Filed 10/3/19 Marriage of Coleman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

In re the Marriage of MELISSA and TIMOTHY COLEMAN.

MELISSA COLEMAN,

Respondent,

v.

TIMOTHY COLEMAN,

Appellant.

F078561

(Super. Ct. No. 695439)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Valli K. Israels, Judge.

Timothy Coleman, in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

Melissa Coleman (Melissa) and Timothy Coleman (Timothy) share joint custody of their minor child. In 2018, Timothy sought sole custody, inter alia. The superior court rejected his request, finding “there is no change of circumstances warranting a change and it is in the best interests of the child … to remain in the present custodial arrangement.” Judgment was entered on October 19, 2018.

On appeal, Timothy makes several contentions. First, the court erroneously applied the changed circumstance rule; in the alternative, a material change in circumstances justified a new custodial arrangement. Second, the court should have found Melissa perpetrated domestic violence against him. Third, in view of Troxel v. Granville (2000) 530 U.S. 57 (Troxel), the challenged custody and visitation order infringed on his fundamental parental rights because, under its terms, the noncustodial parent’s right of first option for child care, a.k.a. right of first refusal, cannot be invoked until the custodial parent would be unable to care for their child for more than eight hours. Finally, the court’s statement of decision “states facts not in evidence, lists pos[s]ibilities as fact and mischaracterizes elements of the trial, every instance in favor of the mother.” (Capitalization omitted.) ,

For the reasons set forth below, we affirm the judgment.

BACKGROUND

In late 2016, following conjoint interviews with child custody evaluator Kim Underwood, Melissa and Timothy “agreed to a 2-2-3 schedule.” They acknowledged “the benefit of [their daughter] not being away from either parent for more than three days at a time” and “having access to both … parents on a frequent and consistent basis.” Their daughter was three years old at the time. The parties “also agreed to … right of [first] refusal if [the custodial parent] were to be away from the child for more than eight hours.”

On January 10, 2017, following a hearing, the superior court issued a custody and visitation order. It read in pertinent part:

“1. The following custody and visitation orders are imposed by the Court based upon the agreement of the parties.…

“2. The parties shall have joint legal and joint physical custody.

“3. The parties shall arrange care, custody, and control as they can agree and, if there is no agreement, then as follows. [¶] … [¶]

“6. The Mother shall have care, custody, and control on alternate weekends from Friday at 9 a.m. until Monday at 9 a.m.

“7. The Father shall have care, custody, and control on alternate weekends from Friday at 9 a.m. until Monday at 9 a.m.

“8. The Mother shall have care, custody, and control each Monday following the Father’s weekends from 9 a.m. until 9 a.m. Wednesday.

“9. The Father shall have care, custody, and control each Monday following the Mother’s weekends from 9 a.m. until 9 a.m. Wednesday.

“10. The Mother shall have care, custody, and control each Wednesday preceding the Father’s weekends from 9 a.m. until 9 a.m. Friday.

“11. The Father shall have care, custody, and control each Wednesday preceding the Mother’s weekends from 9 a.m. until 9 a.m. Friday. Beginning 1/11/17 [¶] … [¶]

“35. Each party shall be the child-care provider of first choice for the other if the custodial parent plans to be absent from the child for more than 8 hours. The child shall be returned to the custodial parent at the conclusion of the period of absence. [¶] … [¶]

“40. The parties are referred to Trent Tilby MFT.[ ] The focus of the counseling shall be communication. The parties shall participate and cooperate fully in the counseling at the direction of the counselor. The cost of the counseling shall be paid equally among parties.

“41. Vacate long cause date of 3/6/17. Vacate settlement conference 2/10/17.”

On May 16, 2017, Timothy filed a request for a change of visitation order. He specified:

“I request to modify the visitation exchange times for when I have our [child] and Mother is working. I request that during my visitations that I be able to have our [child] until Mother gets off work and that Mother be the person at the exchanges. [¶] … [¶]

“For the last five (5) weeks Mother has only once been at the custody exchanges and instead sends third parties to pick up our [child]. This is due to Mother’s work schedule. It is in our [child]’s best interest that during my periods of care our [child] remain with me until Mother is done with work for the day and can actually make the custody exchange times.”

