T.G. v. M.D. CA4/3

Filed 11/12/26 T.G. v. M.D. CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 T.G., Plaintiff and Respondent, G065713 v. (Super. Ct. No. 24P000142) M.D., OPINION Defendants and Appellants. Appeal from a judgment of the Superior Court of Orange County, Mary Kreber-Varipapa, Judge. Affirmed. T.G., in pro. per., for Defendant and Appellant. M.D., in pro. per., for Plaintiff and Respondent.  M.D. (mother) and T.G. (father) are the parents of one minor child. The parents were never married and separated in February 2022. In April 2025, after two years of litigation, the trial court issued a final judgment ordering the parents to share joint legal and physical custody of the minor. The court’s order outlined a visitation schedule and addressed custodial arrangements during vacations, holidays, and other special occasions. Mother appeals from the final judgment and asserts seven arguments. First, the trial court’s failure to apply the rebuttable presumption under Family Code section 30441 was reversible error. Second, the court violated her due process rights by modifying custody at a hearing noticed only for child support. Third, the court erred by excluding corroborating evidence without making good cause findings under section 217. Fourth, the court’s credibility finding is not supported by substantial evidence. Fifth, granting father final decision-making authority was not in the minor’s best interest. Sixth, the court abused its discretion by imposing monetary sanctions without identifying statutory authority or sanctionable conduct. Seventh, the cumulative effect of the court’s errors denied mother a fair trial and requires reversal. We find no error and affirm. FACTUAL AND PROCEDURAL BACKGROUND Mother first petitioned the trial court for custody and support of the minor one month after she and father separated in March 2022. Early the following year, the parents filed competing requests for orders. Mother 1 All further section references are to the Family Code unless otherwise specified. 2 sought joint legal custody and sole physical custody. Father sought joint legal and physical custody. While the parents litigated the matter, they continued to abide by various temporary custody agreements. In March 2025, the trial court issued a judgment granting the parents joint legal and physical custody and granting the father final decision-making authority regarding education and medical decisions. The court determined there was insufficient credible evidence to find father had perpetrated domestic violence as alleged by mother. The court also granted father’s request for sanctions against mother. Mother timely appealed. DISCUSSION I. PRINCIPLES OF APPELLATE LAW We begin with principles of appellate law particularly applicable in this case in that they guide our review.2 First, the parties must support their factual assertions with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Mother’s brief contains numerous factual assertions without citation, and when she does provide citations, they often do not support her factual assertions. We therefore disregard the asserted facts that are not supported by a proper citation. (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868.) Second, “‘“[a]s a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere 2 As a self-represented litigant, mother “is entitled to the same but no greater consideration than other litigants,” and she must therefore follow the rules of appellate procedure. (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861.) 3 to the theory (or theories) on which their cases were tried.”’” (Hewlett- Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.) There is no indication mother previously raised many of the issues she now complains of, preventing her from raising them in this appeal. Third, “‘[w]here a point is merely asserted by [appellant] without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418.) Where mother asserts arguments without substance or authority, which she does, we need not consider or discuss them. II. LAW APPLICABLE TO CHILD CUSTODY MATTERS “Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child.” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro); §§ 3011, 3040.) In determining the best interest of the child, section 3011 directs the court to consider “all relevant factors, including the child’s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child’s contact with the parents.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955–956; § 3011.) “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 (Burgess); accord, Montenegro, supra, 26 Cal.4th at p. 255.) “[W]e must uphold the [family] court ‘ruling if it is correct on any basis, regardless of whether such basis was actually invoked.’” (Montenegro, at p. 255.) “A discretionary order that is based on the application of “improper 4 criteria or incorrect legal assumptions” is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124–1125.) We apply the substantial evidence standard to the court’s factual findings. (See Burgess, at p. 32; In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) III. PRESUMPTION UNDER SECTION 3044 Pursuant to section 3044, “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against” specified parties, including the child, “there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child . . . . This presumption may only be rebutted by a preponderance of the evidence.” (Id., subd. (a).) A. Whether Section 3044 Applies Mother argues the trial court should have determined section 3044 applies because she presented evidence of four domestic violence incidents that occurred within the past five years. Mother does not support her factual assertions with citations to the record. Moreover, mother does not identify any court findings on the four allegations of domestic violence, and our independent review of the record does not reveal any. When considering whether there was sufficient evidence