Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1501-FL-595124. John S. Somers, Judge.
Ira L. Stoker for Appellant.
Heather J. C. Stanley for Respondent.
OPINION
Ardaiz, P.J.
Appellant Amy D. Barrett (Gafford) appeals from an order granting a post-judgment move away request to Canada filed by respondent Kevin C. Barrett. Appellant contends that the trial court abused its discretion in not allowing a full evidentiary hearing on her motion to modify custody. She also contends that the order granting the move away request was void or voidable because the trial court did not ensure that the visitation order would be enforceable in Canada. For the following reasons, we affirm.
FACTUAL & PROCEDURAL BACKGROUND
On December 12, 2006, judgment of dissolution of the marriage of respondent and appellant was entered in Kern County Superior Court. Pursuant to the terms of the judgment, the parties were granted joint legal and physical custody of their two minor children, with respondent having primary physical custody subject to appellant’s right to supervised visits with the children on Tuesdays for two hours and on alternate Saturdays for 10-and-a-half hours. The judgment provided that appellant’s visitation with the minor children “shall be supervised by a professional supervisor at [her] expense.” The judgment also provided that respondent “shall have the right to request that [appellant] submit to a full screen drug test at National Toxicology upon four hours notice.” Respondent would pre-pay for these tests. If appellant tested positive or otherwise failed to test, respondent had the right to “set an ex parte hearing to request that [appellant’s] visitation with the minor children be suspended.”
On April 9, 2007, appellant filed an order to show cause and affidavit for contempt against respondent citing 11 counts of contempt against respondent for frustrating her visitation rights between January 23, 2007 and March 10, 2007. Respondent had unilaterally terminated the visitations because he believed that the supervising agency that appellant was using, Alliance Investigations & Associates, was unprofessional. He informed her that she should contact him for contact information for another supervising agency “so that visits can continue.”
A hearing on the contempt matter was scheduled for May 14, 2007, but respondent failed to appear for this hearing and a bench warrant was issued. The matter was then rescheduled for a later date.
On June 26, 2007, respondent filed an order to show cause for modification of visitation order. In his moving papers, respondent sought to suspend appellant’s visitation with the children because she failed to submit to four of his requests for drug testing. These requests occurred during the period of November 2006 to February 2007.
On July 6, 2007, appellant filed a responsive declaration to the order to show cause. She contended that she never received notice of the four requests for drug testing. Appellant also requested that the trial court require that respondent or his attorney notice all future drug testing requests through her attorney’s office. Finally, she requested that her visitation with the children be unsupervised because her recent drug tests after July 2006 were all negative. In support, she attached five recent reports from National Toxicology evidencing negative results for drugs. These tests were ordered by appellant’s attorney during the time period of April 2007 through June 2007.
On July 19, 2007, the parties appeared in Kern County Superior Court to resolve the two orders to show cause. Respondent agreed to plead guilty to one count of contempt and be sentenced to two days in jail. The remaining counts would be dropped and the sentence suspended for six months upon respondent’s assurance that he would not interfere with the visitation rights of appellant. Appellant agreed to drug tests every two weeks, and respondent would continue to have the right to request random drug tests, but notice for these drug tests would now be communicated between the offices of the parties’ attorneys.
After a follow-up hearing on October 23, 2007, the trial court granted appellant unsupervised visitation with the minor children. Drug testing, however, remained in effect.
On April 24, 2008, respondent filed a Notice of Motion to Relocate with Minor Children to Canada with the Kern County Superior Court. In his moving papers on this move away request, respondent noted that he has remarried and is expecting a child with his new wife. He stated that his position as a sales manager at a Chevrolet dealership was uncertain but that he was given the choice of being demoted to a commission-only position in the finance department or being terminated. He also stated that he is a Canadian citizen and that his children, who were ages 7 and 4, were dual citizens of the United States and Canada. Respondent further asserted that he has family in Winnipeg, the city where he plans to move to in Canada, and that he has found a position as an office manager/sales manager for a landscape architect firm. As a fallback, he notes that he has the opportunity to work with one of his brothers in that brother’s landscaping business.
