Opinion
E066256
09-06-2018
In re the Marriage of LAURA and JOHN DE LIGHT. LAURA DE LIGHT, Respondent, v. JOHN DE LIGHT, Appellant.
John De Light, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RID1302119) OPINION APPEAL from the Superior Court of Riverside County. Christopher B. Harmon, Judge. Reversed with directions. John De Light, in pro. per., for Appellant. No appearance for Respondent.
Appellant John De Light appeals the dissolution of his marriage to respondent Laura De Light and the orders made pursuant to the dissolution. In January 2008, the De Lights were married in Iowa. They eventually moved to California for John's work. On April 25, 2013, Laura moved back to Iowa taking S.D. (born March 2009; Child1), and L.D. (born January 2012; Child2) (collectively, the Children), without advising John. She moved in with her parents and then filed for divorce from John in California. John filed an ex parte application to have the Children returned to California. That request was denied and divorce proceedings ensued. John appeals the trial court's numerous orders entered both before trial and from the trial.
We refer to the individual parties by their first names out of ease of reference; no disrespect is intended.
John claims on appeal as follows: (1) the trial court erred by denying his ex parte motion for a child abduction inquiry and petition for immediate return of the Children to California; (2) the trial court erred by denying him an evidentiary hearing on a move-away order, custody and visitation; (3) the trial court erred by granting Laura's motion in limine to exclude evidence at trial on the custody and visitation issues, foreclosing their determination at trial; (4) he did not have an opportunity to cross-examine the Evidence Code section 730 expert appointed by the trial court; (5) he was not given the opportunity to establish that it was not in the best interests of the Children to live with Laura's parents in Iowa; (6) there was insufficient evidence presented of the child care expenses to include them in the child support calculation; (7) the child support arrears calculation was incorrect because he was unemployed a portion of the applicable time period; (8) the trial court abused its discretion by awarding spousal support and arrears; (9) the trial court erred by denying him an award of travel expenses from California to Iowa to visit the Children; and (10) the trial court erred by awarding Laura attorney fees.
We agree with John that he was entitled to a hearing on the move-away order, custody and visitation. We vacate the current orders and remand to the trial court for a new trial.
John filed a request for judicial notice on December 26, 2017. We deny the request as the documents are not necessary to resolve the issues on appeal.
FACTUAL AND PROCEDURAL HISTORY
A. EX PARTE APPLICATION
On May 21, 2013, John filed an ex parte application seeking to have the trial court address child custody, visitation, and to order Laura to bring the Children back to California. He filed a Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act. The Children had lived in Corona from May 2012 until April 28, 2013, with both John and Laura. The Children had been living in Iowa with Laura since April 28, 2013.[CT 5}
John filed a declaration in support of the ex parte order. He and Laura had been married for five years and the Children were their only children. On April 25, 2013, John went to work at 7:00 a.m. When he returned at 7:00 p.m., Laura and the Children were gone. He went to the Corona Police Department and they were able to contact Laura, who assured the officer that she and the Children were fine. She sent an email to John that night advising him that she needed a break from their relationship. John decided to give her some time. He called her several times finally speaking with her on May 9, 2013. It was then that she told him she had taken the Children to live in Iowa. On May 19, 2013, he was served with the dissolution of marriage petition. John requested the return of the Children to California either through court order or by the Riverside County Child Abduction Unit.
Laura filed a responsive pleading. She sought sole legal and physical custody of the Children. She denied that she abducted the Children; John knew where they were located. Laura provided a responsive declaration. She and John had separated on April 25, 2013. She declared that during the last months of their relationship, he was not adequately providing for her and the Children. He took away her debit card and checks for their joint bank account. She had no money to purchase the daily necessities for their home and children. On April 21, 2013, he denied her access to money and threatened to take away her cellular telephone. On April 22, 2013, she contacted an abuse counselor located in Corona. She was advised to file a "good cause" report with the Riverside County District Attorney's Office (DA); specifically, with the child abduction unit. She declared that she was instructed it was okay for her to move to Iowa to live with her parents where their needs could be met.
Laura spoke with Deputy District Attorney Andrew Payne. She obtained airline tickets. She contacted Payne and filed a good cause report form pursuant to Penal Code section 278.5. Payne advised Laura that the form was only good until May 24, 2013, and that the appropriate paperwork would have to be filed to address custody and visitation in the family law court.
The form has been included in the record but there is no indication it was ever filed and it is barely legible. --------
Laura had heard from John on four occasions since moving to Iowa. Laura insisted John made no effort to be with the Children until he was served with the dissolution of marriage paperwork on May 19, 2013. Laura provided that John was a contract employee who often moved for his work. Further, he commonly worked 14 to 16 hours each day and on weekends; it would be impossible for him to care for the Children if he was given sole physical custody.
On May 22, 2013, the matter was heard in the trial court. John's counsel explained that John had taken money from the community and put it in another account because Laura was sending their money to other family members. He took the money out the day before Laura left with the Children to Iowa. John had left enough money for her to buy clothes and food. John had not filed the ex parte earlier because he understood they were going to reconcile but once she filed for divorce that was no longer possible. Laura's counsel argued there was no showing of exigency, which would require an order from the court. The parties should be sent to mediation. Laura was staying at her parents' residence in Iowa and had no plans to leave. Laura was taking good care of the Children.
