Opinion
C042946.
10-9-2003
In re the Marriage of MICHELLE and JOHN J. VAUGHN. MICHELLE VAUGHN, Appellant, v. JOHN J. VAUGHN, Respondent.
Michelle Vaughan (mother) appeals from a family court order modifying visitation with her minor children, Tyler, a son born in May 1990, and Hailey, a daughter born in November 1993. Their father, John Vaughan (father), has legal custody of the children. Mother contends the family court abused its discretion in ordering the modification. We agree in part and shall reverse.
FACTUAL BACKGROUND
I
The History of Custody and Visitation Disputes
For most of the childrens young lives, their parents have been fighting over their custody and visitation. To place this appeal in context, we begin with a review of the arrangements in effect since the parties dissolution in 1995.
The marital settlement agreement, which was incorporated into the judgment of dissolution, provided for joint legal and joint physical custody of the children, with mother designated as the primary custodian of the children with father granted unsupervised visitation on the first, third, and fifth weekends of every month.
In 1996 father filed a motion for modification. The matter was referred to the mediator for Tehama County, Heidi Uptegrove, who recommended he obtain custody. In a report filed August 30, 1996, Uptegrove wrote that Tyler was disrespectful of mother and appeared to be beyond her control, which could lead to delinquency problems; mother continued to frustrate fathers limited visitation with the children, whether through lack of awareness or intentional obstruction; and mother appeared to be manufacturing illnesses in the children in order to curtail fathers visitation.
Uptegrove noted that Child Protective Services had been contacted several times since the divorce regarding mothers treatment of Tyler. In June 1996, a neighbor reported that she had overheard mother call Tyler a "fucking little asshole"; mother threatened to leave Tyler at the circus; mother was overheard on the telephone threatening to kill Tyler; and when Tyler came home from school with head lice, she cut his hair in the front yard, which brought Tyler to tears. When questioned about these events, mother denied using profanity and explained that she cut Tylers hair in the front yard to keep the residence from becoming contaminated.
On June 2, 1997, the family court found that mother had not acted in the childrens best interests and granted father physical custody of the children, with supervised visitation by mother.
On September 8, 1997, the parties stipulated that mother would have supervised visitation on the first, third, and fifth weekend of every month.
The matter was again referred to Uptegrove in April 1998, after father filed a motion seeking sole legal custody. Uptegrove reviewed tapes of telephone conversations between the parents and children and reported that mother repeatedly encouraged Hailey to live with her and not to listen to father or his new wife, Kelly. Uptegrove noted that Tyler did not want any visitation with mother. She recommended father be given sole legal and sole physical custody, with mothers visits supervised by a nonfamily member, since supervision by a friend or family member had not worked out.
Following a contested hearing in August 1998, the family court granted father sole legal and sole physical custody of the children. Mother was to have "supervised visits with the children every other weekend, between four and eight hours."
In October 1999, father was charged with a misdemeanor violation of Penal Code section 273.5 for inflicting corporal injury upon Kelly. Although father later explained that the charge stemmed from an accident and was pursued at the behest of mother, he pled no contest and was placed on three years probation, with one day in jail.
In December 1999, the parties stipulated that mother could have unsupervised visitation on the first, third, and fifth weekend of every month.
In March 2000, the family court issued a temporary restraining order against father and transferred custody to mother based upon fathers domestic violence conviction and mothers allegations that Tyler appeared to have bruises on his leg following a visit with father. Mothers declaration said Hailey informed her the bruises were inflicted by Kelly during an argument with Tyler over discipline. In his response, father said the bruises had actually been inflicted by mother "years ago" and that mother was "trying to manipulate the system." He also explained the circumstances surrounding the domestic violence charge and his reasons for pleading no contest. Upon reviewing fathers responsive papers, the family court vacated its temporary custody order in favor of mother and referred the matter to mediation.
