Opinion
NOT TO BE PUBLISHED
McCONNELL, P. J.
APPEAL from an order of the Superior Court of San Diego County No. DF182948 Patricia Garcia, Judge.
I
INTRODUCTION
Anna Martorella appeals a superior court order finding that changed circumstances justified awarding Omar Madrigal sole physical custody of their child. Martorella contends there is insufficient evidence to support the court's changed circumstances finding. In addition, Martorella contends there is sufficient evidence to support the court's determination the custody change was in the best interest of the child. Martorella further contends the court abused its discretion by failing to apply the presumption in Family Code section 3044 that awarding sole physical custody of a child to a parent who has committed domestic violence against the other parent within the previous five years is detrimental to the best interest of the child. We affirm the order.
Further statutory references are to the Family Code unless otherwise indicated.
In support of this argument, Martorella moves to augment the record with a copy of a restraining order she obtained against Madrigal in San Diego Superior Court case number DV018286, as well as documents she lodged in support of her application for the restraining order. She argues the record should be augmented to include these documents because the restraining order was referenced in the minutes of this case. The minutes to which she refers were from a November 2004 support hearing and state that "Case DV018286" is to be calendared on the same date and time as the next support hearing "for info purposes only." The minutes from the subsequent support hearing do not indicate whether case number DV018286 was, in fact, calendared for the same date and time, or whether the court considered any of the documents from case number DV018286 at the subsequent support hearing. Furthermore, the support issues and visitation issues in this case were handled as separate matters by separate trial judges. Although the record shows the judge handling the visitation issues knew generally of the previous domestic violence case and the restraining order, the record does not show the restraining order and other documents from case number DV018286 were ever before the judge handling the visitation issues. Moreover, the record does not show the judge considered the documents, or that Martorella requested the judge consider them, in connection with the order under review. Accordingly, we deny the motion to augment. (Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; In re B.D. (2008) 159 Cal.App.4th 1218, 1239; In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1209.)
II
STANDARD OF REVIEW
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.]" (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)
In addition, " 'we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment [citation]... Moreover, in examining the sufficiency of the evidence to support a challenged finding, we ' " must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion." [Citations.] If appellate scrutiny reveals that substantial evidence supports the trial court's findings and conclusions, the judgment must be affirmed.' [Citation.]" (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.)
III
FACTUAL AND PROCEDURAL BACKGROUND
Martorella and Madrigal have a young child. In October 2006, in the course of paternity and support proceedings initiated by the County of San Diego, the court issued an order allowing Madrigal to have supervised visits with the child every Saturday and Sunday from 2:00 to 3:00 p.m. Of six visits Madrigal attempted to schedule after the court issued the order, only three occurred.
On the date of the first visit, Martorella called the supervising agency from the meeting location and stated she was leaving because Madrigal did not show up. However, Madrigal did not show up because Martorella had cancelled the visit earlier in the week. In addition, because the supervising agency has a two-hour minimum policy, Martorella initially agreed to deviate from the court's order and permit a two-hour visit. Then, shortly before the first visit, Martorella called the agency and reneged. She advised the agency she had spoken with the judge presiding over the matter and the judge told her to abide by the original court order. She further advised the agency the judge told her the judge wanted to make it difficult for Madrigal to visit with the child to see how committed he was to seeing the child.
The second visit occurred, but not without incident. When the supervising agency contacted Martorella to arrange the visit, Martorella suggested Madrigal take the child to a specific restaurant. The supervising agency indicated the visit was too short to permit the trip. Martorella then agreed she would feed the child beforehand and Madrigal would only give the child bottled water during the visit. However, she did not feed the child as agreed and then complained because, instead of taking the child to the restaurant, Madrigal fed the child bottled water and unbuttered microwave popcorn when the child became hungry during the visit. Martorella also phoned the monitor during the visit demanding to speak with Madrigal and complained when the monitor would not allow her to interrupt Madrigal's visitation time.
In addition to the time constraints, Madrigal did not feel safe leaving the offices to go to an eatery because Martorella and her brother, with whom Madrigal did not have a friendly relationship, parked nearby and watched the agency's offices for the entire visit.
