Filed 10/29/15 In re Marriage of Zangger and Faith CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of MICHAEL ZANGGER 

and KAREY FAITH.

____________________________________

MICHAEL ZANGGER,

Respondent,

v.

KAREY FAITH,

Appellant.

B253341

(Los Angeles County

Super. Ct. No. KD071789)

APPEAL from an order of the Superior Court of Los Angeles County, 

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

Law Office of Milo F. DeArmey, Milo F. DeArmey and Matthew S. DeArmey, for 

Respondent. 

Law Office of Leslie Ellen Shear, Leslie Ellen Shear and Julia C. Shear Kushner, 

for Appellant.

_________________________
2

Karey Faith (mother), the former spouse of Michael Zangger (father), appeals a 

postjudgment order in a marital dissolution proceeding. The appeal is taken from an 

order denying mother’s request for an order (RFO) which sought, inter alia, an order 

appointing a child custody evaluator.

The essential issue presented is whether the trial court abused its discretion in 

denying mother’s postjudgment request for a child custody evaluation. On the record 

presented, we perceive no abuse and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in 2005 and separated less than two years later. There is 

one child of the marriage (hereafter, the minor), who was born in 2007 and was five 

months old at the time of separation. In October 2007, father filed a petition for 

dissolution of marriage.

1. Earlier proceedings; following bifurcated custody trial, court renders 

statement of decision awarding sole physical custody to father and denying mother’s 

belated request for a child custody evaluation.

Prior to trial, mother had physical responsibility for the minor 86 percent of the 

time, and father had responsibility for the minor during the remaining 14 percent of the 

time.

Beginning on August 29, 2011, trial proceeded on the bifurcated issue of child 

custody and visitation, over portions of ten court days, concluding on September 14, 

2011. Thereafter, on December 28, 2011, the trial court issued a 25-page statement of 

decision awarding sole physical custody to father, with visitation to mother.

The trial court concluded: “Under the unique facts of this case as set forth in this 

Final Statement of Decision, [t]he Court finds that it is in the best interests of the child 

that the petitioner father be awarded sole physical custody of the child.” The trial court 

explained: “From the inception of this case, the petitioner [father] has shown a 

willingness to recognize that the child has two parents, and that both parents should share 

the rights and responsibilities of child rearing. Respondent [mother] has on the other 
3

hand viewed herself as the one person who should raise the child, to the exclusion of 

petitioner. In conformity with her view, the respondent has attempted to marginalize and 

alienate the child from the petitioner. [¶] When the child is with the petitioner, as soon 

as they are out of respondent’s presence, they enjoy their time together, and petitioner is 

able to be a good parent to [the minor]. Petitioner has helped to raise his now 17 year old 

son . . . , and is ready and able to raise [the minor]. The Court believes that the petitioner 

can provide for the daily emotional, physical, interactive, educational, and social needs of 

the child. [¶] It is significant that the child now routinely exhibits serious behavioral 

problems, hitting and kicking other children at preschool, at the park, and at other places. 

When asked why he does this he blames it on the petitioner, although the Court finds 

there is no credible evidence that petitioner has ever hit, kicked or spanked the child, or 

has been anything other than a caring father to the child. Except for a reference in her 

deposition, respondent has never tried to communicate with the petitioner about the abuse 

allegations that respondent says have been going on for over two years. Respondent, who 

has the child 86% of the time has done absolutely nothing to get the child professional 

help, or to have the allegations of the child reported to investigative authorities. Instead, 

the child is left to suffer with anger, aggression, conflict, and confusion.”

The statement of decision also denied mother’s belated request for a custody 

evaluation. The trial court stated: “The Court recognizes that it has the discretion to 

order a custody evaluation in this case. While custody mediation is a mandatory 

requirement in all custody cases, a child custody evaluation is not mandatory. [¶] During 

the several years that this case has been pending, and up to the time of trial, the

respondent [mother] has had many opportunities, to request a custody evaluation. 

Respondent instead chose not to do so. Respondent offered no expert witness testimony 

concerning custody at trial. Currently in the Los Angeles County Family Court Services 

Department, a full custody evaluation will be completed, approximately eight months 

after it is ordered by the Court. Full custody evaluations through private evaluators may 

take a longer or shorter period of time [de]pending on the availability of the evaluator, the 
4

extent of the evaluation, the number of witnesses contacted or interviewed, and the 

cooperation, or lack thereof of the parties. [¶] Respondent is in the unique situation of 

being a practicing family law attorney, which is not held by this Court to be to her benefit 

or detriment, but it is simply a fact she asserts and acknowledges. Respondent has been 

represented by two separate and very competent trial attorneys in these proceedings at 

different times. Petitioner has also been represented by very competent trial attorneys in 

this matter. It was not until the facts began to develop at trial, and this Court rendered its 

initial Tentative Statement of Decision, that respondent has now decided to argue that the 

Court should perhaps have postponed the custody-visitation trial for a longer period, and 

ordered a custody evaluation sua sponte. This is a litigation tactic by respondent that the 

Court does not believe would serve the best interests of the minor child.”

