Opinion
NOT TO BE PUBLISHED
Received for posting 11/21/12
Contra Costa County Super. Ct. No. MSD03-03717
ORDER MODIFYING OPINION AND DENYING REHEARING
Before Marchiano, P.J., Margulies, J. and Banke, J.
The opinion filed October 2, 2012, is hereby modified as follows:
1. On page 3, the third sentence of the first full paragraph shall be modified to read as follows:
She proposed two weekend visits a month, with visits from Friday to Sunday, but no weekend visits during February, March and April.
There is no change in judgment.
The petition for rehearing is denied.
Banke, J.
When mother Yolanda Verduzco and father James Siller, Jr., ended their marriage in 2004, a stipulated custody order granted mother primary physical custody of their only child, J.S. Seven years later, in 2011, father sought an order granting him primary physical custody. He believed he could offer the child a better school, took issue with how mother was caring for the child, and complained mother had violated the 2004 custody order by denying him visits with the child. Mother opposed father’s motion and also sought to modify father’s visitation schedule. The family court rejected father’s request for primary physical custody and made some modifications in father’s visitation schedule. We find no abuse of discretion and affirm the family court’s order.
Factual and Procedural Background
On August 6, 2003, mother petitioned to dissolve her marriage to father. Almost one year later, on June 23, 2004, they informed the family court they had reached a stipulation on child custody and visitation, child and spousal support, and marital property distribution.
Under the stipulation, the parents would share joint legal custody of the child, while mother would have “primary physical custody.” Father would take the child each week from Saturday at 11:00 a.m. until Sunday at 8:30 p.m. One weekend per month, father would get the child at 5:00 p.m. on Friday. Mother and father would alternate having time with the child on holidays, each having the child for certain holidays in odd and even numbered years. Thus, the child would shuttle back and forth between mother in San Leandro and father in Richmond.
The family court’s minutes from the June 23 hearing describe the stipulation as a “full settlement agreement” to be adopted “as the order of the court, ” and state mother’s petition for dissolution was granted. On August 16, 2004, the family court judge signed the stipulation, which began “upon the Stipulation of the parties, THE COURT MAKES JUDGMENT HEREIN AS FOLLOWS.” The signed stipulation was appended to a judgment of dissolution filed August 18, 2004, which the minutes from that date term a “Final judgment for dissolution.”
There was no appeal from the 2004 judgment of dissolution and the incorporated stipulated custody arrangement.
Nearly seven years after entry of judgment, on March 1, 2011—when the child was about eight-and-a-half years old—father filed a motion to modify the 2004 custody arrangement so he would have primary physical custody of the child, essentially seeking a mirror image of the 2004 arrangement. Father supported his motion with a wide-ranging declaration. According to father: (1) mother refused to help the child with his English homework and would not send English homework with the child when the child visited father—despite father’s request; (2) father, because of where he works, could provide the child with access to a better-ranked school district, but mother refused to discuss the possibility of switching the child’s school; (3) mother did not inform father of doctor visits or scholastic and extracurricular activities; (4) the child’s grades declined after the birth of mother’s third child in 2008; (5) mother now has four children and the child “does not receive equal treatment” in mother’s home; (6) father has to rehabilitate the child’s low self-esteem, which he blames on mother calling the child lazy; (7) mother speaks negatively about father in front of the child; and (8) mother has violated the 2004 custody arrangement, unilaterally denying father visits with the child.
Mother filed an opposition to father’s motion on March 17, 2011. She opposed father’s request for primary custody, and instead proposed altering father’s visitation schedule. She proposed two weekend visits a month, with visits from Friday to Sunday, and visits every weekend during February, March, and April.
Like father, mother filed a wide-ranging declaration supporting her position. She claimed (1) she had sent English homework with the child on numerous occasions and it was father who failed to help the child with it; (2) the availability and superiority of the school district father prefers is questionable and a change in school system would be unsettling and ultimately harmful to the child; (3) father’s interest in the child’s scholastic and extracurricular activities is sporadic, except for what she views as his fixation on moving their child to another school (tied up with his refusal to consider other options); (4) she has not withheld information about doctor visits and has communicated information to father about school and extracurricular events; (5) the child’s grades have not declined; (6) the child’s stress is related to father seeking to alter the custody arrangement; (7) mother treats the child equally in her home; (8) it is father that instills laziness in the child; and (9) father approved the missed weekend visits at the time, or on some occasions the child was so traumatized by the idea of visiting father that mother kept him back. Mother also submitted letters from the child’s teachers corroborating elements of her statement.
