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In Re the Marriage of Lisa and Joseph Alfar. v. Joseph Alfar

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)


September 19, 2011

IN RE THE MARRIAGE OF LISA AND JOSEPH ALFAR. LISA ALFAR, APPELLANT,
v.
JOSEPH ALFAR, RESPONDENT.

(Super. Ct. No. PFL20070375)

The opinion of the court was delivered by: Butz , J.

In re Marriage of Alfar CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Mother, Lisa Alfar, appeals from a court order awarding father, Joseph Alfar, joint legal custody of the parties' minor children. We find the trial court acted within its discretion and shall affirm the order.

FACTUAL BACKGROUND

In March 2005, mother lived in Philadelphia, Pennsylvania and was awarded sole legal and physical custody of the parties' two boys, then aged 10 and almost 12. Father, who still lived in California, was awarded therapeutic visitation with the boys until the therapist determined that father was ready to see them by himself after a minimum of 10 therapeutic visits. The goal for the therapeutic visits was to have the boys visit father during the majority of their 2004-2005 school holidays. The court further ruled that at the end of the summer of 2005, it would consider awarding mother and father joint legal custody.

Father moved to set aside that order. Father's motion was denied; he appealed the trial court's ruling. The court's ruling was affirmed on appeal in January 2007. (In re Marriage of Alfar (Jan. 31, 2007, A112558) [nonpub. opn.].)

In July 2007, father moved to modify the custody order. Following father's motion, his supervised therapeutic visitation with the boys was ordered continued and minors' counsel was appointed in October 2007. Trial on father's motion to modify custody was set for July 30, 2008. After the trial date was set, the court ordered the family to participate in a Family Code section 3111*fn1 custody evaluation with the court-appointed expert, Eugene Roeder, Ph.D. Thereafter, the trial date was vacated and new minors' counsel was appointed.

In October 2008, after completing his custody evaluation, Roeder recommended the boys remain in the sole custody of mother, and that they "immediately" begin having unsupervised parenting time with father. Roeder further recommended that after three or five daytime visits with father, father and the boys meet again with Tim Rood, their therapeutic visit supervisor, "to arrange a more extensive parenting time for the boys with their father."

Roeder recommended that Rood communicate directly with minors' counsel regarding the parenting schedule. Minors' counsel would then be responsible for monitoring the boys' progress, and require the parents to meet with her if necessary.

The trial on father's motion to change custody was heard over two days in December 2008 and January 2009. At the conclusion of trial, the court ordered father and the boys to have therapeutic visitation, beginning immediately, two times per month for "the next 90 days." If the visitation supervisor, Rood, was unavailable, minors' counsel was to contact another therapist.

In April 2009, at a 90-day review hearing on father's parenting, marriage and family therapist Bijili Abbey, made her own recommendations to the trial court regarding custody. Those recommendations are not part of the record on appeal, though they were adopted in full by the trial court as "a temporary order." Included in Abbey's recommendations was a recommendation that the boys participate in counseling and that periodic case status reviews be had with the court. Accordingly, the court appointed Larry Nicholas, Ph.D., as the boys' counselor, and asked that he provide the court with periodic status reviews.

On December 8, 2009, Nicholas filed a letter with the trial court wherein he described his meetings with the family and reported on the family's status. Nicholas observed that the first interaction between father and the boys was "quite positive." He reported the boys were friendly, there was no hostility displayed by father or the boys, and the boys expressed a desire for more time with father who was now living in Southern California.

Nicholas supervised additional visits with father and the boys in his office. Nicholas observed that the boys were becoming more comfortable with father and the boys and father were "clearly engaged with each other." Nicholas, who was meeting with father and the boys before and after each visit, suggested the visits be moved from his office to a neutral location. He also suggested that he meet with them at the end of each visit; father and the boys agreed to Nicholas's suggestions.

Nicholas asked the trial court for a parenting plan to clarify the frequency and length of father's visits with the boys. He also sought clarification regarding the "exchange arrangements."

Minors' counsel made her own recommendations regarding custody and visitation. She recommended the current orders remain in effect with the modification that beginning in January 2010, father should have parenting time with the boys on the third weekend of each month. The parenting time could occur anywhere in California provided that father gave mother an itinerary and phone numbers. Minors' counsel further recommended the boys be allowed to contact father by telephone "at their discretion at all reasonable times." At a review hearing in December 2009, the trial court adopted the recommendations of minors' counsel, with its own, minor modifications. The court also ordered mother to submit points and authorities on her opposition to joint legal custody and gave father a date upon which to submit his response.

After receipt of the parties' briefing, the trial court issued a written decision regarding custody on January 22, 2010. The court ordered the parties to have joint legal custody, and awarded mother primary physical custody. "Since April of 2009, these boys have been having ever[] increasing visitation with [father] after having no contact with [him] for several years. These visits came about as a result of [father] seeking to re-establish his relationship with his sons by filing an Order to Show Cause regarding modification of custody and visitation in July, 2007. Although several bench officers, two separate attorneys appointed to act as minors' counsel, and two [Ph.D.'s] specializing in child custody matters recommended contact between [father] and his sons, [mother] thwarted those efforts for nearly [one and a half] years. Since April, the contact between the children and their father has gone from therapeutically supervised to supervised to the current schedule of unsupervised on the third weekend of the month.

"The issue before the Court is the 'best interest of the boys.' Considering the boys' health, safety and welfare, the Court finds that there is no evidence that the boys' health, safety or welfare would be jeopardized by a joint legal custody order. On the other hand, the Court has no doubt that [mother] would use a sole legal custody order in her favor as a sword against [father] and such a sword would not be in the best interest of these children."

Mother appeals from this order.

