Opinion
E049535 Super.Ct.No. SDASS104620
08-08-2011
COUNTY OF SAN BERNARDINO, Plaintiff, v. LAMAR A., Defendant and Respondent; S.R., Appellant.
Jennifer Mack for Appellant. Abernathy|Howington and Christopher R. Abernathy for Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of San Bernardino County. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jennifer Mack for Appellant.
Abernathy|Howington and Christopher R. Abernathy for Defendant and Respondent.
This is an appeal by S.R., appellant (hereafter Mother), from the trial court's custody and visitation order awarding Lamar A., defendant and respondent (hereafter Father), primary physical and sole legal custody of their then nine-year-old daughter, Z.A. (hereafter Daughter). Mother contends in this appeal that the order is an abuse of the trial court's discretion, and in any event, it is not supported by the evidence. We disagree. Therefore, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Although Father and Mother were never married to each other, they do not dispute Father's paternity; he is identified as the father on Daughter's birth certificate, Daughter has Father's last name, and Father has been part of her life since her birth. When Mother and Father ended their relationship in 2003, they had an informal custody arrangement in which Daughter lived with Mother and visited Father on weekends. In 2007, Father filed an Order to Show Cause (OSC) regarding child custody, support, and visitation.
In response to Father's OSC, the trial court referred Mother and Father to family court mediation and then issued a temporary order on May 3, 2007, awarding Mother and Father joint legal custody, primary physical custody to Mother, and visitation every weekend to Father. In April 2008, Father filed a notice of motion seeking a "730 Evaluation and 3190 Counseling." At a hearing on May 29, 2008, the trial court denied Father's requests after first noting that Father did not seek a modification of custody and/or visitation; therefore no basis existed upon which to order an Evidence Code section 730 evaluation.
The parties refer to this order by the date the notice of ruling and order were filed, July 16, 2007. To avoid confusion, we will also use that date to identify the order.
The numerals refer to Evidence Code section 730, which authorizes a court to appoint an expert to provide evidence on an issue before the court, and Family Code section 3190, which empowers the court to order the parties to participate in counseling.
In June 2008, presumably in response to the trial court's May ruling, Father filed an order to show cause seeking modification of the July 16, 2007 custody and visitation order, and again asking the court to order a so-called 730 evaluation. Among other things, Father requested physical custody of Daughter because Mother had "dis-enrolled" Daughter from school without consulting Father, in violation of the joint legal custody order. Father also pointed out that in 2006 then five-year-old Daughter was raped by Mother's adult nephew, who about 10 years earlier had raped another of Mother's daughters. Father sought ex parte relief in his petition, but the trial court denied that request because Father failed to demonstrate an emergency existed that would warrant such relief. Instead, the trial court referred the parties to family court mediation services, and set a hearing for July 15, 2008.
At that hearing the trial court, among other things, adopted the mediator's recommendation that Mother and Father have joint legal custody of Daughter, and that primary physical custody remain with Mother. The trial court granted Father's request for a 730 evaluation, appointed Sharon Heaston as the evaluator, and set October 6, 2008, for the evaluation review hearing. The review hearing actually took place on March 3, 2009. Because the evaluator recommended a change in primary physical custody of Daughter from Mother to Father, the trial court set the matter for trial on March 24, 2009.
Mother and Father represented themselves at trial, which took place over two days, March 24 and 26, 2009. After hearing testimony from both parents, and reviewing pertinent evidence, including the two family court mediator reports, and the 730 evaluation prepared by Sharon Heaston, the trial court found it was in Daughter's best interest for Father to have sole legal custody and primary physical custody and for Mother to have visitation every weekend. The trial court ordered the new custody arrangement to take effect at the start of Daughter's 2009-2010 school year.
Mother appeals from that order.
DISCUSSION
Mother asserts the trial court's custody and visitation order is an abuse of discretion, first because Father failed to show changed circumstances warranted the requested modification, and next because the trial court's best interests finding is not supported by the evidence.
1.
CHANGED CIRCUMSTANCES
Mother's first claim presents an issue of law, namely, whether the changed circumstances requirement applies in this case. A noncustodial parent seeking to modify a final, or permanent, custody determination must demonstrate that the requested modification is warranted by a significant change in the circumstances that existed at the time the order was made, and as a result the requested modification would be in the best interest of the child. (Burchard v. Garay (1986) 42 Cal.3d 531, 534; In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.) In this case Father, as the noncustodial parent, would have to show significant changed circumstances if the previous custody and visitation order was a final or permanent custody determination.
