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In re Marriage of Morrison

California Court of Appeals, First District, Third Division
Apr 30, 2009
No. A117627 (Cal. Ct. App. Apr. 30, 2009)

Opinion


In re the Marriage of MATTHEW J. MORRISON and RAGHDA H. ZACHARIA. MATTHEW J. MORRISON, Respondent, v. RAGHDA H. ZACHARIA, Appellant. A117627 California Court of Appeal, First District, Third Division April 30, 2009

NOT TO BE PUBLISHED

Sonoma County Super., Ct. No. SFL-995406

McGuiness, P.J.

Raghda H. Zacharia (Mother) appeals from a judgment of the trial court denying her request to move to Texas with her and Matthew J. Morrison’s (Father) child, William, and prohibiting her from having any contact with William or going to his school on Father’s custodial days in the event she decides not to move to Texas. We affirm.

Factual and Procedural Background

The parties were married on April 30, 1995, and had one child, William, in 1997. On December 15, 1999, Mother obtained a temporary restraining order against Father based on a domestic violence incident and was awarded sole legal and physical custody of William, with no visitation to Father.

Mother also has two adult children from her first marriage.

Father was arrested the day after the domestic violence incident, pled guilty to a misdemeanor, and was placed on probation for three years.

Father filed a petition for dissolution on December 20, 1999. On December 30, 1999, family court services recommended that Mother retain legal and physical custody of William and that Father be awarded visitation twice a week from 8:45 a.m. to 8 p.m. Family court services also recommended that Father enroll in a 52-week anger management program. The trial court adopted the recommendations on January 4, 2000. On February 9, 2000, the trial court vacated the restraining order pursuant to Mother’s request but reaffirmed the January 4, 2000, custody order on February 22, 2000.

The parties attempted a brief reconciliation, and Mother requested that the restraining order be vacated on the ground that she and Father were in counseling.

On July 14, 2003, Father filed an ex parte application for child abduction prevention orders, claiming Mother had taken William to Florida on or about June 22, 2003, and had told him they were not going to return. Father declared: “We have no custody order in place, and William has consistently spent at least three nights a week with me.” The trial court granted Father’s application and awarded him sole legal and physical custody of William. The order was served on Mother in Florida on July 16, 2003, and William was taken into custody by the sheriff’s department in Florida.

The district attorney filed criminal child abduction charges against Mother, which were dismissed pursuant to the trial court’s own motion on March 20, 2006.

Mother sought to set aside the child abduction prevention orders and declared she had the right to take William to Florida because she had sole legal and physical custody of him pursuant to the January 4, 2000, order in the domestic violence prevention action. After a hearing on August 13, 2003, the trial court awarded sole legal and physical custody of William to Mother, with visitation to Father every Wednesday after school to Friday evening. On September 9, 2003, the parties agreed, and the trial court ordered, that Mother will continue to have sole legal and physical custody of William and that Father would have visitation every Wednesday after school to Saturday morning. The trial court ordered the parties to complete a custody evaluation and also noted: “A psychological evaluation is required in this case. It is difficult to assess whether [M]other intended to remain in Florida at the time she took the child there for a visit to Disney[]World. It is difficult to assess whether Father’s actions were appropriate in retrieving the child without some better information about Mother’s intent to remain in Florida. Mother did report that she was interested in relocating to Florida due to the less expensive cost of living.”

Daniel B. Pickar, Ph.D., prepared a psychological child custody evaluation report dated August 16, 2004. He wrote that psychological testing revealed Father to be “a psychologically healthy individual” and Mother to have “more areas of psychological difficulties....” He evaluated Mother’s and Father’s home environments and had no concerns regarding either of them. He found both parents were “solid parents, who do a good job raising their son,” and that Mother “seemed to be somewhat more attuned to some of the particular psychological issues with which William is struggling.” He expressed concern regarding Mother’s trip to Florida, stating “her behavior was somewhat unusual, as [Father] claimed that he had no idea that [Mother] was going to drive William to Florida, or keep him in Florida for the length of time she did.” He was also concerned that Mother “may either make negative statements about [Father] and [William’s paternal grandfather] in front of William, or subtly encourage William to make negative statements about his father.” Pickar found William had a strong bond and attachment to both of his parents, and recommended that the parents share legal custody of William and that William continue to live primarily with Mother. He recommended co-parent counseling for the parents, noting they “have little ability to co-parent at this point, and can barely speak with each other.”