DISCUSSION

I. The Record Shows Changed Circumstances Warranting a Custody Modification

Mother contends the trial court erred by modifying a permanent custody order without a showing of changed circumstances. We disagree.

We review custody and visitation orders under an abuse of discretion standard, giving deference to the trial court's decision. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.) We will uphold the ruling if the trial court could have reasonably concluded that the order advanced the best interests of the child. (Ibid.)

Here, an order granting mother sole legal and physical custody of the minor children was originally entered as part of a judgment on reserved issues in March 2005. As discussed below, we conclude there was a sufficient showing of changed circumstances to support the trial court's decision to modify the custody order. Thus, we assume for purposes of discussion here that this was a final judicial custody determination.*fn2

Once a final judicial custody determination is in place, a party seeking to modify the permanent custody order can do so only if he or she demonstrates "changed circumstances," indicating that a different custody arrangement would be in the child's best interest. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256; accord, In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.)

The changed circumstance rule is not a different test, but an adjunct to the best interest test. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) Once it has been established that a particular custodial arrangement is in the children's best interests, that arrangement should be preserved unless some significant change in circumstances indicates that a different arrangement would be in the children's best interest. (Ibid.; In re Marriage of Brown & Yana, supra, 37 Cal.4th at pp. 955-956 [once a court has entered a final custody order reflecting the child's best interest, the paramount need for continuity and stability weighs in favor of maintaining that custody arrangement].)

Our review of the record satisfies us that the trial court did not abuse its discretion in modifying custody.

Again, assuming that changed circumstances were required, the record shows numerous changed circumstances. Previously the boys had no contact with father; the children now visit father two to three days a month in Southern California. Since April of 2009, the boys and father have been through extensive counseling as well as therapeutic visits. Furthermore, the trial court opined that it had "no doubt" mother would use an order of sole legal custody "as a sword against [father] and such a sword would not be in the best interest of [the] children."

On this record, we cannot say the trial court abused its discretion in modifying custody.

Mother further contends that, in ordering joint legal custody, the trial court ignored the recommendations of its own experts. Contrary to mother's apparent understanding of the law, the trial court is not bound by the recommendations of its experts. Section 3183 unambiguously states the mediator may make a "recommendation" regarding custody and visitation. (§ 3183, subd. (a).) Such recommendations are "evidence to be weighed with all other evidence and it is the court, not the mediator, that bears the responsibility to decide custody." (In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1104, disapproved on another point in In re Marriage of Burgess (1996) 13 Cal.4th 25, 38-39, fn. 10; see also In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1472-1474 [court permitted mother to move away with the child despite expert's finding that a move away would cause the child some detriment].)

Mother also argues that the trial court "fabricated nonexistent law to support its predetermined custody decision." Specifically, she argues there is no authority to support the trial court's position that father could not obtain medical care for the boys unless he also had legal custody of them. Whether or not father requires joint legal custody to obtain medical care for the boys, there was a sufficient showing of changed circumstances to justify modification of the custody order.

II. Mother's Remaining Claims Are Forfeited

Mother raises several other claims on appeal that are not supported by citation to legal authority or the record. Each of these claims thus fail.

On appeal, an appellant must present an analysis of the facts and legal authority on each point made, and must support the analysis with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274 (Solano); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte); see also People v. Saunders (1993) 5 Cal.4th 580, 589-590, fn. 6 [difference between "waiver" and "forfeiture"].) These restrictive rules of appellate procedure apply to mother even though she is representing herself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

Buried in her claim that the trial court erred in modifying the custody order, mother claims the trial court showed "reckless disregard for the children" in this case. In support of her claim mother asserts: "Simply on the [minors'] attorney's request and against any recommendations by court-appointed counselors, [the trial judge] was going to send the kids to San Diego, to a father who kept himself a mystery for years to everyone including the Court--including even his address."

Presumably, mother's claim is that the trial court abused its discretion in allowing the boys to visit father in San Diego, where he is now living. The order from which mother appeals, however, does not include an order for visitation. Moreover, mother failed to cite to any order in the record providing for such visitation or make any legal argument as to why such an order would be an abuse of the court's discretion. Accordingly, this claim is forfeited. (Solano, supra, 75 Cal.App.4th at p. 1274; Duarte, supra, 72 Cal.App.4th at p. 856.)

Mother also claims the trial court erred in ordering a custody evaluation and an evidentiary hearing on the issue of custody even though father failed to make a prima facie showing of changed circumstances. Again, mother fails to support these claims with relevant citations to the record or legal authority. Accordingly, they are forfeited. (Solano, supra, 75 Cal.App.4th at p. 1274; Duarte, supra, 72 Cal.App.4th at p. 856.)

Moreover, the court's order for a section 3111 custody evaluation was issued in the summer of 2008. The record on appeal includes neither the order about which mother is complaining, nor does the record include a transcript of the hearing where the order was issued. We cannot review an order that is not included in the record.

Even if the order had been included in the record, it was issued three years ago and a notice of appeal must be filed 60 days after the trial court enters a final, appealable order. (Cal. Rules of Court, rule 8.406(a)(1).) "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.'" (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) Mother cannot challenge that order now on this appeal. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 ["an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment"].)

III. Mother's Claims Regarding the Court's Bias and the Insulation of Both Counsel for the Minors Are Not Well Taken

Mother includes in her appeal a list of complaints regarding the trial court and both counsel for the minors. Mother contends the trial court was biased against her and insulated counsel from censure for incompetence. Mother fails, however, to cite any legal authority to support her claims. They are, therefore, forfeited. (Solano, supra, 75 Cal.App.4th at p. 1274; Duarte, supra, 72 Cal.App.4th at p. 856.)

DISPOSITION

The order of the trial court is affirmed. Costs are awarded to father. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: RAYE , P. J. MAURO , J.


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