Filed 3/19/14 In re A.H. CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
     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 This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



J.M.,

         Plaintiff and Respondent,                                        E055783

v.                                                                        (Super.Ct.No. TED006074)

L.H.,                                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Bradley O. Snell,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         L.H., in pro. per., for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         L.H. (Mother) and J.M. (Father) share a daughter, A.H. In March 2012, the

family court ordered, “Father shall have sole legal custody of the child.” Mother

contends the family court erred by ordering Father to have sole legal custody of A.H.

without conducting an evidentiary hearing. We affirm the judgment.




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                              PROCEDURAL HISTORY

       In September 2005, the family court ordered Mother and Father to have “joint

legal and physical child custody.” On March 20, 2007, the family court ordered Father

to have sole legal and physical custody of A.H.1

       On January 25, 2012, the family court held a hearing concerning Mother’s

request to modify the child custody and visitation orders. At the hearing, Mother

explained, “I still have 50 percent legal custody, and I still have the primary residence.”

Mother said, “So there needs to be a trial here because I’ve been trying to tell the courts

for five years that there is a problem here and something has gone wrong.” The family

court concluded, “The father does have sole physical and legal custody for the child.”

       On March 15, 2012, the family court held a hearing to settle a dispute regarding

the rulings at the January 25 hearing. The court said, “What we’re here [for] today is to

decide and determine what was actually ordered by this Court on January 25th.”

Mother again asserted that Father was never given sole legal custody of A.H., so there

needed to be a hearing regarding legal custody. In figuring out the specifics of the order

adopted on January 25, the family court said, “And I’m writing in father shall have

primary custody.” Father’s attorney said, “Okay. Your Honor, if you look at Section

2A, it says ‘The parents shall have joint physical custody. At the last hearing, this Court

indicated ‘I find the father has sole legal and sole physical custody.’ So I would just

request that you put that in the mediation recommendation.”

       1
        We take judicial notice of the “Findings and Order After Hearing” filed in the
Riverside County Superior Court on March 20, 2007, in case No. TED006074. (Evid.
Code, § 452, subd. (d).)

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        The court responded, “And that is what the Court had previously ordered.”

Mother asked, “So he just gets full custody and legal custody just based on that? There

was never a hearing for him to have that. It just automatically goes to him?” The court

responded, “That is what the Court has ordered, ma’am.”

                                      DISCUSSION

        Mother contends the family court erred by awarding Father full legal custody of

A.H. without conducting an evidentiary hearing. We disagree.

        In order to change a legal custody order, there must be “‘a persuasive showing of

changed circumstances affecting the child.’” (In re Marriage of McLoren (1988) 202

Cal.App.3d 108, 112, citing In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) The

family court must also consider the best interests of the child. (Id. at p. 113.) So, the

person advocating for the change in legal custody has “the obligation of producing

evidence and, based on that evidence, of persuading the court not only that

circumstances now warrant[] granting her legal custody but also that the modification

was in the child[’s] best interests. [Citation.]” (Id. at p. 114.) In sum, there needs to be

an evidentiary hearing before a court modifies a legal custody order.

        In the instant case, Father was given sole legal custody of A.H. on March 20,

2007. Therefore, when the court ordered Father to have sole legal custody of A.H. at

the January 25, 2012, hearing, the court was not changing or modifying the legal

custody order. The court continued the same order that had been in place since March

2007.




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       Additionally, it appears Mother’s argument at the family court was based upon

the mistaken idea that sole legal custody had never been awarded to Father. Mother was

not asserting changed circumstances required modifying the legal custody order.

Rather, Mother was asserting the court haphazardly changed A.H.’s custody status

without a hearing. Since Mother was not alleging changed circumstances, there was no

need for the family court to conduct an evidentiary hearing. (See In re Marriage of

Dunn-Kato & Dunn (2002) 103 Cal.App.4th 345, 348 [evidentiary hearings require

evidence of changed circumstances].)

       In sum, since (1) the family court did not change the legal custody order, and

(2) Mother did not raise a changed circumstances argument, there was no need for the

family court to conduct an evidentiary hearing. Accordingly, we conclude the family

court did not err.

       After this court took judicial notice of the 2007 Findings and Order After

Hearing, Mother provided supplemental briefing. In the supplemental briefing, Mother

asserts the March 2007 Findings and Order After Hearing was prepared by Father’s

counsel and the legal custody aspect of the document does not accurately reflect the

family court’s 2007 orders, i.e., the reporter’s transcript does not reflect Father was

awarded full legal custody. Mother contends she did not learn about the erroneous 2007

Findings and Order After Hearing until it was read aloud at a 2012 hearing. The

Findings and Order After Hearing bears a March 20, 2007, file stamp from the family

court. Accordingly, if Mother wanted to raise issues relating to the Findings and Order

After Hearing, then she needed to do so in 2007. (See Cal. Rules of Court, rule 8.406(a)


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[60 days to file a notice of appeal].) In sum, the time for Mother to appeal any alleged

errors in the 2007 order has passed. Therefore, we conclude the family court correctly

elected to not conduct an evidentiary hearing in 2012.

                                        DISPOSITION

       The judgment is affirmed. The parties are to bear their own costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                         MILLER
                                                                                           J.


We concur:


RAMIREZ
                              P. J.


RICHLI
                                 J.




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