Filed 12/19/19 Nemcik v. Krippendorf CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TANYA NEMCIK,

Plaintiff and Appellant,

v.

BRIAN KRIPPENDORF,

Defendant and Respondent.

A155855

(Contra Costa County

Super. Ct. No. MSD09-01592)

Appellant Tanya Nemcik (appellant) appeals from the trial court’s denial of her motion to vacate two custody and visitation orders as to her two children with respondent Brian Krippendorf (respondent). We affirm.

BACKGROUND

Appellant and respondent have two children together, boys born in April 2006 and January 2008. Appellant filed a complaint to establish respondent’s parental relationship in March 2009; appellant requested joint legal custody and sole physical custody of the children. In July 2009, the trial court awarded temporary physical custody to appellant, and respondent was permitted visitation and ordered to pay child support. Court orders in September and October 2009 made some adjustments to respondent’s visitation and provided for limited weekend custody. The October order directed, “There shall be a full custody evaluation for the minor children.”

Following a December 2009 hearing, the court appointed Dr. Nancy Olesen under Evidence Code section 730 to conduct an expert child custody evaluation. In September 2010, Dr. Olesen produced a detailed report and recommended that custody be awarded to respondent. Among other things, she opined appellant was suffering from a “delusional disorder” that resulted in appellant making various unfounded accusations regarding respondent.

On September 16, 2010, in light of Dr. Olesen’s report, the trial court awarded “temporary” physical custody of the children to respondent and permitted appellant to have supervised visitation, pending a recommendation conference. In November 2010, the parties agreed to a stipulated order on custody and visitation. The stipulated order largely adopted Dr. Olesen’s recommendations. Among other things, respondent was awarded sole physical custody, appellant was limited to supervised visitation one day a week, and appellant agreed to receive therapy and attend parenting classes. The trial court made the stipulated agreement an order of the court.

In February 2012, respondent filed a motion seeking child support and arrearages for expenses. In April, appellant requested modification of the trial court’s custody and visitation order; she requested joint physical custody and unsupervised visitation. Following a hearing in August, the trial court issued an order that directed appellant to pay arrearages for child support and other expenses, and the court denied appellant’s request to modify the custody and visitation order.

Appellant filed an appeal claiming, in relevant part, that the trial court erred in denying her request to modify custody and visitation “on the basis that she failed to show changed circumstances and without consideration of the best interests of the children.” (Thompson v. Krippendorf, supra, A136031, at p. *4.) In a decision filed on June 25, 2013, this court agreed, reasoning the November 2010 stipulated order was not clearly intended to be a final custody determination. (Id. at p. *7.) This court remanded with directions that the trial court reconsider appellant’s request to modify custody and visitation under the best interest standard, without requiring appellant to show changed circumstances. (Id. at p. *9.)

While the appeal was pending, the litigation continued in the trial court. Respondent filed a request for a restraining order in December 2012. In March 2013, a family court mediator recommended that respondent have sole legal and physical custody of the children and that all visits by appellant be supervised. Mother requested a trial on the custody and visitation recommendations. The trial court adopted the recommendations on a “temporary basis.” Trial was set for September 2013 on both respondent’s request for a restraining order and appellant’s challenge to the custody and visitation recommendations.

In July 2013, following this court’s June 2013 decision in Thompson v. Krippendorf, supra, A136031, the trial court held a hearing on a request appellant made for a new custody evaluation. The trial court’s register of action states that the court denied the request, and the register of action also states, “The court does not find that it would have been in the best interest of the child to have custody changed from the prior orders.” (Capitalization omitted.) The register of action also reflects that the court adopted the March custody and visitation recommendations “on an interim basis.” (Capitalization omitted.) The court scheduled trial for September; the register of action states, “the trial will be about the custody recommendations and the DV request of father.” (Capitalization omitted.)

The trial on custody and the restraining order took place on October 17, October 29, and November 25, 2013. At the outset, the trial court stated, “We are here on Mr. Krippendorf’s request for restraining order as well as Ms. Nemcik’s request to modify the recommendations that I adopted by the family court services mediator.” At the conclusion of trial, the trial court granted respondent a restraining order and adopted the March 2013 custody and visitation recommendations. The court stated, “And based on all the evidence I will find it’s in the best interests of the children to adopt the recommendations for the parenting plan as outlined by” the mediator. The court continued, “So I am continuing the supervised visits and the recommendations by [the mediator] and finding those to be in the children’s best interests and making it a permanent order under Montenegro[ ] so that any future order Mom has to show a change in circumstances.”

