Marriage of Wax

Filed 4/12/07 Marriage of Wax CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Larry Wax (Father) appeals from an order regarding the three children of himself and his former wife, respondent Elizabeth Wax (Mother). He argues that the court abused its discretion when it made orders regarding therapy for those children. He also contends that Marin Countys local rule imposing a fee for the appearance of a court appointed mediator at a hearing is inconsistent with state law and that the practice of the Marin Family Court Services (FCS) of excluding counsel from mediation deprived him of the assistance of counsel at a critical point in the proceedings. We conclude that, although the court erred in not making therapy-related findings required under Family Code section 3190,^[1]this error was not prejudicial. We also conclude that Father waived his remaining arguments and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

In January 2006, Father and Mother separated. On April 5, 2006, Father filed a motion seeking sole legal and physical custody of the couples three children. Mother responded with a request for joint custody and, some time later, requested that the court approve a nesting arrangement, in which the children would remain in the home, and the parents would move in and out of the home according to a pre-determined custody schedule. Both parents filed evidentiary objections and both requested statements of decision pursuant to California Rules of Court, rule 632.

Prior to the June 1, 2006, hearing on Father and Mothers motions, the parents met individually with a mediator from the Marin Family Court Services (FCS). Each child also met individually with the mediator. On May 22, 2006, the mediator issued a report and made a number of recommendations. The mediator recommended that Father and Mother share joint legal and physical custody of their three children and set out a custody schedule in which the children were to live primarily with Father and were to be in Mothers custody on a set schedule.

The mediator also recommended that, [i]f any of the children are refusing visitation, this issue should be addressed with the childs therapist. Parents should work with the therapist to address this issue and alter the visitation in the most therapeutically appropriate way for the child. The mediator recommended that the oldest daughter, R., shall be in therapy with a licensed mental health professional. Mother to be included in sessions with R., as determined appropriate by the therapist. Parents shall follow any recommendations made by the therapist. The mediator further recommended that the younger two children [s]hall be assessed by a therapist as to their need for therapy. Parents shall follow any recommendations made by the therapist.

Finally, the mediator recommended that Mother not consume alcohol during her custodial time with the children, that both parents ensure adequate supervision of the children while in their care, that neither parent make derogatory comments about the other parent and that neither parent shall expose the children to any adult-related court or divorce issues.

On June 1, 2006, a hearing was held on Fathers motion for sole legal custody, on Mothers motion for possession of the familys residence, on Fathers motion for a partial sealing of the record and on mothers request for a statement of decision.

At the conclusion of the hearing, the court awarded mother and father joint legal and physical custody of their three children, ordered a custody and visitation schedule and made various other orders related to the sharing of custody. In its order, the court adopted the recommendations of the mediator, with several modifications. One such modification was that the children shall only see therapists jointly agreed to by the parties.

In a statement of reasons filed on July 14, 2006, the court explained its reasons for denying mothers request for a statement of decision and further explained why it found it in the best interests of the three children that their parents be awarded joint legal and physical custody of them.

Fathers timely appeal followed. Mother did not respond to Fathers opening brief.

III. DISCUSSION

A. Order Awarding Custody

Father challenges two specific orders made by the trial court. First, the court adopted, as part of its order, the mediators recommendation that [i]f any of the children are refusing visitation, this issue should be addressed with the childs therapist. Parents should work with the therapist to address this issue and later the visitation in the most therapeutically appropriate way for the child. Second, the court also incorporated into its order the mediators recommendation that R. shall be in therapy with a licensed mental health professional. Mother to be included in sessions with R., as determined appropriate by the therapist. Parents shall follow any recommendations made by the therapist.

Father contends that these two aspects of the courts order were an abuse of discretion because, in making these orders, the court failed to make the findings required under section 3190. Father also argues that the courts order improperly delegated judicial authority to determine the terms and conditions of visitation to a therapist.

