Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. 04D000174, Michael J. Naughton, Judge.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Appellant.
Western State University, College of Law, Civil Practice Clinic, and Terence W. Roberts for Respondent.
OPINION
SILLS, P. J.
Misty Vild-Trippanera appeals from the order of the superior court denying a full evidentiary hearing on her petition to modify child custody. We affirm.
FACTS
Scott Trippanera and Misty May Vild-Trippanera were divorced in December 1997 and were awarded joint legal and physical custody of their only child, Catlin, born in 1992. Misty was granted primary physical custody, with reasonable visitation for Scott, as set out in an attachment to the judgment of dissolution.
The parties’ first names are used to prevent confusion and no disrespect is intended. (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1119, fn. 1.)
The custody arrangement was reversed in December 2004, when primary physical custody of Catlin was awarded to Scott after his filing of an order to show cause (OSC) re modification. The order was granted in part because Misty had twice moved the child to another county with little or no notice to Scott, which the court considered “a change of circumstances which affect[ed], in a material way, the best interests of the minor child . . . .” For reasons not revealed by the record, the court’s minute order regarding this change of custody was not issued until March 2005. Meanwhile, Scott took custody of Catlin in January 2005 and enrolled her in Yorba Middle School in Orange. He moved Catlin to Crystal Cathedral Academy in Garden Grove for the school year beginning September 2005.
The trial court recalled its granting of Scott’s OSC: “Let me tell you, because I remember this. The dissolution originally took place in Los Angeles County. Mom decided, unilaterally, without telling Dad to move down to Orange County. And rather than complain, he relocated down to Orange County. As soon as he got down here and started establishing a relationship, Mom moved again with almost no notice to Dad. That led me to change custody because I felt at the time it appeared quite likely that Mom really wasn’t the parent who was able to share custody with the non-custodial parent, which is one of the things that is mentioned in the Family Code.”
In July 2005, just four months after the court’s order was issued, Misty filed her own OSC re modification requesting that primary physical custody of Catlin be returned to her. The OSC indicated that Misty was also requesting an order to determine arrears in child support from the December 1997 judgment of dissolution, a possible offset of attorney’s fees she owed to Scott under the court’s March 2005 order, and appointment of counsel for Catlin. The accompanying declaration alleged a “substantial change of circumstances since the last Court order of December 29, 2004.”
Additionally, Scott filed an OSC on August 29, 2005, requesting reimbursement of one-half of Catlin’s medical expenses, one-half of the cost of a 730 evaluation and his attorney’s fees as awarded under the December 2004 judgment. The only issue remaining on appeal is custody, as all financial issues were either resolved or transferred to SSA by stipulation prior to the February 6, 2006 hearing.
On appeal, Misty asserts a change in circumstances since the December 2004 hearing. However, trial court’s minute order of February 7, 2006, clearly states that “Court rules the change of circumstances stems, not from date of hearing, but to date of order [March 2005].”
The change of circumstances alleged by Misty included: (1) a drop in Catlin’s algebra grade (to a “D”) “right after the change in custody”; (2) Catlin’s receipt of a failing grade on a science exam, a copy of which Scott refused to provide to Misty; (3) Scott’s refusal to give Misty the phone number for a friend with whom Catlin was staying for one night; (4) an alleged physical altercation between Catlin and Scott wherein Scott “threw her against the wall”; (5) Catlin’s express wish to return to Misty’s custody; and (6) Scott’s refusal to allow Catlin to call her friends from her old school. Misty emphasized the issue of Catlin’s grades, asserting that Catlin “tested for the gifted program in third grade” and “normally received A’s and B’s.” She made repeated references to Catlin as “gifted.” Misty also asserted that Catlin had been “acting out in school with numerous detentions” and had “been removed from several schools within the last 12 months.”
Misty filed another declaration in reply to Scott’s responsive declaration. She again alleged there had been a substantial change in circumstances, repeating the assertions that Catlin expressed a wish to live with Misty, and her grades had declined (at this point, Catlin had 4 “C”s and 1 “D”). Misty added allegations that Scott was interfering with Catlin’s telephone calls to her, had not told Misty that Catlin started her period, and “grabbed” and “shook” Catlin at a baseball game.
After several continuances, the matter was heard on February 6, 2006. Misty renewed her request that counsel be appointed for Catlin. The trial court denied the request, however, finding that Catlin could speak for herself if she were “of sufficient age and intelligence to form a preference.” The court also expressed some concern that appointment of counsel for Caitlin would further delay the case. Misty had requested a six-hour evidentiary hearing, but the court opined that Misty’s declarations “[did] not allege a sufficient change of circumstances[] which [would] justify an all-day hearing.” The court decided nonetheless to hear Catlin’s testimony the following day.
