Opinion
A149837
12-18-2018
In re the Marriage of DAUN A. and ROY A. DAUN A., Appellant, v. ROY A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSD08-02961)
In this family law proceeding, appellant Daun A. (Mother) challenges a trial court order declining to modify an existing child custody arrangement. According to the trial court's summary of the relevant facts, Mother moved to Redding in July 2014; respondent Roy A. (Father) lives in Pleasant Hill; they are the parents of two children, a daughter born in 2004 (Daughter) and a son born in 2007 (Son), who attend school in Pleasant Hill.
In August 2014 (shortly after Mother moved to Redding), the court ordered that the children continue to attend school in Pleasant Hill and reside primarily with Father during the school year, while residing primarily with Mother during the summer. Mother later asked the court to change this arrangement to have the children attend school in Redding and reside primarily with her during the school year. In October 2016, the court issued a detailed statement of decision and order denying Mother's request. Mother, proceeding in propria persona, has appealed that order. We affirm.
Father, who also is proceeding in propria persona on appeal (although he was represented by counsel in the trial court), did not file an appellate brief.
I. BACKGROUND
The court's 2016 statement of decision states that Mother and Father married in 2006 and separated in 2008. The court entered a judgment of dissolution of their marriage in 2009. In May 2014, Mother filed a request to modify a visitation schedule that had been established by a 2012 stipulated order, as well as asking that the children be homeschooled. The 2012 stipulated order stated Mother and Father would have joint legal and physical custody of the children and established a detailed schedule as to when the children would reside with each parent.
The parenting schedule set forth in the 2012 order gave the parents roughly equal periods of physical custody. It appears Mother may have spent more time with the children during this time period, although that is not clear: In its 2016 statement of decision, the court stated that Mother was "the primary custodial parent" until 2014; elsewhere in the statement of decision, the court stated that "[p]rior to [Mother's] move in 2014, the parents had an equal parenting schedule for several years."
In response to Mother's May 2014 motion, Father argued Mother was "secretly" moving out of the Bay Area and asked the court to deny her motion to modify the custody, visitation and schooling arrangements. He asked that the children remain in school in Pleasant Hill. After both parties submitted multiple declarations and related filings addressing these and other issues, the court held a hearing on August 22, 2014. In its order issued after the hearing, the court ruled the parties would have joint legal custody of the children; Father would have primary physical custody during the school year, and the children would continue to attend school in the Bay Area; and during the summer, the children would reside primarily with Mother.
The August 22, 2014 hearing was not reported. According to the trial court's Register of Actions, counsel met with the court in chambers, where the court approved a written stipulation and order. Mother was represented by counsel during this portion of the trial court proceedings.
In February 2015, Mother filed a motion asking again that the children attend school in Redding and reside primarily with her during the school year. The motion included a request to disqualify Father's counsel. The court held a hearing on these requests on May 19, 2015. The court denied the motion to disqualify counsel, ordered that the children remain in their current school and continue to reside primarily with Father during the school year (while making some modifications to the parenting schedule), and set dates for a long cause hearing on the custody and schooling issues. Shortly after the May 19, 2015 hearing, Mother's attorney substituted out, and Mother resumed representing herself.
The May 19, 2015 hearing was reported, but Mother did not designate any reporter's transcripts for inclusion in the appellate record. The court's written order for this hearing also is not included in the record. Our summary of the ruling is based on the trial court's subsequent description of it in the 2016 statement of decision, and on the trial court's Register of Actions.
The long cause hearing occurred over seven court days in February and April 2016. The court admitted documentary evidence and heard testimony from numerous witnesses. (A court reporter was present, but as noted, Mother did not designate the reporter's transcripts of the hearing for inclusion in the appellate record, so we have little sense of what occurred.) After the conclusion of the hearing, the court filed first a tentative statement of decision, then a proposed statement of decision, and then a final statement of decision on October 21, 2016. After the filing of both the tentative and the proposed statements of decision, the parties filed objections, which the court reviewed and considered.
In its final statement of decision, the court stated it had considered and weighed the factors relevant to relocation issues in child custody cases, including (among others) the children's interest in stability and continuity, the distance of the move, the children's ages, their relationships with their parents, the hostile relationship between the parents, and Mother's reasons for moving. (See, e.g., In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101.) The court discussed the relevant factors in detail and concluded it was in the children's best interests to continue with the existing parenting arrangement, i.e., to remain in Father's primary custody during the school year and attend school in Pleasant Hill. The court ordered that the children reside primarily with Mother during the summer and established a detailed schedule for weekends and holidays.
Mother filed a notice of appeal challenging the court's October 21, 2016 order.
The order is appealable as an order after final judgment (Code Civ. Proc., § 904.1, subd. (a)(2); Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378) and as a final order in a bifurcated proceeding regarding child custody or visitation rights (Code Civ. Proc., § 904.1, subd. (a)(14)).
