Dabu v. Tei (In re Marriage of Tei)

• Decision Date: 25 August 2020
• Docket Number: B291304
• Parties: In re Marriage of NANCY DABU TEI and TODD SHAWN TEI. NANCY ALONZO DABU, Appellant, v. TODD SHAWN TEI, Respondent.
• Court: California Court of Appeals Court of Appeals

In re Marriage of NANCY DABU TEI and TODD SHAWN TEI.NANCY ALONZO DABU, Appellant, v. TODD SHAWN TEI, Respondent.

B291304

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

August 25, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BD630586)

APPEAL from an order of the Superior Court of Los Angeles County, Christine W. Byrd, Judge. Affirmed.

Nancy Alonzo Dabu, in pro. per., for Appellant.

Nicole Williams for Respondent.

The family court ordered Nancy Alonzo Dabu (formerly known as Nancy Dabu Tei) and Todd Shawn Tei to share legal and physical custody of their daughter Anna, now seven years old. On appeal Dabu argues the court erred by failing to find Tei had committed acts of domestic violence against her and to apply the Family Code section 3044¹ presumption that it is detrimental to the best interest of the child to award sole or joint physical or legal custody to such an individual. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Dabu and Tei's Marital History

Dabu and Tei met in 2003 when Dabu, 13 years old, enrolled in a martial arts class taught by Tei, who was 37 years old.² They became engaged when Dabu turned 18 and married the following year. Anna was born in 2013. Dabu and Tei separated on January 1, 2015; Anna was 18 months old.

Dabu petitioned for dissolution of the marriage on November 20, 2015. In June 2016 Dabu and Tei stipulated on a temporary basis for joint legal and physical custody of Anna. On November 15, 2017 judgment was entered on the issues of the status of the marriage, division of property and spousal support. The parties reserved for trial issues of custody and visitation, child support, sanctions against Tei and Dabu's request for attorney fees.

2. Dabu's Allegations of Domestic Abuse

In her trial brief Dabu argued Tei was a sexual predator, contending he began molesting her when she was 15, demanding oral sex, and asserted he had intimidated, degraded and psychologically abused her throughout their relationship. Sheidentified in the more recent past specific instances in which Tei had allegedly stalked her and threatened to kill her and to physically harm her new boyfriend.

As pertinent to this appeal, Dabu also asserted that, following their separation, Tei engaged in a persistent campaign of harassing her and disturbing her peace through emails, texts and voicemails primarily relating to custody of Anna. Typical of the messages Dabu offered in support of this claim, Tei wrote, "You don't deserve having a child." "Burn in hell." "You are the seed of Satan." "You are evil, manipulating and a liar." "You are a horrible mother." "You need therapy." "I hope you rot in hell." "I will be just as relentless as you are nuts."

Dabu sought application of section 3044 and requested sole physical and legal custody of Anna with Tei limited to monitored visitation.

3. The Trial

Trial was held over four days in November and December 2017. Both Dabu and Tei were represented by counsel. The court heard testimony from Dabu and Tei and seven other witnesses, including two experts on issues of deceptiveness.

Dabu testified she "felt intimidated or harassed" by many of Tei's messages and described them as "angry, intimidating, harassing, and accusatory."³ She explained that many of thesemessages followed brief telephone conversations between Tei and Anna, who was not yet four years old, after Dabu ended the call without explanation. She gave as an example calls in February 2017: "Anna, being three and a half years old, would not want to talk at length on the phone, and so would either refuse to talk at all or briefly come onto the phone and say, 'Hi, Daddy. Bye, Daddy.' And Todd would try to—Todd would say things like, 'Honey, why don't you talk to me. Please talk to me. Don't you want to talk to your dad?' until such time as I hung up. And then the usual pattern would be I would get another call and/or voicemail and/or email."

During his testimony Tei explained the messages were a "reaction of frustration" to being away from his daughter while she was with Dabu and not being allowed to speak to her. "I'm continuously frustrated, hurt, worried, that my daughter hasn't spoken to me, and I want to know she's okay and I don't—I don't know how she feels. I don't know anything because I haven't seen her. And I just want to say, 'Hello. How are you? Daddy loves you,' and that's it." He continued, "I mean my frustration is obviously in the email. They just respond right away. Because, like, I hang-up, and I'll send this email, and I'm just frustrated."

