Opinion
D071827
11-02-2017
In re the Marriage of ADRIAN GIURA and MARIANA VETISAN ADRIAN GIURA, Respondent, v. MARIANA VETISAN, Appellant.
Dennis G. Temko for Appellant. Linda Cianciolo for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D552197) APPEAL from a judgment of the Superior Court of San Diego County, Cindy D. Davis, Judge. Affirmed. Dennis G. Temko for Appellant. Linda Cianciolo for Respondent.
This appeal arises from a custody dispute in the dissolution action between petitioner and respondent Adrian Giura (Father) and defendant and appellant Mariana Vetisan (Mother), concerning their son L. (the child, born in 2008). The family court tried the custody and visitation issues in the fall of 2016 and issued a statement of decision and judgment that Mother challenges on appeal. Mother contends the statement of decision failed to adequately address Mother's "significant" allegations that Father abuses alcohol, in view of all the evidence on the principal controverted issues at trial. (Fam. Code, § 3011, subd. (d).) We disagree and affirm the judgment.
Further statutory references are to the Family Code unless otherwise indicated. Section 3011, subdivision (a) requires that a court making a determination of the best interest of the child in a custody case shall consider the health, safety, and welfare of the child. Under section 3011, subdivision (d), if there are allegations of a parent's "habitual or continual abuse of alcohol" (or drugs, etc.), the court may first require independent corroboration of such abuse, before considering the claims.
FACTUAL AND PROCEDURAL BACKGROUND
A. Chronology; Custody Mediation
In November 2014, Father filed a petition seeking dissolution of the three-year marriage of the parties. The family lived together until 2015, when Father moved out. Father filed a request for an order on custody and visitation, and the parties were referred to mediation through family court services (FCS). Mother was seeking sole physical custody, and alleged that Father was abusing alcohol, which he disputed. In July 2015, the mediator made recommendations that were generally adopted by the court on an interim basis, beginning in July 2015. The parents shared joint legal custody, and the child primarily resided with Mother. Father was granted overnight visitation during the middle of the week and on alternating weekends.
In November 2015, Mother requested modified orders on support. Another mediation before FCS took place in April 2016. Mother told the mediator that Father has an alcohol abuse problem and often leaves the child unattended in the home for long periods of time while he is in the garage drinking and smoking. She said the child seemed distressed to be in Father's care and his grades were slipping. Mother told the mediator that since she, herself, is not a mental health professional, she cannot determine the extent to which Father's use of alcohol impairs his ability to care for the child. The mediator noted that Mother had not offered any examples of instances when the child was unsafe in the care of Father.
The mediator stated that Father acknowledged to her that he consumed alcohol daily, including when the child is in his care. Father denied leaving the child unattended for more than a few minutes at a time while he smoked in the garage, and he requested more parenting time to help with the child's school work. The May 2016 FCS recommendation adhered to the existing plan that the parties would share joint legal custody and the same visitation schedule, so that Father kept the child at his home during the middle of the week and on alternate weekends. Allowances were made for extended summer travel for either parent. Mother planned to take the child to visit relatives in Romania.
B. Trial Proceedings and Statement of Decision
The court bifurcated trial and first addressed financial issues in June 2016. In September and October 2016, the court heard several days of trial on the custody and visitation dispute. Mother was now representing herself, as she could no longer pay her attorney. Both parties, several friends, an FCS mediator and the child's doctor testified. Father's friend and coworker Chris Miclea, the child's godfather, told the court that Father had a normal father and son relationship with the child. Miclea occasionally drank beer with Father, but did not have the impression that Father was intoxicated while he was around his son or while at work. On a typical day, Father would sometimes have a glass of wine and smoke when getting home from work.
A mutual friend, Alina Popa, testified that she had visited Father and Mother's home when they lived together, and would sometimes see that Father was outside in the backyard, smoking, or at other times was in the garage. She had observed Father drinking wine, once to excess, but did not have reservations about leaving her own son in Father's care.
Over 400 pages of documentary exhibits specific to the custody dispute were admitted, including items submitted by the parents to the FCS mediators and their reports, as well as medical reports. Each parent submitted into evidence numerous e-mails and texts between them on various topics such as child care, school work, extracurricular activities, therapy, visitation, travel and child support. Mother submitted some of Father's 2015 bank and credit card statements to show that he had expenses in buying alcoholic beverages, tobacco and other things.
