Opinion
D075003
01-21-2020
In re the Marriage of Y.L. and P.N. Y.L., Appellant, v. P.N., Respondent.
Dennis Temko for Appellant. Bickford Blado & Botros and Andrew J. Botros 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FL003120C) APPEAL from an order of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed. Dennis Temko for Appellant. Bickford Blado & Botros and Andrew J. Botros for Respondent.
Y.L. (Father) appeals from a family court order granting the request of P.N. (Mother) to move to Israel with the parties' minor child, L.N.L. (Child). At the time of the order, Child was four years old, and the court found that he has special needs that required evaluations and treatment plans (based on the evaluations) before the move to Israel. The order also contains a number of requirements, at times referred to as "enforcement mechanisms" or "Condon conditions," to alleviate enforcement issues once Mother moves to Israel with Child. Father argues that the court abused its discretion in allowing the international relocation because, according to Father, the court's reliance on Mother's future compliance with the enforcement mechanisms is unreasonable based on Mother's past actions. In particular, Father focuses on Mother's prior interference with obtaining the professional services of doctors and therapists needed by Child.
In re Marriage of Condon (1998) 62 Cal.App.4th 533 (Condon).
Move-away requests, and especially international move-away requests, present difficult, often challenging, questions for family courts attempting to determine the best interest of the parties' minor child. These cases often involve "heart-wrenching circumstances" and invariably highlight the irreconcilable tension between a parent's desire to relocate with the child, the child's need for stability, and the benefits to the child of regular access to both parents. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (LaMusga).)
Accordingly, our Supreme Court has emphasized that "this area of law is not amenable to inflexible rules." (LaMusga, supra, 32 Cal.4th at p. 1101.) Instead, we must "permit our superior court judges . . . to exercise their discretion to fashion orders that best serve the interests of the children in the cases before them." (Ibid.) Reversal on appeal is warranted only upon a showing that the family court abused its discretion by unreasonably concluding that its order was in the best interest of the children. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).)
In the present case, the family court presided over a five-day trial, ultimately issuing a statement of decision and order (Move-Away Order). The Move-Away Order allows Mother to move to Holon, Israel, with Child and resolves related custody and visitation issues.
Having reviewed the Move-Away Order and the underlying record in light of the parties' arguments on appeal and the standards we must apply, we conclude that the family court did not abuse its discretion. The Move-Away Order demonstrates that the court gave careful consideration to the relevant factors before ruling that relocation to Israel was in Child's best interest. The court's findings are supported by substantial evidence, the court's conclusions from the facts found are within the bounds of reason, and the Move-Away Order is consistent with the controlling law. Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Father was born and raised in Israel, and he has lived in the United States since the 1990's. Mother moved to Israel in 1979 at age 5 and lived there until 2011. Father and Mother met in Israel in 2010, moved together to San Diego in 2011, and married in Israel in November 2011. Mother and Father are the parents of Child, who was born in San Diego in 2014. Father, Mother, and Child are each citizens of both Israel and the United States.
Mother and Father separated in March 2017, at a time when Child was two years old. Later that same month, Father petitioned to dissolve the marriage, and Mother responded. In November 2017, Mother filed a request for orders to change child custody and visitation and to bifurcate these issues and conduct an early and separate trial on permanent custody and visitation. As relevant to this appeal, Mother requested an international move-away order that would award physical custody to Mother and allow Child to move to Israel with Mother.
In addition, but not at issue in this appeal, Mother also requested orders for joint legal custody and reasonable visitation for Father.
In January 2018, the family court appointed Lori A. Love, Ph.D., as a private child custody evaluator to perform a full child custody evaluation under Evidence Code section 730 "to determine what custody and visitation arrangement is in the best interests of [Child], assuming Mother moves to Israel."
The next month, Father filed his declarations in response to Mother's request for the move-away order and related relief.
In preparation for trial, Father reported to the court that, by the end of March 2018, he and Mother no longer lived together, and both parents reported that they began sharing custody of Child on a 50-50 basis as of that date.
