Filed 1/19/23 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re Marriage of DESTINY and JUSTIN C.

D079123 DESTINY C., Appellant, (Super. Ct. No. D553087) v. JUSTIN C., Respondent.

APPEAL from an order of the Superior Court of San Diego County, Sharon Kalemkiarian, Judge. Affirmed.

Keiter Appellate Law and Mitchell Keiter for Appellant.

Stephen Temko for Respondent.

In 2015, appellant Destiny C. (Mother) filed a petition for dissolution of her marriage to her husband Justin C. (Father). Six years later, following a six-day trial on custody and visitation issues, the family court made final custody orders, directing both parents to share joint legal and physical custody of the couple’s then-seven-year-old daughter. Mother disputes that result, relying primarily on the Family Code section 3044 presumption against the award of joint legal or physical custody to a party who is found to have committed domestic violence “within the previous five years.”1 (§ 3044, subd. (a).)

Mother’s primary argument is one of statutory interpretation. She contends the five-year period provided for in section 3044 runs backwards from the filing of the dissolution petition, not from the date of the family court’s custody ruling. The trial court rejected this impractical construction.

We do likewise and affirm the custody order.

FACTUAL AND PROCEDURAL BACKGROUND There are two critical dates for purposes of this appeal. After a tumultuous five-year marriage, Mother filed her petition for dissolution in January 2015. The couple’s child was listed in the petition. Division of property and support issues were resolved by stipulation in 2019. It was not until February 2021 that the family court held a hearing on custody and visitation issues. Following that hearing, after neither party filed objections to the court’s proposed statement of decision, the court made orders awarding joint legal and physical custody to Mother and Father.

Both parties offered evidence at the hearing indicating that each had engaged in domestic violence during the relationship, and the court found that both parties “committed acts that could be seen to be domestic violence.”

Still, the court determined that “none of the domestic violence happened five years from when this Court heard evidence on the parenting plan during this trial.” As a result, it concluded that the section 3044 presumption against awarding custody to a perpetrator of domestic violence did not apply. In the

A. To invoke Family Code section 3044’s presumption against the award of custody to a perpetrator of domestic violence, the trial court must find that domestic violence occurred within five years of its custody order.

Section 3044 creates a rebuttable presumption against awarding custody of a child to a perpetrator of domestic violence. The presumption arises “[u]pon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years . . . .” (§ 3044, subd. (a).)4 Here, Mother offered evidence that at various points in their relationship Father committed acts of domestic violence against her.

She then relied on the section 3044 presumption to argue that she should be awarded sole legal and physical custody of their daughter.

The trial court found it unnecessary to make specific findings about the exact extent to which it agreed with Mother’s view of the facts.5 Instead, it simply determined that none of the alleged domestic violence occurred within five years of the custody trial. On that basis, it concluded that the presumption did not apply and awarded joint legal and physical custody to both parents. Mother argues the trial court committed legal error in misconstruing the point from which the five-year period is measured.

In interpreting a statute, we first consider the words used by the Legislature, “as statutory language is generally the most reliable indicator of legislation’s intended purpose.” (McHugh v. Protective Life Ins. Co. (2021)

This interpretation makes complete sense. In reaching custody determinations, section 3011 directs the family court to consider any “history of abuse by one parent or any other person seeking custody.” (Id., subd. (a)(2)(A).) Thus, older incidents of domestic violence beyond the five-year period are still relevant evidence in any custody proceeding. But only recent incidents give rise to a presumption against the award of custody. The five- year look back provision was designed to limit the section 3044 presumption to evidence of domestic violence that is not remote in time from the custody decisions the court is currently making. Indeed, accepting Mother’s interpretation would create the incongruous result that as long as the initial request for custody was filed within five years of the last domestic violence incident, the presumption would apply in perpetuity based on evidence that had long since become remote. Unsurprisingly, courts have consistently interpreted section 3044, subdivision (a) as asking whether domestic violence occurred in the five years preceding a custody ruling. (See, e.g., Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 736 [presumption applied where “Father’s most recent actions occurred less than five years before the court

made the order on appeal”]; Noble v. Superior Court (2021) 71 Cal.App.5th 567, 581−582 [presumption applied where Utah court’s abuse finding “was based on events occurring within the five-year time frame preceding the family court’s August 2020 ruling on the parties’ requests to modify custody”].)

Mother believes it would be “better policy . . . to hold that the pertinent deadline is five years before the filing [of the petition].” She suggests that the rule applied by the trial court “would create an especially powerful incentive for parties to delay proceedings.” But weighing competing policy considerations is a task for the Legislature (see, e.g., Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 367), and arguments of this nature are appropriately addressed to Sacramento, not the courts. Moreover, we have no doubt the family court understands its responsibility to make timely custody decisions in the best interests of the children consistent with the due process rights of the parties. (See § 3023.)

B. Having failed to object to the finding in the statement of decision that there was no domestic violence within five years of the custody order, Mother cannot now complain the trial court “overlooked” certain testimony.

Mother contends that even if section 3044 is interpreted as requiring a finding of domestic violence within five years of the court’s custody order, here there was such evidence provided by the testimony of the parties’ neighbor, who allegedly witnessed an incident “3 or 4 years ago” when Father slammed Mother’s head down and gave her “a couple of whacks on the side of the head” outside their home. For his part, Father denied ever having punched, slapped or pushed Mother or in any way “attempted to cause [her] physical harm.” The court impliedly rejected the neighbor’s testimony when

it found that “none of the domestic violence happened five years from when this Court heard evidence on the parenting plan during this trial.”

Mother recognizes that this court must defer to factual findings by the trial court that are supported by substantial evidence. And she concedes that if the trial court found there was no credible evidence of domestic violence by Father within five years of the court’s order, that would be a factual finding entitled to deference from this court. But she contends because the statement of decision did not explicitly mention that the neighbor’s testimony was not credible, the “better-reasoned position” is that the court must have “overlooked” the testimony.

Mother’s argument runs afoul of the doctrine of implied findings and the rule that requires a party to object to the proposed statement of decision on the grounds that it is somehow unclear or ambiguous.6 “Under the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision. Securing a statement of decision is the first step in avoiding the doctrine of implied findings, but is not always enough: The appellant also must bring ambiguities and omissions in the factual findings of the statement of decision to the trial court’s attention. If the appellant fails to do so, the reviewing court will infer the trial court made every implied

Here, the trial court’s proposed statement of decision included a factual finding that there were no incidents of domestic violence within five years of the court’s hearing and resulting custody order. This determination necessarily implied that Father did not “whack” Mother on the side of the head three or four years prior to the hearing. If Mother believed the court had somehow “overlooked” the neighbor’s testimony, making the factual finding ambiguous, she was obligated to lodge an objection to the proposed statement of decision explaining why it required clarification. (Fladeboe, supra, 150 Cal.App.4th at p. 59 [“a party claiming omissions or ambiguities in the factual findings must bring the omissions or ambiguities to the trial court’s attention”].) It makes no difference that the court made no express finding rejecting the believability of the neighbor’s testimony, because a reviewing court “will infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues.” (Id. at p. 60.)

Mother insists she is not challenging the court’s factual findings. But even if she did, the neighbor’s testimony was disputed, and we are not at liberty to second-guess the trial judge’s firsthand evaluation of his credibility.

DISPOSITION The court’s custody orders are affirmed. Father is entitled to recover his costs on appeal.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.