Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Harry L. Powazek, Judge, No. DN-135353
McDONALD, J.
Charles Alleyne (Father) appeals a postjudgment order permitting Mandana Boroojeni (Mother) to relocate to Florida from San Diego with their minor daughter (Crystal) and altering the shared physical custody arrangements to reflect the change in Crystal's residence. On appeal, Father contends the trial court abused its discretion by (1) permitting Mother to conduct direct and cross-examination at the hearing on her move away petition; (2) ignoring the evidence supporting his claim that gender and racial bias influenced the testimony of the psychologist; and (3) ignoring the evidence that militated in favor of granting primary physical custody to him.
FACTUAL AND PROCEDURAL BACKGROUND
In deciding this appeal, we have not considered any factual assertions not supported by citations to the record on appeal contained in Father's brief, filed in propria persona. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
A. The Divorce and Initial Custody Order
In December 2004 Mother filed a petition to dissolve her marriage to Father. In March 2005 the parties reached agreement on custody and visitation issues, which the court ultimately adopted in its custody order: the parties shared joint legal and physical custody, and physical custody was allocated to Mother 64 percent of the time and Father the remaining 36 percent of the time. During the nearly two years of shared custody, Father remained involved in raising and educating Crystal.
B. The Move-away Petition and Pretrial Events
In January 2007, Mother petitioned to modify the prior visitation order to permit Mother to move with Crystal to Florida. The stated basis for her petition was the high cost of living in California; and her brother, who lived in Florida, was her sole resource for financial, physical and moral support and could assist her to establish herself and obtain employment in Florida.
Father opposed the petition, asserting it was in Crystal's best interests to remain in California with him, and articulating the numerous ways in which he was a good parent to Crystal. He also expressed doubts that the stated basis for the request--Mother's claimed financial difficulties and her need to seek economic support from her brother--was sincere because Father believed Mother had ample assets to fund an appropriate standard of living in California.
Father and Mother met with Debbie Allen-Prescott, a Family Court Services Counselor, to attempt to reach agreement. After meeting with and listening to both Father and Mother, and after meeting with and interviewing Crystal, Allen-Prescott prepared her March 29, 2007, report that informed the court the parties were unable to agree on a custody and visitation sharing plan for Crystal. Allen-Prescott's report recommended (1) Mother continue to have primary physical custody of Crystal and be permitted to move to Florida, and (2) a revised visitation schedule that would enable Father to continue to have visitation (if Mother moved to Florida) by providing that Crystal spend extensive time during winter and spring breaks and most of her summer break with Father.
On April 3, 2007, the court adopted portions of Allen-Prescott's recommendations. The court also ordered the appointment of an expert under Evidence Code section 730, to be selected by agreement of the parties, to perform a psychological evaluation. The parties agreed on Dr. Kachorek as the section 730 expert. After extensive interviews with and testing of Father, Mother and Crystal, as well as investigations with third parties, Kachorek's October 2007 report concluded Crystal should be allowed to accompany her mother to Florida, and extensive visitation with Father allowed during winter, spring and summer breaks.
C. The Move-away Trial and Court Order
After Father received the report, Father filed a declaration that (1) criticized the methodology employed by Kachorek to conduct the assessment, (2) outlined facts recited by Kachorek that Father believed were fallacious and therefore undermined Kachorek's opinions and conclusions, and (3) expressed Father's disagreement with those conclusions and recommendations. Father concurrently filed a declaration attacking Allen-Prescott's conclusions and recommendations alleging, in part, that her report was fatally flawed because of her gender bias against Father and in favor of Mother. Father requested an evidentiary hearing to resolve the issues presented by Mother's move-away petition.
The court ordered the matter set for trial on Mother's petition, and directed the parties to file "[n]otices of intent to take oral testimony" by May 1, 2008, and exhibits be marked and exchanged by July 2, 2008. Father provided notice of intent to take the testimony of numerous witnesses, including Kachorek, Mother and Crystal, and issued subpoenas for their attendance.
