Opinion
B301700
03-02-2021
J.M., Plaintiff and Respondent, v. S.A., Defendant and Appellant.
Gary J. Cohen for Defendant and Appellant. Niddrie Addams Fuller Singh, Victoria E. Fuller, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BF055620 APPEAL from a judgment of the Superior Court of Los Angeles County, Christine W. Byrd, Judge. Affirmed. Gary J. Cohen for Defendant and Appellant. Niddrie Addams Fuller Singh, Victoria E. Fuller, for Plaintiff and Respondent.
INTRODUCTION
S.A. (mother) appeals from the judgment entered following a four-day bench trial on the request of J.M. (father) to modify their stipulated custody order concerning their six-year-old son, W. The stipulated custody order, filed in November 2016, provided for joint legal custody, with W. residing primarily with mother subject to visitation by father. The trial court's order and ensuing judgment granted father sole legal and physical custody with visitation by mother.
On appeal, mother contends the trial court abused its discretion by granting father sole legal and physical custody because: (1) father failed to demonstrate the requested change to the custodial arrangement was in W.'s best interest; (2) the trial court failed to consider W.'s need for continuity and stability; (3) the trial court's order unjustifiably separates W. from his older half-brother, M.; and (4) the trial court's order is based on improper assumptions and a desire to punish mother for her inappropriate communications with father. Mother also argues the trial court committed reversible error by denying her request for a statement of decision on 13 controverted issues. We affirm.
BACKGROUND
Mother and father met in New York in 2014, where father was living at the time. They found out mother was pregnant four to five months after they started dating. At that point, father left New York and moved into mother's residence in California. W. was born in September 2014.
Mother and father lived together for about a year and a half after W. was born. Father moved out of the home toward the end of 2015 and into his own apartment approximately two miles from mother's home. Father and mother continued to have an on-and-off relationship after they stopped living together.
In January 2016, mother filed an application for a domestic violence restraining order against father. The trial court issued a temporary restraining order and granted mother sole legal and physical custody of W. until the hearing on her request. The day before the hearing, father filed a petition to establish parental relationship and requested 50-50 joint legal and physical custody. The two matters were consolidated. The court reissued a temporary restraining order and granted father unsupervised visitation on alternate weekends. Before the hearing on issuance of the restraining order, the parties reached an informal agreement regarding custody. Consequently, neither party appeared at the hearing, and the temporary restraining order was dissolved.
In June 2016, father filed a request for an order granting joint legal and physical custody because mother was "threatening to take [W.] on a two month trip out of state . . . without [his] consent[.]" Following a court-ordered mediation, the parents reached an agreement regarding custody and visitation.
In November 2016, mother filed another request for a domestic violence restraining order. Thereafter, the parties attended Conciliation Court and stipulated to an order regarding custody. Pursuant to the order, the parents shared joint legal custody. As to physical custody, the order set forth a schedule providing W. would be with father on Wednesdays and Thursdays (7:00 a.m. on Wednesday to 5:00 p.m. on Thursday), the first and third weekends of each month (7:00 a.m. on Saturday to 5:00 p.m. on Sunday), and the second and fourth Mondays of each month (from 7:00 a.m. to 5:00. p.m.). Beginning June 1, 2017, father's custodial time on weekends was extended by one night (7:00 a.m. on Saturday to 9:00 a.m. on Monday instead of 5:00 p.m. on Sunday), and his time on alternate Mondays was shortened by two hours (9:00 a.m. to 5:00 p.m. instead of 7:00 a.m. to 5:00 p.m.). The order further included a schedule for holidays and vacations. When the parents enrolled W. in preschool, they agreed to eliminate father's visits on Mondays because W. was in school for most of the scheduled visitation time.
The stipulated custody order appears to be a form order used when child custody and visitation disputes are resolved in Conciliation Court. The parties did not check the box on the first page of the order to indicate they intended it to be the "final custody and visitation order to be incorporated into the judgment," which could only be modified "upon the written agreement of the parties submitted to the court, or if either party files a request for orders seeking modification and shows a significant change in circumstances." Consequently, although father sought to modify an existing custody order, the trial court correctly used the "best interest standard" applicable to initial custody determinations, rather than the more restrictive "changed circumstances rule," to evaluate his request. (See Montenegro v. Diaz (2001) 26 Cal.4th 249, 258-259 (Montenegro).)
