Filed 3/26/13 Marriage of Meyer CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


In re the Marriage of DAVID C. MEYER
and WENDY M. MEYER.

DAVID C. MEYER,
         Appellant,
v.                                                                       A135051
WENDY M. MEYER,                                                          (Alameda County
         Respondent.                                                     Super. Ct. No. HF10548203)



         Following a court trial conducted over six days, respondent Wendy Meyer was
awarded sole legal and physical custody of the parties’ two daughters. Her estranged
husband, David Meyer, appeals from the custody judgment.1 He argues that the evidence
did not support vesting Wendy with sole custody of the girls and that the trial court was
biased against him. He also argues the wrong form was used when the court expressed
its custody determination in a judgment. None of his arguments have merit.
         The court’s custody determination was supported by evidence that David had
inflicted physical abuse on Wendy and that David did not sustain his burden to show that,
irrespective of such abuse, joint legal and physical custody of the girls was in their best
interest. David has failed to demonstrate that the trial court was biased against him, and


         1
       In the interests of clarity and brevity, we will refer to the parties by their first
names. We mean no disrespect.


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the fact that the court recorded its custody determination in a judgment and reserved
jurisdiction over possible dissolution of the marriage was not error. The judgment is
affirmed.
                     FACTUAL AND LEGAL BACKGROUND
      Wendy and David met in 1999 and were married in 2000. They had two daughters
aged 10 and 4 in November 2010, when David petitioned the superior court for exclusive
legal and physical custody of them with visiting rights for Wendy. A hearing on his
petition was set for March 2011. In early December 2010, Wendy moved out of the
family home in Castro Valley, disenrolled the girls from school, and moved with them to
her mother’s apartment in Fairfield. David considered the girls’ living arrangement in
Fairfield with Wendy’s mother inappropriate, and suggested they were subjected to
improper influences of Wendy’s mother and her boyfriend. While he acknowledged that
Wendy provided the girls with adequate food and clothing, David was concerned that
their 10-year-old daughter was engaged in self-abusive behavior and that he was not
notified whenever the girls needed medical attention. He also had concerns about
Wendy’s removal of the girls from their school and church community in Castro Valley.
      David denied that he was ever physically abusive or hit Wendy during their
marriage. But there were two occasions in particular, one in 2002 and another in March
2008, when he was forced to physically defend himself from her attacks. According to
David, Wendy was the physical aggressor in the incident of March 2008 just like she had
been at other times during their marriage, and all he had done was try to defend himself.
Wendy testified that David was the aggressor in physical confrontations between the two
in 2002 and in March 2008, and on many other occasions during their marriage.
      Wendy’s testimony regarding the 2008 incident was corroborated by an Alameda
County deputy sheriff who had responded to the Meyers’ apartment after his office
received a call from David. The deputy interviewed Wendy and their 10-year-old
daughter and arrested David based upon his investigation. Their 10-year-old daughter
generally corroborated her mother’s version of events, and Wendy had injuries the deputy
considered to be consistent with a victim of domestic violence.


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       Wendy also presented evidence that their 10-year-old daughter’s educational
needs were addressed in her new school and that she was adjusting well to the change.
Her testing scores and grades were good. The four-year-old daughter was experiencing
some separation anxiety from Wendy when she went to school, but it was improving.
There was also evidence that their four-year-old daughter was reluctant to visit with
David, and according to Wendy, she was afraid he would show up at her school. Wendy
was in a therapy program for victims of domestic violence, and both girls and Wendy
were in family counseling.
       David presented evidence that he spent much less time with his daughters since
they had moved to Fairfield. He used to spend two to three hours a day with them
sharing various activities, but by the time of the hearing in this case he was seeing them
twice a week for a total of nine hours. He had good visits with the girls and was able to
speak with them by phone on the days they did not visit. But seeing them was difficult
since Wendy had moved with them to Fairfield. David also felt the girls were harmed by
the move from Castro Valley because their 10-year-old daughter was removed from her
school, and both girls were taken away from their network of family and the friends they
made through their church and school.
       The court awarded legal and physical custody of both girls to Wendy, with weekly
visits and phone calls to David. David objected to the court’s intended statement of
decision on the grounds: that the evidence did not warrant a conclusion that David was a
perpetrator of domestic violence; that the court was biased against him because of his
Christian beliefs; and that allowing the girls to live in Fairfield with their mother was not
in their best interest. This timely appeal followed.
                                       DISCUSSION
   1. The Custody Award
       In a contested child custody proceeding, the trial court is to make an award that is
in the best interest of the child. (Fam. Code, § 3040, subd. (a).)2 When the court


