RONALD PIERCE v. NADIRA ARREOLA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

In this family law case, Ronald E. Pierce appeals from the trial court's order entered on November 30, 2010, which among other things denied his motion to dismiss (i.e., dissolve) the restraining order against him.   Pierce argued that his ex-wife, Nadira M. Arreola, had abused the restraining order in a manner that interfered with Pierce's parental rights.   The trial court disagreed, found there was insufficient evidence to justify the relief sought and denied the motion.   Pierce's appeal followed.   We conclude that Pierce has failed to demonstrate the trial court abused its discretion.   The order is accordingly affirmed.

A. Procedural History and Background

Pierce has not provided an adequate summary of the procedural history of this case.   In the interest of filling in the contextual background, we take judicial notice of, and reiterate below, relevant portions of our synopsis of the factual and procedural history of this case that we set forth in our recent nonpublished opinion in Pierce v. Arreola (Aug. 31, 2011, F061097).  This will be an abbreviated summary only.

Pierce and Arreola were married in 1992 and, during their 15–year marriage, they had three children.   On January 30, 2008, Pierce filed a petition for dissolution of the marriage.   Arreola filed a response to the petition on February 28, 2008, agreeing that the marriage should be dissolved.   A status-only judgment of dissolution was entered by the trial court on September 4, 2008, with all other issues reserved.

Temporary Restraining Order

On February 29, 2008, Arreola filed a motion for temporary protective orders against Pierce to prevent domestic violence, including a request for a stay away order and an order to prevent acts of harassment and other personal contact.¹  Arreola's motion included a request that she receive sole physical custody of the children and that Pierce be allowed reasonable visitation.   In support of her request for such orders, Arreola's declaration stated that Pierce is violent and unable to control his anger, and she provided several examples of Pierce's angry tirades that included yelling, throwing objects and breaking property items.   On March 3, 2008, the requested relief was issued by the trial court as a temporary restraining order, effective pending the outcome of a contested hearing or trial of custody issues.   (Pierce v. Arreola, supra, F061097, at p. *2.)

Prior to the contested custody hearing, a number of continuances occurred because issues arose that required further evaluation by the trial court, including evidence that Pierce struggled with severe depression, thoughts of suicide (for a time) and had posted comments on Internet Web sites such as the statement that he would like to go on a “killing spree of ․ global proportions.”   Pierce did not deny making that latter statement, but explained he was merely expressing his thoughts in the context of a vampire game where he “waxed artistic about [his] despair.”  (Pierce v. Arreola, supra, F061097, at p. *3.)

Contested Hearing on Child Custody and Visitation

The contested hearing on the issue of child custody was finally held on December 8, 2009.   After considering a custody evaluation submitted by a mental health professional, the trial court ordered that, pending further hearing, Arreola would have sole legal and physical custody of the minor children.   Pierce was granted visitation every Saturday at the home of the paternal grandmother from 12:00 p.m. until 6:00 p.m. A further review hearing would occur on April 9, 2010, at which time an expanded parenting plan would be considered.   In regard to the factor of alleged domestic violence, the trial court held that Arreola's allegations “do not rise to the level of domestic violence pursuant to Family Code section 3044.”   Further, the trial court also held that “the restraining order against [Pierce] that is currently in effect shall expire on April 9, 2010, unless there are ongoing issues that warrant extension of the orders.”  (Italics added.)  (Pierce v. Arreola, supra, F061097, at pp.  *3–*4.)

Hearing and Order of April 9, 2010, Regarding Restraining Order

As noted above, the trial court's December 8, 2009, order provided that the restraining order would “expire” on April 9, 2010, unless it was shown there were “ongoing” issues that warranted an extension.  (Pierce v. Arreola, supra, F061097, at p. *4.)

On April 1, 2010, Arreola filed a declaration requesting that the trial court extend the duration of the restraining order.   Arreola's declaration began by reiterating past matters of which the trial court was previously informed, including Pierce's alleged out-of-control anger that led Arreola to originally seek the restraining order, a subsequent domestic violence assessment, and Pierce's online Internet postings in which he admitted to being suicidal, severely depressed ² and also stated (apparently in a game setting) that he would like to go on a “killing spree of ․ global proportions.”   As new and further information in support of her request to extend the restraining order, Arreola's declaration asserted that Pierce was continuing to engage in acts of emotional intimidation and harassment against her, as demonstrated in certain online Internet postings and frivolous legal filings.  (Pierce v. Arreola, supra, F061097, at pp.  *4–*5.)

