Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Super. Ct. No. 01D000755, Walter D. Posey, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant.
Minyard Morris and Steven G. Hittelman; Snell & Wilmer and Richard A. Derevan for Respondent.
OPINION
BEDSWORTH, J.
Judith W. Ambrosio appeals from an order that denied her request to move out of state with the parties’ minor child, and directed a change of custody to Michael A. Ambrosio if she does move. Judith argues the trial court applied the wrong legal standard, disregarded the conclusions of a court-appointed expert, the statement of decision was inadequate, and the judge improperly used gender-based sterotypes. We find no error and affirm.
To avoid confusion, we shall refer to the parties by their first names, as is customary in family law matters.
FACTS
Judith and Michael Ambrosio were divorced in 2002, when a judgment of dissolution was entered. The judgment provided for joint legal custody of Anthony, born in 1997, with primary physical custody to Judith.
In June 2005, Judith filed an order to show cause that requested a change in visitation to allow her to move out of state. Michael opposed the application and asked for a change of custody if Judith moved. At Judith’s request, the trial court appointed Dr. Daniel Eppler, a psychologist, to perform a psychological evaluation to determine Anthony’s best interests. Judith’s order to show cause did not state where she planned to move, and Dr. Eppler did not have this information either when he conducted the evaluation or when he prepared his report. The destination came out later (at the July 2006 hearing) when it was stipulated that Judith wanted to relocate to Dover, Delaware, where her fiancé, Air Force Major Michael Whalen, had been stationed.
The evaluator recommended Anthony be allowed to move to with Judith. In a report filed in January 2006, Dr. Eppler stated “[Anthony] is more strongly bonded to the Mother than he is to the Father,” but “the symbolic scales tipped only slightly in the Mother’s favor.” He concluded that, on balance, Anthony’s best interests would be served by accompanying Judith and giving Michael “as much uninterrupted parenting time as school and holiday schedules would allow.”
Dr. Eppler said a factor that “swayed” the evaluation was Anthony’s “disproportionately strong bond” with Major Whalen. He had observed Anthony with Michael and his fiancée, as well as with Judith and Whalen, her fiancé. He reported Michael, his fiancée, and Judith all had “a tendency to pamper and overindulge” Anthony that “inadvertently [blocked] development of . . . independence and self-reliance.” But Whalen, “perhaps because of his military training, is able to maintain appropriate emotional boundaries and encourage [Anthony] to become self-reliant and independent.” Dr. Eppler concluded that allowing Anthony to move made sense “[g]iven that the adult-child relationship between Mr. Whalen and [Anthony] is the healthiest of the four adults and given that [Judith] and [Anthony] still have the strongest emotional bond . . . .”
The report stated Michael had told the evaluator that his parents were the only extended family Anthony had known (Judith’s parents are deceased), and a move would deny him contact with his only grandparents. Michael also was concerned that Judith and Whalen were “unduly influencing” Anthony about the proposed move, and he felt Anthony had no idea what life would be like outside Southern California.
In this regard, Dr. Eppler reported a call from Judith near the end of the evaluation process, asking him to meet with Anthony one more time because he had “something very important” to say. The evaluator said such requests for an “emergency meeting” to reveal new information were common, and the content predictable, but he always made it a point to go and listen. When Dr. Eppler arrived at Judith’s residence, he waited nearly half an hour “until [Judith] was finally able to convince [Anthony] that he had to talk to this evaluator. . . . Predictably, [Anthony] told this evaluator, using very adult-like phrases that he wanted to move with his mother and visit[] his father [in] the summers.” Dr. Eppler reported that he wasn’t influenced by such tactics, and he said so to Michael and his fiancée when they called him, and again when they came to his office to protest the last-minute visit and repeat their objections to the move.
Dr. Eppler also reported “ongoing conflict and tension between the Parents has a very deleterious affect on [Anthony].” He said Anthony had asked him not to tell either parent about events or statements at the other’s home. “[Anthony] feels as though he is very much caught in the middle and that he has to, in some ways, appease each parent either through words or actions. . . . No eight-year-old child should carry the burden of feeling responsible for the happiness of each of his parents and yet that is exactly at the core of Anthony’s anxiety.” But, Dr. Eppler noted, Anthony felt less pressure to appease his mother because of their “high degree of bonding.”
