Opinion
F083830
05-12-2023
In re the Marriage of H.K. and N.K. v. N.K., Appellant. H.K., Respondent,
Law Office of Michelle Jorgensen, Michelle Jorgensen for Appellant. Sagaser, Watkins &Wieland, Christopher M. Rusca for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, No. MFL015443 Brian Austin, Judge.
Law Office of Michelle Jorgensen, Michelle Jorgensen for Appellant.
Sagaser, Watkins &Wieland, Christopher M. Rusca for Respondent.
OPINION
SMITH, J.
In this family law dissolution matter, H.K. (mother) and N.K. (father) litigated the issue of custody of their two minor sons, C.K. and B.K. Father sought an order under which the parents would share physical custody on a 50/50 basis, while mother sought primary physical custody with visitation for father. After a contested hearing on the issue of custody, the family court entered a permanent custody order. The court ordered that the children would primarily reside with mother and visit with father. Father appealed. We affirm.
We refer to mother and father collectively as "the parents."
PROCEDURAL HISTORY
Father and mother were in a relationship (including being married) for 11 years before separating. Mother initiated the underlying matter by filing on July 3, 2019, in the Madera County Superior Court, a petition for dissolution of marriage, with minor children. Since children were involved, the family court made various custody orders pursuant to the petition. This appeal is from the court's permanent custody order. We will summarize the procedural history with respect to the trial court's custody orders as relevant to the issues on appeal.
A. Proceedings Leading to the Family Court's Initial, Temporary Custody Order of April 23, 2021
Upon separating in November 2018, the parents reached an informal, temporary custody agreement, pursuant to which the children spent time with both parents.
After initiating the instant dissolution of marriage action on July 3, 2019, mother immediately filed, on July 11, 2019, a request for order (RFO) for custody and visitation. Pursuant to the RFO, the parents were referred on August 20, 2019, to mediation before Family Court Services. After meeting with the parents, the mediator prepared for the family court, a report with a recommended temporary custody order, dated September 23, 2019. The mediator's report stated that, during a "conjoint mediation session," the parents agreed to joint legal custody and joint physical custody of the children, as well as an "agreed upon parenting plan." The mediator recommended the parents' agreement "should be adopted as the Order of the Court," with the caveat that the ensuing order was "not intended to be a permanent order of the court."
Paragraph 3.3 of the report spelled out the mediator's specific recommendation as to physical custody: "The children shall reside with the parents on an alternating week schedule of visitation with exchanges to occur every Sunday at 6:00 p.m. Each week, the children shall have a midweek visit with the noncustodial parent from Tuesday at 6:00 p.m. until Thursday at 6:00 p.m. This schedule will ensure the children have frequent and continuing contact with both parents on a 2-2-3 schedule of visitation." The mediator's recommendation amounted to 50/50 custody time for the parents; the parents informally adopted the mediator's recommendation until it could be ratified by the court.
A "Review of Reports Hearing" was held on October 24, 2019, followed by a status conference on October 30, 2019, and a short cause evidentiary hearing on child custody on December 6, 2019. At the beginning of the short cause hearing, the family court stated: "This matter is on regarding a CCRC [Child Custody Recommending Counselor's recommendation] dated September 23rd, 2019. We had some temporary visitation agreements last time. Are we proceeding on [the CCRC] or do we have an agreement?" The parties confirmed a hearing was necessary. Mother's counsel noted: "[O]ur position [is] that we're requesting ... for the father to have visitation on the first and third weekends from Friday out of school to Sunday at 6:00 p.m., and also every Wednesday from the time school is out until 8:00 p.m." Father's counsel, for his part, stated: "At the time of separation the parties, informally, had a 50/50 plan. They've, since the last hearing, been also doing a 50/50 plan; it's worked. Father has equal bond with the children as mom does, flexible work hours ... our position is there's no reason why this should be anything other than a 50/50 plan."
The reporter's transcript indicates the short cause hearing on custody was held on January 6, 2019, but that appears to be a typographical error as the register of actions lists the hearing as occurring on December 6, 2019; other indications in the record also suggest an initial, short cause hearing on custody was held on December 6, 2019.
