Filed 8/31/16 Carter v. Dominguez CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

JAMES C. CARTER, JR.,                                                 B265225

                Plaintiff and Appellant,                              (Los Angeles County
                                                                      Super. Ct. No. TF002544)
         v.

DELIA DOMINGUEZ,

                Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County. Dianna
Gould-Saltman, Judge. Affirmed.



         La Quinta Law Group and Timothy L. Ewanyshyn for Plaintiff and Appellant.



         James Migler for Defendant and Respondent.
       Appellant James C. Carter, Jr. (grandfather) appeals from an order denying his
request for visitation with his minor grandson Aidan (born Aug. 2003). We affirm the
trial court’s order.
                                     BACKGROUND
Grandfather’s joinder and judgment awarding mother sole custody
       Grandfather is Aidan’s paternal grandfather. Respondent Delia Dominguez
(mother) is Aidan’s mother, and James Carter, III (father), is Aidan’s father.1 Aidan’s
parents separated in 2004, and a custody dispute ensued. Both parents initially consented
to having appellant joined as third party in this case.
       Pursuant to a judgment entered on May 1, 2007, mother was awarded sole legal
and physical custody of Aidan. Father was accorded supervised visits with Aidan every
Saturday afternoon and three one-week vacation periods. The judgment ordered
grandfather to stay at least 100 yards away from mother and prohibited him from
contacting, harassing, attacking, striking, threatening, assaulting, stalking, or disturbing
her. The judgment further prohibited contact between grandfather and Aidan.
       After entry of the judgment, the parties agreed that grandfather could have visits
with Aidan, and several visits occurred between 2010 and early 2014. In early 2014,
mother stopped allowing grandfather’s visits.
Mother’s petition to dismiss grandfather’s joinder
       In July 2014, mother filed a petition for an order dismissing grandfather’s joinder
as a party to the case. In response, grandfather filed a declaration in which he recounted
his visits with Aidan over the years and mother’s refusal to allow visits since January 1,
2014. Grandfather requested an order according him visits with Aidan.
       At the October 3, 2014 hearing on mother’s petition, father testified that he
supported mother’s request to remove grandfather as a joined party in the case. Father
stated that the parties had previously agreed to the joinder because father lived with
grandfather at the time and grandfather was helping him. Father said that he no longer


1      Father is not a party to this appeal.

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needed grandfather’s help, that he and mother communicated regularly about Aidan and
were in agreement, and that there was no reason for grandfather to remain in the case.
Father further stated that he opposed contact between grandfather and Aidan because
grandfather was a violent person and had threatened to kill mother in the past.
       Mother testified that she had initially agreed to grandfather’s joinder so that an
order requiring him to stay away from her could be placed on the record. She said she
wanted grandfather removed from the case because of his violent past. Mother conceded,
however, that there had been no recent incidents of violence. Mother said that
grandfather had harassed her by filing an action for damages against her in small claims
court for injuries that Aidan allegedly inflicted on grandfather’s nephew during a 2013
Christmas visit with grandfather. The action was dismissed when grandfather failed to
appear in court.
       At the conclusion of the hearing, the trial court denied mother’s request to remove
grandfather from the case. The court found there was insufficient evidence to support the
claim that grandfather was a violent person and that grandfather’s small claims action
against mother was an insufficient basis for terminating his joinder in the case. The trial
court denied without prejudice grandfather’s request for a visitation order.
Grandfather’s petition for a visitation order
       Grandfather renewed his request for a visitation order by filing the instant petition
on November 19, 2014.2 In support of the petition, grandfather submitted a declaration
in which he stated that his visits with Aidan had been pursuant to court orders and an
agreement with mother, but mother had refused to allow visits since January 1, 2014.
Grandfather further stated that he had had frequent and continuing contact with Aidan
while mother and father were together as well as after they separated in 2004.
Grandfather submitted photographs of his visits with Aidan over the years. Grandfather


2      The petition sought to modify an existing visitation order; however, the record
contains no previous order granting grandfather visitation with Aidan. At the hearing on
his petition, grandfather stipulated that his visits with Aidan were pursuant to a mutual
agreement with mother.