The family court presided over a five-day trial during August 6-10, 2018. The court heard testimony from eight witnesses—principally Father, Mother, and Dr. Love—and the parties presented more than 110 exhibits. We will describe the evidence, as necessary to the disposition of the appeal, under the appropriate standard of review, in part II.B., post.
Although Father provided a reporter's transcript of the proceedings, Father has not provided copies of the court's minutes from the trial.
At the conclusion of the trial, the court issued an oral ruling. In short, the court ruled as follows, based on the best interest of Child: Father and Mother would have joint legal custody of Child, and Mother would have primary physical custody of Child in Israel on specified conditions only after completion of certain cognitive, speech, and occupational therapy assessments in the United States.
"On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk." (Cal. Rules of Court, rule 3.1590(a), italics added; subsequent unidentified rule references are to the California Rules of Court.) Since Father has not provided a record that contains either the family court's minutes from the trial or the register of actions, we are unable to determine whether the court's oral statement was entered in the minutes or whether the court also filed a written statement. Nonetheless, the law of this case is that "[t]he court's oral statement of its decision at the end of the August 10 hearing was not a judgment or order." (Lief v. Superior Court (2018) 30 Cal.App.5th 868, 870 (Lief).) Thus, we deem the court's oral statement at the conclusion of the trial to be a tentative decision for purposes of rules 3.1590 and 3.1591.
After the close of trial, in August 2018 Father timely requested a statement of decision. (See Code Civ. Proc., §§ 632, 634; rules 3.1590, 3.1591.) He identified the following two controverted issues at trial: "[Mother's] international move[-]away request"; and "Custody and visitation of [Child]." The record on appeal does not contain a copy of the proposed statement of decision required by rule 3.1590(f).
"The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision . . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. . . . [¶] The statement of decision shall be in writing . . . ." (Code Civ. Proc., § 632.)
In his opening brief, Father tells us that the family court "rendered its Proposed Statement of Decision sometime prior to September 18, 2018," but the record reference for this statement is to an exhibit attached to a different document—a notice of lodgment. Notably, the exhibit is an unsigned, undated, unfiled document entitled "Statement of Decision" on the pleading letterhead of Father's trial counsel. Although rule 8.124(g) provides that by including the notice of lodgment in his appendix, Father "represent[s]" that the notice of lodgment is an "accurate cop[y]" of a "document[] in the superior court file," we have no basis on which to accept Father's statement that an unsigned, undated, unfiled exhibit to the document in the superior court file was, in fact, "rendered" by the family court.
Meanwhile, at or around the time the rules required that a proposed statement of decision be filed—i.e., after Father's August 2018 request for a statement of decision and prior to Mother's October 2018 objections and comments—in mid-September 2018, Father filed what his supporting points and authorities called a "motion for reconsideration of the court's August 10, 2018 ruling or in the alternative motion to vacate the order and enter a new order or motion for a new trial." (Capitalization and bolding omitted.) In support of the motion, Father submitted more than 65 pages of argument and evidence. Mother opposed the motion with more than 70 pages of argument and evidence, as well as nine pages of objections and comments to the proposed statement of decision. Father filed a reply with an additional 14 pages of argument and evidence; and Mother filed a surreply consisting of more than 85 pages of evidence.
Because the court's oral statement was a tentative decision, not an order of the court (see Lief, supra, 30 Cal.App.5th at p. 870; rule 3.1590(a); fn. 4, ante), neither reconsideration, vacatur, nor a new trial was available to Father under Code of Civil Procedure sections 1008, 663, and 657, respectively. Apparently Father based his motion on the belief that the family court's August 10, 2018 oral statement at the conclusion of the trial was an order of the court to which reconsideration, vacatur, or a new trial might apply. Father's belief was unreasonable, since the court's oral "statement contained several conditions, including the drafting of a visitation plan by [Father's] attorney, which had to be met before [Mother] could move away with the child" (Lief, supra, 30 Cal.App.5th at p. 870); and, because Father requested the statement of decision, the court's oral ruling became a tentative decision that required a proposed statement of decision, objections, and a final statement of decision under rule 3.1590.
