Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 02D005907, Jonathan H. Cannon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
DeeAnn R. Newman; John L. Dodd & Associates and John L. Dodd for Appellant.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller; Law Offices of Richard M. Shack and Richard M. Shack for Respondent.
OPINION
FYBEL, J.
Introduction
This appeal determines whether David Prichard, the son of Christina N. Prichard and John G. Prichard, will attend The Pegasus School, a private school in Huntington Beach, or John C. Fremont Elementary School (Fremont Elementary), David’s neighborhood public school in Long Beach.
Christina and John (we use first names for convenience) divorced in 2004. In the spring of 2006, they agreed to send David, born in October 2000, to kindergarten at Fremont Elementary. In August 2007, Christina filed an order to show cause (Christina’s OSC) requesting an order for David to attend first grade at New City School, a charter school in central Long Beach where she had become employed. Also in August 2007, John filed an order to show cause (John’s OSC) requesting an order for David to attend The Pegasus School. Neither John nor Christine asserted David should attend Fremont Elementary as an alternative. Following an evidentiary hearing, Judge Jonathan H. Cannon, serving as a judge pro tempore, granted John’s OSC and denied Christina’s OSC. No evidence was presented regarding Fremont Elementary.
Christina contends Judge Cannon erred by granting John’s OSC and by denying her motion for a new trial. She does not challenge the order denying her OSC, so the options for David’s schooling are The Pegasus School and Fremont Elementary.
We affirm Judge Cannon’s order granting John’s OSC. Contrary to Christina’s contentions, the best interest of the child rule, not the changed circumstance rule, applies and governed John’s OSC; substantial evidence supported Judge Cannon’s order; and Judge Cannon understood the scope of and properly exercised his discretion in granting John’s OSC.
There is, however, a practical issue we should acknowledge. On August 31, 2007, a panel of this court granted Christina’s petition for writ of supersedeas, with the result that David attended first grade at Fremont Elementary. He now is about to enter second grade at Fremont Elementary. The evidence presented to Judge Cannon is now a year old. A year in a child’s life is a very long time. We do not know whether David, having completed first grade at Fremont Elementary, would be better off staying there for second grade or transferring to The Pegasus School. We know nothing of David’s desires or of friendships and bonds he has made at Fremont Elementary.
Nevertheless, the issue before us is whether Judge Cannon erred in his order granting John’s OSC and denying Christina’s motion for a new trial. We find no error and therefore affirm.
Facts and Procedural History
A judgment dissolving the marriage of Christina and John was entered on July 19, 2004. Their son, David, was born in October 2000. In the spring of 2006, Christina and John agreed to enroll David in kindergarten at Fremont Elementary, the neighborhood public school in Long Beach, where Christina lives. John lives in Corona del Mar.
In May 2007, when David was in kindergarten, Christina and John stipulated to joint legal custody of David and a joint residential schedule. This schedule provided for David to reside primarily with Christina during the school year. David would reside with John on alternate weekends, every Tuesday, an additional weekend in months with five weekends, and four mutually agreed-upon, additional weekends each year. The stipulation provided that “all major decisions pertaining to health, education and day care shall be jointly made by [Christina] and [John].”
Christina became employed as the director of kindergarten through eighth grade programs at New City School, a charter school located in central Long Beach, about 3.4 miles from Christina’s home. In late May 2007, she suggested to John that David enroll in first grade at New City School. John suggested instead that David enroll at The Pegasus School, a private school in Huntington Beach.
On August 9, 2007, Christina filed her OSC requesting an order to enroll David in the first grade at New City School. Christina’s OSC alternatively requested “a three-week summer period be designated as time with me, in addition to our established vacation schedule.”
On August 14, 2007, John filed his OSC requesting an order to enroll David at The Pegasus School. Christina and John each filed a responsive declaration to the other’s OSC.
On August 15, 2007, Christina and John stipulated to the appointment of Jonathan H. Cannon, judge retired, as a temporary judge for all purposes.
An evidentiary hearing on Christina’s OSC and John’s OSC was conducted on August 22, 2007. Both Christina and John testified. Robert Dienstag, Ph.D., an educational psychologist, testified on John’s behalf, and Ted Hamory, the executive director of New City School, testified on Christina’s behalf.
Judge Cannon issued an order on August 23, 2007, denying Christina’s OSC and granting John’s OSC. Judge Cannon found it would be in David’s best interest to be enrolled in The Pegasus School and ordered John to pay all costs associated with David attending it.