Father, mother, and the paternal grandfather testified at the hearing. At the conclusion of the hearing, the family court issued a custody order. The court ordered joint legal custody but as to physical custody, the court ordered," 'primary custody with mother.'" The court further specified," 'father shall have the children on the first, third, and fifth weekends, beginning on Friday at 9:00 a.m. and ending Sunday at 6:00 pm.,'" and for" 'a midweek visit every Tuesday from 3:00 p.m. to 7:00 p.m.'" In addition, the court ordered that" 'father shall attend drug [and] alcohol counseling at least once a week for three months and complete an anger management course.'" The court concluded: "Then, I want to come back in six months for review. I want to see where dad's at, then I will look at increasing the time." The court set a review hearing on June 15, 2020. The court's comments as well as the scheduled review hearing indicated the custody order issued by the court at the conclusion of the short cause hearing was an interim custody order, not a final post-hearing custody order.
The review hearing proceeded as scheduled on June 15, 2020. Mother's counsel noted at the review hearing: "[W]e want to keep the existing custody and visitation order in place." Father's counsel countered: "I came here today to say that my client complied with everything that the Court ordered him to do and that the mediator's report should be adopted as the order of the Court . . . and that my client should be back to having a two, [two], [three], custody arrangement." Mother agreed father had substantially complied with the substance abuse counseling and anger management classes previously ordered by the court.
The court stated: "So then we have that, that he complied. So then if we did a review that he complied, that means I'm not going to necessarily order him to do anything else, and so we find he has complied. Then the question is where do we go from here? And I don't think I would necessarily go back to 50/50, but if he complied, I do believe in reward. I do believe in doing something positive, you know, [it] should equate to more time. I'm not inclined to totally change what is here, but is there a suggestion?" After discussion with the parties, the court changed father's midweek visit (which was set for Tuesdays from 3:00 p.m. to 7:00 p.m.) to an overnight visit (Thursday at 9 a.m. to Friday at 9:00 a.m.).
The court's written order emanating from the December 6, 2019 evidentiary hearing and June 15, 2020 review hearing was filed on April 23, 2021. The order expressly specified that "[t]his order is not intended to be a permanent order of the [court]." (Emphasis in original.) Pursuant to the order, the parents had joint legal custody and joint physical custody of both children, but mother had primary physical custody (i.e., the children would reside with mother). More specifically, as to physical custody, the order provided: "The parents shall have joint physical custody . . . which means each of the parents shall have significant periods of physical custody. The parents shall share joint physical custody in a way that assures the children have frequent and continuing contact with both parents subject to the following parenting plan. The children shall primarily reside with the mother and visit with the father." The order further specified, in paragraph 3.3: "The children shall visit the Father every 1st, 3rd, and 5th weekends from Friday at 9:00 a.m. to Sunday at 6:00 p.m. and every Thursday at 9:00 a.m. to Friday at 9:00 a.m." The order split most major holidays/celebrations between mother and father by denoting the children would be with father in odd-numbered years and with mother in even-numbered years. However, the order specified the children would be with mother every Easter Sunday, Halloween, and Christmas Day.
It appears the court did not view the short cause hearing as a full trial at which the "court could consider all of the evidence bearing on the ultimate best interest of the child." (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1488.)
B. Proceedings Leading to the Court's Permanent Custody Order of January 11, 2022
(i) Father's Request for Order (RFO) to Modify Custody Order Filed on April 23, 2021
On June 2, 2021, father filed an RFO regarding modification of child custody and visitation. In the RFO, father sought to maintain the existing custody order to the extent it specified the parents had joint legal custody and joint physical custody but requested the court to grant primary physical custody to father, so that the children would reside with father.
Among other supporting papers, the RFO included father's statement as to why changing primary physical custody to father would be in the best interests of the children: "My sons are suffering emotionally and physically at mother's residence. C.K. recently disclosed that his stepbrother pulled him into a room, sat on him (held him down) and forced him to watch gay porn. He just disclosed this to my niece. We contacted the police for assistance and now he is mad at me because his stepbrother is going to go to military school now. Mother turns everything around to make me the bad guy when my son is being abused! This same stepbrother shot [C.K.] repeatedly with a BB gun approximately 6 months ago but he begged us not to say anything."
