Opinion
D058566
02-14-2012
In re the Marriage of NANCY A. and TIMOTHY J. SAYRE. NANCY A. SAYRE, Respondent, v. TIMOTHY J. SAYRE, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. D468920)
APPEAL from orders of the Superior Court of San Diego County, Robert C. Longstreth, Judge. Affirmed.
INTRODUCTION
Timothy J. Sayre (Timothy) appeals from the trial court's September 20, 2010 order modifying child support for his three children and the summer visitation schedule for his younger son. He further appeals from the trial court's October 4, 2010 order declining to terminate or modify spousal support. He contends the trial court did not comply with Family Code section 4059 when it calculated his child support under the state's uniform child support guidelines (guidelines). In addition, he contends the trial court violated sections 3653 and 3692 and did not strictly comply with section 4504 when crediting him for Social Security Disability Insurance (SSDI) benefits paid to his children during a seven-month period in which he also paid child support. He further contends the trial court improperly relied upon a prior invalid spousal support order in denying his request to terminate or modify spousal support. Finally, he contends the trial court modified the summer visitation schedule for his younger son without first finding there were changed circumstances warranting the modification, the modification was necessary or proper, and the modification was in the best interest of the child. We conclude there is no merit to any of these contentions and affirm the judgment.
As the parties share the same surname, we refer to them by their first names for clarity. (In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 332, fn. 1.)
Further statutory references are also to the Family Code unless otherwise stated.
BACKGROUND
Child Support
In July 2009, the trial court ordered Timothy to pay his former wife, Nancy Sayre (Nancy), monthly child support of $388 for each of their three children, or a total of $1164 per month. The order was effective as of May 2009.
In November 2009, the Social Security Administration approved Timothy to receive monthly SSDI benefits of $2,290 retroactive to May 2009. That same month, Timothy petitioned for an order modifying child support. In his petition, he stated the children were eligible to receive monthly SSDI child benefits retroactive to May 2009 and requested the trial court find these benefits were sufficient child support. He also requested dollar-for-dollar credit for the retroactive benefits against the child support he paid Nancy between May 2009 and November 2009 (retroactivity period).
In January 2010, the Social Security Administration approved each of Timothy's children to receive monthly SSDI child benefits of $381 retroactive to May 2009. Nancy apparently received lump-sum payments for the retroactive benefits at the end of January 2010.
At a hearing on the matter in June 2010, Timothy reiterated his request for a dollar-for-dollar reduction in his child support for the children's SSDI benefit payments. Nancy, however, requested the children's SSDI benefit payments be included in her income for purposes of determining Timothy's child support under the guidelines. Timothy countered that, if the trial court opted to treat the payments as income to Nancy, the trial court should consider the income tax-free. The court included the children's SSDI benefits in Nancy's income, but considered the income taxable. Based on this and other income and expense findings, on September 20, 2010, the trial court issued an order modifying Timothy's child support from $1164 a month to $424 a month effective December 1, 2009.
At a hearing in September 2010, Timothy requested a dollar-for-dollar credit for the children's retroactive SSDI benefit payments against the child support he paid during the retroactivity period. He argued any other method of crediting him for the retroactive benefit payments would constitute an unlawful, retroactive modification of the July 2009 child support order. The trial court rejected this argument and, in its October 4, 2010 order, it required Nancy to pay Timothy the difference between the amount of child support Timothy paid during the retroactivity period and the amount he would have had to pay under the guidelines had the children's SSDI benefit payments been included in Nancy's income during that period.
Spousal Support
In 2005, we reversed a trial court order reducing Nancy's permanent monthly spousal support from $500 to $399 because the trial court based the amount on a local guideline intended for use in setting temporary spousal support instead of the factors applicable to permanent spousal support outlined in section 4320. (In re Marriage of Nancy A. and Timothy J. S. (Jul. 11, 2005, D044447) [nonpub. opn.].) According to Timothy, upon remand, the trial court recited each of the section 4320 factors into the record. The trial court then once again awarded Nancy permanent monthly spousal support of $399. Timothy did not appeal this decision.
In November 2009, Timothy petitioned for an order terminating or modifying spousal support. In its October 4, 2010 order, the trial court denied Timothy's request and maintained monthly spousal support at $399. The order states the trial court based its decision on the parties' financial circumstances, their years of marriage, their marital standard of living, and the factors listed in section 4320.
Summer Visitation
In December 2002 the trial court entered a judgment granting Nancy's request to move out of state and determining their three children's primary residence should be with her. The judgment allowed Timothy visitation with the children during, among other times, the children's summer break from school.
