Opinion
D071908
06-05-2018
In re the Marriage of R. and Y. R. R. R., Appellant, v. Y.R., Respondent.
The Law Firm of Toby Tran and Toby Tran for Appellant. Judith Klein for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN175999) APPEAL from a judgment of the Superior Court of San Diego County, Gerald Jessop, Judge. Affirmed. The Law Firm of Toby Tran and Toby Tran for Appellant. Judith Klein for Respondent.
This appeal arises from a custody dispute between R.R. (Father) and Y.R. (Mother) concerning their toddler daughter (N). After a five-day evidentiary hearing, the court granted Mother's petition to move with N to Japan (Mother's country of citizenship). The court also adopted the Family Court Services recommended parenting plan, including that the parents share joint legal custody but the child live primarily with Mother in Japan, with Father entitled to two 2-week annual visits and frequent telephone and electronic visitation. The court also imposed conditions to facilitate enforcement of the parenting plan.
Father challenges the order. He contends the court erred in failing to consider N's best interests and other relevant factors, and failed to provide an effective enforcement mechanism. The evidentiary hearing was not reported, and Father did not provide a joint or settled statement of the proceedings. On the limited record before us, Father has not met his burden to show an abuse of discretion. We are satisfied the court understood the scope of its discretion, considered all relevant factors in reaching a reasonable conclusion, and provided sufficient means to enforce its orders. Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
Mother and Father met in about 2011. At the time, Mother was a 19-year-old Japanese citizen studying in the United States on a student visa. Father was a 20-year-old United States citizen, studying at Palomar College. N was born the next year, in mid-2012. Mother says N has dual citizenship in the United States and Japan.
When N was about two months old, Mother took her to Japan (with Father's agreement) for Mother's family to help care for the infant. About six months later, in February 2013, Mother returned to California based on Father's assurances he would help her secure citizenship. The next month, in March 2013, the couple married. About five months later, the couple separated and filed for dissolution. The couple agreed to a joint custody arrangement. Father's mother and sister helped care for N when she was in Father's custody.
In October 2015, Mother petitioned to move three-year-old N to Japan. Mother alleged the move would serve N's best interests because Mother's visa has expired and Mother can no longer legally stay in this country; Father does not understand how to properly care for N and has not showed concern for N's welfare; Father abuses drugs and alcohol; Father's mother, who helps care for N, has a drug abuse history; Mother was the sole caretaker for the first six months of N's life; Mother places N's needs before hers; Father has frustrated Mother's efforts to work and obtain a visa; and Mother will be legally barred from returning to the United States for 10 years because she has overstayed her visa.
In opposition, Father argued he and his family have a close and loving bond with N; N has lived most of her life in San Diego; allowing a move would effectively terminate his relationship with his daughter because he cannot afford to travel to Japan; Mother is seeking to move solely because she is angry at Father; there are strong cultural differences between the United States and Japan; Mother had neglected N's medical needs; enforcing visitation and other orders would be difficult in Japan because it only "very recently became a signatory" to the Hague Convention.
The Hague Convention is a multinational treaty establishing legal rights and procedures for the prompt return of children who have been wrongfully removed from one signatory nation or wrongfully retained in another. (See Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 704-706.)
In January 2016, a Family Court Services counselor conducted a conference with the parents and reviewed various documents. During this session, each parent expressed concerns about the other parent's caretaking abilities. After considering these concerns and evaluating numerous other factors, the counselor prepared a report recommending that Mother be permitted to move N to Japan. The counselor reasoned that this move would be in N's best interests because Mother cannot legally remain in the United States and would not be legally permitted to return to the United States to visit N for 10 years, and Father would have the ability to visit the child in Japan.
The court then scheduled a hearing. Both parties were represented by counsel and filed lengthy trial briefs. In their briefs, the parties urged the court to focus on N's best interests in deciding the move-away issue.
Beginning on April 1, 2016 through August 25, 2016, Superior Court Judge Gerald Jessop conducted a hearing over five days. The proceedings were not reported. Eight witnesses testified, and the court admitted more than 35 documentary exhibits. After the hearing, the court granted Mother's motion, and adopted the parenting plan proposed by the Family Court Services counselor. The plan included: (1) joint legal custody; (2) N shall reside primarily with Mother in Japan; (3) after the child moves to Japan, Father shall be entitled to two 2-week annual visits with N in Japan; and (4) specific orders regarding frequent telephone and other electronic contact. As discussed in more detail below, the court also imposed conditions designed to ensure Mother's compliance with its order, including a requirement that she concede to jurisdiction in the California courts and forfeit support payments if she violates the order.
