Opinion
D058756 Super. Ct. No. D508471
12-20-2011
In re the Marriage of CRAIG A. and PRISCILLA A. CONRAD. CRAIG A. CONRAD, Respondent, v. PRISCILLA A. CONRAD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Christine K. Goldsmith, Judge. Affirmed.
Following a two-day trial in this marital dissolution action, the court entered a judgment of dissolution giving the husband, Craig, primary physical custody of the parties' two minor children and, giving the wife, Priscilla, and husband joint legal custody of the children. The court also set spousal and child support and ordered that Craig pay Priscilla $2,200 in attorney fees.
In the interests of clarity and as is the practice in dissolution actions, we refer to the parties by their first names. We intend no disrespect.
Priscilla appeals, asserting the court (1) abused its discretion in giving primary physical custody of the children to Craig, and (2) erred by making spousal and child support orders and awarding attorney fees without a current income and expense declaration from Craig. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because we review the court's custody determination for an abuse of discretion, we set forth the facts in the light most favorable to the judgment.
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The parties were married on May 20, 1995 and separated on March 1, 2008. The parties had two minor children, a daughter, M.D., and a son, M.B. In addition, Priscilla had an older daughter, C., from a previous relationship who resided with the parties.
A. Evidence of Priscilla's Shopping and Hoarding Habits
Craig requested primary physical custody of the parties' minor children because he felt it would be in their best interests. Craig declared that Priscilla suffered from a mental illness in which she "has little self control and shows little care for the conditions in which her children live." In particular, Craig claimed that Priscilla was an obsessive compulsive shopping addict and hoarder. Craig claimed that the majority of Priscilla's purchases came from television shopping channels such as HSN and QVC. Priscilla admitted that she spent too much money shopping.
Craig claimed that Priscilla's shopping and hoarding activities had made the family's life unbearable, limiting movement within the house. He pointed out the effect of Priscilla's disorder on the family's house and explained that he had eventually had to rent two 40-cubic foot dumpsters in which to dispose of Priscilla's excessive purchases that had cluttered up their home to such an extent that it was difficult to move in the home. Craig lodged photographs for the Court's review of the parties' house before he disposed of all of the excessive purchases in the two dumpsters, and afterward. Craig also referred to the effect of Priscilla's habits on the parties' children and how she tried to buy the affections of the children "with an endless stream of junk." Craig also alleged that Priscilla had charged credit cards in the amount of nearly $50,000 during their marriage after he had already refinanced the house to pay off her previous credit card bills.
Priscilla admitted to a problem during the first Family Court Services (FCS) mediation, and the counselor noted that the "mother has not been helpful by retreating into what appeared to be compulsive buying, putting the family into debt." At a hearing on June 17, 2008, Priscilla informed the court that she was seeking professional counseling for her problem. Craig lodged exhibits with the court showing that when he included a request for records regarding Priscilla's mental health treatment in discovery requests, Priscilla responded by objecting to the request and refusing to provide them.
B. Priscilla's Allegations of Abuse
After being served with Craig's petition for dissolution, Priscilla began making allegations of physical and psychological abuse against Craig. Priscilla referred to an alleged violent incident by Craig against her daughter, C. This incident was described by Priscilla both in support of an ex parte application for domestic restraining orders and a motion for a residence exclusion order filed on May 16, 2008.
In Priscilla's declaration in support of her request for a restraining order, Priscilla claimed she had just recently found out about the year-old incident in April of 2008. Priscilla stated, "I wasn't able to exactly determine why I was just finding out about this incident." In Priscilla's declaration filed in support of a residence exclusion order, however, Priscilla claimed that on August 19, 2007, the date the incident occurred, she had received a "frantic" telephone call from her daughter, M.D, telling her about the incident. However, Craig lodged with the court a copy of a telephone bill that he contended showed that the alleged telephone call had never actually occurred. Craig pointed out several other alleged inconsistencies in Priscilla's statements concerning the alleged abuse. Priscilla's request for a domestic violence restraining order was denied.
In addition to her allegations of abuse to her daughter, C., Priscilla also made similar allegations of abuse as against her daughter M.D. and her son, M.B., to Child Protective Services (CPS). Priscilla's allegations of physical abuse were initially found to be "inconclusive" and Priscilla's claims of emotional abuse were found to be "substantiated." However, Craig appealed the CPS findings and the previous "inconclusive" claim of physical abuse related to the incident with C. was changed to "unfounded" and was ordered removed from the Child Abuse Central Index. Similarly, the previous "substantiated" claims of emotional abuse to C. and M.B. were changed to "unfounded" and were also to be removed from the central index. This documentation was provided to the court as part of exhibits lodged for the trial on July 24, 2009.
C. Priscilla's Alleged Alienation of the Parties' Children and Refusal to Co-Parent
Craig presented evidence that Priscilla changed the children's school without consulting him, changed the medical and dental providers for the children without his consent and without giving him any information, and filed a change of address with the post office for the children so that no mail could be sent to the children. At trial, Priscilla admitted in her testimony that she changed M.D.'s school without telling Craig. Priscilla also admitted in her testimony at trial that she did not discuss the children's dental care with Craig following their separation.
