Opinion
A098590.
7-8-2003
In re the Marriage of CATHLEEN and WILLIAM JEFFREY GILLIAM. CATHLEEN GILLIAM, Respondent, v. WILLIAM JEFFREY GILLIAM, Appellant.
William Jeffrey Gilliam (Father) appeals from a judgment of dissolution of marriage that awards sole legal and primary physical custody of their only minor child to Cathleen Gilliam (Mother), and allows her to move to Delaware with their son. The court awarded Mr. Gilliam secondary physical custody, and substantial visitation, including the opportunity to visit their minor son for one week a month, in Delaware.
Father contends that (1) evidence of physical violence committed by the Mother compelled the court to apply the presumption against awarding custody to her set forth in Family Code section 3044, and the court failed to state its reasons, as required by section 3011, subdivision (e) for nevertheless awarding custody to the offending parent; (2) the court abused its discretion by permitting Mother to move to Delaware.
All further statutory references are to the Family Code unless otherwise indicated.
We shall affirm the judgment.
FACTS
Mother and Father were married on August 30, 1992. Their minor son was born on September 22, 1995. Mother filed for dissolution on May 26, 2000, and on June 29, 2000, filed an order to show cause regarding custody and visitation, and provided notice of her request to move to Delaware. The parties stipulated to a custody evaluation by an independent expert.
At a hearing on April 26, 2001, Father and Mother entered into a stipulation that settled property and support issues, and agreed to stay all custody litigation for six months. The stipulation provided that Mother "may, at her convenience, upon notice to [Father] move, and that her intention is to move to Delaware." The stipulation included a schedule for visitation, splitting the summer between Mother and Father, and allowing Father one week visitation in Delaware in the months of September and October. It was further agreed that the Napa County court would retain jurisdiction over matters relating to custody and visitation during this six-month period. If, by the end of this six-month period the parties failed to resolve the issues of custody, visitation, and the move-away request, it was stipulated that the court would hold a hearing on these issues in November 2001.
Mother and Father failed to reach an agreement. The court therefore held a hearing on the initial custody determination, Mothers move-away request, and visitation. In addition to the report of the custody evaluator, which recommended, among other things that Mother have primary physical custody, the parties submitted conflicting evidence on many contentious issues, including mutual allegations of physical abuse by the parents against their minor son, Fathers son from a prior marriage, and by Father against Mother.
After weighing all of the evidence, the court filed its statement of decision awarding sole legal and primary physical custody to Mother, and secondary physical custody to Father. It found, in light of extensive evidence of the high level of conflict between them, that the parents could not "effectively co-parent," that Mother had been the primary caregiver, and that the best interests of the child were "satisfied by Mother having sole legal and primary physical custody."
The court found that there "was no abuse or violence perpetrated by Mother rising to the level of Family Code § 3044." It further found that, "if there had been abuse or violence that triggered the rebuttable presumption in that section, that there was a preponderance of evidence sufficient to rebut that presumption, and to justify an award of sole legal and primary physical custody . . . pursuant to Section 3011."
With respect to the move-away request, the court observed that this was an initial permanent custody proceeding in which the court had the broadest discretion to choose a parenting plan that is in the best interests of the child. In accordance with the standard outlined in In re Marriage of Burgess (1996) 13 Cal.4th 25, 913 P.2d 473, it found that Mother was the primary caregiver, that the parties had participated in custody evaluation and, based upon that report and other evidence, it was in the best interests of the minor to remain with the mother. The court further found that she was not moving in order to deny Father a continuing relationship with the child.
ANALYSIS
As the appellant, Father bears the burden of demonstrating error on appeal. To prevail, he must provide this court with a complete summary of the evidence including appropriate citations to the record. (Cal. Rules of Court, rule 13; In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 847, fn. 2.) The "statement of facts" in Fathers opening brief provides no summary of the evidence of the custody hearing. In his "argument" he provides citations only to evidence that supports his contentions on appeal. In the absence of an accurate and complete summary of the evidence, and appropriate citation to the record, this court need not consider any challenge to the sufficiency of evidence to support the courts findings, or undertake to search the lengthy record for relevant evidence. (Mann v. Mack (1984) 155 Cal. App. 3d 666, 673, fn. 2, 202 Cal. Rptr. 296;Schultz v. Steinberg (1960) 182 Cal. App. 2d 134, 5 Cal. Rptr. 890; Wallace v. Thompson (1954) 129 Cal. App. 2d 21, 22, 276 P.2d 108.) Instead, because of the presumptions in favor of the judgment, we may simply assume the existence of evidence to support the courts findings. Because an award of custody must be in the childs best interest, we undertook to search the record to satisfy ourselves that there is sufficient evidence supporting the courts ultimate exercise of discretion awarding sole legal and primary physical custody to Mother. With regard to other issues raised by Father we will assume evidentiary support for the findings of the trial court.
Application of Section 3044
We first address Fathers contention that the court erred by failing to apply the presumption set forth in section 3044 to preclude an award of custody to Mother and in failing, as required by section 3011, subdividision (e)(1), to expressly state its reasons for finding the award of sole legal and physical custody of the minor to Mother was in the best interests of the child despite the allegations of abuse.