The parents mediated the custody dispute. The mediator proposed denying father’s request for primary custody and modifying the visitation schedule so the child could have alternating weekends with his mother and school friends. Under the proposal, father would have fewer weekends, but they would be longer: from Friday through Monday during the school year, and from Thursday to Monday during summer vacation.
Father rejected the mediator’s proposal. Mother was largely fine with it, but had some concerns about the timing of a few of the exchanges.
Because the mediation was unsuccessful, the parents, representing themselves, presented testimony and argument on father’s motion to the family court on July 11, 2011. Later that same day, the court issued a written order effectively denying father’s motion and adopting the mediator’s recommendations, which it attached to its order. The court found there were no changed circumstances relating to the minor to justify a change in custody. It also found the child was “essentially thriving” under the current arrangement and, despite father’s protestations, doing satisfactorily in school. The only change in the situation was the escalating hostility between the parents. The court found the mediator’s modified visitation schedule to be appropriate and adopted it.
Father filed a notice of appeal from the family court’s order on September 9, 2011. He challenges the family court’s denial of his request for primary physical custody but does not separately take issue with the changes to his visitation schedule.
Discussion
Standard of Review
“ ‘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.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).)
A “ ‘showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.... ’ [Citation.]” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.)
In reviewing any order or judgment we also start with the presumption that the judgment or order is correct, and if the record is silent we indulge all reasonable inferences in support of the judgment or order. It is the appellant’s burden to demonstrate error, and provide adequate citation to the record, and to present reasoned argument with citation to supporting legal authorities. The failure to meet this burden may result in this court deeming the claimed error to have been waived, or the court may affirm because the presumption in favor of the judgment has not been rebutted. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.)
Nonetheless, “ ‘all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citations.] Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. [Citation.] Alternatively stated, if a trial court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law.... The appellant bears the burden of showing a trial court abused its discretion.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16.)
The Trial Court Applied the Proper Test for Modification of Custody
Father first contends the family court abused its discretion by applying the “changed circumstances” test instead of the “best interests of the child test” in ruling on his request for a change in primary physical custody. We independently review whether the trial court applied the correct test. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378.)
There are two tests the family courts may apply to custody determinations: the best interests test and the changed circumstances test. (Montenegro, supra, 26 Cal.4th at p. 256.) The best interests test applies in initial and temporary custody determinations. (Id. at p. 259; Enrique M. v. Angelina, supra, 121 Cal.App.4th at pp. 1378-1379, 1382; see also In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089 (LaMusga).) The overarching concern when coming to an initial custody arrangement is the best interest of the child. (Montenegro, supra, at p. 255.) The family court has “ ‘the widest discretion to choose a parenting plan that is in the best interest of the child’ ” and may consider such factors as “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.” (Ibid.)
The changed circumstance test applies when a party seeks “to modify a permanent custody order.” (Montenegro, supra, 26 Cal.4th at p. 256.) Under this test, “a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification.” (Ibid.) The test is not “ ‘devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.’ ” (Ibid.) Put another way, “ ‘a child should not be removed from prior custody of one parent and given to the other “ ‘unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.’ ” ’ ” (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996.)
“The changed circumstance rule does not apply to a modification request seeking a change in the parenting or visitation schedule.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077.) Father does not suggest he was only seeking a schedule change.
Father contends the 2004 custody stipulation was not a final “permanent custody order” under Montenegro and therefore the family court should have applied the best interests test.
However, there is no doubt the 2004 custody stipulation was final. Montenegro itself holds stipulated custody orders can be “final judicial custody determinations for purposes of the changed circumstance rule, ” seeing “no basis for treating a permanent custody order obtained via stipulation any differently from a permanent custody order obtained via litigation.” (Montenegro, supra, 26 Cal.4th at p. 257.) The Montenegro court limited its holding to stipulated custody orders “contain[ing] a clear, affirmative indication that the parties intended it to be a final judicial custody determination.” (Id. at p. 259.) And the court concluded the stipulated order before it lacked indicia of finality and, corroborating this, the parties behaved as if the stipulation were not final. (Ibid.)