of domestic violence to trigger section 3044, the trial court considered mother’s evidence of domestic violence. This evidence included text messages where father expressed wanting to kill himself, messages showing father controlled 5 mother’s behavior, messages showing he regularly tracked her location, and photos of a door with a hole. The court also considered a Child Custody Investigation (CCI) report. While the CCI report shows both parents acknowledged the prior restraining order, it also reflected that neither parent had any current concerns of domestic violence at the time of the report. Because mother was concerned about father’s “continued harassment” of following her home and recording custodial exchanges, she was in the process of filing a new restraining order. Father believed mother filed the November 2023 restraining order to reduce his parenting time. Although father admitted he recorded custodial exchanges in the past because mother had falsely accused him of not using his allotted parenting time, he had not recorded custody exchanges since December 2023. The court also explained it found mother’s allegations of domestic violence were not credible. On this record, mother has failed to establish that section 3044 applies, and no error has been shown on this ground. To the extent mother argues the police report documenting a February 2022 domestic violence incident and a November 2023 temporary restraining order should have automatically triggered the section 3044 presumption, she does not provide legal authority to support her contention. In any event, she is incorrect.3 The temporary restraining order did not require findings. Instead, the trial court conducted a facial review of the allegations to determine if they would constitute abuse. (See Nakamura v. 3 The record shows mother obtained a temporary restraining order. In her request for the order, mother includes a copy of the February 2022 police report. After the order expired, mother failed to appear at her hearing to request a permanent restraining order. 6 Parker (2007) 156 Cal.App.4th 327, 337 [finding that a jurisdictionally adequate request for a temporary domestic violence restraining order may only be summarily denied if the facts alleged fail to constitute abuse].) As such, the issuance of the temporary order meant mother’s allegations, if true, were sufficient to constitute domestic violence, but there were no findings of domestic violence at that time. Similarly, the police report alone did not require any findings. Thus, the court did not err by not automatically applying the section 3044 presumption because of the police report or the temporary restraining order. B. The Trial Court’s Reliance on Investigations and Reports Mother also contends the trial court erroneously relied on the CCI report and a co-parenting therapist’s reports in determining section 3044 did not apply because the reports did not discuss domestic violence allegations. Again, mother does not support her factual assertions with citations to the record. The record shows the trial court did not rely on the therapist’s reports in considering whether the section 3044 presumption applied. The court did rely on the CCI report. However, the CCI report provides an extensive discussion on domestic violence issues between the parents. Under the section “scope of investigation,” the report states “[d]omestic violence . . . [is] considered in this investigation and if not specifically addressed, [is] ruled out based on the information gathered.” Under the same section, the report lists “[s]pecific issues identified by the Court in its referral.” “Domestic [v]iolence” is listed. The CCI report also acknowledges mother’s November 2023 temporary restraining order. In the second-to-last section of the report labeled “evaluation,” the report lists the “[i]ssues addressed in the 7 investigation.” Again, domestic violence is listed. Under the same section, there is a paragraph describing the domestic violence issues. Also, as discussed above, the CCI report indicates the investigator discussed domestic violence issues with both parents. Ultimately, the CCI report investigator determined that although mother indicated she was in the process of re-filing a restraining order request, neither parent had provided any information “that showed current concerns of domestic violence.” C. The Trial Court’s Rebuttal of Section 3044 Mother argues the trial court improperly determined it had evidence to rebut the section 3044 presumption and engaged in an impermissible “hypothetical or conditional” rebuttal.4 Even if we assume the court’s section 3044 rebuttal was an error, it was harmless. As we have described above, the section 3044 presumption was not triggered. Thus, the court was not required to put its findings that the presumption was overcome on the record. In re Marriage of J.G. & K.G. (2025) 110 Cal.App.5th 1214, 1223 [“Once the presumption in section 3044 is triggered, the court must determine—putting its findings on the record—the presumption has been overcome before it can award sole or joint legal or physical custody to the perpetrator”].) The case mother cites in support, Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, is distinguishable. There, the trial court determined the father’s history of verbal harassment supported a finding the father had perpetrated domestic violence and thus triggered the section 3044 4 The court explained that if the presumption did apply, there was sufficient evidence to rebut the presumption because the parents had “undergone certain therapy” and are continuing to undergo therapy. 