Opinion
E065685
09-17-2018
In re the Marriage of CHRISTOPHER JAY and KIMBERLY DYAN MERRITT. CHRISTOPHER JAY MERRITT, Appellant, v. KIMBERLY DYAN MERRITT, Respondent. KIMBERLY DYAN MERRITT, Plaintiff & Respondent, v. CHRISTOPHER JAY MERRITT, Defendant and Appellant.
Arthur J. LaCilento for Defendant and Appellant. No appearance for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RID1600069) OPINION (Super.Ct.No. RIV1501939) APPEAL from the Superior Court of Riverside County. Christopher B. Harmon, Judge. Affirmed in part; dismissed in part. Arthur J. LaCilento for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In this action for dissolution of marriage filed by Kimberly Merritt (wife), the family court issued a temporary restraining order (TRO) against Christopher Merritt (husband) and, after hearing testimony, issued a domestic violence restraining order (DVRO). Husband and wife thereafter attended mandatory mediation of child custody and child visitation issues, after which the mediator recommended that wife have full custody of the three children and that husband have supervised visits once a month. Husband requested an evidentiary hearing on the mediator's recommendations, and he served wife with a witness list.
On the day of the scheduled evidentiary hearing on child custody and child visitation, husband's attorney was appearing in juvenile court on another matter and sent another attorney in his place to request a continuance. Over the objection of the attorney who appeared for husband, the family court issued a temporary order granting wife full custody of the children and granting husband supervised visits once a month pending an evidentiary hearing. The court specifically stated the orders were temporary and could be revisited, and the court set the matter for a trial readiness conference.
Husband immediately appealed. He argues wife did not present substantial evidence to support her allegations of domestic violence and, therefore, the order issuing the DVRO must be reversed. Husband also contends he had a due process right to cross-examine the mediator regarding the recommendations for child custody and child visitation, and the family court denied him that right by issuing temporary orders without first conducting an evidentiary hearing.
Since husband filed this appeal, the family court has entered amended restraining orders that superceded the original DVRO, and husband and wife stipulated to entry of judgment on disputed issues, including child custody and child visitation. We directed husband to show cause why we should not dismiss the appeal as moot. Husband argues his appeal from the DVRO is not moot, and he invokes the exception to the mootness doctrine for issues that remain to be litigated between the parties. With respect to the temporary child custody and child visitation orders, husband essentially concedes those orders have been rendered moot by the stipulated judgment, but he invokes the exception to the mootness doctrine for issues that are likely to recur but are liable to evade review. Husband claims the family courts regularly deny parties their right to an evidentiary hearing and enter child custody and child visitation orders without affording the parties an opportunity to cross-examine the mediators about their recommendations.
We agree with husband that his appeal from the original DVRO is not moot, but we conclude the record contains substantial evidence to support the family court's factual findings of domestic violence and, therefore, we conclude the court did not abuse its discretion by issuing a DVRO. However, we conclude husband's appeal from the temporary child custody and child visitation orders is moot. The exception to the mootness doctrine that husband invokes requires more than a theoretical or speculative showing that the harm suffered by the appealing party is likely to reoccur. Nothing in the record or in this court's experience supports husband's bald assertion that the family courts regularly deny the due process rights of parties to cross-examine mediators before entering child custody and child visitation orders. Therefore, we affirm the order entering the original DVRO and dismiss husband's appeal from the temporary child custody and child visitation orders.
I.
FACTS AND PROCEDURAL BACKGROUND
A. Wife's Request for a TRO and DVRO.
Wife filed an application for a TRO and DVRO. She requested stay away orders for herself and the three children from the marriage, and asked that the court issue, inter alia, child custody and child visitation orders. In particular, wife requested full legal and physical custody of the children and that husband have no visits with the children until after the hearing on her request for a DVRO. Wife also requested an order that husband not be permitted to travel outside of Riverside County with the children, stating she believed husband might take the children from her as retaliation.
Wife also requested spousal and child support orders, a move-out order, and an order that husband continue to pay rent on the family home. Those orders are not at issue in this appeal.