In particular, much of Father's motion was based on what Father identified as a posttrial "Psychological Assessment Report" dated September 6, 2018, prepared by Jessica Naecker, Ph.D., and Azmaira Maker, Ph.D. In its statement of decision (which we discuss in the text, post), the family court found that the "Psychological Assessment Report concluded [Child] needed a much more comprehensive program to assist him than either the parents or the court had anticipated during the trial."
In October 2018, Mother filed written objections and comments to "the Court's proposed statement of decision filed September 19, 2018" (whereas Father's tells us the proposed statement was "rendered . . . sometime prior to September 18, 2018") (italics added); and at an October 23, 2018 hearing the parties "state[d] their objections to the proposed statement of decision." Thus, while we are satisfied that there was a proposed statement of decision, Father has not presented a sufficient record from which we can conclude that the document cited by Father is the proposed statement of decision in the superior court's file.
At the hearing in late October 2018, the court listened to lengthy presentations from counsel before ruling that Father's motion "technically [is] a motion to reopen the evidence" and granting the motion. The court then took the matter under submission, explaining that it wanted additional time to digest the hundreds of pages of posttrial evidence and argument before filing its statement of decision.
The reporter's transcript indicates that, during the hearing, the court also sustained certain of Mother's evidentiary objections dated and filed October 19, 2018, based on hearsay and lack of foundation. However, the record on appeal does not contain either Mother's evidentiary objections or court minutes from the hearing. Because we have no way of knowing what evidence the court rejected, we consider all the evidence in the record in support of and in opposition to Father's posttrial motion.
On November 6, 2018, the family court filed its statement of decision. Consistent with its August 2018 oral (tentative) ruling at the close of the trial, the court granted Mother's request to move to Israel with Child on conditions that we will discuss as necessary in part II.B., post. In particular, the court relied on Dr. Love's recommendations regarding custody of Child and on the Psychological Assessment Report's recommendations regarding necessary interventions for Child. In relying on evidence from Dr. Love, the court found that Child's "stronger . . . primary bond remains with his Mother." Based exclusively on what the court considered to be in Child's best interest, the court further found: "[S]o long as he receives appropriate interventions, [Child] has a better chance of growing into a confident, happy and well-adjusted young man able to have a mature and stable relationship with another person if he is reared primarily with [Mother] in Israel."
The next day, the court filed its Move-Away Order, granting Mother's request to move Child to Israel to live with her. The Move-Away Order contains 12 numbered paragraphs, more than half of which are intended to minimize enforcement issues after the move. In addition to continuing the jurisdiction of the family court, these paragraphs contain requirements for Mother to take specific action both before she leaves the country with Child and once she relocates to Israel with Child. In addition, exhibit A to the Move-Away Order contains: (1) a detailed parenting plan that covers legal custody (joint), physical custody (with Mother in Israel and specifically scheduled visitation with Father), exchanges and transportation, telephone contact, parental conduct and child safety, notifications, and therapy (for Child); and (2) the required findings for custody or visitation orders under Family Code section 3048.
Father timely appealed from the Move-Away Order. Three days before expiration of the statutory 30-day stay of the Move-Away Order (Code Civ. Proc., § 917.7)—which was 26 days after service of the order—Father filed a petition for writ of supersedeas in this appeal to stay Child's departure from California pending disposition of the appeal. We summarily denied the petition.
The document—prepared by Mother's counsel and signed by the family court—indicates that it is a "judgment," even though marital status had not yet been terminated. In violation of well-established appellate procedural rules, Father has neither included a statement of appealability for the Move-Away Order (rule 8.204(a)(2)(B)), explained why the Move-Away Order is a judgment, nor provided a copy of the register of actions (rule 8.124(b)(1)(A)) from which we might determine whether the Move-Away Order is a judgment. Although we question whether the Move-Away Order is a judgment, we are satisfied that the Move-Away Order is appealable as "a final order . . . in a bifurcated proceeding regarding child custody or visitation rights." (Code Civ. Proc., § 904.1, subd. (a)(14); Stats. 2017, ch. 41, § 1, eff. Jan. 1, 2018.)
