Gaudino v. Morgan CA3

Filed 6/20/13 Gaudino v. Morgan CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

JOSEPH P. GAUDINO, C072095

Plaintiff and Appellant, (Super. Ct. No. FL42118)

v.

BARBARA A. MORGAN,

Defendant and Respondent.

Appellant Joseph P. Gaudino appeals from an order denying appellant’s request to modify a prior order for visitation with his now 16-year-old daughter. Finding the trial court did not abuse its discretion, we affirm the order of the court.

FACTS AND PROCEEDINGS In March 2009, the trial court issued a custody order granting respondent Barbara A. Morgan sole legal and physical custody of the parties’ minor child, then 13 years old. The court further ordered that appellant “shall have no visitation with the child except with the consent of . . . the child;

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“Contact between [appellant] and [respondent] and the minor child shall be through written correspondence only . . . .” The form and content of the court’s order, prepared by appellant’s counsel, was approved by respondent and minor’s counsel. On June 26, 2012, appellant filed a motion to modify visitation. Appellant asked for “[a]ny visitation,” and offered to participate in either supervised or therapeutic visitation. Respondent and minor’s counsel opposed the motion and a hearing was held in August 2012. At the August 2012 hearing, appellant testified that in five years, his only contact with the minor had been two letters he wrote to her (one in August 2010 and another in July 2011), one Christmas gift, and one birthday gift. He acknowledged the court’s March 2009 order allowed him to write letters to the minor but, according to appellant: “the two letters that I wrote had such an explosive reaction, I was told not to write them.” Appellant further acknowledged that in one of those letters, he admitted falsely accusing the minor of lying. Appellant also testified that since 2009 he had not participated in any counseling. In appellant’s opinion, his relationship with the minor could be improved only if they were in counseling together. When asked what he hoped to achieve in counseling with the minor, appellant responded: “Well, the first thing that--I’m thinking the first thing we want to do in counseling is go over the reason why she lied about the whole situation, the scratching situation. We are here today because my daughter lied about the scratching. I never scratched her.” Respondent testified that she did not believe therapeutic visits with appellant were in the minor’s best interest. Appellant and the minor were in counseling together prior to 2009 and, according to respondent, those counseling sessions were not productive. Following submission, the court found the minor’s best interests would not be served by modifying the March 2009 order for visitation. The court found it relevant that appellant made almost no effort to maintain contact with the minor in the five years