Filed 5/12/14 Marriage of Schmitz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of VICTORIA ANN and ERIC PAUL SCHMITZ. D064500 VICTORIA ANN SCHMITZ,
Appellant, (Super. Ct. No. D499620)
v.
ERIC PAUL SCHMITZ,
Respondent.
APPEAL from an order of the Superior Court of San Diego County, William H.
McAdam, Judge. Affirmed.
Donald R. Holben & Associates and Amelia A. McDermott for Appellant.
No appearance for Respondent. Victoria Schmitz (mother) appeals from the court's order (1) granting Eric Schmitz
(father)1 sole legal and physical custody of their son Ryon, who at the time of the
issuance of the order was almost 16 years old; (2) premising mother's visitation with
Ryon on terms mutually agreed to by her and Ryon; and (3) granting mother and father
joint legal and physical custody of their son Craig, who at the time was 11 years old, with
the provision that if mother and father cannot "make joint decisions concerning school
selection and extra-curricular activities, the Father/Petitioner shall have the right to make
the final decision." Affirmed.
BACKGROUND
Mother and father were married in 1997, separated in 2006 and divorced in early
2009. As noted, they had two children during their marriage, Ryon and Craig.
The record shows that after they separated, mother and father were able to resolve
their custodial timeshare issues without court intervention. Initially, father had custodial
time with the boys on alternate weekends from Friday through Monday and on every
Monday overnight. However, in late October 2008, father filed an order to show cause to
reduce his spousal and child support. In addition, he requested equal custodial time with
the boys, based on the boys' request to spend additional time with him. Mother opposed
1 Father has not filed a brief in this appeal. However, "we do not treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232-233 and In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; compare In re Bryce C., at p. 232 ["If an appellant fails to file a brief, the appeal may be dismissed entirely"].)
2 the request but, ultimately, in December 2008, mother and father entered into a
stipulation adopting the recommendations of the family court services that they share
joint legal custody; that the boys' primary residence was with mother; and that physical
custody would be apportioned 66 percent to mother and 34 percent to father.
In September 2009, father again moved to modify spousal and child support and to
modify visitation to allow him to have the boys on alternate weekends and to have mid-
week visits. As a result, mother and father agreed to attend mediation regarding custody
issues and visitation plans. The mediator subsequently recommended a 2-2-3 schedule
(i.e., one parent would have the boys for two days, the other parent would have the boys
for the next two days and then the boys would go back to the first parent for three days,
with the parents alternating the three days), that was similar to the plan previously
proposed by father.
In February 2010, father moved to modify spousal and child support and to modify
custody to have full custody of the boys with mother having alternate weekends. As
relevant here, father claimed in support of his request that mother was making it
increasing difficult to plan "reasonable extracurricular activities" for the boys and that the
boys wanted to be involved in such activities but mother refused.
Although mother initially opposed father's motion to modify, mother and father
ultimately stipulated to adopt the recommendation of a private mediator that they have
joint legal custody of the boys with a 2-2-3 schedule for physical custody. In the
stipulation, mother and father agreed to appoint a new mediator, Stephen Doyne, Ph.D.,
3 to help them resolve any future custody issues between them. The stipulation provided
that before an issue was to be submitted to Dr. Doyne for resolution, "the parties shall
make good-faith and reasonable efforts to reach a resolution. Only after those efforts
have failed, shall they contact Dr. Doyne for a mediation session(s)."
As relevant here, in December 2010 father again sought a custody modification.
In his declaration in support of his request that he be given legal custody of the boys, he
stated the 2-2-3 program is "great," but he and mother could "not communicate in any
way for what is in the best interest for the boys" and mother continues to "deny every
request" for them to be "more engaged in sports and other extracurricular activities."
Father noted he had hoped that with equal time sharing the issues between him and
mother would be resolved but, in fact, the opposite had occurred. He asked the court to
look at the issue from the perspective of "their [i.e., the boys] time" as opposed to
"Mom's time" or "Dad's time," inasmuch as the boys "are only children once . . . ."
Mother in response filed, among other documents, Dr. Doyne's December 10,
2010 report in which he recommended that the boys play the sports they prefer (which
the record shows mother had somewhat opposed) and that each parent be present during
their custodial time but not at the same time to avoid any confrontation between mother
and father. Dr. Doyne also recommended father stop putting the boys "in the middle" of
issues between mother and father.
