Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RID216404 L. Jackson Lucky IV, Judge.
Sherry Lee Collins for Appellant.
Joel Nylander, in pro. per., for Respondent.
OPINION
MILLER J.
The family court modified the custody order for the two children, N.N. and Kayla, shared by Gwen Nylander (Mother) and Joel Nylander (Father). (Fam. Code, § 3087.) The pertinent modification to the custody order consisted of increasing Father’s physical custody time of N.N. to 50 percent. Mother contends that the family court erred when it modified the custody order because (1) the changed circumstances rule applies in the instant case; (2) Father did not prove changed circumstances; (3) Father did not prove that the modification was in N.N.’s best interests; and (4) the court improperly based its decision on N.N.’s academic performance. We affirm the judgment.
All further statutory references will be to the Family Code, unless indicated.
FACTUAL AND PROCEDURAL HISTORY
Kayla was born in October 1991, and is now an adult. N.N. was born in June 1999. Mother and Father divorced on April 17, 2007. A prior custody order in this matter was filed on August 1, 2008. The August 1, 2008, custody order provided that Mother would have primary physical custody of N.N., and Father would have secondary physical custody. Father had custody of N.N. on (1) weekends; (2) two and a half hours on Wednesday evenings; and (3) alternating Tuesdays or Thursdays. N.N. was in Mother’s physical custody at all times not reserved for Father.
Our summary of the custody schedule is based upon the language of the family court’s August 1, 2008, order. At oral argument in this court, Mother asserted, and Father conceded, that Father had custody on alternating weekends, rather than every other weekend. In other words, Mother asserted that the family court’s August 1, 2008, order incorrectly omitted the word “alternating” before the word “weekends.” Typically, when a party alleges that the clerk’s transcript contains an error, we look to the reporter’s transcript to resolve any inconsistency. (In re Karla C. (2010) 186 Cal.App.4th 1236, 180, fn. 9.) In this case, we do not have the reporter’s transcript from the August 1, 2008, hearing to assist us in resolving the alleged error. Additionally, Mother has not provided this court with a settled statement, or a motion to correct the clerk’s transcript. (Cal. Rules of Court, rules 8.155(c), 8.346; see also People v. Mitchell (1964) 61 Cal.2d 353, 371 [discussing the process of fixing clerical errors in the record].) Without a reporter’s transcript, settled statement, or motion to correct the record, we cannot verify that the order in the clerk’s transcript improperly omitted the word “alternating.” Accordingly, we rely on the language in the family court’s order. (See Cross v. Tustin (1950) 96 Cal.App.2d 207, 207 [An appellate court has no power to substitute its conclusion for that of the trial court as to what occurred before that court.])
On July 6, 2009, Father petitioned the family court for an order to show cause why the foregoing custody order should not be modified. Father sought modifications to the provisions related to custody, support, and the family residence. In regard to custody, Father petitioned for 50-50 physical custody of N.N. Father contended that the August 2008, custody order was made when he was living in an apartment with strained finances. Father asserted that he now lived in a four-bedroom house, where N.N. and Kayla had their own rooms. Father alleged that N.N.’s academic performance had suffered since Mother’s and Father’s divorce. N.N.’s report cards reflected that N.N.’s grades declined during third grade, but were improving in fourth grade. Father contended that he would be able to work with N.N. on N.N.’s schoolwork more often if he were to have 50-50 physical custody. Father also contended that N.N. was “at a point developmentally, in his life where he needs more fatherly input than he is currently able to get with the current arrangements.” Further, Father alleged that N.N. had two younger siblings that resided with Father, and N.N.’s self esteem improved when he played the “‘big brother’” role.
Father’s petition requested that the family court modify the order filed on July 14, 2008. We have reviewed the record, including the chronological index included in the clerk’s transcript, and cannot find a July 14, 2008, order. Given the description of the “July 14, 2008, ” order included in Father’s petition, in particular the described custody schedule, we infer that Father was requesting that the family court modify the order filed on August 1, 2008.
In a responsive declaration to Father’s petition for an order to show cause, Mother declared her opposition to the requested custody modification. Mother declared that the August 2008, order should not be modified because (1) N.N. was allergic to cats, and Father had a cat in his house; (2) Father had an unprotected above-ground swimming pool; (3) Father did not ensure that N.N.’s hair and nails were cut; and (4) N.N. played videogames at Father’s house because Father was preoccupied with the two younger siblings. In regard to N.N.’s school work, Mother conceded that N.N.’s academic performance had suffered as a result of the divorce; however, she alleged that N.N.’s performance was improving as he adjusted to the new living arrangements.
On September 11, 2009, the family court held a hearing on Father’s petition for an order to show cause. At the beginning of the hearing, the family court gave its tentative ruling. The family court said, “I do think that the change in grades that I’m seeing is enough of a change in circumstances to merit a change in custody and visitation, or I shouldn’t say custody, but to at least revisit visitation. I think that dad’s made his threshold showing.” The family court went on to state that it was inclined to grant Father’s request for 50-50 physical custody because (1) Mother and Father live in close proximity to one another; and (2) N.N. liked the current arrangements, but it did not appear that the modification would be adverse to him. The family court then held an evidentiary hearing on Father’s petition for an order to show cause.