The statement of decision specified: “This order is a permanent/final order under 

Montenegro v. Diaz, (2001) 26 Cal. 4th 249. This order, is effective when signed and 

filed.”

2. Entry of final judgment awarding sole physical custody to father; mother did 

not appeal the judgment.

Following a trial by declaration on reserved issues, on November 26, 2012, the 

trial court entered a final judgment of dissolution. The judgment specified the “issues of 

Custody and Visitation are based on the facts and circumstances as existed at the time of 

trial and not date of entry of this Judgment for purposes of the doctrine of changed 

circumstances.”

Mother did not appeal the November 26, 2012 judgment.
5

3. Postjudgment proceedings.

a. The first RFO.

Five months after entry of judgment, on April 23, 2013, mother filed an RFO 

seeking a “revision” in custody, the appointment of a child custody evaluator, an order 

for conjoint family counseling, and a change of the residential arrangement and legal 

custody plan. The moving papers modified the mandatory Judicial Council form, 

FL-300, by eliminating the “MODIFICATION” box and replacing it with a box 

captioned “REVISION.”

On July 11, 2013, the trial court summarily denied the RFO “based on the 

modified Judicial Council form.” (See Cal. Rules of Court, rule 1.31(e) [no alteration of 

mandatory Judicial Council forms].)

b. The second RFO.

On August 2, 2013, mother filed another RFO, which is the subject of this appeal.

This RFO, which was denominated a request for modification of child custody, 

again requested the appointment of a child custody evaluator, and a change in custody 

“in light of the findings of the custody evaluation.” Mother’s RFO also requested an 

order for conjoint counseling, and sole legal custody and authority with respect to the 

minor’s special education decisions.

On October 18, 2013, the matter came on for hearing. Father attended the hearing. 

Mother was not present but was represented by counsel. Mother’s counsel explained 

mother was not requesting “sole legal or primary physical custody” -- rather, she was 

seeking an assessment to determine whether a change to the parenting plan was 

warranted.

The trial court observed, “You’re telling me now that really what your client wants 

is simply that the child have further medical or psychiatric evaluation, not for the 

purposes of changing custody, but simply for the purposes of making sure that everything 

is being done to help [him].”
6

Mother’s counsel disagreed with that characterization of her argument, stating an 

evaluation was necessary because “the court does not have information to determine what 

are the contributing factors” as to why the minor was not “flourishing.”

The trial court denied mother’s postjudgment request for a child custody 

evaluation. It noted that prior to the custody trial, “neither party requested a child 

custody evaluation under Evidence Code section 730 or Family Code section 3111, 

notwithstanding the fact that they were both represented by experienced family law 

attorneys, and notwithstanding the fact that [mother] is herself an experienced attorney 

also practicing in family law.”

The trial court also denied mother’s request for conjoint counseling. It also 

refused to order any change in legal custody, “not[ing] that [mother] has not established a 

significant change in circumstances since the court’s judgment in this case.” The trial 

court did order a nonintrusive neuropsychological evaluation to determine the cause of 

the minor’s behavioral problems, but the expert was not “to make any recommendations 

on custody or visitation.” 1

On December 13, 2013, mother filed a timely notice of appeal from the 

October 18, 2013 order denying her RFO, which is appealable as an order after judgment. 

(Code Civ. Proc., § 904.1, subd. (a)(2).)

CONTENTIONS

Mother contends: the trial court erred in denying her postjudgment request for a 

child custody evaluation and it used the wrong legal standard in ruling on the request; the 

trial court also erred in denying her requests for conjoint counseling and for authority to 

exercise the minor’s federal educational rights; and the trial court failed to maintain 

impartiality.

 

1 We note the declaration of Dr. Bruce Harshman, filed in support of mother’s RFO, 

stated “the records point to an urgent need for a neuropsychological assessment of [the 

minor] in conjunction with a full child custody evaluation.” The trial court did order a 

neuropsychological assessment, which mother has eschewed.
7

DISCUSSION

1. General principles; the interplay of the “best interest of the child” standard 

and the changed-circumstance rule.