II. DISCUSSION
On appeal, Father argues that the family court abused its discretion in allowing Mother to move to Israel with Child. More specifically, Father contends that the Move-Away Order should be reversed, since its enforcement mechanisms for ensuring treatment for Child's special needs in Israel "would do nothing to keep Mother from continuing to sabotage [Child's] care once she moved." As we explain, Father did not meet his burden of establishing reversible error. A. Legal Principles
Where, as here, "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[.]" (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 955-956 (Brown).)
Move-away requests in dissolution of marriage proceedings arise primarily in two distinct contexts: (1) an initial custody determination in which one parent, prior to the issuance of a final custody order, indicates his or her intent to move; and (2) the modification of a final custody order based on one parent's potential relocation. (Burgess, supra, 13 Cal.4th at p. 37; LaMusga, supra, 32 Cal.4th at p. 1088.) The present appeal arises in the former context—i.e., an initial custody determination. (See Montenegro v. Diaz (2001) 26 Cal.4th 249, 257 [custody determination is "initial" absent "any final 'judicial custody determination' "].) "In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest of the child.' " (Burgess, supra, 13 Cal.4th at pp. 31-32, quoting Fam. Code, § 3040, former subd. (b), now subd. (c).) The court "must look to all the circumstances bearing on the best interest of the minor child." (Burgess, at pp. 31-32.)
"[I]n considering all the circumstances affecting the 'best interest' of minor children," in addition to the statutory considerations, the family court "may consider any effects of such relocation on their rights or welfare." (Burgess, supra, 13 Cal.4th at p. 32; accord, LaMusga, supra, 32 Cal.4th at p. 1078 [reaffirming Burgess standard].)
The Legislature has found and declared that the public policy of the state is to ensure both "that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children" and "that children have frequent and continuing contact with both parents after the parents have separated . . . and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child . . . ." (Fam. Code, § 3020, subds. (a) & (b).)
In making a determination of the best interests of the child in a proceeding to determine the legal or physical custody of a child, the family court shall, "among any other factors it finds relevant, and consistent with Section 3020," consider the following: "[t]he health, safety, and welfare of the child"; "[a]ny history of abuse by one parent . . . seeking custody"; "[t]he nature and amount of contact with both parents, except as provided in [Family Code] Section 3046"; and "[t]he habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. . . ." (Fam. Code, § 3011, subds. (a)(d).)
In applying this best interests analysis in a move-away situation, the family court also should consider circumstances specific to the proposed move, including: "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." (LaMusga, supra, 32 Cal.4th at p. 1101.)
In international move-away requests like Mother's here, the court must also evaluate various factors unique to a foreign move, including: any significant cultural problems (e.g., language difficulties or different accepted social norms); distance problems (e.g., travel expense and jet lag); and jurisdictional problems (e.g., the enforceability of custody and visitation orders). (Condon, supra, 62 Cal.App.4th at pp. 546-547.) Because a child's best interest in an international relocation case requires enforceability of the California custody order in the foreign country, the family court should consider available procedures to minimize, if not alleviate, enforceability issues in the foreign country. (Id. at pp. 548-562.) To achieve this result, "the court will be required to use its ingenuity to ensure the moving parent adheres to its orders and does not seek to invalidate or modify them in a foreign court." (Id. at pp. 547-548.)
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (Burgess, supra, 13 Cal.4th at p. 32.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Ibid.) "What constitutes the best interest of a child presents an inherently factual issue." (Guardianship of A.L. (2014) 228 Cal.App.4th 257, 268.) A trial court commits an abuse if its discretionary decision is not supported by substantial evidence. (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 836-837.)
A trial court also abuses its discretion by applying an incorrect legal standard, since any such decision would " 'contravene the specific law that grants the discretion in the first place.' " (Conservatorship of Bower (2016) 247 Cal.App.4th 495, 506 [order dividing community property].) Here, Father does not argue that the family court applied an incorrect legal standard, only that the enforcement mechanisms ordered by the court (i.e., the Condon conditions, which we describe in detail at pt. II.B., post) were unreasonable given what Father contends is evidence of Mother's prior interference with Child's interventions and treatments.