Section 3190 provides that before a court may require parents and a minor child to participate in counseling, the court must set forth reasons why it has found both of the following: (1) The dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child. [] (2) The financial burden created by the court order for counseling does not otherwise jeopardize a partys other financial obligations. ( 3190, subd. (d).)

Father requested that the court make these findings. It did not do so.

We first consider the courts order that the parties should address a childs refusal of visitation with the childs therapist and should work with the therapist to address this issue, including altering visitation in the most therapeutically appropriate way for the child. We do not construe this portion of the courts order as a requirement that parents and a minor child participate in counseling. Rather, the order suggests the wisest course the parents might take in the event a child refuses visitation, a suggestion that is underlined by the courts use of the word should, a word that is not, in this context, mandatory. Therefore, the court did not err in making this order without findings pursuant to section 3190.

Nor does this order improperly delegate judicial authority to determine the terms and conditions of visitation to a therapist. The order is not mandatory and does not require that a therapist address a childs refusal of visitation, although it strongly suggests that this is the best course. Nor does the order require the parents to follow a visitation schedule determined by a therapist. Rather, it suggests that the parents work with the therapist and also suggests that they, in consultation with the childs therapist alter the visitation in the most therapeutically appropriate way for the child. In no way does this order permit the therapist to impose an altered visitation schedule on this family. It wisely, however, suggests that the parents work together with a mental health professional to address a childs refusal of visitation.

In contrast to the courts order that the parents should work with a therapist to address a childs refusal of visitation, the courts order that R. shall be in therapy with a licensed mental health professional is precisely the sort of order that cannot be made without the required findings set out in section 3190. The courts failure to make these findings was error.

We reverse, however, only when it is reasonably probable that the party would have obtained a better result had an express finding been made. (Cal. Const., art. VI, 13; see In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 217-218.) To the extent that there is evidence in the record from which we can infer these findings, we will do so. (Id. at p. 218.) And there is, the first being the trial courts express adoption of the mediators recommendations. Implicit in that adoption is approval of the mediators rationale for recommending therapy.

Additionally, after reviewing the record, we conclude there is ample evidence from which we can infer that, pursuant to section 3190, the dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child.

The mediator describes this family as being in the midst of a very tumultuous time. The parents are described as making some mistakes that are harmful to the children. The child who appears to have been the most disturbed by these mistakes is R. For example, Mother left R. and her friends alone and unsupervised in the middle of the night. She did not tell R. where she was going, and when R. discovered she was gone, mother lied to R. about where she had been. For his part, Father engineered a confrontation with Mother and her new boyfriend while he was with the children, a confrontation the children found disturbing.

The result of this tumult is that the children see their mother as untrustworthy and not interested in them. R., in particular, is described as clearly very angry with her parents. All of the children are concerned about Mothers drinking. Father is described by the mediator as exercising poor boundaries and exposing the children to harmful situations and information. According to mother, father was intensifying the situation and making it much worse by putting the children in the middle of their conflict, sharing divorce and court information with them, and exposing them to adult issues. Mother told the therapist that the children were having a hard time with the separation, and expressed particular concern with R.s animosity toward her.

What emerges from the record is that their parents divorce is already resulting in behavior that is not in the childrens best interests and, in particular, not in R.s interests. It is apparent from the record that the behavior the parents have displayed since they separated is behavior that, if left unchecked, poses a substantial danger to R.s well being.

As for the finding that therapy is in R.s best interest, there is ample evidence that this is the case. The parents are in agreement that therapy is a good idea. In fact, Fathers attorney told the court that the parties dont have a problem with therapy. At the time of the hearing, Father himself was already in therapy and a therapist was available for the children. Father is planning to attempt to work with a therapist with the children. It is certainly in R.s best interest for her to be express her concerns and anger to a professional who can assist her in negotiating the difficult terrain created by her parents divorce.

