Filed 1/29/14 Marriage of Chilton CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


In re the Marriage of SHELLEY and                                            2d Civil No. B245836
MICHAEL CHILTON.                                                          (Super. Ct. No. SD 031359)
                                                                               (Ventura County)

SHELLEY CHILTON,

     Appellant,

v.

MICHAEL CHILTON,

     Respondent.



                   After eight years of "incessant, unending" child custody litigation, the trial
court awarded Shelley Chilton (Mother) primary physical custody of the parties' oldest
child and allowed Michael Chilton (Father) to move to Florida with the younger child.
Mother contends the court abused its discretion by refusing to hold an evidentiary hearing
under Family Code section 217.1 We conclude that the court established good cause to
deny the hearing, and that even if it did not, Mother has failed to demonstrate a
reasonable probability that an evidentiary hearing would have changed the result. We
affirm.


          1 All statutory references are to the Family Code unless otherwise stated.
                     FACTS AND PROCEDURAL BACKGROUND
              The parties were married in 1994. They separated 10 years later, when
their sons, W. and A., were ages 7 and 4, respectively. In 2009, following a six-day trial,
the court awarded the parties joint legal and physical custody of both children. The order
was modified several times, primarily because the children "ignored the [c]ourt's orders
for custody and visitation, notwithstanding the best efforts of their therapists and their
attorneys."
              Shortly after the original custody order was entered, A. ran away from
Mother and began living with Father. A. has since refused to communicate with Mother.
In 2010, W. stopped communicating with Father, and Mother was awarded sole physical
custody of W. A year later, W. ran away from Mother's home, refused to communicate
with her, and began living with Father. The court subsequently appointed counsel for
each child. It also appointed therapists to provide reunification services.
              W. resumed contact with Mother in May 2012. Two months later, Father
filed notice of his intent to relocate to Florida with both children, who were then 15 and
12. Mother sought an order enjoining the move. She also opposed Father's suggestion
that W. be given the option of moving, arguing it would be detrimental to separate the
siblings. Over the next several months, the parties exchanged numerous briefs,
declarations and evidentiary objections. No evidentiary hearing was requested.
              The child custody mediator, Rachel Curtis, recommended a new custody
evaluation. Pending that evaluation, she proposed that the children remain in Ventura
County. She also suggested alternative custody schemes (including reunification therapy
for A.), depending upon whether Father moved to Florida or stayed in California. The
parties, including minor's counsel, agreed that a custody re-evaluation was unnecessary.
              After considering the mediator's recommendations, the trial court
announced its tentative decision to separate the children. Mother requested an
evidentiary hearing under section 217. The court inquired: "[W]hat information about
this case would you expect me to learn at an evidentiary hearing that I don't already
know?" Mother's counsel said it would be helpful to hear evidence from the mediator,

                                              2
the parties and perhaps one of the therapists. Counsel for Father and the two children
said they had nothing further to offer.
              The trial court issued its final ruling the following day. First, it made
detailed findings supporting its denial of an evidentiary hearing. It then explained the
extraordinary circumstances justifying separation of the siblings. It observed that A. has
no wish to communicate with his mother or therapists, and that "[o]ver a period of years,
every possible effort has been made to alter this stalemate without any success or hope of
success." The court stated: "None of us know what might happen if [A.] were forced to
live with mother at this juncture. I do not want to find out at [his] expense."
              The trial court found that "[i]f there is any hope of having [W.] develop a
successful relationship with both parents, the Court's only option is to place him with
mother in California during the school year." It noted that "each of the boys has become
empowered, encouraged in large part by the demonstrations of empowerment by the
other." It determined that "giving them the . . . society and companionship . . . of each
other over the eight years since the date of their parents' separation has had a negative,
rather than a positive [e]ffect on their respective relationships . . . with each of their
parents."
              Lastly, the trial court outlined its reasons for approving the move away. It
stated that notwithstanding the original 50/50 parenting plan, Father has become A.'s de
facto sole custodial parent and W.'s primary custodial parent and, as such, has a
presumptive right to move with the children. It found that Father's decision to move was
made in good faith, but reiterated it would be detrimental to W.'s relationship with
Mother if he moved to Florida. Consequently, the court awarded sole legal and physical
custody of A. to Father and primary custody of W. to Mother, with W. to spend summers
and school breaks with Father in Florida. It denied Mother's request for a stay of the
order. Mother appeals.
              We denied Mother's petition for writ of supersedeas. Father and A. moved
to Florida. W. elected to join them and is now attending school there.