The trial court, as recounted above, issued the initial custody order at the May 3, 2007 hearing on Father's first order to show cause filing. That order is clearly a temporary order. The trial court said as much at the pertinent hearing. Moreover, the trial court issued the temporary order after first noting that Mother had requested a continuance, which the trial court granted, so that she could retain counsel. The trial court continued the order to show cause hearing to June 20, 2007. That hearing did not take place, for reasons not disclosed by the record on appeal. In accordance with the trial court's directive, Father gave notice of the trial court's ruling at the May 3, 2007 hearing by filing a notice of ruling and order thereon on July 16, 2007. That filing also does not explain why the June hearing did not take place.
Mother argues, from the fact that the hearing did not occur in June and that neither she nor Father took action to place the matter back on calendar, that the parties intended the July 16, 2007 order to be a final custody and visitation order. The record does not support Mother's claim. In Montenegro v. Diaz (2001) 26 Cal.4th 249, which Mother cites to support her claim, the parties had stipulated to previous custody and visitation orders in which Diaz, the mother, was given primary physical custody of the child. Montenegro, the father, filed another OSC seeking a change in custody and visitation. Following a trial, the trial court found it was in the best interests of the child for the father to have primary physical custody. The trial court issued the appropriate custody and visitation order. On appeal the mother argued that the father had to show changed circumstances in order for the trial court to modify the previous stipulated order. The father countered that a stipulated order could not be a final custody order for purposes of the changed circumstances rule. The Supreme Court held otherwise: "[A] stipulated custody order is a final judicial custody determination for purposes of the changed circumstances rule [but] only if there is a clear, affirmative indication that the parties intended such a result." (Id. at p. 258.) Because the record did not include a clear affirmative indication of such intent, the Supreme Court held the previous orders were not final custody orders and therefore the trial court could modify the previous order without first finding that changed circumstances warranted the modification. (Id. at p. 259.)
The circumstances in this case are far less compelling than those in Montenegro v. Diaz and therefore do not disclose that Mother and Father intended the July 16, 2007 custody order to be a final or permanent order. First, Mother and Father did not stipulate to custody and visitation; they only asked the trial court to order visitation every weekend rather than every other weekend as the mediator had recommended. The trial court accommodated their request. More significantly, the trial court's July 16, 2007 custody order is devoid of details. It states simply, and in its entirety, as follows:
"1. Joint Legal Custody
"2. Physical Custody to Mother
"3. Father shall have their child every weekends [sic] of the month from Friday at 7 pm [sic] until Sunday at 6 pm [sic]
"4. Child shall be assessed at San Bernardino Sexual Assault Services to evaluate the need for counseling regarding the molestation. (Mother was provided information at time of the mediation)."
Father's notice of ruling and order thereon adds the parties' agreement regarding the place at which the child will be picked up and dropped off "for exchange purposes."
The lack of detail, combined with the absence of any other facts to show the parties' intent, lead us to conclude that Mother and Father did not intend the July 16, 2007 custody and visitation order to be a permanent order. Therefore, we reject Mother's claim that changed circumstances must be shown to modify that order.
Mother does not discuss the custody order issued following the July 2008 hearing. Therefore we will not discuss it either.
2.
SUFFICIENCY OF EVIDENCE
Mother next argues that the evidence does not support the trial court's finding that awarding primary physical and sole legal custody to Father is in the best interests of the child. We disagree.
We review custody and visitation orders under the deferential abuse of discretion standard. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (Ibid.)
"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, supra, 13 Cal.4th at p. 32.)
The facts in this case disclose that Mother and Father did not get along with each other. For example, Father claimed Mother did not keep him informed about Daughter's health, in particular, that Daughter had been sexually assaulted, a fact Father claimed he only learned eight months after the assault occurred. Father also claimed Mother did not keep him informed about Daughter's education and unilaterally decided to place Daughter in a home school program for the last two months of Daughter's second grade school year. Father also made several child welfare reports on Mother because he believed Mother lived in squalor and neglected Daughter's physical needs. Mother, in turn, denied Father's accusations and claimed Father had attempted to kidnap Daughter from school, which is why Mother placed the child in home schooling. Mother insisted she told Father about the sexual assault as soon as she learned about it. Mother also complained that Father cut Daughter's hair without first consulting Mother, and that he made Daughter remove the head covering prescribed by Mother's Muslim faith.
