Filed 11/26/19 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COLEMAN and TIMOTHY COLEMAN.

MELISSA COLEMAN,

Respondent,

v.

TIMOTHY COLEMAN,

Appellant.

F078709

(Super. Ct. No. 695439)

OPINION

THE COURT*

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. Timothy appeals from a November 20, 2018 order of the Stanislaus County Superior Court, which requires the custodial parent to provide a 14-day written notice and itinerary to the noncustodial parent before traveling out of state with the child. For the reasons set forth below, we affirm the order.

BACKGROUND

On September 7, 2018, while the parties were embroiled in a custody dispute, Melissa filed forms FL-300 (Request for Order), FL-311 (Child Custody and Visitation (Parenting Time) Application Attachment), and FL-312 (Request for Child Abduction Prevention Orders). In form FL-300, she asked “that Timothy not be allowed to travel out of state with [child]” and “that [child] remain in [her] care until he provides [her] with new address.” In form FL-311, she requested a court order requiring Timothy to “have written permission from [her], or a court order, to take the child[] out of” “the state of California.”

In form FL-312, Melissa alleged Timothy might take the child without her permission to Oklahoma because he “does not have strong ties to California,” i.e., he “does not have any family in California besides [child]” and “[a]ll of his family live in Oklahoma and north Texas”; “has a history of” “not cooperating with [her] in parenting”; and “has recently done things that make it easy for him . . . to take the child[] away without permission.” She detailed in an attached statement:

“Timothy contacted me on August 28[th] and asked if I could keep [child] that coming weekend . . . because he had a family emergency in Oklahoma. He had to be there as soon as possible to be with his sister who was just diagnosed with breast cancer. I told him yes, [child] could stay with me for as long as he needed to be away. He then told me that he was also currently moving out of his home. He had kept [child] out of school that day to go pick up a moving truck and was currently loading up his belongings into it. This was the first I had heard anything about him moving out of his home. He continued to tell me that his friends were going out of the country and they were going to rent him their house for cheap for a few months. When I asked what the address was, he said he did not know. I asked what road it was on[;] he said he did not know but that it was by Walmart in Modesto.

“Over the next 3-4 days[,] Timothy packed up all his belongings into the moving truck. During these days[,] I asked several times what his new address would be, but he refused to tell me. He would only say that he didn’t know it, but he will tell me the address before he is living there.

“I picked [child] up on Saturday morning September 1[st], at 9 a[.]m. Within hours[,] Timothy and the moving truck were gone and the house was empty. I sent a text message to Timothy that day and told him that I will need a new address before he picks [child] up from my house or from school. His reply was ‘You can’t keep her from me.[’ ]I told him I meant what I said. His response was ‘I’m not going to argue with you, you cannot keep her from me[.’]

“He is still in Oklahoma but has let me know that he should be back this weekend. I am very concerned that he might attempt to leave with her. It seems that he may have dr[i]ve[n] the moving truck with his and [child]’s belongings to Oklahoma. For the last week and still today, I have no address for Timothy.

“What I do know is that in the last month, he has tried to remove me entirely from [child]’s life, with no concern of the traumatic [e]ffect it would have on her. I also know that he packed up all his and [child]’s belongings in a moving truck and he is now in Oklahoma. I do know that I am extremely concerned, alarmed, panicked[,] and scared that he might try to take [child] out of state. . . .”

Melissa requested court orders “preventing [Timothy] from moving with the child[] without [her] written permission or a court order”; “preventing [him] from traveling with the child[] outside” “California” “without [her] written permission or a court order”; and, “[i]f [he] is allowed to travel with the child[],” requiring him “to give [her] before leaving” “the child[]’s travel itinerary,” “copies of round-trip airlines tickets,” “addresses and telephone numbers where the child[] can be reached at all times,” and “an open airline ticket for [her] in case the child[] [is] not returned.”

The superior court set the matter for mediation, which was conducted on November 6, 2018, by Kim Mallock and Weston Lange. The parties reached a partial agreement and the court set the matter for a limited hearing on the unresolved issue of “notice of out of state travel.” (Capitalization omitted.)

The hearing took place on November 20, 2018. The parties and the mediators were present. At the outset, the court asked Mallock to identify the issues and present her recommendation. The following colloquy transpired:

“MS. MALLOCK: The issues were very specific to the November 6th mediation. The first one was Father’s address was not known to Mother as she had filed, and the [child] leaving the state was the second issue. The father’s address apparently was resolved with the mother by the time we met on November 6th, so that was taken care of.

