Filed 3/4/15 Marriage of Schmidtke CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----



In re the Marriage of TIFFANY NICOLE and                                                     C073244
STUART J. SCHMIDTKE.

TIFFANY NICOLE KEELING,                                                         (Super. Ct. No. T083200FL)

                   Appellant,

          v.

STUART J. SCHMIDTKE,

                   Respondent.




          Tiffany Keeling (mother) appeals from an order granting Stuart Schmidtke (father)
primary physical custody of their son. Mother claims (1) the trial court committed
evidentiary errors, and (2) an evaluator’s ex parte communication with the trial court
subjected mother to substantial danger of undue prejudice and violated her due process
rights.




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         We conclude mother’s contentions lack merit. We will affirm the trial court’s
order.
                                      BACKGROUND
         Mother and father were divorced when their son was a toddler. Mother then
moved to the San Francisco Bay Area and father remained in Truckee. The parents
shared legal and physical custody of their son as recommended in a 40-page report from
a psychologist appointed by the trial court to evaluate the best interests of the child.
But when the son was approaching kindergarten age, mother requested primary physical
custody. The trial court ordered a new evaluation by the same psychologist, including
new assessments of the parents, their support systems and the relative merits of the
schools in which the son might be enrolled.
         The psychologist’s new 30-page report recommended that shared legal custody
continue but that the son live primarily with father and attend school in Truckee.
The psychologist’s report mentioned a cell phone recording presented by father; the
psychologist believed mother was emotionally abusive toward her son during the
recorded call, but the psychologist concluded the abuse was not common. Before a
scheduled custody hearing, mother moved in limine to preclude admission into evidence
of the cell phone recording or any testimony about it. The trial court denied her motion.
         On January 25, 2013, following a custody hearing, the trial court ordered the
continuation of joint custody but designated father’s home as the child’s primary
residence. After the trial court ruled, mother said she wanted to terminate her parental
rights and would have no further parenting involvement with the child. The trial court
conducted voir dire of mother, noted that mother’s attorney did not join in mother’s
request, and suspended all orders relating to mother’s parenting time with her son.
The trial court said the suspension could be modified by regularly scheduled law and
motion proceedings. The trial court did not find mother unfit.



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                                       DISCUSSION
                                               I
       Mother contends the trial court committed evidentiary errors.
       The record on appeal includes a reporter’s transcript, but the transcript does
not transcribe the custody hearing leading to the January 25, 2013 order. Mother’s
appellant’s opening brief describes various evidence, but not all of the evidence is in
the appellate record.
       Mother focuses on what she calls the “illegal” recording from father’s cell phone,
in which she reportedly responded in dramatic fashion to the discovery that the child had
wetted and soiled himself while in a car seat. She argues about both the weight and
admissibility of that and other evidence, including the alleged bias of testifying experts.
       As to the allegedly illegal recording, mother admits that, with the phone sitting on
the front seat of the car, she expressed her frustration as she cleaned up after the child.
In her opening brief, she admits the recording included vulgar language and elevated
voice tones and threats not to celebrate the child’s upcoming birthday, but she explains
“this was an isolated incident that occurred which shows a very human response to a
mother being frustrated that her potty training efforts are constantly challenged from
routine visits with the father who seems unwilling to share the potty training
responsibilities on bi-weekly visitations.” The evaluator’s written report stated that father
submitted this recording as proof of mother’s emotional and verbal abuse of the child and
the evaluator contacted mother who “voiced a clear understanding that she knew she was
being recorded while she was interacting with [the child].” Father’s declaration said the
recording was a voice message mother left on his phone. The trial court concluded the
recording was not illegal.
       A trial court’s ruling on the admissibility of evidence is reviewed for abuse of
discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.) Mother disagrees with the
trial court’s evidentiary ruling on this and other evidence, but she does not establish any

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abuse of discretion. Without a reporter’s transcript, any claimed error must appear on the
face of the record. (Cal. Rules of Court, rule 8.163.) “An appellate court is controlled by
the record as it finds it [citation], and no extrinsic evidence will be received to contradict
it. [Citations.]” (Hom v. Clark (1963) 221 Cal.App.2d 622, 647.) Mother’s argument
about facts that are not part of the record, including those about alleged racial
stereotyping and general injustice, are not cognizable on appeal. (See ibid.)
                                              II
       Mother also contends the custody evaluator’s ex parte communication with the
trial court subjected mother to substantial danger of undue prejudice and violated her due
process rights. She asserts that on July 19, 2012, Dr. Dugan wrote a letter to the trial
court and both counsel, informing them that mother had filed a complaint against Dr.
Dugan with his licensing board. Mother’s request for judicial notice of the letter is
granted. The July 19, 2012 letter stated, “On the advice of my legal counsel, this letter is
to advise counsel on the Schmidtke matter and the Court that Ms. Keeling-Schmidtke
filed a licensing board complaint about my work on her matter. This does not preclude
my appearance [at the hearing] and I will testify as required to the best of my ability.”
The letter said nothing about the nature of the complaint but requested instructions from
the trial court if any information about the complaint or Dr. Dugan’s response was
required. There is no indication in the record of a response from the trial court.
       Mother contends the letter was an ex parte communication in violation of
Family Code section 216. But an ex parte communication violating Family Code section
216 is “a direct or indirect communication on the substance of a pending case without
the knowledge, presence, or consent of all parties involved in the matter.” (Cal. Rules
of Court, rule 5.235(b)(2).) The letter was directed to the trial court and counsel for both
parties and it said nothing about custody of the child, so it was not an ex parte
communication in violation of Family Code section 216.



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       Mother does not establish any actual prejudice caused by the letter, and she does
not explain how her due process rights were violated by the letter. In an adjudicated
contested custody hearing, a trial court has “the widest discretion” to choose a parenting
plan based on the best interests of the child, considering all the circumstances bearing on
the child’s interests. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.)
Mother asked for primary physical custody and the trial court gave her request serious
attention, focusing not on the disputes between the parents but on the son’s activities and
schools. The trial court recognized that, before the son started school, the parents had an
approximate 50/50 split of parenting time and that, after school started, regardless of
where the son lived, the split would probably come close to 60/40. Although mother’s
request for primary physical custody was denied, the order issued after the contested
hearing included a detailed six-page plan for shared legal custody that provided extensive
parenting time for her. The trial court did not find mother unfit and it did not deny her
due process, it just determined the son would be better served by having his primary
residence with his father. There is no indication that the trial court abused its discretion
or that its decision was not supported by substantial evidence.
                                       DISPOSITION
       The January 25, 2013 order is affirmed.


                                                              MAURO                 , J.


We concur:


         BLEASE                         , Acting P. J.


         HULL                           , J.




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