Filed 10/18/23 D.P. v. M.J. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
D.P., B320624
Respondent, (Los Angeles County
Super. Ct. No. 17STPT01146)
v.
M.J.,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Elizabeth Potter Scully, Judge. Affirmed.
M.J., in pro. per., for Appellant.
No appearance for Respondent.
____________________________
Appellant M.J. (mother) and respondent D.P. (father) have
a child, A.P., born in February 2017. In April 2018, mother
obtained a domestic violence restraining order against father that
expired in October 2019. Mother claims1 the family court issued
the restraining order because father had physically attacked her
on one occasion in December 2015 and on another in April 2016.
In March 2022, the family court issued an order granting
the parents joint legal custody and awarding father “a significant
amount of parenting time” according to a schedule that was also
part of the court’s order. The court found that father had
rebutted the Family Code2 section 3044 presumption that an
award of joint legal custody to a person who has perpetrated
domestic violence would be detrimental to that child’s best
interest. In support of this finding, the court applied certain
statutory analytic factors, including: Father had not committed
further acts of domestic violence and had successfully completed
a parenting class and more individual counseling than was
ordered, and the restraining order was no longer in place.
Mother, who is self-represented, appeals the family court’s
custody and visitation order. Her principal contention is that the
family court committed legal error in finding that father had
successfully rebutted the section 3044 presumption because the
court erroneously believed only acts of physical violence can
constitute domestic violence under section 3044. She contends
the family court erred in ignoring that father’s frivolous ex parte
1 Mother’s appellate brief is somewhat opaque as to the
procedural history of this case including the basis for the prior
restraining order.
2 Undesignated statutory citations are to the Family Code.
2
filings disturbed her peace, which constitutes domestic violence
under section 3044. Mother also challenges the evidentiary
sufficiency of the court’s finding that father did not commit
further acts of domestic violence for the purpose of section 3044.
The record does not support mother’s argument that the
family court believed that only physical violence can be domestic
violence under section 3044. Rather, the record demonstrates
that, in determining that father had successfully rebutted the
section 3044 presumption, the family court evaluated the merits
of mother’s claim of further domestic violence based on father’s
ex parte filings disturbing her peace. Further, mother fails to
discharge her burden of affirmatively demonstrating that the
family court’s ruling is not supported by substantial evidence.
We also reject mother’s challenges to the parenting time
provisions of the family court’s order. Lastly, to the extent
mother attempts to level any other appellate claims, she fails to
do so cogently. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
We summarize only those facts pertinent to our disposition
of this appeal.
On September 29, 2017, father commenced the instant
parentage action concerning A.P., who had been born in February
of that year.
Although we discern mother is asserting in her appellate
brief that on October 27, 2017, the family court temporarily
3 Our Factual and Procedural Background is largely taken
from the family court’s ruling. (See Baxter v. State Teachers’
Retirement System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing
the summary of facts provided in the trial court’s ruling].)
3
awarded her sole legal and physical custody of A.P., the record
citation she provides does not substantiate that claim.
On April 6, 2018, the family court issued a domestic
violence restraining order that protected mother from father and
expired on October 6, 2019; A.P. is not listed as a protected party
on the restraining order.4 The April 6, 2018 restraining order
and the evidence mother introduced to secure that order are not
in the record before us.5 Although mother’s briefing on this point
is not entirely clear, mother apparently claims the family court
issued the restraining order based on her allegations that father
had physically attacked her on December 10, 2015 and
April 5, 2016. Mother also appears to claim that she and father
had resided together at the time of these alleged altercations, and
that mother moved out of father’s residence at some point after
A.P.’s birth.
On January 24, 2020, the family court denied mother’s
request to renew the restraining order. In its ruling, the court
observed, “significant changes . . . ha[d] taken place since the
original order was issued,” to wit, father had “completed three
parenting classes, including one co-parenting class,” and “[t]he
parties ha[d] both utilized the services of a therapist with the
goal of reducing conflict.” The court also remarked, “It appears to
the Court that, while there is still a great deal of conflict between
4 Although the March 16, 2022 ruling that is the subject of
this appeal states the restraining order expired on
“October 6, 2020” (italics added), this is a typographical error.
