Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. D98-02322
Marchiano, P.J.
Mark Kevin Godbey (Godbey) sought orders modifying custody and child support. His arguments on appeal essentially boil down to claims that the Family Law court abused its discretion in denying his application for custody modification without prejudice, and in ordering an increase in child support pursuant to a guideline calculation. As discussed below, we conclude there was no abuse of discretion and affirm the challenged orders.
Background
In 1998, Margaret Fuller Godbey (Fuller) filed a petition for dissolution of her marriage to Godbey. The court entered a judgment dissolving their marital status in 2000.
Godbey and Fuller have two children, W.G. (born 1995) and E.G. (born 1996). In 2003, Godbey and Fuller entered into a stipulation regarding custody and visitation, which the court adopted as its order on December 9, 2003, and filed the next day (the 2003 stipulated order). The 2003 stipulated order gave Fuller physical custody of the children. It further gave Godbey and Fuller joint legal custody, but gave Fuller the right to make “day-to-day decisions” regarding the children subject to review on petition by Godbey. It called for Godbey not to contact Fuller or the children except as provided in the order, requiring Godbey to communicate with Fuller on matters affecting the children through a court-appointed facilitator, Neoma Gottlieb, who was also the current visitation supervisor.
The 2003 stipulated order stated Godbey “currently has supervised visitation [but it] is the goal of all concerned to provide a situation that is safe for the minor children where they will have ‘normal’ time with their father.” Thus, Godbey was to continue supervised visitation “on a consistent basis,” with one eight-hour visit per week, for a minimum of 24 visits in an eight-month consecutive period, at regular intervals without significant periods of no visitation. Godbey’s therapist, John Kincaid, was authorized to be present during such visits on reasonable notice to the children’s counsel, in order to develop a treatment plan to address the “benchmark” requirements set out in the 2003 stipulated order.
These “benchmark” provisions called for Godbey to comply with specified prohibitions against contact with Fuller, with custody and visitation orders, with instructions of the visitation supervisor, and with individual therapy. The 2003 stipulated order also provided for periodic review, at which times Godbey would be entitled to a specified transition to unsupervised, increased visitation so long as he was in substantial compliance with the benchmark requirements. Conversely, he would be subject to a reversion to supervised visitation if he was not in substantial compliance during the review period.
About one year later, in January 2005, the court filed findings and orders regarding certain custody and visitation issues raised by the parties and tried the previous month. Among other things, the court found Godbey had a “history of inconsistent visitation with the children” which had been harmful to them, and Godbey had exercised “poor judgment” by failing to visit the children consistently although visits were authorized and had not been impeded by Fuller. The court determined the 2003 stipulated order was “a very good framework” within which Godbey might have contact with the children “in a safe fashion.”
The court additionally found Godbey used “corporal punishment on the children, at least in the form of spanking,” and that his conduct had been “excessive.”
In June 2010, Godbey filed an application in propria persona, seeking to modify the 2003 stipulated order. He sought joint physical and joint legal custody, and sought a modification in which he and Fuller would contribute equally or “50-50” toward the support of each child. Godbey also sought to recover a “proportionate amount of child support consistent with [Fuller’s]... denying [the] children any type of visitation with [him].”
Godbey’s attached Income and Expense Declaration stating child support should be modified “based on equal custody or change of custody.” He also claimed Mother’s income had increased “over the past 10 years from [the] time of the last child support [order].”
In support of his application, Godbey stated Fuller improperly denied him visitation for three and one-half years, as well as her attorney being in “collusion” with the court-appointed facilitator, and suggested the court had improperly continued to require supervised visitation after 2001. He further stated he had signed “[a]ll supervised visitation contracts... under duress,” and claimed the children had become alienated to him due to Fuller’s misconduct.
