Filed 4/12/16 Marriage of Plasse CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of MELANIE and
MICHAEL PLASSE.
MELANIE PLASSE,
E063734
Respondent,
(Super.Ct.No. IND100663)
v.
OPINION
MICHAEL PLASSE,
Appellant.
APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge.
Affirmed.
Michael Amon Plasse, in pro. per., for Appellant.
No appearance for Respondent.
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I
INTRODUCTION
Michael Amon Plasse appeals from a child custody order, awarding Michael1 and
his former wife, Melanie, joint legal and physical custody of their two children.
Michael’s home was also designated as primary for purposes of school enrollment.
Michael is representing himself. No respondent’s brief has been filed. Although
appellant’s presentation does not conform to the rules and protocols of appellate
procedure, in the interests of justice, we will decide the appeal. We hold the family law
court did not abuse its discretion. We affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
Melanie and Michael were married in December 2000. Their two children were
born in 2004 and 2009. The Plasses separated in November 2009. On June 14, 2010,
Melanie filed a petition for dissolution. A stipulated judgment was entered on December
23, 2010. As part of the judgment, the parents agreed to share legal and physical custody
equally and agreed to reasonable rights of visitation. Neither party agreed to pay child
support. Melanie waived spousal support and jurisdiction over spousal support was
1 We use the parties’ first names for ease of reference.
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terminated. On September 19, 2013, the parties made another written agreement about
sharing the children’s expenses.
According to the register of actions, between November 2013 and October 2014,
the parties were involved in multiple proceedings involving child custody, visitation, and
support. After a hearing in July 2014, the court made a comprehensive order regarding
custody and visitation. Michael’s home was designated as the primary residence and the
court granted Melanie visitation of two days, including Tuesday and Saturday nights.
Apparently, Michael also filed a request for child support on September 10, 2014. None
of the supporting documentation is part of the record on appeal.
On November 3, 2014, Michael filed a request for additional orders about child
custody, visitation, and timeshare issues. On December 3, 2014, the court ordered
Melanie to pay various amounts for child support and other expenses. Melanie was not
present at the hearing. On December 11, 2014, Melanie filed a modification request
asking for child support, spousal support, and additional visitation. Michael filed a
responsive declaration in which he asked for sole physical custody and made other
requests. A hearing was conducted on January 16, 2015, but there is no record of the
court’s findings and order.
On January 26, 2015, Michael filed another modification request asking for sole
legal and physical custody and for changes in visitation. At a hearing on February 5,
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2015, the court denied Melanie’s request for spousal support. The court continued the
hearing on other matters until March 2015.
On February 23, 2015, Michael filed another modification request with additional
information. On March 23, 2015, he filed a supplemental declaration.
A lengthy hearing was conducted on March 24, 2015, based on a child custody
evaluation and recommendation. Michael argued that Melanie was voluntarily
relinquishing some of her time with the children and she should not receive an additional
third day of visitation. The court found that Melanie had consistently exercised her
visitation and the court adopted the custody recommendation. Michael’s home continued
to be designated as the primary residence.
The court then engaged in a lengthy colloquy with Michael about other matters.
Finally, the court granted the parents joint legal custody, to be exercised in good faith as
to the health, education and welfare of the children, including medical and emergency
treatment and medical information. Each parent was ordered to provide current contact
information and give notice of a proposed move. The parents were also ordered to
consult one another about school and daycare enrollment, religious participation, mental
health and medical treatment, and extracurricular activities. If either parent failed to seek
proper consent from the other, he or she would be subject to civil or criminal penalties
and the court could order a change in custody.
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The court also granted the parents joint physical custody to be exercised
reasonably so “the children maintain[] frequent and continuing contact with both
parents.” The court ordered Melanie to have an additional third day of visitation, which
included Wednesday. Melanie’s three days of parenting time were from Saturday
morning to Sunday afternoon and Tuesday afternoon until Thursday morning. Michael
had the remaining time. Upon proper notice, the parents could agree on alternative times.
The parents were not to interfere with one another’s time. The court made specific orders
for holidays, vacations, and birthdays. The parents were to have phone contact with the
children and not involve the children inappropriately about issues between the parents.
The parties could agree to written changes, to be filed with the court.
The court denied Michael’s subsequent reconsideration motion. Michael appealed
on June 3, 2015.
III
DISCUSSION
On appeal, Michael objects to the amount of visitation granted to Melanie; asks
this court to review the record independently to find a violation of the joint legal custody
order and to remand to the lower court before a different judge; and requests his costs on
appeal.
