Opinion
A114433
4-24-2007
In re the Marriage of JENNIFER L. ENGLEHART and JUSTIN GRAHAM. JENNIFER L. ENGLEHART, Appellant, v. JUSTIN GRAHAM, Respondent.
NOT TO BE PUBLISHED
This appeal is the culmination of a protracted custody dispute between Jennifer Englehart and Justin Graham, mother and father of Allison, who is now four years old. Although the record reveals profound concerns over the expert testimony that was received at trial, the custody arrangement must be affirmed because it is nevertheless supported by substantial evidence. However, the child support order cannot be reconciled with the disparate incomes of the parties and must be remanded for reconsideration.
Background
Englehart and Graham began dating in 2001 and Allison was born on February 3, 2003. Englehart and Graham were married on August 14, 2004. Englehart is also the mother of another daughter, Hannah, who was nine years old at the time of trial. On March 23, 2004, the Contra Costa County Department of Child Support Services filed a complaint against Graham regarding his parental obligations, requesting that he be ordered to pay $1,516 monthly in child support for Allison. On October 7, 2004, a judgment was entered ordering Graham to pay this amount. The award was based on an adjusted monthly income for Graham of $6,063, and no income for Englehart.
On December 24, 2004, Graham filed an application for several forms of relief. He alleged that in February 2004, without his consent, Englehart had taken Allison to Ohio where Engleharts family lives, that Englehart had returned to California when the two reconciled and married, and that Englehart had assured him that the child support action had been terminated. Despite Engleharts representations, the action had not been terminated and the county was seeking to collect arrears. He alleged that in December 2004, Englehart again left for Ohio with Allison and refused to return Grahams calls or return to California. Graham requested dissolution of the marriage, that the child support order be terminated, and that Englehart be ordered to return Allison to California.
On January 11, 2005, Graham obtained an order to show cause directing Englehart to remain in Contra Costa County with Allison, and to return immediately if she was outside the state. Graham requested that he be given immediate custody of Allison or alternatively that time be shortened for a hearing on his application for a change in custody. He alleged that Englehart had evaded service of the order shortening time for the hearing on the order to show cause.
On January 19, 2005, Englehart obtained a domestic violence restraining order against Graham. In her application, Englehart alleged, "Justin told me that he hears voices telling him to go to the dark side, and that other voices tell him to go the light side, (meaning the right thing). He told me he was being consumed by dark thoughts. He told me hes thinking about killing himself, and thinking about other horrible things: too horrible to mention; and, that he cant go on like this—and that SOMETHING BAD IS GOING TO HAPPEN. I assume he was going to kill me and everyone else. He said hes not happy with me and hes not happy without me." She also stated, "Justin deliberately ran into my car. I think he did this because he was angry my car was there and it was in his way. The night before he woke me up in the middle of the night. He was drunk. He yelled at me in a menacing and accusing way." She alleged that "Justin began to talk about the Scott Peterson murder trial in a way which made me very frightened. He was justifying what Scott Peterson had done in such a way that I felt he was talking about the circumstances of our own marriage. He said that Scott Peterson had to move to Modesto from San Diego . . . that he didnt want the baby, and didnt want to be tied down. He had to do something about this because he was going to be trapped. The only thing he could do was to kill her with the baby, because once the baby was there he would be trapped forever. He said that Scott Peterson didnt do anything wrong: that theres no such thing as doing anything wrong. He had to do it. You can only do what is right for you. (When I was pregnant with Allison he said basically the same thing to me.)" Finally, she alleged that "In Oct. 02, Justin told me that if he ever wanted to hurt me he could mix DMSO with any deadly substance or drug, and that the DMSO would allow the drug to be absorbed directly into my skin, delivering immediate effects. Justin possesses DMSO."
Also on January 19, 2005, Englehart filed responsive declarations to the order to show cause. She reiterated many of the allegations made in her application for the restraining order. She also alleged that Graham is an alcoholic, and that she was afraid of him. She disputed that she left for Ohio in February 2004 without Grahams knowledge, stating that "We had been living together and we both decided that the relationship was not working and we decided I would leave the next June and I told him I could not wait that long. He agreed that it was over, and told me `to move on. " Englehart also alleged that Graham "is an alcoholic and an illegal drug user who uses drugs in the presence of the children [sic]. . . ; [Graham] is mentally unstable, and his behavior threatens himself and the family . . . ; [Graham] cannot take care of Allison. He has not shown he is able to find daycare; nor, would daycare be in Allisons best interest." She also denied that she had evaded service of process, but that she and her mother did not know who the process server was, and that once she knew Graham was trying to serve her she made herself available and eventually traveled to the sheriffs office herself to retrieve the notice. She stated that she had encouraged visitation between Graham and Allison, including allowing Graham to stay with them at her parents home in Ohio.
Engleharts brother provided a declaration stating that Graham knew that Englehart was leaving in February of 2004, and that Graham had visited Englehart and Allison in Ohio many times. He stated that he had observed Graham using marijuana nightly. Engleharts father provided a declaration stating Graham had several cordial visits with Englehart, her mother, and him in Ohio, and that "[b]y any measure, my daughter Jennifer is indigent; her only possession being the hope to complete her nursing degree, become self sufficient, and provide a stable home for her children in Ohio, where she [has] a support base." Engleharts mother also provided a declaration, disputing that Englehart had "absconded" with Allison. She stated that she had been at Graham and Engleharts home in January 2004, and that "I was sitting on the couch when Jenn told him that she was going back to Ohio with the girls now instead of in June as she and Justin had planned. [¶] She sat at the computer to make reservations to leave and asked Justin what times would be good for him, because we needed his help with all the bags. [¶] We packed up Jenns and the girls belongings over the next two weeks. Bags and boxes were lying in plain sight. The apartment is very small, and I dont think she would have been discreet if she had intended to be. [¶] The morning of the departure he weighed the bags to make sure they werent too heavy. Justin drove a car and so did her brother Chris, because we had so much baggage." Engleharts mother also reiterated that she had observed Graham smoking marijuana.
