Marriage of Trepeck

Filed 3/20/07 Marriage of Trepeck CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Thomas Ashworth, Retired, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

David Trepeck (father) appeals from an order granting the request of Carole Trepeck (mother) to move with their minor children to Michigan, which the family court entered after a five-day custody trial. On appeal, father contends the court (1) denied him due process by refusing to permit him to present competent and material evidence on the issue of custody; (2) erred by quashing his subpeona of mother's therapist its entirety; and (3) erred in admitting the report of the court-appointed custody evaluator under Family Code section 216^[1]and San Diego County local rules. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Mother and father were married in Michigan in July 1993 and have two children, born in 1998 and 2000. In April 2002, mother filed a complaint for divorce in Michigan but the parties reconciled and that case was dismissed. In August 2003, the parties moved into a home in La Jolla, California.

In July 2004, father filed a petition in the San Diego Superior Court for dissolution of the marriage, requesting joint custody of the children. Days later, mother filed proceedings in Michigan to reinstate the Michigan action. Mother's efforts in Michigan were ultimately unsuccessful on appeal, and the dissolution matter proceeded in California. In November 2004, the family court ordered father and mother to share joint legal custody, set a parenting schedule, and, among other things, appointed an attorney for the minor children.

In December 2004, mother brought an order to show cause seeking an order permitting her to move to Michigan with the children, for a separate trial on her move-away request, and for an Evidence Code section 730 psychological evaluation. In January 2005, the parties stipulated to undergo such a psychological evaluation with Steven Sparta, Ph.D.^[3] They later stipulated to the appointment of Judge (Ret.) Thomas Ashworth as their judge pro tem.

Dr. Sparta completed his evaluation in October 2005, and the matter was set for trial. Shortly before trial, mother asserted her psychotherapist-patient privilege to prevent father from questioning her current or past therapists at trial. In points and authorities, she argued her agreement to permit Dr. Sparta to contact her therapists for purposes of his psychological evaluation did not waive her privilege because she had not tendered her mental condition as an issue in the proceedings, and was not claiming any privilege as to Dr. Sparta, who had conducting his own testing. She further argued that, if the court were to determine she had unintentionally waived her psychotherapist-patient privilege with her own therapists, the waiver should be construed as narrowly as possible. Father opposed mother's assertion of the psychotherapist-patient privilege on grounds she had waived it by her execution of a written authorization for release of information and her separate written consent to the Evidence Code section 730 evaluation, as well as her designation of a "team of therapists" as potential witnesses on her behalf.

Mother thereafter brought an ex parte motion to quash a subpoena served on her therapist, arguing again that her mental health was not placed at issue by virtue of the custody dispute, and that her authorization to Dr. Sparta only warranted inquiry into what he learned from his conversation with the therapist, not inquiry into the therapist's entire file or her testimony at trial. She argued her therapist's records or opinions were not made admissible merely because Dr. Sparta obtained background information from her. Mother also filed a separate written objection to production of the documents requested in the subpoena. The court granted mother's motion and quashed father's subpoena.

The matter proceeded to a five-day trial, after which time the court issued a lengthy statement of decision permitting mother to move back to Michigan with the children. It made various legal and factual findings in response to father's requested statement of decision. In part, it ruled: "In the facts of this case, the psychotherapist-patient privilege was not waived when Mother signed an authorization to permit her psychotherapist to disclose privileged information to Dr. Sparta. Mother did not place her mental state at issue in this case nor is there any indication Dr. Sparta relied on information from Mother's psychotherapist in making his report. Neither party was deemed to have mental problems that unduly interfered with a strong commitment to their parenting roles. Public policy dictates that the psychotherapist-patient privilege should only be invaded under compelling circumstances which do not exist here." The court also ruled: "This case was set by agreement as a 5-day trial. The majority of this time was consumed by the testimony of [f]ather and his witnesses. It appeared to the Court that additional witnesses would be redundant and not assist the Court in reaching a decision. The Court was also concerned that the status quo favored [f]ather so that it might be in his interest to extend the proceedings." Father timely appeals from the order.

