Holstrom, Block & Parke and Ronald B. Funk for Plaintiff and Appellant.

Law Office of Luis E. Lopez and Luis E. Lopez for Defendant and Respondent.

Delon Johns (father) appeals the trial court’s order denying his request for modification of a prior custody and visitation order regarding his son, I.J. (the child). He contends the order must be reversed because the court erroneously admitted hearsay evidence over his objections and then relied on this inadmissible evidence in determining the prior visitation orders were not working. We reject his contention and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. History of the Parents’ Custody and Visitation Battles.

In November 2008, father filed a petition to establish a parental relationship with his three-month-old son, after Talia Johnson (mother) moved out of state with the child. In response, mother requested, and the trial court ordered, genetic testing to determine paternity. Paternity was established, and the court found that mother intentionally kept the child from father by moving to Georgia, and father is the parent most likely to facilitate a relationship between the child and the other parent. Thus, father was granted primary physical custody, the parties were awarded joint legal custody, and they were required to set up a webcam in their homes to facilitate daily visitation. Mother returned to California, and both parents were ordered to enroll in coparenting classes.

In 2010, at mother’s request, an Evidence Code section 730 (section 730) evaluation was conducted by Teresita Guerrero-Cottrell, Ph.D. Dr. Guerrero-Cottrell recommended that mother be granted primary physical custody and both parents share legal custody. Based on the evaluation, the parties stipulated to modify the trial court’s prior order. Nonetheless, the parties continued to litigate custody and visitation in 2012, 2013, 2015, and 2016.

B. Current Custody and Visitation Order.

On or about June 27, 2017, mother requested a change in visitation and the child’s residence. In response, father requested “full Summer, Thanksgiving and Christmas breaks with [the child].” He explained that he had been denied visitation during the second and third weekends in August when mother was in the process of moving to Colorado Springs, Colorado. He had requested visitation during the last week in August and flew to Colorado for the purpose of picking up the child on Friday, August 25, and returning to California for the weekend. However, when he refused to agree to put the child “on a plane at the end of [the] visit,” mother refused to allow him to remove the child from Colorado. Father also sought reimbursement for the cost of his trip to Colorado; he submitted copies of text correspondence with mother, e-mail exchange with mother’s counsel, flight information, and trip expense receipts.

On October 13, 2017, a hearing was held regarding custody, support, and visitation costs. The trial court ordered a section 730 evaluation, which was later conducted by Robert C. Connerley, Ph.D. In the interim, the court issued an order which, in part, provided that (1) the parents have joint legal custody, (2) each parent has access to the child’s school, medical, and dental records, (3) each parent shall keep the other informed of his or her current address, (4) the parents shall consult weekly using “Our Family Wizard” regarding the child’s health, education, and welfare, (5) mother’s home shall be considered the child’s primary residence, (6) mother has physical custody of the child, and (7) father has the child every summer, from one week after school ends through one week before the next school year start date, and alternating school breaks.

Dr. Connerley’s evaluation was filed on October 2, 2018. His recommendations mirrored the trial court’s October 13, 2017 order, with the addition that the court (1) clarify that the child may fly unaccompanied, (2) ban corporal punishment, and (3) authorize counseling for the child. Father disagreed with Dr. Connerley’s evaluation, and the matter was set for a contested hearing.

On January 14, 2019, the trial court granted father’s reimbursement request and ordered mother to pay the sum of $540.57, plus the $90 filing fee. Two months later, the trial court (1) denied mother’s request for the appointment of minor’s counsel, (2) reserved hearing on mother’s request for attorney fees, (3) stayed payment of father’s reimbursement request, and (4) ordered the child to be placed on an airplane to facilitate visitation.

The child spent spring break 2019 with father; however, father refused to put the child on an airplane in order to return to Colorado. On April 2, 2019, mother filed an ex parte request for emergency orders for the immediate return of the child, termination of further visitation without supervision, and an award of attorney fees to her. Because the child was returned, the court did not have to make an ex parte order; ruling on mother’s remaining requests was reserved.

On June 12, 2019, a court trial on the issue of custody and visitation was held at father’s request because he disagreed with Dr. Connerley’s evaluation. Father sought to rely upon “old information” dating back to 2011; however, the trial court refused to address issues previously ruled upon and identified the sole issue as being a change in custody from mother to father. The court took judicial notice of the section 730 evaluations.

Father called the paternal grandmother (grandmother) as a witness. She testified that during the summer of 2018, she heard mother tell the child that she did not have enough money to buy him a birthday present, and she observed the child crying as if he was upset over something. Initially, the grandmother stated that she watched the child for six weeks that summer while father was in training; however, toward the end of the hearing, she was recalled as a witness and testified that it was only three weeks. Other than the summer of 2018, she claimed that she sees the child “so little.” The person who watches the child while father is at work testified that the child will cry for no reason.