Craig alleged that Priscilla ignored an order to take the children to reunification counseling with him for nearly six months. He alleged that Priscilla failed to tell him about or provide him with the necessary release for the counseling. As soon as Craig was told that he needed to sign a release for the counseling he did so.
As further evidence of her alleged refusal to co-parent, Craig's declaration stated that Priscilla failed to provide Craig with her new telephone number, so he was unable to contact the children by telephone. Additional declarations from Craig to the court stated that telephone visitation with the children while they were in Priscilla's custody was problematic as a result of Priscilla not answering her phone whenever Craig would call. Craig also alleged that Priscilla utilized the children as couriers, giving him important information because she would not deal directly with Craig herself.
D. Priscilla's Alleged Poor Parenting Skills
Craig alleged that when the children were in Priscilla's custody she left the children alone after school for hours until she returned from work. Craig informed the court of how the children were left alone and unsupervised, based on his observations from picking up the children for his visitations at 3:00 or 4:30 p.m. Craig informed the court of one occasion when he came to pick up his children for visitation and only his daughter, M.D, was there and she had no idea where her brother was. Craig drove to M.B.'s school and found him sitting alone in front of the school, an hour after all of the other children had gone home. At trial, Priscilla admitted that C. was left alone after school.
Craig also lodged exhibits of the children's MySpace pages and a copy of an e-mail from one of the children with the court for review. The parties' youngest daughter, M.D., claimed that she was 18 years old on her MySpace page, at a time when she was actually only 12 years old. The parties' son, M.B., claimed that he was 16 years old, at a time when he was actually only 10 years old, and for his profile photo M.B. used an image of the word "Bad Boy" surrounded by dollar signs. Craig also lodged an e-mail from Priscilla's daughter, C., which he alleged showed that her lack of supervision was resulting in promiscuity.
Craig also presented evidence to the court alleging that Priscilla was using the children to help steal from his house. Craig told the court that computer logins showed that Priscilla continued to come back into his house and take items after she was allegedly no longer in the house. Craig also declared that Priscilla used the children to help her take items from his house back to Priscilla's sister's house where they were living at that time.
E. Craig's Parenting Skills
Craig asserted that his visitations with the children were going very well. Craig declared that he and the parties' children "play games, go places, eat food, and enjoy each other's company." He alleged that he gave the children structure, supervising the children and correcting them when their behavior was out of line.
Craig asserted that after discovering C.'s e-mails and MySpace page which evidenced alleged sexual promiscuousness, he wanted to "team up" with Priscilla and confront C. He stated that had he been allowed to be a parent to C., she would have received parental guidance from him, probably in the form of a lecture and loss of privilege and closer scrutiny as to where she was going. Priscilla, however, never discussed the issue with C. and denied the existence of a problem to FCS. Craig expressed concern the younger children, M.B. and M.D., were going to be "poisoned" against him by Priscilla and receive inadequate supervision. Craig told the court that he wanted to do what was best for the children. .
F. Trial and Judgment
Trial in this matter occurred over two days in July and August 2009. At the first day of trial in July, the court heard testimony and the parties stipulated that the court could consider the declarations filed by the parties. Following that first day of trial, the court issued a statement of intended decision. In that proposed order, the court ordered that the parties have joint legal custody, with primary physical custody going to Craig.
As support for that custody order, the court discussed the fact that Priscilla "has been reluctant to relinquish any control [over the children]. She appears to this Court to be unwilling or unable to keep [Craig] 'in the loop' on decision-making, often providing him no notice or extremely inadequate notice about the need to make important health or educational decisions for the children. She appears to want to micromanage what the children do in his care. Based upon the declarations and exhibits submitted, this Court is very concerned that the children, as opposed to [Priscilla], 'call the shots' at her home. This is completely inappropriate for children of this age."
At the second day of trial in August 2009, the court made findings from the bench. The court indicated that it would adopt the statement of intended decision as the judgment of the court as to custody. The court gave several reasons for its decision. First, the court indicated it was aware the original CPS findings as to Priscilla's allegations of abuse were reversed. The court also noted that the alleged dispute between Craig and C. "had been greatly exaggerated and amplified over time in the telling and retelling." The court also found that Priscilla on several occasions failed "to involve, since separation, [Craig] in the decision-making with regard to these children." The court also found that, based on the evidence presented, if the children continued to reside with Priscilla, Craig "would ultimately be pretty much completely cut out of these kids' lives." Finally the court found that Craig "appears to me to be confident, capable, willing, [and] able to parent these children, and to share the parenting responsibilities, which to me is very important, because the children need both parents to be involved in their lives."
Thereafter, the court entered a judgment of dissolution, awarding primary physical custody to Craig and shared legal custody among the parties. The court set forth Craig's income and Priscilla's earning capacity. The court ordered Craig to pay spousal support in the amount of $800 per month and ordered Priscilla to pay child support to Craig in the amount of $35 dollars a month. The court ordered Craig to pay $2,200 of Priscilla's attorney fees.
DISCUSSION
I. CUSTODY ORDER
Priscilla asserts that the court abused its discretion in changing custody of the minor children "without substantial evidence to do so." This contention is unavailing.
