Marriage of Applegate

Filed 6/30/06 Marriage of Applegate CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Mark S. Millard, Judge. Affirmed in part and reversed in part.

Kevin Barry McDermott for Appellant.

No appearance for Respondent.

Douglas L. Applegate appeals from an order that denied his application to modify custody and visitation of the couple's two minor children and awarded attorney fees to Priscilla M. Applegate.^[1] Douglas argues the fee award is not supported by the evidence, and there were procedural, evidentiary and constitutional errors in denying his application. We agree only as to the fee award.

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The parties were divorced in 1992. A judgment of dissolution awarded them joint legal and physical custody of the children. Priscilla was given primary physical custody and Douglas was awarded visitation.

In January 2004, Douglas moved for a change of custody and visitation. His supporting declaration alleged Priscilla's new husband had exposed himself to one of the children in the shower and, on another occasion, touched one of the children inappropriately. Douglas reported the alleged indecent exposure to the Orange County Child Protective Services, the sheriff and local police. Douglas also claimed other conduct of the husband (which we need not detail) made him a danger to the children, Priscilla had violated the visitation schedule, and Priscilla was inattentive in caring for the children. Priscilla requested attorney fees and costs in opposing the motion. The parties stipulated to the appointment of a psychologist, Dr. Geri Olin, to perform a child custody evaluation.

In April 2004, Douglas served extensive discovery – a notice of deposition and request to produce documents addressed to Priscilla, a notice of deposition of Priscilla's husband, 55 requests for admissions, 7 pages of form interrogatories, and a demand to produce all documents identified in response to the interrogatories. Priscilla objected and the parties were unable to resolve the dispute. Priscilla applied ex parte for a protective order appointing a discovery referee and staying discovery pending a recommendation from the referee. Douglas's counsel was notified of the application and appeared in opposition.

The trial court (Judge L. Miller) issued a protective order that stayed the written discovery, prohibited Douglas (an attorney) from conducting or appearing at the depositions, and provided Douglas could apply to lift the stay after the evaluation report was issued. Douglas filed a notice of disqualification of Judge Miller based on comments he claimed she made at the ex parte hearing (which was not reported). Judge Miller withdrew and the matter was assigned to Judge Millard.

Dr. Olin submitted her report to the trial court in August 2004. Copies were sent to counsel, apparently with the proviso that it could be reviewed by the parties but they were not to be given a copy.

At a hearing on the application, counsel for Douglas sought permission for Douglas to review the evaluation report (there seems to have been some confusion over this previously). He also requested the discovery stay be lifted to allow additional discovery concerning Priscilla's husband (no particular format was mentioned), on the ground the evaluator did not look into his background sufficiently. Priscilla opposed this, explaining her husband had been deposed and the line of inquiry now suggested had not been raised. The trial court ruled Douglas could personally review the evaluation report, but he denied the discovery request.

Dr. Olin was cross-examined about the evaluation, which was admitted in evidence but is not in the record. Based on her testimony, it appears Dr. Olin concluded it was in the children's best interest to leave primary physical custody with Priscilla. She also recommended Douglas be allowed telephone contact with the children at least two days a week. Otherwise, Dr. Olin recommended the existing visitation schedule remain unchanged. Both parents testified, along with a third party from whom Douglas rented a room and who was present during many of his visits with the children. On the fee question, income and expense declarations were filed by each side. The court declined to hear testimony and said it would decide the matter on the declarations.

After Dr. Olin testified, Douglas requested all information she had used to prepare the evaluation. Dr. Olin objected to turning over psychological test results, which were confidential. Priscilla expressed concern about Douglas contacting individuals who had provided information for the report, fearing harassment of potential witnesses. The trial court ordered Dr. Olin to make her file available save for the test results. It ordered Douglas not to contact the individuals, but said he could subpoena them to testify at the hearing. Douglas did not object to these limitations. The court also said Douglas personally could review the information but not copy or disseminate it.

The trial court found Douglas failed to show any basis for a change of custody or visitation. In a statement of decision, it said the evidence did not support the allegations of indecent exposure or improper touching by Priscilla's husband. The Department of Child Protective Services had investigated the indecent exposure charge, concluded it was unfounded, and no evidence was offered at the hearing to show otherwise. The trial court also found no evidence to support Douglas's claims that Priscilla's husband was a danger to the children, or Priscilla was unfit to have custody of the children.

The court found Dr. Olin's report and testimony were credible. Looking to the children's best interests, it concluded primary physical custody should remain with Priscilla. It found the existing visitation schedule should remain in effect, save for a slight modification to give Douglas more time during summer vacations and an overnight during the week. The court also reduced Douglas's previously unlimited telephone contact with the children to three nights a week.

On the fee application, the court found Priscilla (a nurse) did not have the ability to pay all of her attorney fees, and Douglas should contribute based on his superior earnings. It said Douglas â€