8 presumption. (Id. at pp. 1027, 1033.) Here, the court determined the presumption did not apply, and thus it was not required to rebut the presumption. IV. NOTICE Mother contends the trial court violated her due process rights by modifying custody at a July 2023 hearing because the notice for the hearing indicated only that child support would be addressed. Mother does not provide a record citation for the alleged faulty notice. The record shows the trial court held a hearing on the custody issue in April 2023. At the end of the hearing, the court continued the matter to July 2023 and stated it would only address the calculation of child support at the next hearing. The minute order indicates the parties waived notice. At the beginning of the July 2023 hearing, father’s counsel asserted father was under the impression the parties would be revisiting the parenting schedule. After the parents discussed the child support issue, father’s counsel argued father wanted to modify the temporary custody agreement. Father’s counsel acknowledged the April minute order had indicated only child support would be addressed at the July hearing. Father’s counsel also reported he had spoken to mother’s counsel about addressing the custody order. Because the court had a clear schedule for the day, the court advised counsel they could resolve as many issues as needed. The court advised counsel to meet and confer over a break to set up a new temporary custody order. When the parties returned from lunch, they advised the court they had agreed to a new temporary custody order, and the court accepted the agreement. At no point did mother’s counsel object to the court’s proposition that the parties address 9 the custody order. Because mother did not raise the issue of notice at the July 2023 hearing, she cannot raise it on appeal. V. SECTION 217 Mother contends the trial court failed to comply with section 217’s requirements when it excluded testimony of three corroborating witnesses and imposed time limits without stating specific good cause findings on the record. Again, mother fails to cite the record in support of her allegations. Section 217 requires a court to hear “relevant” live testimony “within the scope of the hearing” when offered by the parties. (§ 217, subd. (a).) If the testimony is from a nonparty witness, the party seeking to present it must “file and serve a witness list with a brief description of the anticipated testimony” prior to the hearing. (§ 217, subd. (c).) A court may refuse live testimony only if it finds good cause for doing so and states its finding “on the record or in writing.” (§ 217, subd. (b).) Rule 5.113 of the California Rules of Court requires trial courts to consider several factors in making a finding of good cause, including whether “a substantive matter is at issue—such as child custody,” whether “material facts are in controversy,” whether live testimony “is necessary for the court to assess the credibility of the parties or other witnesses,” and any other “just and equitable” factor. (Cal. Rules of Court, rule 5.113(b)(1), (2) & (3), unlabeled rule citations refer to these rules.) “If the court makes a finding of good cause to exclude live testimony, it . . . is required to state only those factors on which the finding of good cause is based.” (Rule 5.113(c).) Like other rights, “the right to live 10 testimony may be forfeited.” (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127 [failure to request to testify forfeited right].) The first witness mother identifies is N.C. Mother forfeited her right to present N.C.’s live testimony because mother did not include her in her filed witness list. Moreover, the record does not show mother made an offer of proof about N.C.’s anticipated testimony and she does not do so on appeal. (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 829, fn. 4 [husband who failed to file a witness list or make an offer of proof about the anticipated testimony forfeited argument that court erred in barring testimony].) The second witness mother identifies is A.A. He, like N.C., was not listed on mother’s filed witness list. However, mother did make an offer of proof as to A.A.’s testimony. Mother argued A.A. would testify to an incident of domestic violence he had observed between the parents during which father was driving erratically. The record shows A.A. testified in February 2024 and submitted his declaration. In his declaration, A.A. describes the same domestic violence incident mother indicated he would testify about. Mother did not identify for the trial court or this court what evidence A.A. would have presented through live testimony that would have differed from the testimony in his declaration. (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1165 [“a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal”].) Thus, mother has not demonstrated any prejudicial error in refusing to allow A.A. to testify. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1269 [“Under Code of Civil Procedure section 475, we may not reverse a judgment unless an error was prejudicial and a different result was likely in the absence of the error. Prejudice is not presumed”].) 11  The third witness, E.A., was listed on mother’s witness list and submitted a declaration. However, there is nothing in the record to show mother requested E.A. testify. Nor has she identified, for the trial court or this court, what evidence E.A. would have presented through live testimony that would have differed from the testimony in her declaration. (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1129 [under section 217 husband forfeited right to live testimony, explaining “[i]f husband wanted to testify or examine wife, he could have informed the court of his intent to do so. He did not”].) Thus, mother has not demonstrated prejudicial error as to E.A.’s testimony. VI. CREDIBILITY FINDING Mother next contends the trial court’s credibility determination was not supported by substantial evidence. “[T]he credibility of witnesses is generally a matter for the trier of fact to resolve.