Respondent asserted that appellant had exercised only 50 percent of her visits under the judgment, and that since October 2007 she has missed many of her visits with the minor children. He proposed that the trial court modify the visitation schedule after the relocation to allow appellant to “have the minor children with her for several days in a row during some of the minor children’s various extended breaks from school, provided that [appellant] has then suitable living arrangements for such visits.” He also proposed that appellant would continue to have the right to weekly telephone calls with the children. Finally, he noted that there were numerous flight options between Bakersfield and Winnipeg.
On May 8, 2008, appellant filed her responsive pleading to the motion, asking the trial court for a change of custody or to prevent the removal of the children to Canada. She argued that the granting of the removal order would, in effect, result in the termination of her rights with her children. Along with her responsive papers, appellant provided the trial court with documents from Alliance Investigations & Associates, which showed that appellant was exercising her visitation rights and respondent was once again engaging in frustration of visitation, and indicated that the children were very happy with the visits. She also stated that she has purchased a condominium where she is living alone, and that she was six months pregnant.
On May 29, 2008, respondent filed his memorandum of points and authorities in support of petitioner’s move away request. He contended that appellant had not shown that there would be detriment to the minor children as a result of the move, and, thus, that appellant was not entitled to an evidentiary hearing on whether modification of custody was warranted. He further contended that, even if an evidentiary hearing were allowed, appellant would not be able to show that there was substantial change in circumstances which renders it essential or expedient to change custody of the minor children from himself to appellant.
On June 30, 2008, appellant filed her memorandum of points and authorities in opposition to move away or for alternative ruling. She contended that there would be detriment based upon the international move, the developing relationship between the minor children and her, and the poor relationship between her and respondent. She contends that the international move, in effect, would deprive her of her parental rights, including her visitation rights under the judgment of dissolution.
On July 3, 2008, respondent filed his reply memorandum. In response to the issue raised by appellant that she would not be able to exercise her visitation rights in Canada, respondent asserted that because Canada and the United States are signatories to the Hague Convention, “a custody and visitation order made by one of these countries is recognized and enforceable in the other as long as it is registered (i.e., filed as a foreign decree).” He stated that he has“ already made arrangements to forthwith have this Court’s order registered in Canada for enforcement purposes.” He also contended that his contempt citation for frustration of visitation was purged months ago, and explained how the recent alleged frustration of visitation charge was not supported by the facts.
On July 16, 2008, the hearing on respondent’s move away request was held. At the hearing, minor children’s appointed counsel testified that she “can’t say that there is going to be a detriment as far as the children, a disruption in their daily life, what they are used to.” Counsel based this testimony on the fact that the minor children were very young (one was barely one when the marriage was dissolved and the other was four years old), that appellant had very limited contact with the children, and that appellant has not re-established or established a regular visitation schedule with the children.
After argument by counsel for both parties, the trial court denied appellant an evidentiary hearing and granted respondent’s move away request. Notice of Entry of Findings and Order after Hearing was entered on August 1, 2008.
In that order, the trial court ordered that the current visitation schedule be continued until relocation. After relocation, appellant would be allowed a six-day visit during spring break of each year, two nonconsecutive 10-day visits during summer vacation each year, and a 10-day visit during Christmas break in 2008 and all even numbered years thereafter. Appellant also was granted a one-hour telephone communication with the minor children each Tuesday, Thursday, and Sunday. Respondent was required to communicate with appellant every two weeks regarding the minor children’s school work and schedule, as well as activities. Respondent also was required to pay the cost of three of the four visitations each year, while appellant was responsible for paying for the fourth visit. Upon entry of the order, respondent was required to post a $10,000 bond, the purpose of which was to provide appellant with sufficient resources to travel to Canada and, if need be, to begin the necessary legal action should respondent “make any efforts to either prevent the minor children from engaging in visitations in California or to otherwise frustrate this order regarding custody and visitation.” The order was stayed for 30 days after entry.
