A.G. v. C.S.

246 Cal.App.4th 1269

201 Cal.Rptr.3d 552

A.G., Plaintiff and Respondent,

v.C.S., Defendant and Appellant.

C074211

Court of Appeal, Third District, California.

Filed April 27, 2016

Family Violence Appellate Project, Erin C. Smith, San Jose, Nancy Lemon, Jennafer Dorfman Wagner; Morrison & Foerster, Sylvia Rivera, Los Angeles and Hanna Abrams, Los Angeles, for Defendant and Appellant.

Hughes Law Group and Marc L. Hughes, Sacramento, for Plaintiff and Respondent.

NICHOLSON, Acting P.J.C.S. (Mother) appeals from an order awarding sole custody of her children to A.G. (Father). Mother contends the trial court erred by (1) not basing its order on the children's best interests; (2) committing prejudicial evidentiary rulings; (3) denying Mother's request during trial for a continuance to obtain counsel; and (4) committing separate errors that constituted cumulative error.

We disagree with Mother's contentions and affirm the order. As part of our decision, we also conclude the doctrine of implied findings applies in this case where the parties did not request a statement of decision, the court did not prepare one, and the settled statement used by the parties does not contain an express statement by the trial court that it complied with the procedures required for adopting a statement of decision and that the settled statement serves as the court's statement of decision.

FACTS AND CASE HISTORY

This discussion is based on the clerk's transcript and the settled statement Mother submitted in lieu of a reporter's transcript.

1. Father petitions for custody, and Mother requests a restraining order

Father and Mother cohabitated from 2004 until May 2012. They have three minor sons: G. (born 2004), A. (born 2006), and I. (born 2008).

On May 17, 2012, Mother and the boys left Father's home and went to a domestic violence shelter in Marin County.

Father petitioned the trial court for sole legal and physical custody of the children. He alleged that Mother, among other things, was unstable, and she had unilaterally removed the children from their school and speech therapy classes.

Mother filed a request for a restraining order against Father under the Domestic Violence Prevention Act (Fam.Code, § 6200 et seq. ). She alleged Father sexually, emotionally, verbally and mentally abused her and emotionally and mentally abused the children. Specifically, Mother alleged Father has a criminal record, owns a handgun, and is an alcoholic. His smoking in the house caused her son to have asthma attacks. He constantly threatened to throw her out of the house and she would never see her children again. He controlled her and denied her of food. He sexually abused her by forcing her to remove her panties to show she had not had sex with anyone. He photographed her while she was in the shower without her permission. He forced her to make sex videos with him with which he would blackmail her. Father had served prison time for drug possession, and had threatened to take the children away from her and go to Mexico, his home country.

As for physical abuse, Mother alleged Father's girlfriend smashed her arm in a window and pushed her against a wall. Father told Mother not to hit the girlfriend back, or else he would kick her out of the house. Mother also alleged Father physically abused the children with a belt and verbally threatened one of the sons. Father hit two of his sons with a belt for not feeding the pets.

The trial court denied Mother's request for a temporary restraining order, and set the matter for a hearing. The court found Mother did not provide facts that described "in sufficient detail the most recent incidents of abuse, such as what happened, the dates, who did what to whom, or any injuries or history of abuse." However, the court granted mother temporary legal and physical custody of the children, and it denied Father any visitation, although, as noted below, father did participate in supervised visitation at some point. The court later amended its order to include a stay-away order.

2. Hearing on long-term restraining order

The court convened a hearing on August 23, 2012, to determine whether to issue a long-term restraining order. Father was represented by counsel; Mother appeared in propria persona. The court instructed Mother that the hearing was an opportunity for her to provide evidence in support of her request for injunctive relief. Mother stated Father was an alcoholic and had been convicted of driving under the influence. She repeated her allegation that Father was a chronic smoker and his smoking inside the house had caused their son to have an asthma attack.

The court asked Mother to provide evidence of specific acts, not just conclusions. Mother stated she desired a restraining order because Father was "mostly controlling."