5 We further note that many filings referenced in mother’s
appellate brief are also absent from our record, notably father’s
purported frivolous ex parte filings.
4
the parties and more work to do, there has been some positive
movement between the parties.”
On August 25, 2020, the family court denied father’s
request to modify its custody and visitation orders, but
nonetheless “increased Father’s parenting time.” In rendering
this decision, the court stated: “ ‘While the Court applauds
[father’s] efforts to date, at this time the Court does not find the
[section 3044] presumption has been rebutted. . . . It is clear to
the Court that [ ]Father has made efforts to make himself a
better father. These efforts, combined with the passage of time
and the increased maturity of the minor child, suggest to the
Court that it is in the minor’s best interests to have longer blocks
of time with her father.’ ”
On January 28, 2022, the family court tried issues of child
custody and visitation, and took the matter under submission.
On March 16, 2022, the family court issued its signed
ruling for the trial. As a preliminary matter, the court observed,
“The parties stipulate to parentage, which was not a contested
issue at trial.” The court also found that, although the then-
expired April 6, 2018 restraining order against father had
triggered “the Section 3044 presumption against awarding joint
legal or physical custody,” the presumption had been rebutted
because father had “demonstrated that it is in the best interests
of [A.P.] that the parents share joint legal custody and [that A.P.]
spend a significant amount of parenting time with Father as well
as with Mother . . . .” In connection with this ruling, the court
found the “factors set forth in [section] 3044, subd. (b)(2), on
balance, support the legislative findings set forth in
[section] 3020.”
“Specifically:
5
“a. [Father] was not previously ordered to complete
an approved batterer’s treatment program; the court
earlier specifically declined to adopt [a] . . .
recommendation that he do so.
“b. The court finds that alcohol or drug counseling
is not appropriate. There was no allegation of alcohol
or drugs being a factor.
“c. The court finds that a parenting class is
appropriate and that [father] has successfully
completed a parenting class.
“d. [Father] is not on probation or parole.
“e. A protective order is no longer in place to restrain
[father].
“f. [Father] has not committed further acts of
domestic violence.
“g. [Father] has completed substantially more
individual counseling than was previously ordered.
“h. There was no evidence presented at trial that
[father] is in possession of any firearm or
ammunition.”
Next, the family court awarded mother and father joint
legal custody of A.P., “awarded [father] parenting time according
to the . . . schedule” included in the March 16, 2022 ruling,
declared that “[t]he child shall be in the physical care of the
Mother at all times not designated as the Father’s parenting
time,” and issued other orders concerning the parties’ parental
rights (e.g., the family court imposed certain restrictions on their
co-parenting communications).
6
On April 26, 2022, mother timely appealed the family
court’s March 16, 2022 ruling.6
APPLICABLE LAW
A. The Section 3044 Presumption and Section 6320’s
Definition of Domestic Violence
Section 3044, subdivision (a) provides in relevant part:
“Upon a finding by the court that a party seeking custody of a
child has perpetrated domestic violence within the previous five
years against the other party seeking custody of the child, . . .
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 Sections 3011 and 3020.[7] This
6 The March 16, 2022 ruling includes a provision requiring
father’s counsel to “prepare a Judgment and circulate it for
review and signature.” Nevertheless, another provision states,
“This custody order after trial is a final order[ that] may be
changed only on showing of substantial change in circumstances.”
Furthermore, we, sua sponte, take judicial notice of the family
court’s docket as of October 2, 2023, which indicates that the
court did not subsequently enter judgment. (Evid. Code, §§ 452,
subd. (d), 459.) Under these circumstances, we conclude that the
March 16, 2022 ruling constitutes a final appealable order. (See
Sarah B. v. Floyd B. (2008) 159 Cal.App.4th 938, 940, fn. 2
[noting that “ ‘the substance or effect of the judgment and not its
designation is determinative of its finality[,]’ ” and that a
“ ‘memorandum of decision may be treated as an appealable order
or judgment when it is signed and filed, and when it constitutes
the trial judge’s determination on the merits’ ”].)