In April 2009 Nancy petitioned for an order modifying the summer visitation schedule. Family Court Services recommended Timothy's summer visitation with his daughter be changed to begin the day after her summer "contact days" with her high school sports coaches were over and end the day before her mandatory high school sports tryouts. Family Court Services recommended Timothy's summer visitation with his two sons be changed to begin five days after their summer school break starts and end on the same day Timothy's visitation with their sister ends.
The precise nature of these "contact days" is not clear from the record. They are apparently limited in number by the law of the state where the children reside and provide an opportunity for high school coaches to work with students interested in playing on high school sports teams.
In June 2009, the trial court conducted a hearing on the matter. At the conclusion of the hearing, the trial court largely adopted the Family Court Services recommendation for summer 2009 and reserved jurisdiction over visitation for summer 2010.
In April 2010, Timothy filed an order to show cause seeking primary custody of the children. Family Court Services prepared a report recommending against a custody change and repeating the prior recommendation that Timothy's summer visitation with his daughter begin the day after her "contact days" with her high school sports coaches were over and end the day before her mandatory high school sports tryouts. The report also recommended Timothy's summer visitation with his sons be changed to consist of six weeks total ending on the same day Timothy's visitation with their sister ends.
The trial court ordered Timothy's summer visitation with his daughter to begin after her "contact days" with her high school coaches are over, or July 18, whichever is earlier, and end the day prior to her mandatory sports tryouts. The trial court adopted the report's recommendation for Timothy's summer visitation with his sons.
DISCUSSION
I
Child Support
A
1
Timothy contends the trial court erred in treating the children's SSDI benefit payments as income to Nancy for purposes of determining his child support under the guidelines. Instead, he contends the trial court should have given him dollar-for-dollar credit for the payments against any child support he was required to pay Nancy under the guidelines.
"We review orders granting or denying a request for modification of a child support order for abuse of discretion. [Citations.] The trial court's exercise of its discretion must be 'informed and considered' [citations], and the trial court may not 'ignore or contravene the purposes of the law' [citation]. [¶] To the extent the appellant challenges the trial court's factual findings, we review the findings for substantial evidence, considering the evidence in the light most favorable to the party who prevailed in the trial court. [Citation.] [¶] 'However, " 'questions relating to the interpretation of statutes are matters of law for the reviewing court. [Citation.]' " [Citation.] Thus, when a trial court's ruling turns on the interpretation of a statute, the issue is one of law, subject to the independent review of this court. [Citation.]' [Citation.]" (Plumas County Dept. of Child Support Services v. Rodriguez (2008) 161 Cal.App.4th 1021, 1026-1027; accord, In re Marriage of Schopfer (2010) 186 Cal.App.4th 524, 529.)
Section 4504, subdivision (b) provides that, "If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act . . . because of the . . . disability of the noncustodial parent and received by the custodial parent or other child support obligee shall be credited toward the amount ordered by the court to be paid by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid."
In determining how to account for SSDI child benefit payments under this statute, a court has the discretion either to consider the payments in fixing the guideline formula support amount, or to allow a direct credit for the payments against the guideline formula support amount. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1162-1163; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶ 6:417.5 at pp. 6-174-6-175.) In this case, the trial court chose the first approach. This approach substantially reduced Timothy's personal financial contribution to his children's support while increasing the total amount of funds available for their support. It is consistent with the principles underlying the guidelines, including that a parent's principal obligation is to support his or her children according to his or her means. (Fam. Code, § 4053, subd. (a), (c), & (d).) It is also consistent with the guidelines' objective of giving the children's interest top priority. (Fam. Code, § 4053, subd. (e).) We, therefore, cannot conclude the trial court abused its discretion in opting for this approach, rather than Timothy's preferred approach.
2
Timothy contends that if the children's SSDI benefit payments are treated as part of Nancy's income, the guidelines assume only a portion of the payments actually benefit the children when the entirety of the payments are supposed to benefit them. We rejected a similar argument in Sneed v. Saenz (2004) 120 Cal.App.4th 1220 (Sneed). As we explained in Sneed, title II of the Social Security Act (42 U.S.C. § 401 et seq.) requires Nancy, as the payee of the children's SSDI benefits, to spend the funds for their current maintenance and in their best interests. (Sneed, at pp. 1243-1244.) Treating the children's SSDI benefit payments as Nancy's income for purposes of calculating Timothy's child support obligation does not obviate this requirement. Nancy must still spend the payments for the children's current maintenance and there is no evidence in the record she has done, is doing, or intends to do otherwise. Thus, Timothy has not established treating the benefit payments as income to Nancy conflicts with federal law. (Id. at p. 1244.)