In September 2018, the parties got into a dispute about W.'s birthday party. Father testified mother asked him to plan a party for W., but then forced him to cancel the party because she did not approve. She subsequently planned a different party for W., did not allow father to attend, and did not permit father to speak with W. on his birthday. Mother then barred father from seeing W. for "about a month," despite his attempts to see W. in accordance with the stipulated custody order and his requests for mother to comply with the order. Thereafter, father filed a request to modify the stipulated order, seeking sole legal and physical custody with visitation by mother.
The trial court bifurcated the issue of child custody and visitation and set the matter for trial. Following a four-day bench trial, the trial court issued a tentative statement of decision. After analyzing each of the factors required under Family Code section 3011, the court granted father sole legal and physical custody, subject to visitation by mother, finding the custodial arrangement was in W.'s best interest.
Before trial, the parties agreed to parentage, bifurcation of the issue of child custody and visitation, and reservation of jurisdiction over the issues of attorney's fees and child support.
All undesignated statutory references are to the Family Code.
Mother filed objections to the court's tentative statement of decision. She also filed a request for a statement of decision and findings on 13 additional issues. The trial court granted in part and denied in part mother's objections and modified several of its factual findings accordingly. The court denied mother's request for a statement of decision on the additional controverted issues, reasoning: "[T]he Court's [tentative] Statement of Decision was sufficient because it fairly discloses the Court's determination of the ultimate facts and the material issues." The trial court then issued its final statement of decision granting father sole legal and physical custody with visitation by mother. Mother timely appealed from the ensuing judgment.
DISCUSSION
I. The trial court did not abuse its discretion by granting sole legal and physical custody to father.
A. Governing Principles and Standard of Review
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child." (Montenegro, supra, 26 Cal.4th at p. 255.) "In an initial custody determination, the trial court 'has the widest discretion to choose a parenting plan that is in the best interest of the child.' [Citation.]" (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31 (Burgess).)
The court "must look to all the circumstances bearing on the best interest of the minor child. [Citation.]" (Burgess, supra, 13 Cal.4th at pp. 31-32). In so doing, the court must, "among any other facts it finds relevant," consider the factors set forth in section 3011: (1) the health, safety, and welfare of the child; (2) any history of abuse by one parent against the child or the other parent; (3) the nature and amount of the child's contact with both parents; and (4) the habitual or continual use and/or abuse of substances or alcohol by either parent. (§ 3011, subds. (a)-(d).) Per section 3040, subdivision (a)(1), courts are also "require[d] . . . to consider which parent is more likely to permit the child to have frequent and continuing contact with the noncustodial parent." (Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1032.)
While this appeal was pending, the Legislature amended section 3011 and redesignated the subdivisions corresponding to the four factors courts must consider when determining the custodial arrangement that will advance the child's best interest. (See § 3011, as amended by Stats. 2019, ch. 551, § 1.) Throughout this opinion, we cite to the version of section 3011 in effect at the time of the trial court's decision.
Where, as here, no final judicial determination of custody has been made, and "one custody arrangement has been in place for a significant period of time, the noncustodial parent has the 'burden of persuading the trial of fact that a change [in custody] is in the child's best interest.' [Citation.]" (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 999 (Ragghanti), citing Burchard v. Garay (1986) 42 Cal.3d 531, 536 (Burchard).)
"We review custody and visitation orders for an abuse of discretion, and apply the substantial evidence standard to the court's factual findings. [Citation.]" (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) Under the substantial evidence standard, "[w]e view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence. [Citation.]" (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780.)
When reviewing a custody and visitation order for abuse of discretion, "[t]he 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. [Citation.]" (Burgess, supra, 13 Cal.4th at p. 32.) "The test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but 'whether the trial court could reasonably have concluded the order in question advanced the "best interest" of the child.' [Citation.]" (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)
B. Whether Substantial Evidence Supports the Trial Court's Finding that Granting Father Sole Legal and Physical Custody is in W.'s Best Interest
Mother first contends there is insufficient evidence to support the trial court's finding that granting father sole legal and physical custody is in W.'s best interest. In response, father relies on Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155 (Hjelm) to contend we should "deem [m]other's challenges to the trial court's factual findings waived because she failed to present a fair description of the evidence." We do not agree with father's argument.
