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Fitzgerald v. Fitzgerald (In re Marriage of Fitzgerald)

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
Oct 30, 2018
C085843 (Cal. Ct. App. Oct. 30, 2018)

Opinion

C085843

10-30-2018

In re the Marriage of SEAN PATRICK and IVORY JEAN FITZGERALD. SEAN PATRICK FITZGERALD, Appellant, v. IVORY JEAN FITZGERALD, Respondent.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TDR0000140)

This contentious child custody battle between petitioner Sean Fitzgerald (husband) and respondent Ivory Fitzgerald (wife) comes to us after several years of litigation, mostly on the same issues -- wife seeking additional custody and visitation time with their son, B. F., and husband seeking to impose supervision on her visitation because she does not meet B. F.'s needs and presents a risk of abducting the child to the Philippines.

The appeal arises from the trial court's 2017 decision (2017 decision) in response to husband's motion to modify the final child custody and visitation orders included in the 2014 judgment dissolving the marriage (judgment). Husband asserts three arguments on appeal: (1) the trial court erred in granting wife's motion in limine precluding husband from introducing any evidence regarding wife's alleged rape of husband's son from a prior marriage, M. F.; (2) the trial court erred in failing to consider and appoint minor's counsel for B. F.; and (3) the 2017 decision should be reversed because the trial court adopted the findings and recommendations of the child custody evaluator who was unqualified to render opinions on issues pertinent to the case, especially with respect to international child abduction risk. We find no merit in any of these contentions and affirm.

M. F. was born in November 1994 and would have been between 14 and 15 years old at the time of the alleged incident.

FACTUAL AND PROCEDURAL BACKGROUND

Husband and wife met online in 2007, while husband was living in California and wife was living in the Philippines. Husband traveled to the Philippines and stayed there with wife for some time. Their son, B. F., was born in the Philippines in September 2008. Shortly thereafter, the family moved to California and the couple married in January 2009. Approximately 12 months later, the couple separated. Substantial litigation regarding B. F.'s custody followed.

Wife filed an action for exclusive custody of B. F. in March 2010. The court granted wife's ex parte motion and B. F. was forcefully removed from husband's custody. Through ex parte relief of his own, husband's custody was restored and wife's visits were ordered supervised. On June 15, 2010, the visitation order was modified to eliminate wife's supervision requirement (2010 order).

A

2011 Ex Parte Decision

In 2011, husband filed a motion to modify the 2010 order. He requested wife's further daily visits with B. F. be supervised by a professional based on the information contained in his declaration.

Husband declared: He discovered a "disturbing" post on wife's Facebook page that appeared to be "a love letter to someone with whom she was smitten or enamored, and most troublesome was the fact that this text was posted below a photograph of [wife] and [M. F.]." He printed the information and gave it to M. F.'s therapist to discuss with him. M. F.'s therapist contacted Placer County Family and Children Services after learning of "inappropriate contact" between wife and M. F. At least four people interviewed M. F. at the Placer County District Attorney's Office on September 15, 2011; and, on September 21, 2011, a detective told husband "they were referring this matter to the Placer County District Attorney's Office, and would be recommending a prosecution against [wife] for statutory rape of [M. F.]." As a result of this information, he was concerned "about the risk of physical and emotional harm that [B. F.] may sustain by his contact with his mother" and the possibility that wife would be motivated to abduct B. F. to the Philippines due to the impending charges. Thus, husband requested wife's visitation with B. F. be supervised and her visitation contacts with B. F. be suspended until professional supervision services could be arranged.

The accusation also involved an alleged battery by wife on M. F., which is not pertinent to this appeal.

Husband also filed a declaration by M. F., in which M. F. declared he had sexual intercourse with wife in the spring of 2009. Wife "put her hand on [his] private part" and he "got up and went into [his] bathroom, feeling very confused. As [he] thought about it, [he] started to think that having sex with [wife] would be something that [he] could brag about to [his] friends. [He] went back from [his] bathroom into [his] room . . . and had vaginal sex with her." Wife told him, " 'Don't tell your father.' " Wife "on a number of times after that, gave [him] condoms and suggest[ed] that [they] have sex once again." He always refused.

After the ex parte hearing, on October 11, 2011, the court ordered wife's visitations with B. F. be supervised pending trial.

