [Aunt] is leaving in the
morning on vacation for two weeks, nothing is wrong, so don’t try to drag this out . . . I
am pick[ing] up my kids as usual . . . period.” Husband continued to text her, claiming
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that something was wrong at her house. He claimed that Minors had not slept all
weekend and that she had failed to do A.S.’s homework with her. He insisted that
Minors had to lock themselves in her bathroom because they were scared “that night.”
Wife responded, “There is nothing wrong.” Husband responded, “Something is
definitely wrong if you don’t think that whatever went down was okay for the kids to
witness and be around.” Wife twice texted back, “good night.” Husband texted, “I never
said you’re not a parent but be an adult and admit your mistakes. You keep trying to act
like everything is fine but the kids are suffering from what you’re exposing them too. I
wish you would think about them and their well being instead of what kind of image you
have. Be a safe environment for them so you can be ‘involved.’ ” Wife responded, “You
need to calm down . . . your if anything causing all this distress.” Exhibit 4 was a copy of
photograph, which was too dark to see.
In the memorandum of points and authorities, Husband argued that California
Rules of Court, rule 5.240(b) provides that a court may appoint counsel to represent a
child’s best interests in the trial court if asked by a “party,” “attorney for a party,” a
“relative,” or a mediator. Appointment of minor’s counsel was appropriate in this case.
There had been issues regarding the violation of court orders by Wife and minor’s
counsel could help to alleviate the stress that Minors were feeling. Minors felt unsafe in
Wife’s home because of her frequent drinking and partying. Minors felt they were not
being heard.
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C. RESPONSIVE DECLARATION TO RFO
Wife filed a responsive declaration. She received a message from Husband’s
attorney that suggested she voluntarily suspend her custodial time with Minors. Wife
surmised that after the custody trial, Husband was unhappy with the result. He was
continually interrogating Minors as to what was occurring in Wife’s home. On October
2, 2021, she and Minors went with Aunt and Aunt’s boyfriend to a party involving
extended family. Aunt’s boyfriend was driving that night as she and Aunt had planned to
enjoy alcoholic beverages along with food and cake. She was not “irresponsibly
intoxicated,” and never would be when caring for Minors. When they all arrived back
home, Minors went to sleep. Wife admitted she and Aunt got into a loud argument that
led to “pushing and shoving between ourselves.” Wife and Aunt reconciled in the
morning. They admitted they were both under a lot of stress. Wife insisted that she and
Aunt did not abuse alcohol or drugs. Minors were never in danger. The argument was
just a “bump in the road.” Wife, Aunt and Aunt’s boyfriend were all willing to testify
about the events of that night.
Wife also declared she had been residing with Aunt in order to save money. She
had spent “substantial sums in attorney’s fees” for the custody trial. She owned a home
but had to rent it out to save money. Wife had mistakenly believed that she texted her
parents that night, and not Husband’s father. She wanted to request a loan from her
parents so that she and Minors could move back into her home. The message went to
Husband’s father, which caused Husband to interrogate Minors as to what was occurring
in Wife’s home while they were in her custody.
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Wife attached to the responsive declaration the message she received from
Husband’s lawyer. It notified her of the ex parte hearing requested by Husband “because
of the incident that have been going on between you guys.” It also stated, “And then also
the one this weekend when you and [Aunt] got in a fight uh in front of the kids and you
were drinking And try to drive. . . . And what we’re requesting is no visits and until the
kids can be interviewed from family court services. And also that a lawyer get appointed
to the kids so that there’s no more back and forth, it’s called miners Council.” (Sic.)
D. HEARING
The RFO was heard on November 22, 2021. Wife and Husband were present with
counsel. The trial court found that there had been a recent trial on custody and visitation.
There were final orders made after the trial. Based on the final custody and visitation
orders, the trial court felt, from a procedural stance, that the RFO required Husband to
make a prima facie showing there had been a material or substantial change in
circumstances since the custody order. The trial court’s tentative ruling was to deny the
RFO for failure to show a prima facie case of a material change in circumstances because
there had been no “competent evidence presented to support the request for change in
custody.”