In particular, Mother pointed to an exhibit consisting of an eight-page printout of a lengthy July 2014 e-mail thread between the parties, translated from Romanian, in which they discussed numerous problems in their relationship and with parenting. Mother began that particular e-mail conversation by emphasizing that the couple's interpersonal problems would affect the child, and suggesting that Father should bring his alcohol levels "back to 'normal.' " Father responded with many points about their other disputes, such as intimacy, and stated that no matter how much Mother wanted to blame his use of alcohol, the problems were different. Mother replied that Father was just skipping over his alcoholism "nonchalantly" and had recently admitted it to a friend, but was now in denial. Father responded by summarizing the discussion as follows: "I drink wine? Yes? Probably I'm a sort of alcoholic -- and what's your problem, because I fail to see it? Do I get drunk and start yelling at you? Do I smack you around? What do I do? As far as I know, I'm calm and ok . . . . In part, I drink because it relaxes me after a day of work or whatever." This e-mail exchange continued with recriminations on both sides about their fallings out, infidelity and problems with relatives over the years.
After the parties rested their cases at trial, the court requested them to each address what they wanted and why it was in the best interest of the child. The court said, "I want to get back to that, because that's -- you gave me a lot of details, you gave me a lot of information about a lot of topics. But from where I sit, I'm trying to figure out what's best for [his] long-term interest." Father's closing argument outlined various requested changes to the visitation schedule, and noted:
"[T]he Court knows this file. Mom has repeatedly accused dad of being an alcoholic, but under 3011(d), the Court doesn't even have to consider that unless there's corroborating evidence. Mom hasn't presented anything during this trial except her opinion. [¶] And we had [two witnesses who are friends] . . . There's no evidence that dad has ever had a problem. He doesn't deny that he drinks alcohol. It is not unlawful to do so. It is only if it impairs your parenting ability. [¶] [A]nd, you know, there's all kinds of accusations. Dad leaves [the child] alone. It is just -- mom is very determined. And if the Court looks at the e-mails, mom has been very angry, and that gets passed down to [the child] . . . ."
Mother responded in her closing argument, "I do believe we have substance abuse issues. I have been witnessing it daily for the past eight years and before filing for divorce, and this is no doubt -- and I do believe that it is in the best interest of [the child] to protect him from that, or at least until Father is able to admit it and to work on it. [¶] He is, as well, having compulsive issues." Mother argued that Father's credit card bills showed he bought a lot of alcohol, and she understood that she was not going to be reimbursed for that, as had been determined at the previous phase of trial. However, she believed that Father had left the child alone at times, jeopardizing his health and safety, as referenced in section 3011. Mother next argued that she has the primary emotional bond with the child, so the custody orders should reflect that.
In the final statement of decision, the court added a provision in response to Father's objections, specifying that Father's credit card bills in evidence reflected not only purchases of alcohol but also other miscellaneous items. --------
After being advised at an ex parte proceeding that two subsidiary custody and visitation issues had been overlooked (name change and support issues), the court held another hearing on October 7, 2016 and issued additional rulings orally. At the hearing, Mother requested a statement of decision for "custody and visitation for the 9/26/16 and 9/27/16 trial." The court granted the request and on November 3, 2016, filed a proposed statement of decision on custody and visitation. In it, the court initially noted that Mother had "failed to articulate the particular controverted issues she was requesting the court to address. Pursuant to [Code Civ. Proc.] section 632, whether a request for a statement of decision is made orally or in writing the request shall specify the particular controverted issues the requesting party wishes the court to address. Notwithstanding this failure to specify the request and essentially waiving omitted issues, this court will provide a written decision to the parties for their benefit and use. This court will treat this ruling as a proposed statement of decision under rule 3.1590(e), California Rules of Court." The court allowed the parties to serve and file objections to the proposed statement of decision and proposed judgment on reserved issues, which they did.