B

2012 Decision

On June 17, 2012, the trial court issued a tentative decision regarding child custody and visitation following three days of trial, during which several witnesses testified. The court explained: "It is apparent by their orders that the judicial officers who entered the three orders after the initial order [regarding custody and visitation] were concerned about the risk of child abduction [by wife due to her ties to the Philippines]." The court's decision included a summary of the testimony presented by an expert on international child abduction and a discussion of the factors set forth in Family Code section 3048, subdivision (b). The court found that preventative measures were necessary because a risk of abduction did exist. Thus, the court ordered a parenting plan with preventative measures relating to wife's flight risk.

All further section references are to the Family Code unless otherwise specified.

Wife's flight risk was not, however, related to husband's allegations regarding M. F. As the trial court explained: "In September of 2011 visitations were ordered supervised because allegations of inappropriate sexual contact between [wife] and [M. F.] arose. Apparently both a [Child Protective Services (CPS)] investigation and a criminal investigation were underway and the court was concerned that the threat of prosecution would cause [wife] to flee to the Philippines and perhaps take [B. F.] with her. At the trial a CPS worker testified that CPS had closed its investigation and intended to take no action. There was no evidence presented as to any possible criminal action. With criminal prosecution having failed to materialize the justification for ordering supervised visitation has ceased to exist and the visitation described above shall continue, but without supervision."

Husband requested a statement of decision, which the court issued on August 23, 2012. The court reiterated its analysis of the section 3048, subdivision (b) factors, and its finding that a risk of abduction did exist. Thus, the court ordered: "Visitation during the week should begin and end at times that the Court is in session enabling [husband] to have access to the Court should anything untoward occur while [B. F.] is with [wife]. In addition Sunday visits should be supervised."

C

2013 Decision

On April 13, 2012, wife filed a motion for modification of custody, visitation, child support, appointment of a psychologist for custody evaluation, and appointment of minor's counsel. She renewed her motion on October 15, 2012. A bench trial was held "over the course of several days commencing on February 22, 2013 and concluding on April 17, 2013." The trial court issued its decision on June 17, 2013 (2013 decision). We summarize only the information pertinent to the three issues in this appeal: the rape allegation, the request for appointment of minor's counsel, and the risk of child abduction.

1

Rape Allegation

At the commencement of trial, the judge sought to clarify the issues. In wife's opening statement, her counsel raised wife's concern regarding the continued rape allegations involving M. F., requesting the court order an evaluation under section 3118. The judge asked husband's counsel whether husband continued to contend that wife engaged in sexual relations with M. F. His counsel responded husband never contended that she did because he had no personal knowledge of what occurred; husband merely presented the mandatory report to the court and notified the court of his discussions with Placer County authorities and their asserted intentions.

The following discussion ensued:

"[Court]: But is he prepared today to stipulate that this court may consider it an established fact that Miss Fitzgerald did not rape his teenage son, and that that should not be a factor in this case?

"[Husband's counsel]: I think he would be prepared to stipulate to an order that there is no evidence before this court that supports that allegation. [¶] I mean, he doesn't know what happened, if that is what you are asking me, your Honor. I can't advise him to stipulate when he has no knowledge one way or another. But he will stipulate that there was no prosecution, Placer County did not proceed, and that there has been no further evidence that would support that claim.

"[Court]: Does he agree that there is no evidence before this court that supports an allegation of sexual abuse by Miss Fitzgerald of any minor child?

"[Husband's counsel]: Certainly if there was any, it would only be [M. F.] that he would have any information about, and only what is in his motion about [M. F.]. But he doesn't know of any evidence that supports that or would support this court making that conclusion.

"[Court]: And assuming this court were to refer the matter for an evaluation of any sort, appoint any counsel, appoint a special master, does your client agree that is a non-issue? In other words, that would not be discussed with them, it would not be asked to investigate that, that that is a dead issue?

"[Husband's counsel]: I believe so. [¶] Do you understand what the Court is asking?

"[Husband]: Not clearly.

"[Husband's counsel]: The Court is asking, if there was an appointment of minor's counsel or a special master, if we continue with proceedings here -- let me make sure I get this right, your Honor -- that you are agreeing that the issue of whether or not Ivory Fitzgerald engaged in improper sexual conduct with [M. F.] is not an issue in this case?

"[Husband]: I would say so.

"[Husband's counsel]: Yes, that would be agreed."