Wife alleged the following acts of domestic violence:
On October 14, 2015, wife waited downstairs for husband to go upstairs to the bedroom before she herself went upstairs, "in fear of him forcing me to do anything." Husband asked wife, "What the fuck are you doing?" When wife responded she was just "sitting here," husband told wife she was "fucking stupid." Wife told husband not to talk to her in that way. Husband then came downstairs and "puffed up his chest against [wife's chest]." When wife pushed him away, he punched her in the right eye. Wife walked away and husband said, "That's what I thought." Wife alleged she had photographs, which showed she received a black eye from the blow, but she did not attach them to her application.
In the first week of December 2015, wife alleged husband raped her. "He forced my clothes off and held me down against my will. Despite screaming over and over again to stop and that I didn't want to do anything he just said that I liked it and kept raping me." Wife alleged the children were home and asleep in their rooms during the rape. Wife suffered vaginal bleeding from the forced penetration.
Finally, wife alleged that husband's physical, verbal, and emotional abuse also extended to their children, that the children "specifically said they are afraid of [husband]," and wife was afraid for the children's safety. Wife alleged that in August 2015, husband picked up his 12-year-old son R. by the throat and held him against a wall. Husband called R. an "asshole" and choked him "to the point of him having difficulty breathing." After releasing his grip on R.'s throat and letting him down, husband "smacked him in the head." Wife alleged her 14-year-old son D. and her seven-year-old daughter E. witnessed this incident.
The family court issued a TRO and set a hearing on wife's request for a DVRO.
B. Hearing on DVRO.
In his response to wife's application, husband stated wife's allegations of physical abuse were "completely false," and he denied that he ever hit wife. Wife alleged husband hit her on the evening of October 14, 2015. But husband alleged that on October 15, wife posted on her social media account that the night before she heard loud thunder and, out of fear, "grabbed onto" husband and possibly slapped him by accident. Husband argued wife's social media post was "contradictory to her allegation that I punched her that same night and that she was in fear of me."
Husband did not address the alleged rape in his response.
Husband denied that he was physically, verbally, or mentally abusive to wife or to the children. Husband alleged that he spent quality time with the children every day after work, he helped them with school projects, and he took the children to their afterschool activities. In fact, husband alleged that wife constantly posted on social media about husband's time with the children "and how much they love me." Husband submitted letters from friends and family demonstrating his "character and love for [his] family." Husband alleged he had confronted wife about her nightly consumption of alcohol and medications, and husband told her he did not want to be in a relationship with someone he considered to be an alcoholic. Husband alleged wife retaliated against him by requesting the restraining order and, after obtaining the TRO, taking husband's dogs to the pound. Finally, husband alleged wife's actions were also hurtful to the children because he was unable to spend time with them over the holidays.
At the original hearing on wife's request for a DVRO, husband requested a continuance because he had just been provided additional information. Wife's attorney informed the family court that the new information was that wife had provided husband with photographs that were omitted from the written request, and wife alleged husband hit her in the eye in December 2015, not in October. Wife did not oppose a continuance. Husband requested that the family court order professionally monitored visitation. Wife's attorney objected, stating the children were afraid of husband and did not want to see him. The court continued the hearing, issued an amended restraining order and directed the parties to make an appointment for mediation regarding child custody and child visitation.
Prior to the continued hearing, wife submitted a declaration in support of her request for a DVRO. Wife corrected the date on which she alleged husband hit her in the eye, stating the incident took place in December 2015. For the first time, wife alleged that, in addition to holding R. against a wall by the throat, husband called the boy a "mother fucker" and an "asshole" and punched him in the jaw. Wife alleged that six months earlier husband had hit R. with a belt and left bruises on the boy's arms and legs. Wife alleged that husband frequently hit both boys with a belt as a form of punishment, and he called them "pricks" and "mother fuckers." In addition, wife alleged that in 2009 D. broke his arm and cried for four hours before husband took him to urgent care, and he almost lost the arm due to a loss of blood flow. Wife alleged husband had violated the TRO by contacting her family and saying negative things about her being a drunk. Wife again objected to husband having any visits with the children. Wife attached to her declaration photographs showing she had a black left eye and notes from nurses who tended to her after husband hit her in the eye.