In Hjelm, the plaintiffs vacated the apartment they were leasing from the defendant after the apartment became infested with bedbugs and the defendant did not address the ongoing presence of raw sewage on apartment complex property. (Hjelm, supra, 3 Cal.App.5th at p. 1160.) The plaintiffs filed a complaint asserting numerous causes of action based on the defendant's failure to maintain the complex in a safe and habitable condition. (Ibid.) Following an eight-day trial, the jury rendered a verdict in the plaintiffs' favor on all their claims. (Id. at p. 1161.)
On appeal, the defendant argued the jury's verdict was unsupported by evidence. (Hjelm, supra, 3 Cal.App.5th at p. 1164.) The Hjelm court, however, declined to consider the argument on the merits, because the defendant's opening brief only "recite[d] the facts favorable to it" and completely ignored all of the evidence supporting the verdict. (Id. at pp. 1165-1166.) The court held that by failing to "'accurately and fairly state the critical facts (including the evidence), free of bias,'" the defendant's opening brief "'manifest[ed] a treatment of the record that disregard[ed] the most fundamental rules of appellate review. [Citation.] . . . .' [Citation.]" (Id. at p. 1166.) Therefore, the court "deem[ed] the argument waived. [Citations.]" (Ibid.)
Here, father aptly observes mother's recitation of the factual and procedural background contains numerous argumentative statements. Mother presents the facts in a manner favorable to her by highlighting the evidence and omissions supportive of the arguments raised later in her opening brief. Her brief, however, does not entirely omit the facts and evidence supporting the trial court's decision, as father contends. While mother tends to omit details that would, if included, arguably cast her in a negative light, she does discuss key events about which father presented evidence at trial, and which were included in the trial court's statement of decision. Mother also acknowledges the parties' documentary evidence largely consisted of e-mail and text message exchanges between them. The messages indicate mother "attempted to be controlling when it came to [W.]" and contained "derisive profanity" on mother's part.
Under these circumstances, we decline to find mother waived her challenge to the sufficiency of the evidence. We therefore address her argument on the merits.
As noted above, mother contends the trial court's order should be reversed because the record lacks "evidence that [W.'s] best interest would be served by the [requested] change" to his custodial arrangement. In support of this position, mother emphasizes "there is no proof that [W.] was aware of [or] adversely affected by" mother's use of "angry and foul language" in written messages to father. While that latter point may be true, we do not agree with mother's conclusion.
As an initial matter, we note that the evidence at trial was not limited to the e-mail and text message exchanges between the parents. In addition to three other witnesses, both parents also testified at length, providing context for the exchanges by clarifying the events in which they took place. Thus, while mother correctly observes the evidence does not show W. was aware of or directly affected by her written communications with father, the communications nevertheless shed light on mother's behavior throughout W.'s life. As discussed below, the trial court could appropriately find her actions not only affected W., but have also been harmful to his well-being in two key respects.
The other witnesses were mother's adult daughter from a prior relationship, one of mother's friends, W.'s therapist, and the police officer who responded to the scene when mother and father argued while on a trip to Lake Arrowhead with W. and M. in January 2018.
The trial court found "[m]other's testimony lacked credibility" given her "demeanor and . . . the numerous contradictions, conflicts, and wild assertions in her testimony." "As the trier of fact, the trial court is the sole judge of the credibility and weight of the evidence; we do not judge credibility on appeal. [Citation.] As the judge of credibility, the trial court may reject evidence, even uncontradicted evidence, as unworthy of credence. [Citation.]" (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 500.)
First, on the record in this case, the trial court could reasonably find "[m]other [has] act[ed] without consideration of the effect of her behavior on the child" to W.'s detriment on several occasions. Specifically, the evidence shows, among other things: (1) when mother was hospitalized for a medical procedure in May 2016, she required W., who was only one year and eight months old at the time, to spend the night in the facility with her and refused father's offer to care for W.; (2) in October 2016, mother forced father to wake W. shortly after he was put down for a nap and to drop him off to her at a time more convenient for her, rather than the originally agreed upon time, by threatening to obtain a restraining order and have father arrested if he did not do as she asked; (3) in December 2017, mother required father to take two-year-old W. on a 13-hour flight to accommodate her vacation plans, because they conflicted with father's plans for W. to spend Christmas with him as permitted under the stipulated custody agreement; and (4) mother refused to attend W.'s preschool graduation in 2018 after becoming upset with father, because she was dissatisfied with the clothing he had picked out for W., and she shouted, cursed, and threw clothes at father with W. nearby.