In the 2013 decision, the judge wrote: "In addition to the foregoing, there is a lingering issue as the result of an assertion made late in the process of the 2011 custody evaluation, that [wife] in 2009 had molested [husband's] son, a teenager with some history of difficulties. The parties do not dispute that these allegations were fully investigated by law enforcement and found to be unfounded. No charges were filed and no action was taken by any agency as against [wife]. During his 2011 investigation, Dr. Stahl was denied access to the teenage child and he specifically noted his recommendations did not take any of these allegations into consideration. [Wife] in her pending motion requested a re-referral for a full custody evaluation, including an evaluation of the teenage child, in part based upon her assertion that the accusations were and are false and unfairly color the case. In addition, she notes that these allegations have been used as further justification for branding her as a flight risk and remain a lingering unjustified taint on her character. [Husband] objects to a further [custody] evaluation and strenuously objects to any evaluation of his teenage son. Among other reasons for so objecting, he made clear that he does not now contend [wife] molested his son. In his opening statement, [husband] stated unequivocally that 'there was no evidence before this court that supports an allegation of sexual abuse by mother of his son or any other minor child.' This court finds no evidence to support any allegation of sexual abuse by [wife] of any minor child and deems that issue final. The court finds insufficient evidence to support a finding [husband] intentionally sought to have known false charges filed in 2011."

2

Minor's Counsel Appointment Request

As noted above, wife asked the trial court to appoint minor's counsel for B. F. Husband opposed the motion, writing: "there is simply nothing pending before this Court that would require [B. F.] to be represented by legal counsel. . . . Further, the testimony of Dr. Stahl, and his report . . . provide specific and detailed recommendations to deal with the parties' inability to co-parent, and the service and honoring of [B. F.'s] best interests. This case simply does not need more experts, professionals, or third parties involved, particularly since [wife] does not suggest that she would participate, in any fashion, and in any amount, in paying the cost of the services she seeks be imposed."

At trial, the judge asked husband and wife to confirm their positions on the minor's counsel appointment request. Wife confirmed she was requesting the appointment of minor's counsel and added she was also requesting appointment of a neutral special master. She noted, however, that she was unsure whether it was best to appoint a mental health professional or an attorney for B. F. Husband responded that, although "sometimes minor's counsel serves a purpose, sometimes more cooks spoil the broth" and he "th[ought] there ha[d] been in the pleadings a voice heard for this child." He also expressed concern regarding the expense of minor's counsel if appointed.

In the 2013 decision, the judge denied wife's request to appoint minor's counsel, without any specific discussion on the issue. The court noted, however, that "the parties agreed to the appointment of a co-parenting counselor as well as a Special Master."

3

Child Abduction Risk

The court noted wife "allege[d] a substantial change of circumstances justifying a modification of the parenting plan and in particular a removal of the supervision requirement." The court summarized the prior findings on this issue (including the evaluation of the factors in section 3048, subdivision (b)) and the testimony presented at trial. The court found "a significant change of circumstances warranting a re-evaluation of the perceived abduction risks" because wife "ha[d] obtained permanent resident status, she now demonstrate[d] increasing community ties with many friends in the Tahoe area, and she continue[d] to demonstrate responsibility and maturity in both her personal and professional endeavors." Additionally, the court found the 2011 "lingering issues" regarding wife's "emotional stability" were no longer of concern because she had demonstrated composure and was calm during trial and witnesses testified to her "reputation as having an even-tempered and cheerful disposition."

The court therefore granted wife's motion and ordered unsupervised parenting time three full days a week. The court further expressed its intent "to gradually increase mother's parenting time to a significantly greater percentage of time, including a progression to overnight and weekend parenting time, after consideration of her work schedule and the child's upcoming school schedule." The court did, however, recognize that some risk of abduction remained and, therefore, ordered certain protective measures.

D

2014 Judgment

The judgment incorporated "various agreements and orders entitled 'Final Child Custody Orders,' " noting "[t]he parties agreed and the court ordered" that those final child custody determinations would only be modified in the future if a party could demonstrate a significant change or circumstances justifying a modification pursuant to Montenegro v. Diaz (2001) 26 Cal.4th 249. Neither party appealed that decision.

The trial court issued various orders after the 2013 decision, including modifications to the parenting plan. These orders are not at issue in this appeal. Each order states previous orders not in conflict shall remain in full force and effect.

E

2017 Trial

Husband filed a motion on November 5, 2015, requesting a modification of the child custody orders and referral for a full child custody evaluation based on several asserted concerns, including corporal punishment, physical abuse, and verbal and emotional abuse of B. F. by wife, domestic violence between wife and her boyfriend in the presence of B. F., pertinent information from B. F.'s therapist, wife's failure to appropriately tend to B. F.'s health and medical needs related to allergies, and wife's passive-aggressive participation in coparenting and refusal to attend sessions (2015 motion).

