Filed 3/24/20 Norvell v. Norvell CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Lassen)

—-

CHARLENE LOUISE NORVELL,

Appellant,

v.

COREY RYAN NORVELL,

Respondent.

C088499

(Super. Ct. No. FL57373)

Charlene Louise Norvell (mother) and Corey Ryan Norvell (father) divorced in 2014 and the dissolution judgment provided that mother would have primary physical custody of their son L. In 2017, the trial court modified the custody orders to give father primary physical custody of L. But because both parties continued to express concern about the child custody arrangements, the matter was ultimately referred to child custody mediation and an October 10, 2018 hearing was set to review the child custody mediation report. Prior to that hearing, mother filed a request for trial setting conference and the conference was scheduled for November 7, 2018. When mother and her counsel did not appear for the hearing on October 10, 2018, the trial court issued an order that, among other things, maintained father’s primary physical custody of L. and vacated the November 7, 2018 trial setting conference.

Mother now argues the trial court erred in 2017 by modifying the custody orders without finding a change of circumstances, and it erred in 2018 by vacating the trial setting conference. Father counters that to the extent mother challenges the 2017 order, her appeal is untimely.

We conclude (1) mother’s appeal is timely because the trial court’s 2017 order was interim in nature, (2) on this limited record, we presume the trial court found a change of circumstances in 2017 when it modified the child custody orders, and (3) mother does not establish that the trial court’s order vacating the trial setting conference was prejudicial to her.

We will affirm the trial court orders.

BACKGROUND

In May 2013, mother and father separated and signed an agreement concerning custody of their son, L. The agreement provided for joint legal custody, with mother having primary physical custody 73 percent of the time and father having time with his son 27 percent of the time. In August 2014, judgment was entered dissolving the marriage and adopting the custody agreement.

On June 19, 2017, the trial court sent a letter requesting voluntary child custody mediation at Family Court Services. The record does not show what prompted the trial court to issue the letter.

On July 21, 2017, Family Court Services issued a status memorandum stating that mother and father attended child custody mediation and agreed on all but one issue. From the context of the status memorandum, it appears the parties were at odds concerning where L. should attend school. Mother had informed the father that she had decided to move to Reno and she wanted L. enrolled in a school there. Mother said she was motivated to move to Reno to put A., a younger son who is not the subject of these child custody proceedings, in a school for students with disabilities.

Mother and father appeared at a hearing on August 2, 2017, representing themselves. The trial court determined L. would attend a school in California and reside with father, and L. would reside with mother most weekends and holidays during the school year. The trial court signed an order to that effect on August 10, 2017. The order said it was a modification of existing orders and that it was not intended to be a permanent order of the court, but that it would remain in effect until further order of the court.

As both parties expressed concerns about the child custody circumstances, the trial court appointed counsel for L. and held regular review hearings over the ensuing months. As of February 7, 2018, both parties had retained counsel. After that, regular review hearings continued.

On August 15, 2018, the parties appeared before Judge Graham Cribbs, even though all other proceedings, before and after, were heard by Judge Tony Mallery. Counsel for mother orally requested to set the matter for an evidentiary hearing. The trial court advised counsel for mother to file an appropriate motion requesting a contested evidentiary hearing, and the trial court again referred the matter to Family Court Services for further child custody mediation. The matter was set for an October 10, 2018 hearing for review of the child custody mediation report.

On October 2, 2018, Family Court Services filed a report to the trial court. It summarized areas of agreement concerning exchanges of custody, summer parenting, holiday and school breaks, and videoconference between L. and A. It also summarized areas of disagreement. Mother believed L. should reside with her during the school year and with father on weekends. The mediation report recommended continuation of the current custody order with changes mother and father agreed upon.

On October 4, 2018, counsel for mother filed a request for a trial setting conference, and a trial setting conference was scheduled for November 7, 2018.

On October 10, 2018, the trial court convened to review the child custody mediation report. Counsel for father and counsel for L. appeared at the hearing, but neither mother nor her counsel appeared. The attorneys that were present explained to the trial court that the parties had signed a stipulation to continue the hearing for review of the child custody mediation report to November 7, 2018, the date of the trial setting conference. But the trial court denied the stipulation to continue the hearing for review of the child custody mediation report and noted that because mother had not received a signed order continuing the hearing, she needed to be present. The trial court issued an order that, among other things, maintained father’s primary physical custody of L. and vacated the trial setting conference. Although the interim child custody order indicated that it was not intended to be a permanent court order, the minute order indicated that a further status conference would not be set because all issued had been resolved. The trial court expressed concern about efforts to relitigate issues already ruled upon.

Mother filed a notice of appeal indicating that she was appealing from the order entered on October 10, 2018.

DISCUSSION

I

Father claims that, to the extent mother challenges the 2017 order, her appeal is untimely. He argues the time to appeal the 2017 order expired 180 days after it was entered, citing California Rules of Court, rule 8.104(a)(1)(C).

The argument lacks merit because the 2017 order was interim in nature, and mother could not appeal until the trial court expressly stated that all issues were final and there would be no further relitigation of the issues. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 559-560 [interim custody order not appealable].) Accordingly, we turn to mother’s contentions on appeal.

II

Mother asserts the trial court erred in 2017 by modifying the child custody orders without finding a change of circumstances. She argues that because father was the noncustodial parent seeking a custody change in 2017, he had the burden to prove that, due to a substantial change in circumstances, it would be in the best interest of the child to change the custody order. (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759 (Biallas).)

We presume, however, that the orders of the trial court are correct unless error is shown in the record on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) Here, the record on appeal does not show that the trial court failed to find that a substantial change in circumstances justified the modification of child custody orders. The absence of relevant points and authorities from the parties or a statement of decision from the trial court prevents our review of the trial court’s reasoning and findings leading up to the modification order. (Ibid.) Therefore, we presume the trial court made the necessary findings to support its 2017 modification of the custody orders.

The cases cited by mother all had records on appeal demonstrating that the trial courts did not employ the proper analysis. (See, e.g., Biallas, supra, 65 Cal.App.4th at p. 762.) But there is no such showing here, and we will not infer from the bare order in the record that the trial court did not perform its official duty. (See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”].)

The record also does not show that mother made the arguments in the trial court that she now advances on appeal. (See C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1491-1492 [appellate court will not consider arguments made for first time on appeal unless they raise pure issues of law on undisputed facts].) Whether there was a substantial change in circumstances was principally a question of fact. Therefore, mother cannot now claim for the first time on appeal that there was no change in circumstances.

III

Mother further claims that the trial court erred by vacating the trial setting conference. But even if the trial court erred in this regard, we will not reverse unless mother makes a showing of prejudice resulting from the asserted error. (Cal. Const., art. VI, § 13.)

Mother argues prejudice by claiming that the trial court’s “nearly monthly” review hearings required her to take time off work, obtain child care, and pay her attorney to travel to those hearings. But her argument does not address the trial setting conference or how vacating that conference caused her prejudice, and we will not speculate on this point or make the arguments for her. In any event, the record indicates that the trial court believed all issues subject to trial had been resolved and it expressed concern about efforts to relitigate issues already ruled upon. Because mother has not shown prejudicial error, her contention fails.

DISPOSITION

The trial court orders are affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/S/

MAURO, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

DUARTE, J.