Opinion
G057757
01-26-2021
In re Marriage of JENNIFER and JAMES RITCHIE. JENNIFER RITCHIE, Appellant, v. JAMES RITCHIE, Respondent.
Michael L. D'Angelo for Appellant. Dawn E. Wardlaw for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13D005129) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Julie A. Palafox, Judge. Affirmed. Michael L. D'Angelo for Appellant. Dawn E. Wardlaw for Respondent.
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INTRODUCTION
The marriage of Jennifer Ritchie and James Ritchie ended in dissolution and they agreed in a stipulated judgment to joint legal and physical custody of their two minor children, with equal parenting time. A year later, James requested an order changing custody on the ground Jennifer had discussed the parties' financial disagreements and disparaged James to the children. Jennifer ignored the trial court's warnings given at several hearings to stop discussing finances with the children and disparaging James to them because it was increasing their anxiety.
We refer to the parties by their first names for clarity; we intend no disrespect.
The court issued temporary orders changing the parties' custody arrangement to award James full custody with monitored visitation for Jennifer. After an evidentiary hearing spanning six days, the court found there had been a substantial change in circumstances and ordered that the temporary orders become permanent.
We affirm. Substantial evidence supported the trial court's findings of significant changed circumstances and that the change in custody would be in the children's best interests. We consider and we reject Jennifer's substantial evidence challenges to several findings and credibility determinations made by the court in its lengthy, detailed statement of decision.
BACKGROUND
I.
THE STIPULATED JUDGMENT
The parties married in 2001 and had two children. They separated in 2013 and, in April 2015, stipulated to entry of judgment of the dissolution of their marriage (the judgment). As relevant to the issues presented in this appeal, the judgment provided: (1) Jennifer and James would have joint legal and joint physical custody "with an equal timeshare" of their then nine-year-old daughter R. and their then seven-year-old son D.; (2) the parties agreed not to disparage each other to their children; (3) James would pay Jennifer $2,570 in monthly child support and $3,030 in monthly spousal support in 2016 through 2018; (4) the family residence (the residence), with its encumbrances, would be awarded to Jennifer as her separate property; (5) Jennifer was obligated to indemnify James for any liability associated with the residence; (6) Jennifer was required to remove James's name from all encumbrances on the residence within two years of the date the parties entered the stipulation underlying the judgment; (7) in the event Jennifer was unable to remove James's name from all encumbrances on the residence within the two-year period, or in the event Jennifer was 30 days late on making a payment on an encumbrance on the residence, Jennifer would immediately list the residence for sale and it would remain listed until sold; (8) Jennifer was awarded 100 percent interest in the business known as Milkalicious; and (9) Jennifer agreed to assume and hold James harmless from all liabilities regarding Milkalicious, including, from Bankers Healthcare Group, Inc. (BHG), a loan with an outstanding balance of $92,234 (the BHG loan).
The parties had not had any pretrial custody conflicts or pendente lite custody orders before the entry of the judgment.
II.
JENNIFER'S FINANCIAL ISSUES; JAMES'S FIRST REQUEST FOR ORDER; THE COURT
ADMONISHES JENNIFER TO REFRAIN FROM DISCUSSING HER FINANCIAL PROBLEMS WITH
THE CHILDREN.
About three weeks after the judgment was entered, Jennifer filed for bankruptcy protection under Chapter 7 of the United States Bankruptcy Code (11 U.S.C. § 701 et seq.) and, as a result, her debts, including the BHG loan, were discharged. James, however, had cosigned the BHG loan but was not listed on Jennifer's bankruptcy filing as a codebtor or guarantor. After Jennifer's debts, including the BHG loan, were discharged in August 2015, BHG sought payment from James.
In February 2016, James filed a request for an order seeking relief from Jennifer with regard to liability under the BHG loan. In the declaration filed in support of his request, James stated that the parties had made tradeoffs to fairly and equally divide the community assets in the judgment, Jennifer had been awarded numerous assets that could be sold to pay off the BHG loan, and James had been paying spousal and child support; nevertheless, Jennifer had filed for bankruptcy 21 days after entry of the judgment. James stated: "Currently, I am being sought after by BHG as I was a cosigner on [the] loan and I do not have the means to pay the loan. I am asking [that] the residence which she was awarded be sold to pay [the] BHG loan off. [Jennifer] has been given until 2/16/17 to refinance [the] loan to remove my name which she has not done and more than likely will not be able to [do] due [to] bankruptcy."
