1

Filed 4/21/22 Marriage of Andrea M. and Gary M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of Andrea M. and 

Gary M.

ANDREA M.,

Respondent,

v.

GARY M.,

Appellant.

 

 A163665

 

 (Contra Costa County

 Super Ct. No. MSD18-03631)

After Gary M. and Andrea M. divorced, the family court 

ordered that their son should attend an elementary school in 

Moraga, near Andrea’s home. Gary appeals from that order, 

contending that the court violated his rights by failing to take 

live testimony, relying exclusively on declarations, and denying 

his request to hold a trial. In addition, he argues that the court’s 

order was not supported by sufficient evidence. We conclude that 

his contentions lack merit and therefore affirm.

BACKGROUND

Subsequent to their divorce, Gary and Andrea shared joint 

custody of their son, S., who resided with each of them on an 

alternating basis. Gary resided at their former marital residence 

in Martinez, while Andrea moved out and eventually settled in 

Moraga. In Moraga, Andrea lived with her fiancé, who had a 

daughter who attended elementary school there. 
2

Gary and Andrea were unable to agree on the elementary 

school S. should attend beginning his kindergarten year. The 

trial court appointed a private recommending mediator to assist 

the parties in resolving ongoing parenting disputes, including the 

school question. 

Gary preferred a school located in Pleasant Hill, but 

Andrea wanted to enroll S. at the school in Moraga that her 

fiancé’s daughter was attending. The mediator recommended 

that S. be enrolled in the Pleasant Hill school. We grant 

Andrea’s unopposed request to augment the record with the 

mediator’s confidential recommendation. (See Cal. Rules of 

Court, rules 8.155(a)(1)(A), 8.45(d)(2).)

Because Andrea disagreed with the mediator’s 

recommendation, she requested an order from the court that S. 

attend the Moraga school. In two declarations filed with the 

court, Andrea asserted that the Moraga school was a better 

choice because S. would be able to attend school with her fiancé’s 

daughter as well as the child she was expecting with her fiancé 

(who would be S.’s half-sibling). In addition, she contended that 

the Moraga school was more highly rated than the Pleasant Hill 

school. In his own declaration, Gary asserted that the Pleasant 

Hill school was preferable because, as a result of its location 

between the parties’ respective residences, S. would spend less 

time in the car. He also contended that the Pleasant Hill school 

had a strong reputation and S. would attend school there with 

other children from his community.

Andrea’s declarations also presented evidence of allegedly 

abusive communications she had received from Gary. One 

exhibit she submitted contained text messages that he allegedly 

sent to her and the mediator that were laced with obscenities 

and, among other things, appeared to refer to Andrea as a 

“mentally ill[,] racist abuser.” Andrea asserted that Gary’s 

conduct demonstrated that he was motivated by anger and a 

desire for control rather than their son’s best interests.
3

The court held a hearing on the school question in July 

2021. Andrea was represented by counsel, and Gary proceeded 

pro per. During the hearing, the court made clear that the issues 

involving the obscene text messages were “absolutely separate[]” 

from the school question. After hearing from both parties, the 

court determined that it would be in S.’s best interest to be 

enrolled at the Moraga elementary school.1

DISCUSSION

A.

Gary contends that the trial court violated his rights by 

relying on Andrea’s declarations and denying him the 

opportunity to present live testimony. We disagree.

Family Code section 217 provides that, absent stipulation 

by the parties or a finding of good cause, a trial court hearing a 

motion shall receive live testimony that is relevant and 

competent. (Fam. Code, § 217, subds. (a)-(b).) Here, the court 

swore in both parties, received testimony from Andrea, and 

provided Gary with multiple opportunities to present his 

information to the court. After the court allowed Gary an initial 

chance to present his testimony and argument, the court directly

asked Gary why he believed his preferred school was in S.’s best 

interest. The court subsequently gave Gary another opportunity, 

asking him: “[w]hat is your objection to the [Moraga] school itself 

as not being in [S.]’s best interest?” Later in the hearing, the 

1 We grant Andrea’s unopposed motion to strike two 

documents in Gary’s appendix – an email dated September 29, 

2021 and a school document dated November 16, 2021. These 

documents were not properly included in the appendix because 

they postdate the July 17, 2021 order under appeal and therefore 

were not in the record before the trial court. (See Aixtron, Inc. v.

Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 381; Cal. Rules 

of Court, rule 8.124(g).) We deny as unnecessary Andrea’s 

request that we strike or disregard portions of Gary’s briefs that 

lack record support or refer to matters outside the record. 
4

court asked Gary two more times whether there was any 

additional information he wished to share concerning the school 

issue. At no time did Gary inform the court that he wished to 

question Andrea or present any other testimony.2

Gary contends that the trial court denied him the ability to 

cross-examine Andrea and present other testimony, but the court 

never denied any request to present additional testimony at the 

hearing. Because the court received live testimony from both 

parties and no other live testimony was offered, we find no error. 

We likewise reject Gary’s related argument that because he was 

denied the ability to cross-examine Andrea, the court was 

required to exclude her declarations.