Section 3044, by its terms, provides that the rebuttable presumption it describes arises only "upon a finding" by the court that domestic violence occurred. The court here made a finding, based upon conflicting evidence, that there "was no abuse or violence perpetrated by Mother rising to the level of Family Code § 3044 ." The court, as the trier of fact was free not to credit the testimony of the minors half brother that Father relies upon, or of the Father, especially in light of testimony by the court appointed expert, Dr. Dittrich, that the minors half brother had "demonized" his stepmother. Fathers contention that the court was required to accept the stepsons testimony because Mothers counsel did not challenge it on cross-examination, and Mother did not specifically deny the acts he testified to, is unavailing. The trier of fact may discredit even uncontradicted testimony.
Father argues that Mothers admission that she had smacked their minor son on the leg, and on several occasions had smacked the minors half-brother, (her stepson) compelled the court to find, as matter of law, that Mother had committed abuse as defined in section 3044, subdivision (d). The admission of the acts themselves did not establish that Mother had committed "domestic violence" as it is defined in section 3044, subdivision (d). Conflicting inferences could be drawn from the surrounding circumstances as to whether she acted "intentionally or recklessly," and there was also conflicting evidence as to whether any of these acts resulted in "bodily injury." These conflicts were resolved by the court adversely to Father.
The only authority Father cites for his proposition is an unpublished opinion. Father asserts that the unpublished opinion he cites falls within the exception permitting citation to an unpublished opinion that is "law of the case." (See Cal. Rules of Court, rule 977(b)(1).) "Law of the case" consists of a prior appellate court ruling in the same case. (See, e.g., Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049; Selby Constructors v. McCarthy (1979) 91 Cal. App. 3d 517, 522, 154 Cal. Rptr. 164.) The case Father cites involves different parties, in a different case.
The court also found that, even if Mother had committed "domestic violence," the presumption under section 3044 was rebutted, and that the award of sole legal and physical custody to the Mother was nevertheless in the best interests of the child. This finding is amply supported by Mothers testimony that she realized her actions were inappropriate, she had acted under tremendous stress, and had sought help including anger management classes and individual therapy. Dr. Dittrich, the court-appointed child custody evaluator, also testified that she evaluated the safety issue raised by Mothers use of "spanking and swatting," but concluded the child would be safe with her. She based this conclusion largely upon the fact that these incidents were in the past, and on Mothers willingness to recognize her faults, and seek help.
Father also argues that reversal is required because the court failed to state its reasons for making an award to the Mother despite the allegations of physical abuse against her. (See § 3011, subd. (e)(1).) No statement of reasons was required because the court did not find any "abuse" had occurred. In any event, reversible error occurs only when omissions from the trial courts findings prevent the reviewing court from determining the factual and legal bases for the decision. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) Here, the same evidence that supports the courts express finding that the presumption under section 3044 was rebutted, also explains the courts reasons for finding an award of custody to her was in the best interests of the child despite the abuse allegations. The failure to make an express finding on a question, which is supported by substantial evidence, is harmless when the missing finding is implicit in other findings and, based on the evidence, necessarily would have been adverse to Father. (See, e.g., Manson v. Reed (1986) 186 Cal. App. 3d 1493, 1504, 231 Cal. Rptr. 446; McAdams v. McElroy (1976) 62 Cal. App. 3d 985, 996, 133 Cal. Rptr. 637.)
Father also suggests in his reply brief that the court made no express finding regarding which parent was more likely to promote continuing contact. (§ 3040, subd. (a)(1).) To the contrary, the court expressly found that neither parent was committed to promoting continuing contact, but neither was committed to denying contact so as to justify an award to the other parent.
Where as here the move away request is made in conjunction with an initial custody determination, the "parent seeking to relocate with the minor children bears no burden of establishing that the move is necessary. " (In re Marriage of Burgess, supra, 13 Cal.4th 25, 34.) The court "must take into account the presumptive right of a custodial parent to change the residence of the child, so long as the removal would not" prejudice the childs rights or welfare. (Id. at p. 32; citing § 7501.) The only exception is where the reason for the move is to frustrate the noncustodial parents relationship with the child. (Id. at p. 36, fn. 6; see also In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 793; Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1206, fn. 6.) The ultimate question in the context of the initial custody and visitation determination is what is in the best interests of the child. Thus, the court must consider factors relevant to the best interests of the child, "including the health, safety and welfare of the children, [any history of abuse by either parent], and the nature and amount of contact with both parents." (In re Marriage of Burgess, supra, 13 Cal.4th 34; see also § 3011, subds. (a) & (c).) In this context it should also consider the effects of relocation with the custodial parent.