“We met with both the parties with Mr. Lange and myself and discussed the child leaving the state of California. The original recommendation was 30 days’ notice to the mother to take the [child] out of state. Father disagreed with that but said that 14 days would be acceptable. Mother agreed to 14 days with an itinerary, location of where the father was taking the child to be given at the same time, and Father disagreed with that.

“THE COURT: Wasn’t that the issue that Father would be taking the child to another state?

“MS. MALLOCK: That’s the whole issue, not to take the child out of state. Mom now says she knows Father’s address, and as of November 6th, she was comfortable if she had notice, sufficient notice, which I believe 14 days was agreeable to Mother with the itinerary so she would know where the father was taking the child, whether it was specific to Oklahoma or what state.

“THE COURT: . . . I think what I remember the other day when I discussed with the parties was Mother actually came down from 30 to 14 days, and even to seven days, but Father was insisting upon a three-day maximum. Am I wrong?

“MS. MALLOCK: Well, I’m not saying you’re wrong, Your Honor. There was some negotiations that occurred after Mr. Lange and I left. So all I know is that Father agreed to 14 days with the four of us in mediation but not to the itinerary.

“THE COURT: But I believe my minute order of November 6th which was . . . composed after you left, I think the discussion between the parties and I, at least according to the minute order, was Mother said 30 days and then 14, then came down even to seven days. And Father said he wanted to follow the previous order and only agree to three days but no notice of where he was going. And that was the discussion in here after you left, at least according to the minute order. [¶] . . . [¶]

“[MELISSA]: That’s correct.

“THE COURT: Is that correct, Ms. Coleman? You remember that? [¶] Okay. . . .”

Later in the proceeding, Lange added:

“There’s been lots of situations where we’ve had parents notify one another of out-of-state travel. I think that it’s worth noting that . . . so long as the notice is given, . . . it isn’t the other parent giving permission for the travel to happen. It’s merely informing, and that seems like a reasonable request to make.”

The court also spoke with the parties. The following colloquy transpired:

“THE COURT: . . . . [¶] So, Mr. Coleman, . . . the other day I don’t believe you were willing to give any more than three days’ notice. Can you tell me what’s going on? . . . [W]hat are you willing to do at this point as far as notice to Mother as to . . . where you’re taking the child?

“[TIMOTHY]: I don’t want to change the order at all.

“THE COURT: What does that mean?

“[TIMOTHY]: That means I don’t think I should have to give any notice.

“THE COURT: So you’re saying that you should be able to take the child out of state without any notice to Mother?

“[TIMOTHY]: We . . . made an agreement prior to this and she asked for those restrictions, and then she made an agreement to not have those. Yes, that’s true.

“[MELISSA]: That’s incorrect.

“[TIMOTHY]: That is not incorrect.

“THE COURT: Hang on, ma’am.

“[TIMOTHY]: I mean this is her motion. Does she want to speak first? I’m kind of defending myself here against allegations, and she hasn’t presented her side. Is it not incumbent –

“THE COURT: Well, yeah, we’re not here for trial. We’re here to settle a dispute. Apparently Mother has asked for notice. You’re disagreeing with that. I notice that you have hired a court reporter today, so I’m asking you if you want to put something on the record regarding your position. It sounds like you said that you don’t want to switch the orders, that you want to give no notice. And I think that’s it; right?

“[TIMOTHY]: Okay. So you want me to speak first then before she speaks as the moving party?

“THE COURT: That’s what I was asking, what your position was.

“[TIMOTHY]: Okay. She makes several statements – false claims and misleading claims in her statement. When she says I refuse to give her my new address, she isn’t telling the whole truth. I told her I would give her the address before I took our [child] to that address but not while I was going to be out of state, as she has a history of bad behavior when I’m out of state. She drilled out a lock on my bedroom door. She had her brother try to –

“THE COURT: Sir, I’m going to interrupt you. We’re not here for a trial. We’re here to discuss whether we should change the custody orders to require any sort of notice to Mom.

“[TIMOTHY]: And I’m trying to tell you why I don’t believe that we should.

“THE COURT: But you’re testifying at this point. So I’m just trying to find a reason that – the mediators I believe are – you’re recommending 14 days’ notice?

“MS. MALLOCK: With an itinerary.

