Opinion
F073972
05-14-2018
In re the Marriage of RYAN and JENNIFER KOELEWYN. RYAN KOELEWYN, Appellant, v. JENNIFER KOELEWYN, Respondent.
Ryan Koelewyn, in pro. per., for Appellant. Jennifer Koelewyn, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VFL255652)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Ryan Koelewyn, in pro. per., for Appellant. Jennifer Koelewyn, in pro. per., for Respondent.
-ooOoo-
Ryan Koelewyn, a self-represented litigant, appeals from an order denying his requests to (1) modify child custody and visitation, (2) dissolve a restraining order, and (3) vacate the court's award of attorney fees to Jennifer Koelewyn. Ryan argues the family court failed to properly exercise its discretion when it denied his requests because it (1) erroneously treated his request to modify attorney fees as a motion for reconsideration, (2) was required to dissolve the restraining order because he showed a change of circumstances, and (3) incorrectly applied the changed circumstances standard to his request to modify visitation. He asks us to reverse the order denying his requests and remand the matter to the family court to conduct an evidentiary hearing on them. Because Ryan has not shown prejudicial error with respect to the appealed from order, we affirm.
For purposes of clarity and not out of disrespect, we refer to the parties by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
Jennifer and Ryan had been married for nearly seven years when they separated on February 23, 2014. They have two children together, who were six and four at the time of separation. Jennifer also has a 14-year-old daughter from a prior marriage. In March 2014, Ryan filed a petition for dissolution of the marriage and a request for week-to-week custody of their children and the same visitation schedule for Jennifer's daughter.
Due to the sparse record, many of the general background facts are taken from the parties' trial briefs.
On April 9, 2014, Jennifer sought a no-contact order to keep Ryan away from all three children pending the outcome of an investigation being conducted by child welfare services and the Visalia Police Department into allegations that Ryan had been molesting Jennifer's daughter. Ryan also was a suspect in an ongoing investigation into charges he viewed child pornography while an employee at Tulare County Superior Court. On April 10, 2014, the family court granted Jennifer's request for a temporary restraining order against Ryan pending the outcome of the investigations. Jennifer also was awarded sole legal and physical custody of their children pending further hearing. In addition, Ryan was ordered to advance $1,000 toward Jennifer's attorney fees, payable at a rate of $200 per month.
On May 15, 2014, the family court continued in effect its prior custody and visitation orders, granted a CLETS restraining order against Ryan, and ordered Ryan to pay child and spousal support. Ryan also was ordered to pay an additional $1,000 toward Jennifer's attorney fees and costs incurred in the matter, payable at a rate of $200 per month.
On June 19, 2014, Ryan filed a request to modify child and spousal support, as his employer had placed him on unpaid administrative leave pending an internal investigation. Ryan filed an income and expense declaration in which he stated his income was zero and the remaining balance owed for Jennifer's attorney fees was $1,600.
On June 20, 2014, an ex parte hearing was held at Jennifer's request, at which Ryan appeared. After hearing argument, the family court executed a five-year CLETS restraining order against Ryan, which included personal conduct orders as to Jennifer, and a stay-away order as to Jennifer and the three children. The court ordered Ryan to provide copies of any records that reflected his income through the date of the July 21, 2014 hearing on his motion to modify support, and Jennifer to provide updated information regarding her income.
The hearings were continued multiple times. Following a trial, the family court granted a final dissolution of the marriage on November 12, 2014. The family court decreed that Jennifer was to have sole legal and physical custody of the children. Ryan was not permitted any visitation, but could send letters or cards, which Jennifer could decide whether or not to give to the children after reviewing them. When the parties returned to court on reserved issues on November 14, 2014, the family court awarded Jennifer an additional $1,000 in attorney fees.
The basis for the fee award is not clear from the record, as the November 14, 2014 minute order is not part of the clerk's transcript. Jennifer asserted below that the award was a sanction for Ryan's failure to cooperate with respect to preparation of the parties' joint tax returns, while Ryan claimed below that it was not a sanction, as shown by the minute order.
In February and March 2016, Ryan filed three requests: (1) a request to modify child custody and visitation; (2) a request to dismiss or dissolve the June 20, 2014, protective order; and (3) a request to modify the attorney fees orders.
