Filed 9/14/15 Marriage of Wallace CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re the Marriage of SHARONDA and
SHEDRIC WALLACE, JR.

SHARONDA P. WALLACE,
                                                                         E060565
         Respondent,
                                                                         (Super.Ct.No. FAMSS906485)
v.
                                                                         OPINION
SHEDRIC WALLACE, JR.,

         Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael Torchia,

Temporary Judge. Affirmed.

         Shedric Wallace, Jr., in pro. per., for Appellant.

         Lenita A. Skoretz for Respondent.

         After a seven-day marriage dissolution trial, the court issued a domestic violence

restraining order against appellant Shedric Wallace, Jr., and awarded his former wife,

respondent Sharonda Williams, sole legal and physical custody of their child. The court


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also granted Sharonda’s1 request to move to Texas and directed her to make the child

available for weekly telephone conversations with Shedric. It ruled that any in-person

visitation with Shedric must either occur in Texas or under family supervision in

California until Shedric participates in family (or “conjoint”) therapy with the child and

attends an anger management program.

       Representing himself in propria persona, as he did during trial, Shedric challenges

several aspects of the proceedings below. His arguments on appeal can be summarized

into the following claims: (1) the evidence supporting the restraining order was

insufficient; (2) the trial court applied the incorrect standard when determining custody;

(3) the therapist who provided conjoint counseling was biased and unqualified to offer

expert opinion; (4) the court violated his due process right to a court-appointed child

custody evaluator; and (5) the attorney who represented him for about one year in pretrial

proceedings provided ineffective assistance of counsel. Shedric asks that “all rulings

since [his] counsel was appointed be vacated,” or in the alternative that “the judgment be

reversed, and the case remanded for new trial.” We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Because the record on appeal is incomplete, we take most of the background facts

from the court’s 24-page trial ruling. Although there were other aspects to the dissolution

proceeding, such as child and spousal support, division of property, and attorney fees, we


       1We will refer to Sharonda and Shedric Wallace by their first names when
speaking of them individually. We mean no disrespect by the use of their first names.


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discuss only the facts pertinent to the rulings at issue on appeal, i.e., the restraining order,

custody, and visitation.

         The parties were married for about seven years and have one child together, a son

born in 2005. They separated in November 2009, when Sharonda sought a restraining

order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) as well as

a complaint seeking marital dissolution.2 In her request for a restraining order, Sharonda

alleged that Shedric had yelled obscenities at her, choked her, slammed a cast iron skillet

on the kitchen counter and pointed the handle of the skillet in her face, and smashed her

cell phone when she attempted to call the police.3 She alleged that this occurred in front

of the child at their marital residence. She also alleged that Shedric had been physically

and verbally abusive to her on multiple previous occasions and that she was afraid of

him.

         The court issued a temporary restraining order and awarded Sharonda sole legal

and physical custody of the child. The court also ordered the parties to attend mediation

through family court services. The mediator recommended that the parties attend

individual counseling sessions and that Sharonda arrange for individual counseling for

the child. Sharonda began seeing a therapist and taking the child to a different therapist

         2   The domestic violence action and dissolution action were consolidated before
trial.

         By order of August 4, 2014, we granted defendant’s motion to augment the
         3
record as to two of the documents attached to his motion. As to the other documents, the
order deemed them part of a request for judicial notice to be considered with the appeal.
We now grant defendant’s request for judicial notice.


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for counseling. It appears from the record that Shedric did not participate in individual

counseling. The child’s therapist recommended that Shedric attend an anger management

program and participate in conjoint therapy with the child.

       In October 2011, about two years into the proceedings, the parties entered into a

stipulation governing the duration of the temporary restraining order, visitation, and the

commencement of conjoint therapy sessions between Shedric and the child. The

stipulation stated that “an act of domestic violence occurred at the marital residence on

11/3/2009 sufficient to result in the issuance of a domestic violence temporary restraining

order.” The parties agreed that the restraining order would remain in effect for one more

year and that Shedric would have visits with the child on alternating weekends. They

also agreed that Shedric would begin attending family counseling sessions with the child

and they selected Dr. Beth McGuire as the conjoint therapist.

       In the year following the stipulation, Shedric made several filings in which he

questioned the neutrality of both the conjoint therapist and the child’s individual

therapist. Shedric alleged that the conjoint therapist: (1) had developed a conflict of

interest as a result of a billing issue; (2) had a “long and personal” relationship with

Sharonda’s counsel; and (3) worked in an office located in the same part of Redlands as

Sharonda’s attorney’s office and the former office of the commissioner presiding over the

case (when he was a practicing attorney). The court denied Shedric’s request to remove

the conjoint therapist. However, the court also discontinued the conjoint therapy based




                                              4
on its finding that Shedric was not participating in the sessions and “expressed no need or

desire to continue with therapy.”