4 In March 2011, father moved for the removal of Dr. Doyne and the appointment of
minor's counsel for the boys. With respect to Dr. Doyne, father noted that he could not
afford to pay Dr. Doyne; that the costs of Dr. Doyne's services had exceeded $10,000;
and that mother went directly to Dr. Doyne to resolve what father contended was the
"simplest of parenting issues" rather than attempt to work them out with father first as
required by their agreement. Father asked all future mediation between him and mother
be done through family court services.
With respect to the boys, father attached two writings from Ryon in support of his
contention that mother did not allow the boys to participate in activities of their choosing
"unless on her terms"; and that the appointment of minor's counsel was appropriate
because the boys each needed "a voice in regards to [their] own needs and wants [as]
developing young men."
After both mother and father filed additional paperwork, the court in mid-April
2011 denied father's request both, to terminate Dr. Doyne as the court-appointed
mediator, and to appoint minor's counsel for the boys. The court continued the hearing
on father's request to terminate spousal support to mother.
In May 2011, the court denied father's request to terminate spousal support. The
court also denied father's request to modify the then-existing custody orders; ruled the
boys should remain enrolled at their then-current school; and ordered father to pay the
amount he owed to Ryon's therapist so the parents each could take Ryon to therapy as
deemed necessary by the therapist.
5 In late June 2012, mother moved for sole custody of both boys with father to have
supervised visitation. In her 15-page declaration in support of her request, mother
outlined in detail her view that Ryon was then refusing to spend time with her allegedly
because of father's "influence, control and ability to manipulate Ryon," which she
claimed was also beginning to occur with their younger son Craig.
Mother discussed in her declaration an issue that arose in early August 2011, that
led to what she contended was her losing all contact with Ryon after she and father could
not agree on the conditions that would allow Ryon to play tackle football:
"On the morning of Monday, August [1], 2011, I went to pick up the boys from
Father after his weekend and Ryon came out with all of his new football gear expecting
to go to his first practice the next day. Not wanting to involve Ryon in a decision that his
father and I ultimately needed to make together, I told Ryon that his dad and I were still
working out details and I would let him know if he would be going to the practice. I was
shocked and upset that Father would sign him up and send him over with his gear without
my consent, but I called Ryon's counselor to try and help mediate the terms we had
previously discussed to see if there was still a chance we could reach an agreement that
made me comfortable allowing Ryon to play in spite of the underhanded manner in which
it was set up. However, even with the help of the counselor, we were unable to agree to
the terms, and ultimately, I could not permit Ryon to play. Father is a high conflict
person and I have learned over time that every capitulation was met with more demands
6 and more conflict. In order to prevent complete annihilation of my parental authority, I
had to take a reasonable stand.
"By the time I was able to speak to Ryon about it, Father and his wife had already
called Ryon stating they were so sorry that mom would not let him play. I pleaded with
Ryon to try and understand what really happened, but he is too young to appreciate the
complicated dynamics involved and should not have been put in the middle to begin with.
Ryon told me that he did not believe anything I said, he only believed his dad and
stepmom. In his mind, his dad and stepmom will allow him to do whatever he wants at
their home, while mom does not care about anything he wants.
"Ryon went back to Father's house that Wednesday for Father's Wednesday and
Thursday visitation then I was scheduled to pick the boys up for my weekend on Friday,
August 5, 2011. I arrived at Father's house early on Friday and our younger son Craig
came out and told me Ryon was not going with us. I also noted Father was home, which
was very unusual as Father is almost never there when I pick up the boys so I knew
something was up. I was told that Ryon refused to go with me or see me and that was
just too bad for me. I would remind the Court again of that letter from Ryon that Father
filed [five] months earlier which stated that even though he wanted to live with his dad,
he loved me and had fun at our house so it was very perplexing that Ryon was stating he
wanted nothing to do with me seemingly over a relatively minor argument over where to
play football.