With respect to the request to modify child custody and visitation, Ryan asked to be awarded joint legal custody of his children, with Jennifer to retain sole physical custody, and reasonable visitation at the prison. In his declaration, Ryan asserted the April 10, 2014 custody and visitation orders were temporary pending completion of reports by child welfare services and the police department, but the family court never mentioned having reviewed or considered either report after it was completed. He said that interviews of his children showed that neither had been the victim of any type of abuse, which he pointed out in court filings in September and October 2014. He cited to letters from his psychotherapist and his 12-step program sponsor, which were prepared during his criminal proceeding, that he claimed detailed the voluntary steps he had taken to correct his personal behavior. The letters, attached to the declaration, had dates in August 2014. Ryan asserted he did not submit the letters in 2014 because he did "not want to subject this person to harassment by the mother[,]" and he was submitting them now "because the authors' contribution to the ascertainment of the truth is worth any such risk."
Ryan also claimed that Jennifer was intent on frustrating his one form of contact with the children - one letter per week, addressed to Jennifer - as she stated at his sentencing hearing: "Don't write. They won't get your letters." In addition, he sent several letters to Jennifer via registered mail, but they were returned unopened. Ryan asserted this constituted changed circumstances. Ryan contended the court's custody and visitation order was void because the court failed to comply with the statutory mandate to set contested matters for mediation.
With respect to Ryan's request to dismiss or dissolve the June 20, 2014 protective order, Ryan asserted his incarceration was a material change in the facts upon which the protective order was granted. He contended his due process rights were violated because no hearing was conducted and he did not receive notice that a protective order was being sought. He claimed he did not learn of the protective order until he was provided a copy of it after the hearing.
Finally, Ryan asked that the prior attorney fee awards totaling $3,000 be reduced to zero, and the court order Jennifer's attorney to refund to him the $600 in fees he had paid. He contended the family court erred when it: (1) awarded $1,000 in fees on April 10, 2014, because no income and expense declaration had been filed; (2) awarded $1,000 in fees on May 15, 2014, as he had no income due to being placed on unpaid administrative leave; and (3) awarded $1,000 in fees in November 2014, just weeks before his sentencing, as the court knew he intended to plead no contest to his charge and accept a sentence of eight years in prison. Ryan also claimed that Jennifer's attorney had needlessly prolonged the litigation.
Jennifer opposed Ryan's requests. Jennifer argued that all three requests were controlled by Code of Civil Procedure section 1008 because Ryan was essentially asking the family court to reconsider the orders it made in 2014. She contended the motions were untimely, since they were not filed within 10 days of service of the order being challenged, and even if timely, the statutory requirements were not met, as none of the motions was based on new or different facts, circumstances, or law. Moreover, Ryan failed to provide a satisfactory explanation for not producing the evidence earlier.
With respect to the request to modify custody and visitation, Jennifer asserted that the April 10, 2014 order was not the final order pertaining to these issues, as the parties had a number of hearings, and at times Ryan sought visitation. During this period he was being prosecuted for child molestation and possessing child pornography. Jennifer pointed out that the court had taken judicial notice of the fact that Ryan pled no contest to one felony count of lewd acts with a child (Pen. Code, § 288(a)), and one count of possession of child pornography (Pen. Code, § 311.11), on September 23, 2014. Moreover, Ryan was sentenced to eight years in state prison and ordered to register as a sex offender pursuant to Penal Code section 290. At the November 12, 2014 trial, Ryan admitted he had already been sentenced in the criminal case and expected to be sent to prison at any time. Jennifer argued that Ryan was attempting to minimize the seriousness of the charges and conduct for which he was in prison, and completely ignoring the fact he was a registered sex offender, which precluded him from being around children, including his own.
Ryan appeared telephonically at the April 18, 2016 hearings on his requests. After hearing argument, the family court denied all three requests. On the request to modify the custody and visitation order, the court found that to the extent Ryan was complaining about matters that occurred in 2014, the request was an untimely motion for reconsideration. Moreover, Ryan was present when the orders were made and had the opportunity to present any evidence he believed to be relevant. Ryan could have filed a motion for reconsideration or an appeal, but he did not timely do either. The court acknowledged it retained jurisdiction to consider a request to modify custody or visitation, and found that to the extent Ryan was asking the court to modify the current orders based on changed circumstances, no change of circumstances existed. Ryan was imprisoned in state prison for possession of child pornography and lewd acts upon a child, and was a registered sex offender. Accordingly, the court denied the request.