Martorella did not appear for the next visit and the supervising agency was not available to supervise another visit. The other two visits occurred without major incident. The agency reported the three visits that occurred went well, with father and child interacting positively and Madrigal demonstrating appropriate parenting behavior.
In March 2007 the court issued an order allowing Madrigal to have unsupervised visits with the child on alternating Saturdays and Sundays for up to four hours from 9:00 a.m. to 1:00 p.m. The court ordered the exchanges to be supervised until Madrigal completed 10 weeks of a court-approved domestic violence program. After Madrigal completed the program, the exchanges no longer had to be supervised and the visits were to increase to alternate weekends from Saturday at 9:00 a.m. until Sunday at 5:00 p.m. In addition, the court ordered scheduled telephone contact between Madrigal and the child every Wednesday between 7:00 p.m. and 7:30 p.m. The court also ordered Martorella and Madrigal to begin calling the child by a specific name reflecting Madrigal's paternity.
At the time the case commenced, the child's name reflected Madrigal's paternity. Sometime after the case commenced Martorella unilaterally changed the child's name so it did not reflect Madrigal's paternity and suggested another man's paternity. The court-ordered name, which the parties agreed upon, is a hybrid of the two names.
In February 2008, Madrigal sought an order requiring that Martorella comply with the visitation and telephone contact schedule. Madrigal alleged that only two supervised exchanges had occurred because Madrigal had difficulty locating a monitor and, when he found one, Martorella was abusive to the monitor and refused to travel to the agreed upon exchange location. After Madrigal completed the required domestic violence coursework, Martorella would not comply with the court's order and permit unsupervised exchanges and Madrigal could not find an exchange monitor. Martorella refused to respond to all further attempts by Madrigal to arrange visits. She also thwarted Madrigal's attempts at telephone contact by not answering the telephone at the scheduled times, not returning telephone messages, insisting on being allowed to listen in on the calls, dictating the topics of discussion, interrupting the discussion, and purposely distracting the child during the discussion. Martorella denied Madrigal's allegations, claiming she wanted Madrigal to have an active role in the child's life and was ready, willing, and able to comply with the court's visitation orders. The parties resolved this dispute in April 2008 by stipulating to a court order detailing a visitation schedule for the remainder of the year.
In October 2008 Madrigal sought an order seeking primary physical custody of the child due to Martorella's continued failure to allow him visitation and telephone contact with the child. Madrigal alleged Martorella complied with the first two visitation exchanges detailed in the April 2008 stipulated order. After that, she was late for two exchanges and failed to show up for the others. In July 2008 she told Madrigal she would not be making any further exchanges and she did not. In addition, she thwarted 60 to 70 percent of the scheduled telephone contacts until August 2008, when she disconnected her phone and the telephone contacts ceased entirely.
Martorella denied the allegations, claiming she was available for some of the exchanges, but was not available for the others either because she did not have transportation or because of illnesses or emergencies. She claimed she offered alternatives, but Madrigal would not agree to them. She also claimed the child was experiencing anxiety and other mental health problems from the child's visits with Madrigal.
A Family Court Services counselor interviewed Madrigal, Martorella, the child, the child's therapist, and a child protective services (CPS) worker assigned to investigate three referrals for abuse and neglect of the child. Based on the information the counselor obtained from the interviews, the counselor prepared a report indicating Martorella did not support Madrigal's relationship with the child and interfered with the relationship by not complying with the court-ordered visitation schedule and by not attempting to make alternate arrangements. In addition, the report indicated Martorella had misled or allowed others to mislead the child into believing Madrigal was not the child's father. The report noted Martorella had a prior restraining order against Madrigal, which she allowed to expire. The report suggested her recent request for a new restraining order was "a matter of convenience, as this case has returned to court." The report recommended Madrigal and Martorella share joint legal custody of the child to eliminate the imbalance of power in their parenting relationship. Because the child was accustomed to living with Martorella, the report recommended the child continue to do so and that Madrigal be permitted to visit with the child every weekend. The report further recommended the court admonish Martorella that it would consider changing the child's primary residence in the future if she continued to interfere with Madrigal's relationship with the child.