The court issued an eight-page statement of decision, discussing the evidence and explaining its reasoning. In the statement, the court said it considered and analyzed the factors discussed in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) and In re Marriage of Condon (1998) 62 Cal.App.4th 533 (Condon), "in addition to the other relevant cases, many of which were discussed in each [party's] trial briefs."
The court began its factual analysis by acknowledging the case "was very difficult" because of the distance of the move, the fact that Father cannot afford to travel to Japan, and Mother cannot legally live in, or return to, the United States for the foreseeable future. But the court concluded Mother should be permitted to move N to Japan because the child should not be separated from Mother for a lengthy period. In reaching this conclusion, the court recognized N has been living in the San Diego area for most of her life, and "stability and continuity" were "major consideration[s]" in the analysis. The court also recognized N's close bond with Father and his family, and that Father's family has "played a very large part in the life of the minor child." But the court found these factors were outweighed by N's strong need to be with Mother, stating "the relationship of [N] with the paternal family was important, but it was more important that [N] have contact with her Mother." The court also found "persuasive" the fact that the Family Court Services counselor had reached the same conclusion.
The court said Mother testified she had been told there is a 10-year prohibition to her reentering the country based on her overstaying her visa. Although the court expressed some uncertainty regarding the precise length of this ban, it credited Mother's evidence that she cannot legally remain in the country and would be barred from returning to the United States for a substantial time. --------
The court additionally identified several factors weighing against N staying in the United States with Father. For example, the court noted that the paternal grandmother (who would be a primary caretaker) had a prior drug abuse history and had been a victim of domestic violence. The court also found that Father had not been actively involved in providing direct care to N, noting he had changed her diaper only five times in her life. The court additionally expressed concern that Father had made "unfounded" allegations that Mother had abused N. The court also noted that Father had engaged in a "bait and switch," by reneging on his promises to help Mother with immigration issues if she returned to the United States in early 2013, and that he had made it difficult for Mother to find work in the United States, including by threatening to report her employer for hiring an illegal immigrant. The court also rejected Father's arguments that the cultural differences between Japan and the United States should bar the move, finding these differences were "not impossible to overcome at the age of four."
DISCUSSION
I. Appellate Burdens and Rules
A challenged judgment or order is presumed correct and the appellant has the burden "to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) As part of this burden, the appellant must provide citations to the appellate record directing the court to the evidence supporting each factual assertion. (Cal. Rules of Court, rule 8.204(a)(1)(C); see Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384.) Father did not comply with this rule. Although his brief contains more than eight pages of factual assertions, not one of those assertions is supported by a record citation. On this ground alone, he has not met his appellate burden.
Father's factual contentions also fail for a more fundamental reason. There was no reported record of the hearing, and Father has not supplied a record by using approved substitutes, such as a joint or settled statement. (See Cal. Rules of Court, rules 8.120(b), 8.134, 8.137.) Without a record of the evidentiary hearing, Father has not met his appellate burden to show error in the court's factual findings. "[W]e must presume the judgment is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the judgment." (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) "Where no reporter's transcript [or an adequate substitute] has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
In an attempt to avoid this bar, Father seeks to establish error on the face of the record, and asserts the court did not adequately consider certain factors and/or did not exercise its discretion on various issues. As explained below, we determine these legal contentions are without merit.
II. Legal Principles Governing Custody and Move-away Orders
At the time of the hearing, there was no final judicial custody determination. Thus, the applicable legal standards were those governing an initial custody order. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255-259.)
"In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest of the child.' [Citation.] It must look to all the circumstances bearing on the best interest of the minor child. [Citation.] Family Code section 3011 lists specific factors, 'among others,' that the trial court must consider in determining the 'best interest' of the child in a proceeding to determine custody and visitation: '(a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent against the child or against the other parent. . . . [¶] (c) The nature and amount of contact with both parents.' " (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess); Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1125 (Mark T.).)
In applying this best interests analysis in a move-away situation, a family court should additionally consider circumstances specific to the proposed move, including: "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." (LaMusga, supra, 32 Cal.4th at p. 1101.)
In international move-away requests, the court must also evaluate various factors unique to a foreign move, including: (1) any significant cultural problems (such as language difficulties or different accepted social norms); (2) distance problems (such as expense and jet lag); and (3) jurisdictional problems (such as the enforceability of custody and visitation orders). (Condon, supra, 62 Cal.App.4th at pp. 546-547.) On the latter element, the court should consider available procedures to alleviate enforceability issues in the foreign jurisdiction. (Id. at pp. 548-562.)
