Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego Super. Ct. No. DN110477, Harry L. Powazek, Commissioner.
McDONALD, J.
Jeffrey Josephson appeals an order granting the request of his former spouse, Anne Josephson, to change primary physical custody of their 12-year-old son Joseph from Jeffrey in Belfair, Washington to Anne in San Diego, where Joseph's 10-year-old sister Julianna lives. Jeffrey contends the court erred by: (1) applying a best interests standard to Anne's request for change in custody in the context of the parties' 2004 stipulated custody order being a final judgment requiring application of the changed circumstances standard; (2) relitigating the 2004 custody determination to modify the original custody order absent a showing of a substantial change of circumstances; and (3) misapplying the holding of In re Marriage of Williams (2001) 88 Cal.App.4th 808 (Williams) to find there was no compelling reason to have Joseph and Julianna continue to live in separate homes. We conclude the court applied the correct standard when it evaluated Anne's request for a change in Joseph's custody. We further conclude the court properly found Joseph's best interests were served by ordering his primary residence to be with Anne.
FACTUAL AND PROCEDURAL BACKGROUND
Jeffrey and Anne (together the parties) separated in 1999 after a seven-year marriage. At the time, Joseph was four years old and Julianna was two years old. The parties entered into a stipulated custody and visitation agreement as part of their Marital Settlement Agreement (MSA), attached to the judgment of dissolution filed in the superior court in November 2000. The MSA awarded the parties joint legal custody of the children, with sole physical custody to Anne and reasonable visitation for Jeffrey.
Four years later, the parties stipulated to modify the MSA, providing for Jeffrey to have sole physical custody of Joseph, and Anne to retain sole physical custody of Julianna, subject to each noncustodial parent's right to reasonable visitation with the children. The stipulation, filed in the superior court on September 2, 2004, was to be effective "[u]nless the parties mutually agree to a different arrangement or until further court order . . . ."
Jeffrey, who is on active duty with the United States Marine Corps, relocated to Washington with Joseph, Jeffrey's fiancée Amber and Amber's seven-year-old son. Anne and Julianna began living with Anne's boyfriend, who has shared custody of his two children from a former marriage.
The stipulation authorized the parties to relocate anywhere in the continental United States with the minor child in their custody.
In January 2006, Anne filed an order to show cause (OSC) to modify the 2004 stipulation, alleging Joseph's preference and best interests required returning him to Anne's custody, and there was no proper basis to continue separating Joseph from Julianna. Anne was concerned about Joseph's health and safety because: (1) Amber, rather than Jeffrey, was Joseph's primary caregiver; (2) Amber used corporal punishment and other punitive forms of discipline; (3) Amber requested additional homework assignments for Joseph to be completed during school breaks when he visited Anne; (4) Jeffrey refused to allow input from Anne with respect to parenting Joseph; (5) Jeffrey unreasonably refused to allow Joseph to visit Anne; and (6) Joseph wanted to live with Anne.
The parties participated in court-ordered mediation with Family Court Services (FCS). The parties reported Joseph has Type I diabetes, diagnosed at age four. His condition is managed by diet and insulin injections three or four times a day. Joseph's medical care provider told the mediator Joseph's diabetes is stable and Jeffrey appears capable of meeting Joseph's medical needs. Joseph's fifth grade teacher reported Joseph works at grade level but could improve with more effort. The teacher described Joseph as immature and "antsy," but reported no significant behavior problems.
According to Anne, the arrangement to have Joseph live with Jeffrey in 2004 was meant to be temporary, and resulted from Anne being under stress caused by the break-up of her second marriage and working long hours. Anne said she trusts Jeffrey will provide Joseph with a stable home and the special care he needs, but Joseph's living arrangement is stressful and he is unhappy living with Jeffrey and Amber.
According to Jeffrey, the parties' stipulation to have Joseph live with him resulted from Anne's inability to adequately care for Joseph and his special needs. Jeffrey claimed Joseph is thriving and stable in his care, and Joseph's best interests would not be served by returning him to Anne's custody. Jeffrey further stated he and Amber no longer use corporal punishment on Joseph. Although Joseph complains about having to do homework and about some of Jeffrey's rules, he does not complain about Amber.