Uptegrove filed another mediation report in April 2000. She had contacted the social worker assigned to investigate the bruises on Tylers leg. The social worker reported that no action had been taken because the bruises appeared to be nothing more than eczema. Uptegrove also spoke with Tom Young, a licensed marriage and family therapist and licensed school psychologist, who had been involved in the custody dispute "from the beginning." Young said each time mother obtained unsupervised visitation, "the case becomes unstable." Father and Kelly had attempted to work with mother by telephone, but mother continually questioned the children about fathers family, and made remarks that she was their real mother.
Uptegrove expressed concerns over mothers sporadic administration of medication to Tyler, and that her report of corporal injury by Kelly was unfounded. She also was concerned that mother called sheriffs deputies to remove the children from fathers residence while they were still in their pajamas and took Tyler to a doctor shortly thereafter to have his blood drawn. The report concludes: "Tom Young and this mediator believe [mother] is incapable of having a healthy relationship with these children."
Following a hearing, the family court granted legal custody to father and joint physical custody with father being the primary caregiver. Visitation by mother was to be supervised by a licensed clinical therapist. Mother was ordered not to discuss custody issues with the children.
In July 2001, mother filed a motion to have unsupervised visitation. Uptegrove issued a report in August 2001 recommending that mothers visitation continue to be supervised, although expanded. The parties resolved the motion by a stipulation allowing mother to have unsupervised visitation, gradually increasing to a schedule of alternating weekends. The parties also agreed to meet monthly with Dr. Ruth Braun, the psychologist who supervised visitation, to evaluate whether visitation should increase.
On June 12, 2002, Dr. Braun sent a letter to the parties attorneys recommending that mothers visitation be increased over the summer.
On June 28, 2002, Uptegrove filed a lengthy report that disagreed with Dr. Brauns recommendation. She noted that mother had continued to discuss custody issues with the children notwithstanding the family courts order to the contrary. She noted the first unsupervised visit occurred at the home of mothers parents, where a male cousin who was living with the grandparents exposed himself to Tyler. Tyler did not want to increase visitation because it would interfere with his baseball games. Mother "grudgingly" took Tyler to his games and tried to make him feel guilty for not spending more time with "family." Hailey, on the other hand, had demonstrated behavior problems since the commencement of unsupervised visitation with mother. In Uptegroves view, Dr. Braun was not sufficiently attuned to the dynamics of the custody dispute, tending to dismiss them as normal.
The report concludes: "Of primary concern, however, is the fact that [mother] appears to be incapable of having unsupervised visitation. She started badgering the children on the very first visit, telling them what to do re custody and visitation, telling them what names they may call Kelly and her relatives, quizzing them for information, and generally destabilizing them. [¶] Tom Young and this mediator have been involved with this family for several years. When [mother] had custody or whenever she receives unsupervised visitation, problems begin. Now that [mother] has once again received unsupervised visitation, she starts out where she left off, again badgering the children. [¶] While Dr. Braun may mean well, she has not helped this case. When the matter was referred last year, Dr. Braun, even though she was just the supervisor, made the recommendation that the case be reviewed. It once again brought the case and the children to stress level. Now she has recommended that [mother] receive expanded, unsupervised visitation, and unfortunately, this cannot be recommended. Until [mother] learns to follow court orders, she needs to receive supervised visitation so these children will not continue to be hammered."
II
The Current Custody Proceeding
In July 2002, father filed the motion which is the subject of this appeal. Based on Uptegroves report, and several additional facts, he requested that mothers visitation be supervised. Father declared that the childrens cousin, who resides at the residence of mothers parents, had recently locked Tyler in a shed on a 100-degree day and swore at mother when she asked that Tyler be let out.
The family court held a hearing in October 2002. Tyler testified that unsupervised visitation every other week was acceptable, but that his mothers questions about fathers household made him feel uncomfortable. He testified that his mother once threatened not to take him to any of his baseball games, and she once asked him whether baseball was more important than family. He acknowledged, though, that he had not missed any baseball games when staying with mother, and that she would occasionally watch his games. He also verified the incident where his cousin shut him in a shed while visiting his mother.