The instant case, however, is significantly different from Montenegro. To begin with, the minutes and the parents’ stipulation, itself, reflect the 2004 stipulation was “final” and a “judgment” as to all issues it addressed. (See LaMusga, supra, 32 Cal.4th at p. 1089, fn. 2 [an “ ‘Order After Hearing, ’ granting joint legal custody to the parties and primary physical custody to the mother, constituted a final judicial custody determination that the court need not reconsider in the absence of changed circumstances”].) Moreover, the parents let the stipulation stand unchallenged and abided by its custody provisions for seven years. (See In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 657-658 [“[n]either party sought to modify the child support order” until subsequent events, supporting conclusion order was final].)
There is no merit to father’s suggestion that the 2004 stipulated order must be considered “temporary” because, he claims, it omits certain formalities set forth in Family Code section 3048. That code section provides “every custody or visitation order shall contain all of the following: [¶] (1) The basis for the court’s exercise of jurisdiction. [¶] (2) The manner in which notice and opportunity to be heard were given. [¶] (3) A clear description of the custody and visitation rights of each party. [¶] (4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both. [¶] (5) Identification of the country of habitual residence of the child or children.” (§ 3048, subd. (a).)
All further statutory references are to the Family Code unless otherwise noted.
Putting aside for the moment whether the 2004 order complies with section 3048, the statute simply does not require custody orders to state whether they are final or temporary, nor does it create a presumption in favor of construing orders as one or the other. In addition, father has cited no authority tying lack of section 3048 formalities to the question of finality he raises here. On the contrary, section 3048 on its face applies to “every custody order, ” temporary and final alike.
In any case, to the extent father is attempting to challenge the now eight-year-old custody order for lack of compliance with the requirements of section 3048, he failed to appeal the order back in 2004, and has long since forfeited such an opportunity. (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250 [appeal of earlier orders dismissed when those orders were separately appealable and the deadline for appeal had lapsed]; Enrique M. v. Angelina V., supra, 121 Cal.App.4th at p. 1378 [final custody orders appealable].)
Evidence Code
Father next contends the family court abused its discretion by ignoring or mishandling three Evidence Code provisions, sections 668, 622, and 411. Based on the record before us, it appears father never raised any of these provisions with the family court and has therefore waived his arguments concerning them. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282; see also Pisani v. Martini (1933) 132 Cal.App. 269, 273 [appellants did not request a jury instruction relating to an evidentiary presumption and “on account of their failure so to do they are not entitled to claim the benefit of said presumption for the first time on appeal”].) In any event, father’s arguments lack merit.
Evidence Code section 668 provides: “An unlawful intent is presumed from the doing of an unlawful act.” (Evid. Code, § 668.) According to father, the evidence he presented of mother’s alleged “unlawful acts” in disobeying the 2004 custody order should have given rise to a presumption that mother acted with wrongful intent. Even assuming mother did violate the 2004 custody order, father has failed to articulate, and we fail to see, how mother’s presumed intent is relevant to whether changed circumstances justified a new custody arrangement in this case. (Cf. People v. Moore (2011) 51 Cal.4th 1104, 1142 [exclusion of irrelevant evidence not error]; Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 281 [plaintiffs “fail to recognize that an agency’s subjective motives are not relevant”; evidence properly excluded].)
Evidence Code section 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.” Father asserts the family court was therefore constrained to accept as true the contents of text messages between him and mother about mother’s “plan about the custody and child support modification.” It was not. To start, the “conclusive presumption of section 622... codifies the common law doctrine of ‘estoppel by contract[]’... that ‘the facts recited in a written instrument are conclusively presumed to be true.” (Plaza Freeway Ltd. Partnership v. First Mountain Bank (2000) 81 Cal.App.4th 616, 625-626.) Father cites no authority extending section 622 to garden-variety writings. Indeed, if we were to so extended that section, it would threaten the hearsay rule—that out-of-court statements are inadmissible to prove the truth of the matter stated. (See Evid. Code, § 1200.) In any event, the only relevance father ascribes to these text messages bears on mother’s “wrongful intent” in allegedly disregarding the 2004 custody order which, as we have already explained, has no bearing on the changed circumstances inquiry so far as this case goes. And finally, nowhere does it appear in the record that the trial court “disregarded” the text messages; thus, father has failed to demonstrate, as he must, any error by the family court. (See Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557.)