The parties entered into a custody and visitation agreement that was filed as a stipulation and order on December 27, 2004. They agreed to share joint legal and physical custody of William, with his primary residence continuing with Mother. They agreed to the following custody arrangements: During all weeks other than the second week in the month, Father would pick William up from school on Tuesday afternoons and drop him off at school on Wednesday mornings, pick him up from school Thursday afternoons and drop him off at Mother’s on Saturday mornings. During the second week of any month, Father would pick William up from school on Tuesday and drop him off at Mother’s on Saturday morning The stipulation and order also set forth the parties’ holiday schedule. The parties agreed to appoint Linda Eisnitz as their special master to “choose extra-curricular activities for William if the parents cannot agree; to affect minor changes in the custody schedule, holiday times, transportation, and any other issues the parties may wish to bring to her.” The parties retained Eisnitz as their special master on December 27, 2004.

On December 30, 2005, Mother filed an order to show cause to modify custody to allow her to move to Texas with William. Pickar prepared a second psychological child custody evaluation report dated April 3, 2006. He stated that Mother wished to move to Plano, Texas, with William and that Father was “adamantly opposed” to the move. Pickar noted: “There are also many other areas of conflict between these parents with respect to William’s participation in special activities, such as sports, [and] these parents continue to have a very high level of conflict between them, with little ability to... communicate directly.” He found that previous psychological testing of Father “did not raise major concerns about his mental health functioning, and he again presents as a quite stable individual.” He stated that Mother continued to have the same psychological difficulties she had at the time of the previous report, including “not tak[ing] responsibility for her part in conflicts” and having "some difficulty engaging in collaborative relationships.” Pickar felt that Mother’s “overall psychological functioning” was “being very compromised... by the extremely high level of stress from the current custody litigation” and from “having lived under the pressure of ongoing kidnap charges against her over the last three years,” which “has also led her to be extremely angry at [Father].”

In conducting a comparison of the parties’ home environments, Pickar stated: “Because I would not be conducting a home visit in Texas, [I] viewed it as unbalanced and perhaps unfair to conduct a home visit at [Father’s] residence.” He therefore evaluated the home environments based on information provided to him by the parties and found that both Father’s home environment and Mother’s potential new home environment in Texas would be appropriate for William. As additional “subfactors,” he noted that “there are far more family members available to William in Sonoma County and Marin County, than is the case in Plano, Texas.” He also found that the Sonoma County community would provide “much more continuity with [William’s] past life and schooling, than would be the case in Texas.” He found both parents had good parenting skills. He believed William had a “relatively equivalent bond and attachment to his parents” but had a “clear preference” not to move to Texas and “was consistent about this in both sessions, whether he was brought to the session by his mother or by his father.”

Pickar stated that Mother’s reasons for wanting to relocate to Texas, including the lower cost of living and her ability to purchase a home in Texas, was “understandable.” He believed “there is a part of her that wants to get herself away from [Father]” because she “feels so stressed from the ongoing litigation with [Father], and is so angry about the fact that the kidnapping charges have been pending over the last three years.” Pickar was concerned that Mother created conflicts with Father in front of William during her non-custodial days, including going to William’s school during Father’s custodial time and confronting Father’s new wife. Pickar found it “disturbing” that Mother took William to a particular counselor “without a clear agreement from [Father] to do this,” and also noted that according to special master Eisnitz, Mother was “very uncooperative in working as part of the Special Master process.” He recommended that the parties maintain joint legal custody of William and that William stay with Father if Mother moves to Texas. He stated that if Mother does not move to Texas, the status quo custody arrangement should remain in effect and that in order to avoid exposing William to conflict, Mother should be ordered “to not be anywhere near [Father] on non-custody days. I also recommend that [Mother] should only be allowed to be at William’s school on the days in which she will have custody of William at the end of that day.”