Husband’s counsel argued that the RFO and Wife’s declaration showed that there
had been domestic violence in Wife’s home in front of Minors. Wife admitted to pushing
and shoving between her and Aunt in front of Minors. The text message from Jackie,
who was Wife’s older daughter from a prior relationship, showed she was afraid and
8
locked herself in the bedroom. Domestic violence issues were not addressed at the
custody trial.
The trial court stated that the statements were hearsay. They were not based on
Husband’s personal knowledge. Counsel for Husband again referred to the text message
from Jackie, which the trial court stated was hearsay. Wife had admitted to the incident.
The trial court disagreed that Wife admitted to pushing and shoving in front of Minors.
Husband’s counsel responded that Minors were in her care. Husband’s counsel insisted
the text messages between Wife and Husband showed there was an incident. Minor’s
counsel needed to be appointed in order to determine what had occurred. There were no
prior issues of domestic violence that had already been addressed by any court.
Wife’s counsel admitted Wife got into an argument with Aunt but they had
restored their relationship. Wife admitted she had texted Husband’s father that she was
upset and wanted to move out of sister’s home. Wife’s counsel argued, “The true facts
behind this situation is this is a father—ex-husband—who is very upset and disappointed
with the ruling that came down on the Montenegro hearing regarding the children which
resulted in an equal timesharing plan. This is the first opportunity he has had to use
anything to manipulate the circumstances into a request for a change of custody.” Wife’s
counsel argued it was disruptive for Minors.
Wife’s counsel advised the trial court that Minors went to a school run by
Husband’s mother and they lived with Husband’s mother so there was “far too much
influence . . . put on the children with [Husband’s] family.” Notwithstanding, Wife was
happy with the 50/50 custody arraignment with Husband and wanted no changes.
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Husband’s counsel argued circumstances had changed since the custody order based on
Wife trying to drive drunk with Minors. Husband’s counsel argued that Wife admitted to
domestic violence in her responsive declaration. Counsel for Husband complained that
the trial court was not taking the domestic violence issues seriously.
The trial court ruled, “The court, based on the review of the record, shows that a
full day of court trial was held June 2021. The request for order does not show material
or substantial change in circumstances from that Montenegro order that came out of the
court trial. His declaration contains no direct personal knowledge. It is all hearsay.
There was no request for a [F]amily [C]ode section 217 hearing to present additional
evidence. [¶] There is only one alleged incident, based on mother’s admission, of a
verbal argument that resulted in pushing and shoving, which was outside the physical
presence of the children, although they may have been in bed. The actual effect on the
children of what occurred on that date, again, being an isolated incident that did not result
in any type of arrest or any further harm—or any harm to the children—is based on
father’s hearsay statements, which the court cannot consider as competent evidence
pursuant to [C]ode of [C]ivil [P]rocedure 2015.5.” The RFO was denied.
Husband filed a notice of appeal on January 14, 2022, from the denial of the RFO
under Code of Civil Procedure sections 904.1, subdivisions (a)(2), and (a)(3) through
(a)(13).
DISCUSSION
Husband essentially contends the trial court erred by denying his RFO. First, he
insists that the trial court abused its discretion by using the wrong standard in determining
10
whether to modify visitation and denying appointment of counsel. Second, he claims the
trial court should have conducted a section 217 hearing despite his failure to request such
hearing. Third, the trial court had an obligation to appoint minor’s counsel.
We initially note that Wife has argued in the respondent’s brief that we should find
Husband’s claims have been waived and forfeited for failing to appropriately cite to the
record, and for providing only legal conclusions and no legal authority. We reject these
arguments. While Husband has failed to provide an adequate record on appeal, which we
will address post, his opening brief presents cogent legal argument supported by legal
authority and appropriately cites to the record.
A. CHANGE IN CIRCUMSTANCES
Husband insists the trial court erred by requiring him to show a significant change
of circumstances for a change in visitation and appointment of minor’s counsel. Husband
contends the proper standard for a change in visitation and appointment of minor’s
counsel as requested in the RFO was whether it was in Minors’ best interests, not a
significant change in circumstances. The trial court abused its discretion by denying the
RFO.
