Filed 9/21/18 Marriage of McCracken-Dobson and Dobson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment and order of the Superior Court of Orange County, David S. Weinberg, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Donna McCracken-Dobson, in pro per; Keith E. Dolnick, and Merritt McKeon for Appellant.[1]

Seastrom, Seastrom & Tuttle, Thomas W. Tuttle, Mikita A. Weaver; Greines, Martin, Stein & Richland, and Marc J. Poster for Respondent.

Donna McCracken-Dobson appeals from the trial court’s order denying her motion to stay a final custody hearing pending the outcome of a contempt trial. Donna contends the court abused its discretion in denying her stay motion, arguing the court’s denial violated her of her Fifth Amendment right against self-incrimination.[2] For the reasons set forth below, we find no basis to overturn the court’s order and therefore affirm.

I

Factual background & procedural history[3]

In 2012, Donna petitioned to dissolve her marriage to Robert. In February 2013, the parties stipulated to an Evidence Code section 730 custody evaluation regarding their daughter, and agreed on Dr. Duke Bussey as the evaluator. The trial court (Judge Erick L. Larsh) entered a temporary order awarding the parties joint legal custody and Donna primary physical custody.

In February 2015, Donna and Robert stipulated to the appointment of a special master, Dr. Jorge Galindo, to make custody recommendations. On October 30, 2015, “[f]inding it is in the minor child’s best interests,” the family court (Commissioner Weinberg) adopted Dr. Galindo’s recommendations over Donna’s objections. The court found there was “ample evidence of [Donna’s] conduct demonstrating her severe obstruction and alienation of the minor child resulting in the damaged relationship the minor has with her father.” He awarded Robert sole legal and physical custody, and ordered Donna have no contact with the minor child or Robert.[4]

In July 2016, Robert filed a form Order to Show Cause and Affidavit for Contempt against Donna, alleging that Donna had committed 46 violations of the court’s October 2015 no-contact order. The matter was assigned to Judge Larsh. In September 2016, attorney Dolnick appeared on Donna’s behalf, entered a general denial, and requested a jury trial. After one continuance, the parties stipulated to hold the contempt trial on November 18, 2016.

Meanwhile, as to the custody and visitation rights, Donna informed Commissioner Weinberg she was “Legally in Pro Per” on July 1, 2016. On August 17, 2016, Commissioner Weinberg found that “it remains in the minor child’s best interest to continue the present custodial orders and case plan as set forth in the October 30, 2015 order . . . .” Commissioner Weinberg reopened the case for additional evidence, asked Dr. Bussey to prepare an updated custody evaluation report, and ordered the parties to cooperate with Dr. Bussey.

On October 10, 2016, Dolnick informed Dr. Bussey that Donna would not speak with him until after the hearing on the contempt charges, “based on pleading the [F]ifth [A]mendment.” As noted above, at the time, the contempt trial was scheduled for November 18. On October 14, 2016, Commissioner Weinberg notified the parties that the final custody hearing was continued to January 6, 2017, a date that Donna had represented she would be available. On November 8, 2016, Dr. Bussey asked Commissioner Weinberg whether he should wait or proceed without Donna’s involvement. Commissioner Weinberg instructed Dr. Bussey to proceed.

On November 18, 2016, Judge Larsh granted the parties’ request to continue the contempt trial to January 13, 2017. On December 16, 2016, Commissioner Weinberg advised the parties that “Any requests of the Court in this matter should be brought formally and with proper notice. [¶] The trial date remains [January 6, 2017].” On January 5, 2017, Donna e-mailed Robert’s counsel notice of her intent to seek a stay of all proceedings pending the outcome of the contempt trial. Commissioner Weinberg was copied on the e-mail.

