Marriage of Gray CA1/3 ( 2014 )

Filed 1/16/14 Marriage of Gray CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of CHRISTINE E.
GRAY and ROBERT GRAY
CHRISTINE E. GRAY,
Appellant, A135328
v.
(Alameda County
ROBERT GRAY, Super. Ct. No. AF11603446)
Respondent.
ROBERT GRAY,
Plaintiff and Respondent,
v. A135480
CHRISTINE E. GRAY, (Alameda County
Defendant and Appellant. Super. Ct. No. AF12612795)
Appellant Christine E. Gray (mother) appeals from orders issued by family court
Commissioner Thomas Nixon, which resolved the separate applications of mother and
Robert Gray (father) for permanent restraining orders under the Domestic Violence
Prevention Act (DVPA; Fam. Code, § 6200, et seq.1). Mother argues the commissioner
erred in denying her request for a permanent restraining order and granting father’s
request for a permanent restraining order. Father has moved to dismiss the appeals on the
1
All further unspecified statutory references are to the Family Code.
1
ground of mootness, and alternatively, argues there is no substantive merit to mother’s
appeals. We conclude the merits of mother’s appeals challenging the orders regarding
the parents’ permanent restraining orders are properly before us. Nevertheless, mother’s
arguments do not require reversal of those orders. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
On January 18, 2012, mother and father filed separate applications for permanent
DVPA restraining orders on behalf of themselves and the parties’ two teenaged children
(then 12 and 14 years) against the other parent. In orders dated January 19, 2012, and
filed by the court clerk on January 20, 2012, the court (Judge Ioana Petrou) granted each
parent a temporary restraining order against the other parent until January 31, 2012, and
issued orders to show cause scheduling an evidentiary hearing on January 31, 2012, to
resolve both parents’ requests for permanent restraining orders. 3
On January 31, 2012, and continuing on February 2, 6, 8, and 16, 2012,
Commissioner Nixon presided at an evidentiary hearing on both parents’ requests for
permanent restraining orders. The commissioner repeatedly stated his decision would be
based solely on the testimony and exhibits that were admitted into evidence at the
hearing; he would not consider documents filed in support of or since the issuance of the
2
We set forth only those facts that are necessary to resolve mother’s appellate
issues. Father filed a motion to augment the record to include certain documents that
were filed in the superior court and not included in the clerk’s transcripts. We now grant
the motion to augment the record and have considered the documents only to the extent
they are necessary to resolve mother’s appellate issues.
3
Father’s DVPA petition was filed using the case number assigned for mother’s
pending action for dissolution of the marriage. After Judge Petrou issued her temporary
orders, the DVPA order in favor of mother was filed in the case assigned to her
dissolution action (AF11603446) and the DVPA order in favor of father was filed in a
case assigned a new number (AF12612795). Because father was in default in mother’s
dissolution action at the time he filed his DVPA petition, mother argued father could not
seek DVPA relief. However, both Judge Petrou and later Commissioner Nixon correctly
ruled that father’s error in initially filing his DVPA petition using the case number for
mother’s dissolution action did not prevent father from pursuing his request for DVPA
relief. (See Nakamura v. Parker (2007) 156 Cal. App. 4th 327, 335 [DVPA application
“may properly be considered an independent ‘lawsuit’ ”].)
2
temporary orders.4 The commissioner heard testimony from mother, father, mother’s
mother, and Piedmont Police Department Sergeant Catherine Carr. Mother claimed she
was entitled to a permanent restraining order “because: (1) Father and the Parties’
therapist attempted to abduct Mother, (2) Father verbally insults Mother in front of the
children, and (3) Father gets too close to Mother’s face during arguments.” Father
claimed he was entitled to a permanent restraining order “because: (1) Mother is
currently unfit to care for her children as her substance abuse results in verbal abuse in
the presence of the minor children; ([2]) while under the influence [of alcohol], Mother
has repeatedly berated, disrupted the peace of and verbally threatened Father, including
making threats to physically harm him, and ([3]) in the absence of protective orders, the
abuse will continue to occur because of Mother’s addi[c]tion[].”