The trial court first noted it did not see that there was an emergency requiring the child abduction unit of the DA's office to act. The trial court ordered the parties to mediation, to occur as soon as possible. The trial court warned Laura's counsel that the Children may be ordered back to California. It did not appear that it was appropriate for her to leave but there may be facts to justify her actions. The matter was set for a custody and visitation hearing on June 25, 2013.
The trial court also advised Laura's counsel that he may want to file a "move-away motion." If it was filed, it would also be heard on June 25. The trial court entered temporary custody orders. Laura and John would share joint legal custody; temporary physical custody was granted to Laura. John was to have daily telephonic contact with the Children.
B. PRETRIAL FILINGS AND MOVE-AWAY ORDER REQUEST
On June 10, 2013, Laura's counsel filed the request for a move-away order. She also requested an order for child support, spousal support and attorney fees and costs. She attached a declaration to the move-away order request. She insisted that John was verbally abusive, aggressive and controlling. He was starting to be verbally abusive to Child1. John had opened a separate bank account in his own name and transferred funds to the account from their joint account. Laura had cash sent to her from her parents to take care of her and the Children's needs. John worked full time and she was the primary caregiver. John never assisted in the household chores or care of the Children. They had moved six times in five years because of the temporary nature of John's work. John had no extended family who could help care for the Children and it was unclear when he would need to move for another job. When John was left with the Children, he did not provide adequate care.
Laura was living with her mother and father. They provided stability and helped care for the Children. Child1 was enrolled in preschool and was attending church. Laura declared that John's income was $12,000 each month and she had no income. Laura was in the process of finding a job. She sought guideline spousal and child support. She sought $3,000 in attorney fees and costs. She believed that John had transferred at least $25,000 from their joint account between July 2012 and April 2013.
John filed a reply to the request for a move-away order, custody, and child and spousal support orders. John first contested the dissolution of their marriage. John insisted he had always adequately provided for the family. John had temporarily taken her checkbook because she had written some bad checks on the family accounts and Laura was sending money to her sister. These events only occurred during the last "few" months of their marriage.
John claimed he and Laura had gotten into a fight on January 11, 2013. Laura told him that she wished he was dead. Laura later told him that she did not mean it but John was not convinced. John alleged that Laura's father was a Freemason, which he insisted were involved in Satanic worship; Laura's father had gotten very angry with him in the past. John also alleged that Laura's mother was in a women's group associated with the Freemasons. Placement of the Children in their home was not safe. Laura lied about her trip to Iowa being as a result of him not providing adequate food and items for the Children. She wanted to visit her parents to celebrate her parents' anniversary and John had previously denied her request. There was no emergency that justified Laura leaving the home with the Children.
Since Laura had moved the Children to Iowa, Child1 had missed several music classes. John had been the sole breadwinner in the house since 2008. He would find childcare if given custody of the Children. John was requesting sole legal and physical custody.
On June 12, 2013, Laura's sister, Stacy Lynn Haynes, filed a declaration. She denied she had financial troubles. She did receive $1,200 from Laura and John for her medical bills but is was a gift from both of them. She had received no other items from Laura.
On June 13, 2013, Laura's parents, Charles and Mary Stepanek, filed declarations in support of Laura. Charles denied he ever yelled at John. Charles was a Christian. He was a Freemason but Mary was not part of any organization. They had been married 20 years and were active members of their local Christian church. Laura called Mary on April 22, 2013, advising her that John had taken away her debit card and checks. She did not have money for food or diapers. Mary paid for Laura and the Children to travel to Iowa.
On June 18, 2013, John filed a Response and Request for Dissolution of Marriage. John sought legal and physical custody of the Children. He objected to spousal support. He sought an order requiring Laura to return the Children to California. He also sought child abduction prevention orders from the family law court.
He also filed a declaration in response to the declaration filed by Mary and Charles. John insisted that Laura's parents sent them satanic artifacts and literature. John was concerned that the Children would not be raised in the Christian faith. Mary wanted Laura to divorce John so that she would get his money through the child support and spousal support payments. John also responded to the declaration filed by Haynes. It was well known in the family that Haynes had financial trouble. Haynes had received assistance from Mary and Charles. John was concerned that Laura's parents would be overwhelmed with the financial burden of caring for the Children, and Haynes and her children.
On June 24, 2013, a child custody recommending counselor, Kevin Carter, filed his report. John and Laura had appeared for mediation on June 11, 2013; Laura appeared telephonically. There was no agreement on legal or physical custody of the Children.
Both parents agreed that Laura was the primary caregiver having not worked since the Children were born. They both agreed they had lived in six different locations in the prior five years. Laura stated she had no choice but to move to Iowa because John had cut off all funds except $35 each week. Laura denied that John ever made any physical threats or threats of violence. John responded he did not deny access to funds and he had no notice that Laura was moving to Iowa with the Children.