In response, Jennifer immediately filed a request seeking an order requiring James to execute documents necessary for her to secure funding from a program called "Keep Your Home California." At the March 21, 2016 hearing on the parties' requests, the court noted that BHG was listed in Jennifer's bankruptcy filing as one of Jennifer's creditors holding unsecured nonpriority claims. Jennifer confirmed to the court that she had not identified James as a guarantor of the BHG loan in her bankruptcy filing and had not served him with formal notice of the bankruptcy filings and his right to intervene. In light of her failure to identify James in or serve him with her bankruptcy filings, the court informed Jennifer that she remained responsible to hold James harmless and to indemnify him for what he would have to pay to discharge the BHG loan under the judgment. James informed the court that he had negotiated with BHG to accept a lump sum payment of $50,000 in full satisfaction of the debt if paid within the 30 days.
The parties sought ex parte relief. The trial court denied ex parte relief but set the matters for noticed hearings.
The trial court gave the parties 30 days to attempt to find funding solutions to resolve the BHG loan without having to sell the residence. Jennifer requested that the court order James to sign the Keep Your Home California documents to enable her to reduce her monthly mortgage payment. The trial court denied Jennifer's request because such an order would result in requiring James to assume additional liability.
At the hearing, James also raised his concern that Jennifer was discussing her financial problems with their children and that it was negatively affecting them. The trial court admonished both parties not to make any comments to their children about what was going on with the residence until a decision was made by the court. The court advised Jennifer: "Do you understand, Ms. Ritchie? They are not to know what's going on. It will cause them anxiety and stress and there's no need to put that on these children at this point. And if the court finds out that there are comments that are going back and forth, then there will be consequences when the parties return in 30 days."
James later produced a copy of an email he sent to Jennifer on February 17, 2016 telling her that when he picked up the children, they said Jennifer told them James had not reimbursed her for expenses, refused to pay for D.'s therapy, refused to sign a document so that they could keep the residence, and that he was mean to Jennifer. D. told James "this is true, because mommy was crying." Jennifer's email response to James stated: "They must have overheard me crying or a phone conversation. Unfortunately all of those facts stated below are 100% accurate. They must be very disappointed in you."
III.
JAMES'S SECOND REQUEST FOR ORDER; THE COURT APPOINTS COUNSEL FOR THE
CHILDREN AT THE APRIL 26, 2016 HEARING
On March 25, 2016, James filed his second request for order, in which he also sought temporary emergency orders: "The relief I am seeking is enforcement of the 'no disparagement' and 'facts of the case' clauses in the divorce decree which prohibit both parties from speaking to our children about these matters. This is imperative in protecting their emotional well-being. Additionally, recent correspondence has alerted me to the [intention] of Jennifer Ritchie to file Chapter 13 bankruptcy in an effort to circumvent the jurisdiction of this court relating to our upcoming hearing on April 24th 2016 and I feel it necessary to bring this to [the] court's immediate attention."
James's second request was supported by his declaration stating that on March 22, Jennifer had sent him the following message:
"Hello James. Unfortunately with me being required to pay the lump sum of $49,000 for the BHG debt in the next 30 days, I am going to have to eliminate all non urgent items including the following:
"1. I can no longer afford to pay for [R.] to attend [dance] and will not be participating in any competitions
"2. I can no longer afford to pay for D[.] to play baseball
"3. I can no longer afford to pay for D[.] to play football
"4. I will be temporarily ending all orthodontics for D[.] and [R.]
"5. I will be selling D[.]'s and R[.]'s iPads
"I will be speaking to them about this today, but as you know, I am not able to tell them why until our next court date, so I will do the best I can."
In his declaration, James stated that on that same day, he received a "hysterical" phone call from R. during which she told James she knew that Jennifer had to pay him $50,000, they would have to sell the residence which James had tried to make them sell for three years, R. would have to quit her dance lessons, and James was ruining her life. James further stated in his declaration that during the course of the parties' separation and divorce, Jennifer repeatedly shared details about those proceedings with the children, causing them stress. He stated R. had been under a psychiatrist's care to help her manage her anxiety disorder and D. had been seeing a licensed clinical social worker regarding issues related to his acting out and emotional well-being.