On August 11 2008, appellant’s counsel’s oral motion for a stay pending appeal was denied.
On August 13, 2008, appellant filed a timely notice of appeal.
On August 21, 2008, appellant filed a Writ of Supersedeas with this court, which was denied on August 26, 2008.
DISCUSSION
A. Evidentiary Hearing on Request for Change in Custody
On appeal, appellant contends that the trial court abused its discretion in not allowing an evidentiary hearing on her request for modification of child custody, which would in effect result in the denial of respondent’s move away request.
The California Supreme Court has held that “an evidentiary hearing in a move-away situation should be held only if necessary.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 962 (Brown & Yana).) “[A] trial court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child[ren] is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.” (Ibid.) “[A]n evidentiary hearing serves no legitimate purpose or function where the noncustodial parent is unable to make a prima facie showing of detriment in the first instance, or has failed to identify a material but contested factual issue that should be resolved through the taking of oral testimony.” (Ibid.)
To determine whether a showing of detriment has been established, the trial court should review the parties’ applications, supporting declarations and papers, and if needed, offers of proof. (Brown & Yana, supra, 27 Cal.4th at p. 962.) Furthermore, “[a]mong 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 child’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the child’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 share custody.” (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (LaMusga).)
Our review of the record indicates that there was no abuse of discretion. The trial court reviewed the moving papers and supporting documents, heard oral arguments from all counsel, including from minors’ counsel, and considered the LaMusga factors. The trial court determined that it was “in the best interest of the children” to continue “the existing custody arrangement, which is that the primary physical custody be with Mr. Barrett.” Although the move was an international move and there would be “substantial distance and a substantial impact,” “Canada is the least foreign of foreign countries to this country in some respects.” Moreover, “[i]t is perhaps probably about as close as an international move could be like when dealing in a situation here in California.” Finally, the trial court noted that the minor children were also citizens of Canada and apparently had fairly extensive contact with their relatives in Canada.
The trial court also heard argument from minors’ counsel that she did not believe there would be detriment based upon the children’s young ages and appellant’s limited contact with the children, including the lack of a regular visitation schedule with the children. The trial court considered that Mr. Barrett had pled guilty to contempt for frustration of visitation, but noted that the relationship between the parents appeared to be getting better. Finally, the court found that the visitation by appellant was minimal and that the overwhelming majority of time that the children have spent since they were born has been with Mr. Barrett. The trial court believed that the children would actually spend more time with appellant after the move.
There is substantial evidence in the moving papers and oral arguments to support the trial court’s findings. The trial court exercised its discretion and determined that appellant had not satisfied her burden of demonstrating that there would be a detriment to the minor children by the move to Canada. Appellant, however, contends that the trial court committed reversible error by stating that respondent’s past frustration of visitation was not an issue for the trial court to consider at this time. Our review of the trial court’s statements indicates that the trial court did consider the past frustration of visitation, but that the trial court focused on the recent relationship between the parents. The trial court noted that even after taking in consideration of respondent’s past frustration of visitation, appellant still did not fully exercise her visitation rights. Moreover, the trial court’s final custody and visitation orders took into consideration the past frustration of visitation issue by requiring that respondent register the judgment in Canada and accept continuing jurisdiction of the trial court. Respondent also was ordered to post a $10,000 bond, which appellant could use to pursue legal action to enforce her visitation rights. In her opening brief, appellant has alleged that respondent has presently not secured this bond, but has only deposited an undisclosed amount of money with his attorney of record. Respondent has contended in his brief that he has posted a $10,000 bond. Regardless of whether respondent has or has not posted a $10,000 bond, it does not detract from the fact that the trial court did consider the issue of past frustration of visitation and crafted an order to address that issue.