The motions were heard in July 2006. The evaluation report was admitted in evidence and Dr. Eppler testified. The evaluator admitted “this was a very difficult decision and it was a close call.” He said Anthony was being damaged because he was caught in the middle of the conflict between his parents. Questioned about his report of Judith’s overindulgence, Dr. Eppler explained Anthony’s behavior was not appropriate for a child his age in terms of listening to questions or responding to them – “the child was just minimally responsive to the mother’s instructions.” Asked to assess the impact on Anthony’s welfare of making six hour cross-country flights to visit with Michael, Dr. Eppler said it would not be good. The subject of future career moves by Whalen came up, and Dr. Eppler reported the major had said he anticipated two or possibly three additional moves in the years before he retired. So, if Anthony were to reside with his mother, the current move would not likely be the only one he would have to make.
The other witnesses were the parents and their new spouses (Judith and Whalen had married the prior month), Michael’s father, Anthony’s current (third grade) teacher, and two of Michael’s friends, one of whom had known him for thirty years.
The statement of decision was issued in April 2007. The trial court said it considered and took into account the moving and opposing papers, the evaluation report, the testimony of the witnesses, and argument of counsel. The court found the move to Delaware would be detrimental to Anthony. It observed that if Anthony moved, he would be separated from the grandparents who provided childcare for the first three years of his life, separated from friends he made in baseball, and he would have to make a 3000-mile journey to visit his father. The court concluded “I find that there has been a showing of detriment if the child moves, independent of the move itself.”
Turning to Anthony’s best interests, the court said it would consider each of the factors enumerated in In re Marriage of LaMusga (2004) 32 Cal.4th 1072. First was “the child’s interest in stability and continuity in custodial arrangements.” Here, “the court finds that mother and father don’t get along, particularly now; they both remarried, they have their own lives and they have problems communicating, even before they got remarried. The court finds that the stability and continuity and custodial arrangement is lacking at the present time.” On the next factors, the distance of the move and age of the child, the court found traveling from the east coast “would be just about as far as you can get away from Southern California. So the distance involved is, especially for an 8 year-old, who’s going to have to travel for purposes of visitation, great.”
Evaluating “the child’s relationship with both parents,” the court found “father’s been the coach [of Anthony’s baseball team] and has got as much, probably more time in Anthony’s life []than most fathers.” But, “mother has been more active in the child’s life than father has . . . [M]other has been the one primarily who signed him up at school . . . that’s taught him and been there to help him with his homework, et cetera. The mere fact [is] that she is the one that’s been available to do so, [and now] she wants to make herself even more available by selling her home and taking the money and living off of [it] . . . so she can be a stay-at-home mom and have more time [with] Tony.” In an observation now challenged by Judith as showing gender bias, the court said “she has been more active at the school than the father has; potentially because fathers are expected to work, support their families, and as such, they don’t have the daytime to run off to the school and be a school assistant during the daytime.”
The next factor considered was “the relationship between the parents, including their ability to communicate and cooperate effectively” and “their willingness to put the interests of the child above their individual interest.” The court found “these parents have a difficult time cooperating effectively” and “I think they’re both deficient in that category, myself. Mother’s got a new life with the major and father’s got a new life with his lady.” As for Anthony’s wishes, the trial court noted the only evidence came from Dr. Eppler’s report, without indicating its view of that evidence.
Finally, there was “the extent to which the parents are currently sharing custody.” Here, the court observed “the parents can’t even agree to allow additional time, without having problems between them.” Looking to the shared custody arrangements, the trial court calculated Michael’s current timeshare was 37 percent, and said it would remain the same in the future.