The family court mediator testified that her recommendation was for the court to deny Father’s petition. The mediator’s recommendation was based on her interview with N.N. N.N. told the mediator that he liked staying with Mother and Father and enjoyed the August 1, 2008, custody arrangement. The mediator did not believe that the 50-50 custody arrangement was a good idea because it involved N.N. alternating weeks at Mother’s and Father’s houses. The mediator testified that teachers complained about alternating week custody schedules because such a schedule did not work well for most children, unless the parents communicated very well and had similar rules for their children. In this case, the mediator testified that Mother and Father were “not talking too well” to one another, and therefore she felt it would be better to not modify the custody order. The mediator recommended ordering Mother and Father to attend a coparenting class to improve their communication skills.
After the mediator’s testimony, the family court concluded that N.N. was a bright child “with the potential to excel academically”; however, N.N. was not working up to his potential. The family court found “a pattern from the evidence... that [N.N.]’s homework does not get done as well at his mother’s house as it does at his father’s house.” The family court suggested a number of possible explanations for the lack of homework that was completed at Mother’s house, such as (1) Mother was preoccupied with work, and therefore unable to monitor N.N.’s homework; and (2) “[N.N.]’s better at snowing his mother into thinking that his homework is done.”
After counsels’ arguments, the family court explained its reasons for ordering 50-50 physical custody. The court stated, “[T]o me, it’s just unacceptable that a child who is capable of doing the work is not doing the work on such a consistent basis. And based on the evidence that I have, it seems that when he’s inconsistent in turning in his homework it tends to be with mom more than it tends to be with dad.” The court continued, “I do think that [N.N.] deserves a chance to see whether he thinks it’s in his best interest or not to have dad guide him more with his homework, and get it done on a more consistent basis.”
DISCUSSION
A. APPLICABLE LEGAL STANDARD
Mother contends that the changed circumstances rule is applicable in the instant case. We disagree.
Mother’s contention concerning the appropriate legal standard to apply in ruling on Father’s petition raises a question of law which we review de novo. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378 (Enrique M.).)
In regard to modifying custody orders, statutory law provides, “An order for joint custody may be modified... upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification... of the order.” (§ 3087.) Although the statutory scheme only requires courts to ascertain the best interests of the child when modifying a permanent custody order, our Supreme Court has articulated a variation on the best interest standard. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) “Under the so-called changed circumstance rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification.” (Ibid.) The changed circumstances rule was designed by our Supreme Court to “preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.” (Ibid.)
A distinction has been drawn in appellate opinions between a modification of custody (e.g., changing sole custody to joint custody), and a modification of the physical custody time allocated to each parent (e.g., a parent that previously had weekend custody is now ordered to have custody every other week). (See Enrique M., supra, 21 Cal.App.4th at pp. 1379-1380 [discussing the distinction].) The changed circumstances rule is applicable only when the requested modification constitutes a change of custody, but not when the modification involves a change in the allocation of custodial time. (Ibid.) In other words, when the modification only affects a change in the allocation of custodial time, then the family court decides the matter solely based upon the best interests of the child-excluding the changed circumstances analysis. (Ibid.; see also In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1515-1516.)
In order to determine whether the changed circumstances rule applies, we must examine whether Father’s petition sought to modify the order for custody, or whether it sought to modify the amount of time N.N. spent with each parent. (See Enrique M., supra, 121 Cal.App.4th at p. 1382 [examining the order and modification].) The August 1, 2008, custody order awarded “primary physical custody” of the children to Mother, and “secondary physical custody” of the children to Father. Father’s custodial time took place on (1) every weekend; (2) two and a half hours on Wednesday evenings; and (3) an alternating Tuesday, Thursday, or other day of the week. We note that the “the term ‘primary physical custody’ has no legal meaning.” (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759 [Fourth Dist., Div. Two].) However, the use of the term “custody” in reference to both Mother and Father, rather than “visitation, ” persuades us that the August 1, 2008, order was for joint custody. We are further persuaded by the frequent custodial time awarded to Father. Consequently, we conclude that the August 1, 2008, order provided for Mother and Father to share joint physical custody of the children.
Father’s petition sought a 50-50 timeshare arrangement. Specifically, Father requested “a 50/50 timeshare” with alternating weeks. We interpret Father’s request as a petition to modify the amount of time that N.N. spent with Father and Mother. Accordingly, we conclude that the changed circumstances rule is not applicable to the instant case, because the modification at issue only affects the timeshare arrangements, it does not change the custody arrangement from sole custody with visitation to joint custody.