As the reviewing court, we presume the Move-Away Order is correct; and, as the appellant, Father has the burden of establishing an abuse of discretion. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 93-94 (Ciprari), quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 564; see also LaMusga, supra, 32 Cal.4th at p. 1093, quoting In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).)
" 'In general, in reviewing a judgment [or appealable order] based upon a statement of decision following a bench trial, "any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.' . . . In a substantial evidence challenge to a judgment [or appealable order], the appellate court will "consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings].' . . . We may not reweigh the evidence and are bound by the trial court's credibility determinations. . . . Moreover, findings of fact are liberally construed to support the judgment [or appealable order].' " (Ciprari, supra, 32 Cal.App.5th at p. 94.) " 'Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.' " (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342 (Ruelas).)
As particularly applicable given Father's arguments on appeal, " '[w]e do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the [ruling] in favor of the prevailing party.' " (In re Marriage of Brooks (2019) 33 Cal.App.5th 576, 592 (Brooks).) Importantly—and, as overlooked by Father here— "[s]o long as substantial evidence supports the trial court's findings, 'it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' [Citation.] If we conclude substantial evidence supports the trial court's findings, 'we must affirm' the trial court's ruling." (Ibid.) The fact that the record may contain substantial evidence in support of an appellant's claims is irrelevant to our role on appeal, which is limited to determination of the sufficiency of the evidence in support of the ruling actually made. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890). B. Analysis
Father's principal argument on appeal is that "[t]he court would not have granted Mother's move[-]away if it had known its enforcement mechanisms were not reasonable considering Mother's past methods of interfering with [Child's] treatment." According to Father, "it was the court's belief that its Condon conditions were reasonable which led the court to allow the move." As we explain, the family court had before it whatever evidence Father wanted to present as to "Mother's past methods of interfering with [Child's] treatment"; and despite this evidence, the court ordered "enforcement mechanisms" that it believed were "reasonable." By asking us to reach a different conclusion, Father is asking us to reweigh evidence of what Father contends was Mother's interference or the reasonableness of the Condon conditions or both—which we are precluded from doing. (Ciprari, supra, 32 Cal.App.5th at p. 94 [" 'We may not reweigh the evidence' "].)
Condon, supra, 62 Cal.App.4th 533, established that a child's best interest in an international relocation case includes the ability to enforce the California custody order in the foreign country. (Id. at p. 547.) In the present case, the family court imposed the following conditions on Mother in its effort to minimize enforceability issues related to Child's custody order in Israel (previously described as "Condon conditions"):
• "[Father] is to be listed as [Child's] father at schools and treatment facilities, and is to be able to access records and receive emails just as a parent would while living in Israel. [Father] may designate a family member to attend school meetings, appointments etc. on his behalf, and that family member is not to be denied access. [Mother] shall cooperate in preparing appropriate authorizations to accomplish this[;]"
• "California will maintain jurisdiction over custody, visitation and support;"Each of these conditions in the Move-Away Order is also contained in the family court's statement of decision.
• "If any material terms of the California judgment are violated, [Mother] will immediately forfeit spousal support;"
• "[Mother] will designate a California agent for service of process for issues relating to custody and visitation;"
• "[Mother] will waive extradition in the event she is charged with parental kidnapping pursuant to 18 USC § 1204;"
• "[Mother] will be enjoined from filing any action seeking to modify custody or visitation anywhere other than California;"
• "[Mother] will register the California judgment in Israel acknowledging to that court California had jurisdiction to make the order, she was duly notified of the proceedings and had a fair hearing before the orders were entered[;]" and
• "If any provisions are contrary to Israeli public policy, particularly forfeiting spousal support, that provision is severed and the remaining terms are to be enforced."
Initially, Father does not argue that the Condon conditions in the Move-Away Order here are legally insufficient to comply with Condon's requirement that an international relocation order include the ability to enforce it in the foreign country. Father argues only that the Condon conditions in the Move-Away Order here either "would do nothing to keep Mother from continuing to sabotage [Child's] care once she moved" or are "not reasonable considering Mother's past methods of interfering with [Child's] treatment." Father's argument requires us to consider—and weigh—what Mother did or did not do in the past with regard to assessing Child's special needs and obtaining treatment for them. Moreover, Father's argument requires us to speculate—as he has—that Mother will not comply with the terms and conditions of the Move-Away Order. We are unable to do either.
