In re Marriage of David & Martha M.

Full title: DAVID M., Appellant, v. MARTHA M., Respondent.

Court: California Court of Appeals, Second District, Seventh Division

Date published: Jun 20, 2006

No. B177632 (Cal. Ct. App. Jun. 20, 2006)

Opinion

In re Marriage of DAVID and MARTHA M. DAVID M., Appellant, v. MARTHA M., Respondent. B177632 California Court of Appeal, Second District, Seventh Division June 20, 2006

Los Angeles County Super. Ct. No. VD034299

ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT

THE COURT^*:

* JOHNSON, Acting P.J. WOODS, J.

It is ordered that the opinion filed herein on June 7, 2006, be modified as follows:

On page 6, footnote 7, remove the citation to People v. Salas (2004) 119 Cal.App.4th 805, 819 and replace it with citation to People v. Gilbert (1969) 1 Cal.3d 475, 482. Footnote 7 should therefore read as follows:

In Montenegro, the Supreme Court applied the abuse of discretion standard in considering whether the trial court had erred in utilizing the changed circumstance rule rather than the best interest test in determining a request for custody. (Montenegro, supra, 26 Cal.4th at p. 255.) However, the issue of which standard of review to apply was not before the Montenegro court. Therefore, its use of the abuse of discretion standard does not constitute authority for the proposition that is the proper standard of review. (E.g., People v. Gilbert (1969) 1 Cal.3d 475, 482 [“It is axiomatic that cases are not authority for propositions not considered�].) In any event, appellant would prevail under the de novo or the abuse of discretion standard. Thus, the question of which standard of review to apply is not dispositive in this case.

The foregoing does not effect a change in the judgment.