Filed 4/27/17 In re Marriage of A.S. and C.A. CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re Marriage of A.S. and C.A.

A.S.,

Respondent,

v.

C.A.,

Appellant.


G052341

(Super. Ct. No. 08D011523)

O P I N I O N


Appeal from a postjudgment order of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.
Holstrom, Block & Parke, Ronald B. Funk, for Appellant.
Cheryl Anne Row, for Respondent.
* * *

C.A. (mother) and A.S. (father) had one child, M.S., before dissolving their one-year marriage. M.S. began living with mother and visiting father. After allegations of domestic abuse were substantiated as to father, the court ordered a child custody evaluation under Evidence Code section 730 (all undesignated references are to this code). The evaluator made several recommendations, including that mother participate in therapy to help her develop discernment in leveling allegations of abuse against father. Mother did not undergo therapy. Over the next few years, she continued to report allegations of abuse and eventually filed a request for a domestic violence restraining order. This prompted the court to order another section 730 child custody evaluation. Father denied any abuse and requested a change in the custody and visitation order.
The second section 730 evaluator found mother’s behavior was alienating towards father, there was no evidence father had abused M.S., and a change in custody was warranted. Mother hired an expert pursuant to section 733 to counter the section 730 evaluator’s conclusions. The section 733 evaluator agreed there was parental alienation by mother but faulted the section 730 evaluator for not quantifying whether the alienation was in the low, moderate, or severe range. He believed the alienation was in the low range and could be treated with therapy. The court disagreed and awarded father sole physical and sole legal custody of M.S.
Mother makes two contentions on appeal. First, she argues the section 730 evaluator relied on the discredited, junk science theory of parental alienation syndrome to change custody. Second, she argues the trial court erred in failing to grant a continuance of the hearing. We disagree with both contentions and affirm.
FACTS AND PROCEDURAL HISTORY
1. The Marriage, Divorce, and Original Custody Orders
Mother and father were married in December 2007. M.S. was born in May 2008. In December 2008, father filed a petition for dissolution of marriage. M.S. lived with mother and father had visitation.
2. The First Section 730 Evaluation and Entry of Judgment on Custody Issues
In February 2010 mother and father arrived at the Irvine Police Department separately to report domestic violence, each against the other. The Orange County Social Services Agency (SSA) conducted an investigation and found allegations of general neglect due to domestic violence substantiated as to father but inconclusive as to mother. The district attorney declined to prosecute father. However, as a result of this incident, in May 2010 the parties stipulated to the appointment of a section 730 evaluator to conduct a child custody evaluation.
The court appointed Miriam J. Galindo, Psy.D. to conduct the evaluation. She submitted her report in September 2010. As reflected in the report, mother had made several allegations that father perpetrated domestic violence against her, M.S., and G.S., father’s ten-year-old son from a previous relationship. She also made allegations of child abuse, animal abuse, drug abuse, and mental illness. Father denied the allegations and said mother had been violent toward him.
Galindo administered psychological testing to mother and father. Father’s testing suggested a long-standing personality style which is hypermasculine, distrustful, irritable, and compulsively restrictive in his display of emotions. Mother’s testing suggested she has a deeply ingrained personality style which is dependant, insecure, indecisive, fearful, distrusting, and prone to anxiety and depression. M.S. was not interviewed, because he was only two years old.
Galindo observed a monitored visit, conducted numerous interviews reviewed medical records and police reports, and conducted background checks on mother and father. Galindo concluded there was insufficient evidence to substantiate mother’s allegations of domestic violence, animal abuse, child abuse, or illicit drug abuse. However, there was documentation to support father’s contention he was under the care of a physician for his physical and emotional needs. There was no factual evidence to show either parent was deficient in their capacity to parent. The coparenting relationship was conflictual and lacked any substantial history of collaborative and mature problem solving. Because of their lack of positive history and the psychological dynamic between mother and father, the prognosis for the case was “guarded” meaning there was a moderately high risk similar allegations would resurface in the future. For this reason, Galindo recommended safeguards be employed.