Graham opposed the application for a restraining order, declaring that Englehart "is literally and legally out-of-control. She outrageously and ever-increasingly has resorted to new methods of abusing the legal process, now by resorting to ex parte relief for meritless but serious domestic violence accusations frivolously based on contorted situations and woven from her own retaliation and frustration for having to return to California after attempting to simply write-me out of her and my daughters life. Respondent simply is trying to avoid her co-parenting responsibilities while she pursues a college lifestyle in Ohio under her financially supportive parents umbrellas." He reiterated his accusations that Englehart has absconded with Allison and that she had evaded service of process. He alleged that the domestic violence allegations were fabricated when he refused "to `temporarily vacate our apartment to allow respondent to reside there, alone, upon her return to California and throughout her stay. Although I invited her to move back in, and offered to make accommodations if necessary, she refused without any attempt to discuss it . . . . I believe she is also retaliating because I refused to pay for her airline ticket back to California, and because she had planned to visit a brother in Washington DC during the United States Presidential Inauguration this week . . . , which has now been interrupted due to the January 26, 2005 hearing and the courts order for her to come back to California immediately."
Graham denied hearing voices, or that he had threatened to kill himself. He stated that he hit Engleharts car accidentally. He stated that conversation about Scott Peterson took place many years earlier, and that Graham "was trying to explain my general belief about people . . . that there are no `bad people, just `bad options and situations. I never intended the discussion to frighten respondent, and I do not believe that it did." He alleged that a friend gave him "a small bottle, about the size of my thumb" of DMSO to treat a fungal infection, that he did "not have any toxic poisons, without which DMSO is harmless," and that he "may still have it in my closet as respondent alleges, but am not sure."
On January 27, 2005, the court terminated the restraining order, ordered the director of Family and Child Services to select a child custody evaluator, and established a temporary living arrangement under which Allison was to remain in the Lafayette home while the parents rotated in and out of the home on a two-day, three-day, two-day basis, with the noncustodial parent staying in an apartment or motel (the "nesting" arrangement) until the evaluation was completed. The court also ordered Englehart "to get a job."
On January 28, 2005, the Director of Family and Investigative Court Services appointed Dr. Jerri Curry to conduct a custody evaluation under Evidence Code section 730. On February 16, 2005, the court ordered Graham to begin paying Englehart child support of $1,105 monthly, beginning December 16, 2004, and directed the parties to split the cost of child care.
The order originally stated the starting date for support payments to be December 16, 2005, but on March 7, 2005, the court entered an amended order, correcting the starting date to December 16, 2004.
On February 23, 2005, Dr. Curry submitted her child custody evaluation. She recommended, among other things, joint legal and physical custody if Englehart remained in California, but "joint physical custody with father as primary caretaker if mother chooses to move to Ohio."
Following a hearing on March 23, 2005, the court entered an order dated April 25, 2005. The order directed the nesting arrangement to continue pending trial that was scheduled for October 18, 2005, and it directed Englehart to "obtain employment on the days the child is with petitioner, and she shall pay $ 200.00 per month towards the motel/studio apartment after she commences such employment."
On August 29, 2005, Graham filed an application to modify the child support order, arguing that the current child support payments were based on his having 49.99 percent physical custody, and alleging that "I will have 100% custody as of 8/25/05 because mother is moving to Ohio for school. [¶] I will be entitled to credits for the over payments of child support made after that time." Graham requested that the application be heard on shortened notice because "it is unlikely that [Englehart] will be able to repay me for my overpayments because she is unemployed, and now will be starting school. Furthermore, I already have numerous reimbursement claims against [Englehart] because I have been paying for her apartment and hotel since the beginning of 2005, as well as all utilities, car insurance, and community obligations."
On October 19, 2005, the court rescheduled trial for April 10, 11, and 12, 2006. All direct examination was to be submitted by declaration, subject to cross-examination. Following a three-day trial as scheduled, on April 20, 2006, the court issued a tentative decision awarding Englehart and Graham joint legal and physical custody of Allison. Graham "shall have primary physical custody. [Englehart] shall have visitation as recommended by Dr. Curry . . . ." Under that visitation schedule, Englehart would have actual custody of Allison for periods totaling only 8 percent of the year. Based on an 8 percent time share, Grahams monthly income of $9,486 per month, and imputed minimum wage income for Englehart, but also based on the erroneous assumption that the couple had two children, the tentative decision ordered Graham to pay Englehart $1,121 monthly in child support. The court declined to impute additional income to Englehart based on the fact that she was not paying rent, and also declined to grant Englehart a hardship deduction for travel expenses. The court did not make child support retroactive, nor reimburse Englehart for child support that she had been ordered to pay Graham from August 25, 2005, until trial. Each side was to bear its own attorney fees.
On April 24, 2006, Grahams attorney sent a letter to the court, with a copy to Engleharts attorney, pointing out that there was an error in the data used to generate the child support calculation. The DissoMaster attachment to the tentative decision reflected that there were two children from the relationship when, in fact, there was only one. Grahams attorney attached a corrected Dissomaster calculation "showing that Mother is to pay Father $608/month . . . ."
On May 5, 2006, Englehart filed her objections to the tentative statement of decision. She objected to the admission of Dr. Currys report, citing concerns about Dr. Currys qualifications and evaluation methods. On May 9, the trial court filed a modified tentative decision that incorporated the revised calculations in the letter from Grahams attorney. On May 19, Graham filed objections to the tentative statement of decision, and a proposed judgment and statement of decision. On June 2, Englehart filed objections to the proposed judgment and statement of decision, reiterating her objection to the use of Dr. Currys report and also objecting generally to the child support award.