DISCUSSION

I. Motion to Dismiss

Preliminarily, we address mother's motion to dismiss the appeal. She argues dismissal is warranted for father's failure to comply with former California Rules of Court, rule 14(a)(1)(C) (now Cal. Rules of Court, rule 8.204(a)(1)(C)); that father did not cite to evidence, i.e., testimony in the reporter's transcript or to any trial exhibits, but only to the trial court's amended statement of decision or the pleadings, and thus he cannot establish prejudicial error resulting in a miscarriage of justice. Mother asks alternatively that we treat father's appeal as a judgment roll appeal in which we presume substantial evidence supports the trial court's findings.

We decline to dismiss the appeal on mother's stated grounds. Father's appeal raises two procedural issues and a challenge to the admission of certain evidence; he does not challenge the sufficiency of the evidence supporting the trial court's factual findings, a contention that would necessitate a recitation of all material evidence supporting those findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) In his brief, father provides appropriate citations to the clerk's transcript for his recitation of mostly procedural background, and he states at the outset that only facts pertinent to his appellate issues would be included in depth. The relevant procedural history is before us and the gist of each of father's challenges is readily discernable from his brief. Also, the issues have been fully briefed on appeal by both sides. Under the circumstances, while father's brief may not make successful arguments on appeal, we do not find it to be in violation of the California Rules of Court. To the extent there are minor transgressions, we exercise our discretion to consider the merits of the appeal, disregarding factual assertions not supported by record citations. (Cal. Rules of Court, rule 8.204(e)(2)(C); Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237; Goodstein v. Cedars-Sinai Medical Center (1998) 66 Cal.App.4th 1257, 1260 & fn. 1; see Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
Because father does not challenge the evidence supporting the family court's factual findings or its order, under settled appellate principles we presume the evidence supports it, and we are bound by the family court's factual findings in its statement of decision. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881 [reviewing court starts with the presumption that the record contains evidence to support every factual finding]; Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1278 [same].) Thus, we need not treat this as a judgment roll appeal because the same result obtains under other principles. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924; Kennedy v. Taylor (1984) 155 Cal.App.3d 126, 128 [in a judgment roll appeal, the sufficiency of the evidence is not open to review; the trial court's findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court unless reversible error appears on the record].)

II. Claimed Due Process Violation

Father contends the court violated his right to due process by concluding the trial even though he had more witnesses to present. He maintains that because the matter involved custody and visitation, he had a fundamental right to a meaningful opportunity to be heard and to present all relevant evidence and examine witnesses, which outweighed the state's interest in conserving judicial resources. Father asserts there is a "reasonable probability [he] was prejudiced from the denial of the opportunity to a full hearing with all of the witnesses he had originally listed" and thus we must reverse the order. However, nowhere in his opening brief does father identify the witnesses he was assertedly prevented from calling, the nature of their testimony, and the relevance of the excluded testimony to the issues presented in the case. Nor does he set out in any reasonable detail the trial court's stated reasoning in concluding the trial within the scheduled five-day estimate.^[4]

Mother rightly points out that given his cursory arguments, father has not met his appellate burden to demonstrate a miscarriage of justice. In evaluating the effect of any errors, we are governed by article VI, section 13 of the California Constitution, which precludes reversal unless " 'the error complained of has resulted in a miscarriage of justice.' " (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) A "miscarriage of justice" occurs when it appears there is a reasonable probability that the appealing party would have realized a more favorable result in the absence of the error; probability in this context meaning merely a " 'reasonable chance, more than an abstract possibility.' "(Id. at p. 800.) Under Cassim, we are required to examine " 'each individual case to determine whether prejudice actually occurred in light of the entire record.' " (Id. at pp. 801-802.) Father has the burden of showing that the error resulted in a miscarriage of justice. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945.) In this case, the standard requires a showing that the additional testimony father was unable to present was sufficiently compelling such that there is a reasonable probability, had the court permitted it, the court would have ruled in father's favor to deny mother's move. At a minimum, we believe this would entail identifying the witnesses he sought to call, summarizing their anticipated testimony, and explaining why the evidence on which the trial court relied was so minimal or insubstantial that the additional evidence would have made a difference in the court's ruling. Father has not made any such showing.