At trial, Mother sought to elicit oral testimony from Father and to cross-examine Kachorek. Father objected that Mother had not given the requisite "notice of intent to take oral testimony," and was therefore barred from eliciting any evidence. The court overruled his objection. The court heard testimony from Kachorek, Father and Mother, and after further proceedings entered its order granting Mother's petition. Father timely appealed.
The court also apparently heard testimony from Allen-Prescott, but Father did not designate the reporter's transcript for that testimony as part of the record on appeal.
APPLICABLE LEGAL PRINCIPLES
A. Legal Standards
In an initial child custody determination, a trial court, considering all of the circumstances, has the widest discretion to choose a parenting plan that is in the best interests of a child. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess); Fam. Code, § 3040, subd. (b).) In contrast, "[o]rdinarily, 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." (Burgess, at p. 37, citing Burchard v. Garay (1986) 42 Cal.3d 531, 534.)
However, Burgess noted: "A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order 'may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest[s] of the child require[] modification or termination of the order.' (Fam. Code, § 3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest[s] of the minor children." (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.) "The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest[s] test. It 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[s]. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements. [Citations.]" (Burchard v. Garay, supra, 42 Cal.3d at p. 535.)
In In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga), the court addressed the standard that applies when a parent files a motion to modify a prior custody order because of a custodial parent's planned move with the child. In LaMusga, the trial court "ordered that primary physical custody of two minor children would be transferred from their mother to their father if their mother moved to Ohio." (Id. at p. 1078.) LaMusga concluded: "[J]ust as a custodial parent does not have to establish that a planned move is 'necessary,' neither does the noncustodial parent have to establish that a change of custody is 'essential' to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody. The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." (Id. at p. 1078.) LaMusga cautioned, however, that: "We do not suggest that a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent mandates a change in custody. But it is within the wide discretion of the superior court to order a change of custody based upon such detriment, if such a change is in the best interests of the children in light of all the relevant factors." (Id. at p. 1095.)
LaMusga then observed: "The likely consequences of a proposed change in the residence of a child, when considered in the light of all the relevant factors, may constitute a change of circumstances that warrants a change in custody, and the detriment to the child's relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child's residence or changing custody. The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (LaMusga, supra, 32 Cal.4th at p. 1097.)
LaMusga set forth factors a trial court generally should consider in exercising its discretion whether to grant or deny a custodial parent's request to relocate with a minor child:
"Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following: the children's interest[s] in the stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p. 1101.)
Based on the record in LaMusga, the California Supreme Court concluded the trial court properly considered those factors and therefore did not abuse its discretion by transferring custody of the children to the father if the mother moved to Ohio. (Ibid.)
B. Standard of Appellate Review
In general, "[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (Burgess, supra, 13 Cal.4th at p. 32.) Generally, a trial court abuses its discretion only 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; Burgess, at p. 32.)
ANALYSIS
A. Trial Witness Claim
Father initially asserts the trial court abused its discretion and committed reversible error by allowing Mother to call Father as a witness, and to conduct cross-examination of Kachorek, even though she had not complied with the Superior Court of San Diego County, Local Rules, rule 5.5.8(H). However, Father cites no case authority suggesting that rule was applicable here. Rule 5.5.8 appears to apply only to hearings on orders to show cause and noticed motions set either as a "short cause" matter (rule 5.5.8(B) ["[s]hort cause OSC matters are those which take no more than 20 minutes of court time"]), or a "long cause" matter (ibid. ["[l]ong cause OSC matters are those which take more than 20 minutes but less than 40 minutes"].) Because of the abbreviated nature contemplated for such hearings, this rule generally precludes any oral testimony at such hearings. (Rule 5.5.8(H) ["It is the general policy of this court to consider only the papers filed with the court when granting or denying applications for orders.... Oral testimony will generally not be received"].)
All further rule references are to the Local Rules of the Superior Court of San Diego County.