On June 8, 2006, the trial court filed its statement of decision. It awarded the parents joint legal and physical custody of Allison, with Graham designated as the primary custodial parent. The court cited the fact that "Allison has primarily resided with [Graham] since August, 2005 and the need to maintain stability and continuity in her young life is paramount. This finding is consistent with the recommendations of the child custody evaluator, Dr. Curry. As between the parents, father is more stable emotionally and economically and is more likely to encourage a relationship with the other parent." The decision also provided that "Commencing May 1, 2006 [Englehart] shall pay [Graham] child support in the sum of $610.00 per month, one-half on the 1st and one-half on the 15th day of each month. . . . [T]he amount is based upon imputing a minimum wage to [Englehart] based upon the Ohio minimum wage law, an 8% time share and a gross monthly income to [Graham] of $9,486.00 per month." The court denied hardship deductions for Englehart for transportation costs; denied Grahams request that the court impute additional income to Englehart because she was not paying rent; denied Grahams request that the child support payments be made retroactive, and denied Engleharts request for reimbursement of child support prior to trial. The court ordered Graham to pay $10,000 to Englehart for attorney fees at a rate of $500 per month beginning on August 1, 2006, and ordered Englehart to reimburse Graham for half the cost of the custody evaluation, or $1,462.50, at a rate of $250 per month beginning on August 1, 2006.
On June 12, Englehart filed a notice of appeal, purporting to "appeal[] the judgment entered on June 8, 2006," although judgment was not entered until July 14, 2006.
The notice of appeal is nevertheless timely. (Cal. Rules of Court, rule 8.104(e)(2).)
DISCUSSION
A. Custody and visitation
Englehart contends that the trial court erred in its custody and visitation orders. She argues that the court improperly delegated its authority when it ordered the director of Family Court Services to select a custody evaluator under Evidence Code section 730, that it erred in considering the parties relative economic status as a factor in making its custody determination, and that it erred in basing its custody award on the evaluation of Dr. Curry because Dr. Curry was not qualified to conduct the evaluation and her evaluation was not based on the correct standards.
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] 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." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
1. Selection of the custody evaluator
Englehart first argues that the trial court improperly delegated its judicial authority by asking the director of Family Court Services to select a custody evaluator. This contention is easily dismissed because Englehart consented to the method of selection.
Contra Costa County Local Rule 13.2(c), entitled "Evaluator Selection," provides that "[w]here the parties are unable to agree on an evaluator to conduct the custody evaluation, the matter shall be referred to Family Court Services (`FCS) for selection for a private evaluator in accordance with a rotational selection system. The court will issue a standard order that FCS shall designate an evaluator for the case." The minutes of the hearing on January 27, 2005 state, "The court orders a custody evaluation to take place immediately. Attys given the choice to each pick 2 evaluators, each eliminate 2, the 1st available of remaining is to perform the evaluation or FCS m[a]y assign evaluator. Attys choose to have FCS appt evaluator. A copy of the minute order will be hand delivered to FCS and FCS will be advised of the urgency in appting an evaluator." (Italics added.) Englehart argues that these minutes are incorrect because no mention of the selection of the evaluator is made in the formal order prepared by counsel memorializing the rulings made at the hearing. While this point was not included in the formal order, the record on appeal does not include the reporters transcript of the hearing. Absent contradictory evidence in the record, we may presume that the minute order correctly reflects the proceedings. (See, e.g., People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423; Long v. Long (1967) 251 Cal.App.2d 732, 737.)
Moreover, Engleharts objection is based on a mistaken premise. The appointment of the evaluator was not a "general" reference in which the evaluator was authorized to make decisions, but a " `special reference . . . conducted pursuant to [Code of Civil Procedure] section 639 or subdivision 2 of section 638, in which the referee makes advisory findings which do not become binding unless adopted by the court. [Citations.] The trial court must independently consider the referees findings before acting." (Ruisi v. Theriot (1997) 53 Cal.App.4th 1197, 1208.) Unlike the situation in Ruisi v. Theriot, on which Englehart relies, a special reference for the purpose of performing a custody evaluation is specifically authorized by statute. (Fam. Code, § 3111.) Still further, in Ruisi v. Thieriot and In re Marriage of Olson (1993) 14 Cal.App.4th 1, the appellate courts objection to the trial court procedures was that appointments had been made without the consent of the parties.
Further statutory references are to the Family Code unless otherwise specified.
In short, the trial court did not err in requesting FCS to select an evaluator as the parties had agreed.
2. Consideration of economic status
Because the statement of decision states at one point, "As between the parents, father is more stable emotionally and economically," Englehart argues that the trial court impermissibly considered the parties relative economic circumstances in making its custody determination
"[C]omparative income or economic advantage is not a permissible basis for a custody award. `[T]here is no basis for assuming a correlation between wealth and good parenting or wealth and happiness. " (Burchard v. Garay (1986) 42 Cal.3d 531, 539.) In Burchard, the high court took issue with the fact that "[t]he essence of the [trial] courts decision is simply that care by a mother who, because of work and study, must entrust the child to daycare centers and babysitters, is per se inferior to care by a father who also works, but can leave the child with a stepmother at home." (Id. at p. 540.)
While Englehart specifically objected to the trial courts conclusion that Graham was more stable emotionally, citing Dr. Currys report that he experienced blackouts as a result of drinking alcohol and evidence that he had threatened to commit suicide, she did not object to the courts observation that Graham was more stable economically. She therefore has waived the right to challenge that finding on appeal. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) Waiver aside, the reference to economic stability was not central to the trial courts decision. The custody order was based fundamentally on the courts conclusion that "Allison has primarily resided with [Graham] since August, 2005 and the need to maintain stability and continuity in her young life is paramount."
3. Dr. Currys evaluation
Englehart argues that "failure to comply with A[merican] P[sychological] A[ssociation] and C[alifornia] R[ules] of C[ourt] Rules rendered Dr. Currys custody evaluation grossly incompetent and not a legitimate basis on which to make custody orders." She continues, "Expert testimony cannot constitute `substantial evidence when it is based on conclusions or assumptions not supported by evidence in the record." We agree that there are deficiencies in Dr. Currys report that significantly affect the weight to which it is entitled. However, because this court operates under a deferential standard of review and the trial court had other, substantial evidence to support its decision, the consideration of Dr. Currys report does not require the reversal of its custody order.