       2
           All further statutory references are to the Family Code.


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determines that a parent seeking custody has perpetrated domestic violence against the
other person seeking custody, there is a presumption that awarding custody to that parent
is detrimental to the child’s best interest. (§ 3044, subd. (a).) The perpetrator may rebut
this presumption by a preponderance of the evidence. (Ibid.) But the custody
determination is vested in the trial court’s discretion taking into account all the
circumstances, and we will reverse only for an abuse of that discretion. (Keith R. v.
Superior Court (2009) 174 Cal.App.4th 1047, 1057.)
       The gravamen of David’s appeal is that the trial court should not have applied the
section 3044, subdivision (a) presumption in this case because the evidence of this
tumultuous marital relationship was “too close a call” to hold David responsible for the
2008 incident of domestic violence. Moreover, he says that even if it could apply the
section 3044, subdivision (a) presumption, the court did not give enough consideration to
evidence that he says showed awarding custody to Wendy was not in the girls’ best
interest. David points to testimony that Wendy’s mother and her boyfriend were nudists,
and says this evidence was not addressed by the trial court, nor did the court consider her
involvement or influence in the family’s marital strife. He also challenged the suitability
of the apartment the girls were living in because it was section 8 subsidized housing that
David considered to be in a bad neighborhood. But the court specifically concluded that
no evidence was presented to show that the children’s current living arrangements were
“anything but wholesome or presented any type of danger.” We agree that David has not
demonstrated any nexus between the evidence that Wendy’s mother and her boyfriend
may practice nudity, and suitability of the girls’ living arrangements. There is no
evidence that suggests the girls are harmed by their proximity to Wendy’s mother
because she had witnessed or been involved in family disputes. Moreover, as the trial
court observed, Wendy was taking care of the girls’ educational and psychological needs
and “since separation . . . acted in the best interests of the children taking into account her
lack of resources and her own psychological needs.”
       Essentially, David would have us reweigh the evidence to reach the opposite
conclusion of the trial court. But our analysis does not turn on “the presence or absence


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of a substantial conflict in the evidence. Rather, it is simply whether there is substantial
evidence in favor of the respondent. If this ‘substantial’ evidence is present, no matter
how slight it may appear in comparison with the contradictory evidence, the judgment
must be upheld. As a general rule, therefore, we will look only at the evidence and
reasonable inferences supporting the successful party, and disregard the contrary
showing. [Citations.] In short, even if the judgment of the trial court is against the
weight of the evidence, we are bound to uphold it so long as the record is free from
prejudicial error and the judgment is supported by evidence which is ‘substantial,’ that is,
of ‘ “ponderable legal significance,” ’ ‘ “reasonable in nature, credible, and of solid
value.” ’ ” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
         When the determination of an issue rests within the sound discretion of the trial
court, we will not disturb its decision unless it is shown to be arbitrary, capricious or
patently absurd. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) There was ample
evidence supporting the court’s determination to award physical and legal custody of the
girls exclusively to Wendy. On this record, we cannot conclude the trial court abused its
discretion when it concluded that David did not overcome the statutory presumption of
section 3044, subdivision (a).
   2. Possible Judicial Bias
         David claims that judicial bias is apparent in the record because the court
commented on his credibility by making a reference to his Christian faith, and by telling
Wendy that she would be more credible if she answered counsel’s questions directly
rather than engaging in her own freestyle narrative of the events. Neither claim has
merit.
         In his statement of decision, the trial judge discussed the challenges to David and
Wendy’s credibility. He wrote: “The court has significant misgivings regarding both
parties in that regard. [David’s] testimonial version of the events comes across as too pat
and rehearsed. It is almost as if he has practiced his answers to his attorney’s questions.
In addition, his continued reference to being a ‘Christian,’ as a means to enhance his
credibility was overdone and not effective for that purpose.” At this point the judge