Further, we agree these circumstances give rise to the requirements of Evidence Code section 354,^[5]requiring father to show that he made the substance, purpose and relevance of the evidence known to the trial court via an adequate offer of proof. The failure to make an adequate offer of proof to the trial court precludes appellate consideration of a claim that evidence was improperly excluded. (Evid. Code, 354; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 344-345 [party waives claim of erroneous exclusion of evidence by failing to present offer of proof of proposed testimony and its impact on the case]; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433.)
Mother refers us to the portions of the reporter's transcript of the proceedings where father's counsel attempted to make such offers of proof. On the fourth day of trial, father's counsel advised the court that she had additional witnesses, Sylvia Gordon, Kristen Rosen, and David DePottel, that she would not be able to call until after the fifth day of trial. Counsel stated Gordon, apparently the parties' therapist, was needed to provide the court with "significant information" about the period of time she saw both parents for counseling to help clarify information contained in Dr. Sparta's notes. Counsel also stated Rose would testify "concerning statements the mother made to her about why she relocated originally from Michigan to California, why she wanted to stay here, and other statements that the mother made about her family." Further, counsel stated Dr. DePottel would testify about issues father was addressing in therapy "that might have a bearing" on "alleged character defects" raised by the mother. The next day, father's counsel advised the court she needed one additional trial day to present witnesses Gordon, Rosen, and DePottel, as well as the children's therapist Dr. Volcani. Counsel stated she wanted Dr. Volcani to testify "for the limited purpose of telling the Court what, if any, recommendation he made for the father's visitation with the children in Michigan if mother's request for relocation is granted."

The foregoing offers of proof were not adequate to provide the trial court with an understanding as to the "precise testimony" these witnesses would provide if they were called. (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168 [to preserve objection and demonstrate prejudice, offer of proof must contain "precise testimony" that would have been presented, not just names of witnesses and purpose of testimony].) "Merely setting forth the substance of facts to be proved does not constitute compliance with Evidence Code section 354." (Ibid., citing United Sav. & Loan Assn. v. Reeder Dev. Corp. (1976) 57 Cal.App.3d 282, 294; see also People v. Brady (2005) 129 Cal.App.4th 1314, 1332 [offer of proof " 'must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued' "]; McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1059, 1073-1074.) This gives the trial court an opportunity to change its ruling and provides the appellate court the content of the proposed testimony so that it can assess potential prejudice. (See Gutierrez v. Cassiar Min. Corp. (1998) 64 Cal.App.4th 148, 162; People v. Whitt (1990) 51 Cal.3d 620, 648.) Because his offer of proof lacked the requisite specificity, we have no ability to assess potential prejudice, and thus we hold father effectively waived his challenge to the court's decision to conclude the presentation of witnesses.

III. Psychotherapist-Patient Privilege

Father contends the court erred in quashing the subpoena of mother's treating therapist who spoke with Dr. Sparta in connection with the parties' Evidence Code section 730 psychological evaluation. Relying on Roberts v. Superior Court (Weist) (1973) 9 Cal.3d 330, 341 (Roberts) and In re Lifschutz (1970) 2 Cal.3d 415,^[6]he argues mother's release permitting her therapist to speak with Dr. Sparta put her on notice that information relevant to custody would be shared with him, and that once statements were revealed to Dr. Sparta, they were no longer confidential. He maintains the court's quashing of the subpoena in its entirety was too broad and denied him an ability to cross-examine the therapist about the information she assertedly provided to Dr. Sparta; that the court "should have looked at the evidence and determined what was relevant to the issue at bar" and that under Lifschutz an appropriate protective order could have been issued to ensure the information was kept within the confines of the litigation. Father does not provide us with any information about Dr. Sparta's testimony concerning his conversations with mother's therapist, and he cites to no offer of proof as to the substance or relevance of the therapist's testimony. Father merely asserts, "It is likely that some of that information would have been relevant to the issue before the court."