In order to evaluate the concerns over Dr. Currys report, it is necessary to examine in some detail both the report and the expert testimony Englehart submitted criticizing the report. In her cover letter, Dr. Curry stated that the "evaluation was completed over a three-week period of time consisting of twenty-eight hours that included interviews, observations, review of records, administering and interpreting psychological measurements and completion of this written evaluation." Under the heading "Measurements Administered to Petitioner and Respondent" the report lists the following: "MMPI-2, Millon Clinical Multiaxial Inventory-II, SCL-90-R, FACES III, Assessment of Socialized Behavior, Alcohol Inventory, Administrative Office of the Courts Child Custody Evaluation measurement, Solomons Sword—Parent Interview and Observations of Play Therapy interaction between parent(s) and child, Genogram of family origin history, perpetrator and victim questionnaires, and Evaluation Intake Questionnaire. Review of Court pleadings, including Declarations, and Restraining Order documentation and collateral interviews."
As background, the report states only that "Petitioner (father) and Respondent (mother) were introduced to one another through mothers half-brother, Chris Barnhouse. Father and mother dated for several years and were married on August 14, 2004." The report describes the current custody arrangement and then contains sections on each of the two parties. Englehart is described as "a stay at home mother and she has taken several classes at Diablo Valley College and is an A/B student. She said it is her desire to apply for nursing school once she has completed two final undergraduate courses in Ohio. She said she could obtain work as a nurses aide while attending nursing school . . . because the Ohio school is `unique and not offered in other locations. " The report describes four occasions in which Dr. Curry observed Englehart and Allison together, noting that Allison initially appeared relaxed with her mother, who was attentive but "appeared to be startled and caught off guard when Allison refused to do what mother asked her to do." Regarding "discipline and rule setting standards," Dr. Curry observed that "Mother did not appear to have specific disciplinary practices with her daughter Allison. Mother was vague in responding to how she punished her children . . . ."
Dr. Currys "psychological assessment" of Englehart indicated that "Mothers profile is within normal limits and she may essentially be well functioning with no major personality disturbance. However, her unwillingness to divulge matters of a personal nature may point to broad deficits in introspectiveness or sense of denial as to her own actions as a possible cause to her current difficulties. Mothers histrionic style may surface on occasion, and she may have more fantasy wish fulfillment rather than reality. Although she may appear to be charming and clever to casual acquaintances, those having a more intense and enduring relationship with her are likely to see her with periodic testy, demanding , manipulative and exploitative tendencies. Mother said at times she felt `sadness and depression and had trouble sleeping along with feeling a lack of consistency. Mother did not answer a number of questions and that prevented a full assessment of her mental and or behavioral status."
Finally with respect to Englehart, the report recited her assessment of the "advantages and disadvantages in moving Allison to Ohio." Englehart thought Allison would benefit from better schools and being with her large family, particularly including her half sister, in Ohio and that she (Englehart) would be in a better position to " `foster a good connection between father and daughter. " According to the report, Graham reported that he held a "very secure" position as Senior Software Engineer at "the `most prestigious and biggest software corporation in the world called Electronic Arts " but had flexible hours and could sometimes work out of his home. He claimed to share household and child care responsibilities with Englehart. He "felt he would be a more consistent caretaker for Allison and he would set a solid structure and routine for his daughter." Although later referring to Engleharts accusations of substance abuse and threatened violence, Dr. Curry described Graham as "emotionally healthy." The report describes Grahams "psychological measurements outcome" as "appear[ing] to be an essentially well-functioning individual with no major personality disturbance. However, he does present with some compulsive, dependent traits and he also may show more wish fulfillment than reality. He strives to conform and adhere to the expectations of others, particularly those in authority. He may tend to be nonassertive and take on self-blame and self-punishment if his behavior transgresses acceptable boundaries. Conformity to the rules and values of others is emphasized in his daily life." Dr. Curry reported that Graham was "willing to help mother financially if mother and daughter remain in California, and he felt they would enjoy greater stability."
Perhaps surprisingly, Dr. Curry described the following anecdote as reflecting Grahams emotional stability: "At one point father was asked if he could return the next day to the Evaluators Office to complete some questionnaires and father said he had made other plans for that day. Father said he `needed some free time to unwind and release some of his stress from the current custody issue and so joining his friends for the Super Bowl game was important. He also said, `this is very important too; perhaps I should think about it before I decline. Fathers need was appropriate and fitting under the circumstances and it appears father was able to identify and express that need in a healthy manner. Father was told another appointment could be made to accommodate both schedules. Some people spend years in therapy attempting to get to the point where they can identify what they need, and then express those needs appropriately. Father appears to be emotionally healthy in being able to identify and appropriately express what he needs. Father said since working for his current employer he has learned to be part of a `team and that has been a valuable learning experience for him."
The next category in the report, entitled "General Allegations," contains a somewhat rambling narrative summation of some of the many accusations that Englehart and Graham have exchanged in the course of this litigation. It begins with the fact that Englehart reported that Graham "scared her," and that he had "talked about the Scott and Lacy Peterson case and she felt he was threatening to hurt her and the baby she was carrying at the time (Allison). However, she apparently married father after these statements were made." Allegations of drug and alcohol abuse, the incident in which Englehart took Allison to Ohio, Grahams allegedly long working hours, and various other accusations of bad parenting skills are described, but no conclusions are drawn concerning them.
The report briefly describes interviews that Dr. Curry had with Engleharts half-brother, indicating that Graham spent less time with Allison than Graham reported; with Engleharts therapist, indicating that he had diagnosed her with an "Adjustment Disorder 309.28" and "felt it would be in Allisons best interest to move to Ohio with mother;" with Grahams mother, who reported a "wonderful relationship" between Graham and Allison, that Graham displayed no problems with drugs or alcohol, and that she "would be available to help [Graham] with Allison in any way he would need her;" and with a friend of Graham who reported that Graham "loves his daughter very much and . . . is a good father."