The mediator expressed concerns about Jeffrey's parenting style, which she described as "somewhat punitive," and about his unrealistic expectations of Joseph. The mediator was also concerned about Joseph and Julianna living apart, because "the sibling relationship is a source of emotional support and a unique sense of belonging." Nevertheless, the mediator recommended Joseph's primary residence remain with Jeffrey.
At the court's request, the mediator re-interviewed the parties and obtained input from Joseph and Julianna. She noted "[t]he children appear to have a close sibling relationship and to be protective of each other." Joseph complained he was treated unfairly in Jeffrey's home compared to the treatment of Amber's son, while the children in Anne's home were all treated fairly. Joseph said he had looked forward to living with Jeffrey until Amber moved in. He told the mediator Anne monitors his diet and insulin intake regularly and he does not have to do it by himself.
The mediator did not change her recommendations in her second report. She questioned Anne's ability to meet Joseph's medical needs if he lived with her, stating: "[Anne] is expecting a child in a few weeks and will have the distraction of a newborn to contend with in addition to three other children." Despite misgivings about the children living apart, the mediator believed "maintaining the status quo is the best option for both children at the present time."
At a hearing on Anne's OSC, the court considered the mediator's report and argument of counsel. The court found the 2004 custody modification was not a permanent order under the holding of Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro), and Anne was not required to show changed circumstances to obtain a changed custody order. Instead, the issues were: (1) what custody arrangement was in Joseph's best interests; and (2) what compelling reasons existed to maintain the status quo of Joseph and Julianna's separation.
The court took the matter under submission. In its findings and rulings, the court noted the parties' decision in 2004 to separate the children was understandable, given Joseph's special needs. However, applying the reasoning of Williams, the court could "not find a compelling reason to have Joseph and Julianna reside in separate households. There is no evidence supporting an extraordinary emotional, medical, or educational need, or other compelling circumstance which would allow the separation of these children." The court applied a best interests standard and ordered Joseph's primary residence to be "with [Anne] effective one week after the end of the semester (December 2006)."
The court noted it would consider returning Joseph to Jeffrey's custody were Anne unable to meet Joseph's special needs.
Under Code of Civil Procedure section 917.7, the court's order was automatically stayed until January 25, 2007. Jeffrey filed a notice of appeal and petition for writ of supersedeas in this court. After hearing argument, we granted the supersedeas petition.
DISCUSSION
I
Jeffrey contends the court erred by applying a best interests standard to Anne's request for change of custody. He asserts the 2004 agreement was a final judicial custody determination within the meaning of Montenegro, requiring the court to find there were substantial changed circumstances before it could modify the custody arrangement. Jeffrey further contends the record contains no evidence of any substantial change in circumstances since 2004 to show Joseph's welfare required modifying his custody.
A
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.]" (Montenegro, supra, 26 Cal.4th at p. 255.) Under this test, we determine whether the trial court could have reasonably found the order in question advanced the "best interest[s]" of the child. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) "[W]e must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' [Citation.]" (Montenegro, at p. 255.)
B
In the absence of a final judicial custody determination, "[t]he court and the family have 'the widest discretion to choose a parenting plan that is in the best interest[s] of the child.' [Citation.]" (Montenegro, supra, 26 Cal.4th at p. 255, fn. omitted.) If, however, there has been a final 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. [Citation.]" (Burgess, supra, 13 Cal.4th at p. 37; Montenegro, at p. 256.) This judicially created rule "fosters the dual goals of judicial economy and protecting stable custody arrangements." (Burchard v. Garay (1986) 42 Cal.3d 531, 535; Montenegro, at p. 256.)
The changed circumstances rule applies whenever final custody has been determined by the parents' agreement, a default judgment or litigation. (Montenegro, supra, 26 Cal.4th at pp. 256-257.) Although stipulated custody orders may be final judicial custody determinations for purposes of the changed circumstances rule, "many stipulated custody orders are not intended to be final judgments. Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached. Although the parties typically resolve these disputes through stipulations confirmed by court order, they often do not intend for these stipulations to be permanent custody orders." (Montenegro, at p. 258.) Because "temporary custody orders serve an important role in child custody proceedings," courts must be careful to construe these orders so as not to discourage parties from entering into stipulations. (Ibid.) Accordingly, stipulated custody orders are final judicial custody determinations "for purposes of the changed circumstance[s] rule only if there is a clear, affirmative indication the parties intended such a result." (Ibid.) This requirement "ensures that courts effectuate the actual intent of the parties when they entered into the stipulation without precluding them from making enforceable promises [citation]." (Ibid.; original italics.)