7Section 3011 sets forth factors a court must consider
when “determin[ing] . . . the best interests of the child” (see
7
presumption may only be rebutted by a preponderance of the
evidence.” (§ 3044, subd. (a).)
“To overcome the presumption set forth in subdivision (a),
the court shall find that paragraph (1) [of subdivision (b) of
section 3044] is satisfied and shall find that the factors in
paragraph (2), on balance, support the legislative findings in
Section 3020.” (§ 3044, subd. (b).) Subdivision (b)(1) in turn
requires “[t]he perpetrator of domestic violence [to have]
demonstrated that giving sole or joint physical or legal custody of
a child to the perpetrator is in the best interest of the child
pursuant to Sections 3011 and 3020. In determining the best
interest of the child, the preference for frequent and continuing
contact with both parents . . . may not be used to rebut the
presumption, in whole or in part.” (See § 3044, subd. (b)(1).)
“The legal presumption [created by section 3044] is not . . . ‘that a
parent who has committed an act of domestic violence should not
be awarded sole or joint legal or physical custody of a child.’ [A
parent’s] burden [is] only to persuade the court his [or her]
custody would not be detrimental to [the child’s] best interest.
[Citations.] The determination of custody is not to reward or
punish the parents for their past conduct, but to determine what
is currently in the best interests of the child.” (See S.Y. v.
Superior Court (2018) 29 Cal.App.5th 324, 334 (S.Y.).)
§ 3011, subd. (a)), and section 3020 also provides, inter alia, “[t]he
Legislature finds and declares that it is the public policy of this
state to ensure that the health, safety, and welfare of children
shall be the court’s primary concern in determining the best
interests of children when making any orders regarding the
physical or legal custody or visitation of children” (see § 3020,
subd. (a)).
8
Subdivision (b)(2) of section 3044 identifies seven factors a
court must consider in determining whether the perpetrator of
domestic violence has rebutted the presumption, including
whether “[t]he perpetrator is restrained by a protective order or
restraining order, and has or has not complied with its terms and
conditions,” and whether “[t]he perpetrator of domestic violence
has committed further acts of domestic violence.” (See § 3044,
subds. (b)(2)(E) & (b)(2)(F).)
As relevant here, “a person has ‘perpetrated domestic
violence’ when the person is found by the court to have
intentionally or recklessly caused or attempted to cause bodily
injury, . . . or to have engaged in behavior involving, but not
limited to, threatening, striking, harassing, . . . or disturbing the
peace of another, for which a court may issue an ex parte order
pursuant to Section 6320 to protect the other party seeking
custody of the child . . . .” (See § 3044, subd. (c).)
Section 6320, subdivision (a) in turn provides in relevant
part: “The court may issue an ex parte order enjoining a party
from . . . attacking, striking, . . . threatening, . . . battering, . . .
harassing, . . . or disturbing the peace of the other party . . . .”
(See § 6320, subd. (a).) “As used in subdivision (a), ‘disturbing
the peace of the other party’ refers to conduct that, based on the
totality of the circumstances, destroys the mental or emotional
calm of the other party. This conduct may be committed directly
or indirectly, including through the use of a third party, and by
any method or through any means . . . . This conduct includes,
but is not limited to, coercive control, which is a pattern of
behavior that in purpose or effect unreasonably interferes with a
person’s free will and personal liberty.” (§ 6320, subd. (c).)
9
Courts have recognized that under section 6320, “ ‘ “the
requisite abuse need not be actual infliction of physical injury or
assault.” ’ [Citation.]” (See Curcio v. Pels (2020) 47 Cal.App.5th
1, 11 (Curcio).) Although courts are not required to “apply an
objective, reasonable person standard when deciding whether a
person has ‘disturb[ed] the peace of the other party’ ” (see
Parris J. v. Christopher U. (Oct. 4, 2023, B313470, B316247,
B317613) --- Cal.App.5th ---, --- [2023 WL 6458520, at p. *7]),
conduct that merely “upsets” a party is not sufficient under
section 6320 (see Curcio, at pp. 12, 14).
