Filed 6/3/20 Smedley v. Robson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
LISA SMEDLEY,
Plaintiff and Respondent,
v.
DAVID ROBSON,
Defendant and Appellant.
A155904
(Humboldt County Super.
Ct. Nos. FL160417/FL180538)
David Robson appeals from the trial court’s November 16, 2018 order granting Lisa Smedley’s request that a previously issued restraining order against Robson be changed to allow her to move with their child from Humboldt County to Southern California. Robison was prohibited from having contact with the child other than in court-ordered, supervised visitation. Smedley argues in favor of affirmance. Both parties appeared in propria persona (though Smedley was represented by counsel at oral argument). Most of Robson’s arguments are not related to the order appealed from, and none is a basis for reversal. We affirm the court’s order.
BACKGROUND
Robson’s contentions go beyond the record before us. We only will discuss those matters contained in the record that are relevant to this appeal.
I.
The Restraining Order Against Robson
Smedley, who was seeking to divorce Robson, sought and obtained from the Humboldt County Superior Court a restraining order against him dated June 20, 2018. The order prohibited Robson from having contact with Smedley or their six-year-old child (child) until June 13, 2021, and ordered Robson to stay 100 yards away from them, except as allowed for court-ordered visitation with the child. Robson was ordered to enroll immediately in a 52-week batterer intervention program and to complete it.
On July 23, 2018, the court held a hearing. Smedley asked the court to maintain supervised visitations for Robson and was amenable to Robson attending the child’s karate classes. Robson asked that they be referred to mediation and said he did not see any grounds to prohibit him from seeing the child. The court referred them to mediation and ordered them to return to court on August 8.
On August 8, 2018, Smedley and Robson appeared in court. The court asked Robson for proof that he had signed up for the 52-week batterer prevention course. Robson said he was attending a parenting class, and that he had contacted the appropriate batterer counseling program and been called back twice but, he added, “I haven’t gotten to meet with them yet.” There was also discussion of a July 30, 2018 agreement between Smedley and Robson, presumably regarding Robson’s visitations with the child; a divorce petition filed by Smedley; and division of the child’s daycare.
II.
Smedley’s and Robson’s Requests Regarding the Restraining Order
A. Smedley’s Move-Away Request and Robson’s Opposition
On September 18, 2018, Smedley filed a request that the restraining order against Robson be modified to allow her to move with the child from Humboldt County to Southern California (move away request). Smedley indicated that under the court’s order, Robson was entitled to up to two hours a week of supervised visits with the child. She requested that his visitation rights remain the same, except that his visitations occur in the county to which she was moving.
In her supporting declaration, Smedley stated that she had “full physical and legal custody” of the child, that Robson recently had been “arrested again for violation of the restraining order” and that he had a total of six criminal case numbers associated with ongoing violations. She also stated that Robson last had a visitation with the child two months earlier and had not attempted to schedule one since.
Smedley further stated that she was almost finished with her master’s degree work and had more work opportunities in Southern California. Her plan was to move to Southern California with the child to live with her “significant other,” Thomas R. Thomas R. had recently purchased a two-bedroom, two-bath house in an area that was safe and had schools that scored significantly higher than the child’s present school. Smedley stated that the child “is very much excited about [the move], even to the point that he on his own has shared with his teacher, classmates and daycare provider that he’s moving.”
Smedley also recounted recent interactions with Robson around the child’s karate class, which she contended involved Robson’s inappropriate behavior and verbal abuse, and she gave examples. She also stated that Robson had falsely accused her significant other of being a sex offender, and she attached a Department of Justice criminal history search of her significant other that did not indicate he had committed any sexual offenses.