The trial court went so far as to say that it appeared the parties hated each other, a claim Mother denied. Mother's denial prompted the trial court to comment, "Well, you put on a good imitation of it. The two of you put on a good imitation of being totally distrustful. Absolutely nothing the other parent does satisty [sic] you."
The child protective services agency apparently dismissed the complaints as unfounded.
Father explained that he is Christian and that when Daughter is with him, he does not want her to wear the head covering.
In making the custody and visitation order, the trial court considered the demeanor and testimony of both parents, as well as two prior family court services mediation reports, Sharon Heaston's 730 evaluation, and various documents the parties each submitted at trial. That evidence shows that while Mother had primary physical custody, Father had frequent contact with Daughter because she spent weekdays with Mother, and every weekend with Father. According to the 730 report prepared by Sharon Heaston, Daughter loved each parent equally. The evidence also shows, as the trial court found, that Mother made important decisions about Daughter's health and education without first consulting Father. Mother not only placed Daughter in a home school program without consulting Father, she also changed Daughter's therapist without informing Father or obtaining his consent. Although Mother offered a justification for the former decision (she claimed she was protecting Daughter from Father's attempt to kidnap her from school) and denied that she failed to inform Father about the latter, the trial court was not required to believe Mother's testimony. In fact the trial court expressly found Father's testimony more credible regarding the change in therapist.
The documents the parties submitted were not marked as exhibits and introduced into evidence. Therefore, they are not part of the record on appeal.
The trial court also observed that Mother caused "substantial delay" in completing the 730 evaluation, and at one point the evaluator actually asked to be excused from further responsibility for preparation of the report because of repeated difficulty in scheduling appointments with Mother and guaranteeing her cooperation. The evaluator recounted in the 730 evaluation the scheduling difficulties she encountered with Mother, which included Mother arriving 20 minutes late for her scheduled interview and then spending another 15 minutes in the restroom as well as making and cancelling six appointments for her husband's interview. Mother also eavesdropped on the evaluator's confidential interview of Daughter, a fact Mother disclosed when she called the evaluator to complain about several questions that, in Mother's view, were "inappropriate."
The noted evidence supports the trial court's finding that it is in Daughter's best interest to award sole legal custody and primary physical custody to Father. According to the evidence Mother not only failed to consult Father before making decisions that were subject to the joint legal custody order, but she also displayed unwillingness to cooperate in the evaluation process even though Daughter's best interest was at stake. In short, the evidence supports the trial court's exercise of discretion.
The evidence also shows that while in Mother's physical custody and care Daughter was raped by Mother's nephew, the same nephew who about 10 years earlier had sexually assaulted Mother's older daughter when that child was about five years old. The trial court expressed disbelief that the nephew "would even be allowed to be anywhere near any female member of this family, particularly a young child," and could not "understand how that happened." In addition, Sharon Heaston noted in her written 730 evaluation that the results of Mother's Minnesota Multiphasic Personality Inventory-2 test disclosed Mother had anger management issues and antisocial personality traits. This evidence supports the trial court's exercise of discretion to award Father primary physical custody of Daughter.
Mother testified that the nephew sexually assaulted Daughter at the maternal grandmother's house while Mother was away doing community service to fulfill a misdemeanor probation condition. Mother did not know that the nephew was at the maternal grandmother's house. Mother called the police as soon as she learned about the assault and the nephew was arrested, and ultimately convicted of the crime.
In arguing otherwise, Mother focuses on statements the trial court made at the conclusion of the March 2009 trial. First Mother claims the evidence does not support the trial court's statement that Mother removed Daughter from school and placed her in home schooling in response to Father filing an OSC to modify custody. Mother points out that the timing of events does not support the trial court's statement. Mother also claims the trial court penalized her for being a working mother, as evidenced by the trial court's statement that Father's work schedule was better suited to helping Daughter with homework. We will not address Mother's assertions because we conclude other evidence supports the trial court's exercise of discretion. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32 ["We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked."].)
DISPOSITION
The order is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
Codrington
J.