Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 07P000852, Clay M. Smith, Judge.
Law Office of Daniel J. Kern and Daniel J. Kern for Plaintiff and Appellant.
Merritt McKeon and Merritt L. McKeon for Defendant and Respondent.
RYLAARSDAM, ACTING P. J.
Brett Gordon, the father of now nine-year-old E.G., appeals from the denial of his order to show cause wherein he sought a change in visitation between him and E.G.’s mother, Annette Cooper (now Villa). The appeal borders on the frivolous and we affirm the order.
FACTS
The facts presented in the record display a dysfunctional relationship between mother and father, which may only serve to harm their son. The parties were not married and, after their son was born, father had no contact with him until he was ordered to pay child support two years after his birth. The parties dispute whether father was told of mother’s pregnancy and the birth of his son. In January 2008, they stipulated to a judgment, which incorporated the recommendations of the Family Court Services investigation report. The judgment provided for joint legal and physical custody and for E.G. to be with his father on the first, third, and fifth weekend of every month and every Sunday. In addition the parties stipulated that E.G. would have a dinner visit with father each week and that during vacations the parties would share E.G. in alternating two-week periods. Holidays and special days were to be arranged by the parties. In this as in all subsequent proceedings, father was represented by counsel while mother appeared in pro. per.
Four months later in May, father filed an order to show cause to change custody and visitation, seeking full legal and physical custody with mother to have visitation on alternate weekends. The record does not disclose that a hearing was held on this order to show cause. But in August father filed a new order to show cause again seeking a change in custody and visitation. His ex parte application was “denied pending hearing.” (Capitalization omitted.) Mother filed a responsive declaration seeking an increase in child support, which was then $350 per month. At the time of the hearing, the parties entered into a stipulation providing for E.G. to be with mother from Sunday at 7:00 p.m. through Thursdays at 4:00 p.m. and with father the remaining time.
In January 2009, the court issued an order reducing child support to mother to $91 per month. The record is unclear but it appears this was based on the August 2008 order to show cause. The reduction in child support was ordered while mother was unable to attend and her request for a continuance had been denied.
Next, in March 2009, father filed another order to show cause seeking a modification of visitation. It also requested that E.G. visit mother only on alternate weekends and for three and half hours on Wednesday evening. Both parties testified.
Father testified to the present visitation arrangement, where E.G. spends Thursday afternoon through Sunday evening with father and the remaining time with mother. He requested this be changed so that mother would only see E.G. every other weekend. He claimed mother had failed to take E.G. to the doctor, mother provides an unstable environment by moving from motel to motel, mother cannot get E.G. to school on time, his clothes are dirty, he is tired and hungry, and he sleeps in a room with his mother and stepfather or with his two stepsisters who are six or seven and ten. Father stated he and his wife live in a one-bedroom condo and E.G. sleeps in the family room.
Mother testified that from late February through March, she and her husband suffered adverse conditions because of her husband’s illness. During this period, they received help from a charitable organization that placed them in motels; they also received assistance from their church. At the time of the hearing she and the family were living in a two-bedroom apartment. E.G. has his own bed in the bedroom she shares with her husband. Because of the move, the children have a long bus ride but she planned to move them to a nearby school after the end of the school year. She acknowledged that E.G. was a “picky eater.”
At the conclusion of the hearing, the court denied the order to show cause “as [father] has failed to show by a preponderance of evidence a material change of circumstance.” In announcing the ruling, the court expressed concerns about some aspects of the case. It called the parties’ attention to the judgment that had been entered after a full custody investigation a little over a year earlier, stating it is inappropriate to relitigate the issue every few months, and noted that the law militates against continuing attempts to change the terms of the judgment absent a material change of circumstances. The court observed that, in this short time, father had been back to court three times to seek changes in the custody and visitation arrangements.
The court remarked that mother and her husband had gone through a difficult period because of husband’s disability but that mother should not lose custody of her child because of her poverty. The court also stated that continuity and stability in E.G.’s life were very important and father’s actions were the antithesis of such continuity and stability. E.G. was happy in his family environment with his stepsisters and father failed to show that it would be in the child’s best interest to once again change his living arrangements. The court suggested that mother seek the services of an attorney even though, economically, this would be difficult and that, if she had been properly represented, she would not be in a situation where E.G. was never with her on weekends. The court then told the parents that they had a duty to co-parent and cited examples of their failure to do so.
DISCUSSION
1. Absent a statement of decision, the order is presumed to be correct.
A written statement of decision is only required if requested in a timely manner by one of the parties. (Code Civ. Proc., § 632.) As mother points out, the parties did not make such a request. The oral statement made by the court in connection with its ruling does not constitute a statutory statement of decision. (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 129.) “Where, as here, no statement of decision was requested, all intendments will favor the trial court’s ruling and it will be presumed on appeal that the trial court found all facts necessary to support the judgment.” (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 649, fn. omitted.)
2. The record does not disclose error.
Father first claims the court failed to consider all of the evidence. In doing so, he gives us a one-sided recital of his own testimony and apparently contends the court was mandated to recite specific items of evidence in making its ruling. Father fails to support this contention with any authority and there is no such requirement. As a matter of fact, the rather lengthy oral statement makes it clear that the court carefully considered all aspects of the case.
Father next asserts the court misapplied the “change of circumstance” standard, citing Montenegro v. Diaz (2001) 26 Cal.4th 249. Father quotes from that case to the effect that ‘“[t]he changed circumstance rule is not a different test devised to supplant the statutory test, but an adjunct to the best-interest test.’” (Id. at p. 256.) He omits the remainder of the quotation: ‘“It [i.e., the changed circumstance rule] provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.’” (Ibid.) And in Montenegro, the prior orders were not final orders, as they were here. Father’s argument that because the judgment was entered into by stipulation it was somehow not final is unsupported by authority and contrary to law. The court properly applied the changed circumstances rule.
Again without citing any authority, father argues “[t]he [t]rial [c]ourt failed to exercise discretion impartially by having a fixed opinion against a particular type of custody arrangement which colored the court’s consideration regarding the evidence presented.” (Capitalization and bold omitted.) He takes issue with the court’s statements equating E.G.’s relationship with his stepsisters as if they were siblings, which father finds a “strange statement.” E.G. is in a family setting with his mother, her husband, and his two stepsisters; it was hardly incumbent on the court to deprecate these relationships because E.G. and the sisters are not blood relatives. The other statement father finds to be “strange” was the court’s view that it was undesirable that E.G. was never with his mother on weekends. We fail to see what was strange about this common sense observation. And it certainly does not call for a reversal of the order.
In fact, we can only commend Judge Smith for the care and time he took to hear both parties and for his consideration of all aspects of the case.
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: O’LEARY, J. IKOLA, J.