“THE COURT: With an itinerary. They’re nodding and saying with an itinerary, 14 days’ notice they feel is reasonable.

“[MELISSA]: I’m agreeable to that.

“THE COURT: And Mother is agreeable to the 14 days.

“[TIMOTHY]: Well, she filed very specific paperwork that corresponds to [Family Code section] 3048,[ ] and she alleged that I’m going to abduct our [child]. And –

“THE COURT: What is unreasonable, though, about Mother asking for 14 days’ notice?

“[TIMOTHY]: Because the travel restrictions that she’s asking for are set as preventative measures in [section] 3048, and the only way you get to those measures is to prove that there’s a risk of abduction. She listed three factors, and they’re all false. And that’s what I’m trying to show you is the factors she cited are not true, even in her own words what she’s previously told the Court. [¶] The only way to get to those restrictions according to [section] 3048 is to consider the seven factors given in the law, and if those factors apply, . . . then you can apply the preventative measures.

“THE COURT: So do you have a problem with Mother taking the child out of state today and just going anywhere without telling you?

“[TIMOTHY]: I believe that she has the right to travel with our [child] as she sees fit on her time, absolutely. I believe I have the same right. I don’t believe that our [child] is in danger traveling with . . . mother. But I haven’t taken our [child] out of state and not told her our [child] was going out of state. [¶] But my issue is that when she’s had these restrictions in the past, she used them for two and a half years to prevent our [child] from seeing [paternal] family. Our [child] didn’t get to meet my side of [the] family until [child] was four years old because Mom stood in the way of that using these restrictions. And in the evaluation, that was a big concern, and that’s why they’re no longer part of our agreement.

“THE COURT: Okay. Ma’am, do you have a response to what he’s saying?

“[MELISSA]: This – notifying me of where he’s taking [child] has nothing to do with – it doesn’t stop him from taking [child] out of state to see his family at all. This is – this goes both ways. I am willing to let him know if I take [child] out of state. It’s – when we had a full evaluation with [the child custody evaluator] – the information that he’s giving you is not correct. [The evaluator] did say – because I asked . . . about him taking [child] out of state. [¶] [The evaluator] says: There’s no reason why he can’t take [child] out of state as long as he provides you an itinerary. [The evaluator] did not put that in the evaluation report, which is fine. So when he did plan on taking [child] out of state, I asked him for their itinerary, and this has been two years ago. He said that it was not in the report so he didn’t have to give it to me. [¶] Since then – the whole reason for all of this is because he packed up a moving van, went to . . . Oklahoma. He is living in a home right now where [child] – [child’s] bed is not there; [child’s] toys are not there. We don’t know where they’re at. Only he knows and that’s fine.

“THE COURT: But you know where he is locally now? You have his local address; right?

“[MELISSA]: I do.

“THE COURT: Okay.

“[MELISSA]: But as far as taking [child] out of state, I don’t think there’s any harm in letting me know where he’s taking [child].

“THE COURT: Okay. Let me turn to you, sir, for any last comments. She said that she doesn’t think there’s any harm in you letting her know that the child is going to go out of state, giving her written notice within 14 days.

“[TIMOTHY]: I believe there is harm, as when she’s had restrictions in the past, she’s used them to prevent [child] from meeting [paternal] family, and that was true until [child] was four years old. And what she is saying that [the child custody evaluator] said is not correct. She asked for travel restrictions, and what [the evaluator] said was: We only do those things if there’s a legitimate risk of abduction, and I don’t see that here. And she asked her if she had any evidence of that, and she said no.”

Thereafter, the court pronounced:

“I am going to find that Father does need to give Mother 14 days’ notice, written notice, that he plans to take the child out of state. [¶] . . . [¶] . . . [And] [a]n itinerary. . . . I think that’s reasonable, that a parent should know if their child is going out of state, where they’re going, and that they should have some sort of notice that their child is going out of state. So that’s going to be my ruling.”

The November 20, 2018 “Findings and Order After Hearing” specified:

“Court adopts recommendations of both mediators- K. Mallock and W. Lange. . . . [¶] The Court orders both parties to provide each other with 14 days written notice and an itinerary of any out of state travel.” (Some capitalization omitted.)

