Opinion
A130845
10-24-2011
CAROLINE SAMIEZADE-YAZD, Plaintiff and Appellant, v. MOHAMMAD SAMIEZADE-YAZD, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. HF07337488)
Caroline Samiezade-Yazd appeals from an order denying her request to modify an order suspending visitation with her three teenage children and for a "change of venue" of the ongoing custody dispute with the father of the children. We find no error and shall affirm.
Background
Caroline Samiezade-Yazd and Mohammad Samiezade-Yazd filed for divorce in September 2004 in Colorado. In April 2006, the Colorado court awarded Mohammad custody of the couple's three minor children and authorized his move to California with the children. Caroline was given the right to supervised visitation. The contentious custody dispute continued in California. After four years, in response to another of Caroline's numerous largely repetitive motions, the court issued an order, following a hearing on October 21, 2010, suspending visitation between Caroline and the children, now ages 13, 15 and 17 years old. The report prepared by the family mediator prior to the October hearing explains: "The minors in this case said that they do not want to continue the therapeutic sessions with their mother at this time. They feel so strongly about this, they report, that except for a few confrontations between the oldest and her mother, they are refusing to speak at all during the sessions. The minors also said that they are happy at their father's home; they did not report any concerns or fears associated with living with him. [¶] The minors were earnest, direct and credible. They have clearly been cooperating with therapeutic sessions, despite not wanting to go for some time. It [is] our recommendation that they not be forced to continue attending at this time. We suggest that the matter be reviewed in six months" A hearing to finalize visitation was set for January 2011.
On October 27 2010, Caroline filed a motion requesting "a complete change of venue to a different courthouse with a different and unbiased judicial officer for the remainder of the hearings regarding custody of her children" and the "reversal of the order for absolutely no contact with her children and that joint and legal custody be ordered immediately for all the minor children." Caroline's motion alleges numerous instances in which she felt the judge made erroneous rulings, including exclusion of certain email evidence and the refusal to order the children's therapist to testify. She also alleges that at a hearing on September 30, 2010, Mohammed's attorney stated, "In my 35 years of practice, I have never had a case like this" and Commissioner Nixon allegedly replied, "I never have had one like this either." In addition, she alleges that "In a hearing earlier in the history of this case, Commissioner Nixon stated in open court, 'We should just let the kids reach 18 years old and let them decide for themselves what they want.' " Caroline argued that "it can only be concluded that Nixon is completely unable to conduct fair hearing utilizing due process and equal protections under the 14th Amendments of both the US and California Constitution." On December 9, 2010, the trial court denied Caroline's motion in its entirety.
Caroline filed a timely notice of appeal from the December 9 order. She has chosen to proceed by way of an appendix under California Rules of Court, rule 8.124 and without a reporter's transcript of the December 9 hearing. Caroline appeared in persona propria in the trial court and both parties are representing themselves on appeal.
Discussion
Initially, we note that Caroline's appellate briefs completely fail to comply with the applicable requirements of the California Rules of Court, rule 8.204(a). Her briefs do not contain any citation to the record and her arguments are not organized in any understandable manner and are not supported by citation to relevant authority. The vast majority of her briefing is focused on factual issues unrelated to the limited scope of this appeal. As set forth above, the notice of appeal specifies that the appeal is from the December 9 order; any issue with respect to the validity of the prior visitation order or those orders that preceded it are beyond the scope of our review. We also note that the appendix Caroline has filed contains numerous documents relating to matters that occurred subsequent to December 9 and which necessarily were not before the trial court when it issued the order from which the appeal is taken; those materials cannot be considered in evaluating the order on appeal.
1. Judicial Bias
Caroline's October 27 motion asserted that Commissioner Nixon, who heard this and previous motions, is disqualified because he is biased against her, violating her right to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Although Caroline titled her motion as one for a "change of venue," the alleged bias of an individual judge is not a ground for change of venue under Code of Civil Procedure section 397. Her motion undoubtedly was intended as a motion to disqualify the commissioner on the ground of bias. Even if we were prepared to consider the motion in that light, having failed to seek writ review of the order, Caroline has forfeited any constitutional challenges to the denial of the motion. (See Roth v. Parker (1997) 57 Cal.App.4th 542, 547-548 [appellant's "failure to seek timely writ review of the order constitutes a forfeiture of her nonstatutory due process attack on the judgment on the ground of judicial bias"].)