Carter contacted Payne at the DA's office. Laura had told Payne that she had been subjected to financial abuse by John. She told Payne all of the local shelters were full. When Payne offered to call a shelter for her, she admitted she never contacted any shelter. Payne told Laura she could go to Iowa and it would not be a child abduction as long as she requested orders regarding child custody with the family court within 30 days. Carter recommended an Evidence Code section 730 evaluation because they could not agree on child custody.
Carter provided a recommendation, which included joint legal custody; Laura to be given physical custody and John to be given visitation in Iowa every day from 10:00 a.m. to 4:00 p.m. John also would be able to speak with the Children daily. Both parents would cooperate with the Evidence Code section 730 evaluator. The parties agreed to stipulate to the order. There was no indication that it was a permanent order.
On June 25, 2013, the family court adopted the stipulation by the parties to Carter's recommendation. It then ordered that Dr. Robert C. Connerly be appointed as the Evidence Code section 730 evaluator to determine custody and visitation. All matters of support and arrears were reserved.
C. EXPERT EVALUATIONS
1. EVIDENCE CODE SECTION 730 EVALUATION
Dr. Connerly submitted his report on November 2, 2013. Laura, John and the Children were evaluated. Laura's parents also participated in the evaluation. Connerly had Laura and John both fill out information forms, they were both interviewed, administered psychological testing and were observed interacting with the Children. Mary and Charles were interviewed and given psychological testing.
Dr. Connerly first outlined the history of Laura and John, including that she left with the Children to Iowa based on her statement that he was withholding financial benefits. John maintained he never restricted her access to community funds and that Laura had abducted the Children. Laura claimed John called her stupid and threatened to take her cellular telephone. He also kept her from the community funds. John denied the allegations. Neither of them had any evidence or documentation to support their claims.
John reported he had a generally positive upbringing. He had never been married before and had no other children. John insisted that when he was not working, he was very involved in the lives of the Children. John focused on the needs of the Children in relation to future academic achievements and not on their needs of attachment and development. John had two DUI convictions: one in 2003 and another in 2007.
John had a career in engineering but was currently unemployed. He had moved numerous times for work and worked long hours when he was employed. He was willing to try to find a job that was more stable in California, or in Iowa if needed. John provided conflicting answers as to how he would care for the Children if given custody. He stated he would either find a lower paying job to stay home with them or hire child care. John also told Dr. Connerly that he believed Laura's family was having him followed, but provided no proof. John expressed concern that he was a Christian and that his religious beliefs conflicted with Laura's parents.
Dr. Connerly observed John at a visit with the Children. They appeared to be appropriately bonded. However, John did not appear to react to displays of affection from the Children. He seemed to focus on teaching Child1 how to do things rather than just play with her. He brought no age appropriate toys for Child2 to play with and was poor at maintaining Child2's attention. He could not focus on both Child1 and Child2 at the same time.
Based on John's psychological examination, he had results that indicated that he seemed to be presenting himself in a virtuous light, which may mask his real problems. He showed that he may have trouble with being overprotective and may try to shelter the Children.
Laura was a woman who presented herself as a highly involved parent. She had a positive upbringing. She complained that John did not include her in household decisions. She described numerous activities that she enjoyed doing with the Children. She expressed adequate ideas about parenting including that there must be warmth and structure in her parenting. Laura had no criminal record, no history of substance abuse or mental health problems.
Laura had gotten a job working full time and had found a licensed day care for the Children. Laura complained that John did not adequately supervise the Children when they were with him. Laura denied that her family was having John followed. Her parents posed no risk to the Children.
Laura was observed playing with the Children. They all seemed to have a warm and comfortable relationship. She was able to maintain the attention of the Children. Laura was subjected to psychological testing. She appeared to be under-reporting her problems and put herself in a very positive light. Laura's results showed she was satisfied with her role as a parent. She did not have stress with her relationship with her children; the only stress was with coparenting with John.
Mary and Charles were evaluated. Mary and Charles reported being Christians and regularly attending church. There were no reports to Dr. Connerly regarding abnormal religious practices. Mary was supportive of Laura's choice to move the Children to Iowa. Laura and the Children could live in the home for as long as they needed. Mary's psychological evaluation also showed that she appeared more positive than may be the reality. No psychological problems were present. Charles was also supportive of Laura and her decision to move to Iowa with the Children. Charles was cooperative and provided information. He did not have any history of substance abuse or criminal history. Charles presented himself in a very positive light during psychological testing. His results indicated the presence of significant thought dysfunction. He also presented as very shy and did not enjoy social situations. Without any further information, Connerly could not conclude the Children were unsafe in the home with Charles.
The Children appeared to be well-cared for and developmentally on target. Dr. Connerly concluded that it was in the best interests of the Children to remain in Iowa with Laura. That should remain the parenting plan until John could receive some kind of training or support to develop his parenting "acumen." If he made progress, a further modification could include overnight visits in Iowa and possibly California. Connerly had no opinion as to whether there had been any financial abuse involved. Further, despite Laura beginning to work and being less available to care for the Children, it was still in their best interests to stay with Laura. Also, Laura was stable in her living situation and John frequently moved for work. Moving the Children back to California with John as the primary caregiver was not in their best interests. The Children appeared to be more bonded with Laura. John did not seem to have a strong relationship with Child2.