As for the finding that therapy does not impose a financial burden on the family, Father himself is in therapy, has stated that he will work with a therapist for the children, and already has a therapist available for the children. From this evidence, we infer that therapy does not pose a financial burden to Father.

Under these circumstances, therefore, we conclude that the omission of findings was harmless. (In re Marriage of Carlsen, supra, 50 Cal.App.4th at p. 218.)

B. Marin County Local Rule 6.32.D

Father argues that Marin County Superior Court rule 6.32.D improperly imposes a fee or charge for the exercise of the right to cross-examine a court appointed mediator and makes a general challenge to this rule. This issue, however, has been waived.

On May 26, 2006, five days before the hearing on his motion seeking sole legal and physical custody of his three children, Father filed a document entitled Demand for Cross-Examination of Reporting Mediator at Hearing. No opposition was filed to this demand, nor was any date set for a hearing.

At the June 1, 2006, hearing, the court made clear that it had not received this document and was unaware that father had requested that the mediator be present at the hearing, or that father had any issue with the locally imposed fee for the mediators presence. The court stated that this request affects the ability to go forward on the custody and visitation issue.

Nevertheless, the parties did go forward. In fact, at the June 1, 2006, hearing on Father and Mothers various motions, there was extensive discussion of the parties positions, and apparent agreement that neither Father nor Mother wished to return to the court appointed mediator. At the conclusion of this discussion, the trial court asked counsel what they wanted to do going forward. It explained: In other words, today, when I get off the bench I dont want to have a bunch of questions about what this was all about. I want to be able to say, okay, I believe the parties have agreed they do not want to continue the matter to have Ms. Diefenbach (the mediator) come in to court and testify as to her report, but instead the parties believe they themselves can work out the visitation issues. Is that true? (Emphasis supplied.)

Counsel for Father responded: I believe we'll be able to work out the visitation issues . . ., a statement we construe as acquiescing in the courts description of the parties agreement not to continue the matter to have the mediator testify. Although counsel also told the court that it would be quite difficult to adhere to the visitation schedule set out by the mediator, at no time did he ask the court to continue the matter to have the mediator testify regarding her report, or for the court to consider Fathers objections to the mediation fee or the mediation process in general.

In its Statement of Reasons filed on July 14, 2006, the court specifically stated that [a]t the law and motion hearing on 06/01/06 neither counsel requested an evidentiary hearing regarding the mediators recommendation . . . . The court further stated that the matter [was] submitted on the pleadings and the FCS recommendations . . . .

It is a general rule of appellate review that arguments waived at the trial level will not be considered on appeal. This rule is founded on considerations of practical necessity in the orderly administration of the law and of fairness to the court and the opposite party (5 Cal.Jur.3d, Appellate Review,  480, pp. 117-118). (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122.) Thus, [a] party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do . . . . (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 .)

We conclude that, by agreeing to go forward without cross-examining the mediator, Father abandoned his earlier demand for cross-examination of reporting mediator at hearing and also any objections he had to the procedure whereby a fee was imposed for the mediators attendance at the hearing. This issue has, therefore, been waived on appeal.

C. Exclusion of Counsel From Mediation

Father argues that the exclusion of counsel from participation in mediation proceedings is a violation of his due process rights. This issue has also been waived.

At the June 1, 2006, hearing, father requested that the mediators recommendations be stricken because counsel was not permitted to accompany him to the mediation. He also requested a new mediation in which counsel was so permitted and that his counsel be permitted to accompany him to the mediation. The court responded: None of that is before me because I dont have those pleadings.

Counsel responded right and then made a general complaint about the mediators technique of interviewing the parties separately.

Consistent with its statement that issues regarding the mediation were not then before it, and its offer to counsel to continue the hearing should Father wish to have those objections heard, the court made no order regarding the mediation proceedings. Accordingly, we conclude that Father abandoned this issue and, therefore, that it has been waived on appeal. (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli, supra, 94 Cal.App.3d at p. 122.)

IV. DISPOSITION

The order appealed from is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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