In attacking the trial court’s order denying her second RFO, mother contends the 

trial court erred in denying relief on the ground she had not established “a significant 

change in circumstances since the court’s judgment in this case.” Mother argues the trial 

court’s focus at the RFO hearing should have been on the minor’s best interests, as the 

child’s welfare is paramount at all times.

The law in this area is quite clear. “At the adversarial hearing, the court has ‘ “the 

widest discretion to choose a parenting plan that is in the best interest of the child” ’ 

[citations], but ‘must look to all the circumstances bearing on the best interest of the 

minor child.’ [Citation.]” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256, italics 

omitted (Montenegro).)

Although “the statutory scheme only requires courts to ascertain the ‘best interest 

of the child’ (e.g., [Fam. Code,] §§ 3011, 3020, 3040, 3087), th[e California Supreme 

C]ourt has articulated a variation on the best interest standard once a final judicial 

custody determination is in place. Under the so-called changed circumstance rule, a

party seeking to modify a permanent custody order can do so only if he or she 

demonstrates a significant change of circumstances justifying a modification. [Citation.] 

. . . ‘[T]he changed-circumstance rule is not a different test, devised to supplant the 

statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it 

has been established that a particular custodial arrangement is in the best interests of the 

child, the court need not reexamine that question. Instead, it should preserve the 

established mode of custody unless some significant change in circumstances indicates 

that a different arrangement would be in the child’s best interest. The rule thus fosters 

the dual goals of judicial economy and protecting stable custody arrangements.’ 

[Citation.]” (Montenegro, supra, 26 Cal.4th at p. 256, italics added.)
8

2. The discrete issue before this court is not whether the trial court should have 

ordered a change in custody; mother’s contention is merely that the trial court should 

have ordered a custody evaluation to determine whether the minor would benefit from a 

change in custody; no abuse of discretion in denial of mother’s belated request for a 

postjudgment custody evaluation.

Having identified the principles governing a postjudgment request for a change in 

custody, we turn to the narrow issue presented herein. At the hearing on the second RFO, 

mother’s counsel clarified that mother was not actually requesting a change in custody. 

Rather, “[w]hat she has requested is an assessment to determine what this child’s needs 

are before the parents or the court could consider whether any change to the base 

parenting plan is necessary or appropriate.” (Italics added.) Consistent therewith, on 

appeal mother asserts she is not seeking a change in custody; all she seeks is an 

evaluation. Indeed, mother’s opening brief on appeal concedes that “without an 

evaluation, she did not know if [the minor] would benefit from such a change.”

As indicated, after hearing the matter, the trial court denied mother’s request for a 

child custody evaluation.

2

 Instead, the trial court ordered a neuropsychological

evaluation solely to assess the minor’s behavioral issues.3

 

2

Evidence Code section 730 states in relevant part: “When it appears to the court, 

at any time before or during the trial of an action, that expert evidence is or may be 

required by the court or by any party to the action, the court on its own motion or on 

motion of any party may appoint one or more experts to investigate, to render a report as 

may be ordered by the court, and to testify as an expert at the trial of the action relative to 

the fact or matter as to which the expert evidence is or may be required.” (Italics added.)

Also, Family Code section 3111 provides at subdivision (a): “In any contested 

proceeding involving child custody or visitation rights, the court may appoint a child 

custody evaluator to conduct a child custody evaluation in cases where the court 

determines it is in the best interests of the child.” (Italics added.)

3 As indicated, in ordering a neuropsychological evaluation to diagnose the cause of 

the minor’s behavioral issues, the trial court specified that said evaluation was not to 

make any recommendations with respect to custody or visitation. On appeal, mother 
9

Thus, the discrete issue before this court is whether the trial court erred in refusing

mother’s postjudgment request for a child custody evaluation.

a. Standard of review.

In a child custody case, we review the trial court’s decision refusing to appoint a 

child custody evaluator for an abuse of discretion. (In re Marriage of E.U. and J.E. 

(2012) 212 Cal.App.4th 1377, 1389; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 835 

[trial court has discretion in appointment and selection of expert witnesses].)

“ ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of 

reason, all of the circumstances before it being considered. The burden is on the party 

complaining to establish an abuse of discretion, and unless a clear case of abuse is shown 

and unless there has been a miscarriage of justice a reviewing court will not substitute its 

opinion and thereby divest the trial court of its discretionary power.’ ” (Denham v. 

Superior Court (1970) 2 Cal.3d 557, 566; accord, Blue Cross of California, Inc. v. 

Superior Court (2009) 180 Cal.App.4th 1237, 1258.)

b. No abuse of discretion in trial court’s refusal to order a child custody 

evaluation.