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A. Standard of Review
As Michael recognizes, the standard of review is abuse of discretion: “‘The
standard of appellate review of custody and visitation orders is the deferential abuse of
discretion test.’” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Generally, a trial
court abuses its discretion if there is no reasonable basis on which the court could
conclude its decision advanced the best interests of the child. (In re Marriage of Melville
(2004) 122 Cal.App.4th 601, 610.) “Under this test, we must uphold the trial court
‘ruling if it is correct on any basis, regardless of whether such basis was actually
invoked.’” (Montenegro, at p. 255.)
“A ‘“showing on appeal is wholly insufficient if it presents a state of facts, a
consideration of which, for the purpose of judicial action, merely affords an opportunity
for a difference of opinion. An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge. To be entitled to relief on
appeal from the result of an alleged abuse of discretion it must clearly appear that the
injury resulting from such a wrong is sufficiently grave to amount to a manifest
miscarriage of justice . . . .” [Citation.]’ (Estate of Gilkison (1998) 65 Cal.App.4th 1443,
1449.)
“In reviewing any order or judgment we start with the presumption that the
judgment or order is correct, and if the record is silent we indulge all reasonable
inferences in support of the judgment or order. (Yield Dynamics, Inc. v. TEA Systems
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Corp. (2007) 154 Cal.App.4th 547, 556-557.)” (Chalmers v. Hirschkop (2013) 213
Cal.App.4th 289, 299.) Appellant bears the burden of proof to show an abuse of
discretion. (Ibid.)
Michael argues this court should exercise independent review because the trial
court displayed actual bias. Having thoroughly reviewed the record, we disagree.
Instead, we conclude the trial court gave Michael ample time to argue and carefully
considered his claims. No judicial bias was demonstrated: “We agree that the mere fact
a judicial officer rules against a party does not show bias.” (In re Marriage of Tharp
(2010) 188 Cal.App.4th 1295, 1328.)
Furthermore, to the extent Michael bases his appeal on any orders made at the
hearing on February 5, 2015, any such appeal was not the subject of the notice of appeal
filed on June 3, 2015, and was untimely. We disregard any argument based on orders
made at the hearing on February 5, 2015. However, we do give proper consideration to
issues raised on February 5, 2015, but continued to March 24, 2015.
B. The Hearing of March 24, 2015
Based on the foregoing standard of review, we conclude the family law court did
not abuse its discretion in finding Melanie did not violate the joint legal custody
agreement when she proposed making a change in their daughter’s therapist without
sufficiently consulting with Michael. Instead, the court made a specific finding,
supported by the record, that Melanie had consulted with Michael about the therapist
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change: “[T]here seems to be what you told me is the definition of consulting, which is a
back and forth repertoire [sic] concerning issues as it relates to mental health counseling.
This seems to support precisely what you told me the order requires the two of you to do,
which is to consult.”
On the issue of visitation, Michael cites Family Code section 3011 as authority
that “[i]n making a determination of the best interest of the child in a [custody]
proceeding . . . the court shall, among any other factors it finds relevant, consider. . . : [¶]
(c) The nature and amount of contact with both parents.” Melanie asserted it would
benefit the children to have an additional night (Wednesday) with her. Michael claimed
that Melanie was not helping their son with his homework. He also contended that
Melanie had voluntarily relinquished 18 percent (181 hours) of her visitation time over
the previous six months.
We reject Michael’s challenge to the factual finding of the lower court concerning
Melanie helping with their son’s homework and her exercise of her visitation rights.
Although Michael objects to the court’s findings, we conclude the findings are reasonable
and not subject to reversal. Again, based on the standard of review, it was reasonable for
the court to find that it was in the children’s best interest to have equal time with their
parents.
Michael cannot successfully argue it was a due process violation for the court to
make an order for parental visitation based on its finding of the children’s best interests.
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Michael’s reliance on Troxel v. Granville (2000) 530 U.S. 57, involving grandparents’
visitation rights, does not support his position. Furthermore, this court has held the
family law court may order visitation to grandparents over a custodial parent’s objection
in appropriate circumstances. (Chalmers v. Hirschkop, supra, 213 Cal.App.4th at p. 302,
citing Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008, 1010 [Fourth Dist., Div.
Two].) The family law court can certainly make an appropriate order for visitation
between parents based on the children’s best interests.
IV
DISPOSITION
Melanie did not violate the order for joint legal custody and the court properly
ordered the parties to share weekly visitation giving Melanie three days and Michael four
days. The family law court did not exhibit bias. We affirm the judgment.
Neither party shall recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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