On Mother's Day 2012, she and the children went to visit her parents, promising Father she would return home by noon. Father subsequently called her that afternoon when she had not returned. He was angry with her. Also, in 2009, there was an incident where Father grabbed her neck with both hands, and the oldest son witnessed the incident. Mother offered no additional testimony of any kind of abuse in support of her allegations.

On cross-examination, Mother admitted knowing that Father had previously been in an accident that injured his shoulder and removed significant muscle tissue from that area. She also admitted being convicted in 2006 of embezzlement, in violation of Penal Code section 503.

Mother's father, E.G., testified in support of Mother. He stated he obtained a separate restraining order against Father due to his and his girlfriend's phone calls and visits when they were looking for the boys after Mother's most recent disappearance. The court stated this evidence was not relevant to determining whether Father had abused Mother.

E.G. testified that when Father and Mother lived together, he often had to drive from his home in San Bruno to Sacramento to pick up Mother and the boys, as Father would not drive Mother to visit her parents. E.G. also discussed the Mother's Day 2012 incident. He had to rush Mother and the boys back to Sacramento. E.G. had no personal knowledge of the way Father treated the boys.

A neighbor of Father and Mother, Alvia Chavez, testified in support of Mother. She stated that in 2007, when she and Mother went to interview for a job, Father called while they were waiting for an interview. The "speakerphone" feature was on, and she heard Father curse at Mother.

On some occasions when Mother would visit Chavez's home, Father would peer though Chavez's window to see if Mother was inside. He would also drive by in front of her home several times to check on Mother, making a u-turn on the street to do so. He would also send one of the sons to look for Mother and tell her to return home.

Occasionally, when Chavez drove by Father and Mother's home while Mother was at work, the children were outside barefoot. However, Chavez had never witnessed Father mistreating Mother.

Based on this evidence, the trial court denied Mother's request for injunctive relief. It ruled Mother was unable to establish a specific, credible incident of abuse, and, accordingly, there was insufficient evidence to sustain a domestic violence restraining order.

3. Hearing on custody

On November 8, 2012, the court convened a trial on custody and visitation. The evidence presented a complicated relationship between the parties.

Mother had been married before and had two daughters from that union. In 2003, she agreed her husband could have full custody of their children. At that time, her husband declared Mother suffered from mental instability and had claimed he had molested their daughters. She at one time had allowed their three-year-old daughter to escape into the street unsupervised. Mother did not see her daughters for six years and never introduced them to Father. She claimed she does not speak with her daughters because her ex-husband's new wife does not allow it.

Father was controlling. He would not permit Mother to attend school or to work. Mother testified that in 2009, Father pushed her into a corner during an argument and began strangling her. The couple's oldest son saw the incident. Father, however, had previously been in a motorcycle accident and was missing muscle from the back of his shoulder. He testified that as a result of the accident, he is no longer able to lift one of his arms. Mother acknowledged Father could not lift his right arm above his shoulder due to a motorcycle accident.

Father claimed Mother often let their sons run around in the street while she was on the phone. On June 26, 2010, one son was hit by a car while he was bicycling in the street in front of their home. Mother testified she was watching the children at the time and Father was not present.

In July 2010, Mother left with the children and went to live at her parents' home. Mother would not let Father speak with the children for over a month. He began to see them on weekends beginning in September 2010. Father testified he did not know why Mother left, but Mother testified she left because Father was coming home at 2:00 to 3:00 a.m. and they were fighting often.

In January 2011, Mother asked Father if she and the children could return and live with Father. Father was then in a relationship with another woman, Monica Valerio. However, he allowed Mother to return for six months so she could find a job, get a driver's license, and find an apartment. The two signed an agreement dated January 3, 2011, that stated Father would have sole custody of the children until Mother was financially settled and had her own apartment. Father testified he did not force Mother to sign the agreement, but Mother testified she signed the agreement because Father would not let her live in the house unless she signed it.

By July 2011, Mother had not found herself a job or an apartment. She moved out of Father's house and moved in with her boyfriend two blocks away. The...