Opinion
G037581
5-31-2007
In re the Marriage of CARL D. and HILARY R. CRAVER. CARL D. CRAVER, Appellant, v. HILARY R. CRAVER, Respondent.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant. Hilary R. (Craver) Jackson, in pro. per., for Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
We appreciate the trial judges Solomonic approach to this custody and visitation case. He decided to end years of bickering over the logistics of visitation by asking each party to submit a proposed parenting plan, in which each party would assume that he or she had sole physical custody of the two children involved in the case, and would then write the ticket for the other partys visitation — with the party giving the more generous visitation the winner. In this case the party promising the more generous visitation was the winner, and the trial judge indeed awarded that party custody. That award required a change of custody from the parent with whom the two daughters had lived with for the previous four years.
A good idea perhaps, but even so, we must reverse. The judges methodology amounted to consigning a custody decision to a process, rather than to informed judicial discretion. It also was inherently flawed in the way that it was conducted because neither side had any opportunity to critique, cross-examine, or otherwise respond to the others proposed plan.
II. FACTS AND PROCEDURAL
BACKGROUND
Hilary and Carl Craver married in 1990 and had two daughters born in October 1992 and August 1994. They separated in February 1992, just after Hilary had become pregnant with their first daughter. The marital settlement agreement gave sole physical custody to Hilary and "reasonable visitation" to Carl.
The parties first names are used to prevent confusion and no disrespect is intended. (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1119, fn. 1.)
The agreement remained in effect until March 31, 1998, when, in response to what appears to have been Carls OSC to modify the custody and visitation arrangements, the parties stipulated at a chambers conference to Hilary having primary (as distinct from sole) physical custody, with spelled-out visitation terms. The stipulation also set forth guidelines regarding party behavior (e.g., no alienation of the children from one parent, no name-calling, no referring to a stepparent as a parent, no last-name changes for the children) and established regular drug testing for Carl. By its terms, the order also provided that the "parties [would] return within 120 days for a review."
That review was conducted on October 8, 1998. It confirmed the custody arrangement, i.e., "primary physical custody to the Respondent/mother."
Hilary subsequently moved to Hawaii, prompting another OSC re modification, heard by the same judge (Commissioner Schulte) who would later make the order now under appeal. The OSC resulted in a stipulation dated October 2002 that physical custody of the two girls was awarded to Carl, while Hilary would have the "right to relocate" and certain specified terms of visitation. By its terms that stipulation was to be reviewed on June 19, 2003 and was "without prejudice" and "pending the review hearing."
In this case one judicial officer has actually had some longitudinal perspective over the relationship of the parties. It has been a particular theme of this court that continuity of judicial supervision is of significant benefit in family law cases. (E.g., Bidna v. Rosen (1993) 19 Cal.App.4th 27, 38-39.)
Now we come to an area where the record is not precisely clear. According to a trial court minute order, the scheduled June 2003 review was taken off calendar. The minute order, however, does not specifically say who took the matter off calendar, other than a vague reference to "counsel." (The entirety of the order reads: "Conference in chambers with court and counsel. While in chambers counsel requested the matter go off calendar.") While there is a minor (indeed, only implied) squabble in this appeal as to exactly who let the review hearing go off calendar, we need note only two facts: Hilary was still in Hawaii and there is no indication in this record that she had been somehow prevented from seeking a formal change of primary physical custody such that the girls would relocate to Hawaii with her.
With the June 2003 review having been dropped, Hilary filed an OSC to change custody back to her in November 2003 — note, she was still living in Hawaii. The matter was placed on the trial calendar in late January 2004 "with a long time estimate" giving Carl time to file his own OSC for certain transportation reimbursements. His response to Hilarys OSC basically sought a reaffirmation of the status quo as it then existed (physical custody to Carl), plus guideline child support from Hilary. The OSC resulted in a stipulation made January 27 modifying visitation, but with financial issues including support, arrears, and transportation, plus "the visitation issue of extended weekends" being reserved for early March 2004. Those issues (otherwise not relevant to this appeal) were resolved in a stipulation in mid-May 2004 (with the case back again in Commissioner Schultes courtroom). For our purposes, the most important fact is that Hilarys November 2003 OSC did not result in a change of primary physical custody back to her.
While, because of the long time estimate (four hours), the hearing was transferred to another judge, the subsequent stipulation would means that subsequent matters would again be assigned to Commissioner Schulte.
Hilary returned to California in 2005, but the next battle was initiated by Carl, who, in August of that year, filed an OSC requesting Hilarys visitation privileges be reduced to the "standard" schedule permitting her every other weekend and one dinner visit per week.
Hilary did not bring her own OSC for a change in custody, though her responsive declaration to Carls OSC did request joint physical custody of the children (as distinct from primary custody to Carl).