B. Standards of Review
“[Family] courts have great discretion in fashioning child
custody and visitation orders. We therefore review those orders
for an abuse of discretion. [Citation.] ‘A court abuses its
discretion in making a child custody order if there is no
reasonable basis on which it could conclude that its decision
advanced the best interests of the child. [Citation.] A court also
abuses its discretion if it applies improper criteria or makes
incorrect legal assumptions. [Citation.]’ [Citation.] ‘An abuse of
discretion occurs when the [family] court exceeds the bounds of
reason; even if we disagree with the [family] court’s
determination, we uphold the determination so long as it is
reasonable. [Citation.] . . . ’ [Citation.]” (See S.Y., supra,
29 Cal.App.5th at pp. 333–334, italics omitted.)
“The [family] court’s factual findings are reviewed for
substantial evidence . . . .” (See S.Y., supra, 29 Cal.App.5th at
p. 334.) “Under this deferential standard of review, findings of
fact are liberally construed to support the [order] and we consider
the evidence in the light most favorable to the prevailing party,
drawing all reasonable inferences in support of the findings.”
10
(See Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) An
aspect of the substantial evidence standard is “ ‘the doctrine of
implied findings[,]’ ” which provides that “ ‘the reviewing court
must infer . . . that the [family] court impliedly made every
factual finding necessary to support its decision.’ [Citation.]”
(See ibid.)
“The judgment or order of the lower court is presumed
correct on appellate review.” (S.Y., supra, 29 Cal.App.5th at
p. 333.) “Thus, ‘ “ ‘it is the appellant’s responsibility to
affirmatively demonstrate error’ ” ’ by ‘ “ ‘supply[ing] the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ ” [Citation.]’ [Citations.]
The appellant bears this burden of rebutting the presumption of
correctness accorded to the [family] court’s decision, regardless of
the applicable standard of review.” (See Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2023)
94 Cal.App.5th 764, 777–778.)
Additionally, “[t]he rules of appellate procedure apply to
[mother] even though [she] is representing [herself] on appeal.”
(See Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590,
595.) Although “[a] party may choose to act as his or her own
attorney[, w]e treat such a party like any other party,” meaning
“he or she ‘ “is entitled to the same, but no greater consideration
than other litigants and attorneys. [Citation.]” ’ [Citation.]” (See
ibid.)
11
DISCUSSION
A. The Family Court’s Decision Was Not Predicated on
an Error of Law
Mother argues the family “court’s determination that
[father] rebutted the [section] 3044 presumption by crediting
evidence [father] had not engaged in any further acts of ‘physical’
abuse is an error of law that mandates reversal of its decision,
because engaging in litigation abuse is continuing to engage in
acts of domestic violence.” Mother contends the family “court’s
decision [was] influenced by an erroneous understanding of
applicable law,” to wit, the court did not recognize that
“ ‘domestic violence’ . . . is not merely physical, but also
encompasses mental and psychological abuse, to further include
litigation abuse.” In support of her position, mother argues that
“[a]cts that disturb the peace of a party have been held to include
those that destroy the party’s mental or emotional calm,” and
that “[d]estroying the peace of a party through successive,
frivolous, and baseless ex parte and other filings . . . is just a
different form of domestic violence.” According to mother,
because the family court failed to recognize that domestic
violence is not limited to physical abuse, the court’s order “is not
an exercise of informed discretion and is subject to reversal.”
“Normally, we . . . presume the [family] court was aware of
and understood the scope of its authority and discretion under
the applicable law.” (See Barriga v. 99 Cents Only Stores LLC
(2020) 51 Cal.App.5th 299, 333–334.) “ ‘If the record
affirmatively shows’ ” that the family court’s “ ‘decision [was]
influenced by an erroneous understanding of applicable law[,]’ ”
however, “the presumption has been rebutted,” and the order “ ‘is
subject to reversal even though there may be substantial
12
evidence to support that order. [Citations.] . . . ’ [Citation.]” (See
id. at p. 334, italics added.)