The safeguards Galindo recommended included: an award of joint legal and physical custody with a five-part phase-in period leading to father’s visits every Wednesday and on alternating weekends; both parents to participate in a coparenting class and coparenting therapy, to communicate by text message or e-mail only and to avoid personal attacks, name-calling or profanity; father to continue to receive psychiatric and medical care through the Veteran’s Administration and follow all directives imposed by his physicians; mother to participate in therapy to help her develop discernment with respect to her fears, including “a protocol for seeking professional guidance if she has concerns” about M.S.; and the progress of both parents to be reviewed in six to nine months to determine the appropriateness of the recommendations and whether changes are needed.
In December 2010 the parties stipulated to joint legal and physical custody and to a phase-in visitation schedule, and parenting classes for father pending a review hearing in January 2011. In April 2011 the parties were sworn and testified. Counsel informed the court the parties were on phase five of the recommendations in Galindo’s report. The court found father had completed the “Kids First Program” and made a visitation order allowing him custody of M.S. on Wednesday nights to Thursday mornings, and on the second and fourth weekends.
In August 2012 the court entered a bifurcated judgment for dissolution of marriage status only. Trial on the custody matters commenced in November 2012. In May 2013 the court entered a judgment on reserved issues. As related to this appeal, the court awarded mother and father joint legal custody with mother having primary physical custody subject to father’s right of visitation every Thursday to Friday, on the first, third and fifth weekends of every month, and one week during summer.
3. The Second Section 730 Evaluation and Change of Custody Orders
In October 2014 mother filed a request for a domestic violence restraining order. M.S. was six years old at the time. The request prompted the parties to stipulate to a new child custody evaluation under section 730. Mother later withdrew her request for a domestic violence restraining order, but father filed a request for an order modifying child custody and visitation. Mother and father stipulated Alan Liberman Ph.D. would conduct the new evaluation.
a. The Section 730 Evaluator’s Report
Liberman submitted his report in April 2015. In addition to meeting with mother, father, and M.S., he conducted nine collateral interviews and received personal reference forms from several other individuals with knowledge of the family. He reviewed court and SSA records, police reports, correspondence between the parties, Galindo’s report, and other documents. He reported mother had made another report of physical abuse to M.S. by father to SSA in February 2012. The allegation was inconclusive. Additional referrals in March 2012 and April 2012 were investigated and unfounded. Later in April 2012 mother filed a police report with the Newport Beach Police Department. This led to another SSA interview of M.S. After abuse was determined to be unfounded, SSA advised mother her numerous unfounded allegations of abuse by father appeared to be the result of custody issues not child abuse issues. She was told not to speak to M.S. about father in a negative manner and if she continued, allegations could be brought against her. In October 2014 another SSA investigation took place, and allegations of physical abuse to M.S. by father were again inconclusive. The police were also involved in this investigation. Yet another report was received in December 2014. Meanwhile, in 2013 and 2014 father filed a custody/violation report stating mother would not allow him to have M.S. In December 2014 mother sent a letter to the mayor of Irvine complaining no one would help her and M.S. with their allegations of abuse. Mother also complained of father’s alcohol use during their marriage and said M.S. told her father was drunk during a visit.
Liberman concluded there was no substantive data father abused M.S. as mother alleged. He said it is more likely than not M.S.’s disclosures were the result of wanting to please mother, taking sides with mother to avoid being placed in the middle of parental conflict, exposure to mother’s demeanor and remarks, and mother’s blatant mistrust and hostility towards father.