Subsequently, in 2018, Timothy sought sole custody and challenged the eight-hour prerequisite attached to the right of first refusal.

On May 22, 2018, following a hearing, the court issued another custody and visitation order “based upon the recommendation of the child custody counselor” that “shall supersede all prior orders.” In addition to preserving joint legal and physical custody and the right of first refusal’s eight-hour prerequisite, the order stated:

“39. Mother agrees to attend all exchanges, if she is unavailable she will tell father when she will be available to exchange the child.”

The order “continued [the matter] to 8/14/18 … for long cause hearing on the Father’s objection to the recommendation of the child custody counselor.”

A hearing was conducted on August 14 and 15, 2018. Timothy testified he “had been living on credit and credit cards, but that’s ran out.” He borrowed money from his brother to pay rent on a three-bedroom house. The child had infrequent contact with Timothy’s mother, brothers, and sisters, all of whom lived out of state.

Timothy pointed out he regularly attended the coparenting sessions with counselor Trent Tilby but Melissa did not. Although Tilby wanted the parties to settle on the child’s school, only Timothy “had done research, made phone calls, and set up a campus visit with the director of the [private] school [he] liked ….” Melissa, who “had failed to do research” or “set up any visits,” disagreed with Timothy’s choice based on expense and distance. Her stance did not change even though Timothy offered to pay for her gasoline or, in the alternative, drive the child himself. Timothy noted Melissa attended coparenting sessions for the past “[t]wo or three months” after he agreed to pay most of the fees.

While Timothy acknowledged the current 2-2-3 custodial arrangement had been suitable “for the most part,” he was concerned about the child being in close contact with Melissa’s adult daughter Katelyn, who stayed at Melissa’s home “with some regularity.” He stated Katelyn “has issues with drugs.” The child informed Timothy that Melissa and Katelyn “got in a big fight” on February 21, 2018. After much “yelling and screaming,” Melissa “kicked [Katelyn] out of the house.” A few days later, however, Melissa “moved [Katelyn] back in.”

Timothy argued the right of first refusal’s eight-hour prerequisite was unconstitutional. He also indicated Melissa perpetrated domestic violence against him.

Melissa testified she was employed as an in-home caregiver for the elderly and disabled. Her flexible 20-hour-per-week schedule allowed her to be with the child on her custodial days and work on noncustodial days. In addition, Melissa was enrolled in junior college full time and received a $3,000 grant for the semester. She studied human services with an emphasis on gerontology and took her courses online. Melissa lived in a house with her mother (the child’s maternal grandmother), who helped pay the rent and bills. Melissa mentioned Timothy “hasn’t worked in a couple years,” she “do[es]n’t know what he’s doing for money,” and she “do[es]n’t know what he’s doing for work.”

On Melissa’s custodial days, the child interacted with her grandmother, Katelyn, Katelyn’s infant child, and other relatives. If Melissa needed to leave the house to go to the store or for a doctor’s appointment, the child stayed at home with the grandmother. Melissa believed the right of first refusal as it stood was “fair.” She reasoned:

“I think that the two-two-three is a lot of exchanging already during the week. You know, we exchange three times a week. So that right there is a lot of exchanging. I think any more than that would not be good for her, especially if it’s just for short times. It would kind of interrupt everything she’s doing when she could just stay there at home and continue playing, continue painting, continue doing her workbooks rather than break up her day to take her over for two hours with her father.”

Regarding the child’s education, Melissa wanted the child to attend public school “between [her and Timothy’s] houses.” She acknowledged Timothy “gave every opportunity to take her” to his preferred private school and “to pay [her]” for gasoline.

