Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. D442663
APPEAL from an order of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge.
AARON, J.
I.
INTRODUCTION
Enrique M. (Enrique) filed an order to show cause seeking to modify an order governing the parenting schedule and schooling of his and Angelina V.'s (Angelina) son, X. The trial court granted in part Enrique's request to modify the parenting schedule, ordering that Enrique have additional parenting time with X. However, the trial court refused to provide Enrique with all of the additional parenting time he sought in his request. The trial court also denied Enrique's request to allow Enrique to enroll X. in a different elementary school.
Enrique appeals, claiming that the trial court erred in refusing to provide him with all of the additional parenting time he sought in his request, and in denying his request to enroll X. in a different school. Enrique also claims that the court erred in failing to apply the "strict scrutiny" standard to his requests. We affirm the order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Angelina has not filed a respondent's brief. Accordingly, we decide the appeal on the record and Enrique's opening brief. (See Cal. Rules of Court, rule 8.220 (a)(2).)
A. Enrique's initial order to show cause, the trial court's ruling, and the first appeal
This summary is drawn from a prior appeal in this case. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1373-1377 (Enrique M.).)
Enrique and Angelina dated from 1995 to 1997. In September 1997, after their relationship had ended, Angelina gave birth to their son, X.
On June 19, 2002, Enrique and Angelina entered into a stipulation in which they agreed that they would share joint legal and physical custody of X. and that X.'s primary residence would be with Angelina. They further agreed that once X. started kindergarten, Enrique would have X. from Friday afternoon until Monday morning on the first, third, and fifth weekends of each month. In addition, Enrique would have X. on Thursday evenings preceding each of these weekends, and on Thursdays, overnight, preceding Angelina's weekends. Finally, the parties agreed to share parenting time equally during school breaks, with Enrique having X. on Wednesdays, Thursdays, and alternating weekends, and Angelina having him on Mondays, Tuesdays, and alternating weekends.
In July 2002, X. started kindergarten in Track D at Richland Elementary School (Richland), a year-round school with four different tracks, or schedules. Richland is located in San Marcos, where Angelina lives. In August 2002, Enrique filed an order to show cause in which he requested that the parenting schedule be modified to include overnights with him every Tuesday and Thursday. Enrique also requested that X. be enrolled in the Track B schedule at Richland rather than Track D, so that X.'s school schedule would coincide with Enrique's daughter's school schedule. In the alternative, Enrique requested that he be allowed to enroll X. in The Language Academy, where Enrique's daughter attended school.
Enrique has a daughter from a prior relationship who is older than X.
On January 7, 2003, the trial court denied Enrique's requests. Citing the stipulation and order of June 19, 2002, the court concluded that "the father bears the burden of showing a substantial and compelling change in circumstances in order to modify the existing order," and that "there isn't evidence of a substantial and compelling change in circumstance that would cause the Court to modify the existing order." However, the court indicated that it would be inclined to modify the parenting schedule if it were considering the matter in the first instance. The court stated in relevant part:
"By the way, let me say as an aside, I don't really like the current schedule. I don't think it's the best schedule for this child. . . . The schedule is too complicated for you folks to work through together because you don't cooperate with each other very well. . . . And, frankly, to be honest with you, I don't think it gives dad enough time with the child. . . .
"Even though I may not think it's the best order for this child and the best order for the child and the father or even the child and the mother, it doesn't matter what I think about it. You've entered into a stipulation that became an order of the court. It became a final order of the court on the issue of custody and visitation. And you haven't shown me enough of a change in circumstance that would allow the Court, as a matter of law, to modify the order.
"If we had to start this from scratch, I'd probably come up with a different plan. . . . But, again, I don't think, as a matter of law, that I can change this order because I don't think you're shown me the ─ the level of evidence under the standard of [review] that's required for me to make the change. So that's why I denied the motion.
"The changes that I would impose on this order, if I had the ability to make the change, would not be to add more time with father during the school week. It would be to probably add another weekend. . . . I'd probably . . . [give dad the] first, second, and fourth and give mom the third or something like that. [¶] I'm not doing that, but I'm just telling you that the time that I would add for dad would be weekends time, not school time."