Gary also asserts that the trial court erred in relying on 

Andrea’s declarations because they were never formally admitted 

into evidence. (See In re Marriage of Pasco (2019) 42 Cal.App.5th 

585, 591 & fn. 3.) However, as we discuss below in addressing his 

challenge to the merits of the court’s order, Gary is unable to 

establish prejudice from the court’s consideration of the 

declarations because there was substantial evidence based on 

Andrea’s live testimony alone. (See Nazari v. Ayrapetyan (2009) 

171 Cal.App.4th 690, 697.) 

Gary’s due process challenge (raised in his reply brief) to 

the court’s reliance on Andrea’s declarations fails for the same 

reason. (See In re Vanessa M. (2006) 138 Cal.App.4th 1121, 

1132.) In any event, we reject, as unsupported by the record, 

Gary’s argument that the court violated his due process rights 

2 In his reply brief, and without citation to the record, Gary 

alleges that he did not realize he could present live testimony 

because the court’s family law facilitator’s office advised him that 

he would not be able to call witnesses or cross-examine Andrea 

during the hearing. To the extent he contends that his rights 

were violated because court employees provided him with 

erroneous advice, we are unable to adjudicate his contention 

because it relies on matters that are outside the appellate record.
5

because he “was never afforded the opportunity to challenge [the 

declarations] or even present a case.” Gary does not dispute that 

he was served with Andrea’s declarations prior to the hearing or 

that he filed a responsive declaration. Further, as discussed, he 

was provided a hearing during which he was free to make 

arguments and objections, present testimony, and cross-examine 

Andrea on the substance of her declarations.

Gary is also mistaken that the trial court’s consideration of 

Andrea’s declarations was tantamount to improperly conducting 

a private investigation. He relies on cases holding that it violates 

due process for a court to conduct its own ex parte investigation 

and rely on confidential reports not provided to the parties. (See, 

e.g., Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159, 163-

165.) Here, the court neither conducted its own investigation nor 

took any ex parte actions. Gary’s contention is wholly without 

merit.

B.

Gary incorrectly argues that the trial court erred in 

denying his request for a trial. 

When he made the request during the hearing, which took 

place a few weeks before the beginning of the school year, the 

court interrupted him and explained that it would not continue 

the matter because S. needed to start school in four to six weeks. 

Although Gary contends that he was unable to name the 

witnesses he wished to call at trial because of the court’s 

interruption, the court did give him a chance to elaborate on the 

basis for his request. The court asked Gary point blank: “what is 

it that you think would come out at a trial that you aren’t having 

the opportunity to provide me now?” Gary’s only response 

indicated that he believed a trial was necessary because the court 

had mentioned the obscene text messages. 

In denying the request, the court explained that the text 

messages were irrelevant to the school question. The court 
6

reiterated that S. needed to start kindergarten in a matter of 

weeks, and that S., the school, and both parents all needed to 

prepare for that. In addition, the court reasoned that it was not 

possible at that late date to hold the trial before the first day of 

school. Under these circumstances, the court acted well within 

its discretion in denying Gary’s last minute request. (Cf. Menges

v. Department of Transportation (2020) 59 Cal.App.5th 13, 25-26.)

C.

Gary contends that the trial court abused its discretion in 

concluding that enrolling S. at the Moraga school would be in his 

best interest. We disagree.

Under the abuse of discretion standard, we may reverse 

only if there is no reasonable basis to support the trial court’s 

decision concerning the child’s best interest. (In re Marriage of

Melville (2004) 122 Cal.App.4th 601, 610.) We review the factual 

findings supporting the trial court’s exercise of discretion for 

substantial evidence. (Id. at pp. 611-612.)

Here, Gary fails to acknowledge, let alone address, the trial 

court’s reasons for concluding that attendance at the Moraga 

school would be in S.’s best interests. Among other things, 

Andrea testified at the hearing that her fiance’s daughter – who 

would be S.’s step-sister upon Andrea’s re-marriage – attends the 

Moraga school and would be entering fourth grade at the time S. 

entered kindergarten. Andrea also testified that she and her 

fiancé had recently welcomed the birth of S.’s half-sister, who was 

one month old at the time of the hearing. Based on this 

uncontested evidence, the court reasonably concluded that 

attending the Moraga school would be in S.’s best interest 

because he would be able to attend the same school as his 

siblings.

Neither did the trial court abuse its discretion in reaching a 

different conclusion than the mediator concerning S.’s best 

interest. The parties agreed to have a mediator make a 

recommendation, but retained the right to request a court order if 
7

they were dissatisfied with the recommendation. The court is 

free to reach a decision independent of the mediator’s 

recommendation so long as the court’s decision is within its 

discretion and rests on substantial evidence – as was the case 

here. (See In re Marriage of DeRoque (1999) 74 Cal.App.4th 

1090, 1096.)

DISPOSITION

The order is affirmed.
8

_______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J. 

____________________________

NEEDHAM, J.

A163665