Marriage of Khan and Alam

Filed 8/7/07 Marriage of Khan and Alam 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This is an in pro per appeal from two postjudgment orders in a marital dissolution case, both entered by the lower court in June 2006. One order appealed from relates to the appellant-fathers visitation rights with the couples two children and the second from a domestic violence protective order entered by the court in favor of the former wife. We affirm both orders.

II. Factual and Procedural Background

Bearing in mind our limited standard of review of the orders appealed from (to be discussed below), we will summarize only so much of this family law case as is pertinent to our review. Briefly stated, the parties were married in April 1990, and had two children, one born in 1992 and the second in 1999. The couple separated in March 2000, and the former husband, petitioner and appellant Khan, filed for dissolution in February 2002. An order dissolving the marriage was entered on July 6, 2004. Since then, however, the parties have continued to battle over custody and support of, and visitation with, the children, among other things. The court first ordered the parties to mediation over these and other issues and then appointed a child custody evaluator (Dr. Gerald Michaels) whoalbeit several years down the roadissued a report on his evaluations in June 2005. Appellant was dissatisfied with the evaluators report, and sought both to have him removed from that role and the fees paid to him by the parties returned. During this same period, the mediator, one Susan Thibodeau, also issued several reports.

After a hearing in October 2005, the Family Law Commissioner adopted the evaluators recommendations regarding custody and visitation, recommendations largely favoring respondent, the former wife. As a result, appellant moved to modify the custody and visitation arrangements in March 2006.

During this same period, respondent sought and obtained several temporary restraining orders against the other based on, e.g., alleged stalking, threatening, threats of violence, and actual violence. Most of these orders contained an exception for appellants scheduled visitation with his two children.

Appellant also secured one temporary restraining order against respondent and, additionally, filed four civil harassment cases against her and members of her family; the requested relief in all of those actions was denied.

The protective order appealed from here was triggered by a violent episode within, curiously enough, the Concord Police Department on March 1, 2006. Both parties secured orders to show cause based on this but, after a hearing on it on June 1, 2006, the court granted respondent a protective order, the second subject of this appeal.

Appellant filed a timely notice of appeal from both orders.

III. Discussion

This entire appeal can be decided substantially based on the standard of review by which we are guided on issues such as those involved here. Regarding the issue of child custody and visitation, it is an abuse of discretion standard. Our Supreme Court has made this clear at least twice in recent years, the most recent such holding being in Montenegro v. Diaz (2001) 26 Cal.4th 249, 255,^[1]where the court stated:  The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] Under this test, we must uphold the trial court ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.] (See also, to the same effect: In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 758-759; In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1342-1343; In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 479, overruled on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25, 38, fn. 10.)

We shall apply the same test to our review of the trial courts protective order inasmuch as [m]ost . . . orders in family law litigation are reviewed on appeal under the deferential abuse of discretion standard. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007)  16:208, p. 16-64.)

There was no such abuse here regarding either order.

With respect to the custody and visitation order, all the trial court did on June 1, 2006, was (1) order that counsel be appointed for the minors to supervise compliance with the order and to provide the [c]ourt with an objective third party opinion as to what is going on in the context of these proceedings, (2) order that the younger of the two children participate in therapy to facilitate visitation with father and to address issues in either household with both parties to also participate in that therapy, (3) adopted a recommendation of the court-appointed mediator regarding certain details of appellants visitation with the children, specifically regarding the time and places of exchange for appellants weekly visitation with the two children, and (4) ordered Alam not to use one of the children to conduct exchanges with the other. Otherwise, the court specifically left its prior custody orders in effect.

In briefs which, to a very substantial extent, cite to material not in the record before us and repeatedly omit citations to that record, appellant essentially repeats the factual argument he made to the trial court at the June 1, 2006, hearing. In those briefs he recites, in great detail, his versions of the sordid history of the disputes between the two parents regarding custody of and visitation with the children, their many squabbles in public and private, the alienation of the children from him that Alam reputedly fostered, the presence with her [b]oyfriend at times and places of exchanges of one of the children, etc., etc.

But, first of all, we are not a fact-finding nor even a fact-reviewing court in a case of this type. As noted above, our sole role is to determine if the trial court abused its discretion in making minor changes to its prior orders regarding appellants visitation with the two children of his marriage to Alam. It did not. It had before it both a lengthy June 2005 report and recommendations from the evaluator it had appointed several years earlier and, additionally, a May 2006 report from the mediator it had appointed. Because neither the parties nor the court were inclined to give much weight to the recommendations of the evaluator, the court properly chose, both in the June 1, 2006, hearing and earlier, to give weight to the factual recitations and recommendations of the mediator. Particularly under the painful and highly personal facts involved here, and the overriding consideration that the court place highest priority on the best interests of the children (see Fam. Code,  3011), it clearly did not abuse its discretion in so doing.

Regarding the protective order issued by the trial court following the same hearing, that court had before it a declaration of Alam plus a Concord Police Department report, all alleging abusive conduct by appellant against Alam on March 1, 2006, at the time of exchanging our children in the Concord Police Station, including appellant punch[ing] me in the left side of my chest with his fist in front of our children and yelling profanities at her in front of them. The trial court specifically relied on this evidence in entering the protective order in favor of Alam, as well it should under the Family Code provisions applicable to such orders. (See Fam. Code,  6203; 6300-6303.) There was, thus, clearly no abuse of discretion in the entry of this order, either.

IV. Disposition

The orders appealed from are affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P. J.

_________________________

Lambden, J.

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^[1] This important decision is miscited in respondents brief as 26 Cal.App.4th.