Section 3087 provides, “An order for joint custody may be modified or terminated
upon the petition of one or both parents or on the court’s own motion if it is shown that
the best interest of the child requires modification or termination of the order. If either
parent opposes the modification or termination order, the court shall state in its decision
the reasons for modification or termination of the joint custody order.” However, the
California Supreme Court has found, “Once the trial court has entered a final or
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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. [Citations.] Under the changed circumstance rule,
custody modification is appropriate only if the parent seeking modification demonstrates
‘a significant change of circumstances’ indicating that a different custody arrangement
would be in the child’s best interest. [Citation.] Not only does this serve to protect the
weighty interest in stable custody arrangements, but it also fosters judicial economy.”
(In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; see also Anne H. v.
Michael B. (2016) 1 Cal.App.5th 488, 496-497.)
“ ‘The changed-circumstance rule is not a different test, devised to supplant the
statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it
has been established that a particular 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. The rule thus fosters
the dual goals of judicial economy and protecting stable custody arrangements.’ ”
(Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) “The burden of showing changed
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circumstances is on the party seeking a modification of the custody order.” (Anne H. v.
Michael B., supra, 1 Cal.App.5th at pp. 496-497.)
Here, Husband has not provided this court with the final custody order that was
entered by the trial court on June 1, 2021. Although Husband commences his opening
brief with language that “The court entered a Montenegro order concerning custody and
visitation issues after a trial on June 1, 2021,” the transcript of the hearing and final order
is not before this court. (Fn. omitted.) The trial court in reviewing the RFO stated on the
record that it had reviewed the custody order, and it was a final custody order. This court
must presume that the prior order was a final custody order as the trial court stated it was
a final custody order, and Husband has not presented any evidence on appeal to refute
such determination. Accordingly, any change in custody would require a showing that
there was a significant change in circumstances.
“[T]he changed circumstance rule does not apply when a parent requests only a
change in the parenting or visitation arrangement not amounting to a change from joint
custody to sole custody, or vice versa. Instead, the trial court considers a request to
change the parenting or visitation arrangement under the best interests of the child
standard.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072.) “[T]he
changed circumstance rule does not apply when an order does not change custody but
only alters a parenting schedule.” (Id. at p. 1077.)
“The standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test. [Citation.] The precise measure is whether the trial
court could have reasonably concluded that the order in question advanced the ‘best
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interest’ of the child. We are required to uphold the ruling if it is correct on any basis,
regardless of whether such basis was actually invoked.” (In re Marriage of Burgess
(1996) 13 Cal.4th 25, 32.)
Husband claims he was only seeking a change in visitation, which does not require
a showing of a significant change in circumstances. We conclude the request to
terminate all visits between Minors and Wife was in fact a request to change custody.
In Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, the Court of Appeal
held the trial court erred by applying the changed circumstance rule to deny a father’s
request to alter a visitation schedule to obtain one extra day with the child each week and
an additional overnight visit. He and the mother shared joint legal and physical custody.
(Id. at pp. 1373, 1376, 1379.) The court concluded the changed circumstance rule did not
apply to requests for modification of visitation not amounting to a change in custody.
(Id. at pp. 1379, 1382.) In reaching this conclusion, the court noted “the California
Supreme Court has repeatedly discussed the changed circumstance rule in cases
involving requests to modify custody, where granting the request would remove custody
from one parent and give it to the other parent.” (Id. at p. 1379.) The Court of Appeal
stated, “[a]lthough [the father]’s proposed changes would alter the parenting schedule, in
terms of potential instability for [the child], they were not on par with a request to change
physical custody from sole to joint custody, or vice versa.” (Id. at p. 1382)
Here, Husband’s request was on “par” with a request to change custody because
he was asking the court to stop all visitation between Minors and Wife. According to the
record before this court, Wife and Husband shared 50/50 legal and physical custody. The
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impact of the change in visitation would essentially grant Husband full physical custody
of Minors. Although identified as “visitation,” the change would essentially deprive
Wife of any custody of Minors. The trial court could reasonably conclude that Husband
must show changed circumstances.2
Based on the record before this court, we cannot reverse the trial court’s
determination that there were no changed circumstances. Initially, by failing to provide
the court order from June 1, 2021, this court cannot consider if this was a change in
circumstances. The reviewing court does not presume on appeal that there was error; the
judgment or order is presumed correct. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.) An appellant has the burden of overcoming that presumption
by providing an adequate appellate record demonstrating the error. (Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295.)