We review the superior court's discovery orders under an abuse of discretion standard. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.) Where there is a basis for the trial court's ruling and the ruling is supported by substantial evidence, we will not substitute our opinion for that of the trial court. (Ibid.) The trial court's determination will be set aside only if it is shown that there was "no legal justification" for the order. (Ibid., quoting Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; see also Velez v. Smith (2006) 142 Cal.App.4th 1154, 1160-1161 [" ' " 'Discretion is abused whenever . . . the court exceeds the bounds of reason, all of the circumstances before it being considered.' " [Citation.] . . . "A trial court's exercise of discretion will be upheld if it is based on a 'reasoned judgment' and

complies with the ' . . . legal principles and policies appropriate to the particular matter at issue' " ' "].) The trial court's ruling is presumed to be correct and "the burden of demonstrating error rests on the appellant." (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632 and cases cited therein.)

Father's contentions fail for several reasons. In part, they were forfeited by failing to raise them below. Father's subpoena sought not just testimony from mother's therapist about her conversations with Dr. Sparta or documents relating solely to those communications as he suggests in his appellate brief, but the therapist's "entire file regarding [mother], including, but not limited to, all notes, memos, test results and reports" on grounds mother's "emotional health . . . and the reasons for moving to Michigan are issues to be considered by the court." In opposing mother's motion to quash in the trial court, father did not seek to narrow the scope of the subpoena to mother's therapist, nor did he propose a protective order to limit the disclosure or avoid unreasonable intrusions into the psychotherapist-patient relationship, as father now urges the trial court should have done. Rather, his counsel argued mother had put her mental state in issue by agreeing to and participating in the Evidence Code section 730 evaluation and asked the court to conclude she had waived the psychotherapist-patient privilege in its entirety. On appeal, father acknowledges that he was not entitled to all of the records, only that the court's order was "too broad." Because father did not ask the trial court to impose reasonable limitations on his discovery request or issue an appropriate protective order under Lifschutz, supra, 2 Cal.3d at p. 415, he has forfeited his arguments on appeal that the trial court erred by failing to do so.

Father's remaining contentions are based on what he characterizes as the following principle from Roberts, supra, 9 Cal.3d at p. 341, that "[o]nce statements have been revealed to third persons in a communication that is not itself privileged they are no longer confidential." He asserts the question at hand in view of this principle is "whether the privilege may be claimed at all once the communication is no longer confidential." We answer the question in the affirmative.

The principle on which father relies pertaining to statements made to third persons (here, presumably the statements made by mother's therapist to Dr. Sparta) does not authorize father's broad subpoena or an all encompassing waiver of the statutory psychotherapist-patient privilege. (Evid. Code,  1012, 1014.) To the contrary, Roberts provides support for the trial court's ruling that mother's authorization, and her therapist's communications to Dr. Sparta in connection with his evaluation, did not result in such a broad waiver. In Roberts, defendants in a personal injury action subpoenaed all of the plaintiff's medical records, including of her psychotherapist, who refused to release the records. (Roberts, supra, 9 Cal.3d at pp. 334-335.) Plaintiff had received psychiatric treatment prior to the automobile accident at issue. (Id. at pp. 333-334.) After reports of plaintiff's psychotherapeutic treatment were revealed via the other medical records obtained by defendants, the defendants successfully moved to compel their production under a protective order. (Id. at p. 335.)