Enrique appealed the trial court's January 2003 order. In August 2004, this court reversed the order, concluding that the trial court had erred in applying the changed circumstance rule to Enrique's requests. We remanded the case for the trial court to apply the best interest test, rather than the changed circumstances rule, to Enrique's requests. (Enrique M., supra, 121 Cal.App.4th 1371, 1382.)
We explained the distinction between the changed circumstance rule and the best interest test as follows: "'In deciding between competing parental claims to custody, the court must make an award "according to the best interests of the child." [Citation.] This test, established by statute, governs all custody proceedings. [Citation.] The changed-circumstance rule is not a different test, 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. [Citations.]" (Enrique M., supra, 121 Cal.App.4th at p. 1379, quoting Burchard v. Garay (1986) 42 Cal.3d 531, 535.)
B. Proceedings on remand
On November 1, 2004, the remittitur issued from our August 2004 opinion. The trial court set a hearing date of June 8, 2005 to reconsider Enrique's August 2002 order to show cause. Enrique continued the matter and eventually took it off calendar.
In March 2006, Enrique filed another order to show cause. As he had in his August 2002 order to show cause, Enrique requested that the parenting schedule be modified to provide that X. spend the night with Enrique every Tuesday and Thursday. In a declaration accompanying his order, Enrique outlined the following reasons for his request:
"(1) [T]he current schedule does not allow [X.] enough time with me and his older [half] sister, . . . (2) the current schedule greatly and unduly burdens my ability to raise [X.], (3) [Angelina] continues to interfere with [X.'s] and my relationship and my ability to share in parenting [X.], and (4) the requested schedule is substantially the same schedule that [X.] enjoyed during his years before starting school, and it coincides with the schedule [X.'s half-sister] has enjoyed over the past decade. The requested schedule will resolve the above problems and provide [X.] with access to all family members, without unduly burdening [Angelina's] and my ability to parent [X.]."
Enrique also requested that he be permitted to enroll X. in Tierrasanta Elementary School. Enrique provided the following reasons for this request:
"(1) [T]he location of [X's] current school causes [an] undue burden on my ability to parent [X.] and participate in his academics, (2) the location is also too far from both [Angelina] and me to have reasonable access during the school day, or to respond to an emergency, and (3) [X.] is doing poorly in school."
Angelina opposed Enrique's requests for modification. In a declaration filed with her opposition, Angelina stated that Enrique had moved five times since 1998, and claimed that Enrique had repeatedly petitioned the court to change the parties' parenting schedule and to change X.'s school, to accommodate Enrique's changes of residences. Angelina claimed that X. was doing well with the current parenting schedule, and disputed Enrique's assertion that X. was doing poorly in school. Angelina noted that X. had become involved in numerous after-school extracurricular activities, through which X. had met many children his own age. Angelina also stated that she had learned through X. that Enrique does not pick up X. from school on his parenting nights, but rather, has his mother do so. Angelina further stated that Enrique's mother drives X. from school in San Marcos to Enrique's mother's house, near the border between Mexico and the United States. Angelina claimed that it was not in X.'s best interest to endure additional long car rides during the school week.
In April 2006, the parties attended a Family Court Services (FCS) mediation concerning Enrique's requests. After the mediation session, the FCS mediator, Corinne Butts, filed a report (FCS report). Butts recommended that Enrique's requests to alter the parenting schedule and to change X.'s school be denied. Among the reasons Butts offered in support of her recommendations were the following:
The mediation also involved certain issues Angelina raised in her responsive declaration that are not relevant to this appeal.
"The child has resided at the mother's primary residence for the majority of his life and [is] reportedly doing well there. The father's request to modify the existing parenting plan appears to be based on his desire more than the child's needs.
"The child has been attending his current school location since kindergarten, he is making passing grades, he is a good student. The undersigned believes the child needs stability in his life; therefore this counselor is recommending that the child continue to reside at the mother's primary residence and that he continue to attend his current school location, which is within close proximity to the mother's residence in San Marcos.