A. Standard of Review
A trial court has wide discretion to select a parenting plan that best serves the child's health, safety and welfare. (Fam. Code, §§ 3011, 3040, subd. (b)) (all further statutory references are to the Family Code); Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) "The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).)
B. Analysis
In determining custody and visitation issues, "the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children." (§ 3020, subd. (a).) Section 3020, subdivision (b), provides, "it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage."
Section 3040, subdivision (b) also provides: "This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child."
Evidence of a parent's past conduct demonstrating "uncooperative" parenting that is likely to disrupt the child's relationship with the other parent is highly relevant in making a custody determination. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (La Musga).) Moreover, courts must consider " 'which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.' " (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1053, quoting § 3040, subd. (a)(1).)
Ample evidence supports the court's award of primary physical custody to Craig. As the court found, the evidence showed Priscilla demonstrated "uncooperative parenting" and tried to discourage Craig's relationship with the minor children. Further, the court cited Priscilla's parenting skills as not being in the children's bests interests. The court found that it was no longer concerned with Priscilla's allegations of abuse against the children as the CPS findings in this regard were reversed. The court found that Craig was a capable parent who would likely share the parenting responsibilities.
Moreover, it is not true as Priscilla argues in her opening brief that Craig must show a substantial change in circumstances to modify the temporary custody orders. Where, as here, no permanent custody order had yet been entered, the trial court was only required to determine what was in the best interest of the minor. (Burgess, supra, 13 Cal.4th at pp. 34-35.) Unlike cases where a party is attempting to alter a permanent custody order, here neither party had the burden of demonstrating either any detriment to the minor or any particular need for a change in custody. (Ibid.) Rather, in cases such as this one, both parties share the burden of showing what is in the best interests of the minor. (See La Musga, supra, 32 Cal.4th at pp. 1094-1095.)
Priscilla relies on the original CPS finding regarding Craig's alleged abuse, the recommendations of the FCS mediators, and the request of the minor children in asserting that the court abused its discretion in awarding primary physical custody to Craig.
As to the original CPS findings, as noted, ante, those findings were reversed and the court noted this fact in making its ruling. Further, Craig presented to the court substantial evidence, including declarations and exhibits, from which the court could find Priscilla's allegations not credible. In fact, the court stated in making its decision that the allegations of abuse against Priscilla's daughter C. "had been greatly exaggerated and amplified over time in the telling and re-telling."
In Priscilla's brief, she places great emphasis on the recommendations of the FCS mediators. However, her reliance on those reports is misplaced. The last FCS report before trial was issued on May 26, 2009. Following the issuance of the report, at a hearing held on June 15, 2009, the FCS mediator was questioned by Craig's counsel. However, Priscilla has not included a copy of the reporter's transcript from that hearing on appeal. Without this evidence, we must presume on appeal that the testimony of the FCS counselor supported the court's decision. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Moreover, immediately following that hearing the court made a change to custody and visitation that was favorable to Craig. The court changed custody to joint physical and legal custody. Thus, in the absence of the record of the June 15, 2009 hearing, we may presume that the change was based upon testimony of the FCS mediator that was favorable to Craig. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141)
Additionally, the report by the FCS mediator was only a recommendation to the court. (§ 3183, subd. (a).) The court was not required to adopt that recommendation. (In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1104-1105 [A "mediator's testimony is evidence to be weighed with all other evidence and it is the court, not the mediator, that bears the responsibility to decide custody"], overruled on another ground in Burgess, supra, 13 Cal.4th at p. 38, fn. 10.)
Priscilla also cannot show an abuse of discretion based upon her claim that the court should have considered the minor children's wishes concerning custody. Regardless of a child's age and "capacity to reason," the court has no mandatory duty to follow the follow the child's wishes. (In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110-111.) Rather, the court is only required to "consider" and "give due weight" to the child's wishes. (Ibid.) Given the court's findings as to the parents' respective parenting skills and the other evidence presented to the court, Priscilla cannot show it was not in the children's best interest to reside with Craig.
In sum, the court did not abuse its discretion in granting primary physical custody of the minor children to Craig.
II. SUPPORT AND ATTORNEY FEES
Priscilla asserts the court erred in setting spousal support, child support and determining attorney fees because Craig had not filed a current income and expense declaration before trial. We reject this contention.
The Superior Court of San Diego County Local Rules, rule 5.6.2 (rule 5.6.2) provides that "[a]n Income and Expense Declaration is current if it has been completed within three months of the hearing."
Contrary to Pricilla's contention, Craig did prepare and file a current income and expense declaration prior to trial. His income and expense declaration was signed July 8, 2009, and filed with the court on July 22, 2009. This was well within the three-month period required by rule 5.6.2. Indeed, the court's judgment accurately reflects Craig's income as stated in the income and expense declaration.
Finally, Priscilla does not point to anything in the court's calculation of spousal support and child support that was inaccurate and does not assert the amount of attorney fees awarded to her was erroneous.
DISPOSITION
The judgment is affirmed.
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NARES, Acting P. J.
WE CONCUR:
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HALLER, J.
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McINTYRE, J.