Marriage of Takash CA5

Opinion

Filed 9/9/26 Marriage of Takash 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 BRANDI MICHELLE and THEODORE ERNEST TAKASH.

BRANDI MICHELLE TAKASH, F089408

Appellant, (Super. Ct. No. CVFL18- 0008436) v. THEODORE ERNEST TAKASH, OPINION Respondent.

APPEAL from an order of the Superior Court of Mariposa County. Michael A. Fagalde, Judge. Brandi M. Takash, in pro. per., for Appellant. No appearance for Respondent. -ooOoo- Appellant Brandi Takash (Mother) seeks review of a custody order from the trial court awarding primary physical custody of the couple’s three minor children to her ex- husband Theodore Takash (Father). Mother was granted custody of the children during school breaks and summers, provided she completed certain steps specified in the custody order. Mother argues the trial court erred by denying her request for a continuance, by making its custody order without substantial evidence to support its findings, by striking certain witness declarations Mother produced, and by declining to independently interview the children in chambers. We find no error here and affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND Mother filed for marital dissolution in November 2018, and the parties entered into a stipulation regarding custody and visitation the following month. It appears judgment was entered and the marriage dissolved in June 2021. Father requested a custody modification following reports related to Mother’s alleged neglect and child abuse. The court appointed an agreed-upon evaluator in October 2023. The evaluation was filed with the court in August 2024. Following completion of the evaluation, Mother objected to the recommendation, and the matter was set for an October 25, 2024 evidentiary hearing. Mother retained counsel who appeared and requested a continuance, which was granted to January 3, 2025. However, with Mother’s consent, counsel withdrew on December 24, 2024. The court held an evidentiary hearing on January 3, 2025, at which Mother appeared in propria persona. Upon motion of Father’s counsel, the court struck certain documents Mother had filed as untimely. Mother also made a motion to continue the hearing to allow her to retain new counsel, which was denied as untimely and without good cause. Additionally, Mother moved the court to independently interview the children in its chambers; this motion was also denied. Ultimately, Mother objected to the evaluator’s recommendation, but offered no evidence at the hearing. The court adopted the evaluator’s recommendation in an order, also dated January 3, 2025. In the custody order, the court adopted in full the recommendation by the court- appointed evaluator as being in the best interest of the children. That recommendation 2. proposed that the parties would have joint legal and physical custody of their three children—T.T., G.T., and E.T., ages 16, 12, and 11, respectively—with primary physical custody residing with Father in Washington. The recommendation also included a requirement that Mother complete an outpatient rehabilitation program, as well as attend daily meetings of Alcoholics Anonymous for 30 days, followed by twice weekly meetings for six months. Once Mother had completed these steps, she would be permitted to have the minor children live with her during their school breaks and during the summers. Mother was also permitted to have the children stay with her for one weekend a month in Washington. A notice of appeal was timely filed. DISCUSSION A. Legal Standards We review child custody decisions for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) The court’s exercise of discretion is based on its determination of what is in the “best interests” of the child, based on the evidence available to the court. (Ramsden v. Peterson (2022) 76 Cal.App.5th 339, 345; Fam. Code, § 3011.) The court looks to all the circumstances bearing on these interests. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.) “ ‘[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]’ [Citation.] To the extent that a trial court’s exercise of discretion is based on the facts of the case, it will be upheld ‘as long as its determination is within the range of the evidence presented.’ ” (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) We apply the substantial evidence test and will find an abuse of discretion only “ ‘if there is no reasonable basis on which [the court] could conclude that its decision advanced the best interests of the child.’ ” (Noble v. Superior Court (2021) 71 Cal.App.5th 567, 578.)