With regard to new Internet postings, Arreola's declaration and attached exhibits showed that Pierce made an Internet blog entry in December 2009 stating that he would like to see “ ‘the death chamber ’ ” for those involved in the judicial proceedings or “ ‘court-run corruption scheme’ ” that had brought him such misery.   Arreola asserted that she continued to live in fear of Pierce, based in part on this “ongoing pattern of threatening statements on the [I]nternet․”  Arreola's declaration also presented evidence that, in 2009, Pierce posted an interview on Youtube that he conducted with the parties' autistic child about why the child purportedly wanted to stay with Pierce and did not want to live with Arreola.   The public posting of such a sensitive matter was presented to the trial court as further evidence of Pierce's emotional intimidation and harassment.  (Pierce v. Arreola, supra, F061097, at pp.  *5–*6.)

On April 6, 2010, Pierce filed a declaration in opposition to the requested extension of the restraining order.   Pierce decried the fact that Arreola was again “vomiting forth the same tired and perjurious allegations,” and, consequently, it was with “a sigh of weariness over [Arreola's] continued maliciousness” that he presented his response.   He asserted that he was no longer suicidal, not a threat to anyone's safety, and never committed or threatened domestic violence or abuse of any kind whatsoever.   He claimed that, contrary to Arreola's “ ‘scary’ ” portrayal of him, he was in reality a most “benevolent” family man.   As to the Internet postings, Pierce pointed out that he had a right to state his own opinions and political views, including the opinion that Tulare County Superior Court's “sneeringly aloof family law judges,” the “greedy” Tulare County Family Services mental health professionals, and the “twisted” lawyers involved in such proceedings, had been extremely corrupt and evil in how they treated him.   He stated he had learned firsthand how “lives have been uprooted and destroyed by malicious spouses, judicial retaliation, and court racketeering that has nothing to do with the best interests of children․”  He stated that if he was persuaded that some of those “monsters” should “suffer the death sentence” and if he presented that viewpoint on the Internet, he was simply exercising his right to free speech.   He did not deny that he filed the several lawsuits and threatened filing another, as referred to by Arreola, but contended such measures were legally justified in light of all the circumstances and the way he had been treated.   (Pierce v. Arreola, supra, F061097, at pp.  *6–*7.)

The hearing was held on April 9, 2010.   At that time, the trial court issued the following order:  “The court grants [Arreola's] request for continuance of the current restraining order against [Pierce].   The court finds good cause for the issuance based upon the evidence presented.   The restraining order issued March 28, 2008, shall expire on March 28, 2013.   The restraining order shall be subject to existing custody orders and future orders the court may make regarding custodial or visitation plan.”   Pierce appealed from the April 9, 2010 order.   We affirmed that order of the trial court in our nonpublished opinion in Pierce v. Arreola (Feb. 17, 2011, F060078).  (Pierce v. Arreola, supra, F061097, at pp.  *7–*8.)

Visitation Expanded in June of 2010

In the trial court's order of June 25, 2010, Pierce's visitation was expanded.   With respect to visitation, the trial court ruled in relevant part as follows:  “[Pierce's] visitation is immediately modified as follows:  [¶] a. [Pierce] shall have visitation with the children on the 1st, 3rd, and 5th weekends of every month, from Saturday at 9:00 a.m. to Sunday at 6:00 p.m ․ [¶] b. Visitation exchanges shall continue to take place at the Dinuba Police Department. [¶] c. [Pierce's] visits are no longer confined to the residence of [Pierce's mother]. [¶] d. [Pierce] is ordered to administer ․ medication ․ as directed by [the child's] prescription(s) during his visitation and [Pierce's mother] shall ensure that the medications are properly administered. [¶] e. [Pierce's] weekly telephone calls to the children are no longer ordered.   The children are allowed to call and speak with [Pierce] by telephone whenever they would like to do so.”   Pierce appealed from the June 25, 2010 order, which order was affirmed by us in our nonpublished opinion in Pierce v. Arreola (May 20, 2011, F060724).  (Pierce v. Arreola, supra, F061097, at p. *8.)

B. Our Affirmance of Trial Court's Order in Case No. F061379

Because Pierce alludes in passing to purported tape-recorded evidence that Arreola and her boyfriend were slapping the children, we briefly point out that Pierce raised that same matter in a prior appeal (case No. F061379) in which we affirmed the trial court's order denying Pierce's request for a protective order and for a modification of child custody.   We upheld the trial court's denial of such relief because its conclusion that there was no physical abuse was supported by substantial evidence, including credible evidence that Pierce had coached the children to say certain things in tape-recorded interviews he conducted.  (See Pierce v. Arreola (Aug. 31, 2011, F061379) [nonpub. opn.].)