Judge Cannon explained the basis for his decision in a minute order. Judge Cannon began the statement of decision by stating, “[t]here is only one issue presented to the Judge Pro Tempore, to wit: is it in the child’s best interest to attend New City School in Long Beach or the Pegasus School in Huntington Beach.”
The statement of decision continued:
“Petitioner, mother, has primary physical custody. Respondent, father, has Joint Legal custody and approximately 35% to 40% actual physical custody.
“Mother lives in Long Beach and has recently been employed at the New City School in a teacher recruiting capacity. This is a Charter School that just recently expanded from one campus to two. It is about 3.9 miles from her home. The campus David would be attending was described by the head of the school, Ted Wyatt Hamory, as being located in an ‘urban area.’ Sixty percent of the students come from homes where Spanish is the primary language. The classes are taught in ‘clusters’ with students helping each other with their various assignments; the ultimate goal being that, through emersion, all students become fluent in both English and Spanish by 8th grade. Mr. Hamory has testified that he is unaware of any other school in the state that is similar in all respects to New City School and that only twenty other schools in the state attempt to follow the same ‘theory of teaching and learning’ that is being employed by New City School.
“Robert Dienstag, Ph.D. was sworn as an expert witness. He testified that the child of this marriage, David Prichard, soon to be 7 years old, was tested by him and determined to have an I.Q. of 130 – i.e. very bright / quick to learn. He scored in the 98th percentile for his age.
“Dr. Dienstag testified that he had reviewed both New City School and Pegasus, compared their programs and their standings as schools, and that it was his unequivocal opinion that New City School would not be good for David and that Pegasus was far and away the better choice. David would most likely spend most of his time helping other students at New City School and receiving very little benefit from them.
“Pegasus is located about equal distance between father’s home and mother’s home, 20 minutes from father and 23 minutes from mother. It is very highly regarded. It is located on 14 acres in a ‘somewhat rural area.’ It is a private school. It was agreed by the parties that the Judge Pro Tempore could not order mother to share any of the costs associated with Pegasus. . . . Father agreed that he would be willing to pay all costs associated with Pegasus if the Judge Pro Tempore selected that school. It was further agreed that the only issue was which school was in David’s best interests to attend.
“Mother testified that it would be far more convenient and better for David if he were allowed to attend New City School regardless of its location. Dr. Dienstag testified that he was very concerned for his own safety when he visited the New City School site.
“Based upon a review of all the Declarations, Exhibits, the testimony of Dr. Dienstag, Mr. Hamory, and the Parties, the Judge Pro Tempore finds that it is in David’s best interest to be enrolled and to attend school at Pegasus in Huntington Beach.”
On August 28, 2007, Christina filed a notice of appeal and moved ex parte for a stay of the order in the trial court. In a declaration in support of the ex parte request, Christina stated, “David will be emotionally, negatively impacted if he has to go to Pegasus.” Judge Cannon denied the request for a stay on August 29.
On August 30, 2007, Christina petitioned this court for a writ of supersedeas staying the trial court’s order and maintaining the status quo until resolution of Christina’s appeal. On August 31, a panel of this court granted the petition and issued a writ staying enforcement of the challenged order. The writ states, “[t]he effect of this supersedeas is to return the matter to the status quo; i.e., the minor child shall remain enrolled in the John C. Fremont Elementary School in Long Beach for the first grade.”
Also on August 30, 2007, Christina moved for a new trial. The motion for a new trial asserted, among other things, “[t]he trial court abused its discretion in that it was unaware of the scope of its discretion to deny both OSCs, rather than choosing between which OSC to grant,” and “Dr. Dienstag’s opinion did not constitute substantial evidence to support the trial court’s ruling.” In support of the new trial motion, Christina submitted a declaration stating, “I believe it is in David’s best interest to attend school where he has always attended, Fremont Elementary School in his neighborhood of Long Beach where his residence is located, and where he attended kindergarten.”
In opposition to the motion, John argued: “[Christina] failed to specifically request the relief of the default Fremont option in her papers, failed to raise the issue at trial, and failed to request its inclusion in the Court’s Statement of Decision. There is no credible argument that the issue of the default Fremont option was a ‘principal controverted issue’ at trial; the issue was not raised by [Christina]’s counsel.” After a hearing, Judge Cannon denied the motion for a new trial in an order filed November 2, 2007. The order stated simply, “there is no basis for granting a new trial on the grounds asserted by [Christina] in her Motion, or otherwise.”
Christina timely appealed from the order denying her OSC and granting John’s OSC. The order is appealable as a postjudgment order affecting the dissolution judgment or relating to its enforcement, but involving issues other than those decided by the judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 497; see also Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 16:290, p. 16-86.3 (rev. #1, 2008).)
