Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BF029060. Richard A. Curtis, Judge.
Gilligan Law Corporation and John J. Gilligan for Appellant.
No appearance by Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
This appeal presents the question whether the trial court abused its discretion in not allowing appellant Nicole Gaines (hereinafter referred to as “appellant”) to move with her now five-year-old child C.O., who has significant medical issues, from Los Angeles to a suburb of Houston, Texas, in order that C.O. remain in proximity to his father, Cheo Oliver (hereinafter referred to as “father”), who was never married to appellant and who played no role in C.O.’s life until C.O. was approximately a year and one-half old. We find no abuse of discretion and therefore affirm the trial court’s ruling.
STATEMENT OF THE FACTS
The parties litigated a number of child support and custody issues. We set out only the facts that we believe are relevant to the single issue presented by this appeal.
C.O. was born in September, 2004 and has lived with appellant since birth. At that time father signed a voluntary declaration of paternity. According to appellant and the custody evaluator, father had no contact with C.O. for somewhere between the first 16 and 22 months of the child’s life. Eventually appellant sought child support from father. The Child Support Services Department (CSSD) also filed a case to establish parental obligations, and the father filed an answer on July 8, 2005, in which he alleged, “I am not the father of the minor child, [C.O.], because [appellant], Nicole Gaines, and I did not have a monogamous relationship at the time of conception. Also, [appellant] told me that there was a great possibility that I was not the child’s father.” After testing confirmed that father was C.O.’s father, he filed a Petition to Establish Parental Relationship and an Order to Show Cause for child custody, child support and visitation.
Appellant filed a response in which she called the court’s attention to the father’s history of marijuana use and attached a copy of his America Online profile that displayed his interest in marijuana. “His addiction, and the lingering effects of his abuse problem on his mental condition and behavior,” she wrote, “is the main reason I terminated our relationship.” Father denied that he had any record of substance abuse.
In May, 2006, the trial court made a number of findings. Relevant to this appeal is that the court decided father: “has had almost no contact with the parties’ child [C.O.] during his lifetime,” that appellant “has extended opportunities for Father to have such contact but that Father has not availed himself of them,” that “Father has no established skills in caring for an infant or toddler,” that “there is sufficient evidence in Appellant’s declaration to raise a concern that Father has a substance abuse problem but that such evidence is insufficient under the law to require involuntary testing at the present time,” and that “[C.O.] has medical problems that require daily care and knowledge of how to do so.” The court awarded physical and legal custody to Appellant with a detailed visitation plan for father.
For the next few months, appellant commenced additional orders to show cause in connection with various visitation problems. On September 13, 2006, the court kept the monitored visits in effect and ordered the parties to complete the child custody evaluation. The court reset the trial for February 28, 2007.
Two months later, on November 28, 2006, appellant retained counsel and brought an order to show cause asking to modify an upcoming evaluation “to include [appellant’s] request to move to Houston, Texas.” After a hearing on March 26, April 2, April 6, and June 5, 2007, the court denied the request. This ruling forms the basis of appellant’s appeal.
Facts Particular to Appellant’s Request to Relocate with C.O.
Although she has never lived there and has no relatives there, appellant decided she wanted to move to Sugarland, a suburb of Houston. Her plan was to take not only C.O., but her entire family. According to the evaluator’s report, “[C.O.’s] primary attachment figures and maternal support system will remain intact as maternal grandmother, maternal aunt, and great aunt are planning on moving [to Sugarland] as well.”
Appellant has made three visits to the area, each lasting between one and two weeks. Her first visit occurred a little over a year before the spring, 2007, hearing. Her reason for moving was that Sugarland offered a better quality of life for her and C.O. Of all the places she researched, Sugarland, she believes, is the most comparable to Los Angeles with respect to ethnicity and weather and opportunity. According to appellant, the community is more affordable and safer than Los Angeles, and the Texas public schools are excellent. She could move from a condominium in the Los Angeles area to a Sugarland house that is closer to a park and to the school C.O. would attend. What’s more, the house which she already has a contract to buy would cost less than her current condominium and would not only be cheaper, but over twice as large with a “huge, grand backyard.” She went on to say that she could keep her job with her current employer, and her commuting time would be cut in half because while the distance from home to work is comparable, Sugarland has virtually no traffic, thus giving her more hours to devote to C.O.