C. The Order from Which Pierce Now Appeals

This brings us to the November 30, 2010, order from which Pierce presently appeals.   That order denied Pierce's request to dismiss the restraining order against him and/or to modify child custody.   We briefly summarize Pierce's motion and the evidence offered in support of and in opposition to it.

As noted above, Pierce is subject to a restraining order that was issued by the trial court for Arreola's protection.   The restraining order includes a requirement that he stay a certain distance (50 yards) away from Arreola.

On October 27, 2010, Pierce filed a Judicial Council Form notice of motion (form FL–301) on which he checked boxes indicating he was seeking modification of child support.   The notice of motion referenced an attached motion to dismiss, which was entitled, “motion to dismiss protective order and/or order for reinstatement of parental [human] rights.”   This was the only formal written motion that accompanied Pierce's notice of motion.   The motion referred to an incident occurring on October 1, 2010.   According to Pierce's version of what happened that day, Pierce had worked out an arrangement to appear at his children's schools on Fridays to pick up assignments and other school materials.   The school where one of his children attends was also where Arreola was employed.   On October 1, 2010, when Pierce arrived to pick up the materials, the principal informed him that Arreola was nearby and that Pierce was in violation of the restraining order.   The principal demanded that Pierce leave, which he did.   The following morning, Pierce went to the Dinuba Police Department at the usual time to pick up his children for visitation over the weekend.   At the police station, he was detained and questioned by police officers in front of his children regarding the incident at the school.   Pierce believes that Arreola entrapped him at the school and called the police.   He refers to the incident as evidence that the restraining order should be dissolved.

Opposition to Pierce's motion was filed by Arreola on November 9, 2010.   Arreola's opposition sought monetary sanctions against Pierce for filing yet another baseless motion.   Arreola's declaration in opposition stated as follows:

“3. [Pierce's] dispute appears to lie with the school at which I work.   [Pierce] is prohibited from being within 50 yards of me, for my protection.   A copy of the restraining order was provided to my employer.   According to [Pierce's] motion he has contacted the school and they have made arrangements to provide copies of the children's hand-outs and school activities to him on a weekly basis, and agreed to provide the documents to [Pierce's] mother if he was unable to retrieve them.  [Pierce] also admits that he has failed to pick up those documents for weeks at a time, despite the arrangements the school made for him.   Whatever conflict is going on between the school and [Pierce] is of his own doing.

“4. When [Pierce] appeared at my school on a recent Friday afternoon while I was present a few feet away, in clear violation of the court order, the school contacted the police.  [Pierce] left before the police arrived.   I was questioned about what had occurred.   The officer made repeated calls to [Pierce] to interview him regarding the incident.   In my presence the officer called [Pierce's] home and spoke with [h]is father, and asked that [Pierce] call him that night.   He also left messages on [Pierce's] other phones.   I asked the officer to please contact [Pierce] before our Saturday morning exchange so that the children would not be present.   He said he would make every effort to do so.   I did not contact the police any further.   When we arrived at the Dinuba Police Department for our usual exchange, I walked into the lobby with the children as we do for every exchange.  [Pierce] was out in the parking lot, and crossed the street to receive the children.   The children walked outside to meet [Pierce], as they do for each exchange.   As I always do, I remained in the lobby waiting for [Pierce] to leave.   After the children walked out of the police station and met with [Pierce], two uniformed officers walked through the lobby past me and went outside where they approached [Pierce].   I had not spoken to any officer that day.  [Pierce's] mother was present during the exchange and stood there with the children while [Pierce] was being interviewed, rather than putting them in the car or removing them from the situation.   They clearly wanted the children to be present for the police interaction.   If either one of them was concerned for the children's emotional well-being, they could have easily removed the children from the situation. [¶] ․ [¶]

“6. I have not abused the restraining order.  [Pierce] is well aware of the parameters of the restraining order issued against him, and well aware of where I work.   If he chooses to violate the terms of the court order, he knows that he can be prosecuted thereon.   If he does not want to be in violation he can make alternative arrangements to access our children's information.   For instance, he had already made arrangements for his mother to retrieve the children's school records for him on a weekly basis, so he is obviously able to make these types of arrangements.   My understanding at this point is that [Pierce] is refusing to cooperate with the school district, has threatened to sue them, and has filed complaints against two of the children's principals.”

Pierce's reply accused Arreola of perjury, reiterated his view that the restraining order was abused by Arreola and asserted that his rights as a father were and are being violated.   Pierce said that since there were arrangements in place to pick up his children's documents, he did not expect (nor did he see) Arreola nearby when he went into the school office.