Wife responded the parenting schedule was not working and noted several areas of concern, including husband's continued false allegations of abuse and neglect, husband's repeated false statements about her to B. F. and others, husband's coaching of B. F., B. F.'s fear to acknowledge wife in the presence of husband, the stress experienced by B. F. due to conflict at exchanges and his fear of expressing any affection for wife in the presence of husband, and husband's refusal to continue coparenting after six sessions. Wife further denied any physical abuse or corporal punishment of B. F.

The court ordered Kevin Dugan, a licensed psychologist, to conduct a child custody investigation regarding husband's claims of wife's corporal punishment and nonadherence to the existing orders, "as well as the best interests of the minor child and the resulting parenting time-share commendation." A bench trial was conducted over multiple days, during which the parties and various witnesses and experts testified.

1

Motion In Limine

During the trial, the court considered wife's motion in limine for an order precluding husband from "introducing any documents or other demonstrative evidence and from making any statement, reference, innuendo, suggestion or implication regarding any documents or testimony regarding any allegations of sex abuse of [husband's] older son, from a prior marriage, by [wife]." Wife argued the basis for the motion in limine was twofold: (1) "such evidence is barred by the doctrine of res judicata and/or collateral estoppel" based on the court's 2013 decision and (2) "the probative value of such evidence would be substantially outweighed by the substantial danger of undue prejudice, and would necessitate undue consumption of time" under Evidence Code sections 350 and 352.

Husband opposed the motion, arguing: (1) the allegations "ha[d] a reasonable bearing on the physical and psychological well-being of the minor child"; (2) the allegations were "put squarely at issue by this Court's appointed child custody evaluator, Kevin Dugan, PhD, who stated that if this Court found credible evidence that the statutory rape occurred, his entire evaluation and recommendation should be set aside"; (3) the testimony and evidence relating to the allegation was not barred by collateral estoppel "as this claim was not previously asserted or litigated and there is new evidence related to the allegation"; and (4) exclusion of the evidence would result in manifest injustice.

In his report, Dugan wrote: "Certainly the allegation of [husband] and [M. F.] that Ivory engaged in statutory rape with [M. F.] when he was a teenager is of concern. No information was presented in this evaluation confirming that allegation, and this matter was investigated at the time by law enforcement and Child Protective Services. No new information was presented during this evaluation that was also not presented at that time. It is beyond the qualifications of this evaluator to conduct another investigation into the statutory rape allegation, and I am unable to offer an opinion about whose perspective is the more accurate. Upon adjudicating this matter, if the Court were to find as fact that Ivory engaged in inappropriate sexual conduct with [M. F.], that would render this analysis moot, and certainly suggest that supervised visitation with [B. F.] would be prudent."

During oral argument, husband argued "the issue was never brought before the court through live testimony" in 2013, and disagreed with wife's counsel that there was a stipulation "that it didn't happen," to which the judge responded, "[y]es, there was. I was there."

The judge continued: "So I do recall this very clearly . . . . What I put in the decision is I actually allowed the parties, at that time, a lot of latitude to testify as to who did what from the very beginnings of their relationship, and the point I made is that there was a tendency to -- every time they got a different judge, they relitigated the same facts, 'Well, let me explain to you, Judge, what happened,' and it was happening over and over again.

"So I said, 'We need to be very clear here as to what the facts are. I'm going to listen to everything you have to say. I'm going to make very clear findings about what is and what is not found true by the court,' and I think I attempted to do that.

"My recollection is that Ms. Fitzgerald adamantly denied that there had ever been any sexual contact with [M. F.], repeatedly asked that there be -- that that be pursued, that we go to conclusion on that. She wanted to present, as I recall, evidence and testimony, and she wanted to call witnesses, and Mr. Fitzgerald said it did not occur, and for purposes of the case, it did not occur.

"Now why did he say that? I don't know. And certainly I can understand what you're arguing now, that there could be very legitimate reasons why he said that, and he didn't want [M. F.] to have to testify. I can understand that. But it's really -- at this point, I think, [the] legal question is was that a final determination by the court?

"Parties can certainly stipulate to facts, and if parties stipulate to facts, they are binding on the court, and my recollection . . . is that it was clearly agreed we're not going there, that that's the law of the case and the same way that I made certain other findings, both favorable to either of the parties, favorable or unfavorable to the parties, and we can't keep relitigating things . . . .

"Those were fully evaluated, and the court made findings as to the facts, and so if parties do agree to facts, they are what they are. And so that's my tentative is that there was a final determination on that, and there is the point that it is unfair, then, to one party to have to constantly relitigate something whether it be Mr. Fitzgerald or Ms. Fitzgerald."