James also stated that on March 24, 2016, he received a message from Jennifer stating that unless he agreed to sign paperwork for Keep Your Home California to lower her mortgage payment by $500 per month, which she would then give to James to apply toward the BHG loan, she was going to move forward with filing Chapter 13 bankruptcy. He understood that she was taking the position that if she were to file Chapter 13 bankruptcy, jurisdiction of the debt would be moved out of the trial court and into federal bankruptcy court, thereby insulating Jennifer from any trial court order to sell the residence to pay off the BHG loan.
A hearing was held on April 26, 2016 to follow up on the parties' financial issues and to address James's March 25th request. At this hearing, the trial court stated it had been notified that day of an automatic stay of proceedings that was prompted by Jennifer seeking protection under Chapter 13 of the United States Bankruptcy Code (11 U.S.C. § 1301 et seq.) on April 21. The court noted that the automatic stay did not deprive the trial court of jurisdiction to address the subject of James's March 25th request for order regarding Jennifer's communication with the children about her financial problems. In light of James's evidence that Jennifer discussed their financial issues with the children and blamed James, which caused the children to become upset, anxious, and angry with James, the court found the children were being negatively impacted, appointed counsel for both children (minors' counsel), and set the matter for another hearing. The court warned Jennifer not to discuss financial issues with the children at the risk of causing damage to them and possibly impacting her custody rights.
IV.
MINORS' COUNSEL CONFIRMS JENNIFER EXPOSES THE CHILDREN TO HER FINANCIAL
PROBLEMS WHICH CAUSES THEM SERIOUS EMOTIONAL HARM.
On June 1, 2016, the parties again appeared in court. Minors' counsel confirmed that, following her investigation, it appeared to her that the children had been exposed to the "issues, financial and otherwise" between the parties and that "[i]t seems to be coming from mom's side and my concerns lie with how we address that going forward for mom." R. was under the care of a therapist and a psychiatrist and was taking psychotropic medication for increasing panic and anxiety attacks. However, she was not seeing the therapist regularly and was becoming increasingly agitated and anxious. D. was "throwing temper tantrums, acting defiantly, running away and was destructive and hitting." The parties had taken D. to a therapist for parent-child interactive therapy, but Jennifer stopped participating after two sessions because of finances. James continued to work with D. in therapy for nine months. Minors' counsel expressed concern to the court that the children were not getting proper therapy and necessary interventions to protect them from the strain of Jennifer's financial crisis.
James requested sole legal custody so he could get the children the therapy they needed. The trial court denied James's request and ordered minors' counsel to work with the parties to see that the children received necessary intervention and therapies, and encouraged Jennifer to participate. The court explained that it understood James's frustration and the extreme and serious effect Jennifer's conduct was having on the children's emotional well-being.
The court admonished Jennifer: "You have an obligation to shield your children from what's going on in these adult issues. It undermines their stability and if you're using your children as a sounding board, that's inappropriate. [¶] Your responsibility as their parent is to protect them from these issues until they are adults and then they have to face those on their own, but right now they are not equipped emotionally, mentally, or developmentally to handle all of this. You're an adult and you're having a difficult time, so imagine how much more difficult it is for them when they are exposed to these issues."
The court noted that the children were in crisis but expressed the hope its orders would "stabilize what's going on." The court warned Jennifer, however, that if it "doesn't work, then . . . [James]'s request to change custody might be appropriate. So you're being warned right now that major changes in your parenting and your behavior are necessary for you to maintain joint custody."
V.
JENNIFER IS AGAIN ADMONISHED AT THE OCTOBER 26, 2016 HEARING; AT THE
FEBRUARY 15, 2017 HEARING, THE TRIAL COURT ISSUES TEMPORARY ORDERS
AWARDING JAMES SOLE LEGAL AND PHYSICAL CUSTODY OF THE CHILDREN WITH
MONITORED VISITATION FOR JENNIFER.
At the October 26, 2016 follow-up hearing, minors' counsel advised the court that the children were still emotionally unstable. James and minors' counsel expressed concerns Jennifer was still discussing finances and blaming James for her financial crisis which was having a negative impact on the children. The court admonished Jennifer "a fourth time to refrain from discussing her financial issues with the children as it was harming them."