The matter went to trial on October 11, 2006, and concluded on January 4, 2007. Over the course of 15 court days, the trial court heard testimony from the parties, Pickar, Eisnitz, child custody expert Nancy Olesen, Ph.D., who attacked Pickar’s reports, Mother’s two adult children, William’s paternal grandfather, one of Mother’s prior attorneys, Father’s new wife, one of Father’s friends, and two of Mother’s friends. On February 2, 2007, the trial court issued a 30-page Statement of Decision and Findings of Fact denying Mother’s request to move to Texas with William and prohibiting Mother from being “within 100 yards of Father, except for the purposes of peaceful exchange of William, on non-custody days,” and from being at William’s school on days in which she does not have William at the end of the day, unless the parties agreed otherwise in writing. Mother filed objections to the Statement of Decision and Findings of Fact on February 16, 2007. On March 6, 2007, the trial court issued a 32-page Amended Statement of Decision and Findings of Fact in which it modified its prior order prohibiting Mother from being near Father or at William’s school to state: “Except as otherwise ordered herein, and unless the parties agree otherwise as confirmed in writing or by e-mail, Mother shall have no contact with William, except for the purposes of peaceful exchange of William, on her non-custody days. Further, Mother shall only be allowed to be at William’s school on the days in which she will have custody of William at the end of that day. Mother shall not be at William’s school on non-custody days, unless there is an agreement of the parties confirmed in writing or by email.”

In determining that William should stay in Sonoma County with Father in the event Mother moved to Texas, the trial court evaluated numerous factors.

The interest of William in stability and continuity in the custodial arrangement

The trial court found the Sonoma County home environment would provide more consistency for William with respect to his schooling and the availability of family members on both sides of the family in Marin and Sonoma counties. The trial court believed Mother was unlikely to foster or facilitate the Father-child relationship, based on evidence that Mother is inflexible with regard to sharing custody and “has a hard time working within agreements and does not respect certain rules and limits set by the Court.”

The distance of the move

The trial court observed that visitation would be limited due to the distance between Sonoma County and Texas.

The child’s age and wishes

The trial court found that William preferred to stay in Sonoma County, although the court did not give this factor much weight because of “the child’s age [approximately nine and a half years old at the time of trial] and emotional state in light of the continuous course of conflict exhibited by his parents.”

The child’s relationship with the parents

The trial court evaluated William’s relationship with his parents, finding that each “equally loves [William] and are equally involved and invested in raising him.” It stated: “Unfortunately, the history presented of the nature of the relationship between Mother and Father is extremely troubling to the Court as it concerns William. While they generally adhere to the custody schedule as ordered, they fight over minute details; the depth of argument has to affect their child.” The trial court found that “absent the continued battling, William has a good relationship with both parents.”

The relationship between the parents including, but not limited to, their ability to communicate and cooperate and their willingness to put the child’s interest first

The trial court addressed the relationship between the parents, including their ability to communicate and cooperate and their willingness to put the child’s interests first. Noting that “the chain of events that stemmed from Mother’s trip to Florida... drastically changed the parties’ perception of one another and ability to communicate,” the trial court found “there has been a highly continuing contentious atmosphere that is only rarely overcome to allow calm communication between the parties.” The trial court found: “Mother has shown a pattern of conduct that at times is combative and confrontational. She has attempted to change William’s schedule, invade William’s time with his father by unilaterally enrolling William in extracurricular activities in direct violation of the orders of the special master. [¶] Father has requested that Mother stay away during his time with William and allow him the private quality time that he has afforded her. Mother, on the other hand, has created conflicts with Father in front of William during her non-custodial periods. [¶] The utter inability of the parties to communicate, without creating conflict, is heartbreaking to this Court. The complete disdain that each party exhibited toward each other during trial was obvious. There is no trust. There is no understanding. The parties have lost their ability to act as parents to each other. While all this occurs, William suffers. It is during these times that the parties are incapable of putting the child’s interest first. However, it appears that at all other times, when the parties are apart, each of them is able, for the most part, to consider the interests of William.” The trial court also found that Mother is the parent more likely to reduce contact between William and the other parent. It stated: “While Mother testified that she always wanted William to have a relationship with Father, and never prevented Father’s custody time, the reality is not so simple. There are numerous instances where Mother refused to allow Father to enjoy his time with William without her interference. Although Mother’s motives may have been good, the fact is that she caused conflict through her inability to allow the custodial time to proceed unfettered from her control.”

The reasons for the proposed move

The trial court found that Mother’s proffered reasons for the proposed move were reasonable and found she was not acting in bad faith.

