Filed 8/31/20 Marriage of Ramos and Gormley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of SELENE REGO RAMOS and WILLIAM JOHN GORMLEY.

SELENE REGO RAMOS,

Respondent,

v.

WILLIAM JOHN GORMLEY,

Appellant.

G058092

(Super. Ct. No. 17D005157)

O P I N I O N

Appeal from judgments of the Superior Court of Orange County, Daphne Grace Sykes, Judge. Affirmed. Appeal from order dismissed.

Merritt McKeon for Appellant.

No appearance for Respondent. 

INTRODUCTION

William Gormley appeals from an order and a final judgment in this family law proceeding. The order denied his request for a temporary restraining order under the Domestic Violence Prevention Act. The judgment permitted his now-ex-wife, Selene Rego Ramos, to move to Spain with their two sons.

The appeal from the denial of the restraining order is untimely, and it is dismissed. The judgment regarding custody and relocation to Spain is affirmed. The family court has wide discretion to make decisions regarding child custody, and we cannot find that the court abused its discretion here.

FACTS

Gormley, who is English, and Ramos, who is Spanish, met in Spain and married there in August 2006. They then moved to Germany at the end of 2007, where their two sons, Sean and Hans, were born. Both boys are autistic. The family moved to Canada in 2013 and to California in February 2015. Ramos held an 0-1 visa, and Gormley and the boys had dependent (0-3) visas, the continuation of which were tied to Ramos’ visa. None of the family members is an American citizen or a legal resident.

Ramos filed for dissolution on June 21, 2017.

On September 1, 2017, Gormley filed a request for a domestic violence restraining order against Ramos. The matter was heard on September 21. The court denied the request and dismissed “any temporary restraining orders.”

The court held a series of hearings between April 2018 and May 2019, most of which dealt with the issues of custody and the children’s residence. Ramos declared her desire to return home to Spain with the children in March 2018 in a response to Gormley’s request for order (RFO), and she reiterated this plan at the hearing on the RFO on April 10, 2018. She explained she was unable to work legally in the United States, and she had family and access to services in Spain due to her Spanish citizenship. Most of the hearings that took place subsequent to April 10 dealt with visitation, custody, and the potential move to Spain.

The court ordered a partial child custody evaluation on April 10, 2018. The evaluator was to report on the best interests of the children “in light of parents’ non-legal status in America.” The court also issued a temporary custody and visitation order on April 18, giving Ramos primary physical custody and two hours each Sunday for Gormley’s visitation, as the parties had agreed in mediation.

The child custody evaluator issued a report on May 22, 2018. The evaluator recommended that Ramos be allowed to move to Spain with the children, based on their Spanish citizenship and the family support available to them in Spain.

The court held a hearing on the report on June 4. Gormley asked the court to reject the report’s recommendation regarding relocation and to change the custody schedule to one week with him and the next week with Ramos. He stated he had secured an apartment and a car.

Further hearings were held on July 25 and August 30, 2018. The court granted a status only divorce on October 16, 2018. Trial began on reserved issues on March 4, 2019, and continued on April 3, May 9, and May 15, 2019. The sole trial issues were custody and Ramos’ move-away request.

The court issued a trial ruling on June 10, 2019. The court determined it was in the best interests of the children to allow them to move to Spain with Ramos. The court cited their nomadic existence (Germany, Spain, and Canada) before moving to the United States and the children’s precarious immigration status as bearing on the need for stability and continuity, especially in light of their special needs. Ramos, as a citizen of Spain, could obtain benefits for the children that could not be guaranteed in this country. She could also work there, as she could not legally do here. The court granted joint legal custody to both parents and sole physical custody to Ramos. At Gormley’s request, the court’s final ruling included more precision regarding his visitation and specified joint legal custody with final decision-making authority to Ramos.

Final judgments, on status and reserved issues, were entered on August 6, 2019. After an ex parte hearing, Ramos was ordered to stay in the country until September 4, 2019. Because part of Gormley’s request for relief in this court is an order requiring them to return to the United States, we infer that Ramos and the children have relocated to Spain.