In a declaration attached to the RFO, father further specified: "Based on the concerns I am bringing to the attention of the court in my Request for Order, I request that the children not have overnight visitation at Mother's house until all safety concerns are addressed and remedied. After such time, I request a Friday-Friday, week on, week off schedule with the boys. I believe that this would be in their best interest. While there is only a temporary order in place and, therefore, a change in circumstances is not required for a modification, there does exist sufficient change in circumstances at mother's residence that does warrant a modification."
Finally, father requested a modification of the then-existing, temporary custody order with respect to holidays. Father stated in his declaration: "The current holiday schedule was supposed to be a temporary schedule and it provides Mother with nearly all holidays with the children. I have requested that she mutually agree to modify the schedule between us, but she has refused. I request that I be allowed to have all holidays that I have missed with the children for the last two years for the next twelve months and then we should go to a schedule that provides us both with equal time on the holidays or alternating holidays."
(ii) Second Mediation and the Second Mediator's Report and Recommen dation
Pursuant to father's June 2, 2021 RFO, on June 23, 2021, the court referred the parties to mediation before Family Court Services. The mediator held "separate telephonic mediation sessions" with the parents and interviewed the children. The mediator submitted a written report and recommendation, dated October 7, 2021, to the family court. In his report, the mediator recommended "the parents participate in coparenting classes." The mediator further noted: "It appears that per the minute order dated 6/15/20, the father has addressed concerns that were present when the original custody orders were made. Considering the wishes of the children and the father's compliance with the [prior] Court Order, it appears there has been a change in circumstance. This officer is recommending in favor of the father's request for equal parenting time." The mediator recommended the existing custody order be modified as follows: "Paragraph 3.3 shall be deleted and replaced with the following: The children shall reside with the parents on an alternating week basis with exchanges to occur every Monday at school drop-off (8:00 a.m. if there is no school)."
The mediator further noted in his report: "The father also requested a more equitable holiday schedule. This officer reviewed the holiday schedule and discovered three holidays that did not appear equitable (Easter, Halloween, and Christmas). This officer is including recommended modifications to those three holidays." The mediator recommended the children spend Easter Sunday with father in even numbered years and with mother in odd numbered years. As to Halloween, the mediator recommended the children spend Halloween with mother in even numbered years and with father in odd numbered years. The mediator also recommended an alternating schedule as to Christmas Eve and Christmas Day.
(iii) Pending a Contested Hearing, the Court Temporarily Adopted the Mediator's Recommendation
The court held a "Review of Reports Hearing," on October 12, 2021, "to review the CCRC report." At the beginning of the hearing, the court stated: "I'm in possession of a CCRC report from the mediator, October 7th, 2021." Mother's counsel said: "My client disagrees with it and would like to have it set for a hearing." Father's counsel said: "Your Honor, we would like to adopt it as the order of the Court." The court responded: "All right. Then we'll set this for a hearing."
Father's counsel requested that, pending the contested hearing, the court "temporarily adopt[]" the mediator's recommendation. The court responded: "Well, I'm willing to adopt it for now. I'm going to say that I don't know if I would agree with the mediator or not. I guess I'll hear testimony, and then you can tell me what I need to know and don't need to know, I guess - your positions. [¶ ] But I do want to adopt it temporarily, because I like to see - there may be things that the both of you find work and don't work. So it just seems to me like that's the best way to start out." The court adopted the mediator's proposed order pending the contested hearing, which was set for January 11, 2022. In temporarily adopting the mediator's proposed order pending the contested hearing, the court appeared to signal its prior custody order was a temporary order as expressly stated therein.
(iv) Contested Hearing Held on January 11, 2022, Regarding Custody
The full contested hearing on custody occurred as scheduled on January 11, 2022. At the beginning of the hearing, the court stated: "This matter is on regarding a CCRC report. I believe it is dated October 7, 2021. It's - mother's the one contesting the report and recommendation. We are a recommending county and that means that mother would bear the burden." Mother's counsel proceeded first.
Mother's Testimony
Mother testified on her own behalf. Mother and father had two children: C.K., 13, and B.K., almost six. Mother described the existing custody schedule as "Monday to Monday, week on/week off." Before the existing order, father had the children on alternating weekends, with a midweek visit on Thursdays. Mother stated the prior order provided more stability for the children because "during the week they [were mostly] in one place."