Father's opening brief mistakenly refers to rule 5.6.1, but apparently intended to rely on rule 5.5.8. That rule provides, at subdivision (H), that when "any party wishes to present oral testimony... [w]ritten notice of the intent to present oral testimony must be served on the opposing party at least five court days before the scheduled hearing. The notice must state the name[s] of the intended witness[es] and the subject matter of the witness[es]' testimony. [¶]... If the intended oral testimony will be cross-examination of... a court-appointed expert witness, the party who wishes to conduct the cross-examination must set forth in a written declaration the reasons for requesting cross-examination, and that declaration must accompany the notice of intent to present oral testimony. [¶] Failure to give the required notice will generally result in a denial of the request for oral testimony."
In contrast, the hearing in this case was set as a long cause trial, based on the parties' estimate that it would require a two-day trial, and therefore the applicable rules are found in rule 5.8.1. (See rule 5.8.1(A) ["Any trial with a time estimate exceeding one court day is a long cause trial"].) The rules applicable to long cause trials do provide for pretrial disclosures, including witness lists, but that list is limited to a "list designating non-party witnesses (including name, address and telephone number) and the subject matter of each witness's testimony...." (Rule 5.8.2(A)(5), italics added.) Thus, the applicable rule did not require any designation as a prerequisite to calling Father as a witness, nor does rule 5.8.2(A)(5) impose any notice requirement as a condition to Mother's right to conduct cross-examination of Kachorek. Accordingly, the trial court did not err in overruling Father's objection.
B. The Abuse of Discretion Claim
Father's principal claim is that the trial court abused its discretion by granting permission for Mother to move to Florida with Crystal, asserting the court merely followed the recommendations by Kachorek and Allen-Prescott while ignoring the detrimental impact on Crystal that would result from eroding her relationship with Father if she moved across the country. Father argues the order adopting Kachorek's (as well as Allen-Prescott's) recommendation was without evidentiary support and was an abuse of discretion because it (1) ignored Father's evidence that Mother perjured herself throughout the proceedings concerning her financial condition, (2) ignored evidence that Mother had manipulated Crystal into expressing a preference to live with Mother in Florida rather than remaining in California with Father, and (3) ignored Father's argument that the recommendations and conclusions of Kachorek and Allen-Prescott (both of which supported Mother's request for the move-away order) should have been entirely discarded because Father contended both Kachorek and Allen-Prescott harbored gender and racial bias against Father and improperly discounted evidence favoring Father's argument and undermining Mother's argument.
Father's opening brief contains a one-sided recitation of the facts and makes no effort to present the evidence favorable to the judgment; Father has therefore waived any claim the evidence was insufficient to support the trial court's determination. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Father's appellate brief implicitly concedes Kachorek's and Allen-Prescott's opinions and recommendations alone provide a reasonable basis on which the court could conclude its ruling advanced the best interests of the child, which is fatal to Father's claim that the order is reversible for an abuse of discretion. (In re Marriage of Melville, supra, 122 Cal.App.4th at pp. 610, 613; Burgess, supra, 13 Cal.4th at p. 32.) Father instead asserts that we should reassess the weight and credibility of Kachorek's and Allen-Prescott's opinions and find their conclusions did not have evidentiary value because they were tainted by racial and/or gender bias against Father. However, it is a fundamental rule of appellate review that the credibility of witnesses and the weight to be accorded their testimony is the exclusive province of the trier of fact, and "a reviewing court cannot reject the testimony of a witness [who] has been believed by the trier of fact unless there exists either a physical impossibility that it is true or its falsity is apparent without resorting to inferences and deductions." (People v. Gray (1960) 180 Cal.App.2d 594, 598 [same rule applies to expert testimony].) Father does not claim either of those predicates are present here.
Because we presume there was evidence that (if credited) would support the trial court's determination that permitting the requested move-away was in Crystal's best interests, we may not reverse the discretionary determination of the trial court.
DISPOSITION
The order is affirmed. Mother is entitled to costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.