7 "I initially tried contacting the Sheriff to enforce the order but when they came out
they spoke with Ryon who adamantly told them he would not come back to my house so
the police threw up their hands and said they could not do anything and I left without
him; Craig came with me without a problem and Craig and I have continued with our
normal 50/50 schedule without a problem. My next approach was to just wait it out a
little and hope that Ryon would come around; however, Father was clearly encouraging
him to stay and I can only imagine what else Father may have been saying to him in
private so waiting had little effect on the situation. After trying to wait it out for a couple
months, it appeared that Ryon was not going to come around and Father was doing
nothing to encourage him to see me. Father's approach, at least publically, was 'I support
whatever Ryon wants, if he wants to see you, I'll encourage it, if he doesn't then I'll
support that decision.' As such, I was left with this ridiculous situation of a 14-year-old
deciding whether or not to follow a Court ordered visitation schedule with his mother."
Mother also noted Dr. Doyne "holds Father responsible for why the current order
is not being followed." Specifically, mother cited to Dr. Doyne's February 8, 2012
correspondence in which Dr. Doyne stated his opinion that father should insist that Ryon
spend time with mother:
"Based on my last interviews with Ryon, I believe he has the mistaken idea he gets
to choose where he lives. In this regard, I have suggested to [father] that Ryon needs to
be told he is going to be spending time with [mother] or else he will resist. In short, I
believe Ryon has been empowered to think it is up to him where he spends his time. This
8 could lead him to be defiant of authority as recently [father] reported some disrespectful
behavior on Ryon's part. Unless and until he is made to spend time with his mother by
[father], I do not think Ryon will do so."
Mother stated she desperately was trying to repair her relationship with Ryon but
father "has made that almost impossible by continuing to allow Ryon to 'escape' to his
house if Ryon decides he does not like anything I do or say. This absurd dynamic of my
14-year-old son telling me how to act or he will not see me has been created by Father
and should not be allowed to continue."
Father in response asked that the status quo be maintained, per Dr. Doyne's
February 2012 recommendation; that Ryon be allowed to continue to reside with him and
his family; that Ryon be allowed to continue at his current high school; that both parents
be ordered to participate in "high conflict co-parenting classes"; and that if reunification
therapy is necessary, mother pay for it and father pay $50 per month toward the
outstanding balance owed Dr. Doyne.
Father in his declaration discussed the August 5, 2011 incident as well.
Specifically, father noted that on or about that date, Ryon "started living with me on a
permanent basis. At that time, he was uncomfortable visiting with [mother] due to the
increasing conflicts between them. He has remained in my primary care since that time.
He has established patterns and created emotional bonds over the last year that would be
irreparably disrupted if he was removed from my home. Ryon feels safe in my home.
We have established a relationship of openness, respect and trust.
9 "Immediately after Ryon expressed his desire to remain with me, [mother] began
packing up his room to convert it into a 'play room.' [Citation.] She did not have any
contact with Ryon for the next three months. He has spent very little time with [mother]
since that time. He is comfortable in my home and sees his brother, Craig, frequently.
"On the morning of August 5, 2011, Ryon did not want to go with [mother] to the
Colorado River. In response, [mother] called the . . . Sherriff's Department. [A deputy]
was dispatched to my home. He spoke to [mother], Ryon, and me. He felt it [was] in
Ryon's best interest to stay home. He then went and spoke [to mother] and she sped
away. [The deputy] gave me an incident report . . . . I immediately called [the therapist]
Sue Anne Edwards LFMT and I informed her."
Father denied that he was interfering in the relationship between Ryon and mother;
that mother's request that father's time with his sons be limited to supervised visitation
showed it was mother, and not father, that was attempting to alienate the children from
one of their parents; that mother generally refuses to attend Ryon's activities and does so
only if father agrees not to be present; that mother told Ryon "spending time at his sports
games and practices was not how she wanted to spend her weekends"; and that mother
allegedly has made myriad inappropriate comments to the boys including telling Ryon
over the telephone she had breast cancer so she allegedly did not have to pick him up on
time, that Ryon was a burden to her and wished he had never been born and that her
boyfriend (a police officer) would pick up Ryon and take him to juvenile hall to show
Ryon where he was going to end up, among others.
10 Father also stated mother constantly blamed him for the breakdown in her
relationship with Ryon: "[Mother] says I empower and manipulate him. However, I
have always been supportive of a relationship between Ryon and [mother]. I want to be
very clear that I want Ryon to have visitation time with [mother]. I have even tried to
help her repair the relationship by telling her when his important events are and
encouraging her to attend. I have taken him to therapy and to Dr. Doyne's.
"I was advised that because of Ryon's age, I could not force him to visit [mother].