Mother said the "week on/week off" schedule was not working for the children. She testified: "[C.K.] has said that when the week on/week off first started, he came home and was crying and said I told the guy-he's talking about the mediator-that I wanted to spend time with my dad, but I absolutely didn't want week on/week off." As for B.K., mother said he was "having night terrors," and had asked, "It's okay to have two homes, right?" Mother added: "Since this started, [B.K.] is having night terrors and has started sucking his thumb, which he had never done before. And he has expressed that he loves to go to his dad's, but he really misses being at home, is what he says." B.K. had not previously spent this much time away from mother.
Mother testified that father did not communicate with her other than through a "parent app." Both children had ongoing medical problems. C.K. had an "inactive bowel" and an "ileostomy," along with Richard's disease, hemochromatosis, and Ehlers-Danlos Syndrome. B.K. had "ulcerative colitis or Crohn's in his colon," and Ehlers- Danlos Syndrome. Information about doctor visits for the children was relayed to father through the parent app and an online portal used by the doctors. Mother explained: "[B]efore this, [Father] had never, even when we lived together, attended doctors appointments or had interaction with the doctors. And now he's gotten to the point where he has taken over the doctor[s'] appointments and is purposely scheduling them only on his weeks, where before when I had them, since it's specialists, I took whatever appointment was available, whether it was his time or mine." Mother was "currently unemployed" and had "the ability to stay home with [the] children." Mother drove the children "to and from school."
As to her interactions with father, mother said: "Most any interaction we have is followed up with some sort of accusation or lie about any interaction that we have. And, typically, any, like, emailing that goes on is a negative, like some sort of harassment or an attack on my character ... just strictly about somehow how I'm failing as a mother." Mother testified that father would question the children to get facts regarding mother. Mother noted father had stopped her from talking to her children at school during his custodial week (mother's two stepchildren attended the same schools as C.K. and B.K.).
B.K. shared a room with his 10-year-old stepsister at mother's house. Previously C.K. and B.K. shared a room; but C.K. had requested his own room once he turned 13. Mother testified the children were "both doing well" at school.
Mother said she did not drink much. Father's counsel asked mother: "So, if father requested that neither of you consume alcohol while you have the children, would you object to that then?" Mother replied: "I wouldn't have an objection in that I don't have a problem with alcohol. However[,] if we were to go to a dinner party and I was to be able to have a glass of wine and I'm not driving and I don't have an issue with alcohol, I don't see why I shouldn't be able to have a glass of wine at dinner. I'm 40 years old." Father's counsel asked mother: "Do you have a problem with [father] having a drink while he has the children?" Mother answered: "He was the one that had to do the drug and alcohol courses before. So, he's a grown man. If he doesn't have a substance abuse problem, if he's not overly drinking and getting behind the wheel, like he got a DUI before - if he's not doing that, then that's his prerogative." Father's counsel stated: "Okay. The current order states that he can't drink at all. So, you'd be in agreement to have the same provision apply to both of you; that you are both allowed to drink, as long as it's below the legal limit?" Mother responded: "Yes."
Father's counsel asked mother: "There was an incident where your stepson ... [¶ ] allegedly held down [C.K.] and made him watch pornography. [¶ ] Were you aware of that incident?" Mother replied: "I was not aware of it. And we have a police report that states that there were no findings in the entire story. Since this came out, [C.K.] has admitted to a bit more of what actually happened in that moment. I was not [made] aware of it until at least two or three months after the incident."
Mother also testified that all "three boys" in her household had BB guns and both C.K. and her stepson had been shot while playing with the BB guns. As to [C.K.] getting shot, mother learned of it when father "found something on [C.K.'s] hand and [C.K.] told him it was a BB gun wound." C.K. had not mentioned it to mother.
Mother further testified about an incident that occurred on December 26, 2021, at her mom's house, when mother got into a yelling match with her sister. Mother was loading up her car when C.K. aggravated her by "popping off"; as mother shouted at C.K., she accidentally hit her niece with a piece of luggage. Mother's niece screamed that mother had hit her, which led to a big argument between mother and mother's sister. B.K. "was nervous about that kind of yelling" as he had not previously been exposed to an argument between mother and her sister. Mother had a bellini and part of a gin and tonic that day. After the argument, the children stayed overnight with their grandmother (mother's mom).