The court's statement of decision, as later finalized, first addressed the legal custody issues by observing that the parties have a high degree of conflict and a history of trouble in coparenting. During trial, Mother sought to have Father's custodial time with the child limited, on the basis the child's grades had declined. The trial court noted that during trial, Mother had continued to make "significant allegations that Father abuses alcohol." (Italics added.) The court specifically addressed these allegations by stating: "However, during trial Father presented evidence that he is performing at a high standard as an engineer for QUALCOMM. The court notes there is no history of any alcohol related violations or law-enforcement involvement with Father. There are no CWS investigations regarding this family. Other than Mother's allegations and the production of receipts for purchases of alcohol (presented during the financial issues trial in June where Mother was seeking community reimbursement for those expenses) there was insufficient evidence that Father abuses alcohol."
With respect to Father's participation in parenting, the court made findings that he had presented "significant evidence that he is involved in the child's life in a variety of ways including through the YMCA and various outings. The court believes it's important to maintain frequent and continuous contact between Father and son. The court finds that Father and son have developed a bond that needs to be encouraged and strengthened. The court finds that Mother's request to significantly cut back on Father's custodial time to daytime visits only and not allow Father any significant time to be with the child in the summer is not in the child's best interest." (Italics added.)
Based on that analysis, the court largely adhered to the FCS recommendation and modified the existing plan for joint legal custody and the visitation, by adding a step-up plan. Thus, "[s]tarting June 2017, at the conclusion of the school year, the child will be in the shared physical custody of the parents on a 5-2-2-5 schedule." The court made a finding that achieving an equal time share at the start of the 2017/2018 school year would be "appropriate as both parents are competent and caring parents to the child. The child will benefit from a strong relationship with both parents." The court added a provision for scheduled telephone contact between the child and parents. The court specified that since the child would benefit from therapy and needed a neurological evaluation, Mother would have final decisionmaking authority in the event of an impasse on medical decisions and mental health decisions. The court expressed its intentions that its findings were in the best interests of the child, by honoring the existing custody arrangement in place since July 2015 and allowing Father to have a step-up plan toward equal custody by June 2017. Mother appeals.
DISCUSSION
I
REVIEW STANDARDS AND CONTENTIONS
"The purpose of a statement of decision is to explain the factual and legal basis for the decision. [Citations.] The court is required only to state the ultimate rather than evidentiary facts. [Citations.] The statement of decision "need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision." (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318.) A court need not provide specific responses to each and every evidentiary point raised in objections to the statement of decision, so long as the thrust of the document "fairly disclose[s] its determination of these issues." (Id. at p. 1319; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 [" 'all that is required is an explanation of the factual and legal basis of the court's decision regarding the principal controverted issues at trial as are listed in the request' "].)
Mother claims the court's final statement of decision failed to adequately respond to all the evidence presented about Father's alleged alcohol abuse, including Mother's testimony and exhibits. The court acknowledged that Mother had made "significant allegations of alcohol abuse," such as in her objections to the proposed statement of decision. Mother argues that because she repeatedly identified Father's alleged alcohol abuse as a principal controverted issue at trial, such as in her objections to the proposed statement of decision, the court's ruling ambiguously failed to provide an express discussion of certain evidence on the subject (i.e., the July 2014 e-mail exchange discussing Father's use of alcohol). (See Duarte Nursery, Inc. v. California Grape Rootstock Improvement Commission (2015) 239 Cal.App.4th 1000, 1012 (Duarte Nursery, Inc.) [appellate court will not imply findings by a trial court into an ambiguous or incomplete statement of decision].) Mother claims the trial court failed to comply with the standards established by section 3011, on the extent of corroboration required for her allegations.
The parties disagree on the applicable standard of review. Mother contends a de novo standard of review is appropriate because she views the court's statement of decision as a misinterpretation of the corroboration requirements in section 3011, subdivision (d). According to Mother, the dispute turns on statutory interpretation and thus should be resolved purely as a matter of law. (See In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1371-1372 [statutory definitions present questions of law].)
In contrast, Father cites to abuse of discretion standards of review that ordinarily apply to decisions on custody and visitation disputes. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) The abuse of discretion standard gives the trial court substantial latitude, but " '[t]he scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." ' " (Nicholas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119, quoting City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) "To the extent that a trial court's exercise of discretion is based on the facts of the case, it will be upheld 'as long as its determination is within the range of the evidence presented. [Citation.]' [Citation.] Conversely, a court abuses its discretion if its findings are wholly unsupported, since a consideration of the evidence 'is essential to a proper exercise of judicial discretion.' " (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) On appeal, we apply the substantial evidence standard to the trial court's factual findings that underlie the questioned exercise of discretion. (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.)