Finally, father points to Evidence Code section 411, which states, in general, “the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.) Father asserts the family court should have believed his testimony that he could provide a superior school district for the child. First, section 411 only states the well-worn maxim that testimony from a single, credible witness may be sufficient to prove a fact. The family court had no obligation to find father credible or believe all or any of the things he stated during his testimony. Second, there is no evidence the family court in fact disbelieved father’s contention about school quality. Regardless, the ultimate issue in the parents’ custody dispute was whether “ ‘some significant change in circumstances indicate[d] that a different arrangement would be in the child’s best interest.’ ” (Montenegro, supra, 26 Cal.4th at p. 256.) There was no evidence the availability of the school near father’s workplace was a “significant change in circumstance” from 2004; meanwhile, there was evidence that, even if it were, the child’s best interests would be served by maintaining the current schooling and avoiding disruptions. The trial court did not abuse its discretion in its handling of the schools evidence. (See Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114 [“ample evidence” supported the trial court’s discretionary decision].)
Mother’s Frustration of Visitation
Father also contends the trial court abused its discretion by giving too little weight to his evidence that mother violated the 2004 custody and visitation order.
“Frustration of visitation rights by the custodial parent is a proper ground for transfer of custody to the formerly noncustodial parent.” (In re Marriage of Wood (1983) 141 Cal.App.3d 671, 682 [affirming trial court’s decision to change custody to father]; see also Moffat v. Moffat (1980) 27 Cal.3d 645, 652 [“[t]he deliberate sabotage of visitation rights not only furnishes ground for modification, it is a significant factor bearing on the fitness of the custodial parent”]; Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 932 [affirming change of custody, noting mother’s “anger-fueled campaign seemingly knew no limit” and her “unrelenting pattern of frustrating [father’s] visitation rights... provided adequate grounds” for the change]; cf. § 3040, subd. (a)(1) [“[i]n making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent...”].)
While frustration of visitation may provide a basis for ordering a change in custody, it does not compel this result in every case. (See Forslund v. Forslund (1964) 225 Cal.App.2d 476, 501.) A parent may act “with the motive of frustrating defendant’s visitation rights. Such a deprivation, if it affects the welfare of the children, can be the basis for the transfer of custody.” (Ibid.) But this is not so in the “absence of a showing that such removal is inconsistent with the welfare of the children. The burden of proving that the welfare of the child requires a change of custody, or that the circumstances and conditions have so changed as to justify such change, is upon the party requesting the modification.” (Ibid.)
Here, while the family court did have evidence of mother breaching the 2004 visitation agreement, it also had ample evidence, despite father’s protestations, the child was “essentially thriving.” The family court could rationally conclude there had not been a “significant change of circumstances justifying a modification” of custody (Montenegro, supra, 26 Cal.4th at p. 256) nor occurrences “ ‘ “ ‘render[ing] it essential or expedient for the welfare of the child that there be a change.’ ” ’ ” (Ragghanti v. Reyes, supra, 123 Cal.App.4th at p. 996.) “ ‘ “An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts.” ’ ” (Catherine D. v. Dennis B., supra, 220 Cal.App.3d at p. 931.) As we have noted: “ ‘ “Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge’s discretion and not that of the appellate court which must control.” ’ ” (Ibid.) Considering all this, we conclude the family court did not abuse its discretion.
We do not suggest violations of a visitation order should be without consequence. Father himself acknowledges he could have brought contempt proceedings. In addition to contempt, an aggrieved parent might seek an order “terminating or reducing spousal support” or “requiring a bond to assure compliance with the visitation order” or any other appropriate relief. (Moffat v. Moffat, supra, 27 Cal.3d at p. 652; see also § 290 [“[a] judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary”].)
Father’s Request for Sanctions
Finally, we address father’s motion for sanctions on appeal filed April 30, 2012. He notes mother’s respondent’s brief includes and references a copy of a confidential “Family Court Services Status Report” from 2004, which was not a part of the evidentiary record before the family court when it considered father’s 2011 custody motion. Mother did not seek to have this report filed under seal. According to father, inclusion of this report and other materials not before the family court triggers California Rules of Court, rule 8.276(a)(2), which allows sanctions for “[i]ncluding in the record any matter not reasonably material to the appeal’s determination.” We grant father’s motion in part. We will not consider any materials outside the family court record and therefore disregard all references to the confidential Exhibit A in mother’s brief. We deny any further sanctions, including father’s request for his costs of appeal.
Disposition
We affirm the family court’s order denying a change of physical custody and modifying visitation. Mother to recover costs.
We concur: Marchiano, P. J.Margulies, J.