After closing arguments on February 16, 2012, the commissioner denied mother’s
request for a permanent restraining order and granted father’s request for a permanent
restraining order. The commissioner issued an extensive statement of decision. In
rejecting mother’s assertions, the commissioner explained: “[T]he primary basis of
Mother’s request is a single incident of a failed alcohol treatment intervention in June
2010. Although this attempted intervention was ill conceived, it does [not] form a
sufficient basis for the imposition of a permanent restraining order. The Court finds
Mother’s additional allegations either inconsistent with her behavior, e.g., reconciliation
and continued cohabitation since 2010, or are unsupported by the facts, e.g., vague
allegations without the proper indicia of reliability, no third party support or documentary
evidence. Finally, the Court believes that if any abuse did in fact occur, that it is not
necessary to enter a permanent order to prevent future abuse.” In accepting father’s
assertions, the commissioner explained: “Mother’s uncontrolled alcohol consumption
poses a risk both to Father and the children necessitating Court orders to prevent the
4
Consequently, we see no merit to mother’s argument that she was prejudiced
because prior to the hearing the commissioner failed to expressly rule on her motions in
limine, in which she objected to “Robert Gray’s proposed evidence,” and sought “to
strike certain [court] filings and exclude any information contained therein from
evidence” at the hearing.
3
recurrence of acts of domestic violence. The Court did not find credible Mother’s
testimony that she does not have a drinking problem. Mother objected to the use of her
doctor’s letter and had within her control the ability to prove that she does not have a
drinking problem. She failed to do so. The Court also finds Mother’s denial of the
various incidents as not credible. Father presented a detailed chronology with dates and
facts. Respondent’s Exhibit E. While this exhibit was not entered into evidence, the
Court finds Father’s presentation of fact and details credible in a manner in which it did
not find Mother’s presentations of conclusions and allegations. Further, it is not credible
that Mother would ‘not recall’ an incident where her daughter smashed a bottle of wine
on the driveway in an attempt to keep Mother from drinking and driving.” The
commissioner further found that “Mother recklessly placed the children and Father in
reasonable apprehension of imminent serious bodily injury, including driving under the
influence of alcohol. The evidence reflects that Mother made threats to the [F]ather,
verbally abused Father in front of the children, and drove the children while [she was]
intoxicated. Additionally, the Court finds that Mother physically abused Father on at
least two occasions.” The commissioner also issued temporary orders regarding child
custody and visitation, and granted father sole use, possession, and control of the marital
residence. Mother now appeals from the commissioner’s orders.5
5
In her notice of appeal in Case No. AF11603446, mother appeals from the
commissioner’s proposed statement of decision filed on March 22, 2012, in which he
gave his reasons for issuing the February 16, 2012 orders. In the absence of any
prejudice, we shall construe the notice of appeal as a notice of appeal from the
commissioner’s statement of decision that was confirmed by an appealable order entered
on April 18, 2012. (See Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal must be
liberally construed]; Alan v. American Honda Motor Co., Inc. (2007) 40 Cal. 4th 894, 901
[reviewing court may treat a statement of decision as appealable “when a statement of
decision is signed and filed and does, in fact, constitute the court’s final decision on the
merits”].) In her amended notice of appeal in Case No. AF12612795, mother appeals
from the commissioner’s February 16, 2012, orders, which granted Father’s request for a
permanent DVPA restraining order, and resolved the related issues of custody, visitation,
and use, control, and possession of the marital residence.
Mother also argues that since the issuance of the commissioner’s orders, the
mother’s dissolution action was transferred to Family Court Presiding Judge Honorable
4
DISCUSSION
I. Father’s Motion to Dismiss Appeals
Father filed a motion to dismiss on the ground that an order of September 27,
2012, issued by Judge Pulido, has rendered moot mother’s appeals challenging the orders
that resolve the parents’ requests for permanent restraining orders. However, mother
correctly argues that the denial of her request for a permanent restraining order has not
been rendered moot by any later court orders. Concededly, the permanent restraining
order in favor of father and against mother has now expired, arguably rendering moot
mother’s appeal from that order. Nevertheless, the expired permanent restraining order
could have detrimental consequences to mother in a further proceeding involving
domestic violence. Section 6306, subdivision (b)(1), provides that, before deciding
whether to issue a domestic violence restraining order, “the court shall consider . . . any
prior restraining order.” (See In re Cassandra B. (2004) 125 Cal. App. 4th 199, 209-210.)