Melissa testified Katelyn currently lived with her paternal grandfather. In 2016, Katelyn stayed at Melissa’s house until she was kicked out for using marijuana. In June 2017, Katelyn returned to the house because she was pregnant and “had straightened up.” However, after Katelyn gave birth in November 2017, she “started going downhill.” Melissa “suspected that [Katelyn] was on something” but attributed Katelyn’s “meltdowns” primarily to her Crohn’s disease. In February 2018, Melissa and Katelyn engaged in a verbal altercation. Katelyn “snapped” and “screamed a lot of profanity” and “cuss words” but “didn’t do anything physically.” Melissa called the police, but Katelyn left before they arrived. A few days later, Katelyn reappeared and apologized. She stayed at the house until May 2018, when conflict “started up again.” Recently, Katelyn was hospitalized due to her “health problems.” As a result, until Katelyn recovered, Melissa took care of Katelyn’s infant and the infant’s father, who worked full time and at night, temporarily stayed at the house.

Underwood, a licensed marriage and family therapist who qualified as an expert on child custody issues, testified the child had positive relationships with both parents. Regarding Timothy’s request for sole custody, she opined:

“I think any time we remove a primary attachment figure from a child’s life, … we really have to look at the risk that that is going to cause for that child. And we know especially for young children that their risks are heightened because they’re kind of in the throes of development.

“And so there would be a concern if—and, again, I’ll qualify that I did this evaluation a year and a half ago, but at that time, if it was suggested to remove [Melissa], knowing what I knew, I would be concerned regarding [the child]’s regression. For [the child’s] age, you know, regression can look like … emotional meltdowns, difficulty sleeping, difficulty forming relationships, trouble eating, toileting. It could be pretty damaging. [¶] … [¶]

“So the reason why I didn’t recommend sole custody on either parent is [the child], it was clear that [the child] had a bond and a connection with both … parents. Both parents presented with concerning behaviors. They are very different…. [A]t that time it did not stand out that one was more suited than the other or one was more damaging than the other.

“I think there were concerns on both sides, and in addition to that, the main piece of that was that this child had a bond with both parents. I had the opportunity to observe the child in both homes and in my office with [the child’s] family, and … she has good relationships with both of her parents. And I understand that children, unless a parent is unable to meet their needs, they benefit from being with both parents…. [B]oth Mom and Dad have different things to offer this child, and looking at it in the entirety, that seemed like the best recommendation at the time.”

Underwood recalled she reviewed recorded footage of incidents involving Melissa and Timothy. During the first incident, which occurred on August 20, 2015, she observed Melissa “yelling, screaming at [Timothy], using profanity, and telling [him] to shut up” after he insisted “the [window] blinds needed to stay [closed].” Underwood noted Timothy was “calm” and spoke in a “normal voice.” Nonetheless, she remarked:

“There was power struggle on both ends regarding the blinds, if they’re going to stay open or are they going to stay closed. That could be viewed as provoking, if you’re doing something intentionally that you know somebody is going to have a significant reaction to. [¶] … [¶]

“… The hostility that I saw [Melissa] exhibit towards [Timothy] doesn’t necessarily make her an immediate danger. It doesn’t mean that she’s incapacitated to take care of [the] child….”

During the second incident, which occurred in October 2015, “there was a dispute [in front of the child] over a television that Mom wanted moved.” When Timothy indicated he did not want the television moved, Melissa “ma[de] a statement about putting the TV outside when [Timothy] comes home,” cried, and stated “she was crying because [the child] had a father like [Timothy].” Underwood “didn’t take [Melissa’s remark] as threatening” and “didn’t understand her to say she was going to destroy [Timothy’s] property.”

Regarding Melissa’s “aggression,” Underwood opined:

“I think the information that I had regarding Mom’s potential aggression was obviously information that came from Dad and whatever recordings I saw. In assessing for it, I also met with … her []mother. [¶] … [¶]

“I didn’t … see it as being that Mom’s an overly aggressive person. I saw it really as an unhealthy relationship that the two of them were engaged in. In speaking with [Tilby], he kind of had the same impression, that … Mom’s kind of behavior was a reaction to Dad. That he suggested that Dad probably was aware of kind of Mom’s buttons to push and there was some of that happening and Mom would respond. But I didn’t have concerns that she … generally had an aggression issue. [¶] … [¶] Obviously she had some aggression towards Dad for sure, but I didn’t have any concerns about her safety with the child, I guess. [¶] … [¶]