Putting this all together, the trial court found “the present effect . . . is not good, in the court’s opinion, because the parents do not communicate with each other.” Concerning Dr. Eppler’s opinion that Whalen had the healthiest adult relationship with Anthony, “[t]he court finds that this appearance has more to do with the child’s recognition of the major and his military bearing; the major made a good appearance here, in my court (the court having served in the military myself six years) and [I] can understand why the child would feel pleased with the aspect of respect from a person such as the major. . . . His military bearing is what’s impressive to Anthony.” The court noted the possibility that Whalen would be reassigned again: “[H]e could be sent somewhere else in the world; there’s unrest all over the place . . . . [H]e cannot guarantee, no one can, that he would not be reassigned to Iraq, or some other place.”
The trial court summarized as follows: “The court makes the decision of what is best for Anthony and does so based on all of the evidence that I have heard. [¶] The court finds that the detriment was because of the move, the taking of Anthony away from substantial people in his life. The court finds that the influence of the grandparents and the godparents, young men [he] has on his baseball team, the people he knows from school are in Anthony’s best interests so he stays here.”
The court denied Judith’s motion to change Anthony’s residence to Delaware. It ordered that if Judith moves, “the recommendation from Dr. Eppler in the 730 report that was made previously should apply in reverse to mother,” apparently referring to the evaluator’s recommendations for the noncustodial parent’s visitation schedule. Otherwise, the court ruled, there was no change in custody.
I
Judith contends the trial court applied the wrong legal standard when it considered Anthony’s relationship with his grandparents and baseball friends. She asserts these considerations are not a part of the best interests test, and the trial court failed to consider or give proper weight to the fact that she was the primary caretaker parent. We do not see it that way.
In a move-away case where a change of custody is sought, a two step analysis is required. The court must first determine if the noncustodial parent has shown the move would be detrimental to the child. If so, it must then decide if a change of custody is in the best interests of the child. (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1078.) In assessing best interests, “‘the paramount need for continuity and stability in custodial arrangements – and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker – weigh heavily in favor of maintaining ongoing custodial arrangements. [Citations].’ [Citation.]” (Id. at p. 1093.) But this is only one factor to be considered.
In In re Marriage of Burgess (1996) 13 Cal.4th 25, 39, the court’s list of the factors to be taken into account included “community ties.” The later decision in In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1101, set out a list that omitted community ties, but nothing in the case suggests that was intentional. To the contrary, the LaMusga opinion repeatedly reaffirmed what had been said in Burgess, so we must read the cases together and conclude community ties may be considered by the trial court. With this addition, the trial court’s recitation of the factors it considered tracks the LaMusga list.
The trial court was entitled to consider Anthony’s family and community ties in assessing whether a change of custody was in his best interests. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 39.) To the extent Judith suggests the wrong legal standard was applied because that is all the trial court looked at, she fails to fully read the statement of decision. As set out above, the court went through all of items required under LaMusga.
The trial court also gave due consideration to Judith’s role as the primary caretaker parent. While continuity and stability in the existing custodial arrangement may be an important factor, it is not the only one. The court stated it had considered this factor, and it found there was no stability in the existing custodial arrangement to be preserved, because the parents did not get along, particularly now that they have remarried and have new lives to lead. Although we can understand Judith’s disappointment that more weight was not given to this factor, it was not ignored. The trial court used the proper standard in assessing Anthony’s best interests. It just gave different weights to some factors than appellant would have. We cannot reweigh those factors, though.
II
Judith’s next argument is that the trial court ignored the evaluator’s report and testimony because it did not follow his recommendation that Anthony be allowed to move her. She also asserts the court did not “aptly” address the report or testimony in its statement of decision. The argument is wide of the mark.
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We also presume the trial court made all factual findings necessary to support the order, under the doctrine of implied findings. (Fladboe v. American Isuzu Motors (2007) 150 Cal.App.4th 42, 61-62.) We review this case by those lights.
In doing so, we find no evidence the court “ignored” anything. There is a difference between overlooking evidence and being unconvinced by it – between “ignoring” it and rejecting it. This was a very close case by Dr. Eppler’s own assessment, and the court just saw it differently than the expert.