Mother has not affirmatively demonstrated that the
family court’s decision was influenced by an erroneous
understanding of the applicable law. At no point in its order did
the court opine that only physical violence can constitute “further
acts of domestic violence” for the purpose of the section 3044
presumption. (§ 3044, subd. (b)(2)(F).)
Instead, the family court acknowledged mother’s
“position . . . that [father’s] litigation conduct, specifically his
repeated ex parte requests to travel with the minor child to meet
his extended family, amounts to additional domestic violence in
the form of ‘coercive control’ and ‘litigation abuse,’ and that his
[electronic] communications [with mother on talkingparents.com]
reflect ‘gaslighting’ and ‘manipulation.’ ”
Regarding the latter contention, the court observed, “One
example of such ‘gaslighting’ and ‘manipulation,’ according to
[mother’s] trial testimony, was that on one occasion [father] put
‘IMPORTANT’ in the subject line for a message which [mother]
did not feel warranted it.”8
The family court also criticized mother for alleging that
father’s ex parte requests constituted “ ‘litigation abuse’ ” by
“not[ing] that [mother] herself filed two ex parte requests to
modify custody and visitation which were denied.” Further, the
court observed that mother’s “justification for refusing to permit
the child to travel to visit [A.P.’s] paternal relatives was that
‘given [Mother’s] history of being held against her will,’ the
8 On appeal, mother does not reassert her claim that
father’s communications with mother on talkingparents.com
constitute acts of domestic violence under section 3044.
13
concept of the travel was triggering for her.” The court remarked
that “this is not a child-focused reason to object to proposed
travel,” and that “it is in the best interest of the minor child to
form connections and relationships with family both on her
maternal and on her paternal side and to gain exposure to her
cultural and linguistic heritage via contact with both extended
families.” The court thereafter found that father had “not
committed further acts of domestic violence” for the purpose of
section 3044, subdivision (b).
The March 16, 2022 ruling thus reveals that the
family court considered and rejected mother’s claim that father’s
ex parte requests to travel with the child amounted to “ ‘litigation
abuse . . . .’ ” Accordingly, the court’s decision that father had
successfully rebutted the section 3044 presumption was not
predicated on an erroneous legal assumption that only physical
abuse constitutes domestic violence.
B. Mother Fails to Demonstrate the Family Court Erred
In Finding That Father Had Not Committed Further
Acts of Domestic Violence
Mother mounts an evidentiary challenge to the family
court’s finding that father’s ex parte filings did not constitute
further acts of domestic violence under section 3044. Mother
asserts that “[a]s a result of [father’s] outrageously excessive ex
parte applications, [mother] lost work, income, and experienced
severe distress.” She argues this evidence establishes that
father’s “baseless ex parte” filings “destroy[ed her] mental or
emotional calm” and thereby “disturb[ed her] peace” for the
purpose of sections 3044 and 6320.
To support her position that these filings disturbed her
peace, mother cites an excerpt from the reporter’s transcript for a
14
September 29, 2021 hearing wherein mother stated: “This has
been frightening—I’ve lost work. I have not slept. This is—this
has been litigation abuse. I lost so much money and lost so much
time. We have always been open to [A.P.] seeing her
grandparents. I have pictures. She’s with him every—almost
every weekend. He has—we would be glad to do audio or video.