Accordingly, we deny father’s motion to dismiss mother’s appeals from the February 16,
2012 orders that resolve the parents’ requests for permanent restraining orders.6
II. Temporary Restraining Orders Issued by Judge Petrou
Mother challenges Judge Petrou’s temporary restraining orders, presenting several
arguments including that the orders were void. Because the notices of appeal seek review
only of the commissioner’s February 16, 2012 orders, mother has forfeited review of
Judge Petrou’s temporary orders that expired on January 31, 2012. (Code Civ. Proc.,
Stephen Pulido, who issued several orders “that have invaded Mother’s privacy rights,
denied Mother her rights to due process, and denied Mother access to community
property funds to litigate her case and maintain the standard of living enjoyed during the
nearly 20-year marriage.” Because mother has not filed notices of appeal from those
rulings and orders, we lack jurisdiction to consider them at this time. (Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal. App. 4th 212, 239.)
6
However, we shall grant father’s motion to dismiss mother’s appeal from the
commissioner’s other February 16, 2012 orders that temporarily granted father physical
custody of the children and sole use, control, and possession of the marital residence, and
granted mother visitation. Those orders have been rendered moot by Judge Pulido’s
September 27, 2012, order, which address the same matters based on additional evidence
considered by the court.
5
§ 904.1, subd. (a)(6); see McLellan v. McLellan (1972) 23 Cal. App. 3d 343, 357
[temporary DVPA orders are separately appealable].) Concededly, an order can be set
aside at any time on the ground it is void when “the court lack[s] personal or subject
matter jurisdiction or exceed[s] its jurisdiction in granting relief which the court had no
power to grant.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal. App. 4th
1228, 1239.) However, mother’s argument that the temporary orders are void is “no
longer available” to her because those orders have “fulfilled [their] function and [were]
supplanted by” the February 16, 2012, orders, which were based on the evidence
presented at the hearing before Commissioner Nixon. (City of Los Angeles v. Superior
Court (1925) 196 Cal. 445, 449.) Accordingly, any purported appeal from the temporary
orders would be moot. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal. 2d
859, 862-863; O’Kane v. Irvine (1996) 47 Cal. App. 4th 207, 210, fn. 4.)7
7
Additionally, we do not need to address mother’s complaints regarding her
motions for reconsideration of Judge Petrou’s temporary orders. Assuming arguendo that
the motions had not been properly considered by either Judge Petrou or the
commissioner, an order denying a motion for reconsideration is not appealable, even
when the motion is based on new facts or law. (See Powell v. County of Orange (2011)
197 Cal. App. 4th 1573, 1576; Tate v. Wilburn (2010) 184 Cal. App. 4th 150, 159-160;
Crotty v. Trader (1996) 50 Cal. App. 4th 765, 769.)
Mother also complains that we should consider that the temporary orders
prevented her from presenting relevant, admissible evidence at the hearing before the
commissioner. However, a review of the hearing transcripts indicates the commissioner
favorably considered mother’s concerns that she could not refute father’s testimony
because of the prohibitions in the temporary restraining order. For example, when father
sought to testify regarding his discussions with school officials regarding the children’s
behavior, the commissioner sustained mother’s objection to the testimony on the ground
that she could not refute the testimony because the temporary restraining order prohibited
her from contacting the school or going to the school to obtain the children’s records.
The commissioner ruled that if father was going to testify about any information he had
received from school officials, his testimony would have to be limited to information that
he had discussed with mother at some time. Otherwise, “there is no evidence that
[mother] would have known about it and had the ability to obtain that information.”
6
III. Commissioner Nixon’s Orders Resolving Parents’ Requests for Permanent
Restraining Orders
Mother challenges on various grounds the commissioner’s orders that resolved the
parents’ requests for permanent restraining orders. As we now discuss, none of her
contentions requires reversal.
