Bunyard v. Superior Court of San Diego Cnty., D062223

Decision Date30 November 2012
Docket NumberD062223
CourtCalifornia Court of Appeals Court of Appeals
PartiesCAROLYN BUNYARD, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; MICHAEL BUNYARD, Real Party in Interest.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. D513181)

PROCEEDINGS in certiorari or habeas corpus after the superior court entered a judgment of contempt. Robert Longstreth, Judge. Relief granted; judgment annulled.

Petitioner Carolyn Bunyard (mother) has petitioned for writ of certiorari or alternatively habeas corpus challenging a family court contempt judgment finding herguilty of three counts of contempt and sentencing her concurrently to three days in custody for each of the three counts. The family court suspended execution of sentence and placed mother on three years probation on specified conditions, including that she complete three days (18 hours) of community service and that father, real party in interest Michael Bunyard, be permitted specified custody of their minor child to compensate for time he missed assertedly due to mother's violation of their custody order. Mother contends the family court's adjudication of contempt must fail because the court's order does not cite specific facts, it does not accurately reflect the family court's findings at the contempt hearing, father's motion did not cite valid orders, and father did not establish the elements of contempt beyond a reasonable doubt.

For the reasons set forth below, we conclude the family court improperly adjudged mother guilty of contempt, and that the contempt order must be annulled.

FACTUAL AND PROCEDURAL BACKGROUND

The parties are parents of and share joint legal custody of a minor child, A. On October 26, 2010, the family court filed findings and an order after a hearing that took place on June 24, 2010. The October 26, 2010 findings and order attach a purported prior order stemming from the same June 24, 2010 hearing, which itself incorporated a June 2, 2010 family court services (FCS) recommendation, among others, that "[t]he child shall continue to participate in counseling with a licensed mental health practitioner or agency" and that "[t]he parents shall cooperate and participate in the child's therapy at the discretion of the therapist." The June 2, 2010 FCS recommendation also addresses the parties' shared parenting, and recommends in part that if all parties reside in San DiegoCounty, the child "shall be with the father during the first full weekend, second, and fourth weekends of the month from 5:30 p.m. Friday until 5:30 p.m. Sunday. [¶] . . . [¶] . . . [and] shall be with the mother at all times not otherwise specified including the third and any fifth weekends of the month."

In August 2011, the parties participated in a hearing in family court that in part addressed the issue of the child's counseling and treatment with Rachel Ireland, M.D., a psychiatrist. Father's counsel complained about the parties' inability to move forward with their stipulations regarding counseling. The family court stated it would enter an order for therapy, and mother's counsel confirmed mother would comply with any such order.

In October 2011, the parties stipulated to designate a new therapist, Dr. Steven Tess, to treat their child. In part, the stipulation provides that "each party shall schedule an individual 'parent intake' appointment with [Dr. Tess] prior to [the child's] first appointment. Thereafter, and subject to the parties 'mutual' agreement of date/time prior to scheduling same, [mother] shall schedule [the child's] first appointment with Dr. Tess. Both parties then may attend their child's first appointment." The stipulation to designate Dr. Tess, which incorporated a court order, was signed and filed in the superior court on November 8, 2011.

In December 2011, father filed a Judicial Council form order to show cause and affidavit for contempt, asserting that mother had willfully disobeyed and violated threeorders: (1) An order relating to a June 23, 2011 FCS report1 stating "[t]he parents shall follow through with all recommendations from the child's medical providers regarding the child's treatment and/or medication regarding his diagnoses of Attention Deficit Hyperactive Disorder"; (2) the order issued on November 8, 2011, described by father as "Stipulation Re: Therapy for Minor Child, Paragraph 2, requires 'mutual' agreement of date/time for minor child's first session with Dr. Tess and opportunity for both parents to attend first appointment" and (3) the October 26, 2010 custody and visitation order, incorporating the June 2, 2010 FCS report designating father's parenting weekends as the first full weekend, second, and fourth weekends of the month from 5:30 p.m. Friday until 5:30 p.m. Sunday.