Robson filed a responsive declaration opposing Smedley’s request for a move-away order and other documents. He stated that he and Smedley had been married for 11 years and, along with the child, were parents of a 19-year-old son. He made a series of contentions regarding Smedley, supporting some with documentation. These included that Smedley had been diagnosed with multiple mental disorders and prescribed medication in 2013; that she had attempted suicide, most recently in 2017, and had written in a suicide letter he was to have physical and legal custody of the children; and that she had had an extramarital affair from April 2016 to April 2017 with a man, Danny T., against whom a restraining order had been issued prohibiting him from contacting Robson and the two children. Robson stated that Danny T. had called him in April and August 2018 to tell him that Smedley had been “in continuous contact [with Danny T.] many, many times with trying to rekindle their relationship” and that Smedley was hoping to see him upon moving to Southern California; and that Smedley was in fact the abuser of Robson, had made false statements to obtain the restraining order and was very manipulative.
Robson also submitted in support of his opposition a declaration from his and Smedley’s 19-year-old son. The son stated he had witnessed his mother drinking alcohol “excessively” while under the influence of her prescribed medications. On one such occasion, he saw her sleeping in her bed with her child with candles lit in the room. The son further stated that “[o]n several occasions, when [Smedley] and I would argue, she would physically strike me repeatedly three or four times.” The son did “not feel that it is right that my mother was awarded sole-custody of my younger brother . . . in that there was no need for a Protective Order for [the child] restraining my father.” He further stated that he was unhappy about the proposed move because he was very close to the child and, furthermore, he was concerned about Smedley wanting to move the child to an area that was in the direct vicinity of Danny T.
Robson also submitted a declaration from Jeremy C., who stated that he had been supervised by Robson at a store until September 2018. Jeremy C. stated that the child would accompany Robson in the workplace and “always appeared content, happy and excited to spend this one-on-one time with his father.” Further, Jeremy C. had seen Smedley drop by the store several times. He had once seen her drive fast into the parking lot of the store with the child in the car, park in a handicapped parking place although she was not handicapped, and proceed to “scream” at Robson outside the store about money as shoppers watched, calling him a “loser” and telling him she had found someone, Thomas, who could take care of her. Robson did not raise his voice or argue back. On another occasion, Jeremy C. saw Smedley at the store “striking” the child. On a third occasion, he was engaged in a video call with Robson when there was a commotion; Robson told him Smedley often spanked the child and Jeremy C. then saw Smedley slap the child hard in his leg and stomach. Jeremy C. had never seen Robson show any impatience towards the child and found Robson to be patient, understanding and forgiving in their work together.
Robson asserted that Smedley’s move-away request was not in the child’s best interest, would result in irreversible detriment to the child and would make it impossible for Robson to visit him. Further, he contended Smedley was acting in bad faith in asserting her move would improve her employment opportunities because she had not provided any supporting documentation and was already gainfully employed. He asserted that the only reason Smedley was relocating was to rekindle her relationship with Danny T., despite the restraining order prohibiting Danny T. from having contact with Robson or the child.
B. Robson’s Request for an Order Terminating the Restraining Order and Smedley’s Opposition
On October 17, 2018, Robson filed a request that the court terminate the restraining order against him and give him legal and physical custody of the child. He stated that he would “make evident that [Smedley’s] Request for a Move-Away Order . . . is self-serving, fails to meet the standard of care in regard to [the child’s] best-interest and will actually place [the child] in harms [sic] way.” In his supporting declaration, Robson stated that Smedley’s move would “place [the child] in harms [sic] way as the relocation is for reasons other than the reasons [Smedley] stated in her moving papers. It is this Parties [sic] belief that [Smedley’s] only intent for relocation is in hopes of rekindling her extra-marital affair with [Danny T.] who is restrained from any and all contact with [the child].”