In a supplemental response, husband argued the family court should deny wife's request for a DVRO because wife falsely alleged that husband hit her in the eye in October 2015, and the photographs attached to wife's supplemental declaration directly contradicted her written allegations that husband hit her in the right eye. Husband again denied that he ever engaged in any acts of domestic violence or that he physically or emotionally abused the children. Husband alleged that he had been the primary caregiver for the children, and that, since the issuance of the TRO, wife had not been providing the children with proper supervision or sufficient food.
At the continued hearing, wife testified that, on the evening of December 14, 2015, she did not want to go to sleep with husband "because of an earlier incident," so she stayed downstairs to "let him go to sleep first." Wife sat on the couch using her phone. As he was going up the stairs, husband looked over and said, "What are you doing?" When wife responded that she was on her phone, husband said, "You are so fuckin' stupid." Wife told him, "Don't talk to me like that." Husband then came downstairs "and like puff[ed] up his chest" against wife. When wife stood up and pushed husband away, she "got a closed fist to [her] left eye." Wife was in shock and walked away. She said nothing to husband. Wife went to the bathroom and took photographs of her eye, which she posted on social media.
Presumably, the "earlier incident" was the alleged rape. Wife provided no other testimony about that incident.
Wife did not seek medical treatment because she was scared that husband would retaliate against her. Wife testified she took photographs of her eye over the next three days. Her eye was swollen and looked bruised. Wife testified she was not represented by counsel when she filed her request for a DVRO, and that she accidentally alleged the incident occurred in October instead of December. Wife presented to the doctor in December because she was experiencing seizures, and the doctor asked about her eye. Wife did not report the incident to the police at the time because she was scared that husband would get angry at her and the children.
Wife testified that in mid-2015, R. "was giving an attitude" and arguing with husband. Wife was upstairs when she heard the commotion. When she came downstairs, wife saw husband holding R. by his throat against the wall. Husband called the boy a "mother fucker," and "socked him in the jaw." The other two children witnessed the incident. The other children said they were afraid after witnessing what husband had done. Wife also testified that husband's aunt had contacted the children since the issuance of the TRO.
On cross-examination, wife testified she made a mistake in her written request for a DVRO when she alleged that husband hit her in October 2015. When asked where in her application she alleged that husband hit her in the left eye, wife testified she was in tears when she filled out the application. Wife testified she never called the police or social services during her marriage, and she never before requested a restraining order. Wife denied that husband had ever said he did not want to be with her anymore because she was an alcoholic. Wife testified that at the time of the incident, she was taking various medications for her seizures, but that she had only taken a muscle relaxer on the night that husband hit her. Wife admitted that she posted on social media a photo of herself holding her "daily regimen," but she denied that she ever mixed alcohol with her medications.
Wife also testified on cross-examination that husband hit the two boys "every year," not just in 2015. Wife testified that husband and the children did not have a good relationship. Wife denied that part of the reason she requested a restraining order was that she wanted husband out of the home because she was in a new relationship. Wife testified that husband hit the children with a belt. Wife admitted that she did not allege in her written application that husband hit the children with a belt.
Wife testified that, when the doctor asked her about her eye, he also asked about any prior acts of domestic violence. Wife told the doctor and a nurse that was the first time husband had hit her. When asked why she did not tell a social worker that she was concerned for the safety of the children, wife testified that the social worker was going to call the police and wife was not ready to get the police involved. Wife admitted that she let husband stay in the home and be alone with the children for another four days before filing her request for a DVRO.
Husband testified that he never pushed or hit wife, and he did not give her a black eye. Husband denied that the children were afraid of him or that he ever hit the children with a belt. Husband testified that he saw wife with a black eye and, when he asked what happened, wife said husband had gotten out of bed, walked over and looked down at her, "popped her in the eye," then crawled back into bed. Husband denied that he had violated the restraining order by directly contacting wife or by having his aunt contact her.
On cross-examination, husband testified he saw wife with a black eye on December 15 or 16. Husband testified he would never hit wife. Husband denied that he ever choked R. Husband admitted that he had his aunt call the children on three occasions for "emergency reasons," because he had received a call from the family home and he wanted to make sure the children were okay. Husband also testified he spoke to wife's father once. On redirect, husband denied that he asked wife's father to help convince wife to drop the restraining order.