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also submitted a declaration by his wife, Jennifer Carter, stating that during their 20-year
relationship, grandfather had never been violent nor had he placed any of his
grandchildren in harm’s way; that grandfather and Aidan were bonded; and that
grandfather wanted to be a part of Aidan’s life. Grandfather also submitted declarations
by the mother and maternal grandmother of Aidan’s half-sister, Tatiana, attesting to
grandfather’s non-violent nature and his affection for Aidan, Tatiana, and his other
grandchildren.
       Both parents opposed grandfather’s petition. After a failed mediation, the matter
was set for an evidentiary hearing. Father testified that he opposed visits with
grandfather because grandfather was violent and had threatened mother in the past.
Father said that he had agreed to grandfather’s joinder in order to facilitate father’s visits
with Aidan, but that father no longer lived in California no longer needed grandfather’s
involvement. Mother testified that she believed grandfather was a violent person; that as
Aidan’s sole custodian, she did not believe it was in Aidan’s best interest to see
grandfather; and that father agreed with her.
       Grandfather’s wife testified that grandfather had never been violent, that Aidan
had visited with them regularly from 2010 to 2014, and that after January 1, 2014, mother
stopped responding to their requests for further visits. Grandfather’s cousin, Michelle
Hodby testified that she lives with grandfather and that she has observed grandfather to
have loving relationships with all of his grandchildren, including Aidan.
       After hearing argument from the parties, the trial court denied the petition on the
ground that grandfather failed to rebut the presumption against visitation accorded by
Family Code section 3103, subdivision (d).3 This appeal followed.
                                       DISCUSSION
I. Applicable law and standard of review
       Three California statutes govern grandparent visitation with a grandchild. Section
3102 permits visitation by a deceased parent’s parents, among others, if such visitation


3      All further statutory references are to the Family Code unless otherwise indicated.

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would be in the best interests of the child. Section 3103 permits grandparent visitation
during the pendency of judicial proceedings involving custody of the child, i.e., until
entry of a judgment dissolving the marriage and awarding custody of the child. (In re
Marriage of Harris (2004) 34 Cal.4th 210, 222 (Harris).) Section 3104 governs
grandparent visitation after a judgment dissolving the marriage and determining custody
of the child has been entered. (Ibid.; § 3104, subd. (f).)
       Section 3104 provides that a court “may grant reasonable visitation rights to the
grandparent if the court does both of the following: [¶] (1) Finds that there is a
preexisting relationship between the grandparent and the grandchild that has engendered
a bond such that visitation is in the best interest of the child. [¶] (2) Balances the interest
of the child in having visitation with the grandparent against the right of the parents to
exercise their parental authority.” (§ 3104, subd. (a).)
       Both section 3103 and section 3104 provide “a rebuttable presumption affecting
the burden of proof that the visitation of a grandparent is not in the best interest of a
minor child” if the parents agree that the grandparent should not be granted visitation
rights. (§§ 3103, subd. (d), 3104, subd. (e).) Section 3104 applies the same rebuttable
presumption against grandparent visitation “if the parent who has been awarded sole legal
and physical custody of the child . . . objects to visitation by the grandparent.” (§ 3104,
subd. (f).)
       To overcome the presumption against visitation, courts have required grandparents
to present clear and convincing evidence that visitation is in the minor child’s best
interest. (See., e.g., Ian J. v. Peter M. (2013) 213 Cal.App.4th 189, 208; Rich v. Thatcher
(2011) 200 Cal.App.4th 1176, 1181.) On appeal, we must affirm the trial court’s
determination if it is supported by substantial evidence. (Ian J., at p. 208.)
       We review the trial court’s denial of grandfather’s request for a visitation order
under the deferential abuse of discretion standard. (In re Marriage of Melville (2004)
122 Cal.App.4th 601, 610.) Under this standard, “‘[t]he 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,


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regardless of whether such basis was actually invoked. [Citation.]’ [Citation.]” (Rich v.
Thatcher, supra, 200 Cal.App.4th at p. 1182.)
       The party challenging the trial court’s ruling on visitation bears the burden of
establishing an abuse of discretion. “‘“[U]nless a clear case of abuse is shown and unless
there has been a miscarriage of justice, a reviewing court will not substitute its opinion
and thereby divest the trial court of its discretionary power.” [Citations.]’ [Citations.]”
(Rich v. Thatcher, supra, 200 Cal.App.4th at p. 1182.)
II. No prejudicial error
       Grandfather contends the trial court erred by basing its denial of his request for
visitation on section 3103, instead of section 3104. Section 3104, which governs
grandparent visitation after a judgment dissolving the marriage and determining custody
of the child has been entered (Harris, supra, 34 Cal.4th at p. 222), is the applicable
statute, as grandfather’s petition requesting visitation was filed after entry of a judgment
awarding mother sole legal and physical custody of Aidan. Grandfather’s claim of legal
error is therefore correct.
       Grandfather fails to demonstrate, however, that the trial court’s erroneous
application of section 3103 instead of section 3104 resulted in a miscarriage of justice.
As discussed, both section 3103 and section 3104 provide “a rebuttable presumption
affecting the burden of proof that the visitation of a grandparent is not in the best interest
of a minor child” if the parents agree that the grandparent should not be granted visitation
rights. (§§ 3103, subd. (d), 3104, subd. (e).) The trial court found that the statutory
presumption against visitation had not been rebutted in this case.
       Grandfather argues that the trial court failed to consider the factors set forth in
section 3104 subdivision (a) requiring the court to determine whether Aidan and
grandfather had a preexisting relationship and a bond such that visitation was in Aidan’s
best interest, and to balance Aidan’s interest in visitation against the right of the parents
to exercise their parental authority. (§ 3104, subd. (a).) The record shows, however, that
the trial court did weigh the evidence and did balance Aidan’s interest in visitation
against the rights of the parents.