Exhibits attached to Godbey’s application included a letter to the court from his therapist, John E. Kincaid, Ph.D., dated August 17, 2006. Kincaid reported that Gottlieb, the professional visitation supervisor, had referred to a visitation order limiting Godbey’s visitation to twice a month, although she failed to produce the order and Godbey had been unable to determine its existence. Kincaid also related an incident earlier that month in which Fuller’s counsel informed him he was not authorized to observe a supervised visitation, and Gottlieb had prevented him from doing so, contrary to Kincaid’s authority to observe visitation under the 2003 stipulated order. According to Kincaid, Gottlieb, in the months preceding August 2006, had additionally failed to comply with his requests to review the supervisor’s visitation notes in order to assess Godbey’s interaction with the children.
Fuller and Daniel Harkins-the children’s court-appointed attorney-each filed responsive declarations. Harkins, on behalf of the children, opposed any change in custody or visitation. Fuller adopted Harkin’s position on the issue of custody and visitation. She also opposed Godbey’s request for modification of child support, but stated she would consent to a modification order based on a guideline calculation. Her calculation of guideline support, based on Godbey’s and her own Income and Expense Declarations-as well as the fact the children had spent “0 percent” of their time with Godbey-called for Godbey to pay a monthly amount of $1,683.
Godbey’s Income and Expense Declaration agreed the children had spent “0 percent” of their time with him, and an attachment to his application stated, among other things, that his last visit with them had occurred in November 2006, some three and one-half years previously.
This was evidently an increase in the amount of monthly child support Godbey had previously been required to pay, although the previous custody order is not included in the record.
On August 6, 2010, the court held a hearing on Godbey’s application. Godbey initially sought a continuance for mediation of the issue of modification of custody, and also a continuation on the issue of child support, since, in his view, the latter issue arose only after a determination “how much timeshare [he could] have with [his] children.” The court stated there was no basis for a continuation to refer the matter to mediation absent a prima facie showing of a material change in circumstances warranting review of the existing custody and visitation order. The court noted Godbey’s pleading contained only “conclusory statements [on the issue of custody], which tend[ed] to focus on previous orders... as opposed to factual circumstances that have occurred and arisen since the last court order, which would lead to a material change in circumstances....” When Godbey was unable to make an offer of proof regarding additional evidence of changed circumstances, the court found there was “no factual basis for a change of custody and visitation,” and denied Godbey’s request for such modification without prejudice to the filing of a new application showing a material change of circumstances.
Turning to the issue of child support, the court found Fuller’s guideline calculation to be accurate, and determined Godbey was to pay monthly child support in the amount of $1,683, commencing September 1, 2010.
The court filed its formal order on September 27, 2010. Godbey’s appeal followed. (See Code Civ. Proc., § 904.1, subd. (a)(2); Fam. Code, § 3554.)
We note the formal order, prepared by the minor’s counsel, did not incorporate the court’s ruling modifying child support. That ruling, however, is reflected in the register of actions for August 6, 2010, as well as in the reporter’s transcript of the hearing on that date.
Discussion
I. The Custody and Visitation Ruling
Godbey suggests the court’s order-denying his application to modify child custody-was in error because it “terminat[ed] his parental rights” and “set[] his custodial visitation... to zero.” (Original italics.) He claims the court should have ordered the matter to mediation pursuant to Family Code section 3170, subdivision (a), because it was clearly “contested” within the meaning of that section and “has been... since 1999.” He asks this court to review the order “de novo” in order to set a precedent in future proceedings that similarly seek a modification of child custody “based on visitation interference.” He also urges us to set aside the court’s order pursuant to Code of Civil Procedure section 473, and presents “a body of... federal and other higher” case law as “authority for restoring his parental rights,” asserting that, while his parental rights are protected under principles of federal constitutional due process, the California law applicable in his case utilizes an unconstitutional, lower evidentiary standard as well as the “vague and indeterminate” rule regarding the “ ‘best interest of the child.’ ” (Original italics.) He claims he has not waived his constitutional claim because the court below “summarily dismissed” his application before he could raise it, and, in any event, it involves a pure question of law. Godbey concludes by asking this court to “restore” joint physical and legal custody, and, since “the children apparently do not want to see their father,” to order services that include “alienation” and “reunification” therapy.