Father asserted mother was trying to alienate M.S.; mother denied the allegation. Liberman found several factors supporting father’s assertion mother was alienating M.S., including: M.S.’s refusal to acknowledge father when mother was present; M.S.’s statement there was nothing he liked about father whereas there was nothing he did not like about mother; M.S.’s statement mother was right when presented with two conflicting statements he made about child abuse; M.S.’s statement father “is not my dad” and “I only got one dad, Chris [mother’s husband]”; M.S.’s statement mother did not want him to see father anymore; mother speaking negatively about father in M.S.’s presence; M.S.’s report he tells mother what happens at paternal visits because mother wants to know if father hurts him or does not hurt him; father’s assertion M.S. refers to father by his first name during mother’s custody; M.S.’s statement he did not want to visit father because he was sometimes mean without being able to explain how father was mean; M.S.’s statement he never laughed or had a good time with father which was inconsistent with Liberman’s observations, comments from others and videos and photos; mother’s statement the child resembled her and Chris and that she was happy about M.S. not resembling father; mother’s continued examination of M.S. for bruises and continued taking of photos after being told to stop; mother’s contacting the Irvine mayor villifying father and asking for assistance; and mother’s unconditional belief in everything M.S. tells her, claiming he never lies despite his inconsistent statements.
Liberman opined mother had a fixed belief father is abusing M.S. and appears to have a pattern of discounting information that disconfirms her perception. He reported M.S. was susceptible to misleading information and mother’s belief M.S. never lies allows her no “wiggle room” to consider alternatives or speak to father for clarification. Liberman concluded M.S. was in the process of being alienated and “[w]ithout intervention, . . . the child’s paternal relationship will rupture.” He believed the parents’ dispute placed M.S. at risk emotionally and unless mother was able to change her dysfunctional behavior, sharing legal custody would likely exacerbate the parental acrimony and M.S. would become increasingly alienated.
After arriving at these conclusions, Liberman made 18 separate recommendations to the court including: the parties shall not make disparaging or derogatory remarks to or about the other parent in M.S.’s presence; neither parent will be permitted to discuss with M.S. any issues related to the case; the parents are not to question, videotape, photograph or record M.S. about the other parent; both parents are to complete an eight-hour parenting class; M.S. shall begin counseling with a child psychologist; the court shall appoint a coparenting therapist to help the parents resolve problematic issues; father shall continue his psychiatric treatment; mother shall begin individual counseling and undergo a psychiatric exam; mother shall not question M.S. about abuse or his experience with father; and in the event mother makes an allegation of child abuse that is not substantiated, father may seek a court order suspending her visitation. Liberman recommended if mother did not comply with the recommendations that apply to her, father shall have sole legal custody and mother’s visits shall be limited to alternate weekends. However, he recommended as long as mother was in the process of complying with his recommendations, the parents should share legal custody, but her current time-share should be slightly reduced to the second and fourth weekends of the month and every Wednesday after school until Friday morning.
The hearing on father’s request for order modifying child custody and visitation was set to begin on April 22, 2015. Father’s counsel was ready to proceed. Mother’s counsel stated he had only been retained two days ago. He stated his client had only received Liberman’s report on April 15. He also pointed out the parties had not met and conferred concerning the report and he had not yet had the chance to subpoena Liberman for cross-examination. Finally, he said mother was considering hiring a section 733 evaluator to look at Liberman’s report.
The court refused a 30-day continuance stating, “this is an extraordinarily serious matter, from my point of view, and I would not be willing to agree to a long continuance. It appears to me that your client may be trying to delay the inevitable. . . . And it appears to me from the report that her actions have been detrimental to the child, not just not in his best interests. [¶] So understand me, I will keep a very short leash on this matter.” The court stated they would take a break to meet and confer. Father’s counsel made clear he was requesting alternating weekends to mother and all other time to father. Counsel recognized it would be a dramatic shift for M.S. The court trailed the matter for two days.