Father testified that (1) mother stopped using “Our Family Wizard” as of April 26, 2019; (2) she failed to list him as the child’s parent at school; (3) the child’s grades were impacted by mother’s many relocations; (4) the child should not be on an airplane unaccompanied; (5) mother failed to provide her current address; (6) he is being alienated from the child because of limited visitation/custody, and when the child visits him, the child does not want to be there and is terrified; and (7) the court’s “one-sided judgments allow[] the separation between [him] and [his] son.” Father sought to admit the child’s standardized test scores; however, the trial court denied any scores that were not current. Likewise, the court refused to admit any evidence—including photographs—that was not current. The court refused to admit text messages and cell phone records regarding correspondence between the parties on the grounds they constitute hearsay evidence, are cumulative, and irrelevant.

Father questioned mother about their phone conversation on April 26, 2019, when she advised him to “go through [her] attorney to speak to [her].” She explained that father made unnecessary remarks that “were egging [her] on . . . to say something negative, so [she] decided just to stop all communication with [him] at that time because it was not healthy.” Father elicited testimony that mother used corporal punishment in the past; however, the trial court stated that this evidence is only relevant if it occurred after 2017. Mother admitted that father was denied visitation in Colorado in August 2017 because it was not scheduled. When asked if she talked to the child about the case, mother replied: “I only discuss with him what he brings up to me, because he has stated that [father has] shown him the court orders regarding visitation [and] discuss[ed] with him the case. And that’s it.” Mother admitted that she had not provided her most current home address, explaining it was “for security reasons” and based on father’s actions. She also admitted that she only provides father with information regarding when the child has a medical appointment, not the results of any physical examination.

After father rested, the trial court stated its tentative was to deny father’s request to change custody on the grounds of insufficient evidence. The court ruled that mother may choose the child’s schools, and the child may access a cell phone. The court narrowed the issue to “how they’re going to co-parent” in terms of communication.

Mother presented her case. At the time of the hearing, she was living in Lompoc, California, and would remain there for two years.[3] She testified that when the child visited father during the Thanksgiving break in 2018, the child begged to come home because he was alone for “five-plus” hours each day while father was upstairs asleep. On Sunday, at the end of the break, father refused to put the child on an airplane, despite the trial court’s order; the child did not return to Colorado until Wednesday. The same situation happened at the end of spring break 2019, and the child did not return home until Tuesday. The court admitted evidence that mother completed coparenting classes in 2009; however, father was kicked out of the first class for being unreasonable. Mother testified that in 2017, she had provided notice of her new address by certified mail, return receipt requested; however, father never picked up the notices from the post office. She also stated that during summer visits with father, the child did not shower regularly or brush his teeth. According to mother, father had filed at least one dozen motions over the last 10 years in order to harass her and “bleed [her] financially.”

In closing, father requested that mother stop moving or, if she has to move out of state, the child be ordered to remain in California. Father requested monthly visitation, full summer custody, the same holiday visitation schedule, shared pickup, and school information. Mother opposed monthly visitation given the distance (a five-hour drive), requested father’s visitation be supervised, and asked that the child remain with her for part of the summer. She also requested independent counsel for the child, that she be allowed to put him in counseling, and that she be reimbursed her attorney fees and the costs of airplane tickets the child was unable to use because of father’s refusal to put him on the plane.

The trial court ruled in favor of mother, ended father’s full summer custody of the child, and replaced it by limiting visitation to the second and fourth weekends of the month, from 10:00 a.m. to 6:00 p.m., in Lompoc.[4] Judgment was entered on August 30, 2019.

II. DISCUSSION

“Under the changed circumstance rule, after the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, custody modification is appropriate only if the parent seeking modification demonstrates ‘“a significant change of circumstances” indicating that a different custody arrangement would be in the child’s best interest.’ [Citation.] But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072.)

Whether we are reviewing a modification regarding custody or visitation, we apply the “deferential abuse of discretion test.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; see S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 333 [“Trial courts have great discretion in fashioning child custody and visitation orders. We, therefore, review those orders for an abuse of discretion.”].) The appellant bears the burden of demonstrating that the trial court abused its discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.)

Father’s primary contention is that the trial court erred in admitting and relying on the hearsay evidence—what the child told mother about his visits with father—in reaching its decision to limit father’s “visits to occurring only in Lompoc.” The evidence in question is as follows:

“Q. BY [MOTHER’S COUNSEL]: Did [I.J.] ever talk to you about his day-to-day activities with [father]?

“A. [MOTHER:] Yes.

“[FATHER]: Objection. Isn’t that hearsay?

“THE COURT: Well, not that first question isn’t. Go ahead.

“Q. BY [MOTHER’S COUNSEL]: What would he say were his activities?

“THE COURT: So there’s a hearsay objection for that.

“[FATHER]: Hearsay.

“THE COURT: What’s your response to the hearsay objection?

“[MOTHER’S COUNSEL]: Your Honor, it goes to the state of mind of the child and what’s actually happening.

“THE COURT: All right. I’ll overrule on the ground of state of mind. [¶] So you may answer.