The judge granted wife's motion in limine "to exclude all evidence or testimony related to alleged sexual abuse by [wife] of [husband's] son from a previous marriage." In the written order, the judge explained: "[Husband] seeks to now have his son, aged 21, to testify as to events alleged to have occurred in 2009. This court's decision dated June 17, 2013 addressed the issue of the alleged sexual abuse in 2009 and found that issue fully resolved and final. As the court noted in its decision of June 17, 2013, there remained in 2013 a 'lingering issue' in the case as a result of an assertion made by [husband] late in the process of a 2011 custody evaluation that [wife] in 2009 molested his son. These allegations were not considered by Dr. Stahl in his 2011 report. Thereafter, as noted by this court, [wife] in 2013 requested a re-referral for a full custody evaluation for the then pending custody litigation so that the issue of the alleged molestation, which she denied could be determined. She contended among other things that the 'accusations were and are false and unfairly color the case.' [Husband] made very clear to this court in 2013 that he did not then contend that [wife] had molested his son. As noted by the court, [husband] stated unequivocally that 'there was no evidence before this court that supports an allegation of sexual abuse by mother of his son or any other child.' The court th[e]n found as follows: 'this court finds no evidence to support any allegations of sexual abuse by [wife] of any minor child and deems that issue final.' The issue is indeed final and collateral estoppel applies."

2

2017 Decision

In the written decision, the trial court noted the judgment incorporated the previous final child custody orders and could only be modified if the moving party "demonstrates a significant change of circumstances justifying a modification," citing Montenegro v. Diaz, supra, 26 Cal.4th at page 249.

The trial court detailed its overall findings first, stating: "the court does not find a significant change of circumstances warranting a substantial change in the parenting plan. The court is not persuaded that either parent has physically or verbally abused the minor child. The court is not persuaded that either parent has engaged in serious domestic disputes in the presence of the minor child . . . [or] that there exists a greater risk of abduction by either parent since the last entry of 'final custody orders.' The court is persuaded, however, that as both parents have acknowledged the [existing] parenting schedule is not working in the best interests of their child, some adjustment in the shared parenting plan is appropriate. In addition, . . . the court is further persuaded that the most problematic issues for the parents are communication, conflict, and cooperative management of their child's medical care, none of which issues requires a substantial change in the custody orders but does require some attention to detail by the parties and this court."

On the issue of child abduction risk, the court added: "[Husband] requests this court severely limit [wife's] parenting time alleging an abduction risk. The issue of abduction risk has been litigated on multiple prior occasions. On each occasion this court as well as previously assigned judicial officers, have assessed the issue of abduction risk and made detailed findings as required by law. Subsequent to the court issuing orders on this point, [husband] again filed motions seeking modification of custody orders and alleging an abduction risk. On each such occasion, the factors the court must consider were found to be, if anything, more favorable to the [wife's] position. Again, in the pending action, [husband] has raised the issue of abduction risk and requests substantial limitations on [wife's] parenting. After careful consideration of the evidence, the court cannot find any evidence which supports a finding of an increased risk of abduction since the last order of the Court. In fact, [wife] is now a citizen of the United States. She professes no intention to take the child from the United States and [husband] has presented no persuasive evidence of any intent by [wife] to abduct the child from the United States. The evidence received supports the conclusion that [wife] continues to reside in the Tahoe area, has established a network of friends in the Tahoe area, and continues to work full time and pursue her nursing degree. [Wife] has been in substantial compliance with both the travel limitations imposed by this court during her parenting time as well as other custody orders. The court is aware [wife] had [taken] the child on one occasion slightly outside the geographic limitations while hiking and visiting a waterfall, but the court is persuaded this was inadvertent and fails to demonstrate a pattern of disregard of court orders."

Although the court noted "the parents continue to experience considerable conflict which has negatively impacted the minor child," it found "the parties have nonetheless managed so far to co-parent without deleterious effects on the minor child with one exception: medical management of the child's allergies and asthma-related conditions." In that regard, the court ordered the parents to "forthwith seek referrals for a qualified expert," but reserved jurisdiction to make appropriate orders if they were unable to agree on the treating physician. The court further ordered some modifications to the custody orders with directives to husband and wife on various issues, including medical care.

DISCUSSION

I

The Changed Circumstances Rule

Our review of the issues raised in this appeal must be viewed through the prism of the "changed circumstances" rule as stated in the judgment and the 2017 decision -- an important point that neither party addresses in briefing on appeal. The rule applies " 'whenever [final] custody has been established by judicial decree.' " (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)

In his 2015 motion to modify the judgment, husband acknowledged the changed circumstances rule applied to his request to modify the judgment.