B
Timothy similarly contends the trial court should have given him a dollar-for-dollar credit for the children's retroactive SSDI benefit payments against the child support he paid during the retroactivity period. He contends the trial court's method of crediting him for the retroactive benefit payments constitutes an unlawful, retroactive modification of the July 2009 child support order. We disagree.
Under section 4504, subdivision (b), the trial court was required to credit the children's SSDI benefit payments toward Timothy's child support unless the trial court considered the payments when it determined the child support amount. The trial court could not have considered the children's SSDI benefit payments when it determined child support in July 2009 because the Social Security Administration did not approve the children's SSDI benefit payments until January 2010. Additionally, Nancy did not receive the lump-sum payments for the children's retroactive SSDI benefits until at least the end of January 2010. Thus, the trial court properly determined it had to credit Timothy for the children's retroactive SSDI benefit payments against the child support Timothy paid during the retroactivity period.
Nonetheless, the trial court was not required to give Timothy dollar-for-dollar credit. As previously explained, in determining how to account for the children's SSDI benefit payments under this statute, the trial court had the discretion to either consider the payments in fixing the guideline formula support amount, or to allow a direct credit for the payments against the guideline formula support amount. (In re Marriage of Drake, supra, 53 Cal.App.4th at pp. 1162-1163.) Having elected the former option to determine Timothy's child support from December 2009 forward, the trial court logically and reasonably determined it should use the same method to calculate Timothy's credit for the retroactivity period. Contrary to Timothy's assertions, determining the method for calculating the credit is not equivalent to retroactively modifying the July 2009 child support order because determining the method for calculating the credit did not require the trial court to revisit the prior child support order or any of its underlying findings. We, therefore, conclude Timothy has not established the trial court actions were an abuse of discretion or a violation of law.
C
1
For the June 2010 hearing, the parties noticed multiple motions related to, among other matters, child custody and visitation, child support, and spousal support. The trial court first addressed child custody and visitation, which took up most of the time allotted for the hearing. The trial court next addressed child support, with the intent to "do as much as we can with child support now and then see where we are at the end of doing that." The trial court resolved several issues related to child support, including deciding it would treat the children's SSDI benefit payments as taxable income to Nancy. Believing the payments were not, in fact, taxable income to Nancy, Timothy's counsel asked the court to reserve jurisdiction over the taxability finding until after Nancy filed her 2010 income tax returns. The record does not indicate the trial court did so.
Although the trial court made additional findings at the June 2010 hearing relevant to child support, it did not calculate child support under the guidelines or determine a final child support amount. Instead, the court gave the parties a printout of its findings with directions for them to use the findings to calculate child support under the guidelines. The trial court then continued the hearing on any remaining issues. At least two of remaining issues, health insurance and travel expenses, had the potential to affect the final child support amount.
At the continued hearing in September 2010, Nancy's counsel informed the court the parties were unable to agree on a child support calculation under the guidelines. Timothy's counsel objected to any discussion of child support, arguing the issue was not noticed for the continued hearing and he was not prepared to discuss child support. The trial court indicated they would go forward with the child support issue and "see how it goes."
The parties' disagreement on the guideline child support calculations related to matters Timothy's counsel raised with Nancy's counsel after the June 2010 hearing. The matters either conflicted with or were not addressed in the court's findings from that hearing. Of particular relevance to this appeal, Timothy's counsel wanted the children's SSDI benefit payments categorized as non-taxable income to Nancy, notwithstanding the trial court's decision to the contrary. The trial court asked Timothy's counsel if he had any evidence the income was not taxable. Timothy's counsel referenced an e-mail communication he sent to Nancy's counsel quoting an Internal Revenue Service (IRS) publication. Although the court had a copy of the e-mail communication, Timothy's counsel acknowledged the e-mail communication was not evidence. Timothy did not ask for an opportunity to provide the court with the IRS publication or any other evidence to support his position. (Evid. Code, § 354, subd. (a).) Absent specific evidence of non-taxability, the trial court determined it would treat the income as taxable.
2
Timothy contends the trial court deprived him of an opportunity to establish the children's SSDI benefit payments were not taxable because child support was not noticed as an issue for the September 2010 hearing. We disagree.