The statement of decision begins with the preface that the trial court considered the evaluation report and the testimony of all of the witnesses. As the court went through the best interest factors, it pointed to evidence it found persuasive and not, most of which came from Dr. Eppler’s report and testimony. For example, the conflict and tension in the parents’ relationship and its negative impact on Anthony, and Anthony’s fear and anxiety in feeling he had to appease both parents, came from the report. So did the facts that Anthony was more strongly bonded with Judith, and he had the healthiest adult-child relationship with Whalen. While the court was more swayed by some of the negatives than the positives presented by Dr. Eppler, and it disagreed with him about the significance of Anthony’s relationship with Whalen, there can be no doubt it considered both Dr. Eppler’s report and his testimony at trial.
It must be remembered the trial court was the decision maker, not the expert. The expert was appointed to offer an opinion to assist the court in making its decision, but the court was not bound by law or reason simply to adopt Dr. Eppler’s conclusions. (See In re Marriage of DeRoque (1999) 74 Cal.App.4th 1090, 1096 [“the essence of intelligent judging” was “[n]ot [being] willing to be a mere rubber-stamp for what the sole expert thought was best,” but instead making a decision that addressed the issues].) Again, while we understand Judith’s displeasure with the unfavorable ruling in the face of a favorable expert opinion, the evidence supporting her case was considered.
III
Judith argues the statement of decision was “imperfect and misfocused” in the way it addressed several of the best interests factors. We consider each point in turn, but find no error.
Judith contends the trial court did not give due weight to her role as the primary caretaker in evaluating “the children’s interest in stability and continuity in the custodial arrangement.” (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1101.) We do not see it.
The court said there was no stability and continuity in the existing custodial relationship, because the parents did not get along and had problems communicating, all the more since each had remarried. We understand the court to be saying the existing custodial arrangement – primary physical custody in Judith – was not a stable one, and preserving it was not of paramount importance. That assessment is supported by Dr. Eppler’s report that “ongoing conflict and tension between Parents has a very deleterious affect on [Anthony],” who “feels . . . very much caught in the middle and that he has to . . . appease each parent either through words or actions.” Dr. Eppler thought an eight year old should not have to bear the burden of his parents’ happiness, “yet that is exactly at the core of Anthony’s anxiety.” As we have noted, the court was obviously well aware of the discussions in Dr. Eppler’s report. So we are satisfied the fact Judith had been the primary caretaker was considered; it just was not given the weight she would have preferred.
Judith takes issue with the discussion of “the children’s relationship with both parents.” (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1101.) She asserts the court impliedly criticized her for wanting to spend more time with Anthony, and exhibited gender bias in saying she had more time because fathers are expected to support their families. We disagree.
In the statement of decision, the court said Judith had been the parent more active in Anthony’s life, who had signed him up for school, taught him, and helped him with homework. It then observed: “The school records would indicate that she has been more active at the school than the father has; potentially because fathers are expected to work, support their families, and as such, they don’t have the daytime to run off to the school and be a school assistant during the daytime.”
What Judith sees as criticism can equally be viewed as description. It was the trial court’s assessment of her relationship with Anthony. Dr. Eppler reported Judith had overindulged Anthony, and he testified Anthony’s behavior was inappropriate for his age – he did not listen to his mother’s instructions or respond to them very well. In these circumstances, the court was entitled to infer that more time with mother would not necessarily be in Anthony’s best interests. Some degree of criticism is inevitable when a judge must evaluate the conduct of parents in deciding whether to grant a move-away request. To the extent Judith views this as unfair, she is suffering what every unsuccessful litigant suffers. To the extent she views it as gender bias, we shall consider it below.
Judith next assails the statement “These parents have a difficult time cooperating effectively and their willingness to put the interest of the child above their individual interest, I think they’re both deficient in that category, myself. Mother’s got a new life with the major and father’s got a new life with his lady.” Judith contends there is no evidence of noncooperation and she has always put Anthony first, as shown by the fact that she remained in California even after Whalen took up his post in Delaware.
