Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. FL960671
Marchiano, P.J.
Appellant Jim Hogue (Father) and respondent Linda Hogue (Mother) shared joint physical and legal custody of their son Justin. Father moved to modify the joint legal custody order to require mutual agreement of the parents on certain specified matters, and for two other orders: that Justin attend a certain school and that Mother share in transportation of Justin. Without notice to the parties, the trial court ordered that Mother shall have sole legal custody of Justin. The court also denied Father’s school attendance request and failed to rule on Father’s transportation request. We affirm the denial of the school attendance request, but reverse on the legal custody and transportation issues.
I. FACTS
In late January 2004, the trial court ordered that Father and Mother have joint legal and physical custody of Justin. On May 31, 2006, Father filed a motion to modify the January 2004 order regarding legal custody. He requested “a joint legal custody order, pursuant to [California Family] Code section 3083, which requires mutual parental consent for issues re: education, non-emergency medical procedures, and extra-curricular activities of Justin.”
All subsequent statutory citations are to the Family Code unless otherwise specified.
Father also requested two additional orders: (1) that Justin “shall attend” St. Bernard’s School in Eureka beginning in his sixth-grade year, i.e., the 2006-2007 school year; and (2) that Mother “share in all of transportation” of Justin.
Father also requested a modification to increase his visitation in a way that would increase his physical custody of Justin from 35 percent to 50 percent. That request is not at issue on appeal.
In a declaration attached to the motion, Father stated that he and Mother “do not make decisions together. We do not cooperate or collaborate regarding issues involving Justin’s welfare, though I would like to do so.” After noting his understanding that joint legal custody meant that “either parent may make decisions involving the minor as though he/she has sole legal custody of the minor,” Father declared: “I request a more specified joint legal custody order, which requires mutual agreement of both parents regarding decisions involving Justin’s education, any non-emergency medical decision for Justin, and Justin’s extracurricular activities.”
Father further declared that he wanted Justin to go to St. Bernard’s, at his expense, beginning in Justin’s sixth-grade year. Father wanted Justin to go to that school primarily because of its small class size. His declaration did not mention religion as a reason for wanting Justin to go to St. Bernard’s.
Father expressed disapproval of Mother’s recent decision to enroll Justin in Zane Middle School, despite Father’s requests that he attend St. Bernard’s.
Father also declared that he had provided all of Justin’s transportation for each exchange of physical custody since January 2004, and that Mother refuses “to assist me with transportation issues.”
Mother filed a responsive declaration, opposing Father’s requested orders regarding mutual-consent legal custody, attendance at St. Bernard’s, and transportation. Mother declared that she “found it quite impossible to discuss any disagreement” with Father: “He must have everything he wants, all the time, period.” She elaborated: “The last thing I want is to argue with [Father]. [Father] asks that decisions be made by both parties and that we work together. Redefining joint legal custody will not solve our problems or make co-parenting magically work.” Mother did not request that she have sole legal custody of Justin. As a matter of fact, her responsive declaration stated that Mother wanted the current custody order, i.e., for joint legal custody, to remain in effect.
Mother further declared that she did not want Justin to go to St. Bernard’s because she had heard that the school administration had been in some sort of “trouble,” and because of that some of her Catholic relatives were no longer sending their children to the school. She stated that Justin did not want to attend St. Bernard’s, but wanted to attend Zane with his friends. She believed Justin would do fine at Zane, and that St. Bernard’s did not have the resources to deal with students with behavior problems, such as Justin.
Mother believed that Zane’s class size was 25 to 28, while St. Bernard’s was 15 to 18–but that St. Bernard’s was planning to combine grade levels into one classroom, and teach different things to different parts of the class to the distraction of some students.
Mother declared that her current transportation agreement with Father was set up by Social Services, and she did not want it changed. Father had moved away from Eureka to Arcata, and Mother did not believe it fair that she should assume the expense and inconvenience of transporting Justin in light of Father’s move.
Justin’s attorney filed a responsive declaration in which she asked that Mother and Father be referred to mediation. Justin’s attorney also declared that Justin “has authorized me to tell the court [that] his friend Ezra is going to Zane and so he would ‘like to go to Zane, but St. Bernard’s would be O.K., too.’ ”
Both parents testified at the hearing on Father’s motion. Father testified that he lived in Arcata and Mother had moved to McKinleyville. Father still wanted Justin to attend St. Bernard’s in Eureka. When Justin was in Father’s custody, Father would be willing to transport Justin from Arcata to Eureka for school. When Justin was in Mother’s custody, Father would be willing to transport Justin from McKinleyville to Eureka for school. Contrary to his declaration, Father testified that the primary reasons he wanted Justin to go to St. Bernard’s were “religious reasons.” When asked for other reasons, he mentioned academic standards, campus safety, and a no-tolerance drug policy—not class size. Mother had told Father on many occasions to stop trying to discuss the issue of St. Bernard’s with her.