I am uncomfortable with the idea of physically forcing Ryon to visit [mother]. He has
refused to get in the car for visits and he said [he would] run away if I dropped him off.
He is fourteen and I cannot see physically forcing him into and out of my car. I don't
believe that will facilitate a healthy relationship [and I] feel that forcing Ryon to visit
[mother] would only build the resentment between them. After putting a lot of thought
into the matter, I may be uncomfortable forcing Ryon to visit [mother] because I am over
compensating for [mother's] lack of emotional support towards Ryon over the last year
since he decided to live with me."
Father also stated that a "brief conversation" between the court and Ryon would
confirm that father is not the cause of the strain between Ryon and mother and that Ryon
wants to continue living with father but is open to rebuilding a relationship with mother.
In February 2013, father sought an order from the court to allow Ryon, who was
then 15 years old, to testify at the upcoming evidentiary hearing on mother's request for
sole custody of the boys. According to father, Ryon specifically requested he be allowed
11 to "address the court directly to provide input regarding his preferences on custody and
visitation and other information that could assist the court in determining such issues,
including material facts in controversy and the credibility of the parties regarding such
matters . . . ."
In the declaration of father's attorney in support of that request, she noted that she
had interviewed Ryon and he was "very forthcoming and articulate"; that she asked him
myriad questions and, based on his thoughtful responses, concluded Ryon had not been
coached; that he appeared to welcome the opportunity to speak with father's attorney; that
he confirmed he wanted to testify at the hearing because "he wants to be heard and to
have a voice in what happens to him to ensure his input and wishes are taken into
consideration"; and that he understood he could be subject to cross-examination if he
testifies.
Father's attorney further stated in her declaration that Ryon "informed me of his
personal frustration in his dealings with both the reunification therapist . . . and the
parties' private mediator, Dr. Stephen Doyne. His impressions, as expressed to me, were
that both of these professionals have not truly listened to him, nor did his feelings seem to
matter, much like his impressions in his dealings with his mother. He also expressed that
neither counseling with his mother nor mediation changed or improved the difficulties he
was experiencing with his mother."
12 Father's attorney also discussed the findings after Ryon and Craig were
interviewed by family court services in August/September 2012. Ryon allegedly told the
interviewer his reasons for the breakdown in the relationship with mother, including that
they argue a lot; mother lies to him; mother makes him feel guilty "with things she says
to him"; mother recanted on her promise for him to play football; and mother told him
she wished Ryon had never been born and was a burden to her.
Father's attorney also touched on the issue of whether Ryon believed father was to
blame for Ryon's issues with mother: "Ryon stated to me he believes his father
encourages and supports him having a good relationship with his mother, that his father
has told him of the importance of his relationship with his mother, and that his father has
forced him to spend time with his mother against his wishes. Being forced to see her,
however, makes him want to spend less time with her."
As discussed post, the court in March 2013 conditionally granted father's motion
to allow Ryon to testify at the upcoming evidentiary hearing. However, the court in its
order reserved the right to exclude any testimony from Ryon after it heard the testimony
from "all other witnesses."
The record shows before the evidentiary hearing began, both mother and father
submitted voluminous additional documents and/or information for the court to consider
in ruling on mother's request for sole legal custody of the boys. Mother included an 11-
page report of Dr. Doyne dated October 31, 2012 in which he continued to recommend
the parents have joint legal custody of the boys, and mother would have visitation with
13 Ryon on alternate weekends from 11:00 a.m. to 7:00 p.m. when Craig was in her care.
Dr. Doyne noted that the situation between Ryon and mother was "rather sad" and that
Ryon mistakenly believes he can decide what type of visitation is appropriate with
mother. Dr. Doyne also noted that father "will have to take a more supportive position"
with respect to Ryon having a relationship with mother, "otherwise Ryon will remain
estranged from [her]."
As noted by the court in its July 30, 2013 "order re: custody; visitation; fees/costs;
reimbursement of Dr. Doyne's fees" (order), the matter came on for hearing on April 9,
May 20 and June 4, 2013. At the conclusion of the testimony, the court issued its order,
ruling in part as follows:
"The Court has considered the testimony of witnesses (including, but not limited
to, the testimony of Stephen Doyne and his reports/letters/recommendations which were
entered into evidence), exhibits introduced into evidence, the comments of counsel,
including, but not limited to, the closing arguments which were submitted in writing.