On the request to dissolve the five-year CLETS restraining order, the court found the request was an untimely motion for reconsideration and the court lacked jurisdiction to entertain such a request. The court also found Ryan had been present in court, and was given notice of the prior requests for orders and an opportunity to be heard. The court therefore denied the request. The court denied the request to dissolve the prior attorney fees orders, finding it was an untimely motion for reconsideration, which the court lacked jurisdiction to entertain.
On May 3, 2016, Ryan filed a motion for reconsideration of the court's April 18, 2016 order based on new facts that became available after the hearing. He declared that he did not receive Jennifer's opposition until the day after the hearing, and therefore did not have an opportunity to respond to it. Ryan addressed the opposition, as well as the family court's ruling. Jennifer opposed the motion as untimely and not properly served, and asked the court to declare Ryan a vexatious litigant.
On June 15, 2016, Ryan filed a notice of appeal from the April 18, 2016 order denying his requests. On July 7, 2016, a hearing was held on his motion for reconsideration, at which Ryan appeared telephonically. The family court granted the motion for reconsideration, re-read the parties' previous pleadings pertaining to the three requests for orders, provided Ryan the opportunity to submit any other evidence or argument pertaining to the requests, and heard argument from Ryan and Jennifer, through her attorney. The court then adopted the April 18, 2016 order denying Ryan's three requests. In addition to the findings in that order, the court also found that to the extent Ryan was contending there was a change of circumstance regarding his request to dissolve the restraining order, there was no change in circumstances to justify either a modification or termination of the prior order. The court denied Jennifer's request to declare Ryan a vexatious litigant.
We note that the filing of the notice of appeal on June 15, 2016 terminated the family court's subject matter jurisdiction over the pending request for reconsideration. Accordingly, the family court did not have authority to issue the July 7, 2016 order granting reconsideration and again denying Ryan's requests, and the order is not a valid order. (Code Civ. Proc., § 916, subd. (a); Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 41-42.) Ryan does not raise any issue on appeal with respect to that order, however; instead, he raises issues only as to the April 18, 2016 order denying his requests.
DISCUSSION
Principles of Appellate Review
Before we turn to Ryan's contentions, we emphasize that he, as the appellant, "must be able to affirmatively demonstrate error on the record before the court." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) We apply the settled rule that the family court's orders are presumed correct, with " ' "[a]ll intendments and presumptions . . . indulged to support [them] on matters as to which the record is silent . . . This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." ' " (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) If the order is correct on any theory, this court will affirm it regardless of the family court's reasoning. (See Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
"[E]rror alone does not warrant reversal. 'It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.' [Citation.] ' "The burden is on the appellant, not alone to show error, but to show injury from the error." ' [Citation.] 'Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record.' [Citation.] 'Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.' [Citation.] A miscarriage of justice is not found 'unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.' " (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)
These rules apply to self-represented litigants like Ryan, who are entitled to the same, but no greater, consideration than other litigants and are held to the same rules of procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) Ryan's decision to act as his own attorney does not warrant exceptional treatment. (Rappleyea, at p. 985.)
Request to Modify the Attorney Fee Awards
Ryan contends that the family court erred in finding that his request to modify the three attorney fee awards constituted an untimely motion for reconsideration. He argues his request was not a motion for reconsideration of the prior fee orders under Code of Civil Procedure section 1008, but rather a new modification request that he had the authority to bring under Family Code section 2030, subdivision (c). He asserts that under In re Marriage of Hobdy (2004) 123 Cal.App.4th 360 (Hobdy), Code of Civil Procedure section 1008 does not deprive the trial court of jurisdiction to rule on a motion brought pursuant to section 2030.
Undesignated statutory references are to the Family Code.
It is clear from the statutory language that a party may bring more than one motion regarding attorney fees, as section 2031 refers to temporary orders "augmenting, or modifying" an attorney fees award, and section 2030, subdivision (c) provides that the court may augment or modify the original award as may be "reasonably necessary." What is reasonably necessary may change as the litigation progresses. Thus, the clear intent of these provisions is not to limit a party to one motion on fees.
In Hobdy, supra, 123 Cal.App.4th 360, the trial court granted the wife's second motion for attorney fees under section 2030 after it denied her first motion. On appeal, the husband argued the trial court did not have jurisdiction to rule on the second motion as it was a motion for reconsideration that did not conform to the jurisdictional requirements for reconsideration motions found in Code of Civil Procedure section 1008. (Hobdy, at p. 364.) The appellate court rejected the argument, holding section 2030 prevailed over the more general statute so that subsequent fee motions need not comply with Code of Civil Procedure section 1008. (Hobdy, supra, at p. 367.)