[¶] . . . [¶]

“A. [MOTHER:] There was very little activity or contact between the two. [Father] would be upstairs asleep. [I.J.] would be downstairs watching . . . [¶] . . . [¶] . . . TV or doing what he wanted to do for most of the day, and he was lonely.”

Under the hearsay rule, “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated” is generally inadmissible. (Evid. Code, § 1200.) However, Evidence Code section 1250, subdivision (a), provides an exception for “evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health).” For this exception to apply, the statement must not have been made under circumstances indicating a “lack of trustworthiness” (Evid. Code, § 1252), and must be offered either “to prove the declarant’s state of mind, emotion, or physical sensation,” or “to prove or explain acts or conduct of the declarant” (Evid. Code, § 1250, subd. (a)(1), (a)(2)). “A prerequisite to this exception is that the declarant’s mental state or conduct be placed in issue.” (People v. Kovacich (2011) 201 Cal.App.4th 863, 884.)

Here, mother’s testimony regarding the child’s description of his and father’s activities—or lack thereof—was hearsay, and the trial court erred in admitting the evidence. Mother’s testimony that the child stated he was lonely was also hearsay;

however, she previously offered the same testimony without objection.[5] Although the trial court erred in admitting hearsay evidence, the error was harmless. We review the erroneous admission of evidence under the familiar state law standard of prejudice. (People v. Stamps (2016) 3 Cal.App.5th 988, 997.) “The standard for prejudice applicable to state law error in admitting hearsay evidence is whether it is reasonably probable the appellant would have obtained a more favorable result absent the error.” (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286.)

In addition to mother’s prior, uncontested testimony regarding the child being lonely, the trial court heard from the grandmother and was provided the section 730 evaluation prepared by Dr. Connerley. Grandmother testified that the child “cries a lot” and seems “like he’s upset over something.” Dr. Connerley interviewed the child, observed his interaction with both parents, and reviewed the parents’ communication via “Our Family Wizard.” Dr. Connerley opined that the child “is not alienated from either parent,” and there is no evidence the child “had been coached or otherwise exposed to alienating behaviors by either parent.” Nonetheless, the child told Dr. Connerley that he prefers to “live primarily with his mother,” and “expressed a desire to cut down his time with his father from the entire summer to just half the summer.” Additionally, the need for father’s full summer custody of the child no longer existed since mother had moved back to California, and the child was now living in Lompoc, about a five-hour drive from father’s home in Hemet.

Considering the evidence presented, the trial court explained its reasons for modifying father’s visitation: “And then on [f]ather’s access, the law dictates that we should provide frequent and continuing access. That’s in a child’s best interest. So I think that the child is struggling under the current scenario and . . . the setup that you have right now really was designed for when [m]other and [f]ather weren’t living in driving distance of each other. And I think the other thing that is crying out for attention is the fact that the child needs some counseling. [¶] So I’m going to order that the child be enrolled in counseling. . . . [¶] . . . I’m going to change [f]ather’s access. I’m going to return the [child] to the mother forthwith, because I don’t think the summers are working out right now. Instead, I’m going to allow [f]ather to have access more frequently, but to begin, it’s going to be in Lompoc so that the [child] doesn’t have to make a long drive each way. And . . . we’re going to give you something for the summer and then I’m going to set a review at some point off in late August. Because [he has] been getting about eight or ten weeks access. [¶] So I’m going to order that [f]ather can have access every month . . . in Lompoc on the second and fourth Saturdays of the month from 10:00 a.m. to 6:00 p.m. He doesn’t need to have it supervised, but he does need to exercise that in Lompoc. And then I’m going to reserve on the issues of summer access for next year, Thanksgiving, Christmas, and spring break, and any other times that might come up. I’m reserving on all of that until we get the child some counseling.”

On this record, we do not find it reasonably probable that the trial court would have reached a different result in the absence of the hearsay evidence.

III. DISPOSITION

The trial court’s order is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.

[†] The Honorable Wendy Harris, is a temporary judge of the Riverside County Superior Court, assigned pursuant to article VI, section 21 of the California Constitution.

[3] Mother’s change in residences was due to her husband being in active military service.

[4] Father’s residence is in Hemet, California.

[5] “Q. What did you observe in [I.J.]’s behavior with regards to going to that visit?

“A. He just didn't want to go. He wanted to stay home.

“Q. Did you Skype with [I.J.] during that visit?

“A. Yes.

“Q. How often?

“A. Three to four times.

“Q. Did you call him?

“A. He called me.

“Q. Every time?

“A. Yes.

“Q. And what was the child’s demeanor?

“A. He seemed anxious. He wanted to come home. All he talked about is things he wanted to do once he got home.

“Q. What did [I.J.] tell you about the visit?

“A. That they just stayed home. There were a few outings, not very many. But usually they just stayed in the house. Many times he said that [father] was upstairs and [I.J.] was downstairs by himself for most of the day, and he was lonely.” (Italics added.)