II. DISCUSSION
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.] Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) " ' "The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." ' " (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.) An appealed trial court order is presumed to be correct, and an appellant seeking to overcome that presumption must provide an adequate record to show error. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Here, Mother's failure to provide the reporter's transcript of the long cause custody hearing "severely impairs analysis" of her appellate arguments. (Osgood v. Landon, supra, 127 Cal.App.4th at p. 435; see In re Valerie A. (2007) 152 Cal.App.4th 987, 1002-1003 [treating claim as abandoned where appellant failed to designate reporter's transcript of relevant proceeding].) We have no basis for concluding the court abused its discretion in analyzing and weighing the evidence presented at the custody hearing when much of that evidence (including all of the witness testimony) is not before us.
In any event, Mother's appellate arguments are unpersuasive. Mother contends the court misapplied the legal standards governing relocation requests in the context of child custody proceedings. As Mother notes, a custodial parent has the presumptive right to relocate with the children unless the move would be detrimental to the children. (Fam. Code, § 7501, subd. (a); In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, 35 (Burgess).) A trial court determining whether to modify a custody order in this circumstance ordinarily should consider such factors as "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, supra, 32 Cal.4th at p. 1101.)
In contrast, when the parents share joint physical custody and one parent wishes to relocate, "[a] different analysis may be required." (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.) "In such cases, the custody order 'may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order.' (Fam. Code, § 3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children." (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.)
Mother argues that, under Burgess, she "had the presumptive right as the custodial parent to change the residence of the minor children," and she asserts the court did not properly consider the factors relevant to determining the children's best interests. Based on the record available to us, it does not appear that, at the time of the 2016 long cause hearing that led to the order appealed here, Mother was entitled to a presumption in favor of her proposal to change the children's primary residence and school location to Redding (which would effectively grant her primary physical custody during the school year). The parents had shared physical custody for several years. In its 2016 statement of decision, the court stated that, prior to 2014, Mother was "the primary custodial parent," while also noting that prior to Mother's move in 2014, the parents had "an equal parenting schedule for several years." And in August 2014, the court ordered that Father would have primary physical custody during the school year.
Mother suggests the court erred by failing to hold an evidentiary hearing before entering the August 2014 order. Mother's notice of appeal does not state she is challenging that order, and nothing in the record suggests she or her attorney objected to the court's conduct of that hearing. Mother's complaint on this point provides no basis for reversal of the court's October 21, 2016 order.
To the extent Mother more broadly contends the court did not consider the appropriate factors in assessing the best interests of the children, we disagree. The court expressly and thoughtfully applied the factors relevant to relocation decisions, discussing among other issues the children's strong bonds with both parents, the animosity between the parents, and the children's interest in continuity and stability, and concluding ultimately that it was in their best interests to continue the existing custodial and educational arrangement. Contrary to Mother's suggestion, the court did not impose on Mother any burden to prove her move to Redding was necessary and did not find Mother had any improper reason for moving.
Mother also argues the court erred by (1) not considering Daughter's and Son's wishes as to where they wanted to be placed, (2) not giving sufficient weight to allegations of sexual activity between Son and a minor female cousin that occurred at the homes of Father's relatives, (3) not holding Father in contempt for alleged disobedience of court orders, (4) not disqualifying Father's counsel, and (5) considering the recommendations of an allegedly biased mediator. We find no merit in any of these assertions.
The court explained in its statement of decision that it considered statements the children made during interviews and mediation, which reflected the children loved both parents, were happy in both parents' homes, and did not want to choose between their parents. The court denied Mother's request that the children testify at the custody hearing, finding "that it would not be in their best interest to do so and that the potential harm they could suffer far outweighs the potential benefit of their testimony." Mother has pointed to nothing in the record suggesting the court's decision on this sensitive issue was an abuse of discretion.
The court also addressed the allegations involving the children's cousin. After considering the testimony of the parties and other relatives, a police report, a social services investigation and a recorded interview of Son, the court found there was no ongoing need for "protective or restrictive parenting orders" pertaining to this alleged conduct. Instead, the court was "satisfied that each parent is and will continue to supervise and parent [Daughter] and [Son] appropriately when the children are in their care." In light of the court's careful consideration of this issue, and especially since we do not have all the evidence on which the court based its decision, we again find no error.
Finally, Mother has not shown that the court's decisions as to contempt and attorney disqualification and Mother's complaints about the mediator provide any basis for reversal of the court's October 2016 custody decision. The court noted in its statement of decision that certain contempt issues between the parties were being litigated in other departments of the court and would not be addressed in the court's decision. We also note the attorney disqualification issue was resolved not at the 2016 long cause custody hearing, but at an earlier hearing (in May 2015), for which we again do not have the reporter's transcript. More broadly, Mother has not shown that any of these peripheral skirmishes and complaints undercuts the court's central determination as to the custody arrangement that will serve the best interests of the children.
III. DISPOSITION
The court's October 21, 2016 order is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Tucher, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------