"Under the so-called changed circumstance rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification. [Citation.] According to [our Supreme Court's] earlier decisions, '[t]he changed-circumstance rule is not a different test, devised to supplant the statutory [best interest of the child] test, but an adjunct to the best-interest test. It provides, in essence, that once 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 rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.' " (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)

"[T]he burden of showing a sufficient change in circumstances is on the party seeking the change of custody." (In re Marriage of Carney (1979) 24 Cal.3d 725, 731.) The moving party must not only show that there is a change in circumstance, he or she must also show that the change was significant enough to indicate that a different custody arrangement would be in the best interests of the child. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)

The judgment expressly stated the incorporated child custody orders were deemed final determinations that would only be modified if a party could demonstrate a significant change or circumstances justifying a modification pursuant to Montenegro. Husband's motion for modification of the final custody orders was thus subject to this requirement, as noted by the trial court in the 2017 decision.

II

The Trial Court Properly Excluded Evidence Of The 2009 Alleged Rape

Husband argues the trial court erred in excluding the rape accusation evidence on grounds of collateral estoppel. He argues the standard of review is de novo because the trial court used the motion in limine as a substitute for summary adjudication on "the issue of statutory rape" and " 'the trial court's application of collateral estoppel is reviewed de novo.' " Wife argues collateral estoppel applies to the issue and, even if it does not, the evidence was properly excluded because it is inadmissible under Evidence Code section 352. She argues we should apply the abuse of discretion standard because we are reviewing a child custody and visitation order. As we explain, the trial court properly excluded the evidence under either standard of review but for a different reason than articulated by the trial court and argued by the parties.

The issue of the alleged rape was not a changed circumstance that could support a modification of the final existing child custody and visitation order. The alleged act occurred in 2009 and was known to husband in 2011. In 2011, husband filed M. F.'s declaration with the trial court, in which M. F. declared he had sexual intercourse with wife in 2009. The parties' custody and visitation order was modified in response to that allegation pending trial. Husband then expressly waived the issue in the trial that resulted in the 2013 decision (even though wife sought to litigate it) because he stipulated it was not an issue in this case; and the 2013 decision was incorporated into the judgment, which husband did not appeal.

In the 2013 decision, the trial court found "no evidence to support any allegation of sexual abuse by [wife] of any minor child and deem[ed] that issue final" and husband did not identify any new evidence or witnesses to support the allegation in the 2017 proceeding; he instead sought to rely on M. F.'s testimony at trial -- the exact evidence that husband's counsel identified as the only evidence supporting the allegation during his 2013 exchange with the trial judge.

We note the child custody evaluator in that proceeding, Dr. Philip M. Stahl, noted in his October 30, 2011, report that he "was not even allowed to see [M. F.] during the course of [his] evaluation" and "did not have authorization to contact the therapist [who] [M. F.] reportedly described the sexual abuse to." Stahl said "the court will want to pay attention to what the authorities do as it relates to these allegations." In 2012, the trial court noted that, "[a]t the trial a [Child Protective Services] worker testified that [Child Protective Services] had closed its investigation and intended to take no action" and "[t]here was no evidence presented to any possible criminal action."

At oral argument on appeal, husband acknowledged his 2015 motion was subject to the changed circumstances rule and argued the changed circumstances were: (1) M. F.'s advancement in age and his willingness to testify in court; and (2) Dugan's statement that the trial court's true finding on the rape allegation "would render this analysis moot, and certainly suggest that supervised visitation with [B. F.] would be prudent." Neither is a changed circumstance sufficient to modify the final custody order. Moreover, Dugan's statement was of no moment because the trial court had already adjudicated the issue in 2013 and found no evidence to support the allegation. And, as Dugan explained, "[n]o new information was presented during [his] evaluation that was also not presented [when law enforcement and Child Protective Services investigated the allegations previously]." To allow modification of an existing final custody order based on a witness's willingness to testify regarding or a new custody evaluator's reevaluation of circumstances existing prior to entry of that order would render the stability promised by final custody orders wholly illusory. (See Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)

Plainly, because the rape allegation was not a changed circumstance since entry of the judgment, all evidence regarding the incident was properly excluded for purposes of considering modification of the existing final child custody and visitation order. As our Supreme Court said in Burchard, the changed circumstances rule "not only changes the burden of persuasion but also limits the evidence cognizable by the court." (Burchard v. Garay (1986) 42 Cal.3d 531, 536, 537 [explaining changed circumstances requirement -- "forbidding the courts from reconsidering the circumstances which led to those determinations" and "limiting the breadth of the evidence" -- does not apply when no prior final custody determination was made].) The evidence could not assist husband in meeting his burden of showing a changed circumstance occurred or that the change in circumstance was significant enough to indicate that a different custody arrangement would be in the best interests of B. F. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)