When the parties appeared for a further hearing on February 8, 2017, it appeared the crisis might almost be over because Jennifer had stated she was selling the residence and had another bankruptcy hearing scheduled in the near future to assist her. One week after the hearing however, James was back in court with an ex parte request for emergency temporary orders because Jennifer was continuing to discuss her financial problems with the children and blame him. This was causing the children to suffer more anxiety and to display alienating behaviors.
James presented evidence that on February 10, 2017, while R. was on a bus on her way to a dance competition in Sacramento, Jennifer had told her not to become upset if her cell phone got shut off because Jennifer had not received money from James. (Although James had timely paid child support, those funds were held up by Jennifer's bank because she had a "risk hold" on her account.)
James received text messages from R. stating she was scared and that she did not want her cell phone turned off because "mommy can't pay." R. told James that Jennifer told her she was going to sell R.'s concert tickets.
As R.'s text messages suggested she was distraught, James called R. on her cell phone. During their conversation, she pleaded with him not to be mean to Jennifer but said that she knew he would be. R. was hysterical, crying, and screaming at him during the call. She accused James of not paying child support, of never having paid child support, and for making them sell the residence. She said that everyone in the van in which she was traveling knew this because she told them; she hung up on him. After their telephone conversation, R. texted James: "STOP LYING TO ME" "I DON'T WANT TO LIVE WITH U ANYMORE" and "PACK ALL MY STUFF."
That evening, James received texts from D. stating that Jennifer was crying, he thought James is "super mean," and "[our] house is going for sale dad seriously WOW," which he repeated three times. That same evening, Jennifer texted James: "I am pleading with you. Your children and I have no money and no food, we are starving. I need you to pay your child and spousal support today as it says in the court order."
Cumulatively, Jennifer had told the children they would lose their home and become homeless, they would not have enough food to eat and would starve, they would have to change schools and lose their friends, Jennifer would have to sell their iPads and turn off their cell phones, R. would have to stop her dance lessons and competitions, and D. would no longer be able to play football. The court found that Jennifer's continuing communications to the children about her financial crisis and blaming James for it had been designed to harm the children's relationship with James and had resulted in the children's emotional and behavioral issues becoming even more pronounced.
The court found the children needed stability and distance from Jennifer's financial anxiety and thus awarded James sole legal and physical custody of the children on a temporary basis with monitored visitation for Jennifer as she had failed four times to heed the court's admonishments.
VI.
JAMES CHANGES THE CHILDREN'S MENTAL HEALTH TREATMENT PLAN AND THE
CHILDREN BEGIN TO SHOW IMPROVEMENT; JENNIFER DISAGREES WITH SOME OF THE
CHANGES; THE TRIAL COURT ORDERS A CHILD CUSTODY EVALUATION.
With minors' counsel's assistance, the children changed therapists and began treatment with Dr. Kristin Bachman, Ph.D., once a week. The court encouraged Jennifer to get involved with the children's therapy, but she did not.
In June 2017, James changed R.'s psychiatrist, Dr. Martin Jensen, M.D., who she had seen since she was three years old, because James was uncomfortable with R.'s prescribed psychotropic medications regimen and with what he believed were inappropriate comments by Dr. Jensen about finances and R.'s weight. In consultation with minors' counsel, James selected Dr. Kelly Clougherty, M.D., as R.'s new psychiatrist. Dr. Clougherty lowered her Prozac dosage and planned to wean R. off all psychotropic medications in time. The children began to show improvement in their emotional status and their behavioral outbursts began to subside with the new custody schedule in place.
Dr. Jensen had, over the years, placed R. on medications including Xanax, Prozac, and Zoloft.
Jennifer believed the lowered dosage of Prozac was causing R. more anxiety and panic attacks; Jennifer was upset and complained to James about the lowered dosage. James had not seen an increase in R.'s anxiety or panic attacks. R. reported to minors' counsel she felt no different on the lowered dose. Dr. Bachman reported no increase in R.'s anxiety.
In July 2017, given the parties' inability to coparent or communicate, the court appointed Stacey Kinney, LMFT, as its Evidence Code section 730 child custody evaluator to examine the parents and children for the purpose of submitting a report to the court on custody and visitation. The court eventually removed the requirement that visits be monitored, to which James stipulated, and the children spent every other weekend and Wednesdays after school with Jennifer.