On review, the California Supreme Court held a peremptory writ should issue barring discovery of those records. (Roberts, supra, 9 Cal.3d at p. 335.) In arguments akin to those made by father here, the defendants argued the exchange of the psychotherapist's reports with the other medical doctors constituted a waiver of the psychotherapist-patient privilege, as did a consent form provided by defendants' insurance carrier in which plaintiff authorized the release of "medical history, physical condition and treatment" rendered to her. (Id. at p. 341.) The court disagreed. First, it explained the patient is the holder of the statutory privilege, and that a psychotherapist has no power to waive the privilege absent the patient's consent. (Ibid.) Thus, the provision of reports by plaintiff's psychotherapist to her treating physicians was not deemed a waiver. Further, the court held the plaintiff's execution of the form release did not authorize such a waiver: "The waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences. [Citation.] Accordingly, a form consent by the patient-litigant waiving her privilege is to be strictly construed against the insurance company supplying the form so that the waiver encompasses only that which clearly appears on its face." (Id. at p. 343.) The court held the consent form, which referred only to records regarding the plaintiff's "physical condition" and "medical history," did not authorize release of records of plaintiff's mental condition or apply to past psychiatric treatment, and was thus insufficient to inform the plaintiff that she was authorizing an investigation into her past psychiatric treatments. (Ibid.) "The language of the consent form, plus the circumstance of its having been signed only six days after petitioner's accident involving physical injuries, would thus lead one in petitioner's position to believe that the authorization would apply only to reports and records regarding injuries resulting from the particular accident under investigation by the insurance company which obtained the consent. Therefore, the consent form was insufficient to constitute a waiver of petitioner's psychotherapist-patient privilege." (Ibid.)

Roberts does not support father's claim on appeal that mother waived her psychotherapist-patient privilege in its entirety at least for purposes of requiring compliance with his broadly crafted subpoena by executing the release permitting her therapist to speak with Dr. Sparta. The "Release of Information" provision in the parties' Stipulation for Psychological Evaluation and Order reads: "Both parties shall immediately sign any and all releases requested by the evaluator, either for themselves individually or for the children, to enable the evaluator to gather information and/or to permit the evaluator to speak with other persons including, but not limited to, other mental health professionals who have been involved with either party or with the children. Counsel for the minor children . . . may execute releases on behalf of the children. The parties acknowledge that they have been advised that the psychotherapist-patient privilege does not apply to the evaluation." (Italics added.) Roberts emphasizes that a waiver of an important right must be voluntary and knowing, with sufficient awareness of the likely consequences of the waiver. The language of the parties' stipulation acknowledges mother waived the privilege for purposes of Dr. Sparta's evaluation, and no further. In our view, the waiver was limited to the communications between mother's therapist and Dr. Sparta, matters much more narrow than the discovery sought by father's subpoena. Any broader construction in our view "would substantially defeat the privacy afforded by the psychotherapist-patient privilege . . . ." (Roberts, supra, 9 Cal.3d at p. 343.)

In reaching its decision on mother's motion to quash, the court gave a lengthy, reasoned explanation. It acknowledged it did not have a case directly on point before it involving written permission for the evaluator to speak with outside therapists. The court said that it considered the psychotherapist-patient privilege "a strong privilege" and it "would want a very good reason" before it would interfere in a therapeutic relationship. The court further explained: "I think it's important that people in their therapy are able to be candid with the therapists and that they don't have to worry about whether that might be used in some adverse way against them. [] And for that reason, I would need something that is clear in the case law that said that that line has been crossed. I would want something that was clearer in terms of a waiver or consent that what I think is contained in these generic forms, which are really designed to protect the evaluator so that he doesn't get in trouble for contacting the therapist, that he wants to make sure that that's okay to do it and he's not invading something that way. [] I don't think it is intended to be used in the manner, that it's suggested here. I acknowledge that there's not, I think, a clear-cut case on the subject. I think it's certainly a legitimate point to bring up, and I must say I would be put to the test more if I thought that the evaluator had relied significantly on that information. . . . [] . . . And if I really thought that there was there was an indication that there was something here that was buried, that was that really dealt with what was going to turn out to be best for these children, it starts to be more tempting to bend the line a little bit. [] . . . [] And so it's not like these lines are totally bright, but in this case, when I weigh . . . what I think is the very important privilege of therapist-patient against the relevance in this particular case of getting more information from the mother's therapist, I come down on the side of the privilege. [] So I'm granting the request to quash the subpoena that went out to the mother's therapist."