A fair reading of the transcript from the June 2010 hearing indicates that the purpose of the September 2010 hearing was to resolve any issues remaining from the June 2010 hearing. The trial court did not resolve child support at the June 2010 hearing because the trial court did not set a final child support amount. It merely made certain of the findings necessary to calculate a guidelines child support amount. Moreover, the outstanding issues for the September 2010 hearing included two that had the potential to affect the final child support amount. Thus, even if the parties had been able to agree on a guidelines child support amount, the final child support amount was subject to adjustment at the September 2010 hearing. We, therefore, conclude Timothy had adequate notice child support remained an issue for the September 2010 hearing.
D
The parties agree and the trial court knew when it calculated Timothy's child support that Nancy does not pay federal payroll taxes. The computer program the trial court used to calculate child support under the guidelines can be adjusted to account for the absence of this type of tax liability. A computer printout attached to the court's September 2010 order shows the court changed one default tax setting in the computer program when it calculated Timothy's child support. Timothy asserts, and the record appears to support, the court made this tax setting change to account for differences between state and local income taxes in California and the state where Nancy resides. Timothy contends the absence of any other documented changes to the computer program's default tax settings establishes the trial court did not make the necessary adjustments to account for Nancy's lack of federal payroll tax liability.
Although there is superficial logic to Timothy's contention, we cannot determine its merits with the record before us. The record does not contain the computer program the trial court used. It also does not contain any evidence showing precisely how to adjust the program to account for Nancy's lack of federal payroll tax liability, or how such an adjustment would be reflected on the post-calculation printout. At the September 2010 hearing, the court stated it was not certain whether the adjustment would be reflected on the printout and this issue was never finally resolved.
Moreover, the record does not contain all of the papers filed for the June 2010 and September 2010 hearings. Instead, the record consists primarily of Timothy's filings. At the last hearing on the matter, Nancy's attorney suggested that the trial court needed to make three adjustments to the default tax settings and Timothy's attorney suggested the trial court needed to make 10 adjustments; however, the only adjustment the parties specifically discussed was for the disparity between state and local taxes in California and Nancy's home state. Consequently, we do not know whether any of other suggested adjustments to the tax settings pertained to Nancy's lack of federal liability.
Because we presume the trial court's orders are correct, Timothy must affirmatively demonstrate error on an adequate record. (Code Civ. Proc., § 475; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) He simply has not done so here.
Further, even if the trial court had erred in this respect, Timothy has not met his burden of demonstrating how the error prejudiced him. " 'Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there.' " (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) " 'The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.' [Citation.] Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record. 'But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a "miscarriage of justice. (Ibid.)
Timothy offered no prejudice argument in his brief nor is prejudice to him readily apparent. At the September 2010 hearing, the parties' respective guidelines child support calculations differed by $33 before consideration of any child support "add-ons" under section 4062, including visitation-related travel expenses. Because both parties have modest incomes and Nancy's percentage of time with the children is much greater than Timothy's, errors such as the claimed one are likely to make only a small, arguably trivial, difference in the guidelines child support calculation. The trial court observed as much at the September 2010 hearing. Moreover, had the trial court's guidelines child support calculation been lower, the trial court might have decided to increase Timothy's share of the children's visitation-related travel expenses as Nancy advocated for rather than maintain the status quo. Thus, we cannot conclude the claimed error necessarily prejudiced Timothy.
II
Spousal Support
A
Timothy contends the trial court erroneously based its decision to deny his request to terminate or modify Nancy's spousal support on the temporary guideline amount we found objectionable in In re Marriage of Nancy A. and Timothy J. S., supra, D044447. He reasons that, since his and Nancy's financial circumstances have significantly changed since 2005, the only explanation for the trial court's denial of his request for termination or modification of spousal support is improper reliance on the order we reversed. We conclude this contention lacks merit.
"The trial court has broad discretion to decide whether to modify a spousal support order. [Citation.] On appeal, we review the trial court's modification decision for abuse of discretion. An abuse of discretion is shown only when, ' ". . . after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances." ' " (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
In this case, the trial court's order denying termination or modification of spousal support states the trial court based its determination on the length of the parties' marriage, the marital standard of living, and the factors in section 4320. The trial court's order does not state it relied on the temporary guideline amount contained in the order we previously reversed and, contrary to Timothy's assertions, we cannot infer such reliance. As Timothy acknowledges, after we reversed the order improperly based on the temporary guideline amount and remanded the matter to the trial court, the trial court issued a new order based on consideration of the section 4320 factors. Although Timothy argues the trial court order on remand "implausibly" awarded Nancy the same amount of spousal support as the order we reversed, Timothy did not appeal the order on remand. It was, therefore, a final order and provided an appropriate starting point for the trial court's spousal support decision at issue here.
Section 4320 provides: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325. (n) Any other factors the court determines are just and equitable."