Denial of husband's request to introduce M. F.'s testimony comports with the purpose of the changed circumstances rule as well because allowing husband to again raise the rape issue now would fly in the face of the dual goals advanced by the rule -- judicial economy and protecting stable custody arrangements. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) The trial court explained the parties had a "tendency to -- every time they got a different judge, they relitigated the same facts, 'Well, let me explain to you, Judge, what happened,' and it was happening over and over again." As the trial court said, "we can't keep relitigating things." Enough is enough and final is final. If the parties want to relitigate an issue previously considered prior to entry of the final custody order, he or she must introduce evidence sufficient to satisfy the changed circumstances rule. Husband did not do so here.

III

The Trial Court Did Not Abuse Its Discretion By Failing To Appoint Minor's Counsel

Husband contends the trial court abused its discretion in 2013 and 2017 by failing to consider and appoint minor's counsel for B. F. Wife contends husband waived this argument by failing to request appointment of minor's counsel in the trial court. Husband responds he cannot waive B. F.'s right to minor's counsel because that right belongs to B. F. alone and the trial court had an obligation to appoint counsel sua sponte.

Section 3150, subdivision (a) provides: "If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and 5.242 of the California Rules of Court."

California Rules of Court, rule 5.240, factors (a)(1)-(8) sets forth the factors for determining whether to appoint minor's counsel: the issues of child custody and visitation are highly contested; the child is subjected to stress that might be alleviated by the intervention of counsel; counsel representing the child would likely provide the court with relevant information not otherwise readily available; the dispute involves allegations of physical, emotional, or sexual abuse of the child; a parent is incapable of providing a stable environment; knowledgeable counsel is available for appointment; the best interest of the child appears to require independent representation; and to avoid conflicts of interest if there are two or more children involved.

We review husband's contention under the abuse of discretion standard of review. (In re Richard E. (1978) 21 Cal.3d 349, 354-355.) "[T] o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice." (Id. at p. 354.)

Husband's claim that the trial court "fail[ed] to use its discretion to even consider minor's counsel" in 2013 is incorrect. The trial court expressly considered whether to appoint minor's counsel per wife's request and found it unnecessary. The 2013 decision was incorporated into the judgment and the trial court's finding was not appealed and is final. It cannot be attacked in this appeal. We further note it is disingenuous at best for husband to now attack the trial court's 2013 finding when husband opposed the appointment of minor's counsel in that proceeding.

Regarding the 2017 decision proceeding, we need not address the waiver/forfeiture issue relating to husband's failure to request appointment of minor's counsel because husband's contention provides no basis for reversal on the merits. Although this case has been highly contentious, the record does not show that B. F.'s interests were overlooked.

Husband cites no authority requiring the trial court to consider sua sponte whether to appoint minor's counsel each time a parent files a motion; nor do we find any such requirement. The trial court did not need to reconsider the issue of appointing minor's counsel (which it previously found unnecessary) because it did "not find a significant change of circumstances."

Further, husband has not shown that any of the factors in California Rules of Court rule 5.240 apply, other than that the case involves highly contested and protracted litigation. While B. F. experiences stress because of his parents' conflict, nothing in the record indicates that such stress might be alleviated by the intervention of counsel, or that counsel would likely be able to provide the court with relevant information not otherwise readily available. (Cal. Rules of Court, rule 5.240, factors (a)(2)-(3).) Husband's argument that minor's counsel could have provided more information regarding the 2009 rape allegation is inconsequential because, as we explained, such evidence would not have demonstrated a change in circumstance necessary to modify the final child custody and visitation order.

Husband also argues minor's counsel would have been able to deal with his allegations of wife's physical abuse and medical neglect; however, the trial court expressly stated it was "not persuaded that either parent ha[d] physically or verbally abused the minor child . . . [or] engaged in serious domestic disputes in the presence of the minor child." Additionally, there was a full child custody evaluation performed by Dugan to, among other things, evaluate "the best interests of the minor child."

Dugan also concluded: "this report does not support the allegations that health, safety, and welfare concerns exist for [B. F.] due to either physical abuse or medical neglect from his mother." --------

In his report, Dugan addressed the issue of minor's counsel, stating: "It has been my experience in other cases that possess these chronic high-conflict patterns that absent some sort of accountability support and streamlined conflict resolution, progress in services is often difficult. For that reason, I would recommend the parties consider stipulating to the appointment of a parent coordinator that can provide case management support services and offer a more streamlined conflict resolution process. Should this not be an option and the Court observes ongoing high-parental conflict, I would then recommend the Court consider appointing an attorney to represent [B. F.'s] best interests in the future. The appointment of minor's counsel may be helpful as well in addressing the risk of international abduction concern." (Italics added.)