Mr. L., a neighbor, testified on behalf of husband that he knew the children and had seen them with husband three or four times a week. Mr. L. testified he saw the children and husband working together on projects or hanging around and playing with other children from the neighborhood. He never saw the children express any fear of husband, and he never saw bruises or suspicious marks on them. Mr. L. also interacted with wife, and he never saw her act as if she was afraid of husband. On cross-examination, Mr. L. testified he did not see wife with a black eye in December 2015. He admitted that he only saw the family outside, and he was never inside their home.
Wife introduced the testimony of Mr. O., wife's father. Mr. O. testified he saw his daughter in mid-December 2015, and he noticed that she had a red left eye. Wife told him that husband had hit her. Mr. O. testified that, since wife had obtained the TRO, he had received two voicemail messages from husband. Mr. O. was also contacted by husband's aunt and mother.
On cross-examination, Mr. O. testified that wife had previously said husband was abusing the children, but Mr. O. did not tell wife to get a restraining order, to call the police, or to divorce husband. Mr. O. did not tell wife to seek medical attention when he saw that she had a red left eye. Mr. O. testified he had in the past witnessed the children have positive interactions with husband, he never observed the children to be afraid of husband, and he never saw husband hit the children. Husband asked Mr. O. to call him back, and husband never said he wanted Mr. O. to convince wife to not testify or dismiss the case. Mr. O. testified that, had he known that husband was beating wife on a regular basis, he "would have not stood still for it."
On recall to lay foundation for the admission of photographs, wife testified that she received a black left eye when husband hit her with his fist. Wife testified that on the night of the incident, she took photographs of her eye with her telephone "[t]o prove that it was injured." Those photos showed that wife's left cheekbone was red and swollen under her eye. Wife took photos of her eye the next day, December 15, which depicted her eye as "[s]wollen and a little bit bruised." Photos that wife took on December 16 showed purple under her eye. On December 17, a photo showed that wife's upper left cheekbone was "[p]urple and greenish around the orbital part of the eye." The next day, wife took one photo which still showed purple, "but a little bit less and with yellow." Finally, wife took photographs on December 19 that still depicted wife's cheek as purple and yellow.
On cross-examination, wife testified that by Christmas there was only a small amount of bruising visible under her eye, and by December 27 it was gone. Over husband's objections for lack of foundation and authentication, the family court admitted the photographs into evidence, subject to cross-examination. On further cross-examination, wife testified that she suffered a seizure on December 18, but she had never fallen or received bruises during a seizure.
During closing argument, wife's attorney argued that victims of domestic violence "aren't always the most coherent people with regard to the presentation of their own evidence on their own case." Wife mistakenly alleged that husband hit her in the right eye, when it was actually the left; she alleged the incident took place in October, when it happened in December; and she neglected to attach photos of her injury to her application. Counsel argued those and other mistakes and inconsistencies in wife's testimony "doesn't mean that she didn't get hit in the eye by her husband." Counsel argued the evidence demonstrated wife was the victim of domestic violence, and that the court should grant a DVRO.
Husband's attorney argued wife was not a credible witness. She testified to being in fear of husband throughout the marriage, yet she waited eight days after he allegedly hit her before requesting a TRO. Counsel argued wife's testimony was so inconsistent with the allegations in her application that the court should find it incredible.
The family court found that wife and her father were credible witnesses. In contrast, the court indicated husband's testimony about what wife told him about her black eye "made absolutely no sense." The court found there was sufficient evidence of domestic violence and the probability of future violence, and that the testimony about husband's abuse of the children was also sufficient evidence of domestic abuse. Therefore, the court issued a five-year DVRO.
The family court granted wife sole legal and physical custody, ordered that husband have professionally monitored visits once a week pending a hearing, ordered husband to enroll in a batterer's intervention program and referred the parties to mediation.
C. Mediation and Report and Recommendation from the Mediator.
In a report and recommendation to the family court, a child custody mediator stated she met separately with wife and husband, but the parties could not reach an agreement about child custody and child visitation. Husband told the mediator that he could not afford to continue to pay for professionally monitored visits, and that he might have to discontinue visits altogether. Husband also told the mediator that he was concerned wife was still mixing her medications with alcohol. He said wife had attempted suicide in 2001, and a more recent overdose of medication might have been another suicide attempt. Husband told the mediator that wife had been diagnosed with epilepsy in November 2015.
