J.M. v. M.Z. CA4/1
D077335
| Cal. Ct. App. | Feb 24, 2022Background
- Parents: J.M. (Mother) and M.Z. (Father); child A.Z.; custody originally set by FCS and incorporated into orders.
- Mother obtained a one-year DVRO on Feb 19, 2019 that included custody/visitation; it expired Feb 20, 2020.
- Father filed an RFO on Sept 10, 2019 to increase visitation; hearing set for Feb 21, 2020.
- Mother filed a DVRO renewal on Feb 14, 2020 set for Mar 4, 2020 but had not served Father; she missed hearings and made last-minute continuance requests.
- Court heard Father’s RFO on Feb 21, 2020 (Mother did not appear in person), granted additional visitation and directed FOAH; Mother’s renewal was dismissed on Mar 4 for failure to appear/serve. FOAH entered May 6, 2020; further proceedings July 30 resulted in FOAH (entered Oct 19, 2020) modifying custody/visitation and denying Mother’s transfer and Father’s sanctions/vexatious-litigant relief.
- Mother appealed pro se, arguing calendaring precedence under Fam. Code §244, denial of continuances, procedural errors, and judicial bias; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether hearing Father’s RFO before Mother’s DVRO renewal violated Fam. Code §244 calendaring precedence | Mother: DVRO (renewal) should have calendaring precedence and thus heard first | Court/Father: Renewal was not ready (not served); §244 precedence not shown to apply to renewals; no prejudice | Court: No error — renewal was not properly served/ready; §244 not shown to require different result; any error not shown prejudicial |
| Whether denying Mother’s last-minute continuance(s) was an abuse of discretion | Mother: Entitled to continuance as of right under local/former rule and alternatively good cause (counsel dissolved, needed time to prepare/serve) | Court/Father: RFO was not emergency relief so the ‘‘one continuance as of right’’ rule did not apply; Mother gave no affirmative showing of diligence or essential unavailability | Court: No abuse of discretion — rule inapplicable; continuance requests were last-minute and unsupported by concrete good-cause facts |
| Whether the FOAH preparation, modification of procedure, mediation and §3044 findings were procedurally improper | Mother: FOAH was submitted to court without adequate review; prior custody orders deleted; court failed to send parties to FCS and failed to make required §3044 findings before increasing visitation | Court/Father: Court appropriately modified FOAH procedure after Mother’s conduct; parties had prior FCS mediation; record lacks transcript to show §3044 findings were not made | Court: No reversible error — rule 5.125 procedure modification was appropriate; resubmission to FCS not required; appellant failed to provide record to show §3044 error |
| Whether the court was biased/stigmatized Mother and thus rulings must be reversed | Mother: Court repeatedly stigmatized and was biased against her (victim status, gender, socioeconomic status) | Court/Father: Bias claim not preserved — Mother did not file statutory disqualification or seek writ review; multiple adverse rulings alone do not show bias | Court: Claim forfeited and, on merits, meritless — no preserved disqualification motion or writ, and adverse rulings do not establish judicial bias |
Key Cases Cited
- Laraway v. Pasadena Unified School Dist., 98 Cal.App.4th 579 (Cal. Ct. App. 2002) (orders that contemplate further action are not appealable)
- Campi v. Superior Court, 212 Cal.App.4th 1565 (Cal. Ct. App. 2013) (treat premature notices of appeal as filed after judgment in appropriate circumstances)
- Jameson v. Desta, 5 Cal.5th 594 (Cal. 2018) (appellate presumption of correctness; appellant bears burden to show error)
- Gee v. American Realty & Construction, Inc., 99 Cal.App.4th 1412 (Cal. Ct. App. 2002) (affirm where record is inadequate to show error)
- Green (In re Marriage of Green), 213 Cal.App.3d 14 (Cal. Ct. App. 1989) (court need not resubmit parties to FCS mediation before modifying custody/visitation)
- Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 Cal.App.5th 525 (Cal. Ct. App. 2018) (repeated adverse rulings do not establish judicial bias)
- Yolo County Dept. of Child Support Services v. Myers, 248 Cal.App.4th 42 (Cal. Ct. App. 2016) (statutory motions to disqualify are not appealable; remedy is writ review)
- Roth v. Parker, 57 Cal.App.4th 542 (Cal. Ct. App. 1997) (failure to seek writ review forfeits judicial-bias claim)