Although Husband’s counsel stated that no prior domestic violence was
considered in reaching the custody order on June 1, 2021, we simply do not have any
background on Wife. It is impossible for this court to determine whether the trial court
erred by finding no change in circumstances when we are not aware of the state of
circumstances when the final custody order was entered on June 1, 2021.
Moreover, Husband provided text messages that were allegedly between Minors
and their older sister to support that they were scared and hiding in the bathroom because
2 Husband appears to contend that he was only seeking a temporary cessation of visits while Minors were being interviewed. He has provided no authority that a “temporary” change from 50/50 shared custody to no custody does not require a showing of a significant change in circumstances.
15
Wife and Aunt were having an argument. However, the trial court could not confirm the
messages in fact involved these parties. Further, it could not rely on inadmissible hearsay
in reaching its conclusion on change of circumstances. (See In re Marriage of Swain
(2018) 21 Cal.App.5th 830, 837.) The evidence before the trial court was that Wife
admitted she and Aunt had an argument while Minors were in their bedroom. The issue
was resolved the following morning. There was no evidence that Minors witnessed the
incident. The trial court could conclude that despite the incident, it was not a
“significant” change in circumstances warranting a change in custody.
B. FAMILY CODE SECTION 217
Husband insists the trial court should have ordered a section 217 hearing to have
Minors provide live testimony at a hearing.
Section 217, subdivision (a) provides, “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 pursuant to subdivision (b), 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.” Subdivision (c) of section 217 provides, “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.
If the witness list is not served prior to the hearing, the court may, on request, grant a
brief continuance and may make appropriate temporary orders pending the continued
hearing.”
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Section 217, subdivision (a) requires a trial court, absent limited exceptions, to
receive relevant live testimony at a hearing on a family law motion, including a
postjudgment request for order. (In re Marriage of Swain, supra, 21 Cal.App.5th at pp.
839-840 & fn. 7; Cal. Rules of Court, rule 5.113(a).) Where a party fails to request oral
testimony, section 217 does not preclude the court from proceeding without it. (In re
Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127-1129, 1132.)
Husband did not file and serve a witness list prior to the RFO hearing. Further,
once the trial court stated at the hearing that there was no request for a section 217
hearing, Husband did not request a continuance to provide a witness list. Such failure to
request live testimony foreclosed the trial court from considering whether there may be
good cause not to receive live testimony. (See Chalmers v. Hischkop (2013) 213
Cal.App.4th 289, 313.)3 The trial court did not abuse its discretion by considering the
RFO without hearing live testimony based on Husband’s failure to comply with section
217.
Husband states that it was clear from the RFO that he wanted to call Minors to
testify. He insists it would have been redundant to file a witness list. Section 217 states
3 “ ‘Good cause’ under the statute is explicated in the CRC: ‘In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217: [¶] (1) Whether a substantive matter is at issue—such as . . . spousal support . . . ; [¶] (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; [¶] . . . and [¶] (6) Any other factor that is just and equitable.’ ” (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 604.)
17
that a party “shall, prior to the hearing, file and serve a witness list.” (§ 217, subd. (c).)