Second, the trial court could reasonably find mother has frustrated father's visitation with W. and tried to "undercut" W.'s development of a relationship with father during his formative years. Such conduct by mother alone "may be grounds for changing custody. [Citation.]" (Burchard, supra, 42 Cal.3d at p. 540, fn. 11; In re Marriage of Wood (1983) 141 Cal.App.3d 671, 682 ["Frustration of visitation rights by the custodial parent is a proper ground for transfer of custody to the formerly noncustodial parent. [Citations.]"]; Moffatt v. Moffatt (1980) 27 Cal.3d 645, 652 ["The deliberate sabotage of visitation rights not only furnishes ground for modification, it is a significant factor bearing on the fitness of the custodial parent. [Citation.]"].)
On this point, the evidence shows that, although the stipulated custodial order provided W. was to spend his birthday with father in 2017, mother did not make W. available to father. Instead, mother told father she and W. were taking a trip to New York when, in fact, she and W. remained in Los Angeles during that time. Moreover, beginning in 2018, mother refused to honor the stipulated custody order to the extent it granted father visitation on Wednesdays. Father testified mother permanently took away the visits and repeatedly told him he would "'not get more than four days a month'" with W. because she felt W. "was getting too attached to [him]." Further, in spring or summer 2018, mother refused father's request to take W. on a trip to New York while she was on vacation. She threatened to have father arrested for kidnapping if he took W. out of state, even though the stipulated custody order permitted father to travel with W. during his custodial time, and the trip would not have affected mother's custodial time. Additionally, as noted above, in September 2018, mother prohibited father from attending W.'s birthday party and did not allow father to speak to W. on his birthday. Subsequently, notwithstanding father's numerous requests for compliance with the stipulated custodial order, mother refused to let him see W. for "about a month."
The record is unclear with respect to whether father and W. ultimately went on this particular trip. When asked whether mother "change[d] her mind at some point," father testified she "mentioned [him] taking [W.] to New York and then later, sent text messages to [him] saying, 'Do not remove him from the state[.]'" Later, however, father testified he and W. spent a week in New York in the summer of 2018.
Accordingly, based on the findings above, which are supported by substantial evidence, the trial court could reasonably conclude changing W.'s custodial arrangement by granting father sole legal and physical custody would advance W.'s best interest. (Burgess, supra, 13 Cal.4th at p. 32.) We therefore reject mother's contention that the trial court's order is subject to reversal due to lack of evidentiary support.
Mother does not expressly contend the trial court erred by failing to appoint a child custody evaluator pursuant to section 3111, subdivision (a). On multiple occasions throughout her briefs, however, she points out that no expert custody evaluation was performed in this case. Because the record does not reflect mother asked the trial court to exercise its discretion to appoint a child custody evaluator, she has forfeited any contention of error based on the court's failure to do so. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) --------
C. Whether the Trial Court Erred by Failing to Consider W.'s Interest in Stability and Continuity
"[R]egardless of whether the trial court is being asked to make an initial custody order or a change in an existing order, a paramount concern is the need for stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.' [Citation.]" (Ragghanti, supra, 123 Cal.App.4th at p. 999.) Consequently, "the child's interest in continuity and stability is a factor that weighs heavily in the equation[.]" (Ibid.)
Mother contends the trial court abused its discretion by "ignoring [W.'s] need for stability and continuity." Had the factor properly been considered, she argues, the trial court would have found it was in W.'s best interest to keep the stipulated custody order in place. Bearing in mind the trial court's broad discretion, we reject this contention.