The motion cannot be construed as a statutory motion to disqualify under Code of Civil Procedure section 170.1 subdivision (a)(6)(A)(iii), which provides that "A judge shall be disqualified" if "[a]person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Caroline's moving papers did not comply with the applicable statutory requirements for such a motion. She failed to "file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge." (§ 170.3, subd. (c)(1).) Moreover, the denial of a motion to disqualify under section 170.1 is not
In People v. Brown (1993) 6 Cal.4th 322, 335, the court recognized that Code of Civil Procedure section 170.3, subdivision (d), which requires writ review (on appeal from a final judgment) of the denial of a statutory motion to disqualify, "does not apply to, and hence does not bar, review of nonstatutory claims that a final judgment is constitutionally invalid because of judicial bias." Nevertheless, "[i]n order to give maximum effect to the Legislature's clear intent that disqualification challenges be subject to prompt review by writ [citation], we conclude that a litigant may, and should, seek to resolve such issues by statutory means, and that his negligent failure to do so may constitute a forfeiture of his constitutional claim." (Brown, at p. 336.) Moreover, in civil cases, a constitutional question must be raised at the earliest opportunity or it is waived. (In re Marriage of Christie (1994) 28 Cal.App.4th 849, 865.) "The purpose of this rule is twofold. It seeks to eliminate the waste of time and money which would flow from continuing the proceeding subject to its being voided by an appellate ruling that the disqualification decision was erroneous. It also promotes fundamental fairness by denying the party seeking disqualification a second 'bite at the apple' if he loses on the merits but succeeds on appeal from the disqualification order." (Gai v. City of Selma (1998) 68 Cal.App.4th 213, 230.)
Here, Caroline offers no explanation for her failure to seek writ review of the order she challenges. In March 2011, while this appeal was pending, the trial court held a hearing on final visitation and has issued its ruling. Allowing Caroline to obtain review of the disqualification order at this time would defeat the purpose of the rule requiring appealable and may be reviewed only by petition for writ of mandate. (§ 170.3, subd. (d).) immediate review of an order denying disqualification of the judicial officer. Accordingly, the issue has been waived.
Caroline appealed from this order, which granted her qualified visitation rights, but her appeal has been dismissed for failure to file a record on appeal.
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Even if we were to reach the merits of Caroline's arguments, the papers in support of the motion do not provide a ground for the disqualification of the commissioner. Most of Caroline's asserted evidence of bias are the rulings with which she is dissatisfied. "[A] trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review." (People v. Guerra (2006) 37 Cal.4th 1067, 1112, citing Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796; McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11.) Moreover, the two ambiguous comments allegedly made by Commissioner Nixon are insufficient to establish a bias requiring his disqualification.
2. Modification of Visitation Order
In family law proceedings, visitation is not mandatory. Family Code section 3100, subdivision (a) reads: "In making an order pursuant to Chapter 4 [regarding child custody] . . . , the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. . . ." Visitation may be suspended if the court determines this would be in the best interest of the child. (Messer v. Messer (1968) 259 Cal.App.2d 507, 510.) We review the order refusing to reinstate visitation for an abuse of discretion. (In re Marriage of Kim (1989) 208 Cal.App.3d 364, 370.)
Here, the trial court issued the order temporarily suspending visitation seven days before Caroline filed her motion for modification. Caroline's failure to appeal the prior order precludes review of the merits of the suspension itself. Instead, we must determine whether the court erred in refusing to reinstate visitation. The record before this court provides no basis for concluding that the best interests of the children would have been served by reinstating visitation seven days after visitation was suspended. The suspension was not intended to be open-ended. When visitation was suspended, a further hearing to determine long term visitation was set for January 2011. Caroline does not suggest that there were any changed circumstances between entry of the October 20 order and the filing of her motion on October 27 to justify the requested modification of visitation, let alone custody. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088 [" '[O]nce it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest.' "].) The court did not abuse its discretion in denying her motion.
Disposition
The order is affirmed.
Pollak, J. We concur: McGuiness, P. J. Siggins, J.