b. The Section 733 Evaluator’s Report
On April 24, 2015, the court admitted Liberman’s report into evidence, noting it is “extraordinarily revealing on the issue of parental alienation . . . .” Mother’s counsel continued to press for a continuance. He said mother had hired a section 733 evaluator, Thomas P. Howell, Ph.D. the day before. He asked court permission to provide Howell with Liberman’s report and stated Howell needed two weeks to be ready to give the court a valid and educated analysis of Liberman’s report. When mother’s counsel was asked if he wanted to cross-examine Liberman, he replied, “Your honor, this is the problem, I don’t know. If I – assuming hypothetically I bring Dr. Liberman here to cross-examine him, my only cross-examination would be to the fact-finding that he did, whether my client called C.P.S. [sic] or not, and why didn’t you talk to Dr. Want.[ ] That would not be helpful to the court at all. I wouldn’t do that and waste the court’s time. The meaningful cross-examination for Dr. Liberman would be to find out the methodology he used, what literature he relied on.”
Mother’s counsel pointed out the crux of the case is in Liberman’s report regarding alleged alienation and he needed Howell’s input before he could meaningfully conduct cross-examination. The court continued the case four more days to “see exactly where you’re at and when you can present Dr. Howell, because apparently that’s what you want to do first before you inquire of Dr. Liberman.” Mother’s counsel complained Howell would not be ready.
When the parties returned on April 28, 2015, mother’s counsel informed the court Howell was not available that day. Further, mother’s counsel had spoken with Liberman, who said he would not be available until the week of May 11 and would require a subpoena and witness fees. When asked for details by the court, mother’s counsel stated, “Let me be clear. I want to subpoena Dr. Liberman; however, I have a limited budget, and I have to allocate my budget depending on what Dr. Howell will tell me. Dr. Howell has not yet come to my office to discuss in details, and I don’t know what the charge would be, so I’m operating with a limited budget. It is my intention to subpoena Dr. Liberman. Whether I can with the limited budget that I have, to do that or not, I don’t know.” The court trailed the matter two more days.
On April 30, 2015 mother called Howell to testify. He stated he had performed section 730 evaluations over 1,035 times and conducted section 733 evaluations over 125 times. He has testified approximately 400 to 500 times in five states and is on the court’s approved list for section 730 evaluators. He testified he reviewed Galindo’s original section 730 report twice and Liberman’s report. He spoke with mother and counsel for two hours and with counsel for another one hour, then prepared his testimony. He also spoke with Dr. Want and with Chris. He read one article, which he characterized as the hallmark of the best article written in the area of decisions about alienation.
Howell testified after reviewing Galindo’s report, there were no signs or concerns about parental alienation. It first came to light in Liberman’s report. Howell agreed with Liberman there is parental alienation by mother. He testified, “more importantly the reason I’m here to testify is there needs to be a quantification of whether this is in the low, moderate, or severe range” of alienation and in that regard, there is a major deficit in the report. He stated low to moderate alienation is more treatment-oriented. He said according to the research and the standard that has been utilized by most evaluators in Orange County, low level parental alienation does not justify a change in custody.
Howell opined in this case there is low level parental alienation occurring by mother. While the case had not reached the severe level yet, without treatment the behavior would continue and it could become moderate and then severe. One of the hallmarks of severe alienation is children refuse to see their parent. In this case, M.S. does not refuse to visit father.
Howell also criticized Liberman’s report as seriously deficient for failing to discuss in any way the negative effect on M.S. if he was removed from his primary custodial parent. Howell said if Liberman is going to support a radical change in custody, then it was necessary to know how it would affect the child. When asked if he had had any recommendations for the court, Howell stated he could not offer any, because he would lose his license and it would be unethical. All he could offer is an opinion and expert testimony without recommendations.
Even so Howell clearly testified, “[Mother] needs to go to treatment for parental alienation. She needs to learn and be educated about parental alienation. She needs to stop the behavior. She needs to understand the deficits that it causes in the child’s relationship with the father. She needs to understand that this may relate to her own unresolved anger, past resentments at this father, and she needs to change that with positives. She also needs to learn to not discuss the father in a negative fashion to the child, to hold her tongue and to say the positives and [undo] the damage that has been caused because it’s defin[itely] there. . . . It’s a lot of work. That’s three to six months.”
The court asked Howell if the concerns should be different because the court is dealing with a six-year-old child. Howell said young children usually have the primary relationship with the mother and when latency happens around age seven to twelve, the same-sex parent is more important. At that point, the child moves away from mother and accepts father. It is a critical time for the child to start bridging that gap developmentally to his father. Therefore, it is more important at six and seven to make sure it is bridged, because at age twelve it may be too late.
c. The Court’s Ruling