Appellant considered and rejected other places, like Seattle, Portland, and Atlanta. She rejected Phoenix because, she says, the weather is not as nice, there is less cosmopolitan diversity than in Houston, and she would not have the same job opportunities.
Appellant did not ask permission to relocate when she filed her initial responsive pleadings in May, 2006. Although appellant researched Houston well before the November 21, 2006 date of her request to move, she did not ask the court’s permission at the earlier September 13, 2006 hearing, but instead waited until November, 2006, to make her request. In her words, “When I retained counsel, I did.”
Appellant filed a substitution of attorney on November 16, 2007, which made Michelle Dean, Esq. her attorney. Before then, mother had been self-represented.
There was evidence in the form of the evaluator’s report that C.O. had a more attached and comfortable relationship with appellant and was comfortable with maternal relatives. According to the evaluator, “No evidence was presented that would indicate moving with [appellant] would pose any detriment to the child. As such there is no reason to preclude [appellant’s] move at this time.”
Father argued that should appellant move with C.O. to Houston, it would be hard for him to maintain frequent and continuing contact with his son. Sharis Peters, the custody evaluator, concurred, saying that the relationship between father and son would definitely be affected by the geographical distance between Texas and California. Ms. Peters opined that the relationship between C.O. and father had progressed positively from one year ago until the time of trial, and she believed that it would continue to progress positively.
With respect to his absence from C.O.’s early life, father had originally asked the court to set aside his voluntary declaration of paternity. When he wrote his declaration, he thought appellant was seeing other men and therefore did not believe C.O. was his son. He asked for a DNA test to prove he was the father. He claimed that he did not know about his child’s medical conditions during the first four months of his life.
However, father also testified that the pregnancy was planned.
With respect to drug use, father had used marijuana off and on in high school. He testified that he removed the references to drugs from his AOL profile. The custody evaluator reported that both parents had tested negative for drugs.
The court denied appellant’s move-away request, orally and in writing. It appears that the court was concerned that appellant’s move-away request came close in time to when father received unsupervised visitation rights. Ruling from the bench, the court explained its decision as follows:
“[T]hroughout her testimony, it became the Court’s impression that almost every answer that [appellant] gave when questioned about a legal duty or even the sharing of normal parental information was a response from her finding a loophole for noncompliance or providing the least possible compliance.
“As one example, confronted with the language in the Court’s information-sharing regarding information about the child care facility, she answered that the information order just required her to list the other parent on the care providers’ information cards; didn’t say anything about providing that information to the other parent.
“And you know what? She’s right -- even though I drafted the order myself. That was left out of it. [Appellant] proved she’s a better lawyer than the Court is. And a parent who can perhaps be counted on to do the least possible cooperation without an ironclad order in place.
“That being said, however, [C.O.] is a child with special medical needs. [Appellant] has been there for him from Day One and provided him excellent care and has a proven ability to care for the child. Father only became involved once the County of Los Angeles filed a child support case and then contested parentage.
“In the larger sense regarding the child’s best interest in determining questions of moving away, the Court does not fault [father] for seeking DNA testing because, quite frankly, 18 years of child support is a substantial burden for anyone to face on the possibility that the child is not his own.
“However, in determining his request for 50/50 custody or primary sole custody, taking that position as understandable as it might be in the sense of economic interest, it’s certainly the opposite of receiving a child openly into your household and claiming him as your own.
“[Father] has an older daughter that he’s completely content with having no contact with as long as he’s not called on to support her.
“I think it’s appropriate that [appellant] calls into question the sincerity of his original efforts at least on [C.O.’s] behalf being brought about only because the County of Los Angeles filed a child support case against him.