Dr. Curry then details her observations of Englehart, Graham and Allison. She observed that Allison seemed comfortable with either parent leaving the room at the first session and offered three possible explanations: that the nesting arrangement had provided her with a feeling of stability, that the parents were cordial in interacting with each other, or that "she had had a strong bond with both parents rather than one primary caretaker." Dr. Curry offered various explanations for Allisons "distress" exhibited in later sessions. She theorized that "Allison may have felt the exchange was no longer temporary but a more lasting feeling of being away from one parent for extended stays and she has begun to experience anxiety from being separated from that parent." Noting that Allison seemed more distressed when Englehart was not present, Dr. Curry concluded that this "might explain, if fathers observations are correct and mother is, consciously or unconsciously, attempting to alienate Allison from father."
Finally, the report lists recommendations, including joint legal custody, "joint physical custody, if mother remains in California. [¶] Joint physical custody with father as primary caretaker if mother chooses to move to Ohio. If mother moves to Ohio without Allison, her visitation schedule proposal for father would be in place for Allison and mother. [¶] If mother chooses to remain in California, the current court rotating schedule of 2 days/3 days/2 days would continue so that Allison would benefit from having both these very good parents in her life." A detailed holiday schedule is recommended, as are courses in parenting, and alcohol and substance abuse for the parents. The report recommends that Hannah be moved to California "because Hannah has only recently started a new school . . . , and because Hannah has more coping skills than her younger sister Allison, the transition for Hannah and her mother would be much easier and less of a sacrifice than what mother is asking of her youngest daughter Allison. . . . [¶] If mother decides to move to Ohio without Allison, then mother is making that choice of her own volition. Hopefully, mother, will place Allison first and choose what is in her daughters best interest which is to have both her parents in her life . . . ."
At trial, Englehart introduced the testimony of a psychologist, Dr. Gary Balestin and a licensed clinical social worker, Rhonda Barovsky, to dispute the validity of Dr. Currys evaluation. Dr. Balestin testified that Dr. Curry had used an "obsolete" version of the "Millon Clinical Multiaxial Inventory" and had inappropriately used the "Alcohol Use Inventory" test, because it was designed for use on patients in alcohol treatment programs. He also stated that Dr. Curry had failed to comply with professional standards by using outdated and inappropriate tests and that she had "failed to include three of the five most commonly administered tests for adults involved in custody evaluations." He concluded that Graham and Englehart "each received inadequate and unprofessional evaluations of their personality from Dr. Curry." He observed that Dr. Curry is not licensed as a psychologist and that the use of the outdated test "as the primary instrument upon which her diagnostic opinions are based challenges the integrity of her conclusions and produces an unstable foundation for her clinical judgment and custody recommendations."
Barovsky focused on compliance with California Rules of Court, rule 5.220, which sets standards for court-ordered child custody evaluations. The rule requires evaluators to describe the "[p]rocedures used and the time required to gather and assess information," and to "[s]ummarize the data-gathering procedures, information sources and time spent . . . ." (Rule 5.220(e)(1)(A) & (e)(3)(A).) Barovsky states, "There is no evidence in Dr. Currys report that she summarized these procedures. The readers do not know where the sessions were held, (office or home visit), we do not know how many sessions were held, and we do not know who was present at each session. Therefore, we cannot understand how the data was gathered and the effect the data had on the evaluation recommendations. [¶] Dr. Curry does not list her appointments; she merely states that she completed the evaluation `over a three-week period of time consisting of twenty-eight hours . . . This one sentence is inadequate as it does not allow the court . . . to assess and compare the number of hours spent with each client, with the child, observing each parent with the child and with the collateral contacts."
All further rule references are to the California Rules of Court.
Section 3111, subdivision (a) provides that "[i]n any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child." Evaluations must be conducted "in accordance with the standards adopted by the Judicial Council . . . ."
Those standards are provided in rule 5.220, which in subdivision (e) lists the following requirements:
"All evaluations must include:
"(1) A written explanation of the process that clearly describes the: [¶] (A) Purpose of the evaluation; [¶] (B) Procedures used and the time required to gather and assess information and, if psychological tests will be used, the role of the results in confirming or questioning other information or previous conclusions; [¶] (C) Scope and distribution of the evaluation report; [¶] (D) Limitations on the confidentiality of the process; and [¶] (E) Cost and payment responsibility for the evaluation.
"(2) Data collection and analysis that are consistent with the requirements of Family Code section 3118; that allow the evaluator to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each childs developmental needs; the quality of attachment to each parent and that parents social environment; and reactions to the separation, divorce, or parental conflict. This process may include: [¶] (A) Reviewing pertinent documents related to custody, including local police records; [¶] (B) Observing parent-child interaction (unless contraindicated to protect the best interest of the child); [¶] (C) Interviewing parents conjointly, individually, or both conjointly and individually (unless contraindicated in cases involving domestic violence), to assess: [¶] (i) Capacity for setting age-appropriate limits and for understanding and responding to the childs needs; [¶] (ii) History of involvement in caring for the child; [¶] (iii) Methods for working toward resolution of the child custody conflict; [¶] (iv) History of child abuse, domestic violence, substance abuse, and psychiatric illness; and [¶] (v) Psychological and social functioning; [¶] (D) Conducting age-appropriate interviews and observation with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child; [¶] (E) Collecting relevant corroborating information or documents as permitted by law; and [¶] (F) Consulting with other experts to develop information that is beyond the evaluators scope of practice or area of expertise.
"(3) A written or oral presentation of findings that is consistent with Family Code section 3111, Family Code section 3118, or Evidence Code section 730. In any presentation of findings, the evaluator must: [¶] (A) Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached; [¶] (B) Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews; [¶] (C) Only make a custody or visitation recommendation for a party who has been evaluated. This requirement does not preclude the evaluator from making an interim recommendation that is in the best interest of the child; and [¶] (D) Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interest of the child if making any recommendations to the court regarding a parenting plan."