We find no merit to mother’s contention that the commissioner committed
prejudicial error by refusing to admit into evidence the children’s declarations. Before
the January 31 hearing, mother’s counsel had prepared declarations based on statements
that were made by mother to counsel about what the children had said and then the
children allegedly signed the declarations. During mother’s direct examination, her
counsel sought to admit into evidence the children’s declarations on the “issue of
custody” and the removal of the children from their primary caregiver. The court refused
to admit the declarations at that time because the children had not yet been independently
interviewed by Family and Children’s Bureau. Without the results of those interviews,
the commissioner believed there were questions about the authenticity and
trustworthiness of the declarations. Until the interviews were conducted, the
commissioner believed it was inappropriate to accept the declarations. He explained that
“[i]t may well prove to be that these declarations [are] absolutely exactly how these
children feel but I want them interviewed before I’m going to take them a[s] [the] truth.”
In response to mother’s counsel’s recitation of certain portions of the Family Code, the
commissioner stated he intended to follow section 30428 “to the letter,” but the issue then
8
Effective January 1, 2012, section 3042 was amended to read, in pertinent part:
“(a) If a child is of sufficient age and capacity to reason so as to form an intelligent
preference as to custody or visitation, the court shall consider, and give due weight to, the
wishes of the child in making an order granting or modifying custody or visitation. [¶] . . .
[¶] (c) If the child is 14 years of age or older and wishes to address the court regarding
custody or visitation, the child shall be permitted to do so, unless the court determines
that doing so is not in the child’s best interests. In that case, the court shall state its
reasons for that finding on the record. [¶] (d) Nothing in this section shall be interpreted
to prevent a child who is less than 14 years of age from addressing the court regarding
custody or visitation, if the court determines that is appropriate pursuant to the child’s
best interests. [¶] . . . [¶] (f) To assist the court in determining whether the child wishes to
7
before him was whether the declarations should be admitted into evidence “without the
children being present and when [he] is not aware completely of the facts . . . or why [the
declarations were] signed.” The commissioner again stated that although the declarations
might be true, he wanted Family and Children’s Bureau to provide him “with information
as to where this is coming from. Certainly under [section] 3042 specifically as to the
old[er] [child] the [c]ourt must at least consider [the child’s] wishes and the court actually
intends to consider both of the children’s wishes but one must also keep in mind that
[section] 3042 does not require the court to follow those wishes if it feels it’s not in the
best interest of the children but they must be heard. I intend on having them heard.”
Thereafter, at the February 6, 2012, hearing the commissioner indicated the children had
been interviewed and he had received a report from Kathleen Hargin of Family and
Children’s Bureau. At the next hearing on February 8, 2012, mother’s counsel indicated
she had read the report “that was done by the mediator” who “spoke with the children.”
However, at no time thereafter did mother or her counsel renew the request for the
admission of either child’s declaration or make a request to call either child as a witness
to testify at the hearing. Consequently, we cannot conclude the commissioner abused his
discretion in the absence of a specific timely request made by mother or her counsel for
the admission of the children’s declarations or their testimony after the court received the
report of the children’s court-ordered interviews.9
express his or her preference or to provide other input regarding custody or visitation to
the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides
recommendations to the judge pursuant to Section 3183 shall indicate to the judge that
the child wishes to address the court, or the judge may make that inquiry in the absence
of that request. A party or a party’s attorney may also indicate to the judge that the child
wishes to address the court or judge.”
9
After the children were interviewed, father asked the commissioner how he was
going to consider the report of the children’s interviews because father “objected to the
procedure through which Family Court Services solicited information from the children.”
The commissioner replied that it was his understanding “that the children were
interviewed only for purposes of an assessment.” The commissioner further explained
that the interviews were “to determine whether or not the [commissioner] felt that the
children need[ed] to have some type of counseling services provided to them,” but the
8
We also see no merit to mother’s argument that the commissioner committed
reversible error by failing to grant a calendar preference and complete the hearing within
25 days of the issuance of the temporary restraining orders. (§§ 242, 244, 24510.) As
noted, Judge Petrou scheduled the hearing on both parents’ separate petitions for
commissioner did not intend to use the interviews to determine visitation. Contrary to
mother’s contentions, we see nothing in the commissioner’s statements that would have
precluded her from renewing her request to have the commissioner consider the
children’s declarations or making a request for the admission of the children’s testimony
after their court-ordered interviews. Indeed, despite the commissioner’s statements,
mother’s counsel argued in closing that the commissioner should consider that the
assessment reports showed that “the children say they want their mother. That’s what
they said to the court. They said we want to be with our mother. They said father’s
never home.”