There was one referral against each parent and one referral against an unidentified perpetrator. The CPS worker determined the referrals against the parents were unfounded. Nonetheless, the CPS worker determined the parents' contentious relationship caused the child emotional distress and created a substantial risk for emotional abuse.
The details of the request for a new restraining order are not in the record.
Therapy records submitted by Martorella and school records submitted by Madrigal showed that Martorella did not comply with the court's order regarding the child's name. In addition, school records showed from September 11, 2008 through February 20, 2009, the child missed 27 days of school and was late or left early 19 times.
After reviewing and considering the information provided by the parties and Family Court Services, and after hearing the parties' arguments, the court awarded Madrigal sole physical custody of the child. The court found Martorella had a pattern of not supporting and interfering with Madrigal's relationship with the child. The court based this finding on the child's confusion about Madrigal's paternity, which was caused in part by Martorella unilaterally changing the child's name to one that did not reflect Madrigal's paternity and then continuing to refer and allowing others to refer to the child by the name despite a contrary court order. The court also based this finding on Martorella's ongoing failure to comply with visitation and contact orders, which necessitated court appearances in 2006, 2007, 2008, and 2009. The court noted Martorella's reasons for her failure to comply with the visitation and contact orders; however, the court found she provided insufficient evidence to support her reasons. The court further expressed great concern about the child's poor school attendance and the child's development of anxiety about the visitation exchanges due to the ongoing visitation disputes. The court determined Madrigal has the same right to participate in the child's life as Martorella and "the person who should have primary custody of this child is the person who's going to facilitate that relationship with the other parent." Since Martorella was not facilitating a relationship between the child and Madrigal, the court found custody should change to Madrigal.
III
DISCUSSION
A. Substantial Evidence of Substantial Change in Circumstances
Martorella contends the trial court abused its discretion in awarding physical custody of the child to Madrigal because there is insufficient evidence of a substantial change in circumstances justifying the custody change. We conclude Martorella has forfeited this issue on appeal because she did not "set forth, discuss, and analyze all of the evidence on that point, both favorable and unfavorable" in her brief. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) Rather, she shaded her account of events and restricted her analysis and arguments to the few facts favorable to her position. Even if Martorella had not forfeited this issue, we conclude it has no merit.
"In deciding between competing parental claims to custody, the court must make an award 'according to the best interests of the child' [citation]. This test, established by statute, governs all custody proceedings. [Citation.] The changed-circumstance rule is... 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. [Citations.]" (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)
The changed circumstances rule only applies if there was a prior final custody determination. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256, 258-259.) The parties dispute whether there was such a determination in this case and the record is not adequate for us to resolve the dispute. However, we note the order being appealed, which was prepared by Madrigal's counsel, assumes there was such a determination as the order includes an express finding of a substantial change in circumstances. We further note Madrigal never argued against the application of the changed circumstances rule below. Accordingly, we conclude Madrigal may not claim in this appeal that the changed circumstances rule does not apply. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.)
The record contains a prior order, which was prepared by Madrigal's counsel, awarding legal custody of the child to Martorella. The order does not discuss physical custody of the child.
Assuming the changed circumstances rule applies, we conclude there is substantial evidence to support the trial court's finding of a substantial change in circumstances. (Catherine D. v. Dennis B., supra, 220 Cal.App.3d at p. 931.) The record, properly viewed in support of the order, shows Martorella resisted and interfered with all efforts by Madrigal to establish a relationship with the child. Her resistance and interference persisted despite repeated court intervention and included defiance of court orders she personally helped fashion and to which she personally stipulated. A custodial parent's repeated frustration of a noncustodial parent's visitation rights is a significant factor bearing on the fitness of the custodial parent and provides sufficient justification for a trial court to order a custody change. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 36, fn.6; Buchard v. Garay, supra, 42 Cal.3d at p. 540, fn. 11; Moffat v. Moffat (1980) 27 Cal.3d 645, 652; Catherine D. v. Dennis B., supra, 220 Cal.App.3d at p. 932; In re Marriage of Wood (1983) 141 Cal.App.3d 671, 682.)
