IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 23, 2010
RAMA DIOP, PLAINTIFF AND APPELLANT,
RICHARD MEREDITH OWENS, DEFENDANT AND RESPONDENT.
(Marin County Super. Ct. No. FL064080)
The opinion of the court was delivered by: Pollak, Acting P.J.
Diop v. Owens
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Rama Diop appeals from an order modifying an existing visitation order in custody proceedings involving her and her child's father, defendant Richard Meredith Owens. Diop, appearing in propria persona on appeal, does not challenge the modified terms of visitation adopted in the final order. Instead, she argues that her legal rights were violated when the court issued an interim order referring the parties to mediation over the new visitation plan. Owens has not filed a formal brief, but has submitted a letter stating that he opposes "any and all motions of any kind made by Ms. Diop in this and other matters relating to [him] before this court." Finding no abuse of discretion in the trial court's interim order and absent any challenge to the final order, we shall affirm the final order.
Factual and Procedural Background
On February 19, 2009, Owens filed a motion for modification of a prior court order establishing a visitation schedule with the parties' son. The motion was heard on April 9. Just prior to the hearing before the commissioner to whom the case had previously been assigned and who had ruled on prior motions, Diop filed an ex parte application to have the case reassigned to a judge on the ground that she had not stipulated to a commissioner hearing the case. The commissioner denied Diop's application orally at the hearing and by written order filed on May 5. On May 6, the court issued an order referring the parents to Family Court Services for mediation concerning a new visitation schedule. The record does not indicate whether the parties participated in mediation. However, a second hearing on the modification motion was held in July and on September 11, 2009, the court issued an order setting forth, among other things, a modified visitation schedule. Diop filed a timely notice of appeal of the September 11, 2009 order.
Although Diop's notice of appeal purports to appeal from the order entered on September 11, 2009, very little, if any, of her argument focuses on the visitation schedule or other therapeutic requirements imposed by that order.Instead, her opening brief focuses almost entirely on the April 9, 2009 hearing and the subsequent order referring the parties to mediation.*fn1
As noted above, just prior to the April 9 hearing, Diop filed an ex parte application challenging the commissioner's jurisdiction. At the start of the hearing, the commissioner indicated that she was denying the application and that she intended to hear argument on the motion at that time, but that on the chance that she was wrong, she had "arranged for those papers to be researched outside of . . . the family law department." Diop and her attorney responded by warning that if the commissioner did not continue the hearing, they would walk out. The commissioner advised against such action and attempted to move the hearing forward. The disagreement escalated as Diop's attorney demanded a new evidentiary hearing in front of a judge on allegations previously heard and rejected by the commissioner.*fn2 Diop also began interrupting the court, repeating her allegations against Owens and offering new information regarding the well-being of her child. The commissioner tried to stop Diop and her attorney from interrupting and attempted to make a ruling. Among other things, the court stated, "At this time father's request [to change visitation] is denied . . . . [¶] We've got this current visitation schedule which has only been in effect for a couple of months, as I recall, maybe three or four months by this point, and I think that the amount of stress and conflict that would be created by a change in the schedule . . . would be just too much conflict and not in [the child's] best interest." When she finished, Owens, who had been silent thus far, asked for his chance to speak to the court's ruling. The court initially indicated that it was too late for him to speak, but ultimately allowed him to make his comments. Diop's attorney objected repeatedly to Owens lengthy speech, which ultimately led to an argument on the record between Owens and the attorney. At this point, the commissioner told everyone to "stop" numerous times, took the matter under submission and asked the courtroom deputy for assistance.
In the written order issued in May 2009, the court revised her ruling stating, "Father's motion also sought a modification of the existing custody schedule so that father could have additional time with [the child]. Initially, the court believed that the current schedule should remain in place, having been ordered only a few months ago. However, father eloquently stated his position at the hearing and this court now realizes that with the end of the school year coming up these parents will need a summer schedule and a schedule going into the next school year. Accordingly, the parties are referred to Family Court Services for mediation on a schedule for summer and the fall."
On appeal, Diop characterizes Owens's statements at the hearing as the equivalent of an "illegal ex parte communication." She argues that the court violated her right to due process by relying on Owens's argument without allowing her an opportunity to rebut the information contained therein. She also argues that even if admissible, Owens's statements cannot support the commissioner's order because he is not credible and the evidence in the record does not support his claims. Owens, however, was not testifying or introducing evidence of any kind. He was merely attempting to argue in favor of his motion. Even assuming Owens exceeded the permissible scope of argument by relying on unproven facts or allegations, any error in this regard was harmless. The court did not rely on any specific allegation in deciding to refer the parties to mediation. Rather, she realized that the parents, who seemingly are unable to agree on anything, would need a new visitation schedule for the upcoming summer vacation. Under the circumstances, we find no abuse of discretion in this order. Moreover, Diop fails to explain how any error with regard to the mediation referral impacted the final order. Insofar as Diop has not raised any specific challenge to the modified visitation order entered on September 11, 2009, that order must be affirmed.
The September 2009 order is affirmed.
We concur: Siggins, J. Jenkins, J.