The extent to which the parents are sharing custody

The trial court evaluated the extent to which the parents are sharing custody, finding the parents were sharing custody “under a cloud of substantial conflict” and were not good candidates for co-parent counseling.

The past conduct of the parties

The trial court evaluated the parties’ past conduct. It stated that the domestic violence incident that led to Father’s conviction occurred in 1999 and involved Father pushing Mother during a conflict relating to Mother’s then-teenage son. The trial court noted that “Dr. Pickar has described the incident as isolated and of little weight and concern as it relates to William six or seven years later in that [it] is merely ‘situational couple violence’ versus the m[o]re serious form of ‘intimate terrorism.’ ” The trial court also noted that Father had completed a 52-week anger management course and three years of probation without any further negative events. The trial court also addressed Father’s past conduct of calling the police when conflicts between him and Mother occurred. The court provided an example of Mother creating a conflict with Father in front of William and stated, “It is this sort of aggravated conduct that causes Father to call the police when incidents occur.” The trial court noted: “To be clear, the Court is not determining that Father is fault free, nor does it condone the conduct of parents who consistently resort to calling the police when there is any domestic dispute. Both parents are, to some extent, responsible for the police calls.”

With respect to Mother’s past conduct, the trial court found: “Of greatest concern and extremely important to this Court is Mother’s attempt to unilaterally move to Florida with William without the consent of Father. While Mother has testified in trial that she never intended to move to Florida and that she only intended to purchase investment property while visiting there, a myriad of evidence contradicts her testimony.” The trial court listed several ways in which Mother’s trial testimony conflicted with her prior testimony, statements, and actions. The trial court stated: “In sum, the court determines that Mother intended to move to Florida at a time where Father and she had been sharing custody of William, regardless of what the custody order stated. Important is not whether, at the time, Mother had the legal right to move without permission. Of significant concern to the court is that Mother was unaware of her right to do so, and began orchestrating such a move anyway. While the legal effect of the then-existing order exonerated Mother with respect to the resulting kidnap[p]ing charges filed against her, the court still considers her conduct as relevant to the issue of the best interests of William in light of the potential move of Mother.” The trial court also found that Mother willfully failed to follow the Special Master’s order regarding the exchange of custody during the Christmas holiday and that she attempted to sign William up for extracurricular activities that imposed on Father’s custodial time, even though she had been advised by the Special Master and the court to refrain from doing so.

The move’s impact on the child

The trial court evaluated the move’s impact on William and agreed with Pickar that it would be “a far bigger adjustment” and “a much more difficult situation” for William to move to Texas. The trial court noted that William will have no relatives other than his mother in Texas. It noted that Father’s new wife was close to and supportive of William, that William likes spending time with his paternal grandfather who lives in Novato, and that Father had additional extended family in the bay area, including siblings and “an extensive network of uncles and cousins.”

Mother filed a timely notice of appeal.

Discussion

A. Move-away order

When a move-away contest comes after a permanent custody order is in place, the “changed circumstances” rule applies, i.e., the noncustodial parent has the “substantial burden” of demonstrating a change of circumstances of a kind that renders it “essential or expedient for the welfare of the child” that custody be modified. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089 (LaMusga); see also In re Marriage of Burgess (1996) 13 Cal.4th 25, 35, fn. 4, 37-38 (Burgess).) However, when the parents have joint physical custody of the child and one parent seeks to move away with the child, the changed circumstances rule does not apply; instead, a trial court must determine de novo what custody arrangement is in the child’s best interests. (LaMusga, supra, 32 Cal.4th at p. 1089, fn. 3; Burgess, supra, 13 Cal.4th at p. 40, fn. 12.)

This different analysis “arises out of the disruption of the status quo which necessarily inheres in a move-away case where there is genuine joint physical custody since, in such an instance, it is unavoidable that the existing custody arrangement will be disrupted. One parent or the other must be given primary physical custody.” (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142.) In a joint custody situation, the trial court looks at a “level playing field,” i.e., neither parent has an advantage in the move-away contest because both have been the child’s physical caretaker. (Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1204-1206 [the key issue is who should have primary physical custody in light of all relevant circumstances after the moving parent relocates].)