Barovsky summarized her criticisms. "A child custody evaluation is a `snapshot of the family situation. A child custody evaluation should be thorough and the evaluator should take the time needed to address every issue. It does not appear that Dr. Curry conducted a thorough evaluation. She does not list her procedures. She did not discuss the parents history, the history of the relationship, or the history of their child-rearing practices. She provides no data that she conducted play therapy alone with the child, or that she conducted home visits. The data she provides about her parent/child observations is superficial and incomplete. She provides little data or analysis about critical issues such as domestic violence, substance abuse, or the sibling relationship. She does not conduct an analysis of the data following the guidelines set by [In re Marriage of] LaMusga [(2004) 32 Cal.4th 1072], even though a request has been made to move the child from California to Ohio. The evaluation section draws no connections between the data presented and the recommendations made so the reader has no understanding of why she makes the recommendations she does based on the data she collected."
In her objections to the trial courts tentative decision, Englehart relied on these critiques. "Dr. Curry is/was not a competent, qualified professional in this case. Uncontroverted evidence at trial shows that Dr. Curry administered outdated and obsolete psychological testing on the parties, breaching ethics rules and professional standards of the American Psychological Association (`APA). The uncontroverted evidence, including Dr. Currys own testimony, shows that she has never been a licensed clinical psychologist in California or elsewhere, that [the] bulk of her annual income is derived from her work as a real estate broker, and that she performed only one custody evaluation in 2005 (the one in this matter). Dr. Curry never interviewed [Graham] individually apart from the child during the course of the evaluation. Dr. Curry herself testified at trial that she did not know what sort of visitation schedule was reasonable or appropriate for a two-year-old child. Dr. Curry also committed further ethical violations and breaches of professional standards by copying and disseminating the parties psychological testing materials, raw data, and other confidential materials to counsel in open court without obtaining releases from the parties or a court order. Dr. Curry also employed inappropriate testing to assess alcohol and substance abuse by either party, and wholly failed to investigate or consider all relevant factors bearing on the childs best interest."
After trial, Barovsky submitted a second declaration in which she points out that Dr. Curry did not investigate the allegations that Graham was suicidal. She also observed that the custody plan proposed by Dr. Curry "appears to be geared toward forcing the mother to remain in California rather than analyzing the data and formulating a custody plan that would be in the childs best interests given mothers move." She also criticized Dr. Curry for failing to "treat each parent equally" because she interviewed Graham alone but only interviewed Englehart with Allison present. "Interviewing mother with the child present forced mother to take care of the child during the session and was most likely distracting for mother, not allowing her to have the intellectual freedom needed to present her issues and concerns to Curry. Interviewing mother with the child present did not protect the child from hearing mothers concerns unless mother censored herself. If mother censored herself to protect the child from being harmed by listening to negative concerns about father then mother would be unable to completely discuss all of her thoughts, feelings and issues with Curry."
Englehart argues that the trial court merely "rubber stamped" Dr. Currys report, and that this was an abuse of discretion. She also argues that there was no rational basis for the trial court to allow her visitation only 8 percent of the time because, when asked about that recommendation at trial, Dr. Curry stated she was "not sure what is reasonable for a two-year-old. And my primary purpose and priority was the child. I think she needs both her parents in her life as much as she can have them in her life."
Curiously, Englehart does not argue that Dr. Currys report was inadmissible, but merely that it was entitled to no weight. By reference to sections of the Family Code, Rule 5.220 contains detailed qualifications for child custody evaluators, including continuing education. (Rule 5.220(g).) Since Dr. Curry is not a licensed psychologist and performed few custody evaluations, it is not at all clear that she meets these qualifications. Moreover, section 3111, subdivision (c) provides that a court appointed child custody evaluators report "may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report." No such stipulation appears in the record. The copy of the report contained in the appendix is not marked as an exhibit, so it is unlikely that the report was received into evidence. Section 3111, subdivision (a) does provide that "[t]he report may be considered by the court" and makes no reference to admissibility. A respected practice guide states, "The report may be `considered by the court. But it is admissible evidence only on stipulation of `all interested parties (in which event it is `competent evidence on all matters contained therein)." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2006) ¶ 7:255.) We have some question as to how a court can properly "consider" evidence that is inadmissible. Nonetheless, Englehart has not raised these issues and we express no opinion as to their proper resolution.
Englehart relies on In re Anthony C. (2006) 138 Cal.App.4th 1493 to support her contention that the judgment is invalid because the court improperly relied on Dr. Currys report. In that case, the court considered the continued commitment of a juvenile offender past his 21st birthday. To support such a commitment, the trial court was required to find beyond a reasonable doubt that there was reason " `to believe that discharge of the person would be physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality. " (Id. at p. 1503.) The expert opined that the juvenile had a mental disorder, but "did not testify to the extent or degree of Anthonys disorder, nor did he testify that it was incurable, or that Anthonys disorder was a repetitive compulsive disorder." (Id. at p. 1506.) The court held that the doctors opinion that the juvenile posed "some risk" did not support the necessary finding that he had "serious difficulty" controlling his behavior. (Id. at p. 1507.) The court further found that "there was no testimony Anthonys mental abnormality caused him serious difficulty controlling his sexually deviant behavior." (Ibid.) The court concluded that "the evidence at trial fails to support [the required] finding in the absence of a good measure of speculation and conjecture." (Id. at pp. 1508-1509.)
In arguing that the trial court erred by considering Dr. Currys report, amici rely on In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar), in which the court held that the trial court erred by denying a continuance so that the husband could provide rebuttal testimony to the conclusions of the court appointed evaluator, Dr. Adam. "Dr. Stahl would testify Dr. Adam did not consider all relevant information and did not comply with California Rules of Court, rules 5.220 and 5.225. According to Timothys counsel, Dr. Stahl would tell the court `there are items and circumstances missing from that report that are essential for the court to be able to . . . make its decision. . . . Had the trial court granted a brief continuance to permit Dr. Stahl to testify, the outcome might have been different." (Id. at p. 1131.) Amici Dr. Philip Stahl, Judith Wallerstein and D. Kelly Weisberg filed a brief in this case in which they "urge the court herein to extend the decision in Seagondollar and require judges to disregard and give no weight to child custody evaluations that do not meet the requirements of Rule 5.220 or meet the generally accepted procedures in the field of custody evaluations that have been professionally established."