As a reviewing court, we do not consider the evidence in the record of Mother's "past methods of interfering with [Child's] treatment," since, according to Father, that evidence does not support the Move-Away Order. (Brooks, supra, 33 Cal.App.5th at p. 592 [substantial evidence review on appeal limited to determining the sufficiency of the evidence in support of the ruling made; we do not consider the evidence in support of the ruling appellant wished had been made]; Howard, supra, 72 Cal.App.4th at p. 631 [same].)
In addition, we will not speculate as to Mother's future compliance with the Condon conditions (or other directives in the Move-Away Order). The present case is similar to J.M. v. G.H. (2014) 228 Cal.App.4th 925, where, despite evidence of the mother's noncompliance with prior agreements regarding the parents' time-share of the minor, the family court allowed the mother to relocate to Israel with the child during the school year, in part because "there was no showing that [the mother] would not comply with future orders." (Id. at p. 929.) The appellate court affirmed, ruling that the trial court did not abuse its discretion, based on the adequacy of the enforcement mechanisms under Condon, supra, 62 Cal.App.4th 533, and on what was in the child's best interest under LaMusga, supra, 32 Cal.4th 1072. (J.M., at pp. 932-935, 936-939.)
Even without having before it the specific objection that Father presents in this appeal, the family court was aware and acknowledged that Mother might attempt to "game the system." Given this awareness and acknowledgement, the court nonetheless ruled that "it is in [Child's] best interest to move with Mother to Israel rather than stay in San Diego with Father." That is the finding that is necessary under the applicable standard. (Fam. Code, § 3040, subd. (c); Brown, supra, 37 Cal.4th at p. 955; LaMusga, supra, 32 Cal.4th at p. 1078; Burgess, supra, 13 Cal.4th at pp. 31-32.) And, in making this finding, the court was to consider "all the circumstances bearing on the best interest of the minor child." (Burgess, at pp. 31-32; see, e.g., Fam. Code, § 3011.) The family court followed the appropriate procedures and applied the appropriate standards; Father's complaints on appeal are nothing more than disagreements over the potential effectiveness of the enforcement provisions put in place to enforce the court's finding that the Child's best interest is for Mother to bring Child with her when she moves to Israel.
Father did not file objections to the tentative or final statement of decision; and in his September 2018 motion for reconsideration, vacatur, or a new trial, he did not mention the evidence in the record that he contends established Mother's "past methods of interfering with [Child's] treatment." Consistently, at the October 2018 hearing at which the court considered Father's motion, Father's trial counsel told the court, "[W]e haven't asked for any changes to the statement of decision. I just want to make that clear. . . . [¶] We haven't asked for a single change to the statement of decision."
Notably, the family court's statement of decision contains the following express findings that support the court's enforcement mechanisms:
• Mother's "failure to seek services for [Child]" occurred "before Dr. Love's recommendations," but Mother "agreed to follow [Dr. Love's] recommendations beginning in April 2018";The record on appeal also supports at least three additional implied findings, each supported by substantial evidence, that support the Condon conditions. First, Mother agreed to follow, at a minimum, the recommendations from Dr. Love and those contained in the posttrial Psychological Assessment Report. Second, there is a better chance in Israel than in San Diego that Child will receive the necessary interventions recommended for Child in the Psychological Assessment Report. Third, Father would be unable to pay for these services in San Diego.
• After the posttrial Psychological Assessment Report, Mother was no longer "in denial about [Child's] special needs"; and
• "[S]ervices for special-needs children are equally available in Israel and the United States, but less expensive there, given the free medical care."
In his opening brief, Father tells us that the trial court "found" that "once she moved to Israel[, Mother] would continue to resist obtaining services for her son." (Italics added.) Because Father provides no record reference for this statement—and the statement is directly contrary to the express finding quoted in the text, ante—we have disregarded it. (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 222, fn. 15 (Herriott) [appellate courts "may disregard statements not supported by proper citation"].)