Before a final custody order is issued, neither parent has the burden to show changed circumstances or that the move is necessary or would cause detriment, and there is no presumption that the existing custody arrangement is the appropriate one. (See Burgess, supra, 13 Cal.4th at pp. 28, 34; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 18-20 (F.T.).) The court must decide the custody issue premised on the assumption that the parent will move away; the issue is not whether the parent should or may be permitted to move away, but " 'what arrangement for custody should be made' " when the parent moves. (Mark T., supra, 194 Cal.App.4th at p. 1126; F.T., supra, 194 Cal.App.4th at p. 22.)
Reviewing courts must act with cautious restraint in evaluating a family court's determination on a move-away request. (See LaMusga, supra, 32 Cal.4th at pp. 1089-1092; Burgess, supra, 13 Cal.4th at p. 32; Condon, supra, 62 Cal.App.4th at p. 549.) When choosing between two parents in a move-away situation, there is often no one right answer. But a decision must be made. And California law places the decision in the hands of the trial judge. Trial judges are the best equipped to make this decision because they have the opportunity to observe first-hand the demeanor of the witnesses and the tone of their testimony, and to evaluate all the tangible and intangible factors involved in the child custody decision. (See LaMusga, at p. 1101.)
Move-away cases frequently involve "heart-wrenching circumstances" that are "not amenable to inflexible rules." (LaMusga, supra, 32 Cal.4th at p. 1101.) Because of this, "we must permit our superior court judges . . . guided by statut[ory] and [judicial] principles . . . to exercise their discretion to fashion orders that best serve the interests of the children in the cases before them." (Ibid.) " ' "Only upon a clear and convincing showing of abuse of discretion will the [trial court's order] . . . 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." [Citation.]' " (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.)
III. Analysis
Father asserts the court abused its discretion in numerous ways. The record does not support these arguments. The experienced family court judge recognized there was no easy resolution to the parents' dispute. The court found Mother could not remain in this country because of immigration laws, nor could she return to this country for about 10 years, and Father could not currently travel to Japan because of his limited finances. N was bonded with both parents and close with Father's family. But N was young, and could equally bond with Mother's extended family in Japan.
On this record, the court chose Mother for various reasons, including Mother's strong bond with N, she had been a primary caretaker for much of the child's life, she would be legally precluded from living in or visiting the United States for a long period, and there were some concerns with Father's caretaking abilities and his prior conduct toward Mother. These reasons were sound and were within the court's discretion.
Father contends the court's ruling "was not based on the best interest of the child, but more what was in the best interest of the mother" and maintains the decision was erroneously made "because the needs and welfare of the child took second place to that of the mother." The argument is unsupported by the record. Although the court identified Mother's inability to return to the United States as a critical factor in its analysis, the court's statements show this circumstance was important because it was strongly relevant to N's welfare and best interests. The court did not use the phrase "best interests" in its statement of decision, but the court said it had "considered the factors" in the LaMusga and Condon cases, both of which held the child's best interests are paramount in the move-away analysis.
Father contends the court abused its discretion because it ignored the statutory mandate seeking to promote both parents' involvement in their children's lives. (See Fam. Code, § 3020, subd. (b).) The statement of decision reflects the court understood this general rule, but recognized that given the practical realities, it was not possible to have both parents closely involved in the child's life. The court was forced to choose the best option when neither joint physical custody nor frequent face-to-face visitation was possible. The court's choice does not constitute error on the face of the record.
Father contends the court abused its discretion because there were other reasonable orders that would have better protected his parental rights, such as ordering that the child spend six months in Japan with Mother and six months in the United States with Father. There is no showing that either party proposed this arrangement, and/or that it would have been practical and in N's best interests.
Father argues the court applied improper legal standards in reaching its conclusions. "[I]f 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." (F.T., supra, 194 Cal.App.4th at p. 25.) The record does not support that the court applied improper criteria or misunderstood the applicable legal standard.
Father contends the court applied improper standards because the statement of decision does not contain a discussion of various factors relevant to the analysis, including: (1) "the emotional impact that would be caused to the child's welfare with the move"; (2) "the detriment the child will suffer with the relocation to Japan"; and (3) the fact that "the relocation will greatly impair [Father's] ability to maintain or sustain the relationship he has with [his] child." However, as discussed above, the record supports that the court did consider these issues, but found they did not outweigh the benefits to N of being allowed to move to Japan with Mother.
Moreover, there is no showing that Father objected to the statement of decision based on the lack of a specific discussion on these issues. A party who does not timely object to a statement of decision on a particular ground forfeits the right to challenge on appeal any omissions or ambiguities in the statement on that basis. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 (Thompson); see Code Civ. Proc., § 634.) Absent an attempt to bring an omission or ambiguity to the trial court's attention, we are "required to infer any factual findings necessary to support the judgment." (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494.)