At the outset, we disagree with mother's assertion that the trial court "did not seem a bit concerned with maintaining the continuity and stability of [W.'s] life" and ignored the factor. Our Supreme Court has stated that while "courts would do well to state on the record that they have considered [the child's] interest in stability, . . . the lack of such statement does not constitute error and does not indicate that the court failed to properly discharge its duties. [Citation.]" (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1093 (LaMusga).) Here, mother correctly observes the trial court did not separately analyze the factor. The trial court, however expressly acknowledged the factor and therefore demonstrated it was aware of it when setting forth the legal principles applicable to its decision. Specifically, citing Burchard, supra, 42 Cal.3d at p. 538, the court stated: "The child's current custody arrangement must be considered because of the child's interest in continuity and stability and, when it has been in place for a significant period of time, the child's need for continuity and stability assumes an increasingly important role." In so doing, the trial court indicated it had, in fact, considered the factor and weighed it in favor of maintaining the then-existing custodial arrangement (i.e., allowing W. to continue residing with mother).
In any event, although the child's interest in stability and continuity generally "weigh[s] heavily in favor of maintaining ongoing custody arrangements," it is not dispositive. (Burgess, supra, 13 Cal.4th at p. 33.) Rather, this factor is one among many others that courts must consider when deciding which custodial arrangement would be in the child's best interest. (See id. at pp. 31-32; see also §§ 3011, subds. (a)-(d), 3040, subd. (a)(1).) Additionally, "[t]he weight to be accorded to [each] factor[] must be left to the [trial] court's sound discretion" (LaMusga, supra, 32 Cal.4th at p. 1093), and "each case must be evaluated on its own unique facts." (Burgess, supra, 13 Cal.4th at p. 39).
Applying these principles, here, as discussed above, the trial court could have reasonably found: (1) mother tended to disregard the impact of her behavior on W.'s welfare and, at times, did so to his detriment; and (2) mother purposefully interfered with father's visitation rights under the stipulated custody order and sought to undermine W.'s relationship with him. Given those findings, it was well within the trial court's wide discretion to conclude that even if W.'s interest in continuity and stability weighed in favor of maintaining the then-existing custodial arrangement, changing the arrangement to grant sole legal and physical custody to father was still in W.'s best interest.
D. Whether the Trial Court Improperly Separated W. From His Half-Brother
"[A] family law court may enter an order which has the effect of separating siblings only when compelling circumstances dictate that such separation is in the children's best interest." (In re Marriage of Williams (2001) 88 Cal.App.4th 808, 809.) "Absent evidence of compelling circumstances, including extraordinary emotional, medical or emotional needs, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Citation.]" (In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1091.)
Mother contends the trial court's order should be reversed because it effectively separates W. from his older half-brother, M., by drastically reducing the amount of time M. and W. will spend together. Specifically, mother argues that under the stipulated custody order, W. and M. "spent at least 20 days together every month," but under the trial court's custodial arrangement, "they would spend only four days together every month." As discussed below, mother's argument is without merit because it is unsupported by the record.
Per the terms of the stipulated custody order in effect at the time of trial, W. resided with mother on all weeknights but Wednesdays, and on the second and fourth weekends of each month. By contrast, under the trial court's order, W. generally will be with mother every Wednesday from the end of school until drop-off at school the next morning, and on the second and fourth weekends of each month, from afterschool on Friday to drop-off at school on Monday.
With respect to M., mother's declaration in opposition to father's request to modify the stipulated custody order states she and M.'s father "share joint legal and physical custody [of M.], with an approximate 50/50 time share split," such that M. is with his father 16 out of every 28 days. But, according to mother, M. is "actually . . . in [her] custody more than 50% of the time," as his father "is frequently away on business." At trial, when asked to describe her timeshare with M., mother testified she had W. and M. on the same weekends," and timeshare during the week "changed." Mother's counsel later clarified M. was with mother on the second and fourth weekends of each month. Thus, M.'s and W.'s weekends with mother corresponded.
Accordingly, the record demonstrates that when the stipulated custody order was in place, M. and W. spent two weekends together per month. However, the evidence does not indicate how "weekends" are defined for purposes of M.'s custodial schedule; for example, the evidence does not indicate whether Fridays are included in M.'s weekends with mother. Moreover, the record is unclear as to how much time M. and W. had together on weekdays. Specifically, the record appears to suggest M. spent some weekdays with mother. There is, however, no evidence clearly illustrating which days he spent with mother, let alone the extent to which his weekdays coincided with W.'s.
