Opinion
E050930
08-02-2011
In re the Marriage of WILL W. HICKS, JR. and CORRINE GARBANI. WILL W. HICKS, JR., Appellant, v. CORRINE GARBANI, Respondent.
Will W. Hicks, Jr., in pro. per., for Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. HED017090)
OPINION
APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed.
Will W. Hicks, Jr., in pro. per., for Appellant.
No appearance for Respondent.
Following mediation, Will W. Hicks, Jr., father, and Corrinne Garbani, mother, executed a stipulated child custody and visitation order. The order provided for joint legal and physical custody of the children, but directed that mother's home would be the children's primary residence, with visitation rights awarded to father. Approximately two weeks after that order was filed, father filed an order to show cause (OSC) re modification, seeking a "50/50" child custody arrangement, to provide him with increased contact with the children, in light of the fact he had relocated to a residence within three miles of mother's residence. Following a hearing, the court found that it was in the best interests of the children to maintain the prior orders, but granted father a minimum of one additional midweek visit, and additional visitation time as arranged and agreed mutually between the parents. Father appealed.
Father argues the court erred in finding no change of circumstances, that the refusal to grant him "50/50" time with the children violates the order granting joint legal and physical custody, and contravenes Family Code sections 3020, subdivision (b), 3046, subdivision (a)(1), and the Fourteenth Amendment of the United States Constitution. He also asserts that the court violated Welfare and Institutions Code section 350 by hearing the testimony of the children in chambers and ordering the transcript sealed. We disagree with father's assertions and affirm.
All further statutory references are to the Family Code unless otherwise indicated.
BACKGROUND
On approximately February 4, 2010, father and mother entered into a stipulated agreement for child custody and visitation, following court ordered mediation, which was signed by the court and filed. The order awarded both parents joint legal and physical custody of the two children. Specifically, the joint physical custody order provided that the parents should "share the physical care, custody and control of the child[ren] reasonably between them in such a manner as to insure that the child[ren] maintain[] frequent and continuing contact with both parents," but that mother's home "shall be considered the child[ren]'s primary residence" with the father's home being the children's secondary residence.
Regarding visitation (referred to as "Father's Parenting Time" in the stipulated order), father was awarded visitation on alternate weekends starting at 3:00 p.m. on Friday until 7:00 a.m. on Monday, with midweek visits "by mutual agreement." The agreement further included a holiday schedule.
On February 25, 2010, father filed an OSC to modify the child custody, visitation and support order. In support of his motion, father stated he was seeking to modify the "80/20" custody arrangement to allow for "50/50" physical custody because he had moved to within three miles of mother's home and the children's school.
On April 26, 2010, the trial court heard the matter. Following a recess, the trial court conducted a chambers conference with the children, the transcript for which was sealed. The court concluded that it was in the best interests of the children to maintain the prior orders, although the court did grant father an additional midweek visit on Tuesdays after school until 8:00 p.m., and such other additional visitation time as arranged and agreed mutually by the parents. The court also directed the parents to participate in (and complete by July 31, 2010) a coparenting program, and denied father's request to modify the child support order.
Because the information provided by the children does not affect our decision, we have not unsealed the transcript.
On May 24, 2010, father appealed.
DISCUSSION
Father argues that the trial court erred in denying his request to modify the stipulated order that was filed two weeks prior to his motion. Specifically, he argues that (1) the court erred in finding no change of circumstances; (2) the refusal to grant him "50/50" time with the children violates the order granting joint legal and physical custody; (3) the order contravenes sections 3020, subdivision (b), 3046, subdivision (a)(1), and the Fourteenth Amendment of the United States Constitution; and (4) the court violated Welfare and Institutions Code section 350 by hearing the testimony of the children in chambers and ordering the transcript sealed.
In the trial court, father did not raise any constitutional issues or object to the court's interview of the children in chambers. An appellate court will ordinarily not consider an alleged erroneous ruling where an objection could have been, but was not, raised before the trial court. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 699; In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1558.) A constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make a timely assertion of the right before the tribunal having jurisdiction to determine it. (In re Marriage of Nelson, at p. 1558.) Father's motion in the trial court sought to modify the physical custody arrangement solely on the ground father had relocated to within three miles of the children's (mother's) primary residence. This was the request on which the trial court ruled and is the issue to which we will limit our review.