Discussion
I. The Best Interest of the Child Rule, Not the Changed Circumstance Rule, Applied to John’s OSC.
Christina argues the trial court erred by applying the best interest of the child rule rather than the changed circumstance rule in granting John’s OSC. She asserts In re Marriage of Lucio (2008) 161 Cal.App.4th 1068 (Lucio) is inapplicable because the order granting John’s OSC is a far greater adjustment than a change in visitation schedule and will disrupt established patterns of care.
“The changed circumstance rule applies to a modification request seeking a change in a final determination of custody. The changed circumstance rule does not apply to a modification request seeking a change in the parenting or visitation schedule.” (Lucio, supra, 161 Cal.App.4th at p. 1077, fn. omitted.) In Lucio, the dissolution judgment awarded the mother sole physical custody of the children and granted the father monitored visits on Sundays. (Id. at p. 1073.) The father requested a change in the parenting and visitation schedule to permit him unmonitored visits from Friday night to Sunday night on alternate weeks. (Id. at pp. 1073-1074, 1080.) A panel of this court concluded the best interest of the child test governed the father’s request because the requested changes to the parenting and visitation schedule would result in neither an actual nor a de facto change in the custody arrangement. (Id. at p. 1080.) The panel held: “[T]he changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard.” (Id. at p. 1072.)
Lucio applied the rule set out in In re Marriage of Brown & Yana (2006) 37 Cal.4th 947. In that case, the California Supreme Court explained: “Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘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’ that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citation.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest. [Citation.]” (In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956.) The best interest of the child test applies, however, whena modification request seeks a change in the parenting or visitation schedule, either in a joint custody or in a sole custody arrangement. (Lucio, supra, 161 Cal.App.4th at p. 1080 [sole custody]; Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1379-1380 [joint custody]; In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513 [joint custody].)
John’s OSC did not seek an actual or de facto change in the custody arrangement. Nor did John’s OSC seek a modification of the dissolution judgment or the stipulation regarding custody. John’s OSC would not result in a change in the parenting and visitation schedule.
Christina argues Lucio is inapplicable because enrolling David in The Pegasus School would disrupt established patterns of care by “remov[ing] David from his community, requir[ing] him to endure a lengthy commute and relegat[ing] him to day care for his afternoons.” While those are significant factors, and ones for the trial court to consider in determining David’s best interest, they are not “‘on a par with a request to change physical custody from sole to joint custody, or vice versa.’” (Lucio, supra, 161 Cal.App.4th at p. 1080.)
Such day care apparently would be The Pegasus School’s extended after-school enrichment program.
II. Substantial Evidence Supported the Order Granting John’s OSC.
Christina argues Dr. Dienstag’s opinion that David’s best interest would be served by attending The Pegasus School was not based on personal knowledge or evidence in the record. Therefore, Christina argues, substantial evidence did not support Judge Cannon’s order granting John’s OSC.
Dr. Dienstag never expressly testified it would be in David’s best interest to attend The Pegasus School; rather, he concluded New City School “would be a very poor fit for David’s educational progress.” He testified, “too much of the teacher time would be devoted to helping the slower functioning students and David would not get the best individualized attention that would be appropriate.” New City School’s purpose was to work with students from Spanish-speaking homes. New City School has no Gifted and Talented Education (GATE) program and “cluster[ed]” grade levels so, for example, kindergarten is combined with first grade. In contrast, Dr. Dienstag believed The Pegasus School had a “superior program.” Dr. Dienstag prepared a report of his findings and conclusions, which was received in evidence without objection as exhibit B.
Expert testimony may be based on material not admitted into evidence if it is material that experts reasonably rely on in forming their opinions. (Evid. Code, § 801, subd. (b).) “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Under Evidence Code section 803, “[t]he court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.”
Christina argues Dr. Dienstag’s opinion testimony was inadmissible because “Dienstag had never been to Pegasus school and had no first-hand knowledge of its programs,” but “based his opinion on a review of Pegasus’[s] website.” She forfeited that argument, however, by not raising those objections at trial. Christina did not object to Dr. Dienstag’s findings and conclusions on the ground they were not based on personal knowledge, reliable matter, or evidence in the record and did not object to the admission of Dr. Dienstag’s written report.
We conclude, in any case, Dr. Dienstag’s opinion was based on matter meeting the threshold requirement of reliability. Dr. Dienstag’s opinions were based on the following:
1. Dr. Dienstag had David perform the Wechsler IQ test, the Gates McGinity reading test, and the Woodcock-Johnson achievement test. David’s IQ score was 130, which was “[s]uperior” and would qualify David “for any GATE program in the state.” David scored in the 97th percentile on the Gates McGinity reading test, placing him “a little bit beyond the 3rd grade.” David scored in the 93d percentile on the mathematical calculations of the Woodcock-Johnson achievement test and in the 73d percentile of that test’s applied mathematics section.