Where the trial court's statement of decision has resolved all the controverted issues and addressed each of the legal and evidentiary questions properly presented, an appellate court need not imply findings in analyzing the validity of the judgment. (Duarte Nursery, Inc., supra, 239 Cal.App.4th at p. 1012.) We view the evidence in the light most favorable to the court's findings, and do not reweigh it, make credibility determinations or resolve evidentiary conflicts. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 204.)
II
EVALUATION OF STATEMENT OF DECISION
The governing public policy in cases requiring awards of child custody or visitation is "to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children." (§ 3020, subd. (a); Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1514.) We examine the protective terms of section 3011 and determine whether the record supports the family court's application of those terms.
A. Corroboration Provisions in Section 3011
In making a determination of the best interest of a child who is the subject of a custody proceeding, section 3011, subdivision (a) requires the family court to consider all relevant factors concerning the health, safety, and welfare of the child. Pursuant to section 3011, subdivisions (d) and (e), if allegations about a parent's behavior as described in subdivision (d) ("habitual or continual abuse of alcohol," etc.) have been brought to the court's attention, then the court must evaluate them as follows: "Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services." (§ 3011, subd. (d); italics added.)
"Corroborating evidence is 'evidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point.' " (In re B.D. (2007) 156 Cal.App.4th 975, 984 [corroboration of hearsay requires evidence that supports a "logical and reasonable inference" that a described act did occur].) In the current context, independent corroborating evidence of a parent's alcohol abuse problem could be, but is "not limited to, written reports" as described in section 3011, subdivision (d).
Under the scheme provided by section 3011, subdivision (d), if the court awards sole or joint custody or visitation to a parent confirmed to be an abuser of alcohol, it must subsequently comply with the provisions of section 3011, subdivision (e)(1), which requires a statement of reasons for issuing the order, "in writing or on the record," and a specification on how the transfer of the child shall be accomplished in such a case. (See A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1284-1285 [although "section 3011 require[s] the court to set forth a statement of reasons, . . . a statement of reasons is also not the equivalent of a statement of decision"].) The purpose of a statutory statement of reasons in this particular context is to ensure that the parties themselves are able to understand the basis of the custody ruling. (In re Marriage of Buser (1987) 190 Cal.App.3d 639, 642-643 ["plain, everyday English" reasons to be conveyed to the parties as explanations].)
We emphasize that this appeal does not concern the alternate provisions in section 3011, subdivision (b), concerning a history or allegations of child abuse, which contain a corroboration requirement that is more onerous ("substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence"; § 3011, subd. (b)(3); italics added).
Nor is the issue of any required compliance with section 3041.5 before us, as newly argued by Mother on appeal. Section 3041.5 only allows a court considering a custody matter to require a parent to undergo alcohol or drug testing, if there is an existing judicial determination confirming the parent's alcohol or drug abuse status (e.g., a criminal conviction). No such order has been shown to exist in this case. (See Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1188-1190 [explaining that section 3041.5 was enacted in response to Wainwright v. Superior Court (2000) 84 Cal.App.4th 262].)
We therefore consider only whether the court's statement of decision in this case properly applied the statutory terms of section 3011, subdivisions (d) and (e), by making findings on all the material issues litigated at trial and by providing adequate disclosures of how the court arrived at its determinations. (In re Marriage of Balcof, supra, 141 Cal.App.4th at pp. 1530-1531.)
B. Compliance with Statutory Provisions
Mother relies on the evidence of the parties' July 2014 e-mail exchange as supplying an "admission" by Father that he is an alcoholic, and she thus claims the requirements of section 3011, subdivision (d) were satisfied: "There was, in fact, corroboration." In her objections to the trial court, Mother also claimed the testimony of Father's friend, Chris Miclea (that Father liked to smoke and drink in the garage or on the patio) supplied corroboration of Father's alcohol abuse problem. Based on such testimony, Mother argued that the court should have adopted her own proposed parenting schedule, as limiting "the potential for problems [due] to Father's increased drinking at twilight and at night."
The ultimate issues to be resolved during this phase of trial were the parents' legal and physical custody and visitation rights, with primary consideration given to the child's best interests. (§ 3020, subd. (a) [public policy].) Both parties presented a "significant" quantity of evidence on numerous topics, but it was for the court to rule upon the legal significance of their respective showings. Substantial evidence established that the family's existing circumstances included a high degree of conflict between the parents, who have shown over a period of years that they have trouble coparenting.