Mother and father each submitted trial briefs, and on May 20, 2015 the court heard additional argument. The court awarded father sole physical and sole legal custody of M.S. but with a transition time and stated the order would remain in effect until mother had completed all her requirements. The court ordered upon the passage of six months from the later date of mother’s commencement of each of the requirements of the order, mother and father shall recommence sharing of joint legal custody. Mother’s visitation was limited to alternate weekends from Friday to Sunday commencing August 9, 2015.
The court made several other orders including: both parents shall complete a parenting class, M.S. shall begin counseling with a child psychologist; the court shall appoint a coparenting therapist to assist the parents to resolve issues that may arise; father shall continue his psychiatric treatment; mother shall begin individual counseling with a licensed psychologist that has expertise in cognitive behavior therapy and parental alienation and shall complete 40 individual sessions within the next 12 months; mother shall have a comprehensive psychiatric evaluation; mother shall not question M.S. about abuse or his experience with father; in the event mother makes an allegation of child abuse or causes an allegation to be made and it is not substantiated, father shall be entitled to seek ex parte relief to suspend mother’s visits; and upon completion in full by mother of each requirement of the order, mother’s schedule of physical custody of M.S. shall increase to the second and fourth weekends and every Wednesday after school.
DISCUSSION
1. Custody and Visitation Determinations and the Standard of Review
“Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child.” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) The court and the family have “the widest discretion to choose a parenting plan that is in the best interest of the child.” (Fam. Code, § 3040, subd. (c).) When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, the nature and amount of contact with the parents, and the habitual or continual illegal use of controlled substances by either parent. (Fam. Code, § 3011.) The court must also consider two overriding public policies announced by the Legislature in cases where custody must be determined: (1) assuring the health, safety, and welfare of the children, and (2) assuring that the children have frequent and continuing contact with both parents. (Fam. Code, § 3020, subds. (a), (b).)
The California Supreme Court in Montenegro explained, “[a]lthough the statutory scheme only requires courts to ascertain the ‘best interest of the child’ [citations], this court has articulated a variation on the best interest standard once a final judicial custody determination is in place. 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.]” (Montenegro, supra, 26 Cal.4th at p. 256.) “The changed-circumstance rule is not a different test, devised to supplant the statutory 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.” (Burchard v. Garay (1986) 42 Cal.3d 531, 535.) “‘The change of circumstances standard is based on principles of res judicata.’” (Ibid.) “In most cases, of course, the changed-circumstance rule and the best-interest test produce the same result.” (Id. at p. 538.)
“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.) We may conclude the trial court abused its discretion only if “there is no reasonable basis on which the [trial] court could conclude its decision advanced the best interests of the child.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.)
Mother asks us to conduct a de novo review. She argues Liberman’s report is unreliable and should have been disregarded as evidence to support a change of custody. She cites no precedent for reviewing a postjudgment custody order de novo. Mother’s reliance on Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019 is misplaced. Although the Hurtado court discussed problems inherent with an abuse of discretion standard of review, the court was reviewing the grant of a motion to dismiss for failure to bring an action to trial within two years under former Code of Civil Procedure section 583. (Hurtado at pp. 1024-1027.) Hurtado does not apply to discretionary custody determinations.
2. Parental Alienation
Mother argues the principles behind parental alienation syndrome have been discredited and amount to junk science. Therefore, she reasons, Liberman’s report is unreliable and should have been disregarded to support a change of custody. She acknowledges Liberman’s report does not use the term “parental alienation syndrome” but argues his recommendations bear all the significant hallmarks of this junk science theory.
In the trial court mother did not attack Liberman’s report on grounds it is based on junk science so she has forfeited the argument on appeal. “In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.] ‘The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.’ [Citations.] Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources ‘to address purported errors which could have been rectified in the trial court had an objection been made.’ [Citation.] In addition, it is inappropriate to allow any party to ‘trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.’” (In re S.C. (2006) 138 Cal.App.4th 396, 406.)
Mother next argues the court abused its discretion in arbitrarily disregarding Howell’s testimony and adopting Liberman’s recommendations. We disagree.
Significantly, both evaluators stated mother had alienated M.S. from father. Indeed Howell cited a 2007 article from the Journal of Child Custody that he referred to as the “best article written in the area of decision about alienation.” The only significant difference between Liberman’s and Howell’s opinions revolved around the degree of alienation and what to do about it. Howell opined in this case there is low level parental alienation occurring by mother and most evaluators in Orange County agree low level parental alienation does not justify a change in custody. While Liberman did not quantify whether the parental alienation in this case is low, moderate, or severe, he recommended a change in custody. Therefore he either believed the parental alienation was severe or he departed from what most evaluators in Orange County recommend. However, like Howell, Liberman recommended mother begin individual counseling and undergo a psychiatric exam and take other measures to elimination the alienating behavior.