In October 2017, Kinney filed with the court a 92-page report in which she recommended the parties continue with the joint legal and joint physical custody arrangement set forth in the judgment. Kinney's conclusion was based on evidence the children were functioning well. R. was excelling in school, singing, and dance. D.'s anger issues were under control. Both children and Jennifer expressed the desire for an equal timeshare arrangement.
As summarized by the trial court in its statement of decision: "[I]t was the Court's expert's conclusion that Jennifer, who had been diagnosed with obsessive compulsive disorder, agoraphobia and a panic disorder, was in therapy and as long as she continued with her own therapy Ms. Kinney did not feel these conditions interfered with her parenting. On the other hand, Ms. Kinney also felt James blamed Jennifer for all the children's behaviors while taking no responsibility for the [stressors] the family experienced as a result of his blending the children with [his significant other] and her children. In the end Ms. Kinney concluded, the problem causing the stresses on this family was a lack of co-parenting between the parties. She recommended the parties return to 50-50 custody, the Court appoint a case manager and the parties continue with therapy."
At the November 2, 2017 hearing, James did not agree with Kinney's evaluation and recommendation and requested an evidentiary hearing, which the court initially set for January 2018.
VII.
AFTER SPENDING THE THANKSGIVING WEEKEND AT JENNIFER'S HOME, R. RETURNS TO
JAMES'S HOME WITH XANAX PILLS; MINORS' COUNSEL SEEKS EMERGENCY TEMPORARY
ORDERS; AND KINNEY FILES A SUPPLEMENTAL REPORT.
In light of the children's improved behavior, James offered Jennifer additional time with the children during the 2017 Thanksgiving holiday. After spending an extended weekend with Jennifer, R. returned to James's home with a pillbox containing 13 Xanax pills. Xanax is a federally prescribed psychotropic medication for which R. did not have a prescription. James contacted minors' counsel, who interviewed the children. R. reported that Jennifer had given her the Xanax for anxiety.
Jennifer met with Dr. Clougherty and R.'s therapist but refused to discuss what medications she had given R. She told Dr. Clougherty, in R.'s presence, that debilitating anxiety runs in her family and that, of course, R. had it, too.
On November 29, 2017, minors' counsel filed an ex parte application requesting emergency temporary orders on the ground Jennifer had endangered the children by administering Xanax to R. without a prescription. Jennifer filed a responsive declaration "specifically denying" she gave R. the Xanax pills; she stated she has never given either child medication that was not prescribed for him or her, and that if R. obtained the Xanax at Jennifer's home, R. must have stolen it.
Given the inconsistent explanations regarding the Xanax, the court ordered a supplemental Evidence Code section 730 evaluation to be conducted on the specifics of the incident. In her supplemental evaluation filed in April 2018, Kinney was unable to determine how R. came into possession of the Xanax notwithstanding her extensive investigation, as there were inconsistencies in the stories given, there was little corroboration, and it was Kinney's opinion the medical providers appeared to be biased and aligned with each parent. Kinney recommended the parties use a particular website to communicate prescription medication information, safeguard their own prescription medications, and not allow either child to self-administer medications. Kinney reiterated her recommendation the parties return to joint legal and joint physical custody with an equal timeshare arrangement.
VIII.
AFTER THE EVIDENTIARY HEARING, THE COURT ISSUES ITS STATEMENT OF DECISION
AWARDING SOLE LEGAL AND PHYSICAL CUSTODY OF THE CHILDREN TO JAMES;
JENNIFER APPEALS FROM THE COURT'S FINDINGS AND ORDER.
In May 2018, citing Kinney's reports, Jennifer filed two ex parte requests for an order restoring the parties' joint legal and physical custody arrangement. The court denied ex parte relief but set the requests for decision at the evidentiary hearing beginning June 11, 2018 to resolve the parties' outstanding matters.
The court's evidentiary hearing spanned six days during which James and Jennifer testified; the court considered Kinney's reports as well as the testimony of James's Evidence Code section 733 expert, Dr. David Mann, Ph.D. Mann criticized aspects of Kinney's section 730 reporting methodology which, as summarized in the trial court's statement of decision, Mann opined "fell below the standard of care because of a lack of objectivity and balance and a notable bias in favor of Jennifer. [Mann] added the Kinney reports [made] no sense because both failed to consider all issues impacting the children's behaviors."