Consequently, we find no evidence to support mother's assertion that M. and W. "spent at least 20 days together every month under the [stipulated custody] order." Nor does the evidence establish M. and W. will "spend only four days together every month" under the new custodial arrangement. Indeed, on this record, we cannot determine how many days W. and M. spent together during the week when the stipulated custody order was in place, or how their time together will be affected by W.'s new custodial arrangement. Under these circumstances, we cannot conclude the trial court committed reversible error by significantly reducing the time the boys will spend together and effectively separating them from one another.
E. Whether the Trial Court's Order is Based on Improper Assumptions and a Desire to Punish Mother for Her Behavior Toward Father
Mother contends the trial court abused its discretion by improperly assuming: (1) she "direct[s] anger at [W.]" and speaks to W. using "bad language" when she is angry; and (2) her erratic behavior and her "language and conduct toward[] [f]ather adversely impacted [W.'s] well-being." Mother also argues that given the absence of evidence demonstrating W. was affected by her behavior toward father, the court inappropriately granted father sole legal and physical custody to "punish[] [her] for her sporadic use of angry and foul language in her written communications with [him]." For the reasons below, we again disagree with mother's arguments.
First, the trial court did not find mother directs her anger at W., or that she uses improper language with W. when she is angry. The trial court found, "Throughout the years, [m]other's communications . . . are replete with misinformation, insults, profanity, and threats to charge [f]ather with kidnapping, domestic violence, or other crimes." After giving a few examples, the trial court stated: "Mother attempted to excuse these types of communications by saying that she 'has a temper' and uses bad language when she is angry, but that does not neutralize them. No evidence was presented that [m]other's language is any different when her anger is directed at the child." Viewed in context, the last statement, which is the one on which mother relies in asserting error, is nothing more than an observation of the state of the evidence; it is not a factual finding concerning mother's treatment of W. when she is angry.
Second, we note that in arguing the trial court's order is based on improper assumptions and a desire to punish her for her behavior toward father, mother essentially reiterates the same argument she raised in challenging the sufficiency of the evidence supporting the court's finding that granting father sole legal and physical custody is in W.'s best interest. We have addressed this argument in section I.B, supra, and concluded it is meritless.
Additionally, mother suggests the trial court intended to punish her for treating father poorly because, rather than granting father sole legal and physical custody, it could have used a "less drastic solution" to address the issues arising from her behavior. Specifically, relying on In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron), mother contends the court "could have directed [m]other to get counseling, and scheduled a follow up hearing to access [sic] [m]other's progress," or "admonished [m]other about her objectionable conduct; ordered her to stop; and warned her that continued objectionable conduct could lead to a change of custody."
Mother's argument fails for a number of reasons. At the outset, the record does not demonstrate mother asked the trial court to enter any of the alternative orders she now complains should have been considered and granted. She therefore forfeited any claim of error based on the trial court's failure to utilize the "less drastic solution[s]" proposed for the first time on appeal. (See In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1338-1339.) In any event, her argument misses the mark because, on appellate review of custody and visitation orders, "[t]he test is not . . . whether the trial court could have reasonably made some other order, but 'whether the trial court could reasonably have concluded that the order in question advanced the "best interest" of the child.' [Citation.]" (Lester v. Lennane, supra, 84 Cal.App.4th at p. 595.)
Furthermore, the case on which mother relies does not apply here. In Gavron, the Court of Appeal reversed the trial court's termination of a spousal support order. (Gavron, supra, 203 Cal.App.3d at p. 713.) In so doing, the Gavron court held that a "supported spouse's failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant a modification in spousal support" where "the supported spouse . . . [is] made aware of the obligation to become self-supporting" through "some reasonable advance warning that after an appropriate period of time the supported spouse [is] expected to become self-sufficient or face onerous legal and financial consequences." (Id. at p. 712.) Nothing in Gavron suggests these principles apply in child custody determinations, and thereby require trial courts to warn parents that their misbehaviors may result in the modification of existing custody arrangements before making any such orders.
Accordingly, we conclude the trial court's order granting father sole physical and legal custody is not predicated on improper assumptions, nor is it inappropriately based on a desire to punish mother for her behavior toward father.