Wife told the mediator that she had experienced her first seizure in November 2015, but she was not diagnosed with epilepsy. The mediator stated she would request that wife provide a letter from her doctor or psychiatrist explaining the reason for her treatment and what medications she had been prescribed. Wife told the mediator that husband was harsh with the boys. As an example, wife said husband threw his metal boot at D. while the boy was curled up in a corner. Wife told the mediator that husband "does not seem to understand [D.'s] diagnosis of Asperger's Syndrome and his sensitivity to stimuli, especially touch."
The mediator reported she had reviewed the records of an investigation conducted by child protective service (CPS) of allegations of child abuse or neglect, but she had not spoken with the social worker. According to the CPS reports, the social worker interviewed all three children in the family home. The children told the social worker that husband held R. by the throat against the wall and hit him in the face, and all three said they were afraid of husband. The social worker saw no marks or bruises on the children. Husband denied that he used a belt to discipline the children or that he struck them. Although the social worker found the children to be credible because of the consistency of their statements, the social worker made a finding of "Inconclusive" regarding the allegations of abuse by husband. The social worker made a finding of "Inconclusive" regarding the allegation of neglect by wife, but made a finding of "Substantiated" regarding the allegation of general neglect by husband. The social worker recommended counseling for wife and the children.
The mediator also interviewed the two boys separately. The older boy D. said he witnessed his father hold R. by the throat, "suspend[] him off the ground," and strike him in the face. D. told the mediator that he believed his father "usually thinks about his own needs first with little thought about the other members of the family," and that his father "has little interest or curiosity about them." D. told the mediator that he believed his father might also have a form of social deficit on the autism spectrum. D. said he was afraid of his father and did not want to have further visits with him.
R. told the mediator that he too was afraid of his father, and that "he was very angry during his visit with [his father] and chose to withdraw." R. "expressed his distaste with [his father] suddenly acting like a caring parent and the role this puts him in." R. said he did not want to visit with his father. R. also told the mediator that he witnessed his father repeatedly hit D. with a belt when D. resisted hanging up E.'s laundry. R. said the whipping lefts bruises and marks on D. R. reported that D. gave his mother a false explanation for the bruises because "he was afraid [his mother] would try and confront [his father] and that she would be abused."
Both boys told the mediator they did not see their father hit their mother. They heard "wrestling" noises coming from behind closed doors the night that their father allegedly hit their mother, and at first their mother gave them a false explanation for her black eye, telling them she fell.
The mediator recommended that the family court grant wife full legal and physical custody of the children; the court order professionally monitored visits with husband once a month; that wife enroll the children in counseling; and that husband enroll in a batterer's program that has a child abuse component. The mediator explained that reduced visits were necessary "while the children have time to work through their traumatic experiences with [husband]." The mediator opined "[t]here is a strain on the children to playact 'happy family'" during visits with husband, and she wished "to decrease the number of times they need to do this." Nonetheless, the mediator noted that, if the family court were to suspend visits with husband altogether, "it will be impossible to retrieve them once we think it's time."
Finally, the mediator noted there were two deficits that needed to be addressed. The first deficit had already been addressed when the family court ordered husband to enroll in a batterer's program. The second deficit, according to the mediator, "is more difficult to treat." Based on the boys' statements, the mediator opined "there has been a history of a poor attachment between [husband] and his children, independent from the problems with poor disciplinary practices or physical abuse." To address this deficit, the mediator recommended "focused family therapy to assist the parties in building a different kind of relationship."
D. Husband's Request for an Evidentiary Hearing and Temporary Child Custody and Child Visitation Orders.
Husband's attorney could not appear at the originally scheduled hearing to determine child custody and child visitation, due to a family illness. The attorney who appeared for husband requested a continuance. The attorney informed the family court that husband requested an evidentiary hearing pursuant to Family Code section 217 (unless otherwise indicated, all further statutory references are to the Family Code), and he wished to subpoena the mediator and examine her about "several inconsistencies and factual problems" in her report. Wife's attorney objected to a continuance, stating the mediator's report spoke for itself and was not inconsistent. If the family court were inclined to grant a continuance, wife's attorney asked that the court adopt the mediator's recommendation as an "interim order." The court found good cause and continued the hearing. When asked if the court would make a finding on husband's request for a hearing under section 217, the court indicated it would wait until husband's attorney could appear. Wife's attorney informed the court that husband had visited the children the previous three Sundays and asked that the next visit be suspended. The attorney who appeared for husband stipulated to suspending the next scheduled visit.
