Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. D285648
Law Offices of Charles Hicks, Jr., Charles Hicks, Jr. for Appellant.
Orrock, Higson & Kurta, R. Dennis Orrock, Paula D. Emmons for Respondent.
GILBERT, P.J.
Thomas C. Gustafson appeals orders of the family law court denying his motion to modify child custody and visitation and awarding attorney's fees. We affirm.
FACTS AND PROCEDURAL HISTORY
On April 9, 2002, the family law court dissolved the marriage of Pamela Canton and Thomas Gustafson. On August 17, 2004, the court adopted the recommendations of the family law court mediator regarding custody of the couple's minor child, C. Among other things, the recommendations included joint custody and shared physical custody (alternate weeks).
At the time of the dissolution and continuing through present time, Gustafson was and is a member of the California Army National Guard. In April 2003, the court ordered that Gustafson's mother facilitate his custodial time with C. during his military training and deployment. In August 2004, the mediator recommended and the court adopted the recommendation that Gustafson's present wife facilitate his custodial time with C. during times of his military training. In May 2005, the family law court reaffirmed that facilitation during periods of Gustafson's National Guard training.
On April 3, 2008, Gustafson, in propria persona, sought an order modifying child custody and visitation. Gustafson stated that he was not seeking a change in the shared custody schedule, but intended to maintain the schedule with his present wife as facilitator in the event he was deployed to Afghanistan, Kosovo, or elsewhere. He also requested additional visitation with C. during his military leave and following his return from service. Gustafson set a date for mediation of the requests.
In response, Canton filed an ex parte motion to quash the scheduled mediation. Gustafson appeared at the motion to quash and stated that he was "simply asking for [his] current wife to be allowed to facilitate [his] custody and make sure that [his] custody happens." The family law judge stated that Gustafson's wife may facilitate his custody in the event of his deployment but, as a stepmother, she had no right to custody of C. The court then quashed the scheduled mediation.
On June 18, 2008, Canton filed a request for sanctions pursuant to Family Code section 271. The request stated that Gustafson did not establish any changed circumstances warranting modification of prior court orders and that C.'s stepmother has no standing regarding his custody.
All further statutory references are to the Family Code unless stated otherwise.
The appellate record does not contain Canton's motion requesting sanctions. The family law court's written ruling explains the nature of her request.
On June 23, 2008, the family law court held a hearing regarding Gustafson's motion to modify child custody and visitation. The judge stated that Gustafson's motion concerned "delegating [his] custodial rights to [his] wife," and that "a stepparent, under our current law, has no custodial rights." The court denied the motion and later awarded Canton $2,000 attorney's fees and costs as sanctions, reasoning that Gustafson's meritless modification motion required Canton's response and appearance. The family law judge stated: "At the ex parte hearing the court quashed the mediation and explained in detail to [Gustafson] that his current Wife had no standing to bring this action. Thereafter, at the time of the OSC, [Gustafson] presented the same arguments. At the very least, [Canton] was required to make an unnecessary appearance at the time of the OSC."
Gustafson appeals and contends that the family law court abused its discretion by not modifying its prior custody and visitation orders to ensure his continuing relationship with C., and by awarding $2,000 attorney's fees as sanctions to Canton.
DISCUSSION
Gustafson argues that the family law court did not consider the best interest of C. when it denied the modification motion. (§ 3020, subds. (a) & (b); In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [custody and visitation orders must rest upon child's best interest].) He asserts that the court did not consider and rule upon his request for additional visitation with C. upon his leave from active duty and upon his return from duty. (§ 3100, subd. (a) [parent entitled to reasonable visitation unless it is established that visitation is detrimental to best interest of child].) Gustafson adds that foreign decisions interpreting the Soldiers' and Sailors' Civil Relief Act of 1940 liberally construe the parental rights of deployed parents. (50 App. U.S.C. § 501 et seq.; In re Marriage of Sullivan (2003) 795 N.E.2d 392, 396.)
Gustafson also contends the court abused its discretion by awarding attorney's fees as sanctions.
The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. (In re Marriage of Burgess, supra, 13 Cal.4th 25, 32.) We review "whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Ibid.) The "best interest" analysis considers the importance of stability and continuity in the child's life and the possible harm of disrupting well-established bonds. (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 448.)
The family law court did not abuse its discretion. Gustafson has not established any change of circumstances warranting modification of the custody order. He has not yet been deployed and existing family law court orders provide that his present wife may facilitate his custody during times of military training. In the event of immediate deployment overseas or elsewhere, Gustafson may seek additional facilitation or visitation orders on an ex parte basis or with advance notice to Canton. At the time of the hearing, Gustafson's deployment was speculative and his requests were not ripe for adjudication.
Gustafson's motion appears to seek custodial and visitation rights for his present wife by allowing her to maintain his custodial rights during any future deployment. Indeed, the evidence supporting the motion reflects C.'s bonds with his stepmother and stepbrother and the strength and importance of those relationships. Gustafson does not set forth California statutory or decisional law recognizing a stepparent's right to custody.
The family law court possesses the discretion to award attorney's fees and costs as a sanction pursuant to section 271. Canton incurred attorney's fees and costs to quash the scheduled mediation and to appear at two hearings. The court's $2,000 award is reasonable and not an abuse of discretion under the circumstances.
The orders are affirmed. Gustafson shall bear costs on appeal.
We concur: YEGAN, J., COFFEE, J., Ellen Gay Conroy, Judge.