Given that father at no time sought to narrow his request for documents for those concerning mother's therapist's communications, under the standards expressed above father has not shown that the trial court's conclusion as to the absence of an all-encompassing waiver, or its order quashing his broad subpoena, was an abuse of discretion. We note also that despite its ruling, at the ensuing trial, father's counsel was permitted to question Dr. Sparta extensively on a telephone report given to him by mother's therapist, the therapist's expressed observations about mother, and whether those observations were consistent with his own. At counsel's instruction, Dr. Sparta read verbatim from his notes of their conversation and explained them. Father has not addressed Dr. Sparta's trial testimony and in the absence of any further showing, even if we were to assume some error in the trial court's ruling, we would conclude father has shown no resulting prejudice.

IV. Admission of Dr. Sparta's Custody Evaluation

Father contends the family court erred by admitting Dr. Sparta's custody evaluation into evidence because Dr. Sparta assertedly engaged in inappropriate ex parte communications with the childrens' counsel in violation of section 216,^[7]and San Diego County Superior Court Local Rules, rule 5.63(G) (hereafter former Local Rule 5.63(G)).^[8] Acknowledging that Family Code section 216 may not have been in effect at the time of Dr. Sparta's evaluation, he argues: "Even if this code section was not in effect when the evaluation in the instant case began, the ex parte communication certainly could have influenced the outcome of the evaluation." Father seeks to compare this case to In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1133, in which the court of appeal reversed a child custody modification order after expressing concern about apparent ex parte communications between the minor's counsel and psychologist evaluator occurring in that case.

In response, mother points out that father stipulated to the admission of Dr. Sparta's report into evidence subject to the parties' right to cross examination him. She further points out that father's counsel asked Dr. Sparta at trial to read notes of his communication with the childrens' counsel,^[9]but did not thereafter object, move to strike Dr. Sparta's report or testimony, or otherwise take any corrective action in response. She asserts there was no violation of former local rule 5.63(G), which expressly authorized this communication for purposes of Dr. Sparta's evaluation, or Family Code section 216 because the statute is not retroactively applied to his conduct. Finally, she argues that any error, if we assume it, was clearly harmless because there was nothing in the communication that Dr. Sparta had not heard repeatedly from other sources, and the childrens' counsel's comment was favorable to father.

We first address the appropriate standard of review. Characterizing the issue as one involving compliance with a local rule of court, Father maintains we should review his contention de novo as a question of law. We disagree. Appellate review of a trial court's evidentiary rulings is under the abuse of discretion standard, as trial courts are vested with broad discretion in deciding the relevance and the admissibility of proffered evidence. (People v. Rowland (1992) 4 Cal.4th 238, 264; Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 519.) If in admitting or excluding evidence a trial court transgresses applicable law, the ruling will constitute an abuse of discretion. (E.g., Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 25; Velez v. Smith, supra, 142 Cal.App.4th at pp. 1160-1161.) As we explain, father has not shown any such abuse of discretion, nor has he affirmatively shown prejudice warranting reversal.
Father's theory is that Dr. Sparta's evaluation was somehow tainted by improper ex parte communications with the childrens' counsel, and its admission into evidence presumably adversely impacted the trial court's conclusion as to mother's right to move. Yet, father himself raised the conversation between Dr. Sparta and the childrens' counsel during trial for the trial court's consideration. Under the circumstances, there is merit to mother's waiver argument. Setting aside the possible application of the invited error doctrine for father having elicited the content of childrens' counsel's statements to Dr. Sparta (see Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686), father's failure to object, move to strike or otherwise point out any asserted problem to the trial court precluded any opportunity for the court to evaluate the impact of the communication on Dr. Sparta's evaluation or trial testimony and remedy any error by excluding portions or the entirety of the evaluation. Father thus forfeited the error on appeal. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)