While the family court had jurisdiction to consider Ryan's modification request, it did not abuse its discretion in denying it. (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 276 [attorney fees awards are reviewed for abuse of discretion].) Ryan's request in 2016 to reduce the fees awarded was not based on changed circumstances or subsequent events, as section 2030 requires, but rather revisits the circumstances as they existed in 2014, when the orders were made, and raises arguments that were made to the family court at that time. The facts Ryan relies on in his modification request - the absence of an income and expense declaration, and his lack of employment - were before the family court when it made its prior orders. His current request is not triggered by the occurrence of a different proceeding. Moreover, there is no showing that the fees awarded were not "reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto . . . ." (§ 2030, subd. (c).) Based on Ryan's failure to comply with the requirements of section 2030, the family court was entitled to deny his request for modification of those orders.
Modification of the Restraining Order
Ryan next contends the family court erred when it denied his request to dissolve the restraining order. He argues he has authority to request modification of the restraining order pursuant to section 6345, subdivision (a), and Code of Civil Procedure section 533; therefore, the family court erred in treating his request as a motion for reconsideration. He asserts the restraining order was issued in violation of his due process rights, as he had had no notice that a restraining order was being sought and the record does not show that a hearing was held on the issue.
Section 6345, subdivision (a) provides in pertinent part: "In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the court . . . on the motion of a party . . . ."
Code of Civil Procedure section 533 provides in pertinent part: "In any action, the court may on notice modify or dissolve an injunction . . . upon a showing that there has been a material change in the facts upon which the injunction . . . was granted, that the law upon which the injunction . . . was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction
By law, a court may dissolve an injunction on a showing that (1) "[T]here has been a material change in the facts upon which the injunction . . . was granted," (2) "the law upon which the injunction . . . was granted has changed," or (3) "the ends of justice would be served by the . . . dissolution of the injunction . . . ." (Code Civ. Proc., § 533; see, e.g., Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1504 [applying this standard in evaluating an appeal from an order refusing to terminate a domestic violence restraining order].) Ryan does not cite any material change in the facts or law upon which the restraining order was granted. Instead, he cites to the circumstances surrounding the issuance of the restraining order, claiming the record shows he was not given notice that Jennifer was seeking the restraining order. But this is not a change in the facts. Nor would the ends of justice be served by allowing Ryan to wait nearly two years before raising the claim of error with the family court. (See, e.g., Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337 [" ' " '[i]t would seem . . . intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' " ' "].)
Since Ryan has not presented any basis for dissolving the restraining order, the family court did not err in denying his request to dissolve it.
Modification of Visitation
In the family court, Ryan initially sought to modify the court's custody and visitation orders, requesting joint legal custody of the children and reasonable visitation. At the hearing on that request, however, Ryan told the court he was only asking for visitation, not custody. The family court denied his request, in part because Ryan failed to establish changed circumstances. On appeal, Ryan asserts he challenges only the denial of his request to modify visitation. He contends the trial court applied the wrong standard (namely, changed circumstances) in denying his visitation request, and argues that the correct standard of proof was the best interests of the children, because he was only seeking to modify visitation.
We agree that the correct standard for determining whether to modify visitation is the best interests of the child. " '[A] party seeking to modify only visitation and not the allocation of "custody" between the parents is held solely to the normal "child's best interest" standard of proof; the changed circumstances rule does not apply.' " (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1080.)
Even if the trial court applied the wrong standard in denying Ryan's request to modify visitation, no evidence supported the conclusion that the best interests of the children would be served by his proposal that the minor children visit him while imprisoned for child molestation. In its written order, the trial court found that Ryan was in prison for possession of child pornography and committing lewd acts upon a child, and that he was a registered sex offender. These uncontested facts, in and of themselves, are sufficient to support the conclusion that it was not in the children's best interest to modify the visitation order to allow them to visit Ryan in prison, even if such visitation was not otherwise precluded by his sex offender status.
An order denying a request to modify visitation is reviewed for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Here, after carefully reviewing the record, it cannot be said that the trial court abused its discretion in denying Ryan's request for visitation at the prison. The record is devoid of any evidence defining how the requested change in visitation would benefit the children's health, safety or welfare. Therefore, Ryan's contentions are without merit.
DISPOSITION
The trial court's April 18, 2016 order is affirmed. Jennifer is awarded her costs on appeal.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.