We review a child custody decision under the deferential abuse of discretion standard. (Burgess, supra, 13 Cal.4th at p. 32.) We affirm if “the trial court could have reasonably concluded that the order in question advanced the ‘best interest[s]’ of the child.” (Ibid.; see also In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 [trial court’s order will be overturned only if, considering all evidence viewed most favorably in support of the order, no judge could reasonably make the order].) An appellate court is not a “ ‘second trier of fact’ ” and we therefore “ ‘do not reweigh evidence or reassess the credibility of witnesses.’ ” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531).

Mother argues the de novo standard of review applies because the trial court “gave weight to factual findings that are not supported by substantial evidence,” “gave too much weight to factors of minimal relevance without giving weight to factors of significant relevance,” “did not give any significant weight to factual circumstances that needed to be evaluated in exercising its discretion,” “gave significant weight to irrelevant factors,” and “did not actually reach the relevant issue: whether the move would relieve, aggravate, or not have any effect on the problems that were at issue.” All of these contentions, however, go to whether the trial court properly exercised its discretion, not to whether there was legal error warranting de novo review.

Under the deferential standard we are required to employ, the record here amply supports the trial court’s determination that William should stay in Sonoma County and live primarily with Father in the event Mother moves to Texas. The trial court found the parents had joint physical custody of William and therefore evaluated the move-away request based on a best interests standard. The trial court reviewed various factors as set forth above, including William’s need for stability and continuity, the level of conflict between his parents, and his parents’ past conduct. William’s connection to his past life and schooling in Sonoma County, the disruption the move would cause, his preference to stay in Sonoma County, and the availability of more family members in Sonoma and Marin counties are all factors that supported giving Father custody. The undisputed evidence of hostility between the parents, combined with evidence that Mother tried to interfere with Father’s custodial time and was the parent less likely to foster the child’s relationship with the other parent, were additional important factors that favored keeping William in Sonoma County.

Mother does not dispute this finding on appeal.

Mother contends the trial court erred in denying her move-away request because “[m]any critical findings by the trial court are not supported by substantial evidence.” As noted, in conducting our review, we ask “whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest[s]’ of the child” (Burgess, supra, 13 Cal.4th at p. 32); we need not conclude that each of the trial court’s individual findings has substantial support in the record so long as we conclude that the best interests of the child finding is a reasonably supported exercise of discretion. (See In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1343 [“We ask ‘... whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child’ ”].) Nevertheless, based on our review of the record, we conclude there was substantial evidence supporting each of the findings Mother challenges on appeal.

1. Florida trip

Mother claims there was no substantial evidence to support the trial court’s finding that she was unaware of her right to move to Florida at the time she began planning her move. As noted, the trial court found with respect to the Florida trip: “Mother intended to move to Florida at a time where Father and she had been sharing custody of William, regardless of what the custody order stated. Important is not whether, at the time, Mother had the legal right to move without permission. Of significant concern to the court is that Mother was unaware of her right to do so, and began orchestrating such a move anyway.”

As Mother points out, her prior attorney, James Fisher, testified that Mother told him, presumably before she left for her Florida trip, that she had sole legal and physical custody of William. However, Fisher also testified there was an ambiguity in the order that made it unclear whether Mother in fact had sole legal and physical custody, and that “it was a question when she left I didn’t have the answer to.” Fisher testified he researched the issue while Mother was in Florida by, among other things, ordering a hearing transcript, and that when he learned that Mother in fact had sole legal and physical custody, he called her in Florida to tell her he had “just found out” this information. Fisher further testified that he never told Mother she had the right to move to Florida with William and that it was his general practice to discuss standard mutual restraining orders with clients.

The summons attached to the petition for dissolution sets forth standard mutual restraining orders prohibiting, among other things, “both parties from removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.” (Fam. Code, § 2040, subd. (a)(1).)

Moreover, Mother testified that Fisher called her while she was in Florida “and he said that he found that I do have sole and legal custody and when I come back... it shouldn’t be that difficult for me if I choose to move.” Mother testified she “got excited” when Fisher “called [her] and said what’s the status of [her] custody.” Thus, the evidence shows that although Mother may have believed she had sole legal and physical custody of William at the time she left for Florida, she was not certain of this fact until Fisher called her, and was also unaware that her custody status meant “it shouldn’t be that difficult for [her]... to move.” Substantial evidence supports the trial court’s finding that Mother “began orchestrating” the move to Florida before she knew she had the right to do so.