4. The Tentative Statement of Decision and Judgment on Reserved Issues

The court issued a 15-page tentative statement of decision after trial on January 24, 2018. The court found Dabu's testimony "not entirely credible after considering her demeanor, bias and motives, particularly her express intent to eliminate any significant involvement of Respondent in the child's life." It found the testimony of Tei "credible in large part." The court also found both Dabu and Tei had an "overall commitment to the child's health, safety, and welfare, although they disagree on how to ensure this goal."

With respect to Dabu's allegations Tei had sexually and psychologically abused her when she was still a minor, evaluating the testimony of Dabu and Tei, who denied any sexual activity prior to marriage, the court found Dabu did not carry her burden of proof, noting Dabu's "bias and motive to fabricate were obvious." As for the claims of domestic violence within the meaning of section 3044, the court rejected a stalking claim, which it found involved Tei circling the block while looking for a parking place; the claim Tei had threatened her because it was a single statement without any other facts that would make it reasonable to view as an actual threat to harm her; and a harassment claim that consisted of Tei once pounding on Dabu's door and calling out to see if anyone was home on other occasions during a time when there was no agreed schedule for visitation and Dabu and Tei frequently blocked each other's calls, which meant Tei had to come to Dabu's residence to request visitation. Under the circumstances, the court ruled, Tei's conduct "appears appropriate and did not constitute harassment."

The court continued, "The conduct by Todd that was not appropriate during this period was the language used by Todd in his communications with Nancy." Although problematic, the court determined Tei's messaging did not trigger the presumption in section 3044 because of the context in which it occurred (the noncustodial telephone calls between Tei and Anna): "When, in Nancy's view, the child did not want to talk or lost interest in talking, then Nancy simply terminated the call. Todd, who was not physically present, had no idea why Nancy had terminated or blocked a call, so he called again. Nancy ignored these calls, either by not answering them at all, or she answered and immediately hung up on him without explanation. Nancy seemed genuinely outraged that Todd would continue to call back again and again. She was unable and unwilling to see how her behavior would appear to Todd, i.e., that she had, for no good reason, terminated and blocked his communication with the child. As Todd's frustration grew, he sent voice messages, text messages, and emails that were disproportionate in number and inappropriate in language."⁴

Focusing on these episodes and other instances in which the parties' inability to communicate was of concern, the court concluded Dabu's and Tei's "inability to exercise joint legal custody is apparent."⁵ Accordingly, the court did not award jointlegal custody; nor did it award sole legal custody to one parent. Instead, "in order to keep both parents involved in the child's life while minimizing the need for communication between the parents, the Court awards each parent sole legal custody on certain issues, with the other parent entitled to have full access to records and personnel." The court awarded sole legal authority on all health issues to Tei; all legal authority on educational decisions to Dabu. The court additionally adopted a physical custody schedule that allowed each parent weekend time and also weekday time to exercise his or her separate legal authority. As the court explained, under the parenting schedule Tei would have a physical custody timeshare of 31 percent.

Dabu filed objections to the proposed statement of decision on February 5, 2018. In addition to challenges directed to the court's rejection of her claims Tei had abused her when she was a minor, Dabu argued the court had not adequately addressed her contention Tei's emails, texts and voicemails constituted domestic violence in the form of disturbing the peace. Dabu also asked the court to modify its findings to state that many of Tei'sinappropriate messages were "sent without provocation." Tei also filed objections, asking the court to revise its decision to award Dabu a custody timeshare of more than 50 percent.

The court rejected all objections and declined the request for additional or different findings. With respect to Dabu's objections related to her claims that Tei's communications following separation disturbed her peace and constituted domestic violence, the court reiterated that Tei's "communications were very troublesome but, after considering all the evidence, the Court reached the conclusion set forth in its statement of decision."

Judgment on Reserved Issues was entered May 17, 2018, awarding Tei sole legal authority on all health decisions with additional details regarding notice to Dabu. Dabu was awarded sole legal...