Filed 2/9/21 Marriage of Martinez and Martinez-Chavez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
In re the Marriage of REINA MARTINEZ and
ARTURO MARTINEZ-CHAVEZ.
REINA MARTINEZ, F078882
Appellant, (Super. Ct. No. VFL266035)
v.
OPINION
ARTURO MARTINEZ-CHAVEZ,
Respondent.
APPEAL from an order of the Superior Court of Tulare County. Tara K. James,
Judge.
Reina Martinez, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
-ooOoo-
Appellant brought this appeal to challenge a temporary custody and visitation
order made by the trial court after a December 19, 2018 hearing. Temporary custody
orders are not appealable. Appellant recognizes the appealability issue and requests this
court to exercise its discretionary authority and treat the appeal as a petition for writ of
mandate. As explained below, we decline to exercise that authority.
We therefore dismiss the appeal.
BACKGROUND
Appellant Reina Martinez and respondent Arturo Martinez-Chavez (Father) were
married in June 2007 and separated in March 2016. They have a daughter, who was born
in July 2012.
In July 2016, appellant filed a request for domestic violence restraining order
against Father. The next day, the trial court issued a temporary restraining order that
included personal conduct orders and stay-away orders. A week after seeking the
restraining order, appellant filed a petition for dissolution of marriage.
First Custody Order
In August 2016, the trial court held a hearing addressing child custody and
visitation. The court adopted the recommendation of the “Child Custody Recommending
Counselor,” granting the parents joint legal custody and appellant physical custody of the
child. Father was allowed supervised visits.
After continuances, a hearing on the request for restraining order and child
custody was held on November 21, 2016. The trial court received and considered a
mental health assessment of Father and heard testimony from both parties, who
represented themselves during the proceeding. The court let the temporary restraining
order expire and denied appellant’s request for a domestic violence restraining order due
to insufficient evidence. The court ordered that the parties would have joint legal
custody, with neither parent having greater decision-making authority with regard to
decisions involving the child’s health, education and welfare. Primary physical custody
was awarded appellant and a visitation schedule was established for Father.
Custody Awarded Father
On January 25, 2017, the trial court issued a temporary child custody order
granting Father legal and physical custody of the child, pending a hearing that was
scheduled in April 2017. The court also authorized appellant to have supervised visits at
the CHAT House.
2.
On February 7, 2017, appellant filed another request for domestic violence
restraining order against Father. In that request, appellant asked for an order giving her
sole legal guardianship and custody of their daughter. Appellant’s request for a
temporary restraining order was denied pending a hearing. The matter was continued to
April 3, 2017.
At the April 3, 2017 hearing, both parties appeared and represented themselves.
Near the beginning of the hearing, the court noted it had received the mental health
assessment conducted on appellant by the Tulare County Health and Human Services
Agency. The court read the report into the record. The court stated that, in accordance
with Family Code section 3011, subdivision (a), it was required to consider the health,
safety and welfare of the child when there are allegations of abuse. The court referred to
possible independent corroboration of abuse allegations and stated it was “specifically
noting that an investigation into the allegations was ordered by me and[,] as a result of
that investigation, there is no substantial independent corroboration of the abuse
allegations by any of those agencies.” After hearing from the parties, the court stated it
intended to adopt the recommendation contained in the counselor’s report of the limited
investigation. As a result, the previous custody and visitation orders remained in effect
and Father continued with sole legal and sole physical custody of the child, with mother
having supervised visits at the CHAT House.
After the hearing, the trial court issued written findings and an order stating the
awards of custody and visitation, denying appellant’s request for a domestic violence
restraining order against Father, directing the parties to file any supplemental declarations
10 days before the next hearing, and directing appellant’s therapist to provide a progress
report to the court. The court scheduled a review hearing for six and a half months later.
Prior to the scheduled review hearing, appellant filed a request for emergency
orders, which the court heard on August 31, 2017. Appellant requested that she be given
temporary physical custody and control of the child. The court found there was no
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emergency as defined in Family Code section 3064, denied the request, stated the prior
orders would remain in full force and effect, and advanced the date of the review hearing
to September 27, 2017.
