Opinion
2d Civil No. B201692
4-17-2008
In re Marriage of LYNN and RICHARD McKENZIE. LYNN A. FIENE (McKENZIE), Appellant, v. RICHARD McKENZIE, Respondent.
Herb Fox, for Appellant. Gregory T. May, for Respondent.
NOT TO BE PUBLISHED
Lynn A. Fiene (mother) is the mother of A.M. She appeals from an order modifying a final judicial custody determination. The order awarded sole physical custody of A.M. to his father, Richard McKenzie (father). Prior to the order, mother had sole physical custody of A.M. Mother contends that the trial court abused its discretion because father failed to demonstrate " a significant change of circumstances indicating that a different custody arrangement would be in the childs best interest." (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 956.) In the alternative, mother contends that the trial court abused its discretion by denying her request for an evidentiary hearing. We reverse.
Factual and Procedural Background
The parties were married in 1987. They have two children: A.M., born in November 1993, and K.M., born in February 1990. Their marriage was dissolved on December 31, 1998. Pursuant to a stipulated judgment filed in March 1999 in the Santa Barbara County Superior Court, the parties were granted joint legal custody and mother was granted sole physical custody of the children. Father was granted visitation rights. The stipulated judgment states that in January 1999 the children moved with mother to Yorba Linda. Father presently lives in Ventura.
"If a parent is awarded sole physical custody, that means the child shall reside with and be under the supervision of the custodial parent, subject to the power of the court to order visitation for the noncustodial parent. [Citation.]" (In re Marriage of Brown and Yana, supra, 37 Cal.4th at p. 956.)
In June 2007 father filed an application for an order granting him sole physical custody of A.M., then aged 13 years, 7 months. In a supporting declaration, father stated that the application was "based on [A.M.s] request that he live with me, rather than his Mom." According to father, A.M. first made the request "last year." He repeated it each time he came to visit father in Ventura. A.M. said that, if he were allowed to live with father, life would be "less stressful" and he would "do better in school." He also "expressed his like for the ocean environment and sports." Father alleged: "We go to car shows, auto races, biking, cook together, etc. I believe what [A.M.] is looking for is a male role model; and to bond with his Dad on a consistent daily basis."
On August 8, 2007, mother, appearing in propria persona, filed a declaration in opposition to fathers application. The declaration included the following allegations:
A.M. and his entire family "would be emotionally harmed" if he moved to Ventura to live with father. He has a "very close relationship" with his sister, K.M., who is 17 years old, and a "good relationship" with his half-brother, J.F., who is three years old.
Moving to Ventura would also "damage [A.M.s] social network" in Yorba Linda, where he has a "small group of close friends." A.M. told mother that "he does not have any close friends in his age group at his dads home . . . ."
In addition, the change in custody would be damaging to A.M.s educational prospects. He "performed poorly in school this year and failed several of his classes during seventh grade." Mother has taken "various measures . . . to help [A.M.] turn around his academic performance . . . ." For example, she retained an educational psychologist to determine whether he has a learning disability. Mother opined that it is likely A.M. "has a behavioural [sic] or learning disability which is impeding his success . . . ." Mother also developed an academic "Success Plan" for A.M. that includes daily tutoring by a credentialed teacher. Moreover, mother changed her work schedule so that she would have more time "to facilitate tutoring and homework after school each day."
Mother expressed concern that A.M. "is considering a geographical escape" from his school problems in Yorba Linda. "[H]e may be afraid he cant pass eighth grade and he doesnt want to experience the social embarrassment of being held back in Yorba Linda."
A.M. told mother that he wanted to live with father for only one year and then return to Yorba Linda. When mother asked A.M. what he expected to accomplish in one year, he "responded with enthusiasm, Mom, I just want to surf more, and if I am at Dads I can surf more. If I could, I would surf every day[.]"