DISCUSSION

Gormley has identified two main issues on appeal. The first is the family court’s denial of his request for a temporary restraining order under the Domestic Violence Prevention Act. The second is the court’s ruling permitting Ramos to take the two children to Spain.

 

I. Domestic Violence Restraining Order

The family court denied Gormley’s request for a domestic violence restraining order and dismissed “any temporary restraining orders” on September 21, 2017. An order denying a request for a restraining order under Family Code sections 6200 et seq. is immediately appealable as an order refusing to grant an injunction. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332; Code Civ. Proc., § 904.1, subd. (a)(6).) Gormley, however, did not file a notice of appeal until July 30, 2019. The appeal from this order is untimely and must be dismissed. (Cal. Rules of Court, rule 8.104(b).)

Gormley argues that although he could have appealed from the September 21 order itself, he can still appeal the denial of his restraining order request as part of his appeal from the final judgment. He is mistaken. If an order is immediately appealable, then the appeal must take place within the time limits prescribed by California Rules of Court, rule 8.104. If it is not immediately appealable, then it can be reviewed as part of an appeal from the final judgment or order. (See Code Civ. Proc., § 906.) The appellant, however, does not get to choose when to appeal. We cannot review an order from which an appeal could have been taken, but was not.

II. Relocation to Spain

Gormley has several complaints regarding the family court’s decision to permit Ramos to relocate with the children to Spain. These complaints can be categorized as procedural and evidentiary.

Gormley first asserts he did not get the notice required by Family Code section 3024, and the failure to give this notice is reversible error because Gormley was deprived of due process. This notice is not mandatory. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37, fn. 9 (Burgess).) And as for Gormley’s due process rights, they were observed over the course of more than a year. He knew at least as of April 2018 that Ramos planned to move to Spain, and this plan provided the subject matter of several hearings between April 2018 and May 2019, during which Gormley had more than ample opportunity to make his position known. Due process in these circumstances is, in essence, reasonable notice and an opportunity to be heard. (See In re Marriage of Benner (2019) 36 Cal.App.5th 177, 197.) Gormley had plenty of both.

Gormley also makes the puzzling argument that the court “struck down” a mediated parental custody agreement. This agreement was a temporary one, in place while the divorce – and specifically Ramos’ plan to move to Spain – was being litigated. At the end of that process, it was the court’s duty to make a final determination regarding custody. Family Law section 3183, which allows a mediator to submit a recommendation regarding custody and visitation to the court, does not provide that the order entered pursuant to a mediator’s recommendation is permanent or that it somehow binds the court in making a final custody determination. Gormley fails to cite any authority for the implied proposition that the family court cannot deviate from the temporary agreement when it makes its final custody determination.

Finally, Gormley claims that In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) and In re Marriage of Condon (1998) 62 Cal.App.4th 533 (Condon) establish a “procedure” that the family court must follow when it considers a parent’s request to relocate, and the family court in this case failed to follow the “procedure.”

Actually both LaMusga and Condon stand for the well established principle that the family court has wide discretion when it comes to child custody. (LaMusga, supra, 32 Cal.4th at p 1087; Condon, supra, 62 Cal.App.4th at p. 549; see also Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) This discretion will be disturbed on appeal only in the most egregious cases. (LaMusga, supra, 32 Cal.4th at p. 1092.) No bright line rule is possible, and the family court must be free to fashion the alternative most likely to protect the best interests of the child under the peculiar circumstances of each case, while realizing that, in move-away cases especially, no solution is likely to please everyone. (Id. at pp. 1089, 1091.) The factors “that the court ordinarily should consider” (id. at p. 1101) – distance, age and wishes of the children, relationship of the parents, etc. – cannot by any stretch of interpretation be transformed into a mandatory “procedure” for a move-away order.

We are satisfied that the court engaged in the correct evaluation process in making its best interests determination. In addition to the usual factor of stability and continuity of the custodial arrangement, the court had to consider the children’s special needs and the jeopardy in which their immigration status placed them. The notion that the court had to conform to a lock-step “procedure” finds no support whatsoever in the case law.