Elsewhere in her report, Butts stated that she had contacted X.'s teacher, who indicated to Butts that X. was meeting grade level standards and exceeding those standards in math. In addition, X.'s teacher reported that X. "tries his best, . . . is well adjusted, [is] a good student, and that [X.'s] homework is completed on time."
Butts noted that Enrique lives in Tierrasanta.
[¶] . . . [¶]
"The undersigned recommends that the father's parenting schedule remain the same as previously ordered when school is in session. The distance between the parent's [sic] residences makes it difficult for the child to have to be transported from Tierrasanta to San Marcos for additional overnights on school days. The father's proposal for additional overnights would have the child spending every other school night at a different residence.
"Furthermore the parents continue to have a high conflict relationship with each other and they reported that they do not communicate with each other, which would make it difficult for them to speak to each other on a regular basis regarding homework assignments and other day to day events related to the child."
Butts also noted that she had reviewed prior FCS reports and had determined that in April 2002, Enrique requested that X. be enrolled in the school at which Enrique's daughter was enrolled, and that Enrique reiterated this request in November 2002. Further, in November 2002, Enrique sought to change the track on which X. was placed at his school in San Marcos.
Enrique filed a lengthy declaration in rebuttal to the FCS report in which he reiterated the reasons outlined in his declaration supporting his request to modify the parenting schedule and to change X.'s school.
In August 2006, the trial court held a hearing on Enrique's order to show cause. Enrique called Butts as a witness and questioned her at length regarding the contents of the FCS report and whether Enrique had made various statements to Butts concerning the reasons for the changes he was requesting. The court received the FCS report in evidence. Angelina's counsel briefly cross-examined Butts. Butts testified that she believed the recommendations in her report were in X.'s best interest.
The trial court asked Enrique a number of questions regarding various aspects of the case, including Enrique's residential location choices, the commuting time between Tierrasanta and San Marcos at various times of the day, the impact of Enrique's work schedule on his ability to pick up X. after school, the location of Enrique's daughter's school in relation to Tierrasanta, Enrique's knowledge of X.'s extracurricular activities, friends, and progress in school, and the amount of time X. spends commuting on school days when he is with Enrique.
At various points during the trial court's questioning of Enrique, the court expressed skepticism regarding Enrique's answers. For example, the court engaged in the following colloquy with Enrique concerning the extent of the flexibility of Enrique's current work schedule:
"The court: If you can get off work early and you don't want your mother to have to do this difficult drive, which I can understand, why don't you get off work early when you're supposed to have the child, go to the child's school, pick up the child from school, and go where you want to go, whether it is your home or south San Diego [where Enrique's mother lives]?
"[Enrique]: I have flexibility with my work but not unlimited. I'm not like, working from home.
"The court: So the statement you made about your flexibility is not a true statement?
"[Enrique]: It is a true statement. I have a great deal of flexibility especially compared to other positions.
"The court: Why don't you exercise that flexibility when you are supposed to have your child?
"[Enrique]: We are talking about relative issues. I said I have flexibility but not unlimited flexibility. I can't come and go as I please, but I can request: Hey, I need to get off at this time, can I? Or I have to pick up my son. I'm going to come in at 10:30. Is that fine?"
At another point in the hearing, the court engaged in a lengthy colloquy with Enrique about Enrique's assertion that X. was not doing well in school. The court questioned why Enrique had failed to speak regularly with X.'s teachers, in view of his concerns:
"The court: So I go back to my question. Why have you waited a full semester to discuss your child's progress in school if you're not pleased . . . with the child's teachers?
"[Enrique]: Your honor, I don't know what to tell you.
"The court: You don't have an answer to the question?
"[Enrique]: I mean when he gets homework, I help him with the homework.
"The court: That wasn't my question. I question why have you waited a full semester from January of 2006 to the end of the term, which would have been June of 2006, to talk to your child's teachers about his academic performance if you're not pleased with your child's academic performance?"
"[Enrique]: I don't have an answer."