Therefore, in light of the record, we conclude that the trial court did not abuse its discretion in denying appellant a full evidentiary hearing.
B. Whether Order Granting Move Away Request Was Void or Voidable
Appellant also contends that the order granting the move away request is void or voidable because the trial court did not ensure that its order will remain enforceable throughout the affected children’s minority, citing In re Marriage of Condon (1998) 62 Cal.App.4th 533, 547 (Condon). Specifically, appellant contends that there is an issue of fact on whether Canada would honor and enforce the trial court’s order, and whether appellant would be able to enforce her visitation rights. Appellant further contends that the trial court abused its discretion in not granting a stay of the move away order pending appeal in light of the void or voidable nature of the order. We disagree that the order was void or voidable because of the trial court’s failure to confirm that the visitation order would be enforced in Canada.
In Condon, the appellate court held that the trial court should consider three issues when granting a move away request to a foreign country: (1) cultural differences, (2) distance, and (3) enforceability of the order in the foreign jurisdiction. (Condon, supra, 62 Cal.4th at pp. 546-548.)
Here, the trial court considered all three issues. The trial court determined that Canada has many cultural similarities and differences with the United States, but determined that there would not be a detriment to the children based upon the change in culture. Moreover, the distance was not an issue because the move was as close an international move as possible. (See also Condon, supra, 62 Cal.App.4th at p. 546 [“Except for Mexico or Canada, foreign relocation cases in this state inevitably involve a move to a different continent -- typically 8,000 miles or further and 8 or more time zones away from California.”]) Finally, the trial court did consider the enforceability issue. It determined that Canada was a signatory under the Hague Convention on the Civil Aspects of Child Abduction. It also noted that appellant could draw upon the resources of the Child Abduction Unit of Kern County’s District Attorney’s Office. And it crafted an order to ensure the enforceability of its order based upon the suggestions of the Condon court. The Condon court had suggested that the trial court “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,” for example by requiring the posting of a “substantial financial bond” or conditional termination or reduction of child or spousal support payments where the custodial parent frustrates visitation rights. (Condon, supra, 62 Cal.4th at pp. 547-548.) Here, the trial court required that respondent agree on the record to not frustrate appellant’s visitation rights, to continuing jurisdiction of the Kern County Superior Court on the visitation issues, and to posting a $10,000 bond. The trial court did not require a conditional termination or reduction of the current child support payment of $248 per month, and there was no spousal support payment in the case at the time of the move away request.
We conclude that the trial court did not abuse its discretion in granting the move away request because the trial court properly considered and addressed the three additional factors specific to international move away requests. The trial court crafted its order to ensure as much as possible the enforceability of its order in Canada. Although the court did not impose a conditional termination or reduction of child support payments, we do not conclude that the omission of a relatively minor support payment would render the order less enforceable in Canada. Finally, absolute confirmation that a California custody and visitation order would be enforced in another nation or country is not required for a trial court to grant a move away request. Otherwise, few if any international requests would be granted since “there may be no such country” where “the law of the country where the children are to move guarantees enforceability of custody and visitation orders issued by American courts.…” (Condon, supra, 62 Cal.App.4th at p. 547.) The Condon Court, itself, would affirm the trial court’s grant of a move away request to Australia, which is a signatory to the Hague Convention on Civil Aspects of Child Abduction, where the trial court required a concession of continuing jurisdiction, posting of a financial bond, and conditional termination of support payments. (See also In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 719 & fn. 9 [affirming the grant of a move away request where the trial court’s jurisdictional order closely tracked those recommended in Condon].) Thus, the trial court’s order granting the move away request is not void or voidable because of the possible lack of enforcement in Canada, and the trial court did not abuse its discretion in not granting a pending appeal.
DISPOSITION
The judgment is affirmed. Costs to respondents.
WE CONCUR: Vartabedian, J., Levy, J.