Smedley filed a responsive declaration in which she opposed Robson’s request. She contended that he had violated the restraining order six times and was not even ready for unsupervised visitation with the child, whom he had not visited since mid-July. She restated that her move-away request was partly to be with her significant other, stated that Robson’s contentions regarding her desire to rekindle her relationship with Danny T. were false, and repeated that she would have more work opportunities in Southern California because of her expected MBA and would be moving to a safe area and good home for the child. She further contended that her 2013 psychological diagnoses were not relevant because they were five years old, and that in 2016 Robson had entered into a joint custody agreement that had allowed her to move out of Humboldt County with the child. She further stated, “In order to assure ample visiting time for the benefit of both [Robson] as well as our son, I have offered to pay for [Robson’s] lodging for two days each time he visits with our son and because of the distance. I would raise his visiting time from two hours to four hours each day.”
C. Related Court Proceedings
On October 9, 2018, the court held a hearing on Smedley’s move-away request. At Robson’s request, the court referred the matter to mediation.
On October 18, 2018, the court held another hearing regarding Smedley’s move-away request. Robson indicated he had a response to it that he would file that day (which we have described above) and he gave Smedley a copy of it. Citing his newly filed request to modify the restraining order (which we also have described), Robson asked the court to continue the hearing and hear both Smedley’s and his requests on November 14, 2018. Smedley opposed a continuance regarding her request.
Robson also stated that he was requesting termination of the restraining order because it was not based on “good cause.” The court responded that a hearing had already been held and that it had already issued a ruling. It continued: “So you don’t get to come back and just say, well, this isn’t really helping me with custody, so I want it to go away. That’s why we have evidentiary hearing [sic]. [¶] If you’ve done all your Family Code [section] 3044 and you’ve done your 52-week batterer’s course or any other orders that have been made and you have proof of that, then we can talk about the visitation and parental time. But just because, you know, you want custody doesn’t mean you get to dismiss a judicial finding unless there is a stipulation or agreement.”
Robson responded, “No, I understand that, sir. The only reason I’m doing it back up [sic] because I felt I was not correctly heard in the last hearing when the restraining order was approved. And I think there was a misunderstanding about some of the things that were said and done. And that’s all I wanted to review.” The court replied, “Well, you can file an appeal, I suppose, if you thought that I was wrong. Which is fine.” The court then referred the parties to a court mediator to discuss Smedley’s move-away request and ordered them to return to court, all that same day.
The parties returned to court later that day after the mediator determined that further mediation would not be meaningful. Robson told the court that an administrator at the batterer counseling program he sought to enter told him it was “not normal” for him to be in that program without a domestic violence conviction and that the administrator would not allow him in the program without one. The court told Robson there had been a judicial finding that he had committed domestic violence and that the court was ordering that he be allowed to sign up for the 52-week batterer’s class referred in the order. The court scheduled a further hearing for both Smedley’s and Robson’s requests on October 29, 2018.
On October 29, 2018, the court held an evidentiary hearing regarding both requests. Smedley, Robson, their adult son and Jeremy C. all testified. The court took the matter under submission.
D. The Court’s Order Regarding Smedley’s Move-Away Request
On November 16, 2018, the court issued its four-page “Ruling on Motion for Move Away” (November 16 Order). The court stated that it had “considered the pleadings, testimony at the hearing, evidence received, as well as the statements of the parties.” It ordered that Smedley had full physical and legal custody over the child, that her home was the child’s primary residence, that the court’s June 20, 2018 orders otherwise remained in effect until Smedley moved, and that Smedley and Robson were to work with a court counselor and return to the court to address a post move-away parenting schedule.
The court further stated in the order: “In this case, there have been temporary custody orders in place after a finding of domestic violence against [Robson], giving [Smedley] full physical and legal custody of the child. Since that finding, [Robson] has been allowed supervised visits. However, because [Robson] could not afford said visits, he has not seen the child since the temporary orders were issued, nor has [Robson] attended any domestic violence classes.