On October 24, 2006, the trial court entered a final order and statement of decision on Enrique's request. The order states in relevant part:
"1. The Court DENIES [Enrique's] request to change the child's school. The Court finds it is not in the best interests of the child to change the child's school every time [Enrique] changes residences. [Enrique] has relocated several times over the last few years. Each time [Enrique] relocates, he requests the Court change the child's school. If the Court were to change the child's school every time [Enrique] changed his residence the child would be subject to constant instability. Further the eight-year-old child has been in the same school for the last three to four years. The child has established an educational history at his current school. The child is familiar with the school and he is familiar with the teachers. The teachers are similarly familiar with the child. In addition, the child has an established circle of friends that the child interacts with both in school and outside school. Changing the child's school to accommodate proximity to [Enrique's] changing residence would disrupt the child's educational stability and social stability and is therefore not in the child's best interest.
"2. The Court also DENIES [Enrique's] request to add an additional overnight to [Enrique's] visitation schedule. Granting [Enrique's] request would force the child to rotate between each parent's home virtually every night. It is not in the bests interests of the child to be in a different home every night, especially during the school week. This arrangement would be disruptive and unstable for the child.
"The child at issue must have a consistent home base and stable schedule. He should not be moved each night into a different home. [Enrique's] proposal would cause the child to be sleeping overnight every other night in a different home. Not only is such a schedule fundamentally unstable, it presents a particular problem in this case because [Enrique] and [Angelina] have not been able to communicate effectively or amicably between each other. The parents have not been able to demonstrate sufficient cooperation between them. To shift a child from home to home every other day during the school year would require cooperation and communication between the parents concerning homework assignments, transmission of notices, and exchange of information concerning school activities. The arrangement requested by [Enrique] requires the parties to be cooperative, and unfortunately, cooperation between the parties does not exist in this case. Finally, alternating the child between each parent's home daily would increase contact points between the parents, and thus magnify the conflict that already exists in this case. As pointed out by the Family Court Services counselor, this is a 'high-conflict' case.
"While the State of California has a policy that parents remain in frequent and continuing contact with their children, that policy does not require day to day interaction with both parents as suggested by [Enrique]. The exposure of the child to the instability, communication lapses and conflict [Enrique's] proposal represents is not in the child's best interest.
[¶] . . . [¶]
"4. The Court finds it is in the child's best interests that the child have a close relationship with both parents and to spend substantial time with both parents. To that end, the Court hereby expands [Enrique's] visitation schedule as follows: The child will be with [Enrique] every other weekend, starting Thursday after school. [Enrique] will pick up the child from school and return the child to school on Monday morning. On alternate weeks when [Enrique] does not exercise weekend visitation, [Enrique] will have the child on Thursday overnights as currently exists. [Enrique] will pick up the child at school upon completion of the school day, and return the child to school the next morning."
Enrique timely appeals the trial court's October 24, 2006 order.
We concluded in the previous appeal in this case that the trial court's January 2003 order was an appealable postjudgment order because it followed a final judgment as to custody in June 1998. (Enrique M., supra, 121 Cal.App.4th at p. 1378.) We similarly conclude that the trial court's October 2006 order is an appealable postjudgment order.
III.
DISCUSSION
A. The trial court did not abuse its discretion in ruling on Enrique's request to modify the parties' parenting schedule
Enrique claims that the trial court erred in denying his request to add an additional overnight each week to Enrique's parenting time.
We review the trial court's ruling on Enrique's request to modify the parties' parenting schedule for an abuse of discretion. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 365.) "'The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child.'" (Ibid., quoting In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess); accord In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549 ["[g]reat deference must be given to the trial court's adjudication of the facts" in reviewing custody and visitation orders].) "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, quoting Burgess, supra, 13 Cal.4th at p. 32.)