But these findings are supported by the evidence. Dr. Eppler reported “there is only ongoing conflict and tension between the parents,” and he testified “there’s no reason . . . that they couldn’t get along, but the evidence is that they haven’t.” At another point, addressing whether the parents were able to get along, he said “[t]he evidence is that they cannot and have not, for however many years they’ve been divorced.”
As for Judith staying behind, that is certainly an admirable act, but it does little to change the evidence the parents’ inability to see past their own disputes was harming Anthony. Dr. Eppler testified Anthony was being damaged by being caught in the middle of the parents’ conflicts: “[T]his is an anxious little boy; whether by demeanor or circumstance or both, [he] is not functioning the way other 8 year-olds function, because he carries a lot of cares, concerns and burdens regarding his state and his parents’ state. Most 8 year olds are more interested in the most recent video game or what’s on television, rather than all the concerns regarding what mom said, what dad said, don’t tell him this because he’ll be mad, don’t tell her this because she’ll be mad, its too much for an 8 year old.” The record supports the trial court’s findings on this factor.
Judith next says the trial court “missed it” by not expressly discussing “the reasons for the proposed move” (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1101), observing they were amply reflected in the record. There is no merit to the point.
There is no requirement that each and every LaMusga factor be expressly addressed. (In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1093 [omission of a statement that the trial court has considered one of the best interest factors “does not indicate that the court failed to properly discharge its duties”].) Since this dispute was about Judith’s proposed move to accompany her new husband, and the court considered the moving papers, the evaluator’s report, and the evidence, we must indulge the presumption it properly considered this factor. (Ibid.)
Judith also objects to the finding Michael’s time share was 37 percent, because the evaluation report put it at 30 percent. We note the report said its figures were approximations, and the trial court said it made a precise calculation. In any event, as we have said, the evaluation was for the guidance of the court, which was not bound to adopt the time share figure any more than the ultimate recommendation.
Finally, Judith asserts it was “speculative” and irrelevant that Whalen might be deployed overseas, because that would not affect Anthony’s relationship with her. But that misses the point. Dr. Eppler reported that Whalen told him several further career moves were possible, and it was reasonable to consider they might affect Anthony, as well as his future visitation and relationship with his father. There was nothing improper in taking this fact into account in the overall assessment of best interests. Nor were there any other errors in the statement of decision, either of commission or omission, that indicate an abuse of discretion in denying the move-away motion.
IV
Judith’s last argument is the trial court abused its discretion when it used sterotypes that reflect gender bias. We are not persuaded.
The argument rests upon the following comment in the statement of decision: “The school records would indicate that she has been more active at the school than the father has; potentially because fathers are expected to work, support their families, and as such, they don’t have the daytime to run off to the school and be a school assistant during the daytime.”
There can be no doubt that preconceived ideas based on gender cannot be condoned when they deny one party a fair trial. (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 259; In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1499.) But we do not believe that happened here.
Let us be clear that the comment in question was inappropriate and improper, and there is no excuse for it. At the same time, the statement of decision as a whole does not evidence any gender bias. This is not a case such as those to which appellant refers, whose repeated and pervasive statements were so unambiguous as to leave no doubt the court’s decision was infused by its negative view of the relationship between a younger woman and an older, wealthy man (In re Marriage of Iverson, supra, 11 Cal.App.4th 1495), or a dismissive view of sexual harassment cases and the social/economic realities women face in the workplace. (Catchpole v. Brannon, supra, 36 Cal.App.4th 237.) This is a case in which a trier of fact whose ruling was otherwise free of any hint of bias, based upon reasonable and appropriate consideration made an inappropriate remark in discussing why he did not feel one party’s position was persuasive. As we have explained in addressing Judith’s substantive points, the evidence supports the difficult decision in this close case, and the statement of decision adequately explains the factual and legal basis for the decision. Without minimizing the improper comment, we cannot say Judith was denied a fair trial in this case.
Since the correct legal standard was applied, the trial court was not required to follow the evaluator’s recommendation, the statement of decision is sufficient, and the trial was fair, the order appealed from must be affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.