Following the hearing, the trial court issued a 21-page intended decision stating it would become the statement of decision within 10 days unless any party filed and served a notice of controverted issues or made a proposal for matters not addressed in the intended decision. No party filed a notice of controverted issue, a proposal for additions to the intended decision, or objections to the intended decision.
In the statement of decision, the trial court concluded a material change of circumstances occurred in the form of "major instability and inconsistencies for the children post Judgment" for which a reevaluation of the child custody and parenting plan was warranted. The court's findings supporting its conclusion included: (1) Jennifer mismanaged her postdissolution financial affairs, which included filing for bankruptcy in a manner that caused one of Jennifer's creditors to pursue James; (2) Jennifer's conduct resulted in an increase in hostilities and litigation between the parties which negatively impacted the children; (3) Jennifer's financial challenges resulted in her inability to maintain the residence; (4) Jennifer blamed her postjudgment financial troubles on James and communicated this to the children on several occasions, notwithstanding the court's admonishments; (5) Jennifer implied to the children they would be homeless, the children would be removed from their school and friends, and they would no longer have access to their electronics and activities; (6) the children were negatively impacted by Jennifer's comments about finances and in turn became angry with James and blamed him; (7) during this time period, James had moved into a new home with a new partner and his partner's children and their parenting style sharply contrasted with Jennifer's parenting style; (8) Jennifer also had entered into a new relationship and evidence was offered showing this relationship was negatively impacting D.; (9) the hostilities and conflicts between the parties since entry of the judgment had increased to the point at which they were unable to coparent effectively, and their lack of communication was harming the children; (10) the children had begun having increased emotional and behavioral issues; and (11) as a result, both children required professional interventions and therapies for their emotional and mental well-being.
The court acknowledged the children reported a strong desire to return to joint custody with an equal timeshare with their parents, but concluded equal timeshare was not in the children's best interests. The statement of decision concluded: "The children are now stable and doing well after all the stresses and emotional upsets these children experienced following the entry of Judgment in this case and how each parent established their post Judgment homes and lives. It was a long and challenging journey to get the children emotionally stable after Jennifer's financial crisis placed them at ground zero and her long-standing anxiety issues impacted her parenting and judgment. The Court is not going to gamble the children will remain stable with another change in custody and parenting time given the evidence it received.
"The Court's conclusion is based on the specific findings identified herein for which the Court heavily weighed Jennifer continuing to engage the children in her financial crisis even after repeated admonitions from this Court [that Jennifer's conduct] was destabilizing them; Jennifer blaming James for her own financial affairs and causing alienation behaviors; Jennifer continuing to project her longstanding anxiety issues on R. and administering psychotropic medications to R. without current medical supervision; Jennifer failing to communicate to R.'s treating physician what specific medications she administered [to] her daughter; Jennifer not accurately providing this information to James, [minors'] counsel or the Court; Jennifer's lack of truthfulness when it serves her immediate interests; and Jennifer not showing interest or participating in the children's therapies to get them stable.
"Given these findings the Court disregards the 730 expert's conclusion Jennifer's actions were related to situational financial stress only. Instead the Court notes the evidence is sufficient Jennifer's issues which impacted these children are more complex and deeper and the Court is not willing to risk the children's hard fought for emotional stability to change a custody order that is working. Here the best interests of the children are served by maintaining the orders in effect."
The court awarded James sole legal and physical custody of the children and provided Jennifer "parenting time" with the children.
Jennifer appealed.
DISCUSSION
I.
GOVERNING LEGAL PRINCIPLES AND STANDARD OF REVIEW
A parent may request modification of a joint custody order under Family Code section 3087. (In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1088.) "An order for joint custody may be modified . . . if it is shown that the best interest of the child requires modification . . . of the order." (Fam. Code, § 3087.)
"California's statutory scheme governing child custody and visitation determinations is set forth in the Family Code . . . . Under this scheme, 'the overarching concern is the best interest of the child.' [Citation.] [¶] For purposes of an initial custody determination, section 3040, subdivision (b), affords the trial court and the family '"the widest discretion to choose a parenting plan that is in the best interest of the child."' [Citation.] When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents. [Citations.] [¶] 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. [Citations.] 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.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956.)