II. The trial court did not err by declining to grant mother's request for a statement of decision.
Mother contends the trial court committed reversible error by declining her request for a statement of decision, which sought findings on the following issues: whether W. "has continuously resided with [mother] for his entire life prior to July 2019"; whether his "home relationship with [mother] has been stable"; whether mother "has ever caused physical harm" or "emotional harm" to W., or otherwise "caused material detriment" to W.; whether W. was aware of or affected by mother's written communications with father; whether W. has been exposed to or affected by any conduct by mother prompting involvement by law enforcement or emergency medical personnel; and whether father engaged in domestic violence when he "kick[ed] down the door to the room where [mother] was" on October 23, 2016, or when he "punch[ed] a wall and [broke] his hand in the presence of [mother] during an argument" on June 13, 2015. Put differently, mother contends the trial court's final statement of decision is fatally deficient because it does not address these issues. We disagree.
"A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision. [Citations.]" (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125 (Muzquiz).)
Therefore, "[t]he trial court is not required to respond point by point to the issues posed in a request for statement of decision. The court's statement of decision is sufficient if it fairly discloses the court's determination as to the ultimate facts and material issues in the case. [Citations.]" (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379-1380 (Golden Eagle).) "'When this rule is applied, the term "ultimate fact" generally refers to a core fact, such as an essential element of a claim.' [Citation.] 'Ultimate facts are distinguished from evidentiary facts and from legal conclusions.' [Citation.] Thus, a court is not expected to make findings with regard to 'detailed evidentiary facts or to make minute findings as to individual items of evidence.' [Citation.]" (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 (Thompson).)
Here, the key issue before the trial court was whether father's requested change to W.'s custodial arrangement was in in the child's best interest. (Burchard, supra, 42 Cal.3d at p. 535 ["In deciding between competing parental claims to custody, the court must make an award 'according to the best interests of the child' [citation]."].) As discussed below, the trial court's detailed, 11-page statement of decision adequately discloses its determination of this "ultimate fact" and the findings in support thereof.
The court first summarized the history of the case and, based on the evidence presented at trial, made several factual findings pertaining to whether granting father sole legal and physical custody was in W.'s best interest. For example, the court found: "The evidence establishes [m]other's unstable mental state, her lack of maturity or responsibility, her intention to cut whatever bond the child and [f]ather develop, and her lack of care for the well-being of the child." The court further determined "[f]ather is not an ideal parent, either," because, among other things, "[h]e avoids conflict by agreeing to [m]other's demands even when they result in a chaotic and unstable life for the child." Nevertheless, the court found that despite his shortcomings, father "has been present in the child's life and committed to the child's well-being."
The trial court then set forth the legal principles applicable to its decision and analyzed each of the four factors required under section 3011. The court indicated the first, second, and third factors (i.e., "[t]he health, safety, and welfare of the child," "any history of abuse by one parent against . . . [¶] [a] child to whom the parent . . . is related by blood" or "[t]he other parent," and "[t]he nature and amount of contact with both parents" (§ 3011, subds. (a), (b)(1), & (c)), weighed in favor of granting father sole physical and legal custody. The trial court also determined no credible evidence had been presented on the fourth factor (i.e., "[t]he habitual or continual" use or abuse of substances or alcohol (§ 3011, subd. (d)). Throughout its analysis, the court clearly stated the factual findings bearing upon its consideration of each factor, and often cited the evidence supportive of those findings. Based on "all the evidence presented" and "pursuant to . . . §§ 3011, 3020, 3040, and related sections," the court found "it is in the best interest of the child . . . that [f]ather have sole legal and physical custody of [W.] and that [m]other have visitation[.]"
Accordingly, we conclude the trial court's statement of decision is sufficient, as it "state[s] the grounds upon which the judgment rests" (Muzquiz, supra, 79 Cal.App.4th at p. 1125) and "fairly discloses [its] determination as to the ultimate facts and material issues in the case. [Citation.]" (Golden Eagle, supra, 20 Cal.App.4th at p. 1380.) We further conclude the trial court correctly determined it was "'not required to respond point by point to the issues posed in [mother's] request for statement of decision," which essentially asked it to "make findings with regard to 'detailed evidentiary facts [and] make minute findings as to individual items of evidence.' [Citation.]" (Thompson, supra, 6 Cal.App.5th at p. 983.) Consequently, the trial court did not commit reversible error when it denied mother's request.
DISPOSITION
The judgment is affirmed. Father shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.