3. Additionally, we note as a general matter that trial court rulings are entitled to a presumption of correctness, and the burden of showing both error and prejudice is placed squarely on the appellant, which in this case is Mother. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Assn. (2023) 94 Cal.App.5th 1050, 1070; Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) We do not construct arguments for appellants, nor do we seek out evidentiary or legal support for appellants’ positions; if an appellant fails to adequately support their arguments with citations to the law or record, we may treat those arguments as forfeited. (Helm v. City of Los Angeles (2024) 101 Cal.App.5th 1219, 1228, fns. 5–7; LNSU #1, LLC, supra, at p. 1070.) We apply the same burden to parties representing themselves as we do to parties represented by counsel. (Rappleyea v. Cambell (1994) 8 Cal.4th 975, 985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.) B. Analysis 1. The Trial Court Did Not Err by Denying Mother’s Request for Continuance Mother first claims the trial court erred by denying her oral request for a continuance at the contested hearing on January 3, 2025, apparently so that she could seek new counsel. Motions for continuance rest in the sound discretion of the trial court, which has the inherent power to manage its own docket by denying continuances unsupported by a showing of good cause; this discretion will only be overridden upon a showing it was abused. (People v. Brown (2023) 14 Cal.5th 530, 534.) Among the potential grounds for a continuance of a trial or hearing is the substitution of trial counsel, “but only where there is an affirmative showing that the substitution is required in the interests of justice.” (Cal. Rules of Court, rule 3.1332(c)(4).) However, in determining whether a continuance should be granted, the court may consider all of the factors of the case, including the proximity of the hearing date, whether there have been previous 4. continuances, the length of the continuance requested, the prejudice that might occur as a result of the continuance, and more. (Cal. Rules of Court, rule 3.1332(d).) Here, Mother agreed to the withdrawal of her attorney from the case shortly before the scheduled evidentiary hearing. By this point, the hearing had already been continued once for several months to permit Mother’s new attorney to acquaint himself with the case. There was significant risk of prejudice to both Father and the children by continuing to delay the hearing, as part of the evaluator’s recommendation was that primary physical custody of the children should be transferred to Father due to Mother’s alcohol abuse. The record contains no indication that Mother had or could obtain a new attorney in short order; instead, her briefing here suggests the trial court could have made an award of attorney fees to her pursuant to Family Code section 2031, subdivision (b)(1), which presumably then would have allowed her to obtain different counsel. However, there is no indication in the record that Mother made such a motion or request. (Overgaard v. Johnson (1977) 68 Cal.App.3d 821, 826 [“[I]ssues not raised in the trial court cannot be raised for the first time on appeal.”].) Accordingly, we find no abuse of discretion in denying this further continuance.1 2. There was Substantial Evidence to Support the Trial Court’s Custody Order Appellant argues there was no substantial evidence to support the trial court’s custody order, because there was insufficient evidence of either domestic violence or alcohol abuse to warrant a change in the children’s primary physical residence. Similarly, Mother claims the court erred because it was not in the best interests of the children to move out of state with Father. We find there was substantial evidence to 1 To the extent Mother makes reference to ethical rules concerning her prior attorney’s withdrawal from the case, we note she signed a substitution of counsel affirmatively requesting she be substituted in as counsel and specifically stating “I consent to this substitution.”

5. support the court’s conclusion that the best interests of the children dictated they live primarily with Father. As stated above, the trial court’s duty in child custody disputes lies firmly in determining the best interests of the children, and the court has wide-ranging discretion in making that determination upon consideration of all the circumstances of the case. (Ramsden v. Peterson, supra, 76 Cal.App.5th at p. 345; Noble v. Superior Court, supra, 71 Cal.App.5th at p. 578; In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197; Fam. Code, § 3011.) Once accepted into evidence, a child custody evaluation “is competent evidence as to all matters contained in the report.” (Fam. Code, § 3111, subd. (c).) Here, the evaluation contains substantial and significant evidence supporting the trial court’s decision. The evaluation notes the evidence supporting serious alcohol abuse by Mother came from multiple sources, not solely from Father. Even Mother herself admitted to the evaluator that she drank significant amounts of alcohol, which was notable considering the evaluation also specifically observed that Mother was evasive and guarded in her responses, and gave contradictory information. The fact of her ongoing alcohol abuse was especially significant, given that prior orders from the court required her to abstain from alcohol while in the presence of the children. Further, the evaluation recounted substantial evidence of domestic violence. While the evidence of physical violence was somewhat limited, the evaluator noted that there were multiple sources detailing serious conflict between Mother and her current husband. It also noted concerns that, while Mother and her current husband were purportedly separated, the separation may not be intended to be permanent and might have been constructed to avoid scrutiny from the evaluator. Ultimately, the evaluator recommended the court require Mother to advise if she and her current husband reconciled. Further, the evaluation noted that the only real criticism of Father came in the form of claims that he was absent from his children’s lives, which the evaluator found not 6. true, noting Father had regularly exercised his visitation rights. The evaluator noted there were no concerns of alcohol or drug use, or domestic violence or other conflicts in Father’s household, nor were any concerns raised that Father would be unable to care for the children. Further, the evaluator expressly considered the difficulty of having the children move out of state and noted that various people had voiced confidence in the children’s social and academic skills to allow them to adapt to a different school and community. The evaluation also recommended Father and the children complete family therapy to assist with the transition. It is therefore clear the court considered the children’s relocation out of state in its analysis of what was in their best interest, and there is substantial evidence to support its ultimate conclusion here. In total, we cannot say the trial court’s decision that it would be in the best interests of the children to reside primarily with Father is without a reasonable basis in fact. We affirm the court’s conclusion.