It was recommended that John take a parenting class. It was important that John increase his time with the Children once he took a parenting class and showed improvement in his parenting acumen. It was recommended that John and the Children attend therapy together. Since there were some coparenting conflicts, it was recommended that both John and Laura should participate in a coparenting course.
The allegation that Laura moved away to deny John contact and that Laura was subjected to financial abuse was not supported by the evidence. It was a neutral factor in deciding the custody of the Children. The psychological evaluations of all parties did not raise concerns with Dr. Connerly. Even though there were some concerns with the evaluation of Charles, the other indicators did not raise concerns as to his involvement with the Children. Joint custody was appropriate.
The final recommendations were joint legal custody; Laura's home in Iowa would be considered the primary residence; John and the Children were to engage in joint therapy; if the therapy was successful, more visitation for John was recommended; the recommendation provided a very detailed schedule for time that the Children would spend with each parent in both Iowa and California; John should continue individual therapy and take a parenting class; and both Laura and John should attend a coparenting class;
2. EVIDENCE CODE SECTION 733 EVALUATION
On November 14, 2013, Amy M. Miller, a licensed psychologist, was appointed to respond to the evaluation of Dr. Connerly pursuant to Evidence Code section 733. After several continuances, the report was prepared on December 28, 2014. Miller met with John in person, but never met with Laura or the Children.
She reviewed Dr. Connerly's report. The interviews with John and Laura were conducted at the beginning of the separation, which was commonly a sensitive time. Connerly ignored that Laura had told John that she wished he was dead prior to him restricting the finances. Dr. Miller described the statement as "harsh" and that John could not forget these words.
John had no extended family and moved frequently. The removal of the Children by Laura "took him off guard." John was left with no home base to seek refuge or support. Laura had lived in Iowa all of her life, which was known for being conservative and rural. Dr. Connerly ignored their different cultures (John had lived in Africa until he was 22 years old) and the impact moving several times had on Laura and John. Dr. Miller explained that John was an engineer and came from a culture that was male-dominated. Further, he was also influenced by the "voodoo beliefs" in Africa, which explained his belief that the Freemasons were involved in satanic rituals. Connerly failed to recognize these cultural differences.
Dr. Miller criticized Dr. Connerly for not inquiring as to what the two believed about parenting. John believed that strong academics and skills, such as sports and music, were essential to the development of the Children. Laura put more emphasis on cuddling and spending time together. She also noted that John claimed that Connerly was also wrong about the interaction with Child2. Child2 slept in his arms during the visit so there was no opportunity for him to interact with her.
John and Laura had trouble communicating, which led to the problems in their marriage. However, Dr. Connerly ignored that Laura failed to communicate with John regarding the Children. Connerly never faulted Laura for moving to Iowa with the Children without telling John.
Dr. Miller did recommend that John follow Dr. Connerly's recommendation that he receive counseling with the Children. John had extended visits with the Children over the prior year and there were no reports of abuse or problems. Miller provided a detailed list of time that should be spent with each parent. Miller also recommended a coparenting class and a plan for communication.
D. COURT APPEARANCE ON JANUARY 6, 2015
The trial court held a hearing on January 6, 2015, to address temporary child and spousal support, attorney fees, custody, visitation and a move-away order. Both parents were represented by counsel but neither were present in court; they appeared by telephone.
The parties discussed the Evidence Code section 733 evaluation, which had been disseminated to the parties although it was privileged work product. The trial court had received the report. John's counsel noted that John had not attended parenting classes or therapy because he did not agree with Dr. Connerly's assessment. Counsel represented that John had been building his relationship with the Children over the prior year. Laura and the Children still lived in Iowa and John had moved to Illinois for work. He lived 250 miles from Laura. He also had an apartment in Iowa that was 10 minutes away from the Children. Counsel believed that the custody and visitation may have to be resolved in Iowa and was going to file a change of venue. However, in the meantime, John sought weekend and overnight visits.
Laura's counsel complained that John did not follow any of the recommendations in Dr. Connerly's report. Laura's counsel also noted that John had five different attorneys in the prior year, which delayed the case.
No testimony was taken and the parties were not given the opportunity to present any documentary evidence or witness testimony. The trial court noted "I think I'm prepared to make an order, and at least make it a temporary order regarding modification of custody and visitation as well as support." The trial court stated, "So I guess the Court's intention is to make an order based on the information it has before it, but I don't think I'm intending this to be set in stone at this point. I think we are still at a best-interest standard anyway." The trial court noted it had read both evaluations. It felt that it was appropriate to adopt Dr. Connerly's recommendations. It agreed to add an overnight visit every other weekend to Connerly's recommendation for John. However, it was contingent upon John enrolling in a parenting class. The trial court had reviewed the income and expense declarations from the parties. It ordered back support starting June 2013 in the amount $1,687 for child support and $504 for spousal support. John would receive credit for any amounts paid and would make payments in the amount of $100 per month. Starting January 2015, the child support would be $1,555 per month until the Children reached the age of 18 and spousal support of $418 per month. It was not appropriate at that time to deny spousal support. However, the trial court expected Laura to become self-supporting.