Godbey’s arguments misconstrue the applicable law and the proper scope of our review in this appeal. First and foremost, the order from which he appeals merely denied, without prejudice, his application for modification of custody. It did not in any way alter or terminate the preexisting 2003 stipulated order that awarded custody and provided for visitation. Neither the order appealed from, nor the 2003 stipulated order, terminated Godbey’s parental rights or eliminated visitation, as he appears to believe. (See In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 957 [a custody order awarding one parent sole legal and physical custody does not serve to terminate the other parent’s parental rights or due process interest in parenting].) In any event, to the extent Godbey’s arguments challenge the validity of the initial order awarding custody and setting visitation, the 2003 stipulated order is long since final and is not the subject of this appeal.
Similarly, the provisions of Code of Civil Procedure section 473 upon which he evidently relies permit the trial court to set aside a judgment or order taken through mistake, inadvertence, surprise, or excusable neglect, upon a timely motion. (Code Civ. Proc., § 473, subd. (b).) Alternately, the trial court, on an action or motion, may set aside a void judgment or order. (See Code Civ. Proc., § 473, subds. (b) & (d).) We may review a trial court order granting or denying relief under section 473. (See, e.g., Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196, fn. 6 [trial court’s disposition of motion under section 473 is reviewed for abuse of discretion].) There is, however, no such order before us.
As for Godbey’s lengthy recitation of federal and other state decisions in support of his constitutional claim of violation of due process, we observe that he has simply quoted language expressing the general principles concerning parenting as a constitutionally protected liberty interest. None of the authority appears to involve the application of constitutional due process principles to an order denying an application for modification of custody without prejudice, much less to support his contention that applicable California law is vague or otherwise violates constitutional due process. (See, e.g., Stanley v. Illinois (1972) 405 U.S. 645 [holding biological noncustodial father had due process right to hearing before his minor children could be taken from him in dependency hearing]; Parham v. J. R. (1979) 442 U.S. 584 [holding unconstitutional a state law allowing parents to commit their minor children voluntarily to a mental institution].)
To justify an order modifying custody there must generally be a persuasive showing of changed circumstances affecting the child. The change must be substantial-showing material facts and circumstances occurring subsequently that render it essential or expedient for the child’s welfare to make the change. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730; see also In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956.) The burden of showing changed circumstances is on the party seeking modification. (In re Marriage of Carney, supra, 24 Cal.3dat p. 731.)
The lower court has discretion to grant or deny a modification of custody in the first instance. (In re Marriage of Carney, supra, 24 Cal.3d at p. 731.) We are not empowered to review that order de novo, as Godbey requests. Rather, we apply a deferential standard of review to determine whether the court abused its discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)
“If it appears on the face of a[n] application... to... modify a... permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.” (Fam. Code, § 3170, subd. (a), italics added.) Here, we see no error in the court’s failure to refer the custody issue to mediation. The court essentially determined there were no “contested issues” of fact, so as to trigger the requirement for mediation.
We agree with the court below that Godbey’s application contained only conclusory averments regarding Fuller’s interference with his visitation. Moreover, the letter attached to his application, from his therapist, was dated almost four years prior to the hearing on Godbey’s application in August 2010, and indicates it had been submitted to court at that time. To the extent the letter did contain statements of fact, we may reasonably presume the court gave it due consideration at the time it was submitted, and Godbey offered the court no more recent facts indicating a material change in circumstances.
We conclude the court did not abuse its discretion in denying Godbey’s application for a change in custody. In doing so, we emphasize that the order was without prejudice to the filing of another application, should Godbey be able to make the necessary showing of changed circumstances.