In other words, in Dugan's opinion, minor's counsel did not need to be appointed due to the conflict between the parents unless the court observed "ongoing high-parental conflict" in the future. Dugan's suggestion that minor's counsel could assist in addressing the risk of international abduction concern was of no consequence because the trial court expressly found no "greater risk of abduction by either parent since the last entry of 'final custody orders.' "

Moreover, husband has identified no basis for finding that the failure to appoint minor's counsel resulted in an injury to B. F. or that "the resulting injury is sufficiently grave to manifest a miscarriage of justice." (In re Richard E., supra, 21 Cal.3d at p. 354.) Thus, husband has not shown that the trial court abused its discretion.

IV

The 2017 Decision Was Made Within The Trial Court's Discretion

Husband argues the trial court abused its discretion in adopting the 2017 decision because it: (1) adopted Dugan's recommendations even though his analysis "was not performed with the alleged statutory rape in mind" and he lacked experience in international child abduction; (2) "failed to address" the issue and his experts' testimony that wife "was a flight risk and was a citizen of the Philippines, which does not have any treaties with the United States with regards to the return of children under the Hague Convention on the Civil Aspects on International Child Abduction"; and (3) failed to address the risk factors in section 3048, subdivision (b). Having found the trial court properly excluded evidence regarding the 2009 rape allegation, we address only the remaining contentions relating to the court's finding that wife does not present an increased risk of international child abduction.

" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' " (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.) "[T]here is no abuse of discretion requiring reversal if there exists a reasonable or fairly debatable justification under the law for the trial court's decision or, alternatively stated, if that decision falls within the permissible range of options set by the applicable legal criteria." (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957.) We find no abuse of discretion here.

We first note husband's claim that the trial court "failed to address" the issue of wife's international child abduction risk is unfounded. Indeed, the trial court analyzed this issue in the 2017 decision, finding "the court is not persuaded that there exists a greater risk of abduction by either parent since the last entry of 'final custody orders' " and previously addressed the issue on multiple occasions. Next, we note nothing in the record shows that the trial court simply relied on Dugan's report and testimony in deciding the issue. While the trial court adopted Dugan's recommendations, the trial court's discussion of the issue in the 2017 decision focused on the facts introduced at trial, i.e., that wife was "now a citizen of the United States," she "continues to reside in the Tahoe area, has established a network of friends in the Tahoe area, and continues to work full time and pursue her nursing degree" and she "ha[d] been in substantial compliance with both the travel limitations imposed by th[e] court during her parenting time as well as other custody orders." The trial court did not merely rubber stamp Dugan's opinion, as husband suggests.

We reiterate that it was husband's burden to demonstrate a change in circumstance sufficient to support modification of the final child custody and visitation order. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) On appeal, husband has identified no such facts indicating a change in circumstance or how the court abused its discretion in finding no increased risk of abduction since the judgment. While husband attempts to convince us that his experts were more knowledgeable and qualified on the issue and the trial court should have adopted their recommendations, he fails to acknowledge that "[c]redibility is an issue for the fact finder." (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) "[W]e do not reweigh evidence or reassess the credibility of witnesses" or resolve conflicts in the evidence or in the reasonable inference that may be drawn therefrom. (Id. at pp. 622-623.) "[W]hen the evidence gives rise to conflicting reasonable inferences, one of which supports the findings of the trial court, the trial court's finding is conclusive on appeal." (Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 298.)

Given the trial court found no change in circumstance in support of husband's motion, there was no reason for the trial court to reevaluate the factors in section 3048, subdivision (b), as husband contends.

DISPOSITION

The 2017 decision is affirmed. Wife shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/_________

Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Renner, J.


Summaries of

Fitzgerald v. Fitzgerald (In re Marriage of Fitzgerald)

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
Oct 30, 2018
C085843 (Cal. Ct. App. Oct. 30, 2018)
Case details for

Fitzgerald v. Fitzgerald (In re Marriage of Fitzgerald)

Case Details

Full title:In re the Marriage of SEAN PATRICK and IVORY JEAN FITZGERALD. SEAN PATRICK…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

Date published: Oct 30, 2018

Citations

C085843 (Cal. Ct. App. Oct. 30, 2018)