The matter was called in late October 2005. Trial was set for February 2006, though that was later vacated and continued to April 2006. By April, a child custody investigation had been completed, though the parties did not have enough time to digest it, so Carls OSC was continued to May. Hilarys trial brief in preparation for the hearing requested primary physical custody, but her lawyer still filed no pleadings requesting a change in custody.
The custody investigation report contained the following findings:
— Carl had been arrested in 1992 for assaulting Hilary and had been required to complete a Batterers Treatment Program.
— On the other hand, Hilary and her current husband had been involved in two recent domestic assaults investigated by the San Diego Police Department; that there were "significant matters to be [] resolved" regarding Hilarys husbands potential alcohol and drug abuse problems, which led the report investigator to have "concerns about the stability of the relationship."
— Neither child was experiencing undue difficulty in school; and that both children expressed a strong preference to reside with Hilary.
The report concluded that there had been no "significant change of circumstances" necessitating a change of custody and that it appeared to be in the best interests of the children to remain with their father. But there was a bit of waffling as well. The report also noted that the childrens wishes should be taken into account because of their age and maturity.
In May, the trial was continued over to late July on "custody visitation etc." That continuance gave Hilary the time, on June 20, 2006, to file her own OSC re modification of visitation, but, significantly, she did not check the custody box. (Only the visitation box was checked.) A mediation was held in late June, which failed to settle the case.
The big day came July 28, 2006. Commissioner Schulte noted that 14 years had gone by since the first papers were filed, but not one year had gone by without some kind of litigation. There were 137 entries into the court file. There had been 20 court hearings, not counting ex parte applications. The court found that it was not in the best interests of the minors to continue in that "type of environment."
It was at that point that the trial court hit upon its Solomonic solution. The court concluded that (in the words of the minute order) "the only way the children will not be in the middle is to give one parent all the power (sole custody), and along with it, all the responsibility (all the transportation)." Accordingly, the court directed each party, between then and a hearing set for mid-August, to "be able to make a recommendation/suggestion to the Court of the custodial plan [they] would want, if [they] were to receive sole custody."
Both Carl and Hilary submitted plans. The plans contained nearly identical proposals for shared weekends during the school year, but Hilarys plan was substantially more generous to Carl overall. Carl proposed a split of winter breaks (one week each), alternating spring breaks and Thanksgivings, and the month of July to Hilary. Hilary, by contrast, proposed that Carl should have the entirety of winter and spring breaks every year, every Thanksgiving and the entirety of summer vacation, though she retained the option to take the children on vacation for two weeks with notice to Carl.
Hilarys plan thus gave Carl nearly 100 percent of available vacation time with the children, leaving herself the brunt of daily child-rearing, arguably without the benefit of play time or significant "family" holidays (namely, the December one).
When the hearing came around in August, after an off-the-record discussion, the court took (as stated by the minute order) the "issues of custody and visitation under submission" and stated it would "rule by way of minute order."
The minute order was issued a week later, on August 18, 2006. The minute order stated: "The Court, having considered each partys proposed custody plan, adopts as the Courts own order Respondent, Mothers, proposed order, a copy of which is attached hereto and incorporated herein by reference, with the exception of the adjustments set forth below" and then it listed some specific terms concerning visitation for Carl.
One of the changes concerned Christmas. Hilarys plan offered to give Carl visitation every Christmas. She might have been stuck with the offer: The court, however, modified the plan to give Hilary the option of having the children from Dec. 23 through 26 in odd-numbered years.
Carl filed an appeal from the August 18 minute order. His motion for a stay of the order (i.e., to prevent the change of primary physical custody from him to Hilary) was denied.
III. DISCUSSION
A. The Courts Methodology
1. Consignment of Discretion
For the moment we will set aside the problem of whether the court, in instigating the possibility of a change of custody (even though Hilary never filed pleadings to request it) should have been governed under the "persuasive showing of changed circumstances affecting the child" standard from In re Marriage of Carney (1979) 24 Cal.3d 725, 730, or the simpler best interest standard that usually governs the making of permanent custody orders. In either case, child custody is always governed by a set of many factors. Those factors include: The health, safety and welfare of the child; any history of abuse by one parent against a child or the other parent; the nature and amount of contact with both parents; and any drug or alcohol abuse by either parent. (Fam. Code, § 3011.) By statutory terms ("among any other factors it finds relevant") those factors are also not exclusive: No doubt a history of litigation over visitation is also a factor (cf. In re John W. (1996) 41 Cal.App.4th 961, 975-977 [effect of animosity between spouses]), as might be the age of the children, the logistics of schooling, and the wishes of the children in light of their maturity (cf. In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101). What is clear is that a court cannot elevate one factor and make it de facto dispositive by, in effect, auctioning off custody to the highest bidder on that factor.