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck).) “[S]o long as the trier of fact does not act arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even though the witness is uncontradicted.” (Ibid.) “Consequently, the testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.” (Ibid.) And in general, “[w]e review the trial court’s ruling, not the reasons stated for the ruling.” (Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 358.) 12  Here, mother contends the trial court’s two references to Munchausen Syndrome by Proxy (Munchausen) improperly influenced the court’s credibility determination. The record does not support mother’s contentions. When referencing Munchausen, the court was explaining to the parties that their custody dispute was “a high risk situation” with “extreme allegations.” Moreover, the court clarified that there had been a “discussion” as to whether the circumstances could be designated as Munchausen. The court went on to explain that the parents’ allegations against each other could escalate to child abuse allegations. At no point, however, did the court signal it “had already formed a view” about mother’s credibility. Nor did the court speculate regarding psychiatric syndromes. Next, mother contends the trial court used “clinical or diagnostic terms from psychology or psychiatry.” Mother’s citation does not match the court quote included in this section of her brief. We did locate the quote on our own, but it does not indicate the court “diagnosed” mother with a “perception disorder.”5 Nor does mother cite any legal authority to support her proposition that the court’s use of the phrases “fixed perception,” “concrete thinking,” “hyper vigilance,” or “obsessed” were clinical or diagnostic terms. Because mother has failed to show the trial court’s credibility determination was “built on a fabricated factual premise,” we find no error in the court’s credibility determination as to mother. 5 The court stated: “[P]art of the issues presented in CCI do support the concept that there is a fixed perception about what the petitioner is doing, and it’s not necessarily consistent with the facts that are being presented . . .” 13  VII. FINAL DECISION-MAKING AUTHORITY Mother contends the trial court’s order granting father final decision-making authority on all the minor child’s medical, educational, and therapeutic issues was not in the minor’s best interest. As noted above, the standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) “A trial court abuses its discretion if there is no reasonable basis on which the court could conclude that its decision advanced the best interests of the child.” (Mark T. v. Jamie Z., supra, 194 Cal.App.4th at p. 1124.) In arguing the trial court erred in granting father decision- making authority, mother relies on her premise the court should have applied the section 3044 presumption. She also argues the court’s decision was based on the court’s finding she had a “perception problem.” However, as noted above, mother has neither shown the court erred in refusing to apply the section 3044 presumption, nor shown the court improperly “diagnose[d]” mother with a psychiatric condition. Mother also argues the court failed to consider the minor’s best interest and “affirmatively refused to consider the relevant factors”6 Mother does not cite the record in support of her propositions. Thus, any such contention is forfeited for failure to cite the evidence in the record supporting the judgment and to explain why such 6 The “factors” mother cites are essentially her evidence showing whether the school she preferred would be in the minor’s best interest. 14 evidence is insufficient as a matter of law. (People v. Ashford University, LLC (2024) 100 Cal.App.5th 485, 504.) In any event, the record demonstrates the trial court’s decision regarding school choice is supported by substantial evidence. The parents disagreed on the minor’s school choice for over a year. The court explained it would not make the school choice for the minor because it was concerned the parties would return to litigate the issue in court every year of the minor’s life. Moreover, the court indicated the parties had not had any issues since the temporary order granting father decision-making authority. On this record, the evidence is sufficient to support the court's decision. VIII. SANCTIONS M.D. next contends the trial court imposed monetary sanctions against her without identifying any specific discovery misuse, litigation misconduct, or statutory violation supporting the sanction. The record does not support her argument. The trial quote mother cites in support of her argument occurred after the court stated it had “previously granted” father’s sanction request. The record shows father filed a motion to compel mother’s response to his demand for production in October 2024. In his motion, father sought sanctions pursuant to Code of Civil Procedure, section 2031.320. In January 2025, the court granted father’s motion based on the moving documents and reserved as to the amount of sanctions. Thus, the record does not support mother’s contention that the court imposed sanctions without identifying any specific discovery misuse, litigation misconduct, or other statutory violation supporting the sanction. 15  IX. CUMULATIVE EFFECT Lastly, mother contends the cumulative effect of the trial court’s errors warrants reversal. Assuming for purposes of discussion that the doctrine of cumulative error applies in a civil appeal, we find no such error here. “In examining a claim of cumulative error, the critical question is whether defendant received due process and a fair trial. (People v. Cain (1995) 10 Cal.4th 1, 82.) A predicate to a claim of cumulative error is a finding of error. There can be no cumulative error if the challenged rulings were not erroneous. (People v. Bradford (1997) 15 Cal.4th 1229, 1382 [no cumulative error where court ‘rejected nearly all of defendant’s assignments of error’].)” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) DISPOSITION The judgment is affirmed. Father is awarded his appellate costs. DELANEY, ACTING P. J. WE CONCUR: GOODING, J. SCOTT, J. 16