"Cases involving children of this age are extremely difficult. The Court is aware
that it is the best interests of the children, which control the decision in this case, and not
the best interests of the parents.
"Ryon (age 15-16 in September) has been refusing all contact with the Respondent
(his mother) for over a year. He has cut himself off from having any connection with his
mother for over a year. It is obvious that the parents have refused to communicate
effectively concerning their two children. This has played a major part in the breakdown
14 of the relationship that has occurred between the boys and their mother. The Respondent
has claimed that extreme alienation has been caused by the Petitioner relating to the
relationship of Ryon and his mother. The Court does not find that the evidence supports
the position taken by the Respondent and the opinion of Dr. Doyne that the Petitioner has
caused the alienation and the breakdown in the relationship between Ryon and his
mother. Therefore, the Court denies the request by the Respondent that she be granted
sole legal and physical custody of both boys. These two boys (especially Ryon) have
been through enough stress caused by the inability of these two parents to come to any
sort of an agreement regarding the two boys. In fact, it appears that the Respondent has
put herself in a position where she refuses to discuss even minor issues without involving
a professional to resolve any differences the parties might have concerning the two boys.
"The Court finds that Ryon's alienation from his mother is not due to his father's
influence. The estrangement between Ryon and his mother has been caused, for the most
part, by the mother's own actions.
"Therefore, as to Ryon, the Court orders that the father will have sole legal and
physical custody of Ryon and that the Respondent/Mother be permitted to spend time
with Ryon as mutually agreed upon between Ryon and his mother. The father is to do
everything possible to encourage the reunification of the relationship between Ryon and
his mother.
15 "As to Craig, the Court orders that the parties are to have joint legal and physical
custody of the minor child. If the parties are unable to make joint decisions concerning
school selection and extra-curricular activities, the Father/Petitioner shall have the right
to make the final decision. Further, the Court orders that the parties are to have a child-
sharing plan with Craig on an alternating week schedule. The mother must realize that
she is to make sure that Craig attends the extra-curricular activities that he wishes to
participate in. This Court finds that it does not diminish a parent's role to request the
assistance of the other parent in having a child attend extra-curricular activities.
"The Court finds it incredible that these parents are unable to attend an extra-
curricular activity of the children at the same time. The Court understands the position of
the Respondent that the Petitioner may be 'overly intimidating' but she needs to recognize
her responsibility as a parent and to attend the activities whenever possible. The
Petitioner is to understand the responsibility of a parent to attend the activities and to
make it as pleasant as possible so as to minimize the stress upon the children in having
both parents present at their extra-curricular activities.
"The Court orders that the parents bear their own attorneys' fees and costs and the
costs incurred by Dr. Doyne be equally divided between the parties."
The record shows that both parties requested a statement of decision. The court in
late August 2013 ordered father to submit a proposed statement of decision within 30
days, which the record shows father in fact did when he submitted in late September 2013
16 a 30-page proposed statement of decision. However, the record2 shows no statement of
decision was ever entered.
DISCUSSION
A. Statement of Decision
Mother contends the order must be reversed because the statement of decision was
never issued in this case.3 We disagree.
"The history, purpose and importance of a statement of decision are clear. Section
632 [of the Code of Civil Procedure] originally required written findings of fact and
conclusions of law. [Citation.] Findings were considered fundamental to the
decisionmaking process. [Citation.] 'The right to findings is a substantial right, as
inviolate, under the statute, as that of trial by jury under the constitution. [Citation.] The
2 At mother's request, we take judicial notice of the fact the trial judge that heard and decided the matter and issued the order, the Honorable William J. McAdam, retired from the bench on September 30, 2013, just a few days after father submitted the proposed statement of decision.
3 We will assume, without deciding, that a statement of decision was required under Code of Civil Procedure section 632 after mother and father both asked for one. (See, e.g., In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040 [concluding Code Civ. Proc., § 632 does not require a court to issue a statement of decision for an order on a motion, as contrasted to a trial followed by a judgment].) This statute provides in part: "In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision." (Code of Civ. Proc., § 632.)
