1 Filed 3/4/15 Marriage of Schmidtke CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Nevada)

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In re the Marriage of TIFFANY NICOLE and STUART J. SCHMIDTKE. C073244

TIFFANY NICOLE KEELING, Appellant,

v. STUART J. SCHMIDTKE, Respondent. (Super. Ct. No. T083200FL)

Tiffany Keeling (mother) appe als from an order granting Stuart Schmidtke (father) primary physical custody of their son. Mo ther claims (1) the trial court committed evidentiary errors, and (2) an evaluator’s ex parte communi cation with the trial court subjected mother to substan tial danger of undue prejudice and violated her due process rights.2 We conclude mother’s contentions lack me rit. We will affirm the trial court’s order. BACKGROUND Mother and father were divorced when their son was a toddler. Mother then moved to the San Francisco Bay Area and fath er remained in Truckee. The parents shared legal and physical custody of their son as recommended in a 40-page report from a psychologist appointed by the trial court to evaluate the best interests of the child. But when the son was approaching kindergarte n age, mother requested primary physical custody. The trial court ordered a new ev aluation by the same psychologist, including new assessments of the parents, their suppor t systems and the relative merits of the schools in which the son might be enrolled. The psychologist’s new 30-page report recommended that shared legal custody continue but that the son live primarily with father and attend school in Truckee. The psychologist’s report mentioned a cell phone recording presented by father; the psychologist believed mother was emotiona lly abusive toward her son during the recorded call, but the psychologist conclu ded the abuse was not common. Before a scheduled custody hearing, mother moved in limine to preclude admission into evidence of the cell phone recording or any testimony abou t it. The trial court denied her motion. On January 25, 2013, follo wing a custody hearing, the trial court ordered the continuation of joint custo dy but designated father’s ho me as the child’s primary residence. After the trial court ruled, mother said she wanted to terminate her parental rights and would have no furthe r parenting involvement with the child. The trial court conducted voir dire of mother, noted that mo ther’s attorney did not join in mother’s request, and suspended all orders relating to mother’s parenting time with her son. The trial court said the susp ension could be modified by regularly scheduled law and motion proceedings. The trial c ourt did not find mother unfit.3 DISCUSSION
I Mother contends the trial court committed evidentiary errors. The record on appeal incl udes a reporter’s transcript, but the transcript does not transcribe the custody hearing leading to the January 25, 2013 order. Mother’s appellant’s opening brief descri bes various evidence, but not all of the evidence is in the appellate record. Mother focuses on what she calls the “illegal” recordi ng from father’s cell phone, in which she reportedly responded in dramatic fashion to the discovery that the child had wetted and soiled himself while in a car seat . She argues about both the weight and admissibility of that and other evidence, including the alleged bi as of testifying experts. As to the allegedly illegal recording, mo ther admits that, w ith the phone sitting on the front seat of the car, she expressed her frustration as she cleaned up after the child. In her opening brief, she admits the record ing included vulgar language and elevated voice tones and threats not to celebrate the child’s upcoming birthday, but she explains “this was an isolated incident that occurre d which shows a very human response to a mother being frustrated that her potty trai ning efforts are consta ntly challenged from routine visits with the father who s eems unwilling to share the potty training responsibilities on bi-weekly visitations.” The ev aluator’s written report stated that father submitted this recording as proof of mother’s emotional a nd verbal abuse of the child and the evaluator contacted mother who “voiced a clear understanding that she knew she was being recorded while she was in teracting with [the child].” Father’s declaration said the recording was a voice message mother left on his phone. The trial court concluded the recording was not illegal. A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. ( People v. Williams (1997) 16 Cal.4th 153, 197.) Mother disagrees with the trial court’s evidentiary ruling on this and other evidence, but she does not establish any4 abuse of discretion. Without a reporter’s tran script, any claimed error must appear on the face of the record. (Cal. Rules of Court, rule 8.163.) “An appellate court is controlled by the record as it finds it [citation] , and no extrinsic ev idence will be receiv ed to contradict it. [Citations.]” ( Hom v. Clark (1963) 221 Cal.App.2d 622, 647.) Mother’s argument about facts that are not part of the r ecord, including those about alleged racial stereotyping and general injustice, ar e not cognizable on appeal. (See ibid .)
II Mother also contends th e custody evaluator’s ex pa rte communication with the trial court subjected mother to substantial da nger of undue prejudice and violated her due process rights. She asserts that on July 19 , 2012, Dr. Dugan wrote a letter to the trial court and both counsel, info rming them that mother had filed a complaint against Dr. Dugan with his licensing board. Mother’s re quest for judicial notice of the letter is granted. The July 19, 2012 letter stated, “On the advice of my legal counsel, this letter is to advise counsel on the Sc hmidtke matter and the Court that Ms. Keeling-Schmidtke filed a licensing board complain t about my work on her matter. This does not preclude my appearance [at the hearing] and I will testify as required to the best of my ability.” The letter said nothing about the nature of th e complaint but reques ted instructions from the trial court if any information about the complaint or Dr. Dugan’s response was required. There is no indication in the r ecord of a response from the trial court. Mother contends the letter was an ex parte communication in violation of Family Code section 216. But an ex part e communication violating Family Code section 216 is “a direct or indirect communication on the substance of a pending case without the knowledge, presence, or consent of all pa rties involved in the matter.” (Cal. Rules of Court, rule 5.235(b)(2).) The letter was dire cted to the trial cour t and counsel for both parties and it said nothing about custody of the child, so it wa s not an ex parte communication in violation of Fa mily Code section 216.5 Mother does not establish any actual prej udice caused by the le tter, and she does not explain how her due process rights were violated by the letter. In an adjudicated contested custody hearing, a tr ial court has “the widest disc retion” to choose a parenting plan based on the best interests of the child, considering all the circumstances bearing on the child’s interests. ( In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.) Mother asked for primary physical custody a nd the trial court gave her request serious attention, focusing not on the disputes between the parents but on the son’s activities and schools. The trial court recognized that, befo re the son started school , the parents had an approximate 50/50 split of parenting time and that, after school started, regardless of where the son lived, the split w ould probabl y come close to 60/40. Although mother’s request for primary physical custody was deni ed, the order issued after the contested hearing included a detailed six-page plan for shared legal custody that provided extensive parenting time for her. The trial court did not find mother unfit and it did not deny her due process, it just determin ed the son would be better served by having his primary residence with his father. There is no indica tion that the trial court abused its discretion or that its decision was not s upported by substantial evidence. DISPOSITION The January 25, 2013 order is affirmed.

MAURO , J.

We concur:

BLEASE , Acting P. J.

HULL , J.