Mother believed that father "is an alcoholic and he continues to be in denial of his illness." "Both [A.M.] and [K.M.] have mentioned their observations of his daily drinking . . . ." Mother knew "from [her] 10 years of marriage [that father] was an alcoholic during several if not all of those years."
If the court deemed mothers opposition inadequate to warrant the denial of fathers application, mother requested that" the court set a date for an evidentiary hearing [in] 90 to 120 days to permit time for an attorney to prepare for trial." As an exhibit to her opposition, mother included a declaration from an attorney stating that she would represent mother if the matter proceeded to trial. The attorney would not be able to attend the hearing on fathers application, set for August 21, 2007, since she would be out of the country on vacation.
In his reply to mothers opposition, father declared that A.M. "is 13 1/2 years old, and mature enough to make the decision to live with Dad." (AA 67) He contended that mothers "request for an evidentiary hearing is for the sole purpose of delay." As to A.M.s academic problems, father stated: "[A.M.] has not been doing well in school for the last year and one-half. We will address that issue with the local school officials. I will work with [A.M.] to complete his homework." Father did not expressly deny mothers allegation that he is an alcoholic. However, he declared, "[Mothers] denigration of me and concerns about my parenting are old news, and still remains [sic] untrue."
Prior to the hearing set for August 21, 2007, the court issued a tentative ruling granting father sole physical custody of A.M.. The court reasoned that "it must elect what is in the minor childs best interest." The court denied mothers request for an evidentiary hearing.
During the hearing conducted on August 21, 2007, mother told the court that it was not "a foregone conclusion" that A.M. wanted to move in with father. The day before the hearing, A.M. had said, "Mom, I dont know what I want." Moreover," on multiple [prior] occasions" A.M. had said that "he doesnt know what he wants to do and hes not sure." Mother further alleged, "[A.M.] is not telling me consistently at all, I want to go live with dad. What he is saying is, I want to surf." The court stated, "I am going to stay with my tentative the way it is written."
On August 31, 2007, we granted a temporary stay of the trial courts order awarding sole physical custody to father. On October 12, 2007, we granted mothers petition for a writ of supersedeas staying the order pending disposition of this appeal.
After mother filed her opening brief, father wrote a letter to this court waiving his right to file a respondents brief.
" [S]ince the appellant has the affirmative burden to show error whether or not the respondents brief has been filed, the respondents failure to file does not require an automatic reversal. [Citations.] [Citation.]" (Miles v. Speidel (1989) 211 Cal.App.3d 879, 881.)
Law Concerning Change in Custody and Standard of Review
Pursuant to Californias statutory scheme governing child custody determinations, " the overarching concern is the best interest of the child. [Citation.]" (In re Marriage of Brown and Yana, supra, 37 Cal.4th at p. 955.) "Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, the paramount need for continuity and stability in custody 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 that custody arrangement. [Citation.] In recognition of this policy concern, [our Supreme Court has] articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citations.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates a significant change of circumstances indicating that a different custody arrangement would be in the childs best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy. [Citation.]" ( Id ., at p. 956, fn. omitted.)
"`[A] request for a change of custody is . . . addressed in the first instance to the sound discretion of the trial judge . . . . [Citation.] An order granting or denying a change of custody will not be reversed unless there has been an abuse of discretion. [Citations.]" (In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 479, disapproved on another ground in In re Marriage of Burgess (1996) 13 Cal.4th 25, 38, fn. 10.) "An abuse of discretion occurs only where it is shown that the trial court exceeded the bounds of reason. [Citation.] It is a deferential standard of review that requires us to uphold the trial courts determination, even if we disagree with it, so long as it is reasonable." (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) "[A]ppellate courts have been less reluctant to find an abuse of discretion when custody is changed than when it is originally awarded, and reversals of such orders have not been uncommon. [Citations.]" (In re Marriage of Carney (1979) 24 Cal.3d 725, 731.)