Nevertheless, reaching the merits, father has not shown the court's admission of Dr. Sparta's evaluation to be an abuse of discretion. We reject the premise that Dr. Sparta's communications were prohibited by either former local rule 5.63 or section 216. As mother points out, the local rule in effect at the time of Dr. Sparta's evaluation (and at the time of trial) in fact permitted ex parte communication between an evaluator and attorney "at any time in the evaluation process to obtain necessary information." (Super. Ct. S.D. Local Rules, former rule 5.63(G).) The trial court could reasonably conclude Dr. Sparta's communication with the childrens' counsel occurred during the course of his evaluation, and father points to no evidence otherwise.

Mother is also correct that despite the general directive in the Family Code favoring retroactive application of changes in the Family Code ( 4, subd. (c); Velez v.

Smith, supra, 142 Cal.App.4th at pp. 1169-1170^[10]), under these circumstances section 216 is not to be given retroactive effect under section 4, subdivision (e), an exception that we conclude is applicable here. That subdivision provides: "If an order is made before the operative date, or an action on an order is taken before the operative date, the validity of the order or action is governed by the old law and not by the new law. Nothing in this subdivision precludes proceedings after the operative date to modify an order made, or alter a course of action commenced, before the operative date to the extent proceedings for modification of an order or alteration of a course of action of that type are otherwise provided in the new law." The order for Dr. Sparta's evaluation was made by the trial court and Dr. Sparta's evaluation report was prepared and offered as evidence before section 216's January 1, 2006 effective date. Dr. Sparta's communication with the childrens' counsel falls into the category of "an action on an order . . . taken before the operative date" the validity of which is "governed by the old law and not by the new law." ( 4, subd. (e).) Under these principles, we conclude his communication did not violate section 216.

Nor does In re Marriage of Seagondollar, supra, 139 Cal.App.4th 1116, relied upon by father, compel any different result. The court in Seagondollar reversed an order permitting a mother to relocate based on numerous procedural errors committed by the trial court, including the court's failure whatsoever to define the purpose and scope of the parties' Evidence Code 730 evaluation, that had a cumulative effect of depriving the father of a fair hearing. (Id. at pp. 1120, 1132 ["Virtually from start to finish, the trial court handling this matter failed to follow or evenly apply the rules and procedures governing family law matters, and by failing to do so, denied Timothy the opportunity to be meaningfully heard"].) At the close of its decision, the appellate court expressed its concern about apparent ex parte communications between the children's counsel and the evaluator, which were prohibited by Orange County local rules. (Id. at p. 1133.) However, at no time did the court of appeal indicate these communications were grounds for reversal; rather, it merely advised that it "expect[ed] these prohibitions against ex parte communications with court-appointed evaluators to be obeyed." (Ibid.) Seagondollar is inapposite and does not compel reversal in this case.

Finally, even if we were to assume Dr. Sparta's ex parte communications with the childrens' counsel did violate the above-mentioned rules and statutes, father has made no showing that it is reasonably probable he would have obtained a more favorable result absent the alleged error. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 576-583; Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at pp. 1431-1432 [prejudice standard for improper exclusion of evidence].) It is not enough to simply assert that the communication "could have influenced the outcome of the evaluation." Not having shown the probability of a different outcome, father's claim of error fails.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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^[1] All statutory references are to the Family Code unless otherwise indicated.

^[2] In his brief, father engages in a fairly detailed summary of the proceedings leading up to the custody trial. Because the issues presented on appeal involve only asserted procedural irregularities in the conduct of the trial and admission or exclusion of certain evidence, we only briefly summarize the proceedings leading up to trial.

^[3] The Stipulation For Psychological Evaluation and Order provides in part: "ADMISSION OF EVALUATOR'S REPORT: At the conclusion of the evaluation a written report shall be prepared by the evaluator, which shall be admitted into evidence without foundation at the time of any hearing relative to the issues being evaluated, subject to the right of any party to cross-examine the evaluator at the sole expense of the party who wishes to conduct the cross-examination."