Catlin was questioned by the court on February 7, 2006. She stated she was doing “pretty good” in school; on being pressed by the judge, she stated that she had a “couple A’s, mostly C’s and B’s and A’s” and believed that her grade point average was a “3.2.” Catlin stated she was not missing school, was not having any problems with homework and was playing soccer. When asked about living with Scott in San Diego, Catlin indicated that “[i]t’s okay” and she had no “major” problems with her father. Catlin further stated that “sometimes” she has problems reaching her mother because her father does not always give her messages and “usually rushes [her] off the phone.” She indicated that she got along with Misty’s boyfriend, Manuel, “really good” and also had a “good” relationship with Scott’s girlfriend and her children. Finally, Catlin confirmed that her preference was to live with her mother and return to the middle school that she attended when she lived with Misty.
During Misty’s cross-examination of Caitlin, she asked to question Caitlin using her report cards and personal diaries to establish her decline in grades and desire to live with her mother. Both requests were denied as cumulative under Evidence Code section 352. Subsequently, the court interrupted Catlin’s testimony to ask Misty to articulate precisely the substantial change in circumstances that had occurred since the March 2005 order. Misty responded, “[h]er grades” and attempted to answer the judge’s questions about each of the 45 numbered paragraphs in Misty’s declaration. The trial court concluded that Catlin’s further testimony would not provide any information about changed circumstances not already contained in the declaration. The court observed that Catlin’s “acting out” could be attributable either to a change in custody or simply to being stuck in the middle of seemingly endless litigation, and was thus not instructive regarding changed circumstances. The court further stated that Catlin’s desire to return to her old school was essentially rendered moot by the hearing delays; it was now February, her school year would end in June, and she would be going to a new high school the next year.
The court ultimately concluded that Misty’s pleadings did not contain a sufficient showing of changed circumstances to warrant a change in custody, in part because the OSC was filed only four months after the prior grant of custody to Scott: There had been an “insufficient time frame between [the] last order and [the requested] one.” Misty’s OSC was thus denied.
Misty filed this timely appeal, claiming she was denied due process when she was refused a full evidentiary hearing and that the trial court abused its discretion by not giving “any” weight to Catlin’s express desire to live with her.
DISCUSSION
A. The Carney rule applies.
Under In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731, a non-custodial parent must demonstrate that a substantial change in circumstances has occurred in order to justify a change of custody. The Carney rule is invoked after a final judicial custody determination is in place. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256; Burchard v. Garay (1986) 42 Cal.3d 531, 535.) The trial judge in this case explicitly found that the March 2005 order (incidentally, his March 2005 order) was a final order within the meaning of Montenegro; thus, when Misty requested a custody modification, she needed to show that the circumstances had changed substantially since the court’s March 2005 order.
B. There was no need for a full evidentiary hearing.
“Review of a custody decision by [a trial] court employs an abuse of discretion standard. The issue is whether the family law court could reasonably have concluded that the order advanced the best interests of the children. (In Re Marriage of Williams (2001) 88 Cal.App.4th 808, 812 [citations].)” (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 448.) Misty asserts that the trial court’s refusal to grant her request for a full evidentiary hearing was an abuse of discretion warranting reversal because it violates her due process rights. We disagree.
Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 481 established unequivocally that trial courts are “vested with discretion to exclude oral testimony and require submission upon declarations” in postjudgment marital dissolution matters, with the caveat that a “general court ‘policy’ may not be substituted for exercise of discretion.” (Ibid.) In fact, the “process now utilized by most California judges hearing these cases[] enables the judge to make decisions based upon moving and responding papers with supporting declarations…supplemented as necessary by offers of proof, and only occasionally by oral testimony.” (County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1427, italics added.) “[C]ounsel must be prepared to present their positions fully in their moving and opposing declarations. Except for OSCs re Contempt, the court generally is not required to take oral testimony or receive additional evidence . . . .” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007), ¶ 5:492, p. 5-192.)
Citing Reifler,Misty asserts that “[t]here are situations in which the trial judge, in the exercise of . . . discretion, properly should hear testimony or permit cross-examination of a declarant.” The Reifler court found one of those situations where a trial judge invoked a court “policy” in order to exclude family law testimony which would consume more than one day in hearing. (Reifler, supra, 39 Cal.App.3d at p. 485.) Misty suggests the court here was relying on a similar court policy because it was concerned about “disrupt[ing] the . . . court’s calendar.” She bases this contention on the trial court’s statement explaining why it would not appoint counsel for Catlin, which would delay the trial by another four months: “We’re now . . . seven months down the road from the initial filing of the OSC which requested the appointment of minor’s counsel and no resolution of that was ever requested until yesterday. And now all of a sudden – and it’s not simply a matter of calendar management because that’s simply part of it. But I think that everybody, not just me, but everybody has a right to get their case over and done with and expect that the trial court will get the case concluded.”
This statement does not support Misty’s contention that the trial court was more concerned with calendaring than the administration of justice. It had already ruled minor’s counsel was unnecessary due to Catlin’s age and ability to testify, and it was concerned that Misty was attempting to delay the case by renewing the request. Misty provided no other evidence suggesting the court was preoccupied with its calendar or that this was a situation where the court should have heard additional testimony.