Dr. Stahl appears as amicus curiae in this case.
In support of this argument, amici have requested judicial notice of (1) The American Psychological Associations Guidelines for Child Custody Evaluators in Divorce Proceedings, (2) The Association of Family Conciliation Courts Model Standards of Practice for Child Custody Evaluation and Model Standards of Practice for Child Custody Evaluation, and (3) The American Psychological Associations Ethical Principles of Psychologists and Code of Conduct. The request for judicial notice is granted.
Both Anthony C. and Seagondollar present issues not before us. The trial courts judgment must be affirmed if substantial evidence supports its conclusion as to the childs best interest and "if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) "Where a statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) Unlike the record in Anthony C., the record in this case contains substantial evidence in addition to Dr. Currys evaluation on which the trial court based its conclusion that with Englehart moving to Ohio, it was in Allisons best interests that she remain in California with Graham. At the time of trial the custody and dissolution litigation had been ongoing for approximately two years. The trial court had a lengthy record of conflicting applications, supporting documents and its own observations to guide its decision. The court more than once noted its reliance on other evidence and its awareness of the deficiencies in Dr. Currys report. During the course of Dr. Currys trial testimony, the court overruled an objection by Engleharts attorney with the observation, "I look forward to your closing argument raising this as an additional reason why you want me to question the credibility of the evaluation." In its tentative statement of decision, the court stated, "Despite legitimate professional concerns as to the procedure utilized by the court appointed child custody evaluator, Dr. Currys observations and recommendations were substantially supported by the courts own observations." (Italics added.)
Additionally, the direct testimony contained in the parties declarations support joint custody with Graham as the primary caretaker. In addition to his own declaration, Graham submitted declarations from one of Allisons teachers, Grahams mother, and the mother of one of Allisons friends all attesting to Grahams good parenting skills. Allisons teacher stated that while "Allison does not talk much about her mother, and hardly ever of Hannah," Graham "is an awesome dad" and that "Allison clearly loves her father. She is always happy to see him and gives him big hugs and kisses." Grahams mother stated that Graham "has such patience" with Allison, is "mindful of Allisons health," and that he "continues to remind and persuade Allison to call and talk to her mother." She "worried that Allisons time in Ohio may be disruptive to her, and fear that her half-sister, Hannah or her maternal grandmother are too rough," citing the fact that Allison began talking to her stuffed animals about "hitting people" the last time she returned from a visit to Ohio. The parent of Allisons friend stated that she has "witnessed not only Justins dedication, patience, and sincere love for his daughter, but also his growth as a father and his impressive efforts to continually improve as a father and establish a rich life for Allison, with a strong network of friends."
The record provided to this court is in the form of an appellants appendix. This appendix is not organized in chronological order and many documents appear multiple times. The four declarations discussed below appear to constitute the evidence submitted on Grahams behalf, although the copies in the appendix are not file stamped and other unrelated documents appear between them. (See appellants appendix at pp. 899-947.)
And unlike the situation in Seagondollar, Englehart was permitted to, and did, present rebuttal testimony to attack the validity of Dr. Currys report. But while the rebuttal testimony presented by Englehart attacked the validity of Dr. Currys procedures, neither expert opined that Dr. Currys conclusions were mistaken, nor did Englehart provide any other expert testimony to the effect that another arrangement would have better served Allisons interests. In Lester v. Lenanne (2000) 84 Cal.App.4th 536, 575, the father argued that a mediators custody recommendation, which had been adopted by the trial court, was " `biased, arbitrary, or both. " The appellate court rejected this argument for several reasons. "First, the fact that [the mediator] had seen the parties twice put her well ahead of [fathers] purported expert, . . . who had not seen them at all . . . ." (Id. at p. 576.) The court also upheld the trial courts ruling because "there was no evidence before the judge that [the mediators] recommendation was wrong. [Fathers experts] declaration, which was all that [father] proffered (aside from his own self-serving declarations), ruminated abstractly on the theoretical advantages of [`birdnesting] but made no reference to the facts of the case." (Ibid.) The same observations may be made here. Engleharts experts did not meet with the parties but merely read and critiqued the report produced by Dr. Curry. And Englehart did not produce an expert opinion that contradicted Dr. Currys conclusions.
"[W]here, as here, the appellants claim is that substantial evidence fails to support an order of the trial court, our task is to determine whether any substantial evidence exists in support of the order. Where there is conflicting evidence, the evidence that supports the order is accepted as true, and that evidence which is unfavorable is discarded. The trial courts determination of credibility is binding on this court. We may neither reweigh the evidence nor reevaluate the credibility of witnesses." (In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 1488, disapproved on other grounds by In re Marriage of Burgess, supra, 13 Cal.4th at p. 38, fn. 10.) In his tentative decision, the trial court stated that Dr. Currys recommendations were in line with his own observations. The custody order also reflected that "the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements." (In re Marriage of Burgess, supra, at pp. 32-33.) Although Dr. Currys report may have been entitled to little weight, the criticisms go only to the weight that should be given the report and not to the larger question of whether the trial courts decision was supported by substantial evidence. Since substantial evidence supports the trial courts custody order, the order must be affirmed.
Nonetheless, should a motion to modify the custody arrangement come before it, the trial court would be well advised to disregard Dr. Currys report and seek a current report prepared in accordance with the rules of court and prevailing professional standards.
B. Child support
"[T]he father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the childs circumstances." (§ 3900.) "[T]he court may order either or both parents to pay an amount necessary for the support of the child." (§ 4001.) Section 4057 provides that "(a) The amount of child support established by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct amount of child support to be ordered. [¶] (b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . ." Factors to be considered by the court in determining whether the presumption is rebutted include where "[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: [¶] (A) Cases in which the parents have different time-sharing arrangements for different children. [¶] (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. . . ." (§ 4057, subd. (b)(5).)