As we have noted, at the 2011 custody trial, mother did not request a child custody 

evaluation until after the trial court issued its tentative ruling. At that juncture, the trial 

court denied mother’s request for a formal custody evaluation on the ground it would 

require an eight-month delay, and expressed its concern that the belated request was a 

“litigation tactic” that would not serve the best interest of the minor.

In April 2013, five months after the November 2012 entry of judgment, mother 

filed the initial RFO seeking a “revision” in custody, asserting a change of circumstances 

and requesting a custody evaluation.

In August 2013, one month after the trial court denied the first RFO, mother filed 

the second RFO, again requesting a custody evaluation based on changed circumstances.

 

asserts that because the trial court limited the scope of the neuropsychological evaluation, 

she decided not to proceed with it.
10

Given this chronology, at the hearing on the second RFO, the trial court duly noted 

that mother failed to request a custody evaluation before the custody trial, 

notwithstanding the fact that mother was represented by experienced family law attorneys 

and is herself an experienced attorney practicing in family law. As the trial court 

observed at the second RFO hearing, mother now was requesting an evaluation “so that 

the court could pass its responsibility to make decisions onto a professional and the 

professional might reach a conclusion different than the court did after a trial in this 

case.” The trial court reasonably could conclude that the latest RFO requesting a custody 

evaluation was simply an attempt to make an evidentiary showing that could have been

made at trial; however, a custody evaluation was not presented at the custody trial only 

because mother had made a tactical choice to refrain from requesting a custody 

evaluation until after the court issued its tentative ruling in favor of father.

4

We further note that at the hearing on the second RFO, mother did not make a

persuasive showing why a custody evaluation was warranted at the postjudgment stage. 

Although mother presented evidence of minor’s continued behavioral problems, the trial 

court noted that it was more of the same that it had heard during the custody trial and 

father presented evidence to the contrary. In mother’s own words, she simply sought “an 

assessment to determine . . . whether any change to the base parenting plan is necessary 

or appropriate.” Stated otherwise, the request for a custody evaluation was in the nature 

of a proverbial fishing expedition, in the hope that the evaluator’s report might ultimately 

achieve a change in custody.

Mother also relies on In re Marriage of McGinnis (1992) 7 Cal.App.4th 473

(McGinnis) (disapproved on another ground by In re Marriage of Burgess (1996) 

13 Cal.4th 25, 38, fn. 10) for the proposition that it can be an abuse of discretion to deny 

a parent’s request for an independent custody evaluation. McGinnis is inapposite. There, 

the parents entered into a stipulated judgment of dissolution and agreed to joint legal and 

 

4

Likewise, father’s counsel properly objected to the latest application for a custody 

evaluation as a “request for a second bite at the apple.”
11

physical custody. (Id. at p. 475.) Wife subsequently wanted to relocate from Santa 

Barbara to Arcadia with their three children. Husband filed a motion to prevent wife 

from changing the children’s residence to Arcadia, and asked the court to enter an order 

maintaining the status quo until an independent evaluation could be done. (Id. at p. 476.) 

The trial court denied husband’s request for an evaluation and entered an order awarding 

physical custody to wife to enable her to relocate with the children to Arcadia. (Id. at 

pp. 476-477.) The reviewing court reversed and directed the trial court on remand to 

hold a new hearing to determine what arrangement was in the best interests of the 

children, “only after allowing [husband] the opportunity to obtain an outside evaluation.” 

(Id. at p. 481.) Thus, in McGinnis, the trial court erroneously altered the status quo by 

allowing wife to relocate with the children, without enabling father to obtain a custody 

evaluation prior to the change in physical custody. McGinnis has no application to this 

fact situation, where there has been no change in physical custody.

For all these reasons, we perceive no abuse of discretion in the trial court’s denial 

of mother’s belated request for a postjudgment custody evaluation.

3. No merit to mother’s remaining arguments.

a. Denial of mother’s request for authority to exercise the minor’s federal 

educational rights. 

Mother contends the trial court erred in denying her RFO insofar as she sought 

authority to exercise the minor’s federal educational rights.

“ ‘ “Appellate briefs must provide argument and legal authority for the positions 

taken. ‘When an appellant fails to raise a point, or asserts it but fails to support it with 

reasoned argument and citations to authority, we treat the point as waived.’ ” [Citation.] 