Laura and John were granted joint legal custody. Laura had final decision on medical issues. The trial court did not make an award of attorney fees based on inadequate documentation and an inability of John to pay the fees along with the support arrearages. The matter was to be decided at trial.
The trial court was impressed by John's dedication in getting an apartment in Iowa and traveling regularly to see the Children. The matter was set for a mandatory settlement conference. The trial court would sign the recommendation of Dr. Connerly with the added visitation.
The findings and order after hearing was filed on February 18, 2015. Further, the timeshare and counseling recommendations in Dr. Connerly's report were included and signed. The dissolution of marriage was signed on February 6, 2015, effective October 23, 2014. All issues were reserved. The dissolution was filed on February 9, 2015.
E. TRIAL BRIEFS
Laura filed a trial brief. She stated that the issues to be resolved at trial included child custody and visitation. She stated that John made significantly more money than her and her income was not enough to maintain her standard of living. Laura was a stay-at-home mom during the marriage. There were no substantial assets or liabilities. She had to work to support her family. Day care for the Children was $1,227 per month. She needed spousal support to pay for child care. She would not be able to live independently without support.
Laura stated that on January 6, 2015, the trial court made a determination regarding custody and visitation. John had not shown a "significant change from the preexisting circumstances" when those orders were made to justify changing the orders. His participation in classes since those orders was not significant. As of July 2015, John had relocated to California and it was unclear if the move was permanent; he had not visited the Children since he had moved back to California.
Laura sought sole legal and physical custody, with visits—but no overnights—to occur in Iowa. She sought child support based on the guideline, spousal support for the length of half of their marriage, an equalization payment for half of the amount in their bank account when they separated, child and spousal support arrears, and attorney fees in the amount of $40,000 pursuant to Family Code section 2030.
John filed his trial statement on January 11, 2016. He stated the issues to be resolved at trial were move-away; child custody and visitation; child support and arrears; spousal support and arrears; and division of assets. He again provided disputed facts about the problems with Laura's parents and sister. He complained about Laura taking the Children to Iowa and telling him she wished he was dead. He complained he was being followed and that the Children had become obese while in Laura's care. Laura interfered with his visits and did not advise him when she took the Children away from her parents' home.
John sought primary custody and the return of the Children to California. He had made arrangements for their schooling. If denied, he sought as much custody time as possible. He also argued that he should be granted travel expenses for his time traveling to Iowa. John was concerned with the Children being with Laura's parents. Child support should be in line with the amount of timeshare ordered; a reduction of child support for travel expenses should be provided. No child support arrearages should be paid because she moved away illegally.
F. MOTION IN LIMINE
Laura filed a motion in limine on December 24, 2015. She sought to have the issues of child custody and visitation excluded from the pending trial. Laura proclaimed that on January 6, 2015, after extensive litigation, and after submission of Dr. Connerly's report, the trial court made a decision on custody and visitation. Relitigating the issues would be an extreme burden on the court and would be a waste of judicial resources. John never sought to modify the orders and had not seen the Children since July 2015. There was no substantial change that would warrant new orders.
John filed a response. John insisted the court had never addressed the move-away issue. Further, the orders made on January 6, 2015, were temporary and had the ability to be changed without changed circumstances. He sought to have Dr. Miller testify at trial that Dr. Connerly's conclusions were erroneous.
G. PRETRIAL RULINGS
The matter was called on January 13, 2016. John was representing himself. John advised the trial court he was living in Iowa but also that he was working in California. In regards to John's request to litigate the move-away order, the trial court believed it may not be an issue if they both were residing in Iowa. The trial court indicated it had reviewed all of the prior hearings. It first noted it appeared there had never been a hearing on the issue and that John may be entitled to a hearing on the move-away request.
The trial court then referred to the stipulation to the recommendations by the child custody recommending counselor on June 25, 2013, which included an agreement that Laura could stay with the Children in Iowa. The trial court advised John that he had agreed she could move to Iowa by entering the stipulation. John denied he had agreed. John insisted his stipulation to allow Laura to be in Iowa with the Children was only temporary until the case was resolved. The trial court disagreed with John. He had signed an agreement that Laura and the Children could stay in Iowa. Moreover, since he was now living in Iowa, there was no move-away issue to be decided at trial. No further evidentiary hearing on the issue was required.
The trial court also noted, "I don't think there's been any showing that the move was made in bad faith or that there is detriment to the Children remaining there. But again, I—that's assuming that it is a move-away, which I'm not sure that it is because you've relocated to that state as well based upon your address information." The trial court denied an evidentiary hearing on the move-away.
The trial court then addressed the issue of whether there was a change of circumstances that warranted a change in the prior custody or visitation orders. It noted there was nothing in the moving papers that showed a change in circumstances in custody and visitation. The trial court believed that the best interests of the Children for custody and visitation was determined at the prior hearing on January 6, 2015. Dr. Connerly's report was reviewed by the trial court and "then had a hearing on that issue." The trial court indicated that there was a "very thorough hearing," and determination of the Children's best interests was made at the prior hearing. John had not made a prima facie showing of changed circumstances in his trial brief. No hearing on custody or visitation was necessary. John was advised that any time he could show changed circumstances, he could bring the issue on custody or visitation before the trial court by way of a motion.