2. Dr. Dienstag investigated New City School on the Internet, obtained information on it from a Web site called GradeSchools.Net, and visited the school. New City School had an Academic Performance Index score of 739 (scores in the 600’s are considered low). The California Department of Education rated New City School five on a scale of one to 10.
3. Dr. Dienstag obtained information about The Pegasus School by visiting its Web site (the California Department of Education does not maintain information on The Pegasus School).
4. According to its Web site, The Pegasus School was designed to work with very bright to gifted students, “130 IQ kind of students,” and its student scores on standardized tests range from a low of the 85th percentile to a high of the 99th percentile. The Pegasus School earned a blue ribbon award, “the highest educational award any school can obtain,” from the federal government.
5. On The Pegasus School’s entrance examination, David scored at the highest level on seven of the nine sections, and at the average level on the other two sections.
6. Dr. Dienstag had worked for 33 years in the Newport Beach-Costa Mesa area, knew of The Pegasus School by reputation, and knew parents who had sent their children to that school.
In addition to Dr. Dienstag’s testimony, John testified about the relative merits of both New City School and The Pegasus School. In John’s opinion, The Pegasus School would better fit David’s personal and academic needs. John had visited both schools, and believed The Pegasus School, on a 14-acre campus, had a better physical layout that made “substantial use of technology.” In contrast, John described New City School as a “very old building with some upgrades.” John had timed the drive from his home to both The Pegasus School and to New City School. He testified the drive from his home to The Pegasus School was about 20 minutes in length, while the drive from his home to New City School was over 52 minutes in length. John testified (without objection) that according to MapQuest, the drive from Christina’s home to The Pegasus School was 23 minutes in length. John had visited The Pegasus School’s Web site and had contact with parents of other students from the school. Thus, with or without Dr. Dienstag’s testimony, substantial evidence supported Judge Cannon’s order.
III. Judge Cannon Did Not Err in Denying Christina’s Motion for a New Trial.
Christina argues Judge Cannon erred in denying her motion for a new trial for two reasons. First, she contends Judge Cannon did not understand he could have denied both Christina’s OSC and John’s OSC and therefore misunderstood the scope of his discretion. Second, she contends Judge Cannon relied improperly on his recollection of matters outside the record in denying her motion.
We review an order granting or denying a motion for a new trial for abuse of discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) But we scrutinize any determination underlying the order under the standard appropriate to that determination. (Ibid.) In reviewing an order denying a motion for a new trial, we examine the entire record and make an independent assessment whether there were grounds for granting the motion. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.)
A. Judge Cannon Understood the Scope of and Properly Exercised His Discretion in Granting John’s OSC.
Christina argues Judge Cannon failed to exercise informed discretion in granting John’s OSC because he did not believe he could deny both OSC’s and send David to Fremont Elementary. At the beginning of the statement of decision, Judge Cannon stated: “There is only one issue presented to the Judge Pro Tempore, to wit: is it in the child’s best interest to attend New City School in Long Beach or the Pegasus School in Huntington Beach.” Based on that statement, Christina asserted, as a ground for a new trial, irregularity in the proceedings or abuse of discretion (Code Civ. Proc., § 657, subd. 1) and error in law (id., § 657, subd. 7) claiming “[t]he trial court abused its discretion in that it was unaware of the scope of its discretion to deny both OSCs, rather than choosing between which OSC to grant.”
“[W]here fundamental rights are affected by the exercise of discretion by the trial court, . . . such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action.” (In re Carmaleta B. (1978) 21 Cal.3d 482, 496.) “To exercise the power of judicial discretion, all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision. [Citation.] A court which is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. [Citation.]” (People v. Lara (2001) 86 Cal.App.4th 139, 165-166.)
Judge Cannon denied the motion for a new trial, stating, “there is no basis for granting a new trial on the grounds asserted by [Christina] in her Motion, or otherwise.” From denial of the new trial motion, we can infer either (1) Judge Cannon knew he had discretion to deny both OSC’s when he made his order granting John’s OSC, or (2) once informed by Christina’s new trial motion he had discretion to deny both OSC’s, Judge Cannon reaffirmed his decision to grant John’s OSC. In either case, there was no abuse of discretion.
