Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. D348420, Frederick P. Aguirre, Judge.
Kenneth W. Tarpley, Jr., in pro. per., for Appellant.
No appearance for Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Appellant Kenneth W. Tarpley, Jr., appeals from an order dismissing his order to show cause re modification of child support and visitation of his two children, now 16 and 17 years old, and other miscellaneous orders. Tarpley claims, among other things, that respondent Kristy E. Perry, his former wife and mother of the children, has moved and refused to supply him with her new address and has censored his mail and phone calls to the children. The parties’ marriage was dissolved in 1996; the judgment, giving the parties joint legal custody and Perry sole physical custody, set out a detailed visitation schedule. The judgment requires each party to give written notice of a change of residence. Tarpley is currently in prison serving a 25-year-to-life sentence.
After the OSC was filed, the court ordered the parties to mediation as required. (Fam. Code, § 3170, subd. (a).) The superior court file reveals Perry advised the mediator that Tarpley was incarcerated; neither party appeared.
Perry did appear at the OSC hearing but Tarpley did not. Before the hearing, Tarpley had filed a motion to appear at the hearing by telephone. Nothing in the record shows the court ruled on this request. The superior court file reveals that before the hearing date, Tarpley filed a motion to have Perry served by the sheriff. It also shows that a week later, on May 14, he sent a letter to the court stating he had made several unsuccessful attempts to serve Perry with the OSC and then filed his motion to have the sheriff serve it. He asked the court to “look into this matter.” Perry filed a response to the OSC, contacted the mediator, and appeared on the date the OSC was calendared. Thus, if there was any problem with service, Perry waived it.
The order ruling on the OSC states: “[Tarpley] is incarcerated at Mule Creek State Prison. Court has read and considered [his] May 14, 2007 letter and . . . [his m]otion requesting a continuance of [the] OSC . . . to effectuate service. [¶] [The] OSC . . . is dismissed. [The m]otion is filed for information only, but not scheduled for hearing. [Tarpley] may petition the [c]ourt for contact with the minor children upon his release. [¶] [Perry] need not provide her address and telephone number to [Tarpley]. [Perry] represents that the minor children do not want contact with [Tarpley].”
A couple of weeks later the court dismissed Tarpley’s motion to have the sheriff serve Perry. It again noted that Tarpley was in prison and stated that he could seek visitation on his release.
Family Code section 3170, subdivision (a) provides that where a petition to modify custody or visitation appears to be contested, the court must refer the matter to mediation. The court here did so, but neither party appeared and nothing was resolved. As a result, the court was required to hold a hearing on Tarpley’s OSC. (Fam. Code, § 3185, subd. (a).) Instead, the court dismissed it. Although unclear, it appears the reason was Tarpley’s incarceration. It was not proper to dismiss Tarpley’s OSC without a hearing, while at the same time modify the original order by confirming Perry’s request to withhold her new address from Tarpley.
The requirement of a hearing does not mean Tarpley is entitled to an evidentiary hearing, however. Whether to hold such a hearing is within the discretion of the trial court. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 962, 964-965 [request by noncustodial parent to modify custody order may be ruled on without evidentiary hearing if request is legally or factually insufficient].) Although we do not easily reverse a decision based on abuse of discretion (see In re Marriage of David and Martha M. (2006) 140 Cal.App.4th 96, 100), we cannot affirm where the court has not exercised its discretion (see Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1039).
The court must evaluate the OSC and, exercising its discretion, make a decision whether or not an evidentiary hearing is necessary. The determination cannot be based solely on the fact Tarpley is a prisoner. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641 [court cannot deny father, in prison, hearing on motion to set aside custody order just “because of the egregious nature of his conduct during [commission of crime]”.) Even if an evidentiary hearing is not required, the court must still rule on the OSC. (See In re Marriage of Hunt (1985) 172 Cal.App.3d 872, 875-876.)
If an evidentiary hearing is required, the trial court must select a procedure to afford access to Tarpley. Although “[p]risoners do not ordinarily have the right to appear personally in court on civil matters,” “courts are encouraged to devise alternative means to secure [them] ‘meaningful’ access to the courts. [Citation.]” (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 642.) This may or may not be allowing Tarpley to appear by telephone as he requested. No specific remedy is mandated. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-793.)
The bulk of Tarpley’s claims and requests pertain to the merits of his claim, i.e., that we examine the matter de novo and make the substantive rulings and that we instruct the court to enforce the original visitation and custody order and order Perry to comply with it. We do not reach the merits of the OSC. (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 641.) Likewise, the trial court is in the position to determine whether a family law facilitator is necessary or appropriate.
Tarpley claims the court had no jurisdiction to modify the terms of the dissolution judgment, after the judge in the original proceeding had considered all relevant factors. Not so. Child custody and visitation orders may be modified throughout a child’s minority. (Fam. Code, §§ 3022, 3087; In re Marriage of Kreiss (2004) 122 Cal.App.4th 1082, 1085 [court has continuing jurisdiction after final judgment to modify custody].) Tarpley acknowledges this when arguing a change in custody should be based on the best interest of the children.
Finally, we reject Tarpley’s request to have counsel assigned. Prisoners are not entitled to “greater rights than those possessed by other civil litigants.” (Payne v. Superior Court (1976) 17 Cal.3d 908, 923.) There is no right to appointed counsel in family law matters.
The matter is reversed for the court to rule on Tarpley’s OSC and in connection therewith in its discretion determine whether Tarpley is entitled to appear. If so it shall fashion an appropriate method for him to do so. The parties shall bear their own respective costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.