Marriage of Alley

Filed 2/8/07  Marriage of Alley CA4/1

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 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Alan B. Clements, Commissioner.  Affirmed.

            Jason Alley (Jason) appeals an order reinstating to his former wife, Jessica Alley (Jessica), unsupervised visitation with their two minor children.  He contends the lower court abused its discretion because: (1) Family Code section 3030 prohibits unsupervised visitation with a person convicted under Penal Code section 273a; and (2) unsupervised visitation with Jessica is not in the children's best interests.

FACTUAL AND PROCEDURAL BACKGROUND

            Jason and Jessica, the parents of two minor children, legally separated in 2000.  Initially, they shared custody of their two sons, alternating weeks.  In 2003, the juvenile court intervened because of severe bruising on the younger son.  Although it was not known who caused the child's injuries, the court awarded Jason sole physical custody of both children and Jessica supervised visitation with each.  In 2004, the court granted Jason permission to move the children to Washington, and ordered unsupervised visitation during specified times to Jessica.  In 2005, after criminal charges for child abuse were filed against Jessica, the court again ordered that Jessica's visits with the children be supervised, and scheduled a review hearing set after her criminal trial.  A jury convicted Jessica of violating Penal Code 273a, subdivision (a) for the 2003 abuse incident.  At the custody review hearing, the court reinstated the 2004 order granting Jessica unsupervised visitation, noting on the record that the " Mother was [never] a danger to these children."

DISCUSSION

            We review an order modifying child visitation for abuse of discretion.  (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)  Under this deferential standard, we reverse only if no court reasonably could have concluded the challenged order advances the best interests of the children.  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

I

Family Code Section 3030

            Family Code section 3030 provides that, " [n]o person shall be granted .  .  . unsupervised visitation [with] a child .  .  . if the person has been convicted under Section 273a .  .  . of the Penal Code, unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record."

            Here, although Jessica was convicted of violating Penal Code section 273a, the court found she does not pose a risk to the children and stated its reasons on the record.  The judge said, " I just really never, all along, thought Mother was a danger to these children.  .  .  .  There was an isolated episode, years ago, and that's it.  .  .  .  I just don't think she presents a danger today."   The court followed the requirements of Family Code section 3030 and did not abuse its discretion by ordering supervised visitation.

II

The Determination of the Children's Best Interests

Rests in the Sound Discretion of the Trial Court

            We start with the presumption that the appealed order is correct, and " all intendments and presumptions are indulged in favor of its correctness."   (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)  Furthermore, " [t]he burden of demonstrating error rests on the appellant.  [Citation.]"   (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)

            This is particularly true when, as in this case, the appellant " did not request a statement of decision or findings of fact.  Under these circumstances, all intendments favor the ruling below [citation], and we must assume that the trial court made whatever findings are necessary to sustain the judgment.  [Citation]."   (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, superseded by statute on another ground as noted in In re Zacharia D. (1993) 6 Cal.4th 435, 448.)

            Visitation orders may be modified when in the best interests of the children.  (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)  To determine the best interests, the court is allowed the " widest discretion."   (Fam. Code, § 3040; see also Hue v. Pickford (1950) 96 Cal.App.2d 766, 770.)  The court's determination will be disturbed only if its order exceeds the bounds of reason.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

            Here, Jason has the burden to show that the court's order is not in the best interests of the children.  All he has established is that Jessica was criminally convicted, but submitted no evidence that Jessica's unsupervised visits were not in the children's best interests.  The court was aware of her conviction, and explained she does not pose a danger to her children.  In addition, the Family Code does not require the court to state its reasons to support a best interests finding, and counsel did not request it do so.  We are unable to conclude the court abused its broad discretion in determining the best interests of the children would be served by Jessica's unsupervised visits.

DISPOSITION

            The order is affirmed.  Jessica is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

                          McCONNELL, P. J.

                                          BENKE, J.

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