       The dissolution trial took place over seven days, from late November 2012 to late

July 2013. Shedric included only two days of trial transcripts in the record on appeal.

During those two days, the court heard testimony from Sharonda, Shedric, and the

conjoint therapist.

       Sharonda described the domestic violence incident and the injuries she sustained

as a result of Shedric choking her. She testified that the child had witnessed much of the

incident. She also testified that she remained “tremendously afraid” of Shedric for

several reasons. Namely, because he had been attempting to send messages to her

through the child in defiance of the restraining order and because he refused to accept

responsibility for his actions or take any steps to alleviate his anger or abusive behavior.

She acknowledged that Shedric had never been physically abusive toward their son, but

she stated that the child still had nightmares about the incident and continued to fear

Shedric.

       Sharonda also requested that the court grant her leave to move out of state. She

testified that she had been offered a higher-paying position at a college in Texas. She

also testified that the child was excited about the possibility of moving to Texas and

wanted to go.

       The record indicates that Shedric testified for several days. The two trial

transcripts in the record contain his testimony on the subject of domestic violence during



                                              5
the marriage. Shedric denied that he had physically abused Sharonda during the

November 2009 incident and stated that she had verbally abused him. He explained that

Sharonda was “volatile” when under stress and that his failed business endeavors had

been causing her significant stress. Shedric also claimed that her motivation for seeking

a restraining order was to portray herself as a victim and avoid paying spousal support,

because she was the spouse financially supporting the family. He testified that she had

initiated the domestic violence action so she could have the social life and lifestyle that

she felt she could not have during the marriage.

       Shedric questioned Sharonda’s testimony that the child is afraid or anxious around

him and insinuated that she was trying to influence the child against him. He also

questioned the findings of the conjoint therapist and the child’s individual therapist,

claiming that they were biased against him.

       The record contains the reports that the child’s individual therapist and the

conjoint therapist submitted to the court. Both therapists believed that the child had

witnessed Shedric physically abuse Sharonda during the November 2009 domestic

violence incident and that the child continued to fear Shedric. Both therapists also

advised against increased visitation. In her report, the conjoint therapist stated that she

was concerned about Shedric’s continued refusal to accept responsibility for the domestic

violence incident. She also reported that he had “flared into anger” when she was unable

to meet with him privately after one of the conjoint sessions. She believed that if Shedric

could lose his temper so quickly over a relatively minor scheduling issue, there was a risk



                                              6
that he could lose his temper around the child if the child were to frustrate or irritate him.

She also observed that Shedric was “having difficulty accepting the authority of the

court” and she questioned his willingness to follow court orders. The conjoint therapist

reiterated these concerns during her trial testimony.

       After trial and submission of the parties’ written closing arguments, the court

issued a lengthy ruling containing its reasoning for issuing a three-year permanent

restraining order against Shedric, awarding Sharonda sole legal and physical custody of

the child, and ordering limited visitation with Shedric.

                                       DISCUSSION

       1. The restraining order

       Shedric contends that there was insufficient evidence to support the trial court’s

issuance of a permanent restraining order.

              a. Standard of review

       “The most fundamental rule of appellate review is that a judgment is presumed

correct, all intendments and presumptions are indulged in its favor, and ambiguities are

resolved in favor of affirmance.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th

266, 286 (City of Santa Maria).) When reviewing a trial court’s judgment following a

bench trial, “ ‘ “any conflict in the evidence or reasonable inferences to be drawn from

the facts will be resolved in support of the determination of the trial court decision.” ’ ”

(Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765.) The appellate court




                                              7
“ ‘may not reweigh the evidence and [is] bound by the trial court’s credibility

determinations.’ ” (Ibid.)

       The appellant has the burden of “furnishing an appellate court with a record

sufficient to consider the issues on appeal.” (People v. Neilson (2007) 154 Cal.App.4th

1529, 1534 (Neilson).) Rule 8.830 of the California Rules of Court provides that “[i]f an

appellant wants to raise any issue that requires consideration of the oral proceedings in

the trial court, the record on appeal must include a record of these oral proceedings.”

(Cal. Rules of Court, rule 8.830(a)(2).)