17 code provision requiring written findings of fact is for the benefit of the court and the
parties. To the court it gives an opportunity to place upon [the] record, in definite written
form, its view of the facts and the law of the case, and to make the case easily reviewable
on appeal by exhibiting the exact grounds upon which judgment rests. To the parties, it
furnishes the means, in many instances, of having their cause reviewed without great
expense. It also furnishes to the losing party a basis of his motion for a new trial; he is
entitled to know the precise facts found by the court before proceeding with his motion
for new trial, in order that he may be able to point out with precision the errors of the
court in matters either of fact or law.' " (Whittington v. McKinney (1991) 234 Cal.App.3d
123, 126-127.)
"A statement of decision is as much, or more, for the benefit of the Court of
Appeal as for the parties. It 'is our touchstone to determine whether or not the trial court's
decision is supported by the facts and the law. [Citation.]' [Citation.] The importance of
the statement of decision is underscored by the rule that a trial court's failure to render a
statement of decision is reversible error." (In re Marriage of Sellers (2003) 110
Cal.App.4th 1007, 1010.) In family law cases, a statement of decision also serves as a
useful guide to future decisions; it serves as an evidentiary benchmark for future
modification orders. (In re Marriage of Reilley (1987) 196 Cal.App.3d 1119, 1126.)
It is axiomatic that when a party fails to request a statement of decision or fails to
point out deficiencies in the statement of decision, we are to imply findings in support of
the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)
18 However, we do not imply findings when, even in the absence of a statement of decision,
the judgment or order sets forth the reasons for the court's decision. (See, e.g., In re
Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489, 1494, fn. 3 [comparing cases
where the record contained no explanation of the basis of an award to the situation before
it, where the judgment "sets forth the reasons" for the court order erroneously requiring
one spouse to pay a portion of the other's fees incurred in defending a dependency
proceeding]; In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580 [refusing to
presume the trial court found all facts necessary to support the judgment because the
record was sufficient to provide an explanation as to the reasoning of the court].)
Here, while the trial court did not issue a statement of decision, we conclude the
order it did issue set forth at length and in detail the factual and legal basis of its decision
to award father sole legal custody of Ryon and mother and father joint legal custody of
Craig, with father having the right to make a final decision with respect to Craig's school
selection and extracurricular activities if they cannot agree. We thus further conclude the
order served the purpose of a statement of decision and deny mother's request to reverse
the order because a statement of decision never issued.
B. Adequacy of the Record
Although the order provides sufficient detail for this court to conduct a meaningful
review of the trial court's rulings, the same cannot be said about the record lodged by
mother. As noted, the order states the evidentiary hearing on mother's request for sole
legal custody of both boys took place over three days, namely on April 9, May 20 and
19 June 4, 2013. The record shows that at the conclusion of the May 20 hearing, the court
inquired how much longer father's counsel needed to complete the cross-examination of
mother. Father's counsel estimated she needed a few more hours. Father's counsel also
stated she planned on calling Ryon as a witness. The court stated the evidentiary hearing
would resume on June 4 at 9:00 a.m. and, once they finished with mother as a witness, it
would take up the issue whether Ryon would testify.
Mother lodged the reporter's transcript from April 9 and May 20, 2013, but not the
transcript from the June 4 hearing. However, mother lodged the transcript from the
August 9, 2013 ex parte hearing she set that involved a request for a statement of decision
(discussed ante) and mother's request to stay the order, which the record shows was
denied by the court.
" ' "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." ' " (Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) " 'A
necessary corollary to this rule is that if the record is inadequate for meaningful review,
the appellant defaults and the decision of the trial court should be affirmed.' " (Ibid.)
An appellant bears the burden to provide a complete record to allow a reviewing
court to access the purported error raised by appellant. (See Fundamental Investment etc.
Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) "[A] record is inadequate, and
20 appellant defaults, if the appellant predicates error only on the part of the record
[appellant] provides . . . , but ignores or does not present to the appellate court portions of
the proceedings below which may provide grounds upon which the decision of the trial
court could be affirmed." (Uniroyal Chemical Co. v. American Vanguard Corp. (1988)
203 Cal.App.3d 285, 302.)
Therefore, if as in the instant case the record on appeal does not contain all of the
documents or other evidence submitted to the trial court, a reviewing court will "decline
to find error . . . and thus infer substantial evidence" supports the trial court's findings.
(Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955.)