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       The trial court considered grandfather’s moving papers and heard testimony from
witnesses, including grandfather’s wife and a cousin. At the conclusion of the evidence,
grandfather’s counsel argued that the presumption against visitation had been rebutted,
but the trial court disagreed:
              “It’s not. If -- it certainly could be. And one can imagine a
       circumstance under which it will be. For example, if the grandparents had
       raised the child from infancy. . . . But the facts as I understand it is that
       grandpa is a grandpa. He treats his grandchildren lovingly. He treats his
       grandchildren equally. That’s fine. But parents are allowed to decide that
       they don’t want to expose their child to even nice people if that’s what they
       want to do. This isn’t a situation in which [grandfather] raised this child.
       He had a good relationship he believes. And there is evidence to support.
       And even with that, parents have the autonomy to decide with whom their
       child spends time and does not. The court doesn’t supplant the autonomy
       of parents to make that decision. In this case, the respondent has sole legal
       custody of this child. And she has the right to make that decision. But
       even with that, both parents have come in and told me this is something
       they do not want for their child. . . . I don’t have any reason to think there
       would not be a benefit to the child spending time with half siblings and
       cousins. But that’s a decision that parents get to make. Unless they are not
       competent to make them.”

       The record shows that the trial court considered grandfather’s relationship with
Aidan and the nature of the bond they shared and that the court balanced Aidan’s interest
in visitation against the right of the parents to exercise their parental authority. The
record discloses no miscarriage of justice.
III. Res judicata does not apply
       Grandfather contends the order denying termination of his joinder in an earlier
proceeding is res judicata as to his request for visitation because the prior order was
based on the same evidence as that presented here. “‘As generally understood, “[t]he
doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent
litigation involving the same controversy.” [Citation.] The doctrine “has a double
aspect.” [Citation.] ‘In its primary aspect,’ commonly known as claim preclusion, it
“operates as a bar to the maintenance of a second suit between the same parties on the



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same cause of action. [Citation.]” [Citation.] “In its secondary aspect,” commonly
known as collateral estoppel, “[t]he prior judgment . . . ‘operates’” in “a second suit . . .
based on a different cause of action . . . ‘as an estoppel or conclusive adjudication as to
such issues in the second action as were actually litigated and determined in the first
action.’ [Citation.]” [Citation.] “The prerequisite elements for applying the doctrine to
either an entire cause of action or one or more issues are the same: (1) A claim or issue
raised in the present action is identical to a claim or issue litigated in a prior proceeding;
(2) the prior proceeding resulted in a final judgment on the merits; and (3) the party
against whom the doctrine is being asserted was a party or in privity with a party to the
prior proceeding. [Citations.]”’ [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010)
48 Cal.4th 788, 797.)
       There is no identity of claims or issues in the instant proceeding and the prior
proceeding in which mother sought to terminate grandfather’s joinder. Mother
commenced the earlier proceeding to terminate grandfather’s joinder because of his
allegedly violent nature. The court denied mother’s request because there was no
evidence that grandfather had engaged in any violent behavior towards her within the
past several years. In the instant proceeding, the trial court denied grandfather’s request
for a visitation order because the court determined that the parents’ right to exercise their
parental authority outweighed Aidan’s interest in visitation. Res judicata does not apply.
IV. Grandfather’s status and efforts at negotiation do not entitle him to visitation
       Grandfather contends the trial court erred in denying his request “to modify the
visitation orders after he had long since been joined as a party and made reasonable
efforts to negotiate a visitation plan with the parent having sole custody.” As discussed,
the record contains no previous court order according grandfather visitation with Aidan,
and grandfather stipulated that his visits were pursuant to an agreement with mother.
Grandfather’s rights to court ordered visitation with Aidan are purely statutory. (Harris,
supra, 34 Cal.4th at p. 219.) His status as a third party joined to the case accords him no
additional or more expansive visitation rights, nor do his efforts to negotiate a visitation



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plan with mother. Grandfather fails to demonstrate that the trial court’s denial of his
petition for a visitation order constituted an abuse of discretion.
                                      DISPOSITION
       The order denying the petition for a visitation order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ____________________________, J.
                                                   CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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