John vigorously argued that the prior orders at the January 2015 hearing were only temporary orders and he was entitled to a full hearing on custody and visitation. The trial court disagreed that the custody and visitation were temporary orders. It believed there was a thorough review completed by Dr. Connerly and there was nothing in the record to support it only entered temporary orders. John argued that the Evidence Code section 730 evaluation was largely in favor of Laura. He wanted to address the problems in the report. John and the trial court then discussed whether Dr. Miller's Evidence Code section 733 report was ever admitted into evidence. The trial court determined it was filed on January 6, 2015. The trial court reiterated there already was a full hearing on the custody and visitation especially in light of the filing of Miller's report. The evidence was excluded from trial.
H. TRIAL
Briefly, after hearing testimony from both Laura and John, and argument by counsel and John, the trial court ruled at the trial as follows: The trial court terminated spousal support as of December 15, 2015. John would have to pay arrears, which would be determined. The trial court ordered John to pay $10,000 of Laura's attorney fees. This was based on his access to the bank account. It would be paid monthly in payments of $250 starting February 2016. The trial court found a change of circumstances to modify child support. It was going to set the amount based on California guidelines and it would include child care expenses. The monthly amount would be $2,314.
The trial court made it clear that there was no changed circumstances that would warrant a change in custody or visitation. The trial court was not entirely clear where John lived. The trial court exercised its discretion to not include a hardship deduction for work-related travel or visitation travel. John was ordered to make equalization payments of $250 monthly. The issue of back spousal and child support was reserved.
John responded at the end of trial that by denying him travel expenses he could no longer see the Children. The trial court was not complying with Family Code section 3020. The trial court responded that the visitation was based on Dr. Connerly's report. This report included guidelines whether he lived in California or Iowa. John could always bring the issue back to the court if there were changed circumstances. This included clear evidence as to his place of residence.
On May 26, 2016, Laura's counsel filed a dissolution of marriage judgment. It included the visitation schedule prepared by Dr. Connerly and the orders regarding support and attorney's fees. It was not signed by John. Judgment was entered on May 26, 2016. John's notice of appeal was filed on June 1, 2016.
DISCUSSION
At the outset, Laura has not filed a respondent's brief on appeal. "As a result, we may accept as true the facts stated in [John]'s opening brief. [Citations.] Nonetheless, [John] still bears the 'affirmative burden to show error whether or not the respondent's brief has been filed,' and we 'examine the record and reverse only if prejudicial error is found." (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1077-1078.)
A. CHILD ABDUCTION AND RETURN TO CALIFORNIA
John first claims the trial court abused its discretion by denying his ex parte motion that the DA's office be notified that Laura had abducted the Children and that the trial court order the immediate return of the Children to California. He complains that at the hearing on May 22, 2013, the trial court improperly allowed Laura to remain in Iowa with the Children. This hearing took place three years prior to him filing his notice of appeal.
John should have filed a petition for writ of mandate after the ex parte application was denied. (See In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1206, 1208 [parent immediately appealed from denial of petition under the Hague Convention on the Civil Aspects of International Child Abduction to return child to Australia while custody proceedings were continuing].) "A noncustodial parent who seeks to obtain custody will often be at a disadvantage by the time of trial if the child has bonded with the custodial parent. The noncustodial parent's only effective recourse is to obtain immediate review of any objectionable temporary custody order. This can be done by filing a petition for writ . . . . It cannot be done by filing an appeal which will sit in abeyance while the case works its way to trial and decision." (Lester v. Lennane (2000) 84 Cal.App.4th 536, 565.)
Hence, the issue of whether the trial court erred by denying John's ex parte application to have the Children immediately returned to California is not reviewable in this appeal. This does not foreclose him from raising that the trial court should have conducted a hearing on the move-away order as it could have modified custody.
B. DENIAL OF HEARING ON CUSTODY, MOVE-AWAY ORDER AND VISITATION
The claims raised on appeal by John can be resolved by determining whether the trial court erred by denying him a full hearing on the custody, move-away, and visitation issues. This includes his claims that he was denied a hearing on the move-away order; the trial court erroneously denied an evidentiary hearing on the permanent move-away, custody, and visitation orders; he was not allowed meaningful cross-examination of Dr. Connerly; and allowing the Children to live with Laura's father was not in the best interests of the Children.
"California's statutory scheme governing child custody and visitation determinations is set forth in the Family Code. . . . Under this scheme, 'the overarching concern is the best interest of the child.' [Citation.] [¶] For purposes of an initial custody determination, [Family Code] section 3040, subdivision (b), affords the trial court and the family ' "the widest discretion to choose a parenting plan that is in the best interest of the child." ' [Citation.] When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents." (In re Marriage of Brown & Yana (2011) 37 Cal.4th 947, 955-956.)
"Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, 'the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining' that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citation.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates 'a significant change of circumstances' indicating that a different custody arrangement would be in the child's best interest." (In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956.)
The normal standard of " 'appellate review of custody and visitation orders . . . is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " (Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 59.) However, as we conclude post, the trial court never conducted a proper hearing on the move-away, custody, and visitation. "[I]f a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. [Citations.] Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16 (F.T.).)