The trial court's detailed questioning during the August 2006 hearing and the court's statement of decision make clear that the trial court carefully considered Enrique's requests to modify the parenting schedule. The court determined that altering the parenting schedule to provide Enrique with an additional overnight on the Thursday nights preceding his parenting weekends would be in X.'s best interest, but that providing an additional overnight on Tuesday night, during the school week, would not be in X.'s best interest. While the trial court was of the view that X. would benefit from having additional time with Enrique, Enrique's plan would have required that X. be transferred back and forth between his parents each school night. The trial court determined that the proposed arrangement was likely to produce instability for X. Given X.'s age, the high conflict in the parents' relationship with each other, and the physical distance between X.'s school and Enrique's residence, this conclusion was clearly reasonable.
B. The trial court did not abuse its discretion in denying Enrique's request to change X.'s school
Enrique claims that the trial court erred in denying his request to change X.'s school. We apply the abuse of discretion standard of review, as outlined in part III.A., ante.
The record is clear that the trial court carefully considered Enrique's request to change X.'s school. The court considered X.'s age, X.'s familiarity with his school and teachers, and X.'s circle of friends that he had developed at school. In addition, the record indicates that X. is doing well in school. (See fn. 6, ante.) Moreover, the court could have reasonably determined that Enrique's concerns regarding X.'s alleged mediocre academic performance did not merit changing his school, in view of the fact that Enrique had not spoken to X.'s current teachers regarding his concerns. In refusing to order that X. attend a different school, the court also reasonably could have considered the proximity of X.'s current school to his primary residential location during the school week, as well as Enrique's history of residential instability.
The only evidence Enrique cites to indicate that X. is not performing well in school is Butts's agreement with Enrique's assertion that she had reported that X. was performing "far below his academic potential." With regard to this testimony, the trial court could have reasonably questioned whether Butts had actually intended to state that she had reported that X. was performing below his academic potential. Butts's FCS report contains no such statement and her testimony on the subject came during a series of questions in which Enrique asked Butts whether Enrique had made various statements regarding X.'s academic performance.
We conclude that the trial court did not abuse its discretion in denying Enrique's request to change X.'s school.
C. The trial court did not err in failing to apply the strict scrutiny standard in ruling on Enrique's requests to modify the parties' parenting schedule and to change X.'s school
Enrique claims that the trial court erred in failing to apply the strict scrutiny standard in considering Enrique's requests to modify the parties' parenting schedule and to change X.'s school. Enrique claims that the strict scrutiny standard applies because the trial court's order burdens his fundamental right to raise X., and X.'s fundamental right to maintain his relationship with Enrique. Whether the strict scrutiny standard applies in this case raises a question of law, which we review de novo. (See Enrique M., supra, 121 Cal.App.4th at p. 1378 [determining "the appropriate legal standard to apply in ruling on [Enrique's] requests raises a question of law, which we review de novo"].)
Enrique's claim is fundamentally flawed. It is well established that the "strict scrutiny standard" is a standard by which the constitutionality of certain laws are judged. As the court in Broadmoor Police Protection Dist. v. San Mateo Local Agency Formation Com. (1994) 26 Cal.App.4th 304, 310 explained:
"Generally, most legislation is reviewed under the rational relationship standard, by which the statute will be deemed valid if it is rationally related to any legitimate government purpose. [Citations.] Under the more stringent strict scrutiny standard, the government bears the burden of establishing that the statute promotes a compelling state interest and is narrowly drawn to achieve that legitimate goal by the least restrictive means possible. This standard of review is applied in cases where statutes establish suspect classifications or impinge on fundamental rights and interests. [Citations.]" (Italics added.)
In Troxel v. Granville (2000) 530 U.S. 57, 66-67, on which Enrique relies, the United States Supreme Court concluded that a Washington grandparent visitation statute, as applied to petitioner and her family, unconstitutionally infringed on the petitioner's fundamental right to make decisions concerning the care, custody, and control of her children.
Enrique does not identify any California statute that he claims is unconstitutional. Rather, he argues that the trial court failed to apply the strict scrutiny standard in ruling on his requests. Enrique has not cited any authority, and we are aware of none, that would require a court to apply the strict scrutiny standard in this context.
IV.
DISPOSITION
The trial court's October 24, 2006 order is affirmed. Enrique is to bear costs on appeal.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.