All further undesignated statutory references will be to the Family Code.
Did that happen here? Or was the courts decision an exercise of sound discretion considering all the various factors that have come to light in the 14 years since this couple divorced? The case in favor of the idea that the court was exercising sound discretion based on many factors rests on one word: "likely." In announcing its proposed Solomonic solution for the case, the trial court said, on the record, that the parent submitting the plan with the most generous visitation to the other would "likely" be the successful one.
Had the court said "will be" or "definitely," we could stop our analysis here. The error in pegging a custody determination on one factor — indeed, in effect consigning its discretion under California law to a nondiscretionary bidding process — would be manifest without further elaboration.
But because of the use of the word likely, we face a more difficult problem: Does the tiny bit of daylight between "likely" and "definitely" allow the courts ultimate determination to be affirmed on the theory that we must infer a decision based on discretion and not simple factor auction?
We recognize, in evaluating that question, that all presumptions and intendments must be drawn in favor of the trial courts order. However, three facts cannot be avoided, and those facts, taken in context, point inexorably to the conclusion that the court did not exercise discretion, and did indeed consign the custody determination here to a process rather than use its informed discretion. (In other words, "likely" really did mean "definitely.")
(a) At the time the trial court made its order, it was the father who had physical custody of the children. And a child custody investigation report had been prepared that recommended continuance of that status quo, albeit also noting that, as between the two parents, it was a close case. However, after the two parents submitted their respective plans and the court took the matter under submission, the court issued a brief minute order adopting wholesale the mothers plan, albeit with three changes: The court adopted Hilarys plan lock, stock and 90 percent of barrel.
Now, the order was itself a violation of Family Code section 3087, which requires an explanation when custody is changed or modified. That violation, however, itself points to a fundamentally flawed methodology: Instead of explaining why the superiority of the mothers plan was simply a factor in changing custody, the court made the mothers plan itself the courts decision on custody.
Indeed, the courts failure to provide reasons for the change in custody orders (§ 3087) is particularly salient. If the trial court had attempted to justify its change of custody order in traditional section 3087 terms, it would have produced an order far different in form and substance than the one issued August 18, 2006. Such an order would have shown an attempt to weigh the various pros and cons on each side. Not doing so points to the conclusion that the court had, in effect, decided to let the issue of custody ride on a winner-takes-all battle of competing plans.
(b) The trial court gave no indication at all that it considered stability qua stability to count for anything, despite the fact that the children had been living with the father at that point for about four years. Did those four years count for nothing? The case law is full of recognition of the value of continuity for children. To be sure, the court might have said something along the lines of: "The court recognizes that the children have lived with the father for the last four years and done well, but a number of other factors [which it would then have specified] outweigh the benefits of continuity qua continuity." But it didnt. It gave no indication that it was doing anything other than making a custody determination based upon which parent proposed a better visitation plan for the other.
(c) Significantly, the change of custody appears to have stripped the father of even joint legal custody, not just primary physical custody. It is true, of course, that joint legal custody rarely makes much of a difference in terms of parental contact and control over children. Very few cases involve fights over legal custody as such. But, as every family lawyer knows, parents dont lose legal custody (usually joint) unless there are some pretty serious reasons. Nothing of that sort appears in this record. Note then: Even if we assumed that the award of physical custody to the mother was the product of the trial courts careful weighing of many factors, there is no way we could affirm any loss by the father of legal custody. Even under an abuse of discretion standard that loss would be a manifest abuse of discretion under the circumstances. But that conclusion has a broader implication: By making an order that appears to strip a custodial father of legal custody, the most reasonable inference is that the trial court wasnt doing any weighing at all, it was just letting custody be determined as if the two competing plans were the sole consideration.
B. A Flawed Process
Moreover, there is an error of law in the very process used by the trial court, even if we indulge in the assumption that the trial court merely used the two plans as a factor in some unarticulated larger consideration of many factors. The very act of soliciting competing parenting plans the way the judge did it here (the plans were submitted after a hearing and the next thing that happened is that the court issued a minute order adopting the mothers plan and incorporating it by reference into the courts own order) amounted to a de facto taking of testimony without giving the other side an opportunity for cross-examination.
For example, one sides plan might have promised more generous visitation to the other side, by giving the entirety of summer vacation to the other parent. But suppose the child is a budding, Olympic-class archery buff, and wants to attend a month-long archery camp during the one parents putative "visitation" time. The generosity in the one plan might thus be illusory to some extent. That fact, however, would not reach the court unless there was opportunity for cross-examination after the plans had been submitted.
Here, both Carl and Hilary filed their plans on August 11, 2006. Based on the record supplied us, neither plan had a proof of service. For all we know — to use a contracting metaphor — neither party got a glimpse of the others plan until after the "bids" were closed and the "contract" was awarded. We hope, of course, that there was in fact an exchange, and that — at least for the week between the submissions and the courts August 18, 2006 order — the court wasnt operating on what were, in effect, two simultaneous ex parte communications!