On January 6 Donna e-mailed Commissioner Weinberg and Robert’s counsel a declaration in support of her ex parte motion to stay proceedings. In her declaration, Donna requested to stay the proceedings pending the outcome of the contempt trial. She asserted that she would suffer prejudice by “having to [] testify or defend myself during any and all involvement in this hearing in front of Commissioner Weinberg on January 6, 2017.” Later that same day, Commissioner Weinberg held the final custody hearing. Neither Donna nor Dolnick appeared. Commissioner Weinberg noted he had received Donna’s two e-mails, but neither e-mail included a noticed motion, even though he informed the parties any requests should be brought formally and with proper notice. Dr. Galindo, Dr. Bussey and Robert then testified before Commissioner Weinberg made oral findings and rulings. Commissioner Weinberg stated that he was “gravely disappointed that Ms. McCracken-Dobson did not participate in this process in any meaningful way.” He ruled that the “evidence is overwhelming that the minor child’s best interests are served by custody being placed with father as the sole legal and physical custodian of the child.” Commissioner Weinberg also continued the no-contact order.

On February 16, 2017, a final judgment on custody and visitation issues was entered. The judgment was consistent with Commissioner Weinberg’s oral statements at the January 6 hearing. Donna timely appealed from the judgment.[5]

II

Discussion

Donna contends the trial court abused its discretion in denying her motion to stay proceedings pending the outcome of the contempt trial, arguing the court should have accommodated her request due to the pending contempt trial. Assuming, without deciding, that Donna properly noticed and submitted a motion to stay proceedings, we conclude the trial court did not err in denying Donna’s untimely motion.

Robert argues – and Donna does not dispute – that Donna’s motion to stay proceedings is effectively a motion to continue the final custody hearing. Under rule 3.1332(b) of the California Rules of Court, a party seeking a continuance of the date set for trial “must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” Here, the record establishes that as early as October 10, 2016, Donna was aware that the contempt trial might interfere with her participation in the custody hearing. On that date, her attorney had informed Dr. Bussey she planned to invoke her Fifth Amendment right against self-incrimination and therefore would not speak with him until after the contempt hearing.

On October 14, 2016, Donna was given notice that the final custody hearing was set for January 6, 2017. On November 18, 2016, Donna, represented by counsel, stipulated to continue the contempt trial to January 13, 2017. Thus, on November 18, 2016, Donna was on notice that the final custody trial would be held before the contempt trial. If Donna had any concerns about participating in the final custody hearing due to the scheduled contempt trial, she had sufficient time to seek a continuance of the trial, but she waited until January 5, 2017, the day before the final custody hearing, to request a continuance. She failed to submit a declaration setting forth the basis for the motion until 9:00 a.m. on the day of the hearing. In addition, neither Donna nor her attorney appeared in court to argue for a continuance. In contrast, Robert, Dr. Galindo, and Dr. Bussey were present and ready to proceed. On this record, we find no abuse of discretion in the court’s denial of Donna’s untimely motion to continue the final custody hearing to a later date. (See County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 783 [no abuse of discretion in denying motion for continuance where “case had been pending for over four years, the motion was not supported by written declarations, neither an officer of defendant corporation nor defendant’s attorney of record appeared, and the motion was made on the very day set for trial, while the county had brought a witness and was ready to proceed”]; see also Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 172 [trial court did not abuse its discretion in denying appellant’s request for a continuance of hearing on summary judgment motion where appellant’s counsel “failed promptly to request a continuance upon ascertaining the need therefor”].)

Even if Donna’s motion is construed as a request to accommodate her invocation of her Fifth Amendment privilege against self-incrimination in the contempt trial, we would find no abuse of discretion in the court’s denial to stay the proceedings. “The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.” (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324 (Keating); accord, Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882, 885.) “A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege. Not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding.” (Keating, supra, 45 F.3d at p. 326.) As our Supreme Court has stated: “Whatever their response to requests for accommodation of the conflicting constitutional rights of a defendant in concurrent civil and criminal proceedings, courts have consistently refrained from recognizing any constitutional need for such accommodation. Rather, the alleviation of tension between constitutional rights has been treated as within the province of a court’s discretion in seeking to assure the sound administration of justice.” (People v. Coleman (1975) 13 Cal.3d 867, 885.) As stated above, Donna was aware of possible conflicts between her privilege against self-incrimination and her participation in the final custody hearing, but waited until the last minute to request a stay. Due to Donna’s lack of diligence, the trial court did not abuse its discretion in denying her request for accommodation.

III

Disposition

The order denying Donna’s request for a stay of proceedings and the judgment are affirmed. Robert is awarded his costs on appeal.

ARONSON, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.