In his reply brief, Father tells us that "[t]he trial court explicitly found Mother would continue her reluctance in Israel." We disagree. In its statement of decision, the court stated that its "detailed" Condon conditions "are designed to ensure [Child] receives appropriate services in the face of [Mother's] reluctance, and to allow [Father] to remain an active participant in [Child's] upbringing." We do not read the court's statement as a finding that Mother would continue her reluctance to seek services for Child; given the finding quoted in the text, ante, and based on the entire statement of decision, we read the court's statement to mean that the court ordered the Condon conditions to ensure Child receives appropriate services given Mother's prior reluctance to acknowledge and/or treat Child's special needs.
Since Father did not object to the proposed or final statement of decision (see fn. 14, ante), we presume the family court made—and on appeal we will infer—all factual findings necessary to support the Move-Away Order, including the Condon conditions, for which substantial evidence exists. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; In re Marriage of Furie (2017) 16 Cal.App.5th 816, 827.)
In the evidence the family court accepted when it reopened the trial in October 2018, Mother "guarantee[d]" that she "would follow the recommendations of the professionals and get [Child] the help that he needs when in Israel."
Mother testified that "not only are all of these services available in Israel, but they are free as part of Israel's national healthcare system."
The evidence in support of this implied finding includes: After the parties' separation in March 2018, Father failed to pay the health insurance premium, and Child's insurance lapsed; one month prior to the August 2018 trial, Father testified that he was "poor"; in 2018, from at least August (trial) through October (reopening of trial to take additional evidence), Father was not current in his payment of support; and none of the necessary interventions recommended for Child in the posttrial Psychological Assessment Report was covered by Child's insurance.
On appeal, Father tells us that "the evidence demonstrated Father has the funds to pay for [Child's] interventions." However, because Father does not cite to any such evidence, we disregard the statement. (Herriott, supra, 33 Cal.App.5th at p. 222, fn. 15.) In any event, Father is not entitled to the inference that he suggests the other evidence provides. (Ciprari, supra, 32 Cal.App.5th at p. 94 [" 'reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision' "]; Ruelas, supra, 154 Cal.App.4th at p. 342 [same].) At the hearing in October 2018, in response to the court's inquiry how the parents will be able to afford the necessary services for Child if he remains in San Diego, Father's counsel replied: "[Father] will make it happen. [Father] will make it happen. He'll do whatever it takes to make it happen, your Honor, because it's important to him that [Child] gets what he needs. . . . [¶] . . . [¶] [Father] will pay a hundred percent of it. He'll make that offer right now." Father's reliance on his trial attorney's argument below is unhelpful. Even if we assume counsel's statements were admissible—which they are not (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 ["the unsworn statements of counsel are not evidence"])—given the evidence described in the preceding paragraph, counsel's statements to the family court are speculative at best.
The findings set forth in the preceding paragraph fully support both the Condon conditions and their reasonableness—which is all that Father challenges on appeal. If these findings are supported by substantial evidence, our inquiry is over and " 'we must affirm.' " (Brooks, supra, 33 Cal.App.5th at p. 592.) However, Father does not argue on appeal that these findings are not supported by substantial evidence. Instead, he relies on other evidence (i.e., in the past Mother interfered with Child's treatment) that he contends supports different findings (i.e., the Condon conditions are not reasonable). Once again, however, because we do not consider evidence that supports a different outcome (Brooks, supra, 33 Cal.App.5th at p. 592; Howard, supra, 72 Cal.App.4th at p. 631), Father's showing on appeal necessarily fails.
Accordingly, by relying on Mother's past behavior to establish the unreasonableness of the enforcement mechanisms and by failing to suggest why the evidence in support of the enforcement mechanisms is not substantial, Father has not met his burden of establishing that the family court abused its discretion in allowing Mother to relocate to Israel with Child. We briefly respond to, and reject, some of the additional arguments contained Father raises on appeal.