California Rules of Court, rule 5.113, subdivision (b)(5) provides that the trial court can
consider prior to accepting live testimony from a nonparty if the party has complied with
section 217. Providing a witness list prior to the hearing was mandatory and could not be
substituted with the trial court—and Wife—having to imply from the pleadings who
Husband would have testify at the hearing. Moreover, it is not clear from the pleadings
that Husband wanted Minors to testify in court. In the RFO, he stated he wanted Minors
interviewed by Family Court Services. Husband did not request that Minors provide live
testimony in the courtroom. Husband did not make a proper request to the trial court to
present live testimony and did not request a continuance once the trial court stated that
Husband had not made such request prior to the hearing. Husband’s claim that the trial
court erred by denying the presentation of live testimony does not require reversal or
remand to the trial court.4
C. APPOINTMENT OF MINOR’S COUNSEL
Husband contends, pursuant to section 3150, subdivision (a), the trial court should
have appointed minor’s counsel to interview and assist Minors. The trial court’s denial,
without any findings on the record, must be reversed.
Section 3150, subdivision (a) provides that, “If the court determines that it would
be in the best interest of the minor child, the court may appoint private counsel to
4 Since we conclude that Husband failed to comply with the provisions of section 217 to present live testimony, we need not address Husband’s further claims regarding testimony of a child witness.
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represent the interests of the child in a custody or visitation proceeding, provided that the
court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and
5.242 of the California Rules of Court.” California Rules of Court, rule 5.240 lists the
factors the trial court should consider in deciding whether to appoint counsel, including,
but not limited to, whether the best interest of the child appears to require independent
representation; one of the parents appears incapable of providing a stable, safe and secure
environment; and the dispute involves allegations of physical, emotional, or sexual abuse
or neglect of the child. California Rules of Court, rule 5.241 addresses payment of
counsel and rule 5.242 details the eligibility, education, training and experience
requirements for appointment.
We review the refusal to appoint minor’s counsel for an abuse of discretion. (See
Wendland v. Superior Court (1996) 49 Cal.App.4th 44, 50 & fn. 7.)
“ ‘ “A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.” ’ ” (A.G. v.
C.S. (2016) 246 Cal.App.4th 1269, 1281.) “ ‘[W]here the issues are sufficiently
important, as in a child custody case, formal findings of fact and conclusions of law are
19
required upon the request of a party, regardless of the nature of the proceedings.’ ” (City
and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531, 545.)5
In ruling on the RFO, the trial court did not state its reasons on the record for
denying the request to appoint minor’s counsel. Husband never objected to the trial
court’s ruling and did not request a written ruling.
Because there is no statement of decision, we presume the trial court made all
factual findings necessary to support the order. (City and County of San Francisco v.
H.H., supra, 76 Cal.App.5th at p. 545.) We therefore determine whether the implied
finding that appointment of minor’s counsel was not in Minors’ best interests is
supported by substantial evidence.
The trial court’s decision was supported by substantial evidence. There was no
admissible evidence that Minors had suffered any harm. There was a final custody order
in place that found it was in the Minors’ best interests that Wife and Husband have 50/50
physical and legal custody. The trial court found there was no change of circumstances
and no live testimony would be heard—including from Minors—because Husband had
not requested a section 217 hearing. The trial court did not abuse its discretion by
denying the request to appoint minor’s counsel.
5 While Code of Civil Procedure section 632 contemplates that a statement of decision is only required when there has been a trial, there are exceptions for special proceedings. (City and County of San Francisco v. H.H., supra, 76 Cal.App.5th at pp. 544-545.)
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DISPOSITION
The trial court’s denial of Husband’s RFO is affirmed. Wife shall recover her
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the appellant's request to terminate visitation and appoint minor's counsel, holding that the appellant failed to demonstrate a significant change in circumstances required to modify a final custody order and failed to comply with statutory requirements to present live testimony.
Issues
Whether the trial court erred in applying the 'changed circumstance' rule to a request to terminate visitation.
Whether the trial court abused its discretion by denying the request for order without hearing live testimony under Family Code section 217.
Whether the trial court abused its discretion by refusing to appoint minor's counsel.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court could reasonably conclude that Husband must show changed circumstances.”
“Husband did not file and serve a witness list prior to the RFO hearing.”
“The trial court did not abuse its discretion by considering the RFO without hearing live testimony based on Husband’s failure to comply with section 217.”