On November 30, 2010, the trial court denied Pierce's motion in its entirety and denied Arreola's request for monetary sanctions.   In its written order, the trial court explained its denial of Pierce's motion as follows:  “(1) The court denies [Pierce's] request to modify child custody as there is no evidence of a change of circumstances to justify modification.  [¶] (2) [Pierce's] motion to dismiss and request for reinstatement of rights is denied.  [¶] (3) [Pierce's] request to modify the restraining order against him is denied.   The court does not find that the circumstances presented justify modification of the restraining order.  [¶] (4) It is suggested that [Pierce] alert the child [']s ․ school when he desires to pick up materials from the school.  [Pierce] is encouraged to work with the school in this regard.”

Pierce's timely notice of appeal was filed on December 8, 2010.

DISCUSSION

I. Pierce's Burden As Appellant

“ ‘A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.   This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’  [Citations.]”  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) ³  “ ‘The burden of affirmatively demonstrating error is on the appellant.’  [Citation.]”  (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)   The judgment or order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.  (Ibid.) The appellant has the burden of overcoming the presumption that a judgment is correct by providing an adequate record demonstrating error (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132), and by presenting argument and legal authority, along with specific citations to the record, to support the particular claim of error (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856;  McComber v. Wells (1999) 72 Cal.App.4th 512, 522–523;  Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557).   These requirements apply equally to appellants acting without an attorney.  (McComber v. Wells, supra, at p. 523.)

As a consequence of the appellant's affirmative burden of demonstrating reversible error based on adequate legal argument and citation to the record (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556–557), when points are perfunctorily raised, without adequate analysis and authority, or without citation to an adequate record, we pass them over and treat them as abandoned (People v. Stanley (1995) 10 Cal.4th 764, 793;  Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700).

II. Standard of Review

It appears that Pierce's appeal primarily challenges the trial court's denial of his request to dismiss the restraining order.   We review the trial court's order under the abuse of discretion standard since an order determining whether to grant, deny, dissolve, or modify a restraining order “ ‘ “ ‘rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case․’ ” ' ”  (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495, quoting Salazar v. Eastin (1995) 9 Cal.4th 836, 849–850.)   The same standard applies to appellate review of a grant or denial of motion regarding a protective order to prevent domestic violence.  (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)

An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)  “ ‘[T]he showing on appeal is wholly insufficient if it presents a state of facts ․ which ․ merely affords an opportunity for a difference of opinion.   An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’  [Citation.]”  (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)  “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.   When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”   (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.)   To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review.  (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)

Pierce also appears to challenge the trial court's denial of his request to modify child custody (which Pierce labeled as a request to restore parental rights).   The standard of review from a denial of a request to modify child support is well-established.   Once there has been a final custody determination, the parent “seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare.”  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.)   However, if the requested modification would only alter the details of the parenting schedule or visitation arrangements, and would leave the existing custody order otherwise the same, the trial court applies the best interest of the child standard.  (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077–1080.)

“The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.  [Citation.]  The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.   We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked.  [Citation.]”  (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.)  “The test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but ‘whether the trial court could reasonably have concluded that the order in question advanced the “best interest” of the child.’  [Citation.]”  (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)  “ ‘When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’   [Citation.]”  (Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 420.)

III. No Error or Abuse of Discretion Shown

Pierce contends on appeal that the trial court abused its discretion when it failed to dismiss or dissolve the restraining order.   The record does not support Pierce's claim.   The trial court found that the evidence presented did not justify the relief sought by Pierce.   That evidence consisted of conflicting declarations from the parties regarding the October 1, 2010, incident.   Obviously, the trial court was entitled to decide upon credibility and weight of the evidence and to resolve the conflict.   It did so.   The trial court implicitly found Arreola's version of events to be more credible and concluded there was no conduct that would justify termination of the restraining order.   Since that finding was clearly supported by substantial evidence (i.e., Arreola's declaration), the trial court did not abuse its discretion in denying Pierce's request.   For the same reasons, Pierce has failed to show that there was any substantial change of circumstances to justify a potential modification of the child support.   Therefore, the trial court did not abuse its discretion when it denied that additional aspect of Pierce's motion.   In conclusion, no error or abuse of discretion has been shown by Pierce and the record plainly supports the trial court's determinations.

DISPOSITION

The trial court's order is affirmed.

Kane, Acting P.J.

WE CONCUR:

Poochigian, J.

Detjen, J.

FOOTNOTES

FN1. We sometimes refer to the protective orders as restraining order(s) herein..  FN1. We sometimes refer to the protective orders as restraining order(s) herein.

FN2. Pierce has admitted being diagnosed with “Severe Depressive Disorder.”.  FN2. Pierce has admitted being diagnosed with “Severe Depressive Disorder.”

FN3. “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ”  (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.).  FN3. “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ”  (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)