Here, mother provided an incomplete record. The court's order and the record
itself show there were additional proceedings on June 4, 2013, when ostensibly mother's
testimony was completed and when perhaps Ryon testified, as father's attorney discussed
at the conclusion of the May 20 evidentiary hearing. Moreover, although the court
reserved ruling on the issue of whether Ryon would in fact testify at the June 4 hearing,
the record shows the court had preliminarily granted father's motion to allow that
testimony to go forward. By failing to include in the record on appeal all the testimony
and evidence given in connection with the court's order, we conclude mother has not
rebutted the presumption that the trial court acted correctly when it issued its order in this
case. (See Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 [noting that if " 'appellant
predicates error only on the part of the record [appellant] provides the trial court, but
ignores or does not present to the appellate court portions of the proceedings below which
21 may provide grounds upon which the decision of the trial court could be affirmed,' " the
record will be deemed inadequate and we presume there was no error].)
C. The Merits of the Order
Despite the inadequacy of the record and the presumption of correctness that
applies to the order issued in this case, we nonetheless independently reviewed the
testimony and evidence that mother included in the record and, based on that review, we
have no difficulty concluding the trial court properly exercised its discretion when it
made its findings and rulings in the order. (See Montenegro v. Diaz (2001) 26 Cal.4th
249, 255 [noting a court of review applies the " 'deferential abuse of discretion test' "
when reviewing custody and visitation orders].)
Indeed, as noted in the summary ante, the record shows at the time of the hearing
that Ryon was almost 16 years old and that Ryon was refusing all contact with mother.
The record also shows that despite mother's contentions otherwise, substantial evidence
in the record supports the court's finding in its order that father was not the cause of the
breakdown in the relationship between Ryon and mother, and that in fact father
repeatedly encouraged Ryon to have contact with mother; that at some point father's
efforts paid off when Ryon had some limited contact with mother in the July/August
2012 timeframe, as noted by Dr. Doyne when he testified that Ryon did not want to have
these visits with mother but did so only because his father made him; that when Ryon
later refused to continue these Sunday visits, father reluctantly came to the conclusion
that he could not physically force Ryon to see mother, as he believed, and the judge
22 tacitly found that doing so would only make things worse and not better between Ryon
and mother; and that father was concerned that if he forced Ryon to visit with mother,
Ryon might run away or engage in other destructive behaviors.
Father summarized his views on forcing Ryon to visit mother when he testified as
follows: "I think trying to force a 15-year-old, especially Ryon, to do anything is going
to do more harm than good at this point. It's been proven. I've tried to force him; experts
have tried to force him. I have physically, you know, to the point of forcing him, you
know, with having arguments with his mom in front of him . . . . Forcing him is not
working. There's—he's pulling back harder by forcing him. It's in my opinion, it's just
not working."
The record also supports the finding of the trial court in its order that the
breakdown in the relationship between mother and Ryon was "caused, for the most part,
by the mother's own actions." Indeed, the record shows that because of a single
"confrontation" in early July 2010—as told differently by mother and father—that
occurred between them at one of Ryon's sports activities, mother from that point forward
for the most part refused to attend Ryon's athletic activities, extracurricular activities,
school meetings (i.e., when Ryon was experiencing some bullying issues at school) and
medical appointments if father was also expected to be present. Mother explained she
refused to attend these events because of the "conflict that will arise from being near
[father]." Mother also refused to speak with father after this confrontation because she
was not "comfortable" doing so and insisted that all communications be made via email,
23 which clearly made it difficult if not impossible for mother and father to make a good
faith effort to resolve any issues between them and/or the boys—as they had agreed to
do—before seeking help from the professional mediator.
The record also shows that mother took no responsibility for any of the problems
she and Ryon were having, despite the fact that even Dr. Doyne recognized there were
some "missteps" by mother. Specifically, during her examination, mother confirmed her
belief that it was father and his "influence, control, and manipulation" that was the sole
cause of the alienation between her and Ryon:
Question to mother: "So you don't believe you've done anything whatsoever to
contribute to that [i.e., the alienation]?"
Mother: "No."
Question to mother: "And you think that, but for [father] and his relationship with
the kids, you would continue to enjoy a strong, loving relationship without any conflict
with Ryon?"
Mother: "Going forward, yes."
The record also shows that mother refused to recognize that Ryon had a close
relationship with father, with whom Ryon had been living with for more than a year at
the time of the evidentiary hearing:
Question to mother: "So do you know . . . whether he [i.e., Ryon] has a close
relationship with his dad?"
Mother: "I—I don't know."