Mother also argues with respect to the Florida trip that the trial court unfairly “exonerated Father for filing false felony charges” against her. There was evidence, however, that Mother did not tell Father until the day she left for Florida that she was going to take William to Florida. Mother also did not tell Father how long she and William were going to be gone, and telephone records contradicted Mother’s testimony that she called Father everyday to inform him of their whereabouts. According to Father, Mother had threatened to move away with William on “numerous” previous occasions, and told him twice while she and William were in Florida that they were not going to return to California. There was evidence that Father had made plans with Mother to take William on a vacation during the Fourth of July weekend, but Mother failed to return William to California in time for this vacation. Although the custody order in effect when Mother took William to Florida may have provided for sole legal and physical custody to Mother, it was undisputed that Father was seeing William regularly during that time, at least two nights a week. In light of the above evidence, the trial court could reasonably conclude that it was understandable for Father to seek child abduction orders to ensure William’s return.

2. Interference with custodial time

Mother contends that the trial court’s finding that she “created conflicts that seriously interfered with Father’s custody time is not supported by substantial evidence.” She points out that “nearly all of... Father’s documented police calls were made during Mother’s custodial time,” presumably to show he was interfering with her custodial time. Regardless of when the calls were made, however, there was evidence presented of actual instances in which Mother attempted to interfere with Father’s custodial time with William, including those in which Mother showed up unannounced at Father’s house during Father’s custodial time, showed up at William’s paternal grandfather’s house during Father’s custodial time when William was with the grandfather, and showed up at William’s school during Father’s custodial time. Each of these situations resulted in conflicts that caused Father or the paternal grandfather to call the police. The trial court also found that Mother was the one responsible for creating a conflict during a custody exchange that occurred during the course of trial and noted “[i]t is this sort of aggravated conduct that causes Father to call the police when incidents occur.” There was no similar evidence presented of such repeated attempts by Father to interfere with Mother’s custodial time. Substantial evidence supports the trial court’s finding that Mother created conflicts that interfered with Father’s custodial time with William.

3. Christmas holiday custody exchange

Mother claims “the trial court’s finding that [she] willfully failed to follow a Christmas exchange order is not supported by substantial evidence.” The record, however, supports this finding. The trial court found: “The existing order in this matter is the effective order of December 2004, wherein the Court ordered that William spend Christmas Eve with Mother and Christmas Day with Father. Because of the confusion regarding the actual time exchange, the Special Master, Linda Eisnitz, issued an order prior to the close of her term that the exchange would occur at 9:00 p.m. on Christmas Eve.... According to the Order After Hearing and the Order Regarding Special Master, such orders that are made by the Special Master become effective and are not changed unless modified by the Court, and they survive the Special Master. This Court finds that Mother willfully failed to follow an existing court order regarding the exchange of William on Christmas and sought to manipulate the situation and, thus, create an additional potential confrontation by refusing to resolve this issue in advance through counsel.”

There was testimony by both parents that Mother on one occasion did not provide William to Father until 10 a.m. on Christmas Day, despite an order requiring the parties to exchange custody at 9 p.m. on Christmas Eve. Mother does not dispute that Eisnitz instructed the parties to conduct the exchange at 9 p.m. on Christmas Eve but argues she did not have to follow the instruction because Eisnitz had the authority only to make recommendations, not to issue orders. Mother is incorrect. The Order Regarding Special Master provides: “3. The Special Master may make orders resolving conflicts between the parents which do not affect the Court’s exclusive jurisdiction to determine fundamental issues of custody and visitation.... The Special Master may make decisions regarding possible conflicts the parties may have on the following issues, and that such decisions are effective as orders when made and will continue in effect unless modified or set aside by a court of competent jurisdiction: [¶]... [¶]... Sharing of holidays and vacation.” In bold print, the Order Re Appointment of Special Master also provides: “WARNING: Both mother and father should assume that the Special Master’s decision on the issues listed in paragraph 3 will be final.” Mother also argues that Eisnitz’s schedule was “highly questionable” because “the logical conclusion from the wording that ‘Mother will have custody on Christmas Eve; Father will have custody on Christmas Day,” was that she would have him the entire evening, not just until 9:00 p.m. The fact that Mother believed Eisnitz’s order was “highly questionable” or illogical did not excuse Mother from following it.