On September 27, 2017, the trial court held the review hearing addressing child
custody and visitation. The court’s findings and order from that hearing kept physical
and legal custody of the child with Father and allowed appellant CHAT House visits
based on the availability of the parties. The order also directed appellant to re-enroll in
and participate in individual counseling.
On December 14, 2017, appellant filed a request for a change in the child custody
orders. Appellant again requested an order giving her legal and physical custody of the
child. On February 15, 2018, a hearing was held on appellant’s request. Father
represented himself and appellant appeared with an attorney. At the end of that hearing,
the trial court issued an order scheduling a contested hearing and case management
conference for April 30, 2018.
On April 30, 2018, appellant appeared at the hearing with counsel and Father
appeared on his own behalf. The court ordered that all hearings would be held as part of
a case management conference in the dissolution proceeding set for July 9, 2018.
Subsequently, that date was continued to August 27, 2018. At the August case
management conference, both parties appeared and represented themselves. A trial was
scheduled for December 2018.
In December 2018, the parties attended a mediation and reached no agreement.
On December 19, 2018, a trial was begun on the issues of custody and visitation. During
the contested hearing, appellant raised issues about the dental and medical care Father
was providing the child. Father responded to those and other issues. At the end of the
hearing, the trial court ordered that Father have sole legal and physical custody of the
child and that appellant’s visitation at the CHAT house would remain in place. The court
continued the hearing to April 22, 2019.
4.
On February 14, 2019, appellant filed a notice of appeal challenging the order
entered on December 19, 2018. She filed her appellant’s opening brief in November
2019. Father did not file a respondent’s brief.1
Petition for Writ
In October 2019, appellant filed a petition for extraordinary writ with this court to
challenge the January 25, 2017 order that originally gave Father custody of the child and
the many subsequent denials of appellant’s attempts to have that custody order modified.
The writ petition was assigned case No. F080070. On October 16, 2019, this court filed
an order denying the petition for writ of mandate.
DISCUSSION
I. NONAPPEALABE ORDER
A. Trial Court’s Order
At the end of the December 19, 2018 hearing, the trial court stated: “All right. So
we have come to the end of the time that we have available for the contested hearing
today. [¶] I’m going to order that father have sole legal and sole physical custody.
Mother’s visitation at the CHAT House will remain in place. [¶] We will have to
continue these issues to the next date that we have available.” The clerk’s minutes from
that day state: “Current orders remain in full force and effect.”
The trial court continued the hearing until the afternoon of April 22, 2019. In
response to a question about pending issues, the court stated: “We do have a number of
issues still to get through. We have to finish the custody and visitation issues. We have
child support. We have property issues. We have spousal support. We will get through
1 The failure to file a respondent’s brief is not treated as a default or a concession
that the trial court erred; instead, appellate courts must examine the record and points
raised in the opening brief to determine if a prejudicial (i.e., reversible) error occurred.
(Hogue v. Hogue (2017) 16 Cal.App.5th 833, 835, fn. 1; see Cal. Rules of Court, rule
8.220(a)(2).)
5.
all of that. It’s my hope that we will be able to get that accomplished at the next
hearing.”
B. Legal Principles
Final determinations of child custody are appealable as final judgments under
Code of Civil Procedure section 904.1, subdivision (a)(1). (Enrique M. v. Angelina V.
(2004) 121 Cal.App.4th 1371, 1377–1378.) In contrast, a temporary custody order is not
appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559–560.) Instead, it is
regarded as an interlocutory order and is not among the few such orders made appealable
by statute. (See Code Civ. Proc., § 904.1, subd. (a)(1)(A).)
Generally, “a reviewing court is ‘without jurisdiction to consider an appeal from a
nonappealable order, and has the duty to dismiss such an appeal upon its own motion.’ ”
(In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) Application of this legal principle
would require this court to dismiss this appeal.
