Ramirez v. Marslek CA1/2

CourtCalifornia Court of Appeal
DecidedJuly 31, 2014
DocketA137242
StatusUnpublished

This text of Ramirez v. Marslek CA1/2 (Ramirez v. Marslek CA1/2) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramirez v. Marslek CA1/2, (Cal. Ct. App. 2014).

Opinion

Filed 7/31/14 Ramirez v. Marslek CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

MARIA RAMIREZ, Respondent, A137242 v. ROBERT WALLACE MARSLEK, (Alameda County Super. Ct. No. HF10513783) Appellant.

Robert Wallace Marslek appeals from the written findings and order after hearing made by the Alameda County Superior Court, which modified his rights regarding his daughter (daughter), who is now approximately 13 years old. Maria Ramirez, daughter’s mother, petitioned the court for changes in Marslek’s custody and visitation rights after Marslek’s arrest in connection with marijuana cultivation and weapons charges, which Marslek later reported were dismissed, and daughter’s revelation that Marslek had roughly interrogated her about what she had said about his activities. The court issued a temporary order that Marslek have only supervised visitations with daughter, ordered a custody evaluation report by a neutral psychologist pursuant to Evidence Code section 730 and, upon the report’s completion, conducted a hearing regarding Ramirez’s petition. It admitted the report into evidence without objection and, relying heavily on it, made certain factual findings and ordered, among other things, that Marslek continue to have only supervised visits with daughter and that he, as well as Ramirez, refrain from cultivating marijuana, including for personal use.

1 Marslek argues we must reverse the court’s findings and order because he did not knowingly or consensually waive his fundamental right to a trial and was denied his constitutional right to a full and fair one; the court’s order allowing him only supervised visitations, as well as certain related findings, are not supported by substantial evidence; and the psychologist and the court improperly barred his legal right to medical marijuana.1 We affirm the judgment in its entirety. BACKGROUND This case involves a bitter dispute between parents of a daughter who has been caught between them. It involves numerous factual contentions, but we discuss only those relevant to resolving Marslek’s appeal. Ramirez’s Initiation of the Dispute Marslek and Ramirez do not appear to have been involved romantically for many years. Prior to this action, they shared joint legal custody of daughter and followed without dispute a physical custody and visitation arrangement regarding her. In April 2010, Ramirez, through counsel, appeared in Department 504 of the superior court that retained continuing jurisdiction over a domestic violence prevention matter between Marslek and Ramirez that occurred some years before. Ramirez sought modifications to Marslek’s rights similar to those discussed further herein, but the specifics of her request are not contained in the record. The court told Ramirez’s counsel that she needed to file a paternity action in a family law department, but considered her request for a temporary order modifying Marslek’s rights regarding daughter, then about 8 years old, given Marslek’s recent arrest in connection with marijuana cultivation and weapons charges. Ramirez alleged Marslek

1 Marslek filed his opening brief while representing himself in propria persona. he later retained counsel, who filed his reply brief. It contains new claims, contentions, and arguments without explaining why Marslek did not raise them before. Therefore, we disregard them. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [“[p]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”]; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [“[p]ro. per. litigants are held to the same standards as attorneys”].)

2 had involved daughter in marijuana cultivation and allowed her to hold a weapon. The court, having determined that Marslek was no longer in possession of the marijuana or weapons, did not see any ongoing danger. It ordered that joint legal custody would continue and mother would have sole physical custody of daughter, denied mother’s request that father have only supervised visitations with daughter, and indicated its temporary order should be reviewed in the family law case Ramirez intended to file. In May 2010, Ramirez filed a petition to establish parentage and give her sole legal and physical custody of daughter. She also moved ex parte that Marslek have no visitations with daughter until parentage was established and the parties had participated in full custody mediation, or that Marslek’s visitations with daughter be professionally supervised. In addition to her previous allegations about Marslek’s arrest, Ramirez alleged daughter told her “Marslek is physically and mentally torturing her. [Daughter] stated Marslek interrogates her, holding her down on the ground grabbing her jaw to the point where she could not breathe. . . . [Daughter] is terrified and has no one to turn to.” Marslek, represented by counsel, denied there was any reason to modify his rights. The court, with the agreement of the parties, ordered that a custodial evaluation be conducted by a neutral psychologist. It made an interim order that Ramirez would have physical custody of daughter and Marslek would be allowed supervised visitations only. The Custody Evaluation In September 2010, the court, with the parties’ agreement, appointed a psychologist to conduct a custodial evaluation. As was later reported to the court, Marslek soon thereafter insisted to the psychologist that she complete an interim evaluation. He insinuated that he would sue her if she did not do so in the time he thought was appropriate. The psychologist asked the court to permit her to withdraw because she could not ensure her impartiality under threat of suit. The court did so in February 2011. In deference to Marslek’s criminal matter, the court delayed appointing a new custodial evaluator until June 2011, when Marslek reported the criminal matter had been dismissed and he was ready to proceed with the evaluation. The court appointed Dr.

3 Donald Fallin with the assent of both parties. Fallin completed his evaluation and provided the court with a 68-page report in January 2012.2 The Court’s Hearing Regarding Custody and Visitation Rights In January 2012, the court commenced a hearing regarding custody and visitation rights, focusing on Fallin’s evaluation report and recommendations. It asked Marslek, appearing in propria persona, if he intended to call any witnesses, such as Fallin, and Marslek indicated he did not. Marslek also indicated he had received Fallin’s report in advance of the hearing and reviewed it in detail with his counselor, Robles. After reviewing some of Fallin’s recommendations with the parties, the court admitted Fallin’s report into evidence without objection. The court then began stating various findings, including regarding Marslek’s troubling behavior towards daughter, his partner, and two other women named Stalls and Wharter, his possession of assault weapons and commercial cultivation of marijuana, Fallin’s conclusion that Marslek used inappropriate bullying and other intimidation methods to get his way, Marslek’s criminal behavior, and his minimizing of his inappropriate actions, all of which we summarize further below in discussing the court’s written findings and order after hearing. Marslek disputed some of the court’s findings, but acknowledged others.

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Denham v. Superior Court
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229 Cal. App. 3d 1616 (California Court of Appeal, 1991)
Kobayashi v. Superior Court
175 Cal. App. 4th 536 (California Court of Appeal, 2009)
In Re SC
41 Cal. Rptr. 3d 453 (California Court of Appeal, 2006)
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Campos v. Anderson
57 Cal. App. 4th 784 (California Court of Appeal, 1997)

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Bluebook (online)
Ramirez v. Marslek CA1/2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-marslek-ca12-calctapp-2014.