C
Here, there is no clear, affirmative indication the parties intended the custody arrangement separating Joseph and Julianna to be a final judicial custody determination. The parties entered into a stipulation confirmed by court order that made no mention of the words "final," "permanent" or "judgment" with respect to awarding sole physical custody of Joseph to Jeffrey. Rather, the stipulation provides the order is to remain in effect "unless the parties mutually agree to a different arrangement or until further court order." This language suggests the agreement was temporary because the parties contemplated the possibility of changing the custodial arrangement or participating in further court proceedings. Because the parties did not intend the order to be a final custody determination, the court was not required to find substantial changed circumstances before it could modify the custody arrangement.
Jeffrey argues the court's reasoning was flawed when it stated the order was not permanent because there had not been "a full-blown custody trial." However, because the court applied the correct standard, its underlying reasons for adopting that standard are irrelevant. (Burgess, supra, 13 Cal.4th at p. 32.)
II
Jeffrey contends the court misapplied the holding in Williams, supra, 88 Cal.App.4th at pages 814-815, to find Joseph's best interests required a change of custody to protect the sibling relationship. Jeffrey asserts the evidence did not support the court's finding that the importance of reunifying Joseph and Julianna outweighed other relevant factors, especially protecting Joseph's stable custody arrangement, where: (1) Joseph and Julianna have lived apart for almost three years; and (2) there is no evidence the sibling relationship has suffered as a result of Joseph and Julianna living in separate homes.
A
In Williams, the divorced mother of four children remarried and moved to Utah with her new husband. Over the father's objection, the mother requested the court modify the parties' joint custody agreement to allow the children to live with her. (Williams, supra, 88 Cal.App.4th at p. 809.) The court ordered two of the children to live with the mother in Utah, and two of the children to remain in Santa Barbara with the father, noting the factors to be considered were evenly balanced between the parties, who were both appropriate custodial parents. (Id. at p. 811.) The Court of Appeal reversed, characterizing the custody order as "so unusual and onerous to all concerned that it cannot be considered a routine exercise of judicial discretion." (Id. at p. 813.)
The Williams court reasoned the record contained no evidence of the adverse effect the order would have from the children's perspective, noting the children also "have rights, which must be considered." (Id. at p. 813.) There was no evidence of the extent to which the children were bonded to each other or the extent to which their separation would hinder or serve their best interests. (Ibid.) "Children are not community property to be divided equally for the benefit of their parents. The parents of these children have chosen to divorce each other. The children have not chosen to divorce each other. At a minimum, the children have a right to the society and companionship of their siblings. [Citation.]" (Id. at p. 814.) Because the separation of siblings is disfavored, the court may issue such an order only on "a showing of compelling circumstances." (Id. at pp. 814-815.)
B
Here, the court properly relied on Williams for the proposition that protecting the sibling relationship requires a showing of compelling circumstances to justify the continued separation of Joseph and Julianna where both parents are appropriate custodial parents. The record supports the court's finding no extraordinary emotional, medical or educational need, or other compelling circumstances, justified maintaining the status quo of the children's separation.
We recognize that unlike the parties in Williams, the parties here mutually agreed to separate Joseph and Julianna in 2004 based on the circumstances that existed at the time. However, a child's right to the companionship and society of his or her siblings is governed by the same standard, regardless of whether the analysis involves separating siblings or reunifying siblings who have been living apart.
Further, the standard in Williams is based on the principle that protecting the sibling relationship is properly viewed as an element of the broader "best interest[s]" test with respect to custody orders. (Williams, supra, 88 Cal.App.4th at p. 812.) In determining what custody order was in Joseph's best interests, the court considered evidence that Joseph and Julianna have a close sibling relationship, which is a source of emotional support for them and provides a unique sense of belonging. Joseph's preference was to return to Anne's custody and Anne is capable of providing a stable life and proper care for Joseph. Although recognizing Joseph's stability was important, the court weighed these factors in finding the children's continued separation would not serve Joseph's best interests. Because the record supports the court's finding that changing Joseph's physical custody to Anne was in his best interests, the order was not an abuse of discretion. (Montenegro, supra, 26 Cal.4th at p. 259.)
DISPOSITION
The order is affirmed. The stay issued by this court on January 25, 2007, is vacated.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.