[Smedley] seeks to move the child to Southern California where she has better employment opportunities and where her new partner has purchased a two bedroom, two bath home. Additionally, [Smedley] has done a comparison of schools and feels that the schools in the area that she is moving are better than the schools in Humboldt County. [Smedley] also indicates that the maternal grandfather and some maternal cousins reside approximately four hours from her new home. [Smedley] also testified that she has offered to increase visitation for the [c]hild and [Robson] and offered to pay for two nights in a hotel when [Robson] visits. Due to [Robson]’s financial limitations, [Smedley] also offered to let [Robson] take over the current lease that [Smedley] has which is less expensive than his current rent. [Robson] believed the move is due to [Smedley]’s wish to rekindle a romantic relationship in Southern California.”
The court found “that the reasons stated for the move-away are not in bad faith notwithstanding father’s position that the move away might be in bad faith.” Relying on In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess) and the factors discussed in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga), the court concluded that Smedley had the presumptive right to change the child’s residence as long as the removal would not be prejudicial to his rights or welfare and, therefore, that Robson had the initial burden of showing detriment (see Burgess, at p. 32). The court found Robson’s contentions were insufficient to meet his burden. It found that “[Robson] expressed some concerns regarding [Smedley] drinking with the [c]hild around, but the adult child that testified felt that [Smedley] would not let anything bad happen to the [c]hild if the move-away was granted. [Smedley] has indicated that she will follow the policy of ‘frequent and continuing contact’ with the [c]hild and [Robson] [See (Fam. Code, § 3020 [, subd.] (b))] as illustrated by her willingness to pay for a hotel when [Robson] comes to visit.” Furthermore, the court determined that “both parents have substantial bonds with the child and that both parents are able to care for and provide for the health, safety and well being of the child. However, [Robson] shall enroll and attend a 52-week domestic violence program pursuant to Family Code [section] 3044.”
On November 28, 2018, Robson filed a timely appeal from the court’s November 16, 2018 order. During the pendency of this appeal, Robson filed a request for judicial notice of three documents—a police report, a declaration of Jessica Winn and an unpublished opinion. We took his request under submission. We hereby deny his request. The police report and declaration of Jessica Winn were not a part of the evidence the trial court considered in issuing the order Robson has appealed from, the November 16 Order, and Robson fails to show they have any relevance to this appeal. The unpublished case Robson asks us to consider under California Rules of Court, rule 8.115(b)(1) or (2) is not admissible under those provisions because it is not relevant under the doctrines of law of the case, res judicata or collateral estoppel, and does not involve a criminal or disciplinary action affecting the same defendant or respondent in another action.
DISCUSSION
I.
Robson’s and Smedley’s In Propria Persona Appearances
Before reviewing the parties’ arguments, we note that both parties filed their briefs in propria persona. As parties appearing in propria persona, they are “entitled to the same, but no greater, consideration than other litigants and attorneys.” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638, followed in County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.) Accordingly, we disregard factual contentions that are not supported by citations to the record (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379) or are based on information that is outside the record (In re Stone (1982) 130 Cal.App.3d 922, 930, fn. 9 [transcript not in evidence before the trial court was outside the scope of the appellate court’s review]). We also disregard legal arguments that are not supported by citations to legal authority (People v. Stanley (1995) 10 Cal.4th 764, 793 [an unsupported legal point may be treated as waived]) or are conclusory (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873–874 “[a]n appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument”].)
II.
Robson’s Arguments
Most of Robson’s arguments are beyond our jurisdiction to consider. His arguments regarding the November 16 Order lack merit.
A. Arguments That Are Beyond Our Jurisdiction to Consider
Most of Robson’s arguments are regarding matters that are unrelated to the only order he has appealed from, which is the trial court’s November 16 Order granting Smedley’s move-away request. Specifically, Robson argues that “there was no threat to the child” when the court issued its June 20, 2018 restraining order prohibiting him from contacting the child except during court-ordered visitation; that the trial court “distinctly inhibit[ed] his right to due process under both the Fifth and Fourteenth Amendments of the U.S. Constitution in not considering his moving papers, supporting declarations and witness testimony” regarding his request for termination of the restraining order, and that it incorrectly advised him that he had to appeal from the restraining order in order to modify or terminate it; and that we should consider “that a Judicial Officer hearing and making a Judicial Finding of Domestic Violence involving issues under the California Code, Family Code [section] 3402 [,subdivision] (c) [and] (d) are made bias [sic] by prejudice of their preconceived opinion that is not based on reason or actual experience, but only as to their own personal thoughts which sway their discretion as to a judicial finding of domestic violence,” and, accordingly, that we should order the trial judge’s recusal from pending actions below.