Prior to the continued hearing on the issues of child custody and child support, husband filed a memorandum requesting an evidentiary hearing pursuant to section 217. Husband also filed a witness list, indicating he intended to examine the children, the mediator, the social worker, the visitation monitor, and neighbors and friends.
On the day of the continued hearing, husband's attorney was again unable to appear, this time because he was appearing in juvenile court on another matter. The attorney who appeared for husband requested a continuance and reiterated that husband requested an evidentiary hearing where he could examine the mediator and the social worker, among others. Wife's attorney objected to an additional continuance, stating she had only received husband's memorandum and witness list the day before. Wife's attorney indicated wife would prefer no visits with husband whatsoever, as opposed to monthly visits as recommended by the mediator. "However, if the Court wants to make that a temporary order, we can live with that." She asked that if the court were to temporarily order monthly visits, that the visits commence the following month. The attorney who appeared for husband indicated she was not prepared to proceed with an evidentiary hearing that day and again asked for a brief continuance.
The family court indicated it believed a continuance was appropriate. However, "to look out for the best interests of these children," the court stated, "there needs to be some consideration of a custody order today. It can be considered temporary." The attorney who appeared for husband informed the court that she had a report from the visitation monitor, stating that "the kids had a fantastic time with their dad. No one's scared; no one is afraid. He cannot miss out on custody and visitation." The court again indicated it believed "the best interests of the children require the Court to make some orders today, and we can call those 'temporary orders.'" The court stated it was happy to set a trial readiness conference (TRC) and acknowledged that husband had the right to an evidentiary hearing.
The court specifically said the temporary orders "can either be revisited on a temporary basis at the trial readiness conference that we can set, or they certainly can be considered at an evidentiary hearing, that both parties have a right to." The court also said, "This order is not meant to be set in stone and can be revisited." Nonetheless, the court indicated that "following the mediator's recommendation is in the children's best interest at this point." The court encouraged husband to continue visiting the children and "have the supervisor continue with reports and observations." Therefore, the family court adopted the mediator's recommendation regarding child custody and child visitation as the court's order and set a TRC. The court indicated it would not set an evidentiary hearing until after the TRC had taken place.
Husband timely appealed from the order issuing a DVRO and from the temporary child custody and child visitation orders.
Wife did not file a respondent's brief, so we "may decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) "Nonetheless, [husband] still bears the 'affirmative burden to show error whether or not the respondent's brief has been filed,' and we 'examine the record and reverse only if prejudicial error is found.' [Citation.]" (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.)
II.
DISCUSSION
A. Mootness.
Since husband filed his appeal, the family court has entered orders and a judgment that call into question whether husband's appeal is moot. We directed husband to show cause why his appeal from the original DVRO and from the temporary child custody and child visitation orders should not be dismissed as moot. (See Gov. Code, § 68081.)
The parties appeared on May 11, 2018, for a scheduled court trial on reserved issues. The parties agreed to participate in a mandatory settlement conference, after which the parties informed the family court that they had reached an agreement regarding child custody and child visitation. On that day, the family court issued a third amended DVRO.
On May 17, 2018, the parties submitted a stipulated judgment for the family court's review. The judgment entered on May 24, 2018, granted wife sole legal and physical custody of the children. As for visitation, the judgment stated: "As to [D.] and [R.], the Court finds that there is no reasonable likelihood either child will be willing to visit [husband]. However, any visitation between [D.] and [R.] and [husband] will be at the children's discretion." The judgment granted husband eight-hour monitored visits with E. the first and third Saturday of the month immediately following entry of judgment and, thereafter, monitored weekend visits with E. on the third weekend of the month. Finally, during the summer break, husband was granted an additional three-day visit with the children.
On our own motion, we have taken judicial notice of the family court's orders and judgment entered after husband filed his notice of appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); see Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 [reviewing courts may consider matters which occurred after the appeal has been filed "when subsequent events have caused issues to become moot"].)