We are mindful that in In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 137 (Whealon), the court came to a contrary conclusion when considering somewhat similar facts. In Whealon, the custody order awarded the mother “primary physical custody” of the child “‘subject to [the father’s] right to reasonable visitation.’” (Ibid.) The father was permitted to have physical custody of the child every Wednesday night (overnight) and alternate weekends. The appellate court characterized the foregoing arrangement as the mother having “substantive physical custody” and the father having “liberal visitation rights.” In other words, the appellate court did not find a joint custody arrangement. (Ibid.)
We distinguish the instant case from Whealon because Father had custody of N.N. every weekend, rather than alternating weekends. The frequent change, in with whom the children in the instant case would stay, i.e., every weekend and Wednesdays, demonstrates a joint custody arrangement rather than a “sole custody” with Mother and “visitation” with Father. Also, the August 1, 2008, order referred to Father having “custody” not “visitation.”
Mother contends that N.N. spent “the vast majority of time” with Mother under the August 1, 2008, custody order, and therefore “it would strain credulity to characterize” the 50-50 timeshare modification as a “mere alteration of the parenting schedule.” In other words, Mother contends that the August 1, 2008, custody order did not provide for joint custody. Mother concedes that the August 1, 2008, custody order does not use the terms “sole custody” or “joint custody, ” rather, it uses the terms “primary custody” and “secondary custody.”
Mother’s argument relies on a variety of cases, such as Whealon, for the proposition that the August 1, 2008, order awarded Mother sole custody and awarded Father visitation. The cases cited by Mother involve fathers that primarily had custody of their children on alternate weekends and one weekday. (Whealon, supra, 53 Cal.App.4th at p. 137; In re Marriage of Selzer (1994) 29 Cal.App.4th 637, 639, disapproved on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25, 38, fn. 10; In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 705, disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.)
We do not find the cases cited by Mother to be persuasive, for the same reasons that we do not find Whealon to be persuasive. Father had custody of N.N. every weekend, Wednesday evenings, and alternate Tuesdays or Thursdays. The foregoing custody schedule allotted Father more time with N.N. than the fathers in the cases cited by Mother. Accordingly, we find the instant case distinguishable from the cases relied upon by Mother.
B. ABUSE OF DISCRETION
Mother contends that Father did not present sufficient evidence to prove a significant change in circumstances or to prove that the requested modification would be in N.N.’s best interests. We disagree.
“‘The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.’ [Citation.] Under this test, we must uphold the [family] court ‘ruling if it is correct on any basis, regardless of whether such basis was actually invoked.’ [Citation.]” (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255; see also In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 760.)
As discussed ante, the changed circumstances rule is not applicable to the instant case. Accordingly, we focus our analysis on the issue of whether the family court abused its discretion when it found that 50-50 physical custody would be in N.N.’s best interest. Father attached a declaration to his petition for an order to show cause. In the declaration, Father wrote that he helped N.N. with his homework on Wednesday evenings, but if he had more time with N.N., then he could help him more often. Father further declared that N.N. had two younger siblings at Father’s house, and N.N.’s self-esteem improved when he played the “‘big brother’” role. Additionally, Father declared that N.N. was “at a point developmentally[] in his life where he needs more fatherly input than he is currently able to get with the current arrangements.” Father declared that the August 1, 2008, custody arrangements were not ideal because Mother made it difficult to talk on the telephone with N.N.; therefore, Father resorted to calling N.N. on a mobile phone or at daycare.
Based upon Father’s declaration it appears that the 50-50 timeshare arrangement would be in N.N.’s best interests because (1) being at Father’s house improves N.N.’s self esteem; (2) as N.N. grows older he is helped by Father having a greater presence in his life; (3) Father helps N.N. with his schoolwork; and (4) the arrangement still allows N.N. to spend significant time with Mother. In sum, our review of the record reveals that the family court did not abuse its discretion.
Mother contends that the family court erred because (1) the mediator recommended that the August 2008, custody arrangements not be modified; (2) N.N.’s best interests would be served by the stability of maintaining the August 2008, custody arrangements; (3) N.N.’s grades improved in fourth grade; (4) Father was distracted by his two younger children; and (5) Mother took N.N. to his medical appointments and worked with N.N.’s school administrators. Mother’s argument is essentially asking this court to reweigh the evidence and substitute our discretion for that of the family court’s discretion, which we cannot do. (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 897.) Accordingly, we find Mother’s argument unpersuasive.
C. SCHOLASTIC PERFORMANCE
Mother contends that the family court should not modify a custody order based solely upon a child’s academic performance, unless the child is experiencing serious problems in school. Mother does not cite any law to support her contention, in either her opening brief or her reply brief. Consequently, we cannot determine the legal basis for Mother’s argument, i.e., abuse of discretion, policy, etc.; therefore, we decline to address this contention. (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [citation to legal authority].)
DISPOSITION
The judgment is affirmed. The parties are to pay their own costs on appeal.
We concur: HOLLENHORST Acting P. J., KING J.