Conner v. Conner (In re Marriage of Allan)
| Decision Date | 19 May 2022 |
| Docket Number | D079248 |
| Parties | In re the Marriage of RYAN ALLAN and LAYKEN MARIE CONNER. v. LAYKEN MARIE CONNER, Appellant. RYAN ALLAN CONNER, Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No DN187140 Matthew Brower, Judge. Affirmed as modified.
Patrick L. McCrary for Appellant.
Cage & Miles and John T. Sylvester for Respondent.
Layken Marie Conner appeals an order granting the request of her ex-husband Ryan Allan Connor to move their daughter from California to Delaware. Layken challenges the family court's exclusion of certain evidence, its weighing of factors relevant to the decision on the move-away request its order that she pay the travel costs of visitation, and its cession of jurisdiction to the Delaware courts. We modify the move-away order by striking the portion ceding jurisdiction and affirm the order as modified.
Ryan and Layken married in 2009 and have one child, who was born in 2015. A stipulated judgment dissolving the marriage was entered in 2016. Ryan and Layken stipulated to joint legal and joint physical custody of the child and alternated physical custody each week.
In the autumn of 2020, Ryan relocated with his new wife and children to Delaware to care for his mother, who had been diagnosed with serious illnesses and could no longer care for herself. Ryan filed a request for order that the child move to Delaware and live with him. Ryan and Layken participated in a Family Court Services (FCS) conference, and the FCS counselor prepared a report recommending they share joint legal custody and that the child reside primarily with Layken. Before the hearing on the request for the move-away order, Ryan filed a motion in limine to exclude the FCS counselor's report as hearsay and Layken filed opposition. Layken also filed a responsive declaration to Ryan's request for order stating she did not consent to the move-away.
The hearing on the move-away request began in March 2021. The family court denied as untimely Ryan's motion to exclude the FCS counselor's report. On three different days over the following six weeks, the court heard testimony from Ryan, his wife, Layken, her cousin, and her mother. On the last day of the hearing, the parties' counsel and the court discussed the admissibility of photographs of Layken's home and of the FCS counselor's report and the need to call the counselor as a witness if the report was not going to be admitted in evidence. The court refused to admit the photographs because Layken had not served them on Ryan before the hearing began. As to the FCS counselor's report and testimony, Layken's counsel argued the report should be admitted in evidence, but acknowledged Ryan's counsel had objected and stated that "if the Court [was] not going to admit the . . . report, then [she] need[ed] a second date to be able to call the [FCS counselor]." When Ryan's counsel objected the report was inadmissible hearsay, the court stated it would not admit the report over his objection and would continue the hearing to a date in August to allow the counselor to testify. Wanting to finish the hearing that day, Ryan's counsel agreed to admit only the recommendations portion of the FCS counselor's report. With that limited admission Layken's counsel stated she would still need to call the counselor as a witness, and the court responded "that's likely going to be denied." After further discussions, during which Ryan's counsel stated the report should not be admitted in its entirety and the court reminded him that would require a further hearing date in August, counsel withdrew the objection and the entire report was admitted. Layken's counsel never made an offer of proof regarding the FCS counselor's testimony and later rested her case without calling the counselor as a witness.
The family court heard closing arguments from counsel and then announced its decision. The court discussed the general factors concerning the best interest of the child specified in Family Code section 3011[1] and the factors specific to move-away requests set out in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga)[2] and In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess).[3] The court stated there were no problems with domestic violence or substance abuse; both parents loved the child, had equal amounts of custody, and put her best interests above their own; and her health, safety, and welfare would be assured whoever was awarded custody. As factors in support of granting the move-away request, the court noted that Ryan moved to Delaware to care for his ailing mother, not for an ulterior motive; Ryan had been primarily responsible for the child's medical care; and the move would provide greater stability to the child by allowing her to maintain the strong relationships with Ryan, her half-sister, stepmother, and stepbrother, and also would allow her to build relationships with Ryan's extended family in Delaware, Maryland, and Pennsylvania. The court granted Ryan's move-away request and awarded him physical custody of the child; maintained joint legal custody; set a visitation schedule; ordered Layken to arrange air travel for visitation; and, over her objection, ceded jurisdiction to Delaware upon Ryan's registration of the move-away order in the appropriate court there. The court later issued a written order containing the above findings and rulings.
Layken appealed the move-away order and petitioned this court for a writ of supersedeas to stay enforcement of the order while her appeal was pending. We granted the petition in part by staying enforcement of the portion of the order ceding jurisdiction to the courts of Delaware.
Layken claims the family court erred by: (1) denying her request to have the FCS counselor testify; (2) excluding from evidence the photographs of her home; (3) improperly emphasizing the reasons for Ryan's move to Delaware in its decision to grant the move-away request; (4) requiring her to bear the costs of the child's travel without evidence of her ability to pay the costs; and (5) ceding jurisdiction to the Delaware courts. For the reasons set out below, we reject all but the last claim of error and modify the move-away order to strike the portion ceding jurisdiction.
Layken's primary argument for reversal is the family court prejudicially erred by denying her request to call the FCS counselor as a witness. Layken contends she should have been allowed to call the counselor because she served a subpoena on the counselor after Ryan tried to exclude the counselor's report;[4] the counselor's testimony became more important after Ryan and his counsel criticized the report during the hearing; and Layken had a due process right to present the testimony of the counselor, who was an independent investigator. Among other points, Ryan responds Layken waived her right to call the FCS counselor as a witness and invited the error of which she complains by agreeing to accept the counselor's report in lieu of testimony, and she has not shown prejudice because she failed to make an offer of proof on the counselor's expected testimony. We agree with Ryan.
When an FCS counselor has submitted a report with recommendations to the family court in a child custody dispute, both parties have a due process right to call and examine the counselor about the report. (In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1521, fn. 8; In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1105 (Rosson); McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473, 481-483.) The parties may waive this right (Ohmer v. Superior Court (1983) 148 Cal.App.3d 661, 669; McLaughlin, at p. 483), as Layken did in this case. On the last day of the hearing on Ryan's move-away request, Layken's counsel noted Ryan's hearsay objection to admissibility of the FCS counselor's report and stated, "[I]f the Court is not going to admit the . . . report, then I need a second date to be able to call the [counselor]." After further discussions among the court and counsel about the need for another hearing date in August, Ryan's counsel expressed his wish to finish the hearing that day and agreed to admit the recommendations in the report, but not the rest of it. Layken's counsel said with such a limited admission she would "still need to call the [counselor]." The court responded "that's likely going to be denied." More discussions followed, and when the court made it clear a hearing date in August would be required if Ryan did not agree to admit the entire report in evidence, Ryan's counsel withdrew the objection and the court admitted the report. Layken's counsel never mentioned calling the FCS counselor as a witness after that and rested her case without doing so. On this record, it clearly appears Layken wanted to call the FCS counselor as a witness only if the family court did not admit the report in evidence, and once the court admitted the report she was satisfied and made no further effort to call the counselor. Having "expressly or impliedly agree[d] at trial to the ruling or procedure objected to on appeal," Layken waived her right to attack it on appeal. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166; accord, In re N.S. (2020) 55 Cal.App.5th 816, 840 (N.S.).)
Layken insists she did not waive her right to call the FCS counselor as a witness or invite any error in the denial of her request to call the counselor. She contends she made the offer to admit the report without calling the counselor before the family court had ruled on Ryan's objections to the admissibility of the report or the propriety of the subpoena,...
To continue reading
Request your trial