Mother received an email from father's lawyer about this incident, which fact indicated that father had learned about the incident from the children. Mother said the email was indicative of the fact that father constantly questioned the children about "all of the goings-on" at mother's house Mother noted: "It's constant, where they come home and [C.K.] has called it interrogation Thursday."
Father's Testimony
Father was employed full time but had a very flexible schedule. Father was questioned about physical altercations he had with his own dad. Father denied ever being in a physical altercation with his dad, but when pressed, answered: "We've had a verbal altercation and there was no physical violence." Father also addressed the incident involving the big argument between mother and her sister. Father noted: "[The children] were open and eager to tell me because it was traumatizing to them and they were fearful. My youngest, [B.K.], came to me in tears and explained to me in great detail what happened."
At a prior hearing, father's dad had testified that he had been injured in a physical altercation with father in Chico, whereby he "required some stitches on [his] ear." Father's dad had also testified: "[Father] and I got into a wrestling match, which I'm not proud of, but I was getting punched a number of times."
Father acknowledged that when he and mother were together, mother took care of most of C.K.'s medical appointments. Mother had been taking B.K. to his appointments as well. Father testified: "[During] COVID, you could only have one parent go in. [Mother] would control everything. She would contact the hospital, set up the appointment on her time and not want me or allow me to be there. So, that's what I'm fighting for, is to have the right to be there. I want to be 100 percent involved in the kids' medical. Prior to what little access I had, I want to have more. I want to just be there in every aspect of their life for them."
Regarding the scheduling of the children's medical appointments, father testified: "So, I only scheduled one appointment during my time, and that was when I'd taken [a child] to his prior appointment [and] they want to schedule the next appointment. So I can't speak on [mother's] behalf or her schedule, so I would have scheduled it during my time. And, then, I messaged her in the Talking Parents app explaining that, and trying to have that open communication regarding medical, which it seems to be very difficult for [mother]." Father said he had no intention of excluding mother from appointments: "I want the kids to have access to both parents and feel comfortable in both homes. That has always been my goal."
Father testified that mother had not mentioned to him that B.K. was having night terrors. B.K. had his own room at father's house and slept well there. Father said it was "[t]otally inappropriate" for B.K. to share a room with his 10-year-old stepsister. Father had contacted the police regarding an incident where C.K. was pinned down and forced to watch child porn. Father explained: "I'm a mandatory reporter, so if I hear any kind of abuse or see anything, I must. And, of course, I would." However, father did not recall talking to mother about this incident.
Father was asked whether it was hard on the children to go a week without seeing the noncustodial parent. Father answered: "It's hard, probably, I mean on everybody. But the stability at the homes, it's easier on the kids to go week on/week off, because they're able to settle in and relax and get used to the home rules and everything at one household. And at the other household they can do the same." Father noted the children had been happy since the week on/week off order had been in place and had expressed that they liked the order. Father got the children on Mondays. C.K. had an IEP at school. When asked about C.K.'s homework, father said: "Every day we do homework. Monday we do make-up work he missed while on the week with his mother, regularly."
Father noted C.K.'s grades were going up because of father's focus on assisting him with his schoolwork and homework.
Father had no problem abstaining from alcohol when the children were in his care and asked that mother do the same.
Father agreed with the mediator's recommendation that the parents share custody on a week on/week off schedule. Father said he would request only one change to the mediator's recommendation: "I would like the mother not to be able to drink while the kids are in her custody."
Testimony of P.D.
P.D. was mother's husband. P.D. was present at a get-together at his mother-inlaw's house on December 26, 2021. The people present played a game that involved drawing pictures; the children were around. Father's counsel asked P.D.: "And do you recall drawing a penis during that game?" P.D. responded: "Well, it was a Christmas tree, but it was taken in a different light; that is correct." P.D.'s mother-in-law was a little upset about the drawing.
During mother's testimony, she was asked: "So, how did you feel about your husband drawing a penis in front of [C.K.]?" Mother responded: "[C.K.] draws penises all the time. So, on everything. He's a 13-year-old boy. But the game, the way the game is, you're supposed to put your pen down and draw what my mom is describing. And my husband's ended up looking like a penis and it was not something my mom found funny. All the kids were laughing and I just kind of was like - I didn't actually even say anything, I don't believe, about that."