“The Court agrees with petitioner’s conclusion that, this being an initial permanent custody order, that all the move-away cases that deal change [sic] of custody after the imposition of initial custody order do not require the Court to apply the detriment standard but the overall best interests standard along with the language of 7501, which is that the Court has the power to restrain a removal that would be prejudicial to the child.
“The Court finds that the following is in [C.O.’s] best interest to have no disruption in his primary care system. That primary care system primarily is... [appellant]....
“Unfortunately, one part of his primary care system will be disrupted if the Court restrains her from moving him to Texas because, in what the Court views --I’ve never seen anything like this happen --but the Court views it as an orchestrated removal of an entire family to Sugarland, Texas, primarily for the purposes of this litigation. (Emphasis added.) And if his extended family chooses to be in Sugarland, the Court restrains [C.O.] from being removed from Los Angeles. And he’s going to have diminished extended family.
“But the second part of his best interest is to build a relationship with his father, continuing to build a relationship that has been building, and have full exercise of frequent and continuing contact.
“The Court finds that [C.O.] would be prejudiced by a move to Texas because, at a distance, [appellant’s] tendency to look for loopholes will increase the likelihood of diminished contact with Father. The expense of long distance travel is not just the round-trip tickets, but the cost of staying in a distant area; the cost of local transportation, especially, if there remains a restriction on [father] driving with the child and, even if it doesn’t, the cost of renting local vehicles and so forth. At the present time, he’s a person with limited resources.
“If [C.O.] is removed to Texas, Father may well give up on him as he has done on his daughter. Finding the hassle of dealing with [appellant] and the expense -- I’m assuming he gets better employment, the difficulties of leaving for extended periods to conduct long distance visitation will not be worth the hassle. And [C.O.] will be without his father’s relationship.
“If he doesn’t give up and if [appellant] digs her heels in and if she decides never to set foot in California again, the remedy of contempt in the California Court is worthless, leaving the only effective remedy Father’s petition for a change of custody. And then [C.O.] would be right back at the beginning of the Court’s best interest analysis with having his primary caretaker ripped away from him.”
The court concluded that it was in C.O.’s best interest that [appellant] be granted sole legal and physical custody.
The court issued a tentative decision and after both sides objected issued a statement of decision and judgment. In it the court again criticized appellant’s “‘lawyering’ style of testimony” and concluded that “underlying the good reasons for a move is her desire to be shut of [sic] the annoyance of having to deal with [father] at close range on a weekly basis. In the present court’s experience sometimes custodial parents who seek to relocate present a mixed bag of motives for the move, some sound and reasonable and some designed to reduce or eliminate the other parent’s role in the child’s life. Indeed, it is not difficult for an ill-intentioned parent to devise all manner of good reasons for a move.” The court went on to conclude that it did “not think that a change in custody would be in [C.O.’s] best interest, and it does not want to start a chain of events that might lead to that. Consequently, in [sic] concludes it is in [C.O.’s] best interest to restrain the move at the outset.”
DISCUSSION
“We review for abuse of discretion relocation orders that permit a custodial parent to move away with a child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714.” (In re Marriage of Abargil (2003) 106 Cal.App.4th 1294, 1298.) In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (LaMusga), the Supreme Court listed a series of cases “many of which involve heart-wrenching circumstances,” to “remind us that this area of law is not amenable to inflexible rules. Rather, we must permit our superior court judges –– guided by statute and the principles we announced in Burgess and affirm in the present case — to exercise their discretion to fashion orders that best serve the interests of the children in the cases before them. Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody.” (Ibid.)
In re Marriage of Burgess (1996) 13 Cal.4th 25.
As the trial court observed in its statement of decision, the Supreme Court also said in La Musga, supra, 32 Cal.4th at p. 1100, “Absolute concepts of good faith versus bad faith often are difficult to apply because human beings may act for a complex variety of sometimes conflicting motives.... [¶] Even if the custodial parent has legitimate reasons for the proposed change in the child’s residence and is not acting simply to frustrate the noncustodial parent’s contact with the child, the court still may consider whether one reason for the move is to lessen the child’s contact with the noncustodial parent and whether that indicates, when considered in light of all the relevant factors, that a change in custody would be in the child’s best interests.”