Husband requests that we also take judicial notice of the transcript for the TRC, which took place the month after husband filed his notice of appeal, contending the transcript is relevant because it sheds light on the family court's reasoning when it issued the temporary child custody and child visitation orders. As demonstrated above, the family court clearly articulated its reasoning when it issued the temporary orders. The request for judicial notice is denied.
"Appellate courts generally will neither decide controversies that are moot nor render decisions on abstract propositions. [Citations.] 'A case is moot when the decision of the reviewing court "can have no practical impact or provide the parties effectual relief. [Citation.]" [Citation.] "When no effective relief can be granted, an appeal is moot and will be dismissed." [Citations.]'" (Steiner v. Superior Court (2013) 220 Cal.App.4th 1479, 1485.)
As this court has recognized, "there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation]." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480.)
Husband argues the validity of the family court's findings of domestic violence remain to be determined, notwithstanding that the original DVRO has been supplanted by amended restraining orders. Because the factual findings underlying the original restraining order may have future consequences for husband, we agree that husband's appeal from the order issuing the original DVRO is not moot. (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 209.)
With respect to the family court's temporary child custody and child visitation orders, they have clearly been rendered moot by the stipulated judgment which contained agreed-upon child custody and child visitation orders. Husband contends, nonetheless, that we should apply the exception to the mootness doctrine for issues of broad concern that are likely to recur.
We have discretion to decide an appeal that is technically moot if "it presents important issues that are capable of repetition yet likely to evade review. [Citation.]" (In re Marriage of Paillier (2006) 144 Cal.App.4th 461, 468.) However, that exception should apply only when there is at least a reasonable probability that the issue will recur. (E.g., Dana Commercial Credit Corp. v. Ferns & Ferns (2001) 90 Cal.App.4th 142, 144, fn. 1 [E]xception applies when "'"issues on appeal affect the general public interest . . . , and there is reasonable probability that the same questions will again be litigated and appealed."'" (Italics added.)].) "It is not enough that a consummated event could, theoretically, happen again. Rather, for an event to be 'capable of repetition' in the requisite sense, there must be a reasonable expectation of reoccurrence. [Citation.]" (CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc. (1st Cir. 1995) 48 F.3d 618, 622, italics added; accord, Murphy v. Hunt (1982) 455 U.S. 478, 482 (per curiam) ["a mere physical or theoretical possibility" of recurrence is insufficient to trigger exception to mootness doctrine].)
In his opening brief, husband argues this court needs to reverse the family court's temporary child custody and child visitation orders "to prevent the Riverside Family Law Court from its continued pattern and practice of violating the fundamental rights of parents." In his supplemental brief, husband states the issue of the family court admitting mediation reports without affording the parties an opportunity to cross-examine the mediator "is subject to repetition," "is an ongoing problem," "is a common practice," occurs "on a regular basis," and is an "ongoing issue" that we should address. But nothing in the record or in this court's experience with appeals from the family courts supports husband's bald accusation of a widespread, persistent practice of family law judges denying parties the right to cross-examine court mediators about their recommendations for child custody and child visitation.
The facts of this very case tend to demonstrate there is no widespread problem. Contrary to the suggestion in husband's main and supplemental briefs, the family court did not preclude him from cross-examining the mediator (see McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473 [striking down local court rule that prohibited cross- examination of family court mediators about child custody and child visitation recommendations]), and the court did not improperly accept the mediator's report and recommendation on an ex parte basis (see In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1521, fn. 8 [improper for family court to enter temporary orders after speaking privately to the mediator on the telephone]). Husband's attorney was unable to attend the continued hearing on the mediator's report and recommendation that had been provided to the parties. The family court was justifiably concerned that some temporary child custody and child visitation orders should be in place until husband's attorney became available and the evidentiary hearing could take place. And the court made it clear that its orders were, in fact, temporary, and they could be revisited once the evidentiary hearing took place and husband had the opportunity to cross-examine the mediator (as was his right) about her report and recommendations.
Because we conclude husband's appeal from the temporary child custody and child visitation orders is moot, we dismiss the appeal as to those orders.