“I wouldn’t label it [aggressive tendencies]. I would say they had some … [aggressive tendencies] in exchanges, but I wouldn’t have labeled her as being aggressive. You know, … typically if I’m meeting with somebody that’s, quote unquote, aggressive or has anger management issues or things like that, I get some kind of sense of that in meeting with them. [¶] That’s part of my assessment is I’m trying to push those buttons to see if I can get a similar response. How does that person handle themselves with other people really being called unfavorable stuff? And I didn’t see that with her. [¶] … [¶]

“I viewed it more as … a shared dynamic…. I don’t have a recommendation for her to engage in anger management. Again, it wasn’t a behavior that I saw globally either…. I think that she kind of explained it, that she felt like she was in a pressure cooker and being overly controlled and she was kind of snapping. My words. I’m not quoting her. I don’t know that she said ‘snapping.’ And how … being able to come outside of that relationship, that it really was a nonissue for her. It was an issue that resulted from her perception that there was overcontrol.”

Regarding Timothy’s “aggression,” Underwood opined:

“I think Dad’s aggression, I would categorize it more a kind of passive-aggressive. I think that he’s very aware that he is of large stature and has … potentially a loud voice, and I think he does a good job of kind of being aware of that and managing that, but I definitely saw the potential for him to maybe push buttons or provoke, really again specifically to Mom.

“I didn’t—as with Mom, I didn’t have any examples of Dad doing this in other relationships or him mismanaging himself in other scenarios. It was, again, kind of the dynamics that I was only privy to between them. But I think his was more of a passive aggressiveness, of kind of maybe utilizing his ability to control a situation knowing that Mom is going to have a reaction to it.

“And I think Mom’s reaction was more vocal and there was no holding it together; where Dad is more passive-aggressive and would hold it together and then be able to say: Look, I’m being calm and Mom’s clearly not in control of herself. But I think there was some intention at times—not all the time, but I think … that was kind of feedback that [Tilby] had a similar perspective for. [¶] … [¶]

“One of the things that comes to mind I think that we’ve discussed is the creation of a court order that indicated [Timothy] would have—I think this is when [he] w[as] working and [he] would come home for ten days and the court order allowed certain times and a schedule during those days. And then I believe . . . [Timothy] came home indefinitely for longer periods of time and continued to follow that schedule and essentially not allow[] the child the same access to Mom.

“I think that’s an example of passive-aggressive. When I look at what’s the intention of the order, what’s the spirit of the order, that’s an example of a way to potentially manipulate or be passive-aggressive and controlling, saying, no, I’m following the order. The order says I’m home and I get her for this period of time, when there’s an understanding that the order was created with the knowledge that you come home for ten days, not for a month or a long duration of time. I think that would be an example of what I would call passive-aggressive or manipulative. [¶] … [¶]

“My understanding is Mom had been addressing concerns that [the child] was having a hard time. I think she stated one of the months that Dad had been home for 22 days and that Dad used the language of the court order to essentially have [the child] throughout that time with that small break that she would go and be with Mom for one day. That the child was decompensating, regressing, having a hard time. That [Mom] was asking Dad: When are you going to be home? When are you going to be leaving? And that Dad was not forthcoming with any information.

“I’m not presenting this as fact. I’m presenting this as what’s been represented to me. My understanding is Dad did not work with Mom to make any arrangement to resolve the issue until … Mom filed a motion with the court to get relief.”

In a tentative decision filed on September 18, 2018, the court found “there is no change of circumstances warranting a change and it is in the best interests of the child … to remain in the present custodial arrangement. Both parents shall have joint legal and shared physical custody of [the child] on a 2-2-3 schedule.” The court explained:

“Change of Circumstances [¶] … [¶]

“In the case at bar, Father’s request for modification constitutes a request for a change from joint to sole custody to Father. Therefore, Father is required to demonstrate a material change in circumstances since the issuance of the current order.

“The evidence at trial did not show a change in circumstance. Both parties agreed to the 2-2-3 at the time of Ms. Underwood’s evaluation. There was no evidence presented of a significant change that would warrant a change in custody. Both parties enjoy their time with [the child] and must set aside their differences for [the child’s] best interests.