Regarding the argument between mother and her sister, P.D. testified that occurred after P.D. had gone home. P.D. testified: "I was not around for any of that. I was actually - I was actually called by my son [who] said that I needed to come back over there." P.D. added: "I went over to [my mother-in-law's house], picked [mother] up, and I personally took her home." Mother was not overly intoxicated at that get-together.
When father's counsel asked P.D. questions about mother's drinking, the court intervened and said: "Let me tell you this right now: There's an order in place. The order in place is in place. Dad didn't like it. Too bad, it's in place. The order is in place and it says they can drink and they cannot be over .08, period. [¶ ] If dad's trying to show me that my order is wrong in the past, well, that's fine, he can do that, but that order is in place . . . I understand dad thinks he knows what the best interest of the child is and mom thinks she knows, but the decision is mine."
(v) The Family Court's Post-Hearing Permanent Custody Order
At the conclusion of the January 11, 2022 contested hearing, mother's counsel asked the court to reinstate the custody order dated April 23, 2021. Counsel stated: "And it says at 3.3, the children shall visit the father first, third, and fifth weekends actually, from Friday at 9:00 a.m. to Sunday at 6:00 p.m., and every Thursday from 9:00 a.m. to Friday at 9:00 a.m. First weekend is defined by the first." Father's counsel countered: "[W]e're requesting that the Court continue to keep the current order that it made at the last hearing in October in place, which was based on the report and recommendation of the . . . mediator."
The court pronounced its order:
"Well, the current order was because the mediator made the recommendation. And I somewhat - it doesn't always work, but I have a policy where I like to try it to see how it works, see what works. We've had the testimony. And if we're done with testimony - you know, I have some concerns.
"The only time I see when week on/week off works is when the parties work together. Dad is very hostile toward mom. He thinks everything she's doing is wrong. He doesn't like her drinking alcohol. I don't know, I think [the] previous order says dad cannot drink.
"I think any parent can drink, but they have to be responsible. So, under .08, I don't know how we could even enforce something like that. You can't overdo your drinking. If you get a DUI, yes, that's overdoing it. If it's causing you not to be able to parent, that's an issue.
"I have some concerns about the way to work together. And I just don't think these parties can work well enough together to be week on/week off. They both say almost the exact opposite. Dad is a little more 16 hostile. He doesn't like mom drinking, though she says she drinks a glass of wine with her meal. There's been nothing to show
"These children, they seem like they do have some special needs medically. One has an IEP, so some issues like that. So, it's how do I determine what is the best interest of the child? And I don't agree with the mediator's report. I don't think it's going to work. It's not working.
"I'm inclined to go back to the order of April 23rd, 2021. And based on the evidence, that's what I'm going to do. All right. Thank you."
The court noted its order was a permanent custody order. The written order after hearing does not appear to be in the record on appeal (nor have the parties cited a written posthearing custody order).
DISCUSSION
I. The January 11, 2022 Permanent Custody Order Did Not Represent an Abuse of Discretion
Father's brief sums up the issue on appeal as follows:
"The facts here show two parents that want to have primary custody of their children. Each party testified as to the medical issues of the two children, concerns regarding substance abuse of the parents, allegations of alienation and incidents of violence. The trial court found [mother] more credible, found [father] to be hostile, and deprived [father] of the joint custody of his children. Did the trial court abuse its discretion, based upon the evidence, in finding that it was in the best interest of the children to reside primarily with [mother]?"
In contrast to this statement, father's underlying RFO acknowledged that the April 23, 2021 order-which the court adopted as the permanent custody order at the January 11, 2022 contested hearing-in fact awarded joint legal custody and joint physical custody to the parents, with mother having primary physical custody.
Father further contends: "[I]t is clear that there was an abuse of discretion by the court because, in light of all the evidence, no judge could reasonably have given [mother] primary custody of the children."
A. Applicable Legal Standards
"' "An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion." '" (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 111-112; see Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 [custody and visitation orders are subject to the" 'deferential abuse of discretion test'" and must be upheld if" 'correct on any basis, regardless of whether such basis was actually invoked' "].) Generally, a trial court abuses its discretion "only if there is no reasonable basis upon which the court could conclude that its decision advanced the best interests of the child." (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610.)
" '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.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham); Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.) To establish an abuse of discretion, the appellant must demonstrate that the court exceeded the bounds of reason. It is not enough to argue that a different order would also have been within the range of reason. (Denham, at p. 566.) And it is a "settled rule of appellate review [that] a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record." (People v. Davis (1996) 50 Cal.App.4th 169, 172.)