Hailey testified that she would like to have visitation with mother every weekend. Hailey was upset, however, when mother refused to allow her to attend a Girl Scout camping trip one weekend and a Girl Scout field trip to a water park. She acknowledged that she felt uncomfortable when mother asked her about custody issues.
Mother testified that she did not allow Hailey to attend the Girl Scout events because father would not change visitation to accommodate the events. Mother also testified that she made extra efforts to ensure that Tyler was able to attend his baseball games. She testified that she did not believe she told Tyler family was more important than baseball, and that, if he so testified, he would not be telling the truth.
Uptegrove testified: "If I knew of some way to give these children a healthy visitation with [mother], I would welcome it. But I am at my wits end to allow these children not to get constantly quizzed and badgered." She also testified that mother was unyielding regarding scheduling conflicts and that father was more accommodating.
Tom Young testified that mother pressured the children about wanting increased visitation whenever court hearings approached. In Youngs opinion, visitation should be supervised.
Dr. Braun testified that she had supervised approximately 25 visitations between the children and mother, and that she did not detect anything unusual. She believed that visitation should be unsupervised.
The family court ruled as follows: "It is the [c]ourts opinion that [mother] is either too self-absorbed, self-centered and/or arrogant to care about the kids, or she just lacks intelligence to sense how her conduct is affecting the kids. The scars [mother] is leaving on the children are not apparent, and [they] will not be apparent for some time. Kids, despite their parents downsides, love their parents. It is clear these kids love both of their parents. However, the mental abuse this mom has imposed on these kids is not tolerable." The family court noted that mother was overly rigid in her dealings with visitation, insisting on written modifications, and that she was unwilling to accommodate special events associated with Girl Scouts. She also had a lack of interest in Tylers baseball. The family court also observed that unsupervised visitation was detrimental to the children.
The family court ordered supervised visitation for mother for four to eight hours in length on alternating Saturdays. The order also states: "If either child has a sporting event on [mothers] scheduled weekend visits, she shall lose that visit. It shall not be made up. [Father] is directed to provide [mother with] any and all schedules of sporting events, including practices. Petitioner, of course, may attend any of the sporting events if that is her wish. The Petitioners visits shall also be superseded by any yearly event for Girl Scouts (i.e., a weekend Jamboree or the Splash event). In other words, she loses her visits those weekends and they shall not be made up. There shall be no special arrangements for holidays, other than as set forth hereinabove, save and except that Respondent shall have Labor Day every year, [even] if it falls on Petitioners weekend supervised visits."
DISCUSSION
Mother contends the order denying make up visitation is against the childrens best interest; the visitation schedule gives father unfettered discretion to alter the visitation schedule; and the courts order effectively terminated mothers visitation rights.
"`The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] Under this test, we must uphold the trial court `ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.] . . . [¶] Under Californias statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The family court and the family have `the widest discretion to choose a parenting plan that is in the best interest of the child. (Fam. Code, § 3040, subd. (b).) When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. ([Fam. Code,] § 3011.)"[] (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, fn. omitted.)
Family Code section 3020 sets forth the legislative policy regarding custody and visitation: "(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the courts primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. [¶] "(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, . . ."
I
The Provision for Supervised Visitation
To begin with, we note that the overall custody and visitation order was in general alignment with the custody and visitation arrangements that had been in effect for many years. For most of the period following the dissolution in 1995, father had custody, the children resided with him, and mother had limited visitation, generally on alternate weekends. Mothers visitation had oscillated between supervised and unsupervised, depending on the circumstances. A recurring problem with unsupervised visitation had been its negative effect on the children. Their behavior problems increased when visitation was unsupervised. Mother appeared unaware of the importance of extracurricular activities like baseball and Girl Scouts. She also repeatedly involved the children in the details of custody and visitation matters, even though they had expressed discomfort over the topic. She violated the courts continual admonishments to refrain from such conduct.