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quoted Shakespeare’s Hamlet in a footnote: “The lady doth protest too much, methinks.”
It is hard to tell from the reporter’s transcript whether David’s references to his faith were
motivated in part for effect. Some seem to be, such as his comment that, “I think it’s
where your heart is, not what you’re wearing,” when he testified that he wore a suit to
church one Sunday. But no matter. In context, the court’s reference to David’s
testimony about his Christianity was not the focus of the court’s criticism of his
credibility. The court was concerned that his answers were pat and rehearsed, and
David’s references to his faith merely did not help his answers appear more candid or
truthful. The judge’s reference to David’s religion did not demonstrate bias.
       Nor did the court’s admonition to Wendy that she directly answer counsel’s
questions create any appearance of unfairness. During her cross-examination by David’s
counsel on the last day of testimony, the judge interrupted Wendy and the following
ensued: “THE COURT: I just want to make an observation. Umm, it hurts your
credibility when you don’t answer questions directly. [¶] THE WITNESS: It really
irritates me. [¶] THE COURT: It hurts your credibility when you don’t answer questions
directly. You always take a question and steer it in a direction it wasn’t intended. [¶] If
you want this Court to give your testimony any credibility, you need to respond to the
questions and not drift off to anywhere else. [¶] If you need to explain yourself, I’m sure
your attorney will allow you to do that. This will be a much more efficient hearing if
you’re able to do that. [¶] We’re in recess.”
       David claims that this admonition “effectively assisted the Respondent in
enhancing her credibility by following the court’s direction and in apparently eliminating
the need to seriously address those very difficult questions she was asked.” But there was
nothing improper in advising Wendy that in order to have any credibility she needed to
answer the questions that were put to her. It is simply inconceivable that this admonition
could have eliminated any requirement that Wendy address difficult questions.
       It has long been settled, and “apparently cannot be repeated too often for the
guidance of a part of the legal profession that a judge is not a mere umpire presiding over
a contest of wits between professional opponents, but a judicial officer entrusted with the


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grave task of determining where justice lies under the law and the facts between the
parties who have sought the protection of our courts. Within reasonable limits, it is not
only the right but the duty of a trial judge to clearly bring out the facts so that the
important functions of his office may be fairly and justly performed. . . . For the same
reason the trial judge is not to be unduly or unreasonably hampered in his control and
conduct of the trial.” (Estate of Dupont (1943) 60 Cal.App.2d 276, 290.)
       David argues that before the court’s admonition, Wendy’s “answers devolved into
making comments which seemed to express her impatience, hostility, and outright anger
with either [David], his counsel, or the court proceedings,” while after the admonition the
court found her testimony and her credibility measurably improved. So be it. It is a
judge’s duty to participate in a trial in order to “fairly aid in eliciting the truth, in
preventing misunderstanding, in clarifying the testimony or covering omissions, in
allowing a witness his right of explanation, and in eliciting facts material to a just
determination of the cause.” (People v. Carlucci (1979) 23 Cal.3d 249, 256.) Although
David’s counsel may have seen a strategic advantage in allowing Wendy to evade her
questions and engage in hostile narrative, the trial judge was not required to sit back and
allow it.
       The transcript of this hearing reveals a bitterly fought custody proceeding replete
with petty bickering and disparaging allegations by both parties. The trial judge was
perfectly within the bounds of his authority to exert control, and direct Wendy to answer
counsel’s questions if she wanted to retain any credibility. The record does not indicate
any bias on the part of the trial judge.
   3. Form of Judgment
       David also claims the custody order must be reversed because the court retained
jurisdiction over possible dissolution and neither party is yet seeking dissolution of the
marriage. This argument has no merit. The statement of decision directs Wendy’s
counsel to prepare a child custody and visitation judgment and accompanying notice of
entry of judgment. There is no indication in the record that the marriage was dissolved in
a judgment. Wendy’s brief on appeal indicates that the trial court retained jurisdiction


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over, but did not decide, dissolution of the marriage. In the event that the court
improperly retained jurisdiction over possible marital dissolution, it is not an error of
substance. Nothing regarding dissolution of the marriage has yet been adjudicated. It is
the substance and effect of an adjudication that determines the rights of the parties, not
the form of the decree. (Otay River Constructors v. San Diego Expressway (2008) 158
Cal.App.4th 796, 801.)
                                      DISPOSITION
       The judgment for child custody and visitation is affirmed.



                                                  _________________________
                                                  Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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