       “An appellate court’s review is limited to consideration of the matters contained in

the appellate record.” (Neilson, supra, 154 Cal.App.4th at p. 1534.) In the absence of an

adequate record to support the appellant’s claim of error, “we presume the judgment is

correct.” (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)

              b. Analysis

       Shedric’s claim that there was insufficient evidence to justify issuing a restraining

order under the Domestic Violence Prevention Act requires consideration of the evidence

presented during trial, and he has only provided transcripts of two of the seven days of

trial. To the extent those two days of transcripts do not reveal substantial evidence in

support of the restraining order, we would have to presume such evidence was contained

in the missing portion of trial. (See City of Santa Maria, supra, 211 Cal.App.4th at

p. 286.) “ ‘ “[I]f any matters could have been presented to the court below which would

have authorized the order complained of, it will be presumed that such matters were



                                             8
presented.” ’ ” (Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197

Cal.App.3d 1032, 1036.) Accordingly, the incompleteness of the record is ground alone

to reject Shedric’s challenge to the sufficiency of the evidence. However, Shedric’s

challenge fails on the additional ground that our review of the two trial days in the record

reveals substantial evidence to support the restraining order.

       The Domestic Violence Prevention Act authorizes a court to issue a restraining

order where a defendant intentionally or recklessly causes or attempts to cause bodily

injury upon a spouse or a child, or places the spouse or child in reasonable apprehension

of imminent serious bodily injury. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264;

Fam. Code, §§ 6220 et. seq.) Here, the record includes Sharonda’s testimony about the

November 2009 incident, which is consistent with her description in her request for a

temporary restraining order filed shortly after the incident. The record also includes the

expert opinion of two therapists, both of whom believe that the child witnessed Shedric

physically abuse Sharonda and that he continues to be afraid of Shedric. It appears that

the record does not contain all of Shedric’s testimony; however, in the transcripts we do

have, Shedric questioned the therapists’ opinions, disputed Sharonda’s description of the

November 2009 incident, and asserted that she was the perpetrator of abuse.

       The trial court weighed all of this evidence and found that Sharonda’s version of

the incident was credible and Shedric’s was not. It also found that the child had

“reported to two highly trained and highly qualified professional therapists that he saw

his father . . . choke his mother, and that, as a result, he was scared and fearful of his



                                               9
father.” It further found that Shedric “continues to deny any responsibility for the

incident, and utilizes carefully nuanced language and a claim of therapist bias to refute

the allegations against him. Despite the fact that he could have worked toward resolving

these issues by, inter alia, conjoint therapy and anger management classes, he has refused

to do so.” Shedric provided testimony to the court, but the court was free not to believe

him. (People v. Dowl (2013) 57 Cal.4th 1079, 1092 [trier of fact need not believe a

defendant’s explanations].) Based on the record we have, there was substantial evidence

to support the restraining order.

       Shedric’s arguments concerning the degree of persuasiveness of the therapists’

opinions or alleged conflicts in Sharonda’s testimony are unavailing under a substantial

evidence review. Conflicts in testimony “ ‘ “ ‘and even testimony which is subject to

justifiable suspicion’ ” ’ ” do not warrant reversal because “ ‘ “ ‘it is the exclusive

province of the trial judge or jury to determine the credibility of a witness.’ ” ’ ” (People

v. Hovarter (2008) 44 Cal.4th 983, 1016.) It is only where the evidence cannot be

deemed as substantial under “ ‘[any] hypothesis whatever’ ” that reversal of a conviction

is warranted. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

       2. The custody ruling

       Shedric contends that the court erred in issuing its custody ruling because it failed

to apply the legal standard applicable to the termination of parental rights. He argues that

by allowing Sharonda to move to Texas, the trial court “effectively terminated [his]

parental rights.” He is incorrect. The court did not terminate his parental rights. The



                                              10
court issued a custody order and, in doing so, correctly applied the standard set forth in

Family Code sections 3200 and 3011, which provide that the best interest of the child

must be the primary concern in a court’s determination of custody and visitation.

       3. The conjoint therapist

       Shedric argues that the court erred in failing to exclude the conjoint therapist’s

opinions because she had a conflict of interest and was unqualified to provide expert

opinion. He asserts that the conjoint therapist had a personal relationship with

Sharonda’s attorney and that they had ex parte communications with one another in

violation of Family Code section 216. He also asserts that the conjoint therapist became

biased against him as a result of a billing “dispute.” Shedric supports his claims of bias

by citation to statutes and case law governing court-appointed child custody evaluators.

We reject these claims because Shedric has not demonstrated any evidence of bias and

because the conjoint therapist was not a court-appointed child custody evaluator.

       Aside from pointing out the fact that the conjoint therapist’s office is located “one

block” away from Sharonda’s attorney’s office, Shedric has presented no evidence that

the therapist and the attorney had a close personal relationship that caused the therapist to

exhibit substantial bias against him. Sharonda’s attorney represented to the court that the

relationship between her and the therapist was professional, not personal. She stated that

many of her clients had seen the therapist for counseling, and that while they have a

“cordial” relationship over the phone, they had never met in person. The trial court found

that Shedric had not shown any bias on the part of the conjoint therapist.



