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In re Meteer3/12/2003
nce was received on behalf of [Wife].' [Citation.] In the circumstances we are entitled to accept the statements of respondent's brief as to the evidence upon the subject. . . . We do not make an independent search of the record to uncover error." (Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 294.) Moreover, on a claim of lack of substantial evidence, we do not reweigh the evidence. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398.) Accordingly, Husband has waived this point on appeal.
With respect to Husband's abuse of discretion claim, "`Abuse of discretion is never presumed. It must be affirmatively established. A reviewing court is not authorized to revise the lower court's judgment even if it should be of the opinion that it would have made a different award had the matter been submitted to its judgment in the first instance, in the absence of a clear abuse of discretion.'" (Rosenthal v. Rosenthal, supra, 197 Cal.App.2d at p. 311.) We will not interfere with a trial court's discretion unless we find that "under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." (197 Cal.App.2d at p. 311.)
The overarching theme of the evidence in this case is that Husband and Wife have been generally unsuccessful at joint decision-making and specifically do not cooperate in making educational decisions concerning Mark. In her appellate brief, Wife sets forth the evidence supporting the court's decision to give only one parent educational decision-making authority. Wife also relates her testimony and Husband's testimony supporting the court's choice of her as the sole decision-maker. We find no abuse of discretion in the court's award of sole educational decision-making to Wife.
Second, Husband claims there was no credible evidence to support the court's finding that it was in Mark's best interest to reduce the amount of time he spent with his brothers and Father. We note first that Daniel was off to college at the time of trial and that Andrew is most likely now in college.
Specifically, father claims the court should not have eliminated one midweek overnight visit and should not have ordered that Husband's midweek contact with Mark in alternating weeks be scheduled for Tuesday nights from 5:15 p.m. to 7:30 p.m., particularly since Husband "clearly testified that he had to work on Tuesday . . . ."
On this subject, the statement of decision read, "The Court finds that [Wife] has been the primary care giver for Mark . . . since his birth. The Court finds that [Wife] has been the primary care giver for Mark . . . since this petition . . . was filed in October 1997. The Court finds that Mark's primary home has been with [Wife]. The Court finds that Mark is closely bonded with [Wife] and that [Wife] is empathetic and responsive to Mark's needs (including social and educational). The Court finds that [Wife]'s home environment for Mark is appropriate and that Mark is comfortable in said environment. The Court finds that [Husband] has been verbally and emotionally abusive towards [Wife]. The Court finds that the parties['] two older boys . . . have developed the same negative perception of [Wife] and [Husband] is a cause. The Court finds that [Husband] has not encouraged . . . Andrew to see his mother or to comply with court ordered visitation schedules agreed to in February 1998. The Court finds that [Husband] has not encouraged either Andrew or . . . Daniel to spend time with their mother. The Court finds that [Husband] has significant negative hostile feelings toward [Wife] which affect his judgment in parenting. An example of this is [Husband]'s decision to call . . . Daniel as
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