This is—I lost so much money and work.”9
Mother thus asks us to credit this testimony from the
September 29, 2021 hearing.10 This request ignores the
applicable substantial evidence standard of review, which bars us
from reevaluating witness credibility. (See Applicable Law,
part B, ante [noting that the family court’s factual findings are
reviewed for substantial evidence]; Curcio, supra, 47 Cal.App.5th
at p. 12 [“We do not determine credibility or reweigh the evidence
[under the substantial evidence standard].”].) Indeed, “ ‘ “ ‘[t]he
trial judge, having heard the evidence, observed the witnesses,
their demeanor, attitude, candor or lack of candor, is best
qualified to pass upon and determine the factual issues presented
by their testimony.’ ” [Citation.]’ [Citation.]” (S.Y., supra,
29 Cal.App.5th at p. 334.)
Furthermore, even if we credited mother’s testimony at the
hearing, it does not necessarily follow that the family court erred
9 In connection with this assertion, mother also cites
certain documents she submitted to the family court to support a
request for an award of attorney fees and costs. These documents
do not reference or discuss father’s ex parte filings.
10 We, sua sponte, take judicial notice of a minute order
from the September 29, 2021 hearing, which provides that “[t]he
parties [we]re placed under oath and testif[ied].” (Evid. Code,
§§ 452, subd. (d), 459.)
15
in finding that father’s ex parte filings did not
“destroy[ mother’s] mental or emotional calm . . . . ” (See § 6320,
subd. (c) [defining “ ‘disturbing the peace of the other party’ ”].)
For mother to succeed on her evidentiary challenge, she would
need to establish—as a matter of law—that father’s conduct rose
to “the level of destruction of [her] mental and emotional calm[ ]
sufficient to support the issuance of a domestic violence
restraining order.” (See Curcio, supra, 47 Cal.App.5th at p. 13;
see also Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49,
54 [“A contention that the evidence establishes a particular fact
as a matter of law when the fact finder has determined the fact to
the contrary is but another way of asserting that the evidence is
insufficient to support the determination of the fact finder.”].)
Mother’s testimony falls short of satisfying this standard, given
that she vaguely claimed that father’s ex parte filings
“frighten[ed]” her and caused her to lose an unspecified amount
of sleep, work, time, and money.
Mother raises several other arguments to support her
challenge to the family court’s finding, none of which is
persuasive.
Mother contends that at the September 29, 2021 hearing,
the family court found father’s ex parte filings were
“ ‘inappropriate, expensive, inconvenient, [and]
unwarranted . . . .’ ” Yet, in making these remarks, the court
explained it was “not making any findings . . . at th[at] time”
regarding mother’s “argument . . . that . . . these requests [we]re
being filed as a way of harassing” her. Reviewing the record in
the light most favorable to the court’s determinations, we
conclude the family court’s comments at the September 29, 2021
16
hearing are consistent with its subsequent finding that father
did not commit further acts of domestic violence against mother.
Additionally, mother asserts father “stated[ ] during the
custody hearing on January 28th, 2022, that he knew all the
ex parte applications he filed would be denied, but filed them
anyway.” The record excerpts she cites, however, do not support
this claim. One of her citations actually corresponds to the
transcript of a hearing held on December 20, 2019; in the portion
of the transcript mother cites, there is no discussion of father’s
ex parte filings. Mother’s other citations refer to colloquies
between the family court and mother’s counsel at the
January 28, 2022 hearing. Significantly, we cannot determine
independently whether father’s ex parte filings were frivolous
because they are not in our record. (Fn. 5, ante.)
In sum, we conclude mother has failed to discharge her
burden of affirmatively demonstrating that the family court erred
in finding that father had not committed further acts of domestic
violence.
C. We Reject Mother’s Challenges to the Parenting
Time Provisions
The family court set forth a “parenting time” schedule in
the March 16, 2022 ruling. In particular, the court ordered that,
“[b]eginning March 18, 2022 and continuing until the Minor
Child starts kindergarten, Father’s parenting time shall be on
the first, third and fifth weekends of the month from Fridays at
3:00 PM to Sundays at 3:00 PM,” and that “Father shall have
parenting time every Wednesday afternoon from 3:00 pm to
6:00 pm” “beginning March 23, 2022 . . .” The court further
ordered, “Once the child starts kindergarten in the fall of 2022,
Father’s parenting time shall be on the first, third and any fifth
17
weekends of the month from Fridays pick-up after school (or at
3:00 PM if there is no school) to Monday mornings return to
school (or at 9:00 AM if there is no school).” The order provides
that after A.P. begins kindergarten in the fall of 2022, father’s
“Wednesday afternoon visit[s] shall take place within five miles
of the minor child’s school.” The court required that “any
parenting exchanges on vacation days or days the minor child’s
school is not in session [occur] at the Van Nuys police station”
from “March 18, 2022 . . . until the Minor Child starts
kindergarten in the fall of 2022 . . . .”