In support of her argument regarding the commissioner’s failure to consider the
children’s declarations, mother asks us to also consider evidence that was neither
proffered nor admitted into evidence at the hearing before the commissioner. However,
as an appellate court we are “limited to a consideration of the matter contained in the
record” of the proceedings before the commissioner. (People v. Siplinger (1967) 252
Cal. App. 2d 817, 825.) To now consider this evidence would be “ ‘in contravention of the
general rule that an appellate court generally is not the forum in which to develop an
additional factual record . . . .’ ” (People v. Jenkins (2000) 22 Cal. 4th 900, 952-953.)
10
Section 242 provides, in pertinent part, that “[w]ithin 21 days, or if good cause
appears to the court, 25 days from the date that a temporary [DVPA restraining] order
. . . is granted or denied, a hearing shall be held on the petition.” (§ 242, subd. (a).) “If a
hearing is not held within the time provided in subdivision (a) [of section 242], the court
may nonetheless hear the matter, but the [temporary] order is unenforceable unless
reissued under Section 245.” (§ 242, subd. (b).) Section 245 reads: “(a) The court may,
upon the filing of a declaration by the petitioner that the respondent could not be served
within the time required by statute, reissue an order previously issued and dissolved by
the court for failure to serve the respondent. The reissued order shall remain in effect
until the date set for hearing. [¶] (b) The reissued order shall state on its face the date of
expiration of the order. [¶] (c) No fee shall be charged for the reissuance of the order
unless the order has been dissolved three times previously.” Section 244 reads: “(a) On
the day of the hearing, the hearing on the petition shall take precedence over all other
matters on the calendar that day, except older matters of the same character, and matters
to which special precedence may be given by law. [¶] (b)The hearing on the petition
shall be set for trial at the earliest possible date and shall take precedence over all other
matters, except older matters of the same character, and matters to which special
precedence may be given by law.”
9
permanent restraining orders for the same day, January 31, 2012, which was within 20
days of the issuance of the temporary orders. As the commissioner explained, he then
“allowed testimony from both cases at the same time in order to expedite. The court
believes that there has been testimony on both of the matters and that, therefore, even
though 25 days has elapsed the matter has been ongoing. There is nothing in the statute
that says that the matter must be resolved within 25 days only that it must be begun. The
court believes that it has been begun. We’ve had five days of . . . testimony on this
matter. We have done everything we can to try to fit this [matter] in within the period of
time that the parties are allowed. This court has personally moved three separate trials of
other people’s cases so that this matter could be heard in an expedited fashion. It has
done the best [it] can under those circumstances.” The commissioner further explained
that the matters “did flow into one another rather than being separated as I would have
perhaps liked to do it but I do not believe it was so prejudicial as to result in a need to in
any way terminate proceedings or to find that” there was a failure to comply with the
statutory requirements. We see no error or abuse of discretion in the commissioner’s
ruling.11
11
Contrary to mother’s contention, Estate of Mitchell (1999) 76 Cal. App. 4th 1378
(Mitchell) and In re Marriage of Nadkarni (2009) 173 Cal. App. 4th 1483 (Nadkarni) do
not support her argument that a hearing for a permanent DVPA restraining order must be
concluded within 25 days of the issuance of the temporary restraining order. In
Nadkarni, the appellate court determined only that Darshana Nadkarni’s application for a
DVPA restraining order had sufficiently alleged abuse to support issuing an order to
show cause (OSC) for a hearing on the matter. (173 Cal.App.4th at pp. 1495, 1498-
1499.) The court further held only that a hearing date on the OSC must be set within 20
to 25 days of the application; the court did not hold that the hearing must be concluded
within 25 days of the issuance of the OSC. (Id. at pp. 1494-1495.) In Mitchell, the
appellate court was concerned with a violation of a temporary restraining order. (76
Cal.App.4th at p. 1387.) To the extent the court discussed the initial issuance of the
temporary restraining order, it held only that an ex parte temporary restraining order
“may remain in effect for not longer than 25 days. (Fam. Code, § 242.)” (Mitchell,
supra, at p. 1387; italics added.) Relevant here, the court went on to note that “[e]ven if
the ex parte restraining order has expired, however, the trial court may hold a hearing on
the OSC and issue a similar preliminary injunction. (See Fam. Code, § 242, subd. (b).)”