^[4] Father's statement of the case on this point provides: "At the end of the five days estimated for trial, [father] stated another day would be needed to present witnesses who had been listed on his witness list, including the children's therapist. . . . The Court denied this request stating custody issues were entitled to priority."

^[5] Evidence Code section 354 provides in part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears on the face of the record that: [] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means."

^[6] Father also cites to People v. Clark (1990) 50 Cal.3d 583, but he does not provide a pinpoint cite, and we are unable to ascertain the precise principle on which he relies from that case. Clarkinvolves a psychotherapist's disclosure of threats made to third parties under Evidence Code section 1024.

^[7] Section 216 (added by Stats. 2005, c. 489 (S.B. 1088),  1 and effective January 1, 2006) provides in part: "(a) In the absence of a stipulation by the parties to the contrary, there shall be no ex parte communication between the attorneys for any party to an action and any court-appointed or court-connected evaluator or mediator, or between a court-appointed or court-connected evaluator or mediator and the court, in any proceedings under this code, except with regard to the scheduling of appointments. [] (b) There shall be no ex parte communications between counsel appointed by the court pursuant to [s]ection 3150 [authorizing appointment of counsel for minor children] and any court-appointed or court-connected evaluator or mediator, except where it is expressly authorized by the court or undertaken pursuant to paragraph (5) of subdivision (c) of [s]ection 3151 [right to interview mediator subject to section 3177 confidentiality requirement and section3182 discretion to exclude counsel from mediation proceedings]."

^[8] Former Local Rule 5.63, which was adopted as of January 1, 2005, renumbered to rule 5.10.4 as of January 1, 2006, and revised as of January 1, 2007, addressed custody and psychological evaluations. Subdivision (G) of that rule provided: "If both parties are represented by attorneys and the attorneys want to confer with the evaluator, they may schedule a time that is agreeable to the attorneys and the evaluator. The evaluator will not meet with one attorney unless the opposing attorney is available in person or by telephone. The evaluator may have ex parte contact with either attorney or party at any time in the evaluation process to obtain necessary information. Neither party or attorney may contact the mediator, except upon request of the mediator, unless the other party or attorney is present in person or by telephone. If, during the course of the evaluation, a party by oral communications with the evaluator raises issues or allegations which can influence the evaluation, the evaluator shall give the other party an opportunity to respond before completing his or her report. [] If one attorney refuses or is unwilling to meet with the evaluator, the other attorney may meet individually with the evaluator pursuant to court order upon ex parte application." (Former Local Rule 5.63(G), Consultation Between Attorneys and Evaluator.) The successor rule, rule 5.10.4(G) of the San Diego County Superior Court Local Rules, presently provides: "Communications between mediators, parties, [and] attorneys, including minors' counsel, shall be governed by the provisions of Family Code sections 216 and 1818."

^[9] Dr. Sparta read his notes as follows: "[Dr. Sparta]: Returned call to Edlene McKenzie. Recommend children stay here until decision made with no prejudice on recommendation. She made trip. Lovely place to live in Michigan. Family both sides. Father's family admit [Dr. Sparta testified this word in his note could have been "adamant"] children stay in La Jolla, His family feels mother's family influence make it difficult father to have relationship. Needs to have clearer understanding. Mother's deposition showed mother haverelationship with someone. Mother in Michigan more outgoing and assertive."

^[10] Section 4, subdivision (c) provides: " 'Subject to the limitations provided in this section, the new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, commencement of a proceeding, making of an order, or taking of an action.' The unambiguous intent of the Legislature gleaned from [section 4,] subdivision (c) is that amendments to the Family Code are intended to apply to past events unless, as specified in subdivision (b), the new law expressly provides otherwise, or the case fits into one of the particular exceptions enumerated in the remainder of section 4." (Velez v. Smith, supra, 142 Cal.App.4th at pp. 1169-1170.)