Additionally, the court granted each parent certain
vacation time each year, required the parties to “meet and confer
regarding vacation scheduling via talkingparents.com,” and
provided that “if their proposed vacation dates conflict and they
are not able to work out that conflict by mutual agreement,” then
“Father’s preferred schedule shall take precedence in even-
numbered years and Mother’s preferred schedule shall take
precedence in odd-numbered years.”
Mother’s challenges to this scheduling order appear to focus
on father’s Wednesday parenting time. First, she claims that
“[t]he transitioning of a high conflict custody exchange from the
Van Nuys[ ] police station to a school yard at 6 pm mid-week,
after-hours, when there is no security, squarely places [mother]
in danger.”11
Second, mother contends that requiring her to pick up A.P.
from the child’s school at 6 p.m. on Wednesdays would cause her
11 We assume arguendo that mother has correctly
interpreted the March 16, 2022 ruling as requiring that
Wednesday custody exchanges occur at A.P.’s school, even though
the order does not explicitly state as such.
18
“financial hardship.” Specifically, she claims compliance with the
order would compel her to “work fewer hours” on Wednesdays
because, according to mother, she “testif[ied that she] work[s]
from 9am to 5pm” and there is an “acknowledged two-hour
distance” between her place of employment and the school. She
further claims that the Wednesday parenting time schedule could
“adversely affect” mother’s and A.P.’s “housing and food security”
because mother “is the sole financial provider for the minor child
as [father] is on General Relief, and has chosen to be
unemployed, despite the capacity to work for several years and
has been previously exempt from paying child support due to
being on Public Welfare-General Relief.”
Concerning mother’s complaints of lack of security during
custody exchanges, we observe that the April 6, 2018 domestic
violence restraining order against father had expired more than
two years before the family court set this parenting schedule, and
that the family court found father had not committed further acts
of domestic violence against mother. (See Factual & Procedural
Background, ante.) Accordingly, the court’s decision to change
the pickup location from the Van Nuys police station to A.P.’s
school did not “exceed[ ] the bounds of reason . . . .” (See S.Y.,
supra, 29 Cal.App.5th at p. 333 [describing the abuse of
discretion standard].)
Furthermore, mother fails to support properly her
allegation that the Wednesday parenting time schedule would
cause her to suffer financial hardship. Mother cites a declaration
from her counsel to substantiate mother’s claims that she works
from 9 a.m. to 5 p.m. and that A.P.’s school is two hours away
from her work location. Counsel’s declaration does not address
either of those issues. Further, mother cites a transcript from a
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May 17, 2022 hearing in a child support matter for A.P. that is
pending in a different county to support her assertions that she is
the “sole financial provider” for A.P. and that father has shirked
his financial obligations.12 Because that hearing occurred after
the family court issued its March 16, 2022 ruling, it has no
bearing on this appeal. (See In re Marriage of Brewster &
Clevenger (2020) 45 Cal.App.5th 481, 498 [“When reviewing the
correctness of a trial court’s judgment, we only consider matters
that were part of the record at the time the court entered
judgment . . . .”].)
Lastly, mother appears to contest provisions of the
March 16, 2022 ruling concerning travel and vacation time. She
argues, “[W]hen returning from travel/vacation with the minor
child, [father] is able to schedule at any time of his choice,
whether late at night or during the day[,] when [mother] will
retrieve the child upon the custody exchange with [father].”
Mother cites subdivision (b) of section 3031 to support this
argument.