In a similar context involving custody proceedings having allegations of child abuse or neglect (§ 3011, subd. (b)), this court stated that before the family court rules on custody, it "necessarily must determine the veracity of such allegations to ensure the court is acting in the 'best interest' of the child." (Robert J. v. Catherine D., supra, 171 Cal.App.4th at pp. 1514-1515.) In response to Mother's ongoing contentions that Father abuses alcohol, the court properly followed the procedure under section 3011, subdivision (d), by determining whether the allegations were "significant" enough, both substantively and quantitatively, to trigger a corroboration requirement. The court in this case had to make a discretionary determination of whether Mother's allegations were so serious or significant, in nature as opposed to in volume, as to require "independent corroboration" of any variety. Such corroboration may be available through written reports from agencies, organizations, or the courts, but other methods would presumably be acceptable, since the section provides that the available evidence includes, but is not limited to, the material described in section 3011, subdivision (d).
During closing arguments, the trial judge advised the parties she took "copious and incredibly detailed notes" throughout the proceedings. The court was essentially required to evaluate the veracity of Mother's allegations, when considering these custody and visitation matters affecting the best interests of the child. (Robert J. v. Catherine D., supra, 171 Cal.App.4th at pp. 1514-1515.) Absent contrary facts, we are required to presume that the trial court was aware of and followed the applicable law. (In re Julian R. (2009) 47 Cal.4th 487, 499; Evid. Code, § 664.) The record discloses that the court conscientiously weighed and evaluated all the evidence, with a view toward determining whether the corroboration requirements of section 3011, subdivision (d) had been triggered.
In context, the court analyzed the validity of Mother's allegations throughout trial about the role of Father's alcohol use with respect to his parenting behavior. The court rejected Mother's arguments that the main cause of the child's declining grades was the amount of time he spent with Father, in reliance on the FCS report, which evaluated the child as having to deal with normal adjustment issues after the parents' separation. The FCS evaluator did not find that the alleged decline in grades provided any sufficient basis for limiting Father's custodial time with the child. Father had presented "significant" evidence about the efforts he made toward parenting the child in a positive way. The court then determined that because each parent was competent and caring, and the child was over eight years old and able to communicate, it would be appropriate to increase Father's custodial time with the child through a step-up visitation order.
Having heard all the evidence, the court discounted the veracity of Mother's allegations. The statement of decision expressly finds, "there is no history of any alcohol related violations or law-enforcement involvement with Father. There are no CWS investigations regarding this family. Other than Mother's allegations and the production of receipts for purchases of alcohol (presented during the financial issues trial in June where Mother was seeking community reimbursement for those expenses) there was no significant evidence that Father abuses alcohol. [¶] . . . [¶] The court believes it's important to maintain frequent and continuous contact between Father and son. The court finds that Father and son have developed a bond that needs to be encouraged and strengthened."
Moreover, the July 2014 e-mail thread relied on by Mother as containing Father's "admissions" was only one piece of evidence among many, which could reasonably be read in different ways. The court was not required to provide specific responses to every evidentiary argument raised by Mother. (In re Marriage of Williamson, supra, 226 Cal.App.4th at pp. 1318-1319.) On appeal, we do not reweigh the evidence, resolve conflicts in the evidence, or make determinations as to credibility. (In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 204.) The requirement that a court hear evidence does not mean it is required to agree with all the evidence and claims presented.
Rather than showing any true omissions or ambiguities in the statement of decision, Mother merely attempts to relitigate the case on appeal and suggests inapplicable statutory interpretations. This statement of decision sets forth the ultimate facts, not merely evidentiary facts, and it fairly discloses the court's determinations on all the material issues brought to trial. (In re Marriage of Balcof, supra, 141 Cal.App.4th at pp. 1530-1531.) Viewing the evidence in the light most favorable to the court's findings, no abuse of discretion is apparent. (In re Marriage of Mix, supra, 14 Cal.3d at p. 614.)
DISPOSITION
Affirmed. Costs on appeal to Respondent.
HUFFMAN, Acting P. J. WE CONCUR:
IRION, J.
DATO, J.