Robson fails to show, and we fail to see, how his arguments are related to the trial court’s November 16 Order. The record indicates that the court’s October 29, 2018 evidentiary hearing was regarding both Smedley’s move-away request and Robson’s request to terminate the restraining order. However, the November 16 Order addressed Smedley’s move-away request only. It neither granted nor denied Robson’s request that the court terminate the restraining order and, therefore, provided nothing regarding his request to appeal from. Robson also complains, tardily in his reply brief, that after he appealed the November 16 Order, the trial court vacated a further hearing on his request for termination of the restraining order that was scheduled for January 2019. This too is unrelated to the November 16 order. Because Robson’s arguments are regarding matters that are unrelated to the order appealed from, we have no jurisdiction to consider their merits and will disregard them. (See, e.g., In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138 [“ ‘A timely notice of appeal . . . is “essential to appellate jurisdiction.” ’ [Citation.] ‘In general, an appealable order that is not appealed becomes final and binding and may not be subsequently attacked on appeal from a later appealable order or judgment’ ”].)
B. Robson’s Arguments Regarding the November 16 Order
Regarding the November 16 Order, Robson argues there was “judicial error, judicial misconduct and abuse of discretion as to the transgressions of the trial court’s iniquitous discount of care in its application of the ‘Best Interest of the Child’ standard as well as detriment to the Child.” This argument lacks merit.
1. Legal Standards
The court issued the November 16 Order taking into account relevant case law that it cited in the order. For example, the LaMusga court held that the noncustodial parent does not have to establish that a change of custody is essential to prevent detriment to children from a move planned by the custodial parent. (LaMusga, supra, 32 Cal.4th at p. 1078.) “Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody. The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.” (Ibid.)
The LaMusga court further instructed, “Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents, including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move and the extent to which the parents currently are sharing custody.” (LaMusga, supra, 32 Cal.4th at p. 1101.)
“It is well settled that the standard of review for custody and visitation orders, including move-away orders, is whether the trial court abused its discretion.” (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714.) “The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (Burgess, supra, 13 Cal.4th at p. 32.) “ ‘The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.’ ” (Kayne v. Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474-1475.) In child custody cases, “[g]enerally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) An abuse of discretion may also be found when the trial court applied improper criteria or made incorrect legal assumptions. (Ibid.) “When applying the deferential abuse of discretion standard, ‘the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
Also, an “ ‘order of the lower court is presumed correct.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore, Robson has the burden of affirmatively showing any error. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189.)
2. Analysis
Robson does not actually point out any aspects of the court’s order as an abuse of discretion. Rather, he reargues the evidence and complains that the court did not refer in its November 16 Order to all of the evidence he presented. However, under an abuse of discretion standard, we do not reweigh the evidence; rather, we look to see whether the court’s decision was arbitrary and capricious. Robson fails to show that it was. In addition, he argues that the court did not consider at all the evidence he presented in opposition to Smedley’s move-away request. This simply is not the case, as is apparent from the court’s statement that it considered all the evidence and arguments presented and by its thoughtful discussion of the evidence, including Robson’s, in its November 16 Order. Robson fails to identify, and we are not aware of, any requirement that the court refer to every piece of evidence presented to it in an order granting a move-away order.
In short, Robson fails to show the court abused its discretion in its November 16 Order.
DISPOSITION
The order appealed from is affirmed.
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
Smedley v. Robson (A155904)