II. The Child Support Modification Order
Godbey argues the order modifying his monthly child support payment was in error because Fuller did not submit a complete Income and Expense Declaration-her declaration, submitted using Judicial Council Forms, form FL-150, omitted page two from that form, rendering her information inaccurate. He also asserts the court erroneously failed to consider-with regard to Fuller-the additional income of an annuity payment that he “imputed” to her in his own application. Godbey contends it was error to base support on the fact the children had spent zero percent of their time with him, because the court had not ordered zero percent visitation. He claims the court erred by failing first to refer the matter for mediation on the issue of custody, since, as he argued below, the support determination was dependent on a determination of the “timeshare” he was to have with the children. Indeed, he suggests it was error for the court even to consider his application for modification of child support since his request for such modification hinged on the court’s granting his request for equal physical custody. Godbey additionally claims he is entitled to relief under Family Code section 3691, based on Fuller’s “fraudulent representation” of her financial information. Finally, he argues the child support modification violates his constitutional equal protection rights, because it imposes an “unfair” level of child support, and because child support itself is a burden imposed on “divorced,” but not “married” fathers. He cites Quilloin v. Walcott (1978) 434 U.S. 246, for the “implied” proposition that a divorced father may not “constitutionally be treated differently” than a married father.
This section sets out the “grounds and time limits for an action or motion to set aside a support order.” (Fam. Code, § 3691.)
Godbey’s arguments again misconstrue applicable law to some extent. Family Code section 3691 has no application to this appeal, as it details the grounds and time limits for making a motion to the family law court to set aside a support order. (See Fam. Code, § 3691.) Similarly, we see no violation of constitutional equal protection. Godbey’s only authority for this point held that a biological father, who had never supported or had custody of his child, had no constitutional due process right to oppose the child’s adoption by the stepfather. (See Quilloin v. Walcott, supra, 434 U.S. at p. 255.) The court also rejected an equal protection claim as well, concluding the biological father’s interests were readily distinguishable from those of a divorced father, such that a state could permissibly give a divorced father more veto authority over the adoption of his child. (Id. at pp. 255−256.) That decision has no application in the context of an order modifying child support.
Our review of the order modifying child support is limited to a determination whether the family law court abused its discretion. (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 215.)
We note, initially, that the calculation of child support is very deterministic, based on a detailed formula or guideline that must be followed except in special, specified circumstances. (See Fam. Code, §§ 4052, 4055.) Once Godbey included in his application a request to modify child support, he essentially placed the matter in issue and the court was entitled to consider revising the amount as calculated by the guideline, for example, on the basis of any fluctuation or change in income. (See Fam. Code, § 4064.) On the other hand, the court was not required to consider income that Godbey simply “imputed” to the opposing party in his application, without proof. The page omitted from Fuller’s Income and Expense Declaration essentially called for a listing of income for the preceding 12 months and other assets. (See Judicial Council Form, form FL-150.) Elsewhere in her declaration, Fuller stated she worked for a school district and, thus, received a nine-month pay period each year, and she attached to her declaration four recent pay statements. This information, in our view, was sufficient to support the court’s determination that Fuller’s monthly income was accurate. Moreover, we conclude the court was entitled to consider time the children had spent with Godbey to be zero percent. The guideline calculation calls not for the percentage of time a noncustodial parent is permitted to have visitation with his or her children, but looks to the “approximate percentage of time that the high earner has or will have primary physical responsibility for the children.” (Fam. Code, § 4055, subd. (b)(1)(D).) As we have noted, Godbey’s declaration conceded the children had spent zero time with him.
We conclude the court did not abuse its discretion in modifying Godbey’s amount of child support. In doing so, we emphasize he may seek further modification should his income change or should he begin to exercise the visitation rights set out in the 2003 stipulated order.
III. Motion for Sanctions
During the pendency of this appeal Fuller filed a motion for sanctions seeking an award of attorney fees and costs against Godbey. She claims his appeal is frivolous and without merit and objects to certain defects in his opening brief. (See Code Civ. Proc., § 907; Cal. Rules of Court, rules 8.276, 8.278.) We deferred ruling on the motion until our opinion. After careful consideration, we deny the motion. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Disposition
The orders are affirmed.
We concur: Dondero, J.Banke, J.