For similar reasons, we reject Father's contention that the court failed to consider the Condon factors, which relate to international move-away requests. (Condon, supra, 62 Cal.App.4th at pp. 546-547.) Specifically, Father contends the court did not adequately discuss the "cultural differences" between Japan and the United States, or the "distance problem." By failing to object to the statement of decision on this basis, Father forfeited this argument. (See Thompson, supra, 6 Cal.App.5th at p. 983.) Moreover, we are satisfied the court did consider these issues. The court stated it did not find the cultural differences to be of significant concern given N's young age, and made clear it understood that until Father's earnings increased, Father would not have the ability to visit with N in Japan given the distance and expense of the travel.
Father's reliance on a 1976 New York trial court decision is misplaced. (O'Shea v. Brennan (1976) 387 N.Y.S.2d 212.) In O'Shea, the trial court declined to allow a mother to bring her child when she moved with her new husband to Australia because the move would "deprive [the child] of the right to be raised and educated in her own country . . . ." (Id. at p. 216). As discussed in Condon, the trial court's analysis in O'Shea reflects a "chauvinistic" approach to international move-away cases that has not been adopted in California. (Condon, supra, 62 Cal.App.4th at p. 547.) Under California law, foreign relocations are permissible upon a consideration of the particular factors relevant to the foreign country and to the child's best interests. (Id. at pp. 546-548.) In this case, the record supports that the court considered all relevant factors, and reached a reasonable conclusion on the facts before it.
Father contends the court's order is inconsistent with the principles set forth in Condon because Judge Jessop did not provide an effective mechanism to enforce the order. (Condon, supra, 62 Cal.App.4th at pp. 547-548, 554-562.) In upholding the trial court's international move-away order, the Condon court remanded the case with directions that the trial court add appropriate enforcement procedures to the order. (Id. at p. 562.) The court stated: "[T]he trial court should take steps to insure its orders [to maintain custody and visitation rights for the noncustodial parent] will remain enforceable throughout the minority of the affected [child]. Unless the law of the country where the children are to move guarantees enforceability of custody and visitation orders issued by American courts . . . the court will be required to use its ingenuity to ensure the moving parent adheres to its orders and does not seek to invalidate or modify them in a foreign court." (Id. at pp. 547-548.) The court emphasized that the mother had not conceded to continuing jurisdiction by the California court, and an "unenforceable order is no order at all, and thus is void." (Id. at p. 562.)
In this case, the court recognized that "ongoing enforcement" will be "a significant concern" and thus placed three conditions on its move-away order: (1) "Mother must concede all jurisdiction over the issues of custody, visitation relating to the minor child shall be exclusively assigned to California"; (2) "California shall retain jurisdiction to terminate child support and spousal support in the event Mother fails to comply with the Court orders"; and (3) "Any child support arrears that remain from July 2014 to July 2015 shall no longer be payable to Mother but instead shall be deposited into a savings account in Father's name. Father shall have the right to use those funds in the event that an enforcement action becomes necessary due to Mother's non-compliance with this order."
Father argues the court abused its discretion by failing to provide additional enforcement guarantees, noting that although Japan is a signatory to the Hague Convention, these procedures protect a minor child for only one year. (See Condon, supra, 62 Cal.App.4th at pp. 556-557.) He also complains that the court did not require Mother to file the judgment in the Japanese courts.
Father did not meet his burden to show error on the enforceability conditions. Most important, we do not have the benefit of the factual record or arguments made by the parties at the hearing to properly evaluate this challenge. For example, we do not know the evidence before the court regarding the manner in which a foreign judgment can be enforced by Japanese courts, nor do we know the nature of the parties' arguments on these issues. Additionally, based on Mother's motion and trial briefs, it appears she is fully supportive of Father's relationship with N, and would comply with any court orders ensuring the continuation of this relationship. Additionally, the court conditioned its approval of Mother's move-away request on her conceding the California court's continuing jurisdiction and on the court retaining jurisdiction to reduce or terminate support amounts in the event of Mother's breach. The court also withheld support-arrears amounts to provide Father with resources to enforce the order. On this record, the court had a reasonable basis to find there was a minimal risk Mother would violate its orders, and that Mother's concession of jurisdiction, together with the court's authority to reduce or terminate support payments, was sufficient to ensure Mother's compliance.
Father contends the court's conditions did not adequately protect him because "there is no indication . . . that [M]other has expressed any concession to the continued jurisdiction of the California court." There is nothing in the record showing that Mother has not complied with this condition. To the extent she has not complied, the remedy would be a motion in the family court, not this court.
DISPOSITION
Affirmed. Appellant to bear respondent's costs on appeal.
HALLER, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.