First, Father relies on various observations and findings in the statement of decision that, according to Father, would have supported a ruling that the best interest of Child is to remain in San Diego with Father. However, as Father has failed to recognize throughout his appellate briefing, in our substantial evidence review, we do not consider the evidence in support of a ruling an appellant wishes had been made. (Brooks, supra, 33 Cal.App.5th at p. 592; Howard, supra, 72 Cal.App.4th at p. 631.) The family court properly framed the issue, "The only question is what is best for [Child]"; and in deciding that Child's best interest is to accompany Mother to Israel, the court properly relied on the custody evaluator's report in ruling, "[Child's] primary bond remains with his Mother." Significantly, Father does not challenge the substantiality of the evidence that supports the finding of Child's primary bond and, accordingly, the family court's exercise of discretion based on this evidence in determining what is in Child's best interest.
Second, we disagree with Father's suggestion that the declaration testimony submitted in support of and in opposition to Father's posttrial motion (for reconsideration, vacatur, or a new trial) was not "admitted into evidence." At the October 2018 hearing, the family court ruled from the bench that Father's motion "technically [is] a motion to reopen the evidence, which I have granted" and that the court would be revising its proposed statement of decision "to reflect that we've received additional evidence." (Italics added.)
We rely solely on the reporter's transcript, since Father did not include in the record on appeal a copy of the court's minutes from the hearing or any written order on his motion. --------
Third, Father argues that, because "the trial court found Father was generally credible while Mother was not," where there were conflicts in the evidence, on appeal Mother was required "to delineate how her testimony was more plausible tha[n] Father['s]" based on "the plausibility and consistency of the testimony." Such a suggestion ignores the applicable standard of review—which Father acknowledges, but fails to follow. Although the trial court's credibility determinations are one way of explaining which of the conflicting evidence the court credited or discredited, appellate courts do not make such determinations in the first instance with regard to specific testimony neither credited nor discredited by the trial court (Ciprari, supra, 32 Cal.App.5th at p. 94). Unless the statement of decision provides otherwise, on appeal all conflicts in the evidence are resolved so as to support the respondent (here, Mother) and the trial court's findings. (Ibid.; Ruelas, supra, 154 Cal.App.4th at p. 342.) The argument advocated by Father is contrary to these well-established appellate standards. In addition, by not objecting to the proposed or final statement of decision, Father did not give the trial court the opportunity to apply credibility determinations to conflicts in specific evidence; and by not giving the court the opportunity to make the credibility determinations as to the specific evidence Father cites on appeal, Father forfeited appellate consideration of the argument. (Arceneaux, supra, 51 Cal.3d at p. 1138.)
Fourth, although Father "does not disagree with Dr. Love's statements" to the effect that "[Child] would suffer some detriment if he was removed from Mother," Father nonetheless argues that "the consequences are more dire if [Child] remains with Mother." (Some bolding and initial capitalization omitted.) This, like Father's principal argument regarding the Condon conditions, requires us to reweigh evidence and reach a different finding than the family court made with regard to Child's best interest—which we may not do on appeal. (Ciprari, supra, 32 Cal.App.5th at p. 94 [" 'We may not reweigh the evidence' "].)
Finally, Father relies on statements made by the family court during the trial which, according to Father, indicate the court would have ruled differently if it knew that its enforcement mechanisms were "unreasonable" (i.e., if it knew that Mother would not comply). As we explained ante, however, Father did not meet his burden of establishing that the Condon conditions were unreasonable; and Father's argument is speculative at best. In any event, a trial court's "comments at oral argument may never be used to impeach [the] final order." (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1431; accord, Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1009 ["oral remarks or comments made by a trial court may not be used to attack a subsequently entered order or judgment"].) In part, that is because appellate courts review trial courts' rulings, not their reasoning. (Burgess, supra, 13 Cal.4th at p. 32; Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329 ["a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason"].) Here, we are reviewing the Move-Away Order and its underlying statement of decision based on the evidence admitted at trial, not based on the court's comments during trial.
III. DISPOSITION
The Move-Away Order—i.e., the "Judgment" filed November 7, 2018—is affirmed. Mother is entitled to her costs on appeal. (Rule 8.278(a)(2).)
IRION, J. WE CONCUR: AARON, Acting P. J. DATO, J.