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B
At the September 2010 hearing, Nancy's counsel argued the trial court should consider Nancy's visitation-related travel expenses in determining whether to terminate or modify Nancy's spousal support. Although we cannot determine from the record provided whether the trial court actually considered these expenses, Timothy contends the trial court did and such consideration was impermissible because visitation-related travel expenses are not included in the section 4320 factors. Assuming, without deciding, the trial court considered these expenses, we disagree such consideration was improper. Section 4320, subdivision (k), allows the trial court to consider the balance of the hardships to the parties, and subdivision (n) allows it to consider any other factors it determines to be just and equitable. Either one of these section 4320 factors is broad enough to encompass visitation-related travel expenses.
C
Timothy contends the trial court failed to consider his ability to pay in declining to terminate or modify spousal support. He additionally contends the trial court should have at least modified spousal support as his income has substantially declined while Nancy's income has substantially increased since the trial court last adjusted spousal support.
As previously discussed, the court's order denying termination or modification of spousal support specifically states the trial court considered the parties' financial circumstances and the section 4320 factors, which expressly include Timothy's ability to pay. (§ 4320, subd. (c).) Thus, Timothy has not established the trial court failed to consider his ability to pay.
Moreover, contrary to Timothy's assertions, changes in the parties' respective incomes does not necessarily require a modification to spousal support as spousal support must be based on both parties' reasonable needs and financial abilities. (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76, 78.) Although Timothy's child and spousal support obligations may prevent him from maintaining the former marital standard of living, this fact alone does not establish the trial court abused its discretion in failing to terminate or modify spousal support. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 307 [marital standard of living is not the sole factor to consider in determining spousal support].) Further, nothing in the record provided indicates Nancy's standard of living at the time of the September 2010 hearing was any higher than Timothy's. Rather, as is true in most marital dissolution cases, it appears neither party has been able to maintain the marital standard of living. (See In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1107; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶6:947 at p. 6-346.4.) Accordingly, Timothy has not established the trial court abused its discretion in declining to terminate or modify child support.
III
Summer Visitation
Timothy contends the trial court erred in modifying the visitation schedule of his younger son because the trial court failed to find: (1) there were changed circumstances warranting the modification, (2) the modification was necessary or proper, and (3) the modification was in the best interest of the child. We conclude this contention lacks merit.
"The [trial] court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper." (§ 3022.) " '[O]nce it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.' " (Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088, fn. omitted.)
However, the changed circumstances rule does not apply to a request to modify a parenting or visitation schedule. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072, 1077.) Rather, a trial court considers a request to modify a parenting or visitation schedule solely under the best interest of the child standard. (Id. at p. 1072.)
We review a modification to a visitation order for abuse of discretion. (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124.) "A trial court abuses its discretion if there is no reasonable basis on which the court could conclude that its decision advanced the best interests of the child." (Ibid.) Moreover, because we presume the trial court's order is correct, Timothy must affirmatively demonstrate the trial court abused its discretion. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) He has not done so.
The record provided by Timothy indicates the trial court relied on the recommendations in the Family Court Services report in deciding whether and how to modify the visitation schedule for Timothy's younger son. Family Court Services based the recommendations on interviews with both parties and all three of their children. Timothy's older son and daughter, who were 16 and 14 at the time, had extracurricular interests that conflicted with Timothy's summer visitation schedule. The recommendations attempted to balance these children's interests with their need to maintain their relationship with Timothy. Timothy's younger son did not have conflicting extracurricular interests; however, he was only nine at the time of the interview and had unspecified learning disabilities. He also told the interviewer he enjoyed his visits with his dad, but he did not like the long plane rides. By aligning the younger son's visitation schedule with the older son's visitation schedule, the recommendations ensured the younger son would have a familiar traveling companion when he visited Timothy. The recommendations also eliminated the need for Timothy and Nancy to coordinate separate travel arrangements for the two boys. This is significant as the record shows Timothy and Nancy have a history of being unable to communicate effectively with one another about matters involving their children, and their younger son specifically mentioned their lack of communication to the counselor who prepared the Family Court Services report. Under such circumstances, we have no trouble concluding there was a reasonable basis for the trial court to find following the report's recommendations advanced the best interest of the younger son. Consequently, we cannot conclude the trial court abused its discretion in modifying Timothy's visitation schedule with his younger son.
DISPOSITION
The trial court's September 20, 2010 and October 4, 2010 orders are affirmed. Respondent Nancy Sayre is awarded costs on appeal.
MCCONNELL, P. J. WE CONCUR:
HUFFMAN, J.
NARES, J.