The judgment orders Englehart to pay Graham "child support in the sum of $610 per month, one-half on the 1st and one-half on the 15th day of each month. . . ." Englehart argues that the award is unjust and inappropriate given the substantial disparity in their incomes. Graham has a monthly income of $9,486 and the DissoMaster computations assume that Englehart earns $737 per month, all of which is imputed since she is currently attending school to obtain a nursing certificate. Yet, Englehart was ordered to pay Graham $610 monthly in child support. The basic guideline support generated by the computer program, reflecting the disparate incomes and the eight percent custody time awarded to Englehart, is a payment by Englehart to Graham of $32 per month, but to this amount the court added $578 per month, one-half of the monthly cost of child care. Englehart contends that the resulting total payment is unjust, inappropriate and beyond her means. More specifically, she argues that the trial court improperly ordered her to pay one-half of the daycare costs, failed to award her a hardship exemption to account for support of her other child, Hannah, and that it erroneously failed to give her a low income adjustment because she earns less than $1,000 a month.
There is apparent merit to these contentions. As to the first issue, Englehart asserts that the question of child care expenses was not included in the joint statement of contested issues that defined the issues for trial, to which Graham responds that Englehart stipulated to the addition of the child care costs. However, Graham directs us only to a passage in the reporters transcript where Engleharts counsel agreed that $ 1,156 was being paid each month for Allisons day care. There was no agreement that Englehart should bear half the burden of paying that amount. As to the hardship deduction, the courts calculations did not include a deduction for Engleharts cost of supporting Hannah, although such a deduction is authorized by sections 4059, subdivision (g) and 4071, subdivision (a)(2). These sections allow for a deduction in child support for "[t]he minimum basic living expenses of either parents natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent." And Englehart is correct that the courts calculations make no provision for a low-income adjustment, although section 4055, subdivision (b)(7) provides, "In all cases in which the net disposable income per month of the obligor is less than one thousand dollars ($1,000), there shall be a rebuttable presumption that the obligor is entitled to a low-income adjustment."
Graham argues that none of these issues can be considered on appeal because Englehart failed to raise any of them in the trial court. "For better or worse, California child support law now resembles determinate sentencing in the criminal law: The actual calculation required of the trial judge has been made so complicated (see generally, Fam. Code, § 4055) that, to conserve judicial resources, any errors must be brought to the trial courts attention at the trial level while the error can still be expeditiously corrected." (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144; see also In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1138.) However, in her objections to the proposed statement of decision, Englehart did object to the proposed revised child support order "on the ground that the amount of child support ordered exceeds respondents imputed income after taxes. The child support order is arbitrary, capricious, not supported by substantial evidence or law, and is designed to punish resp[o]ndent for returning to her family home in Ohio."
While Engleharts objection did not raise any of the specific issues she now asserts on appeal, it did alert the trial court to the need to evaluate the reasonableness of the amount of child support generated by the statutory formula incorporated in the DissoMaster formula and to determine whether the presumption of its correctness had been overcome. (§ 4057, subd. (b)). In City and County of San Francisco v. Miller (1996) 49 Cal.App.4th 866, the trial court applied the low income adjustment provided by section 4055, subdivision (a)(7) to reduce a child support award where the guideline support calculation left father with monthly income of only $14. The county appealed, arguing that the trial court did not have the discretion to lower the support payment from the guideline amount. The appellate court soundly rejected this argument, noting that "[a]lthough the amount of child support established by the formula under section 4055 is presumed to be the correct amount, that presumption is a `rebuttable presumption and may be rebutted by evidence showing that `[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case. " (Id. at p. 869.) The court further rejected the countys argument that "low income is not a `special circumstance, "observing that fathers "income was not only low, he had virtually nothing left after his wages were garnished and his rent was paid in which to meet his monthly expenses. Moreover, [father] maintains physical responsibility of the children for 20 percent of the time. Presumably he must attempt to feed them during this period. Given these circumstances, the court did not abuse its discretion by reducing [fathers] support obligation to zero and urging him to locate a roommate in order to reduce his monthly expenses." (Ibid.)
Although in the present case the trial court failed to adjust the formula child support amount to reflect the special circumstances of the parties, the reasoning of Miller is equally applicable. Although Englehart is living with her parents in Ohio, she must have some money with which to care for herself, her other daughter, and Allison when they are together. The courts support order leaves her with "virtually nothing," while there is no indication that Graham is unable to care for himself and Allison with his monthly income. Moreover, the court has an obligation "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." (§ 3020, subd. (b).) Engleharts continuing contact with Allison will entail long-distance travel at some expense, for which no funds will be available after paying Graham virtually all of her imputed, and perhaps nonexistent, income. Despite Engleharts objection, the record reflects no consideration of the plight created for Englehart by the adoption of the amount produced by the DissoMaster adjusted by adding one-half the child care costs to Engleharts monthly obligation. Certainly the court did not explain why it did not find "[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case." (§ 4057, subd. (b)(5).) In view of the extreme disparity in the income of the two parties and the resulting outcome depriving Englehart of virtually any expendable income, we conclude that the trial court abused its discretion in failing to consider these circumstances.
Although Englehart previously failed to raise the specific statutory adjustments she points to on appeal, since the matter must be remanded for further consideration under section 4057, the trial court will have the opportunity to consider these factors in determining a just support order.
At oral argument reference was made to the fact that the support order may have been modified after entry of the judgment that is now on appeal. We of course express no opinion as to the propriety or adequacy of any such modification that does not appear in the record before us.
DISPOSITION
The judgment is affirmed insofar as it determines the custody of Allison, and is reversed with respect to the determination of child support and the matter is remanded for further proceedings consistent with this opinion.
We concur:
Parrilli, Acting P. J.
Siggins, J.