The contempt proceedings took place on February 24, 2012, during which both father and mother testified. As to count 1, father testified that A. began seeing Dr. Ireland in February 2011. In May 2011, he and mother met with Dr. Ireland, who recommended that A. begin a regimen of stimulant medication for certain diagnosed conditions. According to father, mother rejected the recommendation and asked that A. be treated homeopathically. Father met with Dr. Ireland again on October 6, 2011, at which time she wrote a prescription for stimulant medication for A.'s symptoms. Fatherbegan administering the medication, but did not know whether mother was doing so as well. Father testified Dr. Ireland terminated her services on November 7, 2011, following a meeting with father and mother, in which mother questioned Dr. Ireland's diagnoses and professionalism, lost her temper, and "stormed" out of the office. Dr. Ireland ended her services and the child's medication regimen that day. On cross-examination, father stated that the reason for his charge was not that mother did not administer A.'s medication, but that she "undermined the process" and "alienat[ed]" the doctor, which resulted in the doctor dropping them and ending A.'s medication regimen. He testified it was implicit in the order that mother should cooperate with the doctor, father, and A., and confirmed he had "no idea" whether or not she administered A.'s medications. He agreed mother's emails concerning the matter did not state she was not giving A. the prescribed medications.

As to count 2, father testified that at the end of November, after he and mother had met with Dr. Tess, he discovered during a scheduling call with Dr. Tess that on November 15, 2011, mother had already taken A. for the child's first visit without father's knowledge. On cross-examination, father confirmed he was not a party to the telephone conversations between mother and Dr. Tess.

With regard to count 3, father testified he was denied access to A. on the weekend of January 14, 2011, which he had calculated to be the second week of the month. Father appeared at the normal visitation time, but mother was not there. Father testified he thereafter filed a visitation violation report through the police department.

Mother denied ignoring Dr. Ireland's recommendations, and testified she gave A. 10 milligrams of medication every day as prescribed. According to mother, after she and father had their first appointments with Dr. Tess, Dr. Tess contacted her and let her know he was ready to see A., and told her that November 14, 2010, was convenient. She could not recall when Dr. Tess had contacted her; she could only say it was sometime before November 14, 2010. Mother testified she told Dr. Tess that it was important that father be there, and he responded that he had spoken with father and assured her that "he's okay with this." According to mother, Dr. Tess also told her it was not a good idea for both she and father to be present at A.'s appointment. Mother assumed that Dr. Tess had already spoken with father because he had seen father last. Mother brought A. to the appointment on November 15, 2010. She did not confirm the appointment with father, and she testified she was surprised he was not there but did not say anything to Dr. Tess about it. She testified that her prior conversation with Dr. Tess made her feel that it was not something she should worry about. She assumed Dr. Tess had set the appointments up that way because he did not think it was a good idea for mother and father to be there at the same time with A.

As for the parties' parenting schedule underlying the count 3 citation, mother testified that after their hearing setting up visitation, she was not clear what the first full weekend, second, and fourth weekend meant. She testified that both parties' attorneys discussed it and agreed that the weekend of December 31, 2010, would be the fifth weekend, but she claimed she did not understand that the following weekend, that of January 8, 2011, would then be the first weekend in January. She stated that father wasout of the country for the following weekend, which would have been his weekend for visitation. Mother stated that he was also out of town the next weekend of January 14, 2011, and she believed he chose not to exercise that visitation. When asked on cross-examination to acknowledge that the attorneys had coordinated and agreed to designate December 31, 2010 as the fifth weekend, mother testified that she did not agree to the "dispute back and forth" about the issue.

After listening to the parties' testimony and argument on the matter, the family court found that all three counts of contempt were established beyond a reasonable doubt. The minute order of the hearing states only: "The Court finds Count 1, Count 2 and Count 3 have been established...

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