Initially, John sought to have a hearing on Laura's move to Iowa with the Children. The trial court first acknowledged that John had never had a hearing on the move-away issue. However, the trial court determined that John had stipulated to the move-away; and regardless, he had moved to Iowa by the time of trial so it was no longer an issue. The trial court never considered if the move to Iowa was in the best interests of the Children, applying the appropriate criteria.
Family Code section 7501, subdivision (a) provides, "A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." "A custody decision allowing one parent to move the children out of the state necessarily interferes with the other parent's ability to have frequent and continuing contact with them. Such a decision 'is one of the most serious decisions a family law court is required to make,' and should not be made 'in haste.' [Citations.] 'The best interests of the children require that competing claims be considered in a calm, dispassionate manner and only after the parties have had an opportunity to be meaningfully heard.' " (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119-1120.)
"[I]n an initial custody decision, although the trial court must 'take into account' a planned move and any resulting prejudice to the child, those considerations do not preclude the court from also considering all the other circumstances bearing upon the child's best interest." (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 998, fn. omitted.) "Among the factors that the court ordinarily should consider . . . are the following: the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101.)
"A custodial parent seeking to relocate with a child does not have any burden to show the proposed move is 'necessary.' [Citations.] Nevertheless, '[e]ven if the custodial parent has legitimate reasons for the proposed change in the child's residence and is not acting simply to frustrate the noncustodial parent's contact with the child, the court still may consider whether one reason for the move is to lessen the child's contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child's best interests.' " (F.T., supra, 194 Cal.App.4th at p. 21.)
Here, the trial court never conducted a hearing to consider how the move to Iowa impacted the Children. John sought to provide evidence that the Children would not thrive in Iowa and that Laura's parents were harmful to the Children. He wanted to present evidence of the expense of him traveling to Iowa, which would impact his ability to visit the Children. Regardless of the merits of these claims, he was entitled to be heard on the issue. Family Code section 3020, subdivision (b) states it is the public policy of California to assure minor children "frequent and continuing contact" with both parents after the parents' separation or dissolution of marriage, and to encourage parents to "share the rights and responsibilities of child rearing."
There was never a full hearing on the move-away issue. The trial court relied on a stipulation entered into by the parties on June 25, 2013, finding John conceded that Laura could keep the Children in Iowa. However, the record belies that John conceded the issue. There is nothing in the record to support that the parties intended the stipulation to be the final order on the move-away.
"[A] stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 258; F.T., supra, 194 Cal.App.4th at p. 19.) "Although the parties typically resolve these disputes through stipulations confirmed by court order, they often do not intend for these stipulations to be permanent custody orders. Indeed, these temporary custody orders serve an important role in child custody proceedings, and our statutory scheme expressly provides for them. [Citation.] Because many parties would not enter into a stipulated custody order if a court might later treat that order as a final judicial custody determination, we must be careful in construing such orders. Otherwise, we may discourage these parties from entering into such stipulations." (Montenegro, at p. 258.)
Here, there is no indication that John had stipulated that Laura could move the Children to Iowa and that he intended this to be the final order of the court. He agreed to the temporary order as they awaited trial. After the stipulation, the parties agreed to appoint Dr. Connerly to address custody. His report addressed the move to Iowa and John's hope that the trial court would order the Children be returned to California. Further, John stated in his trial brief that the move-away was still a contested issue. He sought an order that returned the Children to California and he had made arrangements for their care. Nothing in the stipulation providing for temporary custody of the Children in Iowa with Laura during the pending litigation showed that John intended it to be permanent. He maintained his objection to her moving to Iowa throughout the proceedings. The trial court erred by considering the stipulation a final determination of the move-away order.
Further, the fact that John stated prior to trial that he had an apartment in Iowa for visitation with the Children did not foreclose him the opportunity to contend the move to Iowa was not in the Children's best interests. It was clear that John only made this effort to be in Iowa because of the circumstances. He worked in California and continued to request an order moving the Children back to California. He was not voluntarily living in Iowa, making the move-away order request moot as found by the trial court.
Here, the stipulation by John on June 15, 2013, that Laura could remain in Iowa was not in any manner shown to have been a final order. As the trial court noted, John had never been afforded an evidentiary hearing on the move-away. The trial court denied a hearing on the matter based on the stipulation and based on its determination that John had not presented sufficient evidence he lived in California at the time of trial. However, this ignores that he only moved to Iowa or tried to find work nearby based on Laura moving the Children to Iowa. The stipulation and the efforts he made to visit the Children in Iowa were not intended to be a final decision on the move-away order. John should have been afforded a hearing on the move-away issue.
Further, John was not given an opportunity to present evidence on issues pertaining to custody and visitation, including that he was never given an opportunity to cross-examine the appointed expert, Dr. Connerly. He insists the deficiencies in the evaluators report should have been addressed at trial where both Connerly and Dr. Miller were on the list of witnesses. The trial court appeared to believe that John was afforded a full hearing on the report. However, the record does not support that he was able to present evidence to contradict the report.