Father's reference to Welfare and Institutions Code section 350 is inapplicable in any event because the instant proceedings were not conducted in the juvenile court.
1. Standard of Review
The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 948.) Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610.) Under this standard of review, we are required to uphold the ruling if it is correct on any basis. (In re Marriage of Richardson, at p. 948.)
We use this standard notwithstanding the fact mother has not filed a respondent's brief. The burden is always on appellant to show error and the respondent's failure to file a brief does not require automatic reversal, so we will reverse only if prejudicial error is found. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 10411042; see also In re Marriage of Olivarez (1986) 188 Cal.app.3d 336, 338, fn. 1.)
2. Analysis: There Were No Changed Circumstances, No Abuse of Discretion.
Once final custody has been established by judicial decree, modification can only be ordered upon a finding of changed circumstances, in addition to the best interest test. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule providing there is a clear, affirmative indication the parties intended such a result. (Id. at p. 258.) The changed circumstance rule does not apply to alterations in the visitation schedule, which may be modified based on the child's best interest standard. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1080.)
Here, father's OSC requested modification of both the physical custody and visitation orders. On appeal he seeks "50/50 parenting visitation" which we interpret as seeking review of the order maintaining the prior custody arrangement. The trial court increased visitation pursuant to his request, and he does not challenge that portion of the order. We cannot review his claim for "50/50 visitation rights", because he is bound by the nature of relief he sought in the trial court; he cannot change theories on appeal. (9 Witkin, Cal. Proc. (5th ed. 2008) Appeal, § 407, pp. 466-467.) Thus, we must determine if father demonstrated sufficient changed circumstances to warrant a modification of that portion of the joint physical custody order making mother's home the primary residence for the children.
An existing custody order, whether entered pursuant to parental agreement or otherwise, reflects the best interests of the child until it is shown otherwise by changed circumstances. (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 761.) The change of circumstances standard is based on principles of res judicata. (Burchard v. Garay (1986) 42 Cal.3d 531, 535.) This rule preserves the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest, thus fostering the dual goals of judicial economy and protecting stable custody arrangements. (Ibid.; see also Osgood v. Landon (2005) 127 Cal.App.4th 425, 433-434.)
The changed circumstances test requires a threshold showing of detriment before a court may modify an existing final custody order that was previously based upon the child's best interest. (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996.) In other words, after a judicial custody determination, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child's welfare. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.)
Father has not pointed to anything in the record which supports an inference that the existing custody arrangement was detrimental to his children. The original order had only been in effect approximately three weeks before father filed his OSC, and he made no showing that the stipulated arrangement was detrimental to the children. The only change of circumstances cited by father is the fact that he has moved closer to the children's primary residence with the mother. This change of circumstance does not "so affect[] the minor child that modification is essential to the child's welfare." (In re Marriage of Burgess, supra, 13 Cal.4th at p. 37.)
Father relies heavily on several authorities that do not apply to this case. First, he asserts the trial court failed to comply with section 3020, subdivision (b). That statute merely sets forth the legislative findings and declarations regarding the policy of joint physical or legal custody or visitation of children. Because the original order awarded joint legal and physical custody of the children to both parents, and that order has not changed, there was no violation of legislative intent. Father argues that the legislative intent was violated because the trial court refused to enforce a purported mediated parental visitation schedule involving "50/50 visitation rights," his argument is based on a false premise. The stipulated child custody order did not provide for "50/50 visitation rights" so there was no such order to enforce and no violation of the legislative purpose.
Second, father argues the trial court failed to comply with section 3046, governing the effect of a parent's absence or relocation from the family residence as a factor "in determining custody or visitation" in certain circumstances. (§ 3046, subd. (a).) The instant matter was not a proceeding "to determine custody or visitation" because the parties had previously stipulated to an order regarding custody and visitation. Further, father's OSC was grounded on his relocation closer to the children's residence, not upon his relocation away from the family residence, so this statute has no application to the case before us.
Father's remaining arguments were not presented in his OSC nor raised in the oral proceedings in the trial court, so we do not need to discuss them. Father has failed to demonstrate any substantial change of circumstances so affecting the minor children that modification is essential to the child's welfare. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 37.) Therefore, the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed. Because respondent made no appearance on appeal, no costs are awarded.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
King
J.
Miller
J.