In any event, though, it is clear that neither party had the chance to argue, present evidence, or cross-examine the other party during that week to establish that, despite the merits of the opposition plan, on balance the various factors still favored an award to that party.
C. Fair Notice
Our determination that the process was flawed obviates the need to consider one of Carls main arguments in this appeal: Namely, since Hilary never formally requested, by way of an OSC of her own, the relief of a change of primary physical custody, the relief granted exceeded the scope of the pleadings. That point carries with it the bitter irony that it was Carl who initiated the OSC that led to his own loss of primary physical custody. According to his brief, he had only sought to "tinker" with the visitation arrangements in the wake of Hilarys return from Hawaii. Yet he ended up losing the whole shooting match. It recalls the line about "purposes mistook, falln on the inventors heads," from some obscure play or other.
Since the case is being remanded however, a few observations are in order. (See Code Civ. Proc., § 43.)
One, Family Code section 3087 expressly provides that the court may, on its own motion, modify a joint custody order if modification is in the best interests of the child: "An order for joint custody may be modified or terminated upon the petition of one or both parents or on the courts own motion if it is shown that the best interest of the child requires modification or termination of the order." (Italics added.)
Therefore, on remand, there can be no question about what is at stake: The parties are going to litigate the issue of whether primary physical custody should be taken from Carl and given to Hilary, and what the visitation arrangements for the noncustodial parent will be. However, in line with what we said earlier about continuity, the court will be able to consider all factors, including how well things have gone in the months that have passed since the courts (erroneous) use of a competing-plan methodology to make the custody determination.
We also direct that this time there is no question that Family Code section 3087 should be followed. The second sentence of that statute provides: "If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order."
Writing, said Francis Bacon, makes an exact man. The great virtue of section 3087 is that it forces trial courts to articulate their thoughts about custody modification orders. The very process of articulation helps the judge come to an informed decision.
D. Requested Clarifications
Both parties have asserted the courts August 18, 2006 order is unclear. Since we are reversing anyway, that point is now moot. Let us be unequivocal, however, that there is no basis for the court to remove joint legal custody from either parent.
IV. CONCLUSION
The trial courts order of August 18, 2006 must therefore be reversed. The cause is remanded for further proceedings not inconsistent with this opinion.
We have already noted that on remand, the court may consider information gleaned from the previous year, during which Hilary has enjoyed primary physical custody. That point raises one final question that we may reasonably anticipate on remand: Does Carl have the benefit of the Carney "persuasive showing of changed circumstances" rule, or is this a case where the trial court is, in effect, to establish a permanent custody plan for the first time?
Looking to the substance of the couples relationship, here are the facts we consider dispositive on the question: First, while there is no question that Hilary was the original recipient of primary physical custody, there is also no question that the permanent primary physical custody order was changed in favor of Carl when Hilary moved to Hawaii. To be sure, the parties contemplated a review hearing on the stipulation that changed custody, but, significantly, at that time, Hilary did not seek to take the daughters with her, or press her right to a review hearing when she had the chance. When she allowed the review hearing to go off calendar (even if it was Carl who requested it go off calendar), she was living in Hawaii, without the children, and that stay in Hawaii might have been indefinite. And, while in Hawaii Hilary later made an attempt to have custody changed, that proceeding ended with Carl still having custody of the daughters.
Moreover, when Hilary returned about three years after the stipulation that had given Carl de facto permanent custody, she did not, even at that time, seek primary physical custody based upon the changed circumstances of her return. Rather, the possibility of such a change was initiated by the trial court the following summer.
Accordingly, we conclude that, on remand, the Carney "changed circumstances" rule will apply in favor of Carl, with the caveat (as noted above) that when the court hears the matter, it should consider all the evidence bearing on a possible change of primary physical custody, including whatever evidence may be developed from events of the past year. (Even though during that year the parties have operated on an order which we now determine to have been ultimately erroneous.) As noted above, unless there is new evidence bearing on the issue, we would expect both parties to be awarded joint legal custody.
Because Hilary came back from Hawaii and did not challenge Carls custody upon coming back, this is neither a "move away" case nor a joint (50-50) custody case, and therefore this court is spared the need to delve into the unique dynamics of those kinds of cases, including the off-debated footnote 12 of In re Marriage of Burgess (1996) 13 Cal.4th 25, 40 (cf. In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142; Niko v. Foreman (2006) 144 Cal.App.4th 344, 363).
Because of the essentially interlocutory nature of our disposition, the interests of justice are best served by letting each side bear its own costs on appeal.
We concur:
RYLAARSDAM, J.
BEDSWORTH, J.