4. Violation of court orders and rules

Mother argues there is no evidence to support the trial court’s finding that she violated court orders or did not follow rules set by the court. As noted, however, Mother failed to abide by Eisnitz’s order regarding the Christmas holiday exchange. There was also evidence she violated the special master’s recommendations by enrolling William in certain extracurricular activities that imposed on Father’s custodial time. Further, Pickar found it disturbing that Mother took William to a counselor without a clear agreement from Father to do so, in violation of joint custody principles that require parents to make such decisions jointly, not unilaterally.

5. The trial court’s “stability and continuity” findings

Mother argues that the trial court’s “stability and continuity” findings are based upon a lack of consideration of the essential circumstances to be evaluated because the court “fail[ed] to give any consideration whatsoever to the fact that its order separates William from the person who has been his primary caretaker since his birth.” In its 32-page Amended Statement of Decision, however, the trial court thoroughly evaluated William’s relationship with each of his parents and noted Pickar’s findings that Mother was “likely somewhat more attuned to William’s special needs and difficulties.” The trial court also acknowledged that Mother was, “[f]or the most part,... a very good parent” with an “excellent psychological and developmental understanding of her son,” and that she was “warm and affectionate [and] emotionally attuned to him.” The trial court was also aware that Mother initially had sole legal and physical custody of William and that Father spent more limited time with William, but found more relevant the most recent custody arrangement in which they shared custody more equally. The trial court also evaluated Father’s relationship to William, finding he was a very good parent who was involved in his son’s life. The Amended Statement of Decision shows the trial court evaluated all factors, including William’s relationship with both parents, in determining that in the event Mother decided to move to Texas, the best interests of William required that Father be given custody of him.

6. The trial court’s “home environment” findings

Mother contends that the trial court’s “home environment” findings were “flawed” in several ways. She claims the trial court, “[w]hile entirely ignoring the effect of removing William from his primary caretaker since birth,... placed great reliance upon the importance of keeping William close to his ‘extended family’ in California.” The trial court did not suggest in any way, however, that William’s relationship with his extended family in California was more important than his relationship with his mother. Instead, the record shows that the availability of extended relatives in Sonoma and Marin counties was simply one factor, among many others, in favor of keeping William in Sonoma County.

Mother also notes that the trial court’s finding that Father’s home environment was appropriate was improperly based on the opinion of Pickar, who did not conduct any home studies, did not look into Father’s “roommate situation,” and did not analyze William’s relationship with his stepsister (Father’s new wife’s daughter). However, Pickar reasonably explained why he did not conduct a home visit, as follows: “Because I would not be conducting a home visit in Texas, [I] viewed it as unbalanced and perhaps unfair to conduct a home visit at [Father’s] residence.” Further, although Pickar did not investigate Mother’s concerns regarding one of Father’s tenants, the trial court heard testimony regarding Father’s “roommate situation” and the evidence showed the person whose stepfather may have been a registered sex offender was not a tenant but a short-term visitor who had stayed at Father’s house for two weeks. There was also no evidence the stepfather had ever been to Father’s home. Finally, although Pickar did not evaluate William’s relationship with his new stepsister, the evidence showed there was no need to do so because the stepsister lived primarily with William’s paternal grandfather, and there was nothing in the record indicating that their relationship was problematic in any way or negatively affected Father’s home environment.

Mother was concerned that one of Father’s tenants had a stepfather who was a registered sex offender.

7. Fostering the parent-child relationship

Mother contends there is no substantial evidence to support the trial court’s finding that she was unlikely to foster the Father-child relationship. The trial court’s finding, however, was supported by evidence set forth above, including Mother’s tendency to interfere with Father’s custodial time, and the difficulty she had working within agreements. Mother’s trip to Florida and her act of sending William to a counselor without Father’s consent are also relevant to show that she acts unilaterally and does not include Father in decisions regarding William.