This case boils down to competing expert testimony on the narrow issue of whether a change in custody was warranted. The trial judge credited Liberman over Howell on the issue. We will not reweigh the evidence. Resolution of conflicts in the evidence and assessment of credibility of witnesses are matters within the exclusive province of the trier of fact. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204.)
We realize the change in custody from mother to father may have been somewhat drastic for M.S. However, it was not entirely unpredictable. At the outset, Galindo concluded the prognosis for the case was guarded, because there was a moderately high risk similar allegations would surface in the future, and therefore she recommended safeguards be employed. One of those safeguards was the recommendation mother participate in therapy to help her develop discernment with respect to her fears, including a protocol to seek help if she was concerned about M.S. Mother failed to take this recommendation but instead escalated her behavior by continuing to insist with the police, SSA, and even the Irvine mayor that father was abusing M.S., even in the face of numerous investigations failing to substantiate her claims. She also persisted in believing M.S. over all the other evidence, insisting he does not lie even though he gave conflicting statements about father. A therapist may have helped mother work through these situations. Had mother taken Galindo’s recommendation seriously and began therapy in 2010, she may have recognized the harmful affect her actions were having on M.S. and on his relationship with father. With help, she may have been able to modify her behavior to prevent the outcome she now faces.
The trial court did not expressly state whether it was making orders based on the best interest of the minor or based on a significant change of circumstances since the judgment was entered in May 2013. (See Burchard v. Garay, supra, 42 Cal.3d at p. 535 [court 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].) However, absent a record indicating otherwise, we will presume the trial court applied the correct standard. (See Cueto v. Dozier (2015) 241 Cal.App.4th 550, 560.) Galindo did not conclude mother was alienating father whereas Liberman did. Thus, there was a significant change of circumstances between Galindo’s report in September 2010 and Liberman’s report in April 2015. The demonstrated change of circumstances warranted a change in custody. The trial court did not abuse its discretion in modifying the custody and visitation awards.
3. The Denial of a Continuance
Finally mother argues the court erred in denying mother’s requested continuance to allow Howell adequate time to review Liberman’s report and prepare to testify, and to allow for Liberman’s cross-examination. “As a threshold matter we recognize a trial court must be accorded wide latitude in the exercise of discretion to control and regulate its own calendar.” (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) “The granting or refusal of a continuance is a matter of discretion with the trial court and its ruling will ordinarily not be disturbed. [Citation.] While the trial court has a wide discretion in acting on a motion for a continuance, such discretion may not be arbitrarily exercised.” (Cohen v. Herbert (1960) 186 Cal.App.2d 488, 493.) We disagree the court abused its discretion in scheduling the hearing dates.
Liberman submitted his report in April 2015 and the hearing began later that month. Father’s counsel was ready to begin, but mother’s counsel had just been retained two days prior. Among other reasons for his continuance request, counsel informed the court mother was considering hiring a section 733 evaluator. The court refused a 30-day continuance expressing concern over the serious nature of the case as reflected in Liberman’s report. The court granted a two-day continuance.
Two days later mother had already hired Howell, and counsel represented Howell needed two weeks to be ready to give the court a valid and educated analysis of Liberman’s report. The court granted another continuance, this time for four days.
Four days later the parties appeared and mother’s counsel informed the court Howell was unavailable. The court trailed the matter two more days. At that point, Howell appeared and testified. Mother fails to identify for us any additional preparation Howard required. Though he gave his testimony only five days after he was retained, Howell found time to read Galindo’s report twice, read Liberman’s report, and review the best article written in the area of decisions about alienation. He also found three hours to interview related parties. Never once did Howell qualify his opinion by stating he needed additional time or resources to adequately prepare.
As to Liberman, we infer the decision to forego calling Liberman was a tactical choice. On April 28, mother’s counsel explained his ability to cross-examine Liberman would depend on his client’s limited budget. If mother wanted her counsel to cross-examine Liberman, she was free to serve him with a subpoena. While the record reflects Liberman may have been unavailable until the week of May 11, 2015, the court did not make its final order until May 20, 2015, well past his date of availability. In mother’s May 4, 2015 trial brief, she never requested one additional day of testimony to cross-examine Liberman before the court ruled.
On this record, mother has not demonstrated abuse of discretion. However, even if it was error to deny her request to continue the hearing, mother has not demonstrated any prejudice by pointing out what evidence she could have garnered had the court allowed a longer continuance. (See Cal. Const., art. VI, § 13 [judgment may not be reversed on appeal unless error caused miscarriage of justice]; see also Code Civ. Proc., § 475 [no judgment shall be reversed unless error is prejudicial, appealing party suffered substantial injury, and different result would have been probable].)
DISPOSITION
The postjudgment order is affirmed.



THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.