The Trial Court Abused Its Discretion in Concluding that a Change in Custody Would Be in A.M.s Best Interest
The changed circumstance rule was triggered by the 1999 stipulated judgment granting mother sole physical custody of A.M. (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 760-762.) The trial court abused its discretion in impliedly finding that A.M.s expressed desire to live with father constituted " a significant change of circumstances indicating that a different custody arrangement would be in the childs best interest." (In re Marriage of Brown and Yana, supra, 37 Cal.4th at p. 956.)
The trial court did not reject mothers declaration. Instead, it impliedly found that mothers statements of fact were credible. In its tentative ruling, the trial court noted:" The declarations presented are very clear, comprehensive and thoughtful. . . . Mothers concerns are genuine." At the hearing on August 21, 2007, the trial court complimented mother on her thoroughness, sincerity, and honesty: "You have done some very thorough work. I want to give you an accolade for that. [¶] . . . I know that your comments and your paperwork were sincere and genuine. There is no question about that. [¶] This isnt a matter of either your honesty or integrity."" I want to thank you for your effort. It was honest, genuine. You put time in it. I could tell you wrote it and then rewrote it and then wrote it again. I appreciate the time and effort you put into it."
In view of mothers declaration, the trial court could not have reasonably concluded that an order granting father sole physical custody of A.M. would be in the childs best interest. Such an order would deprive A.M. of his network of close friends in Yorba Linda and would remove him to a distant location where he has no close friends. It would also separate A.M. from his 17-year-old sister, with whom "he has always had[] a very close relationship," and his 3-year-old half-brother. "[ A] family law court may enter an order which has the effect of separating siblings only when compelling circumstances dictate that such separation is in the childrens best interest." (In re Marriage of Williams (2001) 88 Cal.App.4th 808, 809.)
Moreover, an order granting sole physical custody to father would disrupt mothers efforts to help A.M. overcome academic failure. Mother retained an educational psychologist to evaluate A.M., arranged for his daily tutoring by a credentialed teacher, and changed her work schedule so that she would have more time "to facilitate tutoring and homework after school each day." Unlike mother, father did not specify in his declarations what measures he would take to improve A.M.s performance in school. Father merely stated that he would "address that issue with the local school officials" and would "work with [A.M.] to complete his homework."
Furthermore, mother said that, the day before the hearing, A.M. had expressed ambivalence about living with father. A.M. declared, "Mom, I dont know what I want." A.M. had earlier told mother that he wanted to live with father for only one year and then return to Yorba Linda. But the order changing physical custody was permanent, not for only one year.
In addition, the trial court failed to state its reasons for granting sole physical custody to father despite mothers allegations that father is an alcoholic and that both A.M. and K.M. had witnessed his "daily drinking." (AA 33) In its tentative ruling the court noted that mother "contends Father is an alcoholic," but it made no further mention of the matter. Family Code section 3011, subdivision (d), provides: "Before considering these allegations [of alcoholism], the court may first require independent corroboration, including, but not limited to, written reports" from various sources. Where, as here, the court does not require independent corroboration" and the court makes an order for sole or joint custody to the parent [about whom the allegations were made], the court shall state its reasons in writing or on the record." ( Id., subd. (e)(1).)
Finally, A.M.s statements to mother indicate that his primary motivation in requesting to live with father was that he" just want[ed] to surf more." A court should not change a longstanding custody arrangement to accommodate a childs desire to go surfing. This is especially true in the instant case where the child is failing academically, the custodial parent is taking substantial measures to improve the childs academic performance, and the noncustodial parent offers only vague generalities as to what measures he would take.
Since we have decided that the trial court abused its discretion in concluding that a change in custody would be in A.M.s best interest, we need not consider mothers alternative contention that the trial court abused its discretion in denying her request for an evidentiary hearing.
Disposition
The order granting sole physical custody of A.M. to father is reversed. The matter is remanded to the trial court, which is directed to deny fathers application for a change in physical custody. Mother shall recover her costs on appeal.
We concur:
GILBERT, P.J.
PERREN, J.