“Best Interest of the Child [¶] … [¶]

“In the case at bar, [the child] receives love from both parents. Father appears to take a little more of an interest in her education as he is researching schools and hoping to enroll her in a private school. However, Father does not appear to have the means to enroll her in a private school. Father has not been employed for quite some time. Mother understands the importance of family in a child’s life and [the child] is given time with … grandmother, niece and even her older sister and other family members at Mother’s house. Father is alone and wishes to only have [the child] spend time with him and possibly Mother. It is in [the child]’s best interest to spend time with family other than her parents. The court also had concerns with Father’s frequent attempts to bait and provoke Mother. Father’s past behaviors of withholding information like how many days he would be visiting the child and not telling Mother when the child would be returned to her and Father’s insistence on keeping the curtains closed despite Mother’s wish for light in the home is evidence of Father’s intent to provoke Mother. Mother must also learn to control how she reacts to Father’s provocations. Mother must take the co-parenting classes seriously and learn how to respond reasonably.

“The court will keep the parties[’] original agreement in place. The 2-2-3 arrangement shall remain. The parties must only offer the child to the other parent if the parent will be absent for 8 hours. Mother should not be penalized for her efforts to improve her life by enrolling in school and working part time. It is also important that the child bond with family members. It is in the child’s best interest to have a relationship with each parent.”

The court confirmed the tentative decision on October 19, 2018.

DISCUSSION

I. STANDARD OF REVIEW
II.
“The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked.” (Ibid., citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) “A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child.” (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [“A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’”]; Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [“‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.’”].)

III. ANALYSIS
IV.
A. “Best interest” rule versus “changed circumstance” rule
B.
“In an initial custody determination, the trial court has ‘the widest discretion to choose a parenting plan that is in the best interest of the child.’ [Citation.] It must look to all the circumstances bearing on the best interest of the minor child. [Citation.]” (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31–32, italics omitted.) “In making a determination of the best interest of the child …, the court shall, among any other factors it finds relevant, consider all of the following: [¶] (a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary. [¶] (2) The other parent. [¶] (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person within whom the parent or person seeking custody has a dating or engagement relationship. [¶] … [¶] (c) The nature and amount of contact with both parents …. [¶] (d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent….” (Fam. Code, § 3011, amended by Stats. 2018, ch. 941, § 1, eff. Jan. 1, 2019.) “There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to [s]ection 3011, where the parents have agreed to joint custody ….” (§ 3080.)

“Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement. [Citation.] In recognition of this policy concern, [the California Supreme Court] ha[s] articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citations.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy. [Citation.]” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 948, 956, fn. omitted; see Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 [“‘[T]he changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test.’”].)

Timothy argues the changed circumstance rule was inapplicable because no final or permanent custody order had been entered. Even assuming, arguendo, he is correct, the statement of decision reflects the court conducted analyses under both the changed circumstance rule and the best interest rule. (See Louis Lesser Enterprises, Ltd. v. Roeder (1962) 209 Cal.App.2d 401, 412 [“[A]lternative findings are not improper.”].) Timothy does not dispute the propriety of the best interest rule. Therefore, the court’s custody ruling may still be upheld absent an abuse of discretion.

C. Custody ruling
D.
As noted, “[a] court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child.” (In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1497.) Here, we cannot find the court abused its discretion when it rejected Timothy’s request for sole custody and found “[i]t is in the child’s best interest to have a relationship with each parent.” Although Timothy expressed love for the child and was demonstrably interested in the child’s education, he was unemployed and all other members of his family lived out of state. By contrast, Melissa worked part time and had family members in the area who could look after and/or bond with the child. In addition, she was “improv[ing] her life by enrolling in school.” The court noted Timothy’s “frequent attempts to bait and provoke Mother” by “withholding information like how many days he would be visiting the child,” “not telling Mother when the child would be returned to her,” and “keeping the curtains closed despite Mother’s wish for light in the home.” It further advised Melissa “to control how she reacts to Father’s provocations” and compelled her to attend coparenting class to “learn how to respond reasonably.” We conclude the court reasonably concluded joint custody rather than sole custody advanced the child’s best interest.