(Mitchell, supra, at p. 1387; italics added.) Mitchell supports the commissioner’s ruling
10
We also see no merit to mother’s argument that the commissioner committed
prejudicial error by allowing father to call Officer Carr to testify out of order during
mother’s case in chief over her objection. Because there was a dispute as to which parent
first filed their DVPA request on January 18, 2012, the commissioner allowed mother to
present her case in chief first to be followed by father’s case in chief. When it appeared
the matter would not be completed on January 31, at the conclusion of mother’s
testimony that day, the commissioner granted father’s request to call Officer Carr to
testify out of order because the officer had been subpoenaed to appear that day and the
commissioner had “a limited amount of time.” On this record, we see no abuse of
discretion in the commissioner’s ruling. (See Rayii v. Gatica (2013) 218 Cal. App. 4th
1402, 1413 [“trial court acted within its discretion by allowing the witnesses to testify out
of order so as to avoid having to continue the trial date, force the witnesses to cancel their
vacation plans, or forego their testimony”].) In all events, mother’s claims of prejudice
are unavailing. Mother asserts Officer Carr’s testimony “was not favorable” to her and
the commissioner’s ruling prevented mother from concluding her case in chief and
securing a ruling on her request for a permanent restraining order on January 31.
However, the substance of Officer Carr’s testimony would not have been different had
the officer not been called to testify until after mother had concluded her case in chief and
father had called the witness in his case in chief. Additionally, even if mother had
concluded her case in chief on January 31, the commissioner would not have then ruled
on her request for a permanent restraining order against father. Instead, as later
confirmed by the commissioner, father would have been allowed to present his case in
chief and the commissioner would have then taken both parents’ petitions for permanent
restraining orders under submission for judicial determination.
Relying on isolated portions of the record, mother also argues that the
commissioner (1) “accept[ed] uncorroborated testimony of alcohol abuse and abuse of
in this case. Judge Petrou’s temporary orders expired on January 31, 2012. At the end of
each hearing date, the commissioner reissued a temporary restraining order that was
effective only until the next hearing date.
11
children [in violation of her] rights to due process” and “allowed over objection
testimony from Father as it relates to levels of drinking,” (2) “heard extensive testimony
from Father while on cross-examination by his attorney about the efforts and behaviors of
the children and allegations of [Mother’s] alcohol abuse,” and (3) “allowed over
objection extensive testimony regarding [Mother’s] DUI conviction . . . that occurred 17
years ago.” However, pertinent statutes and case law demonstrates the commissioner’s
challenged rulings do not warrant reversal. First, the commissioner was free to accept
father’s testimony even if not corroborated concerning mother’s habitual or continual
alcohol abuse and his personal observations of the effect of mother’s conduct on the
children’s behaviors. (§ 3011, subd. (d) [before considering allegations of parent’s
habitual or continual abuse of alcohol court “may first require independent corroboration”
of the allegations (italics added)]; see Wainwright v. Superior Court (2000) 84
Cal. App. 4th 262, 268 [court is “empowered,” but not required, to request independent
corroboration of allegations of a parent’s alcohol abuse]; In re Marriage of Slivka (1986)
183 Cal. App. 3d 159, 163 [“ ‘ “[t]he testimony of a witness, even the party himself, may
be sufficient” [to support a judgment]’ ”]; People v. Williams (1988) 44 Cal. 3d 883, 914
[lay witness may testify as to opinion with regard to alcohol-induced intoxication and
sobriety if “ ‘rationally based on the perception of the witness’ ”]; see also Margolis v.
Teplin (1958) 163 Cal. App. 2d 526, 532-533 [“the error in the admission of some hearsay
evidence (in an action tried by the court without a jury) is not prejudicial error, where
there is otherwise enough competent evidence in the record to support the findings”].)
Second, the commissioner could allow father’s counsel to make father his own witness
and question him regarding matters which were not brought out during father’s
examination by mother’s counsel. (Evid. Code, § 772, subd. (c); 12 see Figari v. Olcese
(1921) 184 Cal. 775, 782; Bitsekas v. Parechanian (1924) 67 Cal. App. 148, 154.) Third,
12
Evidence Code section 772, subdivision (c), reads, in pertinent part: “[A] party
may, in the discretion of the court, interrupt his cross-examination . . . of a witness, in
order to examine the witness upon a matter not within the scope of a previous
examination of the witness.”