B. Substantial Evidence Supports the Order Issuing a DVRO.
"The purpose of the [Domestic Violence Prevention Act (DVPA; § 6200 et seq.)] is 'to prevent acts of domestic violence, abuse . . . and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.' (§ 6220.) To this end, the DVPA provides for the issuance of restraining orders that enjoin specific acts of abuse. 'Abuse' is statutorily defined to include, among other things, to 'intentionally or recklessly cause or attempt to cause bodily injury' and to 'place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.' (§ 6203, subd. (a)(1) & (3).)" (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) "Abuse is not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).)
"We may not disturb a court's ruling on a request for a DVRO absent an abuse of discretion. [Citation.] '"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."' [Citation.] 'To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review.' [Citation.]" (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.)
Husband contends the family court's factual finding that husband engaged in acts of domestic violence against wife and the children is not supported by substantial evidence and, therefore, the family court abused its discretion by issuing the DVRO. "When conducting a substantial evidence review, we must review the entire record in the light most favorable to the prevailing party, resolve all conflicts in the evidence in favor of the ruling or judgment being reviewed, and indulge all reasonable inferences in support of the family court's findings. [Citation.] The family court's resolution of conflicts in the evidence and credibility assessments are binding on this court. [Citation.]" (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286-1287.)
Under the substantial evidence test, "the power of this court '"begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below.' [Citation.]" (In re Marriage of Dalgleish & Selvaggio (2017) 17 Cal.App.5th 1172, 1183.) The testimony of a single believable witness, even that of a party, may constitute substantial evidence. (Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) "[T]he pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made. [Citation.]" (In re Marriage of Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 702.)
Husband's argument rests entirely on the premise that the family court erred by finding wife to be a credible witness, given the "glaring" inconsistencies in her testimony. It is settled, however, that "a trier of fact is required to reject evidence only '"when it is inherently improbable or incredible, i.e., '"unbelievable per se,"' physically impossible or '"wholly unacceptable to reasonable minds."'"' [Citation.]" (People v. Simms (2018) 23 Cal.App.5th 987, 995-996, first italics added, second italics in original.) And for a reviewing court to reject "the statements of a witness who has been believed by the trier of fact, it must be physically impossible for the statements to be true, or their falsity must be apparent without resorting to inferences or deductions. [Citation.]" (In re Jordan R. (2012) 205 Cal.App.4th 111, 136.)
Husband does not challenge the family court's finding that his testimony was not credible or that his testimony, about what wife said when he asked her about the black eye, "made absolutely no sense."
True, wife's testimony differed in several respects from the allegations in her written application. In the application, wife alleged husband hit her in the right eye in October 2015. But, at the hearing, she testified the incident occurred in December 2015 and that husband hit her in the left eye. At the hearing, wife testified she was in tears when she filled out the application and she merely made a mistake. Moreover, when laying the foundation for admitting the photographs she took of her eye on the night of the incident and over the next three days, wife gave somewhat inconsistent testimony about the number of photos she took on each day.
Notwithstanding these and other minor inconsistencies, wife's allegations were very consistent as to the salient facts: when wife did not go upstairs to bed, husband asked her what she was doing sitting on the sofa; when wife said she was on her phone, husband said she was "fuckin' stupid"; when husband came back downstairs, he went up to wife and "puffed" his chest against wife; and when wife pushed husband away, he hit her in the eye and she received a black eye from the blow. The family court, as the trier of fact, could reasonably find wife was a credible witness despite the inconsistencies between wife's application and her testimony, and despite any inconsistencies in her testimony itself. (See People v. Champion (1995) 9 Cal.4th 879, 927 ["although there were inconsistencies in witness [M.'s] testimony, the jury could reasonably find her testimony credible"].)
Without question, wife's testimony was substantial evidence that husband physically assaulted her. Based solely on that evidence, the family court had discretion to issue a DVRO based on a finding of abuse. (§ 6203, subd. (a)(1), (a)(3).) Because we find no abuse of discretion, we must affirm the order.
We hasten to add that wife's testimony about husband's physical abuse of the children independently constituted substantial evidence of abuse and supported the issuance of a DVRO. (In re Marriage of Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 703 [testimony that husband "repeatedly struck [his] two-year-old daughter with a belt" was substantial evidence of abuse].) --------
III.
DISPOSITION
Husband's appeal from temporary child support and child visitation orders is dismissed as moot. The order issuing a domestic violence restraining order is affirmed.
No costs are awarded. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.