E. Domestic violence
F.
“Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to [s]ection 3011.” (§ 3044, former subd. (a), amended by Stats. 2018, ch. 941, § 3, eff. Jan. 1, 2019.) “For purposes of this section, a person has ‘perpetrated domestic violence’ when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent bodily injury to that person or to another, or to have engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to [s]ection 6320 to protect the party seeking custody of the child or to protect the child ….” (§ 3044, former subd. (c), amended by Stats. 2018, ch. 941, § 3, eff. Jan. 1, 2019.)

Timothy asserts “[t]he court’s refusal to acknowledge [d]omestic [v]iolence or [d]omestic [a]buse in this case … constitutes an [a]buse of [d]iscretion.” The record shows Underwood, the child custody evaluator, reviewed recorded footage of (1) an August 20, 2015 incident, in which Melissa yelled at Timothy and used profanity; and (2) an October 2015 incident, in which Melissa stated she would move Timothy’s television set outside, cried, and made negative remarks about him. Timothy does not allege—and the record does not demonstrate—Melissa caused or attempted to cause him bodily injury; sexually assaulted him or attempted to do so; placed him in reasonable apprehension of imminent bodily injury to his person or to another; struck him; destroyed his personal property; or destroyed his “mental or emotional calm” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 [defining “‘disturbing the peace of’” another]). Underwood testified she did not view Melissa’s remarks as threats and, with respect to the October 2015 incident, “didn’t understand her to say she was going to destroy [Timothy’s] property.” Based on her observations and discussions with Tilby, she opined Timothy was passive-aggressive, seemed “aware of … Mom’s buttons to push,” and “utiliz[ed] his ability to control a situation knowing that Mom is going to have a reaction to it.” Underwood pointed out Melissa did not act in an aggressive or hostile manner “outside of that relationship” with Timothy. We cannot agree the court’s reluctance to find Melissa perpetrated domestic violence against Timothy was erroneous.

G. Right of first refusal and Troxel
H.
“[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Troxel, supra, 530 U.S. at p. 66.)

Timothy argues the custody order “violates [his] constitutionally protected parental rights which have long been affirmed by the United States Supreme Court.” He details:

“Melissa’s mother lives in the home with Melissa and [the child]…. This means that Grandma already sees [the child] a great deal and the visitation Melissa grants her through the eight-hour suspension of my parental rights is not the only way for Grandma to spend time with [the child]…. The eight-hour suspension allows Melissa to cede care, custody and control to anyone at any time without first offering that time to me, the other parent as there are no restrictions of any kind placed on its use.”

In support of his argument, Timothy cites Troxel. There, the United States Supreme Court concluded a Washington nonparental visitation statute, applied so as to require visitation between two minor children and their paternal grandparents, unconstitutionally infringed on the petitioner mother’s fundamental right to make decisions concerning the care, custody, and control of her children. (Troxel, supra, 530 U.S. at pp. 66–67.) However, “‘[a] dispute between a parent and grandparents represents a far different dynamic than the dispute between two natural parents with equal rights after a divorce. The grandparents in Troxel simply did not have a fundamental right to the care and custody for the children as do the parents here. So, when the Troxel court was speaking of fundamental rights in the raising of children, it was speaking to the existing disparity between natural parents and grandparents.’” (Enrique M. v. Angelina V. (2009) 174 Cal.App.4th 1148, 1156.) In other words, Troxel “does not compel courts to apply a substantive due process analysis in resolving custody or custody related disputes between parents” (id. at p. 1157), which is the case at bar. Timothy’s reliance on Troxel is misplaced.

I. Statement of decision
J.
Finally, Timothy contends the statement of decision “states facts not in evidence, lists pos[s]ibilities as fact and mischaracterizes elements of the trial, every instance in favor of the mother.” (Capitalization omitted.) “Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358; accord, In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.) “What [Timothy] attempts here is merely to reargue the ‘facts’ as []he would have them …. [S]uch ‘factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.’ [Citation.]” (In re Marriage of Davenport, supra, at p. 1531.)

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Melissa Coleman.

_____________________

FRANSON, J.

WE CONCUR:

_______________________

POOCHIGIAN, Acting P.J.

_______________________

PEÑA, J.