LaMusga’s facts are worth noting, because while the mother’s reasons for an out of state move were at least as strong if not stronger than appellant’s in our case, the Supreme Court directed the Court of Appeal to affirm a superior court’s post judgment order transferring custody of the children to the father if the mother moved to Ohio. The trial judge had found that the mother was “not acting in bad faith because she had legitimate reasons for the move and was not acting for the specific purpose of limiting the father’s contact with his children: ‘I think it’s far more subtle than that....’” (LaMusga, supra, 32 Cal.4th at p. 1100.) As stated by La Musga’s custody evaluator: “‘On the surface, the reasons for the move are clear. [The mother] has always wanted to move to Ohio to be closer to her sister and family.... [Her husband] has received a good job opportunity in Cleveland, which he has taken. Their economic standard of living, and the inherent quality of life, will improve under such circumstances. All of these are reasonable reasons to make the move. [¶] Underneath, however, it has always appeared that [the mother] has wanted to move so that she can remove herself and take the boys from the day-to-day interactions with [the father]. She has difficulty dealing with him and prefers to have as little communication with him as possible.’” (Ibid.)
The record in this appeal reflects that the trial judge considered what would be in the best interest of child and considered the relevant factors set out in section 3011 of the Family Code. He listened to appellant’s testimony regarding C.O.’s health and welfare. He even entertained questioning about the presence of mosquitoes in the Houston area and the possibility of contracting malaria there. The judge considered the evaluator’s report and heard testimony regarding the nature and amount of C.O.’s contact with his parents from his birth to the present. Although there had been no relationship between father and son a year earlier, there was testimony that weekly visitations with father have been beneficial to some degree, that father and C.O. have bonded to some degree, and that their bonding was age appropriate.
Section 3011 of the Family Code provides in pertinent part as follows:
Finally, the court listened to appellant’s accusations with respect to father’s past marijuana use and his Internet profile, along with father’s testimony that that phase was behind him and his evidence of a recent negative drug test. A review of the record including the oral decision and the Statement of Decision demonstrates that the judge took into account the relevant LaMusga factors enumerated ante.
The trial judge suspected appellant’s motives and – probably concerned that the flavor of the case would not be adequately relayed to an appellate court by a cold record -- took care to articulate that he was frustrated with her demeanor and “‘lawyering’ style of testimony,” for example, “how difficult it is to gain a straight answer on a simple subject from [appellant]....” This constitutes the exact type of finding to which appellate courts must defer. We were not there at the hearing; we did not hear appellant’s tone of voice when she testified; we did not observe her facial expressions. The trial judge did. The trial court found that the “factual setting” was “closely related to the facts of LaMusga.” The court made a tacit factual finding that underlying the good reasons for appellant’s move was a desire to stop having to deal with father “at close range on a weekly basis.” The court also considered the nature and amount of the child’s contact with both parents and found that part of C.O.’s best interest was to continue to build a relationship with his father, a relationship that had been developing during the recent past. The court mentioned this point in its Statement of Decision. There is substantial evidence to support these findings. The test is not whether this court would have allowed appellant to move with her child to Sugarland. The test is whether in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. It does not.
Family Code section 3011, subdivision (c).
The Statement of Decision also discusses the child’s health and welfare. (Fam. Code § 3011, subd. (a).)
Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 [a reviewing court applying the abuse of discretion standard reviews any factual findings for substantial evidence].
DISPOSITION
The judgment is affirmed. Respondent is entitled to recover his costs in this appellate proceeding.
We concur: FLIER, Acting P. J., BIGELOW, J.
“In making a determination of the best interest of the child…, the court shall, among any other factors it finds relevant, consider all of the following:
a) The health, safety, and welfare of the child.
[¶]…[¶]
a) The nature and amount of contact with both parents....
b) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.... ”