In re Marriage of Austin

1

In re the Marriage of GRACE and DALLAS AUSTIN.

GRACE AUSTIN, Appellant, v. DALLAS AUSTIN, Respondent.

B324666

California Court of Appeals, Second District, Seventh Division

May 6, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 19VERO00438 Marilyn Mordetzky, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Grace Austin, in pro. per., for Appellant.

Dallas Austin, in pro. per., for Respondent.

RAPHAEL, J. ^[*]

Grace Austin (Mother) appeals from a trial court order modifying custody and visitation rights regarding her child. Before entering that order, the trial court determined the child's father, Dallas Austin (Father), rebutted the presumption under Family Code section 3044^[1] that joint custody would be detrimental to the child's best interest based on his prior acts of domestic violence. Mother argues the court erred in making that determination by ignoring or disregarding evidence relevant to several factors a court must review when addressing the section 3044 presumption. She also contends the court erred in denying her request for a statement of decision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties, the New York Protection Order, the Divorce, and Mother's Move

The parties were married in North Carolina in February 2013. Their daughter, M., was born in January 2017. Soon after M.'s birth, the parties relocated to New York.

Mother and Father physically separated in July 2017. In March 2018, Mother obtained a temporary order of protection from a New York state court that required Father to stay away from and not communicate with Mother except for text messages regarding the health, safety, welfare, and visitation of M. In June 2018, the court extended the protection order through December 1, 2018, and ordered the parties to maintain joint physical custody of M. using a three days on, three days off (3-3) schedule.

In July 2018, the parties entered into a postnuptial agreement that was later incorporated into a judgment of divorce filed in New York in December 2018. Under the agreement, the parties maintained joint legal custody, with Mother possessing ultimate tiebreaking authority, as well as joint physical custody on the same 3-3 schedule until Mother relocated to California with M. later that month. Upon Mother and M.'s relocation, the agreement provided, so long as Father remained in New York, he could exercise one week of physical custody per month in California or one weekend in New York. A few weeks later, Mother moved to Sherman Oaks with M.

B. Father's Move and the Original California Restraining Order

In March 2019, Father moved to Hermosa Beach. Shortly thereafter, Mother filed a petition for a domestic violence restraining order against Father. Following an evidentiary hearing, at which both parties appeared with counsel, the trial court issued a two-year restraining order with an expiration date of May 1, 2021.^[2] The court based its ruling on Father's "namecalling and voluminous e-mails castigating [Mother]," explaining Father's "venting" constituted harassment and his claim that his castigation was for M.'s benefit was not credible. The court denied Mother's requests for orders requiring Father to stay away and to participate in a batterer intervention program. The court also denied Mother's request to limit the number of daily communications between the parties, although it did instruct Father that he was not to use communications regarding M. as an excuse to express opinions about Mother.

As to custody and visitation, the court found-albeit without any analysis-that Father rebutted the section 3044 presumption, which applied against him because of the New York protection order. The court issued a new custody and visitation order that maintained joint legal custody, with Mother possessing tiebreaking authority, and imposed a visitation schedule providing Father with first, third, and odd fifth weekends and several hours every Wednesday. The court also ordered the parties to coordinate daily video calls between M. and the parent without current physical custody.

C. Two More Moves and the Renewed Restraining Order In March 2020, Mother moved with M. to San Marino. In November 2020, Father moved to Pasadena.

In August 2021, following another evidentiary hearing at which both parties appeared with counsel, the trial court renewed the restraining order for three more years.^[3] The court discussed the ruling on the original restraining order, as well as evidence the parties presented regarding their electronic communications since the restraining order was issued. While noting evidence of the daily video calls showed both parties "want[ed] to be a parent of a very lovely child," the court found Father's messages to Mother showed he was still "vent[ing] about the past" and expressing opinions about Mother. The court explained Father's conduct constituted the same harassment that led to the original restraining order. Finding Mother had shown a reasonable apprehension of future abuse, the court implored Father to "move forward" and "[s]top with the past." The court denied Mother's request to make the restraining order permanent, expressing hope that Father could "understand the gravity of his conversations with" Mother and "make some changes." The court did not alter the custody and visitation order.

D. Father's Request for Custody Modification

In December 2021, Father filed a request for order seeking modification of custody, visitation, and support, as well as attorney's fees and costs. Relevant here, Father sought joint legal and physical custody with no tiebreaking authority and a visitation schedule of two days on, two days off, three days on (22-3). Mother filed a response and asked for an evidentiary hearing on Father's request. Father later filed a reply.

In April 2022, the trial court commenced an evidentiary hearing with both parties represented by counsel.^[4] Before taking any evidence, the court told the parties that Father was subject to the section 3044 presumption based on the findings of his domestic violence in the restraining order proceedings.^[5] The evidentiary hearing required seven appearances before concluding with closing arguments in August 2022.^[6] During the course of the hearing, Father switched counsel and represented himself for one appearance.

On September 7, 2022, with the parties present, the trial court issued an oral ruling. Specifically, the court found Father had rebutted the section 3044 presumption and granted his requests for joint custody with no tiebreaking authority and a 22-3 visitation schedule. On September 12, the court served on the parties a minute order recognizing the rulings, as well as further written directions for how the parties were to implement the new custody and visitation order.

Thereafter, on September 16, Mother filed a request for a written statement of decision. A few days later, on September 19, Mother filed an amended request for a statement of decision, specifying an additional controverted issue. At the next court appearance, on October 6, the trial court denied Mother's requests before addressing remaining custody and visitation matters, including a holiday schedule. That same day, the court issued an amended restraining order to account for the new custody and visitation order.

Mother timely appealed.

DISCUSSION

Mother appeals from the trial court's order modifying custody and visitation. "We review custody and visitation orders for an abuse of discretion," applying the substantial evidence standard to the trial court's factual findings and considering de novo any issues of statutory interpretation. (Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.) "'A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child. [Citation.] A court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions. [Citation.]' [Citation.]" (S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 333.) "'An abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we disagree with the trial court's determination, we uphold the determination so long as it is reasonable. [Citation.] We do not reverse unless a trial court's determination is arbitrary, capricious, or patently absurd.'" (Id. at pp. 333-334.)

Aside from the denial of her request for a statement of decision, Mother's arguments on appeal challenge the trial court's determination that Father rebutted the presumption under section 3044. We turn to those arguments first, and start by discussing the relevant statutory language.

A. Section 3044

Subdivision (a) of section 3044 provides: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child . . ., there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child .... This presumption may only be rebutted by a preponderance of the evidence." The presumption under section 3044 is mandatory and must be applied "if any court has made a finding that the party seeking custody has perpetrated domestic violence within the past five years." (Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 196; see also In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1500, fn. 10 ["If a domestic violence restraining order has been issued, then it is clear that there has been a finding of domestic violence...