The trial court’s determinations were not included in a formal written order until October 2014, apparently due to respondent’s counsel’s delay in preparing the order. The October 2014 order granted sole legal and physical custody of the children to respondent and granted appellant supervised visits with the children of “up to six hours per week.”

In May 2018, appellant filed a motion to vacate the trial court’s orders of November 16, 2010 and October 6, 2014. In September 2018, the trial court denied the motion to vacate. Appellant filed a notice of appeal.

In the same order in which the trial court denied appellant’s motion to vacate, the court also concluded appellant had “established [a] prima facie case for a change of circumstances” and scheduled trial “on th[e] issues of custody and visitation.” The trial concluded in May 2019. The trial court continued sole legal and sole physical custody with respondent, but increased appellant’s visitation.

DISCUSSION

Appellant contends the trial court never complied with this court’s direction to determine custody and visitation pursuant to the best interest standard. We disagree.

“Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The court and the family have ‘the widest discretion to choose a parenting plan that is in the best interest of the child.’ (Fam. Code, § 3040, subd. (b).) When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents.” (Montenegro, supra, 26 Cal.4th at p. 255.) “Although the statutory scheme only requires courts to ascertain the ‘best interest of the child’ [citations], this court has articulated a variation on the best interest standard once a final judicial custody determination is in place. Under the so-called changed circumstance rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification. [Citation.] According to our earlier decisions, ‘[t]he changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.’ ” (Id. at p. 256.) “[T]he changed circumstance rule applies ‘whenever [final] custody has been established by judicial decree.’ ” (Ibid.)

Appellant argues the November 16, 2010 stipulated order is void because she did not receive proper notice and an opportunity to be heard prior to removal of the children from her custody, because she had inadequate opportunity to be heard at the September and November 2010 hearings, and because she signed the stipulated order under duress. However, it is unnecessary to consider the merits of those contentions because appellant cites no authority that such violations could not be cured by a subsequent custody determination made after an opportunity to be heard and under the best interest standard.

Appellant asserts the trial that took place in October and November 2013 “was not a trial scheduled to uphold the appeals court order. This was a hearing on the Father’s motion for a restraining order and the Mother’s request to modify the March 14, 2013 mediator’s recommendations.” However, the June 2013 remand order from this court directed the trial court to determine custody and visitation based on the best interest standard, and appellant’s challenge to the March 2013 recommendations was directed at the precise same issues. Appellant does not explain how the fall 2013 trial failed to encompass the issues contemplated by the remand in Thompson v. Krippendorf, supra, A136031. We acknowledge the trial court’s register of action reflects that the court found in July 2013 “that it would [not] have been in the best interest of the child to have custody changed from the prior orders.” (Capitalization omitted.) But, assuming the trial court erred in making such a finding without taking evidence, the court corrected the error by conducting the trial in the fall.

Appellant asserts she was not “given notice that the trial held in October and November 2013 (which culminated in the 2014 Trial Order) was a trial that would result in ‘a permanent custody order under Montenegro.’ ” However, the trial court’s July 19, 2013 register of action states “the trial will be about the custody recommendations and the DV request of father.” (Capitalization omitted.) Appellant cites no authority she was required to receive express notice that the court would be making a “permanent” custody order, given that appellant received ample notice the court would be making a custody determination based on the evidence presented by the parties at trial.

Appellant points out that during the fall 2013 trial she requested a continuance so she could obtain the assistance of counsel, she objected she did not have enough time to issue witness subpoenas, and she objected to exclusion of a witness that was not disclosed to respondent before trial. However, the trial that took place in October and November 2013 was set in July. Appellant has not shown she had inadequate opportunity to obtain counsel and issue subpoenas, or that the trial court erred in excluding her undisclosed witness.

Finally, respondent points out that, even if the fall 2013 trial was not a proper determination under the best interest standard, the trial that ended in May 2019 was a determination of custody and visitation under the best interest standard. (See Cucamongans United For Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [“[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.”].) Because the fall 2013 trial complied with the Thompson v. Krippendorf, supra, A136031, remand instructions, we need not decide whether the appeal is moot in light of the May 2019 trial.

DISPOSITION

The trial court’s order denying appellant’s motion to vacate is affirmed.

 

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

(A155855)