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.; accord, J.M. v. G.H. (2014) 228 Cal.App.4th 925, 935.) “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.
“If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.” (§ 3170, subd. (a)(1).) “The purposes of a mediation proceeding are as follows: [¶] (a) To reduce acrimony that may exist between the parties. [¶] (b) To develop an agreement assuring the child close and continuing contact with both parents that is in the best interest of the child, consistent with [s]ections 3011[ ] and 3020.[ ] [¶] (c) To effect a settlement of the issue of visitation rights of all parties that is in the best interest of the child.” (§ 3161.) The mediator “has the duty to assess the needs and interests of the child involved in the controversy” (§ 3180, subd. (a)) and “shall use his or her best efforts to effect a settlement of the custody or visitation dispute that is in the best interest of the child” (id., subd. (b)).

“Where mediation is required to settle a contested issue of custody or visitation, the agreement [reached by the parties as a result of said mediation] shall be limited to the resolution of issues relating to parenting plans, custody, visitation, or a combination of these issues.” (§ 3178, subd. (a).) “If issues that may be resolved by agreement pursuant to [s]ection 3178 are not resolved by an agreement of all the parties who participate in mediation, the mediator shall inform the court in writing and the court shall set the matter for hearing on the unresolved issues.” (§ 3185, subd. (a).)

“At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause . . . , the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.” (§ 217, subd. (a).) “The report of a mediator in a custody case is ‘evidence to be weighed with all other evidence . . . .’ [Citation.]” (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 659.) “The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.” (§ 3022.)

We conclude the court did not abuse its discretion when it ordered the custodial parent to provide a 14-day written notice and itinerary to the noncustodial parent before traveling out of state with the child. The record shows Melissa requested orders compelling Timothy to provide his new home address and requiring him to obtain her express written permission or a court order before traveling out of state with their child and furnish an itinerary, copies of his and the child’s round-trip airline tickets, contact information, and an open airline ticket for her in case the child is not returned. Prior to the mandatory mediation on November 6, 2018, Timothy provided his address to Melissa. As a result of the mediation, they reached a partial agreement. Given the limited scope of the November 20, 2018 hearing and the testimonies therein, the agreement apparently resolved everything except the extent of notice of out-of-state travel. The mediators advised they originally recommended a 30-day written notice but lowered the duration to 14 days with an itinerary. At the mediation, the parties agreed with a 14-day notice, but Timothy rejected the requirement to provide an itinerary. Later, he insisted on a maximum three-day notice without an itinerary. At the hearing, Timothy stated Melissa previously exploited travel restrictions to prevent their child from visiting the paternal family. Melissa countered the 14-day notice and itinerary allowed her to know his and the child’s whereabouts, did not prevent him from taking their child out of state, and “goes both ways.” The court adopted the mediators’ recommendation, finding it “reasonable” “that a parent should know if their child is going out of state, where they’re going, and that they should have some sort of notice that their child is going out of state.” It was reasonable for the court to conclude the 14-day notice and itinerary advanced the child’s best interest. (See § 3020, former subd. (b), amended by Stats. 1999, ch. 980, § 5, eff. Jan. 1, 2000 [“frequent and continuing contact with both parents”].)

On appeal, Timothy contends the court was required to make findings pursuant to section 3048. “Section 3048, subdivision (b)(1), requires eight such findings in a custody order when ‘the court becomes aware of facts which may indicate there is a risk of abduction of a child.’ ” (J.M. v. G.H., supra, 228 Cal.App.4th at p. 933.) As noted, however, the scope of the hearing was limited to the extent of notice of out-of-state travel by the custodial parent, i.e., either Timothy or Melissa. Based on the record, the issue of whether there was a risk of child abduction by Timothy had already been resolved at mediation. Therefore, no findings were mandated. (Cf. id. at p. 933 [“No findings on all eight factors under section 3048, subdivision (b)(1) were required given the trial court’s finding that there were no facts indicating a risk of abduction.”].)

Timothy also argues he was deprived of due process because the court “forced [him] to defend in the first instance,” “prevented [him] from testifying in any meaningful way,” “was not neutral in the way it conducted the proceeding,” and “did not base its decision on any evidence whatsoever.” We disagree. Under section 217, subdivision (a), “the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.” Here, the court directed inquiries to the mediators and the parties. After Mallock advised Timothy was not in agreement with the recommendation, the court justifiably spoke with him first to hear his objections to it. Much of Timothy’s testimony related to items not within the limited scope of the hearing, e.g., section 3048, so the court redirected him several times. Based on the testimonies of the mediators and the parties, the court accepted the mediators’ recommendation and issued its order. The court’s conduct was not inappropriate.

DISPOSITION

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