In evaluating the factual basis for an exercise of discretion, we also give broad deference to the trial judge. (Rich v. Thatcher, supra, 200 Cal.App.4th at p. 1182.) The trial court's factual findings must be upheld if supported by substantial evidence. (See, e.g., Osgood v. Landon (2005) 127 Cal.App.4th 425, 435-436; In re Marriage of Edlund &Hales (1998) 66 Cal.App.4th 1454, 1473-1474.)
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The court ... ha[s] 'the widest discretion to choose a parenting plan that is in the best interest of the child.'" (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255, fn. omitted; see Fam. Code,§ 3040, subd. (e).) The "best interests of [the] child[]" includes the child's "health, safety, and welfare." (§ 3020, subds. (a), (c).) We must uphold a court's custody order if it can be "reasonably concluded that the order ... advance[s] the 'best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
Undesignated statutory references are to the Family Code.
In short,"' "[a]n appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge's discretion and not that of the appellate court which must control." '" (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.)
B. Analysis: No Abuse of Discretion in Making Custody Determination
Preliminarily, we note the record does not show that father requested a statement of decision in the family court and no statement of decision is included in the record on appeal. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) In order to avoid implied findings in favor of the judgment, an appealing party must obtain a statement of decision pursuant to Code of Civil Procedure sections 632 and 634. (Arceneaux, supra, at pp. 1133-1134; see § 3022.3 [providing for statement of decision in custody determinations].) Given the lack of a statement of decision here, all presumptions, intendments, and implied findings will militate in support of the family court's custody determination. We must affirm if the trial court could reasonably have concluded the order in question advanced the best interests of the children. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.)
Father's brief states "the court correctly applied the 'best interest standard' versus 'change in circumstance' . . . in rendering its final judgment on child custody and visitation because all prior custody orders were temporary." Mother contends in her brief that the custody order made by the trial court at the June 15, 2020 review hearing and filed as a written order on April 23, 2021, was a permanent custody order and therefore the court should have applied the "substantial change of circumstances" standard in making its custody determination following the January 11, 2022 contested hearing. Mother's argument is not persuasive because she does not address the fact the court's written April 23, 2021 custody order expressly stated it was not intended to be a permanent order. In any event, mother acknowledges that any error as to the applicable legal standard was "harmless error insofar as the trial court ultimately correctly exercised its discretion, gave the evidence the weight the court deemed proper, and issued a ruling that was not an abuse of discretion." In light of the parties' positions, we will assume, without deciding, that the family court was correct in applying the "best interest of the children" standard in making its January 11, 2022 custody determination.
In making a custody determination, the trial court has very broad discretion, and considers all the circumstances bearing on the best interest of the children, including the specific factors set forth in section 3011 (e.g., inter alia, the health, safety, and welfare of the child). (See In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32.) It bears mention that the mediator did not testify at the contested hearing; nor was the mediator's report or any other exhibit entered into evidence. Accordingly, the only evidence admitted in the matter was the testimony of the three lay witnesses (mother, father, and mother's husband) who took the witness stand. Importantly, assessing the credibility and weight of the evidence is the province of the trial court, not the appellate court. (Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965 [the trial court, as the trier of fact, is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 957-958 [on appeal, we may not reweigh the evidence or evaluate the credibility of witnesses].)
Mother testified that the week on/week off custody schedule that the family court had ordered on a trial basis was causing anxiety for the children and destabilizing them. Mother stated the children were happier when they were mostly "in one place" during the week. B.K. was not accustomed to spending long periods away from mother, and the week on/week off schedule had caused him to have night terrors and to start sucking his thumb. In addition, both parties testified that mother had historically attended to the children's medical needs and taken them to their medical appointments. Mother was also not working and was available to stay with the children after school and attend to their medical needs. (See In re Marriage of Burgess, supra, 13 Cal.4th 25 at pp. 32-33 [in custody determinations, an important consideration is the "harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker"].)