Under Reifler, the trial court had discretion to exclude all oral testimony at the OSC hearing and to rule solely on the basis of the documentary evidence. Notwithstanding, “in an excess of caution, [in order] to…state her preference,” it permitted Catlin to present limited testimony. Further, the trial judge asked Misty to make several offers of proof, none of which satisfied the court’s request for a threshold showing of changed circumstances.
The trial judge concluded correctly that “in order to go forward and have a six-hour hearing…, you need to plead up a prima faci[e] case with a substantial change of circumstances…” The California Supreme Court acknowledged that “an evidentiary hearing serves no legitimate purpose or function where the noncustodial parent is unable to make a prima facie showing of detriment in the first instance, or has failed to identify a material but contested factual issue that should be resolved through the taking of oral testimony.” (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 962.)
Misty argues that the trial judge “refused” to acknowledge that her “substantive probative evidence” in fact constituted a prima facie showing of changed circumstances. We cannot agree. A review of the evidence presented in Misty’s declarations, offers of proof and Catlin’s testimony leads to the conclusion that Catlin’s grades were suffering somewhat and she definitely preferred to live with her mother. This does not constitute evidence of a substantial change in circumstances since the March 2005 order. The other information presented was not competent admissible evidence: The trial court analyzed each paragraph of Misty’s declaration and found that it mostly contained not factual allegations but instead hearsay, conclusions and argument, all of which are not properly presented in supporting declarations. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007), ¶ 5:326, p. 5-127.)
We do not undertake to separately analyze each of the 45 paragraphs in Misty’s declaration. It is sufficient to state that the trial court conducted a thorough analysis and concluded that the following information was admissible as evidence: information about Catlin’s declining grades; Scott’s refusal to provide Misty with a phone number where Catlin was spending the night; Scott’s interference with Catlin’s calls to her mother; Catlin’s desire to stay with her mother; Catlin’s newfound closeness with members of her family who lived near her mother and her interest in horseback riding near her mother’s home; and Catlin’s happiness with the school in which her mother had placed her. All other portions of the declaration were inadmissible hearsay, irrelevant, without foundation, argumentative, legal conclusions or argument.
The trial court was thus correct in finding that Misty was unable to make a sufficient showing of changed circumstances and that additional oral evidence would not remedy this shortcoming.
C. The evidentiary rulings were within the court’s discretion.
Misty also asserts that the trial court abused its discretion in refusing to permit “meaningful” cross-examination of Catlin using her report cards and personal diaries. We dispose quickly of this argument by reference to Evidence Code section 352, which provides that evidence may be excluded when “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The trial court found that Catlin had already testified about her grades and that the report cards did not contain significantly different information. The court further found that Catlin had “already told [the court] her preference and her understanding” regarding living with her mother, making the offer of the same information from her diaries cumulative. The exclusion of this information was thus proper under the Evidence Code.
The refusal to permit further cross-examination of Catlin was also proper given the mandate of Family Code section 3042 subdivision (b) that the court limit examination of the child so as to further the child’s best interests. Since Catlin had already testified as to her grades and preference to live with her mother, the court apparently concluded that further questioning on those topics was not in her best interests. The trial judge interrupted Misty’s counsel to comment that Misty “might want to give some thought as to what [she was] doing to [her] daughter to put her in the middle like this. It [was], in [the court’s] view, insensitive to say the least.”
The text of subdivision (b) reads, “[T]he court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences.”
D. The court was not bound by the child’s wish to live with her mother.
Misty asserts finally that Catlin’s testimony was not given proper weight under Family Code section 3042 and that this constitutes an abuse of discretion. Family Code section 3042, subdivision (a) states that “[i]f a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.”
The child’s preference is to be given greater consideration when the hearing concerns modification and is not an initial custody determination. (In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, disapproved on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25.) But, the trial court is not bound by the child’s wishes. “[Appellant] treats this statute as if an expression of desire by a 14-year-old conclusively binds the court to follow that expression in a modification proceeding. The treatment is erroneous, the standard is consideration and due weight.” (In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110.)
Here, the trial judge questioned Catlin and concluded that it had “taken that and given it the weight it deserves, which is practically zip.” It indicated further that it did not believe that “children should make adult decisions” and that “where [Catlin] lives and where she goes to school is an adult decision. She did not articulate anything to me that led me to conclude that it was immediate or expedient. She said she was doing okay in school. Her grades were okay. She was going out for soccer when she was going to go to high school. She was getting along with her dad. [¶] According to her sworn testimony, things were going okay. She said she preferred to live with her mother. I’ve taken that into consideration. . . .”
The trial judge properly concluded that Catlin’s testimony did not weigh heavily in favor of changing custody back to Misty. It is not evident from Catlin’s testimony that she desires to live with her mother for any pressing reason, indeed, any reason other than wanting to return to her old school. As the court pointed out, a change in custody for that reason would have been senseless because the hearing ultimately took place only three months before she would have had to leave that school and move on to high school.
DISPOSITION
The trial court’s order is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: RYLAARSDAM, J., ARONSON, J.