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 208, 259 P.2d 656.) The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the best interest of the child." (In re Marriage of Burgess, supra, 13 Cal.4th 25, 32.) Here, the record reflects that the court considered all of the relevant factors, and its conclusion that it was in the best interests of the child to award sole legal and physical custody to Mother and that she should be permitted to relocate, was a reasonable exercise of its discretion. There was substantial evidence that mother was the primary caretaker, and the court so found. In addition to the paramount importance of maintaining bonds with the primary caretaker, there was substantial evidence that giving mother primary physical custody, and permitting her to relocate served the interests of preservation of the health, safety, and welfare of the minor. Dr. Dittrich, the child custody evaluator explained that although the minor had a loving relationship with both his parents, Fathers defensive posture alienated him from professionals and teachers, and made him less well equipped to see the minors needs as separate from his own. Dr. Cain, the minors therapist, was concerned that the minor was modeling Fathers aggressive behavior and that Mother, who was better able to separate her needs from those of the child, was more likely to protect the child from parental conflict and help him control his aggressive behavior.
Father, without citation to the record, asserts that there was "clear and uncontested evidence" that he had enjoyed more than 50 percent custody after separation, and prior to an intervention by Child Protective Services. Consistent with the rules of appellate procedure we articulated, supra, we assume the existence of substantial evidence to support the courts finding that Mother was the primary caretaker.
We also deny Fathers request that we take judicial notice of his pending appeal of the dismissal of a complaint he filed against Napa County and employees of Child Protective Services pursuant to Title 42 United States Code section 1983. He has not informed this court whether this record was judicially noticed in the proceedings below, or established its relevance to the issues on this appeal. (Evid. Code, § 459.)
With respect to how the move would affect the best interests of the child, there was substantial evidence that, although the move might initially be difficult for the minor, he would be better served in the long run by the proximity of a support system which would relieve some of the stress Mother was under. Most of Fathers contentions ask this court to rely upon conflicting evidence, or draw different inferences, with respect to some of the factors relevant to the best interests of the child or the reasons for the move. Father asserts that a different disposition might also have been within the courts discretion. He does not demonstrate that the decision the court made was not within the reasonable range of its discretion. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.)
Father also contends, based upon events that occurred after the Mother relocated, that the true purpose of the move was to deprive him of a continuing relationship with their son. The court resolved the conflicting evidence adversely to Father, and expressly found to the contrary. We, of course, may not reverse a finding supported by substantial evidence, and especially may not do so based upon assertions of fact that are outside the record.
Father also argues that the court should have resolved the conflicting evidence and inferences against Mother and found that the relocation would adversely affect the best interests of the child because Mothers mother was ill, and her brother was terminally ill, and therefore there would be no support system. Mother, however, testified that the support system she would rely on included her extended family in Maryland. In any event, the court as trier of fact could properly rely instead upon the testimony of Drs. Cain, and Dittrich to assess the effect of relocation on the child both of whom concluded that an award of primary physical custody to the mother, and the move with Mother would, in the long run, be in the childs best interests.
Father further contends that the visitation order was not a reasonable exercise of discretion because both experts agreed that the Father should have substantial visitation, yet, he asserts, the court gave no consideration to the financial feasibility of availing himself of the provision allowing one week a month in Delaware, in addition to six weeks in the summer, and, alternating with Mother, several vacation periods during the school year. The court ordered that Father may deduct the cost of round trip airfare, up to $ 500, from monthly child support, in the month he avails himself of the provided-for monthly visitation. The record reflects that the issue of financial feasibility was discussed in detail, and the court made this provision for a deduction from child support at Fathers urging. We conclude that the visitation plan adequately provided for frequent and continuing contact with Father ( § 3020), and there is no merit to Fathers assertion that the relocation is "tantamount to an order terminating [a] parents custody and visitation rights." (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 547; see also In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 719.)
Finally, for the first time in his reply brief, Father asserts that the custody and visitation order also had the effect of separating the minor child from his half sibling, and that a court may enter such an order only upon a showing of "compelling circumstances." (See In re Marriage of Williams (2001) 88 Cal.App.4th 808, 814.) It is well established that the court will not consider issues raised for the first time in a reply brief because it is fundamentally unfair to the opposing party who is deprived of an opportunity to respond. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 Neighbours v. Buzz Oates Enterprises (1990) 217 Cal. App. 3d 325, 335, fn. 8, 265 Cal. Rptr. 788.) In any event, In re Marriage of Williams, supra, 88 Cal.App.4th 808 is distinguishable because it concerned a custody order separating children from the same marriage. Appellant cites no authority for the proposition that the standard articulated in Williams applies to half-siblings. Nor would it be practicable to apply a rule protecting against separation when one of the parents has a child from another marriage, because of the potential conflicts with the custodial or visitation rights, of a non-party, i.e., the former spouse and parent of the half-sibling. The court nevertheless did attempt to craft the visitation order in a manner that would maximize the possibility of continued contact with this minors half-sibling. The provision allowing Father to choose which six-week period he has visitation with the minor in the summer was specifically designed to accommodate Fathers request that the summer visitation coincide with the periods the minors half-sibling also has visitation with Father.
CONCLUSION
The judgment is affirmed.
We concur Marchiano, P.J. and Margulies, J.