On cross-examination, Father also admitted that Justin was making friends at his new school. He also admitted that he had never filed any statement with the court in which he said he wanted Justin to attend St. Bernard’s for religious reasons.
Father claimed he had “stat[ed]” religious reasons “in documentation” “after starting this case,” but did not know in which document.
Mother testified that she did not want Justin to attend St. Bernard’s because the school was having a lot of problems. She wanted to keep Justin in public schools where he was making friends. After she moved to McKinleyville in August 2006, she enrolled Justin in McKinleyville Middle School because she wanted him to attend his local school. Justin was excelling at McKinleyville Middle School.
At the conclusion of testimony, Father’s counsel argued for a mutual consent joint custody order. But counsel admitted that Father “disagrees with [Mother] on issues.” Counsel also argued that Justin should attend St. Bernard’s and Mother should share in transportation other than transportation to and from St. Bernard’s.
Justin’s counsel referred to the parents’ “ongoing battles” and said that throughout Justin’s 11-year lifetime, the parents “have been able to agree on almost nothing.”
Mother’s counsel argued that there had been no showing of a change of circumstances significant enough to warrant Father’s requested modifications of the standing orders of January 2004. Counsel did not “believe there should be any additional specifications about issues that [the parents] need to jointly agree on.”
At no point did any party even mention, much less argue for, an order awarding sole legal custody to Mother.
The trial court entered a written order, and ruled as follows:
“The court finds that there has been a change of circumstances justifying a change in the present custody orders. Specifically, the parties have both moved from Eureka, and have been unable to jointly consider what is in the best interest of the child[ ] when making decisions regarding the child’s welfare. Mother now lives in McKinleyville, and [F]ather now lives in Arcata. In spite of this, [F]ather wants the child to attend St. Bernard’s school in Eureka, which presents serious transportation issues. Mother has placed the child in McKinleyville Middle School, where he is doing well. Father is aware of this but is still requesting that the child attend the parochial school for primarily religious grounds, according to his testimony. Father had not mentioned this in his initial papers, but had relied on the smaller class size, as the primary reason for choosing that school. . . .
“If [F]ather was really interested in his child attending a parochial school for religious reasons, perhaps he could have picked the parochial school located in Arcata.
“The parties shall continue to have joint physical custody, with the same time share as previously ordered. Mother shall have sole legal custody. All previous orders not in conflict shall remain in effect.” (Italics added.)
II. DISCUSSION
1. Legal Custody Order.
Father contends that the trial court denied him due process by awarding sole legal custody to Mother without notice and an opportunity to be heard. Father is correct. His motion sought a mutual consent joint legal custody order under section 3083, with regard to certain matters. Mother did not request sole legal custody, and that issue never arose at the hearing on Father’s motion. Mother simply opposed Father’s request for a mutual consent joint custody order, on the ground that she and Father had difficulty communicating.
Mother now relies on section 3022, which authorizes the trial court to make an order regarding the custody of a minor child “during the pendency of a proceeding or at any time thereafter,” and section 3087, which authorizes the trial court to modify or terminate a joint custody order on its own motion. But the court’s statutory authorization to act on its own motion does not dispense with the constitutional requirements of notice and an opportunity to be heard. (See 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, §§ 640, 641, pp. 1041-1042, id. (2007 supp.) § 641, p. 57.)
We must reverse the trial court’s order awarding sole legal custody to Mother, an issue never raised below, and remand for the court to grant or deny Father’s request for a mutual consent order.
Our reversal is obviously without prejudice to the trial court’s consideration of a request by Mother for sole legal custody, should one be made, at a properly noticed proceeding.
2. School Attendance Order.
The trial court did not abuse its discretion by denying Father’s request that Justin attend St. Bernard’s. The record supports the trial court’s findings. Since neither party lives in Eureka, Justin’s attendance of St. Bernard’s would “present[] serious transportation issues.” Justin was doing well in McKinleyville Middle School. Father gave inconsistent reasons for his wanting Justin to attend St. Bernard’s, first mentioning class size, and not mentioning religious reasons until the hearing. As the trial court noted, Father’s purported religious reasons would have been fulfilled by a request that Justin attend parochial school in Arcata, not Eureka.
3. Transportation Order.
The trial court simply failed to rule on Father’s request that Mother share in Justin’s transportation. Mother contends that Father has waived the issue by failing to request a statement of reasons or a statement of decision. She relies on In re Marriage of Buser (1987) 190 Cal.App.3d 639, which is inapposite. That case did not involve the situation now before us, where the trial court overlooked ruling on an issue.
III. DISPOSITION
Insofar as the trial court’s written order denies Father’s request that Justin attend St. Bernard’s, the order is affirmed. Insofar as the court’s written order awards sole legal custody to Mother, the order is reversed and the matter is remanded for the court to grant or deny Father’s request for a mutual consent joint legal custody order. On remand, the trial court is directed to rule on Father’s request regarding transportation.
Each party to bear its own costs.
We concur: Swager, J., Margulies, J.