“We are not bound to develop appellants’ arguments for them. [Citation.] The absence 

of cogent legal argument or citation to authority allows this court to treat the contention 

as waived.” ’ [Citation.]” (Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 

1322-1323, fn. 5 (Holguin).)
12

Because mother does not present any legal analysis or argument in support of her

assertion the trial court erred in denying her request for authority to exercise the minor’s 

federal educational rights, the contention has been waived.

b. No merit to mother’s claim she was denied an impartial tribunal.

Mother contends the trial court failed to maintain the appearance of impartiality 

and engaged in a course of conduct hostile to her, suggesting that unconscious 

“confirmatory bias” may have influenced the trial court’s rulings against her.

5

In support, mother cites the trial transcript. Mother asserts that at trial, the trial 

court “frequently disparaged the weight of [her] evidence and arguments before hearing 

all the evidence,” and it “repeatedly took over questioning of [her] witnesses using a 

confrontational and potentially intimidating style of questioning, punctuated by negative 

remarks about their credibility during the course of their testimony.” Mother surmises 

the “court’s attitude and conduct may have had a chilling effect on witnesses, and raises 

concerns that [it] may have failed to keep an open mind during the trial and post-trial 

proceedings.” (Italics added.)

Mother’s claim of bias fails for multiple reasons. It is established that “ruling 

against a party, even erroneously, does not show bias. [Citations.]” (Thornbrough v. 

Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 190, fn. 18.) Further, 

mother’s attack on the trial court’s impartiality is speculative; her assertion the court 

“may have failed to keep an open mind” is pure conjecture. Moreover, the argument that 

bias occurred during the custody trial is not properly before this court. As indicated, 

following the custody trial, mother elected not to appeal the November 26, 2012 

judgment. That judgment is long since final and is not subject to a collateral attack by 

mother on the trial court’s impartiality in conducting the trial. Mother’s reliance on the 

trial transcript to show judicial bias at the hearing on the second RFO is misplaced.

 

5 Confirmatory bias consists of viewing evidence in a light that confirms a 

“preconceived idea or hypothesis.” (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 

706.)
13

In an attempt to show bias, mother also relies on the fact that the trial court denied

her first RFO on the “technicality” that her attorney modified the mandatory Judicial 

Council FL-300 form. However, the trial court’s ruling was proper; the modification of 

the form was in violation of the Rules of Court. (See Cal. Rules of Court, rule 1.31(e) 

[no alteration of mandatory Judicial Council forms].) Accordingly, the argument is 

meritless.

For these reasons, we reject mother’s contention that the order on the second RFO 

must be reversed because a biased tribunal deprived her of due process.

c. Denial of mother’s request for conjoint family counseling.

Mother contends the trial court erred in denying her request for conjoint family 

counseling pursuant to Family Code section 3190.

Family Code section 3190 provides in relevant part: “(a) The court may require 

parents or any other party involved in a custody or visitation dispute, and the minor child, 

to participate in outpatient counseling with a licensed mental health professional, or 

through other community programs and services that provide appropriate counseling, 

including, but not limited to, mental health or substance abuse services, for not more than 

one year, provided that the program selected has counseling available for the designated 

period of time, if the court finds both of the following: [¶] (1) The dispute between the 

parents, between the parent or parents and the child, between the parent or parents and 

another party seeking custody or visitation rights with the child, or between a party 

seeking custody or visitation rights and the child, poses a substantial danger to the best 

interest of the child. [¶] (2) The counseling is in the best interest of the child.” (Italics 

added.) Thus, under Family Code section 3190, the trial court has discretion to order 

such counseling for up to one year, if the court finds the parties’ dispute poses a 

substantial danger to the child’s best interest and that counseling is in the child’s best 

interest.

Mother’s briefing does not acknowledge that a court order to participate in such

counseling is discretionary (Fam. Code, § 3190, subd. (a)) and therefore is subject to 
14

deferential review. Further, mother does not argue the trial court should have found the 

parties’ dispute poses a substantial danger to the best interest of the minor and that 

counseling would be in the minor’s best interest. (Fam. Code, § 3190, subds. (a)(1) & 

(a)(2).) As indicated, it is not this court’s role to develop an appellant’s arguments, and 

the absence of cogent legal argument allows this court to treat the contention as waived. 

(Holguin, supra, 229 Cal.App.4th at pp. 1322-1323, fn. 5; In re Marriage of Schroeder

(1987) 192 Cal.App.3d 1154, 1164.) Given the state of mother’s briefing, this contention 

requires no further discussion.
15

DISPOSITION

The October 18, 2013 postjudgment order is affirmed. Father shall recover costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

ALDRICH, J.

KITCHING, J.*

 

* Retired Associate Justice of the Court of Appeal, Second Appellate District, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.