Martorella represented herself at the two hearings preceding this appeal.
Nonetheless, Martorella faults the trial court for ordering an abrupt custody change instead of continuing to allow her to retain sole physical custody of the child while gradually increasing Madrigal's time with the child. She points out that Family Court Services recommended this approach and she contends this approach is more consistent with the policy against disrupting long-standing patterns of custody.
Martorella's contention ignores her consistent failure to comply with prior visitation orders. It also ignores key evidence supporting the trial court's rejection of the Family Court Services recommendation. Specifically, the parents' ongoing disputes over the existing visitation plan had begun to cause the child anxiety and other mental health problems, a CPS worker determined the child was at substantial risk for emotional abuse because of the parents' contentious relationship, and the child's school attendance while in Martorella's care was alarmingly poor. Given these circumstances and Martorella's noncompliance with prior visitation orders, the trial court reasonably determined a custody change would advance the best interests of the child more than the approach recommended by Family Court Services. We further note the trial court took appropriate steps to help the child with the adjustment, including ordering counseling for the child, counseling for Martorella to help her support the child's relationship with Madrigal, and high-conflicting parenting classes for Martorella and Madrigal to help them with their coparenting issues.
B. Substantial Evidence Custody Change in the Best Interest of the Child
Martorella next contends the trial court abused its discretion in awarding Madrigal physical custody of the child because there is insufficient evidence the custody change was in the best interest of the child. More particularly, she contends there is no evidence in the record showing the child would fare better in Madrigal's care, there is no evidence in the record showing her conduct caused emotional harm to the child, and there is evidence in the record showing Madrigal's conduct caused emotional harm to the child. She suggests the trial court ordered a custody change to punish her disobedience of court orders rather than to advance the best interest of the child.
As with the changed circumstances issue, we conclude Martorella has forfeited this issue on appeal because she does not set forth, analyze, and discuss the relevant evidence in her brief. (Doe v. Roman Catholic Archbishop of Cashel & Emly, supra, 177 Cal.App.4th at p. 218.) We also conclude it has no merit.
Regarding Madrigal's ability to care for the child, there is evidence in the record showing Madrigal could provide a home, education, and necessities for the child and could appropriately parent the child if given an opportunity. There is also evidence the child was comfortable with Madrigal and, despite Martorella's interference, the two enjoyed a loving relationship.
Regarding the cause or causes of the child's emotional distress, the evidence on this point is conflicting and, although the trial court did not make a specific factual finding as to every allegation of inappropriate conduct leveled by the parents against one another, the trial court generally found Martorella not to be credible. The trial court also found the child's emotional distress stemmed from the child's confusion about Madrigal's paternity and the ongoing visitation conflicts between Martorella and Madrigal, findings amply supported by the record, including the Family Court Services report.
Finally, there is not one hint in the record that the trial court ordered the custody change to punish Martorella's disobedience of prior court orders. Instead, the record shows the trial court considered Martorella's disobedience of prior court orders for two purposes: as evidence of Martorella's lack of support for Madrigal's relationship with the child, and as evidence the issuance of another similar order would not resolve the child's dilemma. We conclude both purposes were appropriate.
C. Section 3044 Presumption Did Not Preclude Custody Change
Section 3044, subdivision (a), provides that "[u]pon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child... within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011." Martorella contends the court abused its discretion by failing to consider this presumption before awarding physical custody of the child to Madrigal.
We conclude Martorella has forfeited this issue on appeal because she did not raise it below. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) Although Martorella made some brief references to the prior domestic violence incident and her fear of Madrigal in her remarks to the court, she did not reference section 3044 or make any arguments that would have reasonably alerted the court or Madrigal she was relying on this presumption to oppose the custody change. Further, as the presumption in section 3044 is rebuttable and requires the court to consider numerous factors before determining its application (see § 3044, subd. (b)), we cannot exercise our discretion to review the issue notwithstanding the forfeiture because we do not have an adequate record to do so.
DISPOSITION
The order is affirmed. Madrigal is awarded costs on appeal.
WE CONCUR: NARES, J., IRION, J.