II. REQUEST FOR WRIT OF MANDATE
A. Contentions
Appellant contends an exception to the general rule requiring the dismissal of
appeals from a nonappealable order should be applied in this case. She refers to an
appellate court’s discretionary authority to treat a defective appeal as a petition for writ of
mandate. (See Olson v. Cory (1983) 35 Cal.3d 390, 401 [“the power to treat a purported
appeal as a petition for writ of mandate ... should not [be] exercise[d] ... except under
unusual circumstances”].) This court is well aware of this exception, having stated that
“in unusual circumstances, a writ of mandate may issue where the [trial] court exercised
its discretion and that discretion reasonably could be exercised in only one way.” (City of
Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 586.)
Appellant contends extraordinary circumstances exist in this case because her
child is an infant, has special needs, and the child’s safety is at risk. Appellant contends
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that the trial court abused its discretion by failing to consider several of the statutory
factors used to determine the best interest of the child. (See Fam. Code, § 3011, subd.
(a)(1) through (5).) Appellant urges this court to issue a writ of mandate directing the
trial court “to make a new custody and visitation determination based on the requisite
factors.”
B. Analysis
We decline to exercise our discretionary authority for two reasons. First, the order
being challenged was made on December 19, 2018. Over two years have passed and it is
extremely probable that the December 19, 2018 order has been superseded by subsequent
orders of the trial court.
Second, a writ of mandate directing the trial court to make a new custody and
visitation determination based on the factors in Family Code section 3011, subdivision
(a), would have little practical effect. Such a writ would simply advise the trial court of
applicable law. Such an advisement seems unnecessary in this case because the record
demonstrates that the trial judge who made the December 19, 2018 order is aware of the
role a child’s best interests plays in deciding custody and visitation issues.
For instance, at the April 3, 2017 hearing, the court stated: “I do not find that it is
in [the child’s] best interests to be placed with [appellant].” Earlier during that hearing,
the court cited Family Code section 3011—the statute that sets forth a nonexclusive list
of factors to be considering when “making a determination of the best interests of the
child”—and stated it was required to consider the health, safety and welfare of the child.
(Fam. Code, § 3011, subd. (a).)
Appellant argues the court failed to consider the factors in Family Code section
3011 by asserting: “No mention is made of the issues of abuse or the health, safety and
welfare of the child. Because the court failed to do so, it abused its discretion (cf. In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302–303, 304 [a ‘court does not have
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discretion to ignore any relevant circumstance enumerated in the statute’]).” We
recognize that a trial court’s failure to consider evidence may constitute an abuse of
discretion. (E.g., Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1282 [trial court
“should have considered evidence tendered by both sides”].)2 While such error is easy to
raise, it is difficult for an appellant to demonstrate a court did not consider (i.e., weigh)
the evidence in reaching its decision. This difficulty arises from the “fundamental
principle of appellate procedure that a trial court [order or] judgment is ordinarily
presumed to be correct and the burden is on an appellant to demonstrate, on the basis of
the record presented to the appellate court, that the trial court committed an error that
justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)
Under this principle, all presumptions are indulged to support the trial court order or
judgment “on matters as to which the record is silent, and error must be affirmatively
shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This presumption of
correctness and the allocation of the burden to the appellant is part of the constitutional
doctrine of reversible error. (Ibid.; see Cal. Const., art. VI, § 13.) Here, unlike the
appellant in Ritchie, appellant has not affirmatively demonstrated the trial court did not
consider relevant evidence relating to the statutory factors. We have located nothing in
the statements made by the court during the December 19, 2018 hearing suggesting the
court did not weigh the statutory factors used in determining the best interests of the
child.
Based on the foregoing, we conclude unusual or extraordinary circumstances do
not exist in this case. Therefore, we will not exercise our discretionary authority and treat
this appeal as a petition for writ of mandate.
2 In this context, we conclude the word “consider” refers to the mental process of
weighing of evidence. Thus, the failure to consider evidence is distinguishable from a
refusal to hear or admit evidence. (Gonzales v. Interinsurance Exchange (1978) 84
Cal.App.3d 58, 63.)
8.
DISPOSITION
The appeal from the December 19, 2018 child custody and visitation order is
dismissed. The parties shall bear their own costs on appeal.
FRANSON, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
9.