In discussing the evidentiary issues identified in his appeal, Gormley does not refer to the standards of review or shape his arguments with the standards of review in mind. These standards are well established. “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.’ (Fam. Code, § 3040, subd. (b).) It must look to all the circumstances bearing on the best interest of the minor child.” (Burgess, supra, 13 Cal.4th at pp. 31-32.) Under the abuse of discretion standard, we do not substitute our judgment for that of the family court, but instead reverse only if “no judge could have reasonably made the challenged decision.” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1047.) The court’s factual findings are reviewed using the substantial evidence standard; we view the evidence in the light most favorable to Ramos, giving her the benefit of every reasonable inference and resolving all conflicts in the evidence in her favor. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

One other principle of appellate review should also be mentioned: the requirement that references to matters in the record, regardless of where they occur, require citations to the record. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970 (Lauron) [“‘Any statement in a brief concerning matters in the appellate record – whether factual or procedural and no matter where in the brief the reference to the record occurs – must be supported by a citation to the record.’ [Citation.]” (Lauron)]; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3.) In this case, the discussion section of Gormley’s brief is utterly devoid of citations to the record, notwithstanding numerous references to facts and procedures. This failure to cite to the record would require us to hunt through the transcripts to find support in the record for Gormley’s assertions, in essence turning us into his advocate. This is not our role. (See Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 198-199.)

With these principles in mind, we can make some general responses to Gormley’s arguments disputing the evidence upon which the family court relied in its decision to permit Ramos to move to Spain. Gormley contends the trial court ignored the testimony of his expert witness, Dr. Michelle Molina, a clinical psychologist. This is simply false. The court specifically referred to the testimony of the expert in its trial ruling, remarking that it gave this testimony “great weight.”

The court decides how much weight to give evidence, and we do not second-guess this process. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) In this case, the court relied heavily on the child custody evaluation and on the expert’s testimony. The child custody evaluator recommended that Ramos be allowed to move to Spain and take the children with her, and the expert testified that any initial setback occasioned by the move to Spain could be overcome. This is substantial evidence supporting the court’s decision.

Gormley also contends, without citation to authority, that the family court impermissibly “used the [parties’] immigration status” when it made its decision. The court’s consideration of everyone’s immigration status extended no further than the observation that the family’s lack of a legal right to be in the United States was a factor in assessing long-term stability for the boys. Ramos’ Spanish citizenship insured that the family could live in Spain without the threat of deportation hanging over them and without any legal impediment to the ability to find work. This is part of the overall “big picture” that the family court is required to peruse when it makes a custody determination.

Two of Gormley’s issues will not be considered because of the serious deficiencies in the citations to the record described above. (See Lauron, supra, 8 Cal.App.5th at p. 970.) Gormley argues that the court committed reversible error by allowing Ramos to relocate with the children despite her refusal to comply with court orders. He also argues that the court failed to consider the factors outlined in LaMusga and Condon when it made its decision.

As to the first issue, Gormley refers to a court order requiring Ramos to provide evidence, with which she purportedly did not comply, and to a failure to provide answers to requests for admission. He provides no record citation to this court order or to any subsequent related orders, to the requests themselves, or to a motion to compel responses to requests for admission.

As to the LaMusga and Condon factors, Gormley engages in a lengthy discussion of evidence that the court purportedly failed to consider, repeatedly pointing to contrary evidence but without explaining where this evidence may be found in the record. For example, he refers to the boys’ enrollment in local schools, the services they are receiving, the prospects for Ramos’ employment in Orange County, the safety of his home, and the motivation behind Ramos’ desire to move to Spain, all without any citation to the record. We are not obliged to search the record for the relevant citations, and the substantial evidence standard of review, which requires us to disregard evidence unfavorable to the prevailing party if substantial evidence to the contrary exists would render this argument meritless in any event.

 

DISPOSITION

The appeal from the order of September 21, 2017, is dismissed. The judgments of August 6, 2019, and the postjudgment order of July 11, 2019, are affirmed. Respondent is to recover her costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.