Uptegrove and Young were in agreement that unsupervised visitation was not in the childrens best interest, while supervised visitation allowed for improvement in mothers relationships with Tyler and Hailey. Therefore, the family court, in reverting to supervised visitation, returned to the model that had worked over the years. This aspect of the courts order was a sound exercise of discretion and is supported by substantial evidence in the record.
II
The "Bright Line" Rule on Extracurricular Activities
A more unusual provision of the visitation order involves potential conflicts between the childrens extracurricular activities — baseball and Girl Scouts — and scheduled visitation with mother. The family court clearly felt it could not trust mother to ensure the children would attend the activities. Accordingly, the family court ordered father take responsibility for these activities even if they came during mothers visits, which once missed would not be made up. This provision applied if either child had such an activity.
In its ruling the family court mentioned certain recurring themes in the relationship of the parents over the years: mothers disregard of clear court orders restraining her from discussing custody issues with her children, mothers lack of awareness of the effect of those discussions on the childrens well-being, mothers lack of appreciation of the importance of the childrens extracurricular activities, mothers repeated efforts to modify custody or visitation based upon the slightest justification, and mothers recalcitrance regarding scheduling conflicts.
Faced with this scenario, the family court fashioned a "bright line" rule giving father the responsibility for the childrens extracurricular activities. While the order may appear arbitrary at first glance, upon closer inspection, it withstands scrutiny as a justifiable exercise of the family courts discretion and is supported by substantial evidence in the record.
III
The Provision for Forfeiting Missed Visits
The provision of the family court order that does not allow make up visitation for mother when her visits conflict with extracurricular activities is another matter. Mother argues that not allowing her to make up missed visits arbitrarily denies her right to visitation.[] We agree.
Mother also focuses on potential misuse of the order by father to curtail mothers visitation unnecessarily. She also claims the order gives father unfettered discretion to set visitation. There is nothing in the record showing father has in fact misused the order as mother suggests.
A
The Provision is a Penalty
In light of the history of visitation conflicts, we do not doubt the family court envisioned conflict and rancor over negotiations to reschedule missed visits, and the likely involvement of the children in the parents disputes. We can understand why the family court would simplify matters in order to short-circuit these foreseeable difficulties and provide mother loses visitation whenever there is a conflict with extracurricular activities.
The record, however, shows the children want to see their mother and the family court found that it is in their best interest to continue this contact. No one at the hearing suggested mothers visitation be cut off. The family courts order already limits mothers visitation to 26 Saturdays a year for four to eight hours. If just one ball game or Girl Scout activity conflicts each month, this will reduce mothers visitation by almost one half.[] This reduction would occur automatically without any action by mother and would, in effect, serve as a penalty for past misconduct. The family court did not consider any other way of dealing with the missed visits which would preserve mothers visitation time. Tyler testified he never missed a ball game while mother was responsible, albeit she was not interested and supportive. The record does not support this drastic forfeiture.
Significantly, the record does not show the number of potential conflicts although there was testimony that in the past Hailey identified two Girl Scout functions that she missed, and Tyler testified he played baseball in the summer.
B
Further Limiting Mothers Visitation may not be in the Best Interest of the Children
The family court has determined that alternate Saturday visitation is in the best interest of the children. Limiting mothers visitation further in an unknown amount may not be in the best interest of the children. The family court did not determine the extent of the reduced visitation from conflicts with extracurricular activities. In addition, there is no evidence in the record as to the effect on the children of further reduced visitation. In its well-meaning attempt to provide for the childrens extracurricular activities, the family court did not consider the potential adverse effect on the children of a potentially significant reduction of visitation between the children and their mother.
Based on the record before us, we cannot conclude there is substantial evidence in the record supporting the provision in the order providing for forfeiture of mothers visitation when in conflict with the childrens extracurricular activities. Since it is not supported by substantial evidence, the court abused its discretion. The order cannot stand.
DISPOSITION
The provision of the order providing for forfeiture of visitation which conflicts with extracurricular activities is reversed. In all other respects, the order is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a).)
We concur: SCOTLAND, P.J. and RAYE, J.