24 Mother also refused to acknowledge at least the possibility that, if she was
awarded sole legal and physical custody of Ryon, it could be detrimental for Ryon not to
see father:
Question to mother: "How do you think he [i.e., Ryon] would feel if he was close
with his father to be cut off from him, as you propose?"
Mother: "I don't know how he would feel, if that's—I don't know. That's a
circumstance we haven't come across yet."
Question to mother: "You'll put your son at risk—"
Mother: "I'd never put Ryon a[t] risk."
Question to mother: "Pardon?"
Mother: "I wouldn't ever put Ryon at risk."
Question to mother: "You don't see any potential harm that could come of that?"
Mother: "Any potential? I think if [father] gets help, I think they could have a
healthy relationship at some point. I would absolutely want that."
Question to mother: "But you don't think there could be any potential harm from
cutting him off from . . . another person he feels close with?"
Mother: "I don't think there would be harm, or any harm to Ryon."
The record also shows that when father early on requested additional time with the
boys, including a 50-50 split of time with mother that was ultimately recommended by
two private mediators, mother initially rejected it without asking either Ryon or Craig if
they wanted to spend more time with father:
25 Question to mother: "And isn't it true that you informed [the private mediator]
that you were happy with the existing schedule [that gave mother more time with the
boys than father] and thought [father] was seeking to take time away from you that the
boys were enjoying? Isn't that what you told her?"
Mother: "I believe so."
Question to mother: "And that was your sentiment at the time?"
Mother: "I believe that it was, yes."
Question to mother: "Did you ever talk to the kids to find out if they wanted to
have some more time with their dad?"
Mother: "I did not. I don't discuss court orders, court issues with the boys at all."
Question to mother: "You didn't have to discuss the court issue. You could just
ask, 'How would you like to spend more time with your dad?' Why does that involve a
court issue?"
Mother: "I think that's between his dad and I to discuss. The boys, if they were in
mediation talking about this with someone, they would have an opportunity to voice their
opinions there. I don't believe that's a mom or dad issue to find out about, unless they
brought it up themselves."
The record shows mother eventually agreed to the 50-50 split proposed by father
after a private mediator interviewed both boys and reported the boys in fact wanted to
spend more time with father as he proposed.
26 The record also supports the court's finding that it was in Ryon's best interest for
father to have sole legal and physical custody of him and for father to act as the "tie-
breaker" with respect to Craig and his "school selection and extra-curricular activities," as
both parents and Dr. Doyne testified that judicial intervention was required in this case
because the relationship between the parents had deteriorated to the point it was no longer
possible for them to share custody of Ryon and to make decisions together on relatively
minor issues involving the boys without involving a professional mediator; that mother
admitted she refused to confer with father about enrolling the boys in sports and
extracurricular activities and "always" sought professional assistance to work out the
details; that Ryon was then living with father and his family, was thriving and was clear
that he wanted to continue in that arrangement; that Ryon was having medical issues that
father primarily was handling; that Ryon not only did not want to live with mother, but he
also did not want to have visits with her; that Ryon at the time of the hearing was almost
16 years old, felt mother did not respect and listen to him and believed mother lied to him
(i.e., about having breast cancer); and that father was a responsible and loving parent and
would continue to encourage Ryon to have a relationship with mother.
That there is evidence in the record that would support findings that were different
than those made by the court, including a finding awarding mother sole legal and
physical custody of Ryon, for example, or a finding making her the "tie-breaker"
regarding Craig's school choice and extracurricular actives, does not change our decision
in this case. "In reviewing the sufficiency of the evidence on appeal, we look to the
27 entire record to determine whether there is substantial evidence to support the findings of
the . . . court. We do not pass judgment on the credibility of witnesses, attempt to resolve
conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we
draw all reasonable inferences in support of the findings, view the record in the light most
favorable to the . . . court's order, and affirm the order even if there is other evidence that
would support a contrary finding." (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)
Like the trial court, we too recognize that cases such as the instant one can be
"extremely difficult." In our role as a court of review and in our discussion we mean no
disrespect, as it is clear from the record mother loves the boys and is doing what she
believes is right to regain a meaningful and loving relationship with Ryon. That said, we
are constrained to conclude that the trial court properly exercised its discretion in its
rulings in connection with the order and that the findings made by the court therein are
supported by substantial evidence in the record.
DISPOSITION
The order of the court is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
McINTYRE, J.