                                             11
       Unable to point to any evidence of a personal relationship, Shedric claims that

Sharonda’s attorney had ex parte communications with the conjoint therapist about the

case in violation of Family Code section 216. Not only has Shedric failed to show any

evidence of such ex parte communications, but also the Family Code section prohibiting

ex parte communications between counsel and therapists applies to court-appointed child

custody evaluators. (Fam. Code § 216, subd. (a).)4 The conjoint therapist was not a child

custody evaluator appointed by the court pursuant to Evidence Code section 730 and rule

5.220 of the California Rules of Court. The parties agreed to hire her as part of the

October 2011 stipulation.

       As to the billing issue, Sharonda’s counsel’s representations to the court, as well

as the email communications attached to one of Shedric’s filings, demonstrate that the

issue was resolved in short order when the therapist determined that Sharonda would be

covering the costs of the sessions because the child was not covered by Shedric’s

insurance. Shedric has provided no evidence that the therapist’s professional neutrality

was compromised by a minor billing issue. In short, we see nothing from our review of

the record that indicates the conjoint therapist was biased against Shedric.

       Lastly, Shedric contends that if the conjoint therapist was not court appointed and

therefore “not bound by Cal. Rules of Court, Rule 5.220,” she was nevertheless

unqualified to provide expert opinion and he should have been given the “opportunity to

       4 This subdivision states: “In the absence of a stipulation by the parties to the
contrary, there shall be no ex parte communication between the attorneys for any party to
an action and any court-appointed or court-connected evaluator.”


                                             12
question [her] qualifications and training” under Evidence Code section 801. Shedric

was given precisely this opportunity at the pretrial hearing where Sharonda presented the

conjoint therapist as an expert and Shedric’s counsel conducted voir dire. Despite his

counsel’s attempts to discredit the therapist’s qualifications, the court found her “fully

qualified to testify.”

       4. Child Custody Evaluator

       Shedric argues that his due process rights were violated when the trial court

decided not to appoint a child custody evaluator under Evidence Code section 730.

Shedric does not have a due process right to a court appointed child custody evaluator.

       Taken together, Evidence Code section 730 and rule 5.220 of the California Rules

of Court provide that a court may appoint an expert child custody evaluator if it appears

that such an evaluator would assist the court “in determining the health, safety, welfare,

and best interest of children with regard to disputed custody and visitation issues.” (Cal.

Rules of Court, rule 5.220.) “The decision on the need for the appointment of an expert

lies within the discretion of the trial court and the trial court’s decision will not be set

aside absent an abuse of that discretion.” (People v. Gaglione (1994) 26 Cal.App.4th

1291, 1304, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434,

452 & People v. Levesque (1995) 35 Cal.App.4th 530, 539.) “[T]he trial court is never

obliged to appoint an expert to assist it in making a factual, much less a legal,

determination under Evidence Code section 730 unless, as that section provides, ‘it

appears to the court . . . that expert evidence is . . . required.’ ” (In re Eric A. (1999) 73



                                               13
Cal.App.4th 1390, 1394, fn. 4, italics original.) Here, the court did not abuse its

discretion in declining to appoint a child custody evaluator because it had ample evidence

regarding the best interest of the child from the two therapists, the mediator, and the

parties.

       5. Ineffective assistance of counsel

       Finally, Shedric contends that the attorney who represented him during many of

the pretrial proceedings provided ineffective assistance of counsel. He claims that his

attorney failed to explain the significance of signing the October 2011 stipulation and that

he never would have agreed to sign a document that named him as the perpetrator of

domestic violence and selected a therapist who had a close personal relationship with

Sharonda’s attorney. Shedric also asserts that his attorney’s license to practice law was

suspended during the period he was representing him.

       Shedric’s claims about his attorney’s performance and ethics are misplaced on

appeal. A party to a civil action is not entitled to a retrial based on ineffective assistance

of counsel. (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 979-980; see In re

Marriage of Campi (2013) 212 Cal.App.4th 1565, 1574-1575 [husband’s ineffective

assistance of counsel argument was “moot” because there is no right to counsel in

marriage dissolution proceedings].) Thus, even if Shedric had pointed to specific

examples of deficient performance on the part of his attorney that resulted in prejudicial

harm to his case, which he has not, his argument would nevertheless be moot.




                                              14
                                     DISPOSITION

       We affirm the trial court’s judgment.

       Respondent shall recover her costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                       CODRINGTON
                                                                    J.


We concur:


KING
                Acting P. J.


MILLER
                          J.




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