"It is elemental that any order concerning child custody and visitation must comport with due process." (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641.) "When there are competing parental claims to custody, the family court must conduct an adversarial proceeding and ultimately make an award that is in 'the best interest of the child.' " (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1053 (Keith R.), citing Fam. Code, § 3040, subd. (a).) "In making [an] initial custody determination, the family court should give the parties an opportunity to be meaningfully heard, and should not arbitrarily deprive either parent from offering pertinent evidence bearing on the child's best interest, including evidence regarding the harm that may result from disruption of established patterns of care and emotional bonds." (Keith R., at p. 1050.)
Evidence Code section 730 provides in pertinent 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."
The evaluators statements are not conclusive on custody or visitation. They are merely probative of the relevant facts that can be considered with all of the evidence by the trial court. (See Marriage of DeRoque (1999) 74 Cal.App.4th 1090, 1096 [court did not "rubber-stamp" the recommendation on modification of custody and visitation provided by the expert].) Parties are entitled to an opportunity to cross-examine court appointed experts whose reports inform the court's decision. (Wheeler v. Wheeler (1973) 34 Cal.App.3d 239, 242.)
John was not given an opportunity to present any evidence in the trial court on custody and visitation. He had no opportunity to cross-examine Dr. Connerly or present his own expert. This occurred because the trial court labored under the misconception that the prior temporary orders were permanent orders that could only be changed through the showing of changed circumstances. The trial court believed that John did not establish changed circumstances, which would entitle him to a hearing. This ignores that the orders entered in January 2015 were clearly meant by all parties to be temporary.
"A temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial." (Smith v. Smith, supra, 208 Cal.App.4th at p. 1090.) "Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached." (Montenegro, supra, 26 Cal.4th at p. 258.)
We have thoroughly reviewed the transcript from the January 6, 2015, hearing. The trial court and the parties stated on several occasions that the orders entered would only be temporary. At no time did John agree that he was foregoing his right to contest custody and visitation at trial. As the recitation of the facts show, there were many disputed issues and the trial court never allowed for a full hearing to address credibility or other evidence. Laura's pretrial brief never mentioned that the January 6, 2015, orders were temporary and that no testimony was taken. However, at the same time she listed that issues of custody and visitation would be part of the trial.
Further, since the trial court believed the temporary orders were permanent orders, it did not hold a hearing to determine the best interests of the Children. Instead, it required John to show changed circumstances since the issuance of the prior orders. However, "[t]he changed circumstances rule . . . does not apply because there has not yet been a final judicial custody determination." (Keith R, supra, 174 Cal.App.4th at p. 1054.)
Based on the foregoing, John never had an opportunity to have a full hearing on the move-away to Iowa, and custody and visitation. He is entitled to a hearing. We recognize that the Children have now spent a majority of their lives in the physical custody of Laura and that any changes to their placement now would disrupt their stability. However, for John to obtain relief, it is not required that he demonstrate with certainty that a different result would occur on retrial. "He need only show facts indicating a sufficiently meritorious claim to entitle him to a fair adversary hearing." (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 640.) " 'In spite of the need for efficiency, courts should not lose sight of the need that parties be given their "day in court." ' " (In re Marriage of Dunn-Kato & Dunn (2002) 103 Cal.App.4th 345, 348.)
We also note the following language in Keith R., supra, which is pertinent here: "This custody proceeding involves disputed facts, and we do not intend, by our recitation of the procedural history or legal discussion, to dictate any particular outcome. That is a matter in which the family court is invested with wide discretion to choose a parenting plan that is in the best interests of the child, after looking to all the circumstances. [Citation.] [W]e are confident that the court 'will impartially follow the procedures and rules governing family law matters to ensure a decision is reached after giving both sides an opportunity to be meaningfully heard.' " (Keith R., supra, 174 Cal.App.4th at p. 1057.)
Laura has not filed a respondent's brief, leaving John's unchallenged assertions that he was never given a full and fair hearing on the move-away, custody, and visitation. John is entitled to a hearing to present evidence to support his claim that it was not in the Children's best interests to move away from him to Iowa, that he should have been given physical custody of the Children in California, and any issues regarding visitation.
Since we are returning this case to the trial court for a trial on custody, visitation and the move-away, we will not address John's remaining issues. These issues include that the child care expenses were not supported by substantial evidence; the family court could not award child and spousal arrearages; the family court improperly failed to award him travel expenses; the trial court improperly denied his request for an order to reduce the child support award; and it erred by awarding attorney fees to Laura.
While the trial court allowed for the introduction of evidence and testimony by John and Laura at the trial, the hearing was based on the prior determination on custody and visitation. While we do not purport to require the trial court, after a fair hearing, to change the custody and visitation, each of these decisions on support, child care, arrearages and attorney fees were based on Laura having sole physical custody, and the visitation ordered. Since there may be a change in the orders issued, we find it unnecessary to address these issues as the resulting awards may change. Further, the financial situation of both parties may have changed since the appeal was taken. The trial court is in the best position to determine support, arrearages and attorney fees after providing a full and fair hearing as stated in this opinion.
DISPOSITION
The judgment is reversed. The matter is remanded for the trial court to reconsider the matter in accordance with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.