                                               3
                                        DISCUSSION
                               Denial of Evidentiary Hearing
              Mother contends the trial court abused its discretion by failing to hold an
evidentiary hearing on Father's request to move to Florida with the children. We
disagree.
              A party generally has a right to call witnesses to testify at a family law
proceeding. (§ 217; Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1345, 1356-1357.)
Pursuant to section 217, the trial court must receive relevant live testimony, absent good
cause for refusing such testimony. (Id. subds. (a), (b); see Cal. Rules of Court, rule 5.113
(formerly rule 5.119).)2 A party seeking to present live testimony from witnesses, other
than a party, must "file and serve a witness list with a brief description of the anticipated
testimony," and if the party fails to do so, the court may grant a brief continuance for this
purpose. (§ 217, subd. (c).) If the court ascertains there is good cause to deny the receipt
of live testimony, it must state its reasons for this finding. (Id. subd. (b).)
              At the time of the hearing, rule 5.119(b) set forth the factors the court must
consider in deciding whether good cause exists to refuse live testimony under section
217: "(1) Whether a substantive matter is at issue . . . .; [¶] (2) Whether material facts
are in controversy; [¶] (3) Whether live testimony is necessary for the court to assess the
credibility of the parties or other witnesses; [¶] (4) The right of the parties to question
anyone submitting reports or other information to the court; [¶] (5) In testimony from
persons other than the parties, whether there has been compliance with Family Code
section 217(c); and [¶] (6) Any other factor that is just and equitable."
              After weighing all of these factors, the trial court found good cause to
decline to hear live testimony. (See § 217, subd. (b).) It explained: "This case has been
assigned to me for many years. The Court file is now in 14 volumes. I have hundreds of
pages of notes. I have read the parties' recent declarations and heard oral argument of all
four attorneys yesterday. [¶] At this stage I have no need to assess the credibility of any


       2 All further references to rules are to the California Rules of Court.
                                               4
witnesses or to adjudicate any material facts as the material facts of this case are well
known to me. This is now purely a case of what decisions are to be made based upon the
application of appropriate legal principles." The court stressed that the children "have
been in the middle of their parents['] constant custody and visitation litigation since this
action was filed more than eight years ago . . . . [¶] By constant litigation the Court
means incessant, unending and without pause. For the boys this has meant therapy
sessions, mediations, evaluations and power struggles in which they have become
irrevocably [en]meshed." It concluded that an evidentiary hearing would merely prolong
this battle while producing little new evidence and "lead to even more animosity among
the four people who are at the center of this dispute."
              Mother concedes the trial court considered each of the factors in rule 5.119,
but claims an evidentiary hearing was required because she did not have adequate notice
of the possibility of separating the children. The record is to the contrary. Mother filed a
declaration four months earlier acknowledging Father's intent "to relocate with the minor
children to Florida, although perhaps only with [A.]." She subsequently submitted a
declaration and points and authorities specifically opposing any separation of the
children.
              Mother contends that, at a minimum, the trial court was required to hear
live testimony from the parties and the mediator. The court has broad discretion,
however, to exclude evidence that is irrelevant, cumulative or overly time consuming.
(Evid. Code, §§ 350, 352; Houghtaling v. Superior Court (1993) 17 Cal.App.4th 1128,
1138.) The court found that it needed no additional information from the parties, who
had filed more than 350 pages of documents in support of their respective positions. The
court further determined that "formal cross-examination of the [mediator] is unnecessary
to the process, as I am intending to make orders based not upon her recommendation but
upon the landscape of this case as it is known to me, the declarations of the parties filed
over the last four months and the comments and arguments of the attorneys made
yesterday." Counsel for Father and the children agreed that no further evidence was
necessary, and Mother's counsel was unable to identify any new, relevant information

                                              5
that would be adduced during live testimony. The trial court's decision to deny an
evidentiary hearing under these circumstances was within the sound exercise of its
discretion. (See § 217; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.)
              Even assuming an evidentiary hearing was required, Mother has not
demonstrated a "'miscarriage of justice' -- that is, that a different result would have been
probable if the error had not occurred." (Zhou v. Unisource Worldwide, Inc. (2007) 157
Cal.App.4th 1471, 1480; City of Oakland v. Public Employees' Retirement System (2002)
95 Cal.App.4th 29, 51-52.) "A judgment cannot be set aside on the ground that the court
erroneously excluded evidence unless the substance, purpose and relevance of the
excluded evidence were made known to the court by an offer of proof or by other
means." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.)
Because no such offer was made, we cannot assess whether a different result would have
been reasonably probable had additional evidence been allowed. (See Magic Kitchen
LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1164-1165.)
              The trial court considered the parties' declarations and the mediator's
recommendations. There is nothing to suggest anything would have been gained by their
live testimony. Indeed, Mother concedes that "[i]t may be that, even after hearing the
testimony of the mediator and the parties, as well as whatever other persons the trial court
allowed the parties to call, the same decision would have been made." The mere
possibility of a different result is insufficient to justify reversal. (People v. Gray (2005)
37 Cal.4th 168, 230; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96.)
                              Motion for Sanctions on Appeal
              Father moves for monetary sanctions against Mother and her counsel for
pursuing a frivolous appeal and violating appellate court rules. (See rule 8.276.)
Although we have rejected Mother's appellate claims, we do not find that she prosecuted
the appeal for an improper motive or that her claims are so bereft of substance as to meet
the stringent standards set by our Supreme Court for deeming an appeal frivolous. (See
In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-651.) We also do not find any


                                               6
significant violation of court rules. (See rule 8.276(a)(4).) Accordingly, the motion is
denied.
                                      DISPOSITION
              The order is affirmed. Father is awarded his costs on appeal.
              NOT TO BE PUBLISHED.



                                          PERREN, J.

We concur:



              GILBERT, P. J.



              YEGAN, J.




                                             7
                   John R. Smiley, Judge

             Superior Court County of Ventura

            ______________________________

Taylor, McCord, Praver & Cherry, Patrick G. Cherry for Appellant.
Law Office of Karen J. Segel, Karen J. Segel for Respondent.




                             8