However, Christina never argued Judge Cannon could or should deny both OSC’s, and never offered Fremont Elementary as a third choice. Christina’s counsel phrased the issue as a choice between New City School and The Pegasus School. Neither Christina nor John presented evidence of the merit of Fremont Elementary in relation to New City School or The Pegasus School. Only in support of her motion for a new trial did Christina present evidence of the nature and quality of Fremont Elementary.
Christina’s counsel argued in opening statement: “We’re [here] today, as the Court accurately noted, on one issue. The issue of where David . . . where he’s going to attend first grade. Mr. Prichard is proposing The Pegasus School and [Christina] is proposing The New City School. The differences between the two schools [are] one of economics in my opinion.” Counsel continued: “[T]he evidence, we think, today will show it’s in David’s best interest to attend The New City School which is 3.39 miles from his primary residence with his mother and 3.39 miles from the school that he attended last year for kindergarten. The evidence will also show that New City School offers a much more cultural environment than The Pegasus School and that it’s in David’s best interest to attend The New City School, not only for his educational purposes, but for environmental purposes as his mother works there as well.”
B. Judge Cannon’s Comments Regarding His Recollection Do Not Support Reversal.
Christina argues Judge Cannon abused his discretion in denying her motion for a new trial by relying on his recollection of deposition testimony or of an unrecorded discussion to the effect that David was unhappy at Fremont Elementary.
Christina’s argument is based on these comments made by Judge Cannon at the hearing on her motion for a new trial: “I did have an opportunity to review the declarations again of Christina Prichard and the moving papers. I think I m[ight] have mentioned it to counsel in passing, and so I want to put it on the record, because I don’t know if I mentioned it to [John’s counsel]. [¶] It may have been in a phone call or some pre-contact that we had concerning the case, but I recalled, in the deposition, that the current school – questioning the current school, and that the current school was not going to be an acceptable alternative because of David’s position that he had, apparently, relayed to Mrs. Prichard that if he couldn’t have his teacher that he had for kindergarten be his teacher for first grade, then he didn’t want to attend Fremont. He was disenchanted with Fremont. And there’s something to that effect in the declaration of Christina Prichard and in her moving papers. [¶] That’s what I had recalled, and I think I relayed something like that to you, and you indicated that you didn’t remember that being there. And I am certain that I probably misquoted it, but there was a quote something to that effect, that the current school that he was in was not going to be a viable alternative, but if The Court elected that, then we needed to revise the entire visitation schedule and give her an additional three weeks over and above what was already being provided for in the order which was in May or April of ’07, agreed to after a long hearing, I guess, or mediation. [¶] Anyway, I just wanted to clear that up on the record. That’s what I was referring to when I made that statement to you, and you, apparently, weren’t in the room or available at the time, because I don’t remember relating that to you as well.”
Christina argues the comments demonstrate Judge Cannon ruled she had waived or abandoned any request that David attend Fremont Elementary as an alternative to New City School or The Pegasus School. She argues substantial evidence did not support a finding of waiver or abandonment, and any ex parte communication with Judge Cannon would have been improper.
According to Christina, there was no testimony at the hearing or anything in her declaration to the effect David did not want to attend Fremont Elementary. That is not entirely true. When Judge Cannon made his comments, he undoubtedly was recalling paragraph 8 from Christina’s declaration submitted with her OSC. There, she stated: “David often asks me if we can go to The New City School, and when we are there he does not want to leave. On his own, David began to ask me if he could attend to [sic] The New City School. He even told his kindergarten teacher at Fremont that unless she could be his teacher for first grade, he wanted to go to The New City School.”
Paragraph 8 from Christina’s declaration does not go so far as to say David did not want to attend Fremont Elementary. But the declaration does not say David wanted to attend Fremont Elementary either, or would prefer Fremont Elementary to The Pegasus School. The passage from Christina’s declaration tends to support Judge Cannon’s recollection, and, in any case, Christina did not request David attend Fremont Elementary as an alternative.
We have said, “[b]ecause we review the correctness of the order, and not the court’s reasons, we will not consider the court’s oral comments or use them to undermine the order ultimately entered.” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451.) This case illustrates the wisdom of that practice. Here, we cannot tell from the record whether or to what extent Judge Cannon denied Christina’s motion for a new trial in reliance on a recollection or belief Fremont Elementary was not a “viable alternative.” Nor can we tell whether Judge Cannon’s decision would have been different if counsel had directed him to Christina’s declaration. What we can say is that having reviewed the entire record, we find no ground for a new trial.
Disposition
The order granting John’s OSC is affirmed. The writ of supersedeas is discharged. In the interest of justice, no party shall recover costs.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.