12
we see no prejudicial error in the commissioner’s admission of evidence of mother’s
1995 DUI conviction. (Evid. Code, §§ 351, 352, 35313.) When mother’s counsel first
objected to the admission of the evidence, the commissioner explained that evidence of
the DUI conviction would be allowed on the ground that it was probative of whether
mother was abusing alcohol, but that the weight of the evidence would be “based upon
anything that I see beyond that. The mere fact that someone may have gotten a DUI 17
years ago does not make them an alcoholic today.” When mother’s counsel renewed her
objection to the evidence, the commissioner again explained that the evidence was
“probative of whether [mother] has a drinking problem,” and could be “considered in
terms of [a] pattern of the situation.” The commissioner “fully expect[ed]” that in
closing argument mother’s counsel would argue that the conviction was “such a remote
moment in time as to have no probative value.”
Lastly, we reject mother’s contention that the commissioner committed prejudicial
error by admitting into evidence over her strenuous objections an unsigned “letter” dated
June 12, 2010, which was “allegedly written by Mother’s cosmetic doctor, who has no
history of being an Expert as it relates to alcohol abuse.” 14 When the letter was proffered
13
Evidence Code section 351 reads: “Except as otherwise provided by statute, all
relevant evidence is admissible.” Evidence Code section 352 reads: “The court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Evidence Code section 353 reads, in pertinent part: “A verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless: (a) . . . (b) The court which passes upon the
effect of the error or errors is of the opinion that the admitted evidence should have been
excluded on the ground stated and that the error or errors complained of resulted in a
miscarriage of justice.”
14
The unsigned letter dated June 12, 2010 purports to be from a physician with the
credentials of “MD, MPH,” without reference to any specialty, is addressed to the
medical referral department of an insurance company, describes the results of a physical
examination of mother and certain laboratory analysis and imaging studies, and
concludes with the physician’s recommendation “at this point that [mother] enter
inpatient treatment for her alcohol addiction.” Mother asks us to consider that since the
hearing before the commissioner “it has come to light that the information contained in
13
by father, the commissioner sustained mother’s objections to its admission on the
grounds of hearsay and potential physician-patient privilege, and indicated the letter
would not be admitted for the truth of the medical information contained in it. The letter
was admitted into evidence “only to the extent” the letter showed why father took certain
actions after he received the letter from mother’s physician. We presume - and mother
does not present a cogent argument to the contrary - that the commissioner considered the
letter for the limited purpose for which it was admitted into evidence, and for no other
reason. “ ‘As an aspect of the presumption that judicial duty is properly performed
[(Evid. Code, § 664)], we presume . . . that the court knows and applies the correct
statutory and case law [citation] and is able to distinguish admissible from inadmissible
evidence, relevant from irrelevant facts, and to recognize those facts which properly may
be considered in the judicial decisionmaking process.’ [Citations] Stated another way, a
trial court is presumed to ignore material it knows is incompetent, irrelevant, or
inadmissible.” (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.)
“Clearly, the mere fact that the court heard or read the evidence is not sufficient to
overcome the presumptions. [Citations.] [¶] These presumptions, we conclude, are
dispositive” of mother’s contentions. (Id. at pp. 1526-1527.)
DISPOSITION
The April 18, 2012, statement of decision, construed as an appealable order,
denying Christine E. Gray’s request for a permanent DVPA restraining order (Case No.
AF11603446), and the order filed on February 16, 2012 granting Robert Gray’s request
for a permanent DVPA restraining order (Case No. AF12612795) are affirmed. Appeals
the letter[ ] is in fact false, based on the physical examination of Mother and blood tests.”
In support of her contention, mother has attached to her opening brief as exhibits the
2010 laboratory analysis and imaging study reports that are purportedly referred to in the
June 2010 letter. However, because those medical reports were neither proffered nor
admitted into evidence at the hearing before the commissioner, we have not considered
them in addressing her appellate contention.
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from all other February 16, 2012 orders issued by Commissioner Thomas Nixon in Case
No. AF12612795 are dismissed. Robert Gray is awarded costs on appeal.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
15