3. The Trial Court Did Not Err in Striking Mother’s Witness Declarations Mother next argues the trial court erred by striking as untimely declarations submitted from her parents and her sister. These documents were filed by Mother on December 20, 2024. She claims these declarations were not untimely “[b]ased on the October 25, 2024, minute order.” The only deadlines set in the minute order of October 25, 2024 were that the evidentiary hearing would occur on January 3, 2025, and that the parties were required to file and serve witness lists by December 20, 2024. We find no error. The court’s September 5, 2025 settled statement provides that, at the hearing in this matter, “[u]pon motion of counsel for respondent, documents recently filed by appellant were stricken as untimely.” It is unclear whether the documents referred to in the settled statement are the declarations filed by Mother on December 20, 2024. Notably, Mother submitted numerous additional documents on December 27, 2024—seven days after the deadline to serve witness lists—in the form of 7. a “Proposed Exhibit List” that included report cards, counseling documents, and “medical proof of [the children’s] health.” Mother also filed an untimely “Proposed Witness List” on December 27, 2024. It seems likely the documents filed by Mother on December 27, 2024, were those referenced as stricken by the court in its settled statement, and that it fully considered the declarations submitted on December 20, 2024. Mother points to nothing in the record suggesting otherwise. Moreover, even presuming the declarations were not considered and that failing to consider them was error, Mother cannot show any error was prejudicial. “[T]he erroneous exclusion of evidence does not require reversal unless the error caused a miscarriage of justice. (Evid. Code, § 354.) The applicable prejudice test is whether there is a ‘reasonable probability [appellant] would have obtained a more favorable result had [the evidence] been admitted.’ ” (People v. Bingham (2023) 95 Cal.App.5th 1072, 1080; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801 [noting standard applies in civil as well as criminal cases].) The declaration from Mother’s sister offers little more than her general opinion that the children would be better off with Mother, but does not in any way reference the two most salient issues: Mother’s alcohol abuse and the domestic violence. The declaration submitted by Mother’s parents—which is framed as a joint declaration from both individuals—contains a litany of largely minor and/or irrelevant claims about Father, but barely references the alcohol abuse and domestic violence issues which are at the heart of the evaluator’s recommendation and the court’s order. The portion that does reference these issues is largely duplicative of statements included in the evaluator’s report, which is unsurprising, since Mother’s parents were interviewed as part of the child custody evaluation, and their comments were included in the report and considered by the evaluator in making recommendations. Moreover, the evaluator noted Mother’s parents made statements about Mother’s issues that were contradictory to other information and thus lacked some credibility and displayed hostility toward Father. As such, even assuming the court did not consider these 8. declarations, there is no reasonable probability Mother would have obtained a more favorable result had it done so. Mother’s parents’ statements were considered by the evaluator, and their one-sided opinions were not reasonably likely to change the court’s approach or cause it to not follow the evaluator’s recommendation. Mother has not sustained her burden of showing either error or prejudice.

4. The Trial Court Did Not Err by Failing to Speak with the Children in Chambers Lastly, Mother claims the trial court erred by failing to meet privately with the children in camera and interview them about their parental preferences. The settled statement notes that Mother’s “oral motion for the court to interview the children in chambers was also denied.” Mother’s sole legal citations are to Family Code section 3042 and Evidence Code section 765, neither of which show error here. Family Code section 3042 provides, “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.” (Id. at subd. (a).) With a witness under the age of 14, the court “shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions.” (Evid. Code, § 765, subd. (b).) Additionally, the court “shall control the examination of a child witness so as to protect the best interest of the child.” (Fam. Code, § 3042, subd. (b).) Children over the age of 14 that wish to address the court “shall be permitted to do so,” unless the court finds it is not in their best interest; children under the age of 14 may be permitted to address the court, if it is appropriate and in the child’s best interest. (Fam. Code, § 3042, subds. (c), (d).) “If the court precludes the calling of a child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.” (Fam. Code, § 3042, subd. (e).)

9. There is no error for multiple reasons. First, there is no indication that Mother sought to call any of the children to testify and was denied the ability to do so. None of the children appear on Mother’s untimely witness list, and there is no indication she attempted to call them for questioning. Second, the children were expressly asked about their preferences by the evaluator, who included explanations about this in the child custody evaluation. We find no error in the trial court declining to meet and interview the children, given that neither party sought to call the children as witnesses and the information had already been acquired in other ways. DISPOSITION Given all of the above, we find no error and affirm the trial court’s order. Father shall recover his costs.

FRANSON, Acting P. J. WE CONCUR:

DE SANTOS, J.

HARRELL, J.

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