8. Conflict between the parties

Mother argues that the trial court, in denying the move-away request, improperly considered her acts of creating conflicts or interfering with Father’s custodial time, because such problems would be resolved if William were allowed to move to Texas with her. While we acknowledge that Mother’s move to Texas, with or without William, would likely decrease the level of conflict between the parties due to their geographical distance and fewer custodial exchanges, this does not render irrelevant the issue of which parent is more likely to foster the child’s relationship with the other parent. (See LaMusga, supra, 32 Cal.4th at p. 1094 [upholding trial court’s reliance on parents’ history of animosity and uncooperative co-parenting as significant factor in modifying physical custody from custodial move-away mother to noncustodial father]; see also Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 998-999 [which parent is more likely to share custody of the child and foster the child’s relationship with the other parent is relevant in determining who the custodial parent should be in a move-away case].) In fact, because of the high level of conflict in this case, it was especially important for William to be with Father, who was the parent less likely to interfere with William’s relationship with the other parent.

In light of our conclusion that there was substantial evidence to support each of the trial court’s findings that Mother challenges on appeal, we also reject her claim of cumulative error.

B. Prohibition against contacting William or going to his school on non-custodial days

Mother contends the evidence does not support the order prohibiting her from having any contact with William or going to his school during Father’s custodial time. We disagree.

There was, as the trial court noted, an “unusually high level of conflict between these parents, and particularly when William was in his father’s custody.” The evidence, as noted, showed Mother had difficulty allowing Father to spend time with William without her interference by, among other things, going unannounced to Father’s house, the paternal grandfather’s house, and William’s school, during Father’s custodial time, creating conflicts that at times caused Father or the paternal grandfather to call the police, often in front of William. According to Pickar, the teachers at William’s school “noted that [Mother] would frequently come into school, even on her non-custody days,” and on one occasion “came to the school and got very angry that she was not the one called when William was sick,” even though William had gotten sick during Father’s custodial time.

Before her term as special master expired, Eisnitz issued an order instructing Mother as follows: “When William is with his father you are not to call him without prior authorization. If William wants to call you he should be allowed to do so. If you need to communicate something to William, you will do it via e-mail to [Father]. If it is of an urgent nature, you will leave a voice mail message on [Father’s] cell phone. When William is with his father you are not to go to nor near his or his father’s home nor interfere with William’s time with his father in any way.” After an extensive evaluation, Pickar recommended that Mother should be ordered “to not be anywhere near [Father] on non-custody days” and that she “only be allowed to be at William’s school on the days in which she will have custody of William at the end of that day.” Olesen, who testified as an expert for Mother, agreed with Pickar’s recommendation “that [Mother] be told not to be anywhere close to” Father and that she has “certainly recommended that a parent not go to the school on the other parent’s custodial day where there is very high conflict because of the opportunities for conflict getting worse.”

The high level of conflict between the parties, Mother’s history of interfering with Father’s custodial time and creating conflict in front of William, and the opinions and recommendations of Pickar, Eisnitz and Olesen show the trial court’s order prohibiting Mother from having contact with William or going to his school during Father’s custodial time was necessary to protect William from further confrontation.

Mother contends the order was improper because Father never requested a restraining order. The order, however, prohibits Mother from contacting William during Father’s custodial time, and is not a restraining order against her in favor of Father. Mother also argues the order is “overly broad” because it does not provide for any exceptions. Mother provides numerous examples, such as not being able to speak to William if he calls her on her birthday, or not being able to attend a parent-teacher conference at William’s school if it falls on Father’s custodial day. The order provides, however, that Mother may have contact with William or go to his school on Father’s custodial days if the parties agree, “in writing or by e-mail,” to allow the contact. In the event Father unreasonably refuses to agree or the order otherwise does not appear to be serving the best interests of William, Mother may, of course, seek modification of the order at that time.

Disposition

The judgment is affirmed. Father shall recover his costs on appeal.

We concur: Pollak, J., Jenkins, J.


Summaries of

In re Marriage of Morrison

California Court of Appeals, First District, Third Division
Apr 30, 2009
No. A117627 (Cal. Ct. App. Apr. 30, 2009)
Case details for

In re Marriage of Morrison

Case Details

Full title:In re the Marriage of MATTHEW J. MORRISON and RAGHDA H. ZACHARIA. MATTHEW…

Court:California Court of Appeals, First District, Third Division

Date published: Apr 30, 2009

Citations

No. A117627 (Cal. Ct. App. Apr. 30, 2009)