Mother testified that father had prohibited her from talking to the children at school during noncustodial weeks (mother would be at the children's schools because her stepchildren attended the same schools); Father did not deny this during his testimony. Father testified that he called the police regarding the incident involving C.K. and his stepbrother because the stepbrother had forced C.K. to view porn, but father did not bother to talk to mother about the incident. Mother did not hear of the incident until some months afterwards. Mother testified that communicating with father was extremely difficult and father spared no opportunity to find fault with her parenting. Mother also testified that father would interrogate the children regarding happenings during mother's custodial time. Father acknowledges in his opening brief that the court found mother more credible than father.
After the contested hearing concluded, the family court observed: "The only time I see when week on/week off works is when the parties work together. Dad is very hostile toward mom. He thinks everything she's doing is wrong. He doesn't like her drinking alcohol." The court's finding regarding father's hostility towards mother was supported by substantial evidence (specifically, mother's testimony to the effect that father treated her with hostility), and the court was entitled to rely thereon in making its custody determination. (See In re Caden C. (2021) 11 Cal.5th 614, 640 ["In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' "].)
We are not persuaded by father's arguments that the family court's custody order represented an abuse of discretion. Father attacks the custody determination as undermining the children's health, safety, and welfare, given evidence regarding the gay porn or child porn incident, the use of BB guns by the children at mother's house, and the fact that mother's husband drew a penis-like image as part of a game mother's family played during a holiday gathering. However, the evidence showed father did not even bother to tell mother about the porn incident; mother found out about it well after the fact; and a police investigation into the incident resulted in no findings. As for the BB gun use, there was no evidence the boys regularly misused the BB guns. Finally, the penislike image drawn by mother's husband was in fact a drawing of a Christmas tree.
Furthermore, "[r]eview for abuse of discretion" is not focused "primarily on the evidence," but, rather, a court abuses its discretion only when it has" '" 'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (In re Caden C., supra, 11 Cal.5th at p. 641.) Here, we cannot say the family court's decision was arbitrary, capricious, or patently absurd. (Ibid. [in reviewing for abuse of discretion, appellate courts" 'should interfere only" 'if ... under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did'"' "].) Accordingly, we affirm the trial court's custody determination.
C. Miscellaneous Points
At the conclusion of the January 11, 2022 contested hearing, the trial court adopted the April 23, 2021 custody order. That order contained the following provision at paragraph 5.7: "The father shall abstain from the use of and the mother shall abstain from the abuse of alcohol and marijuana 24 hours prior to and while the children are with them. Abuse of alcohol shall be defined as drinking enough alcoholic beverages that would result in a 0.08% Blood Alcohol Concentration." (Italics added; bold omitted.) Father complains in his brief that he had complied with the court's order regarding substance abuse counseling, but the court did not revisit paragraph 5.7 of the April 23, 2021 custody order when the court reinstated that order after the January 11, 2022 contested hearing. However, father did not include a request for the court to revisit paragraph 5.7 of the April 23, 2021 custody order in his RFO or raise this issue during the January 11, 2022 contested hearing. At the hearing, father only requested the court to prohibit mother from drinking alcohol during her custodial time.
Father further argues the court improperly "stripped the children's rights to enjoy equal time with the parents during the holidays and special occasions." Father contends he "should be granted visitation of the children at least every other year for ... Easter, Halloween, and Christmas Day." Father's RFO requested the court to revisit the holiday schedule set forth in the April 23, 2021 order. Father's RFO noted the holiday schedule in the April 23, 2021 custody order "was supposed to be a temporary schedule and it provides Mother with nearly all holidays with the children." Following mediation pursuant to the RFO, the mediator recommended modifying the holiday schedule set forth in the April 23, 2021 custody order, with respect to Easter Sunday, Halloween, and Christmas, so that the parents could alternate spending those days with the children. In reinstating the April 23, 2021 order, after the January 11, 2022 contested hearing, the family court did not address the issue of modifying the holiday schedule. Since the court's failure to do so appears to be an oversight, we will order a limited remand for the family court to determine whether this was an oversight, and if so, to address the issue. We express no opinion as to the family court's resolution of this issue on remand.
DISPOSITION
The matter is remanded for a limited purpose, that is, for the family court to determine whether its failure to address the children's holiday schedule and/or the complete alcohol restriction placed on father during his custodial time was an oversight; if it was, the court may amend its custody order as to these issues. The judgment is otherwise affirmed. Each party to bear his or her own costs.
WE CONCUR: HILL, P. J. FRANSON, J.