Section 3031, subdivision (b) provides in pertinent part:
“Whenever custody or visitation is granted to a parent in a case
in which domestic violence is alleged and an emergency protective
order, protective order, or other restraining order has been issued,
the custody or visitation order shall specify the time, day, place,
and manner of transfer of the child for custody or visitation to
limit the child’s exposure to potential domestic conflict or violence
12 The family court had observed in its March 16, 2022
ruling that “[c]hild support is being handled in a separate case in
Ventura County, and both parties stipulated it was not at issue
at the trial.” Mother does not contest that portion of the
March 16, 2022 ruling.
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and to ensure the safety of all family members.” (Italics added.)
Mother provides no analysis explaining how the family court’s
order violates this provision. This failure is particularly
troublesome because at the time the family court issued its travel
and vacation time schedule, no emergency protective order,
protective order, or other restraining order was extant. By failing
adequately to support her challenge to the family court’s order
regarding travel and vacation time, mother has waived her claim
of error. (See Hodjat v. State Farm Mutual Automobile Ins. Co.
(2012) 211 Cal.App.4th 1, 10 [“[A]n appellant is required to not
only cite to valid legal authority, but also explain how it applies
in [her] case.”]; Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 (Cahill) [“ ‘We are not bound to develop
appellants’ arguments for them. [Citation.] The absence of
cogent legal argument . . . allows this court to treat the
contention as waived.’ ”].)
D. We Decline To Address Factual Assertions That
Mother Fails To Discuss in the Legal Argument
Section of Her Brief and the Vague Assertions of
Error That She Fails Cogently To Analyze in That
Section
Although mother states on appeal that father engaged in
misconduct, she does not clarify whether these assertions give
rise to error not already addressed in our Discussion.
As illustrative only, mother argues father’s supposed
“ ‘litigation abuse’ . . . must be considered continuing acts of
domestic violence that falls within the scope of abuse that may be
enjoined under . . . [ ]§ 6320 and the civil harassment statute
(Code Civ. Proc., § 527.6, subd. (b)).” (Italics added.) Mother
does not clarify, however, whether she is raising an appellate
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claim predicated on Code of Civil Procedure section 527.6 or
otherwise explain the relevance of that statute to the instant
case. (See Applicable Law, part A, ante [indicating that § 3044,
subd. (c) references § 6320, and not Code Civ. Proc., § 527.6, in
defining domestic violence relevant to the § 3044 presumption].)
Another example is a heading in which mother states: “The
trial court abused its discretion in refusing to consider [father’s]
litigation abuse that was compounded by false claims of indigency
as continued acts of domestic violence that require application of
the 3044 presumption.” (Underscoring, boldface, & some
capitalization omitted; italics added.) Yet, in that section of
mother’s brief, she does not discuss father’s alleged “false claims
of indigency” at all, let alone explain whether they disturbed
mother’s peace for the purpose of section 6320 or otherwise have
some relevance to this appeal. (See also fn. 12, ante [noting that
child support was being handled by a court in a different county
and that it was not at issue in the trial for this case].)
Furthermore, the statement of the case and the factual
history sections of mother’s appellate brief contain complaints
that are not analyzed cogently as claims of error in the argument
section of her brief. For instance, mother asserts in the factual
history section that at “[n]umerous [unspecified] times[, father]
abusively screamed at [mother] and forced the visitation
exchanges to last an inordinately long time, even reaching the
point where intervention by the police was required.” Mother
also complains in her statement of the case that father made
“fraudulent claims of being indigent,” an assertion that, as we
explained above, mother does not develop in the argument
section of her brief.
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We do not “develop [mother’s] arguments’ ” for her (see
Cahill, supra, 194 Cal.App.4th at p. 956), nor do we guess how
these complaints are related to any legal challenge to the
March 16, 2022 ruling (see Browne v. County of Tehama (2013)
213 Cal.App.4th 704, 725–726 [holding that an appellant
forfeited a contention by failing to “present [it] in the argument
section of either the opening or reply brief”].) We thus do not
address further any other complaints not tethered to legal
argument in her appellate briefing.
DISPOSITION
We affirm the family court’s March 16, 2022 order. The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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