"'The changed-circumstance rule . . . provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should 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[s].'" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) We review a custody order for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) "This discretion may be abused by applying improper criteria or by making incorrect legal assumptions." (Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 901.)
"In order to demonstrate a change in circumstances warranting modification of a final custody order, the moving party bears the burden of persuasion to show how the circumstances have changed and why the modification is in the children's best interests. [Citation.] The moving party must make a '"threshold showing of detriment"' before an existing final custody order may be modified in the children's best interest. [Citation.] The court's decision must be based on the standards governing all custody determinations. [Citations.] For the children's best interests, the primary concerns are the children's health, safety, and welfare. [Citation.] Furthermore, so long as consistent with the children's best interest, the preference is for 'frequent and continuing contact' with both parents." (In re Marriage of McKean, supra, 41 Cal.App.5th at pp. 1089-1090.)
"We review the trial court's express factual findings in the statement of decision, and any implied findings, for substantial evidence. [Citation.] 'We review legal issues . . . under a de novo or independent standard.'" (Fink v. Shemtov (2012) 210 Cal.App.4th 599, 608.)
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FINDING A
SIGNIFICANT CHANGE OF CIRCUMSTANCES.
Jennifer argues the trial court erred because "there is no evidence to support a finding of significant changed circumstances that warranted a change of Jennifer's custody." (Bold and some capitalization omitted.) We disagree. Substantial evidence showed that since the judgment was entered, over the course of at least 10 months, Jennifer had disregarded the trial court's admonishments and discussed her financial problems with her children, causing them to blame James for her problems, exhibit alienating behaviors, and feel increased anxiety. In addition, as discussed in detail post, notwithstanding R.'s mental health plan developed by her mental health care providers with minors' counsel's and James's cooperation, which included reducing the amount of psychotropic drugs she was taking, substantial evidence showed that Jennifer gave R. Xanax pills that had not been prescribed for R.
In her opening brief, Jennifer challenges specific findings made by the trial court in the statement of decision that underlie its finding of significant changed circumstances as lacking evidentiary support. We address and reject each of her challenges.
First, Jennifer argues there is no evidence supporting the court's historical finding she mismanaged her postdissolution financial affairs. At the evidentiary hearing, James testified that Jennifer had filed Chapter 7 bankruptcy but did not identify James as a coguarantor on the BHG loan, which resulted in that matter moving through bankruptcy without James having an opportunity to prove to the trustee that Jennifer was obligated under the judgment to hold him harmless for that debt. In addition, in March 2016, the trial court requested a copy of Jennifer's Chapter 7 bankruptcy documents so that the trial court could confirm she failed to identify James as a creditor or guarantor in her filing with regard to the BHG loan. Substantial evidence showed Jennifer's failure to properly serve and otherwise notify James of her Chapter 7 proceedings clearly set into motion conflict and litigation between the parties regarding the resolution of Jennifer's debt.
Second, Jennifer argues there was no evidence James was pursued by BHG but only contacted by that lender following Jennifer's Chapter 7 bankruptcy filing. But James directly testified at the evidentiary hearing that BHG asked him to pay the debt. He testified, "[t]hey came after me." James's testimony corroborated the declaration he filed in February 2016 stating, in part: "Currently I am being sought after by BHG as I was a cosigner on [the] loan." He attached to his declaration email communications he had had with BHG, including an email informing him that "the divorce decree does not mean that you are no longer a guarantor but an agreement that Jennifer stated she would pay the debt" and that BHG was never notified of that arrangement. The communication continued "BHG[] understands the position you are in and we are willing to work with you regarding settling the debt for you."
Third, Jennifer argues: "The parties' 'hostilities' were not claimed to have impacted the children until after the court ordered Jennifer to pay $50,000 in 30 days or sell the home. James had no right to such relief under the Judgment, and the court's granting of such extraordinary relief based on ex parte application was improper on many levels. It was James' request for a remedy to which he was not entitled and the court's decision to grant such remedy that caused Jennifer's 'inability to maintain the family home.' There is no authority allowing the court to use the financial impacts of its own improper order as 'changed circumstances' for purposes of modifying custody."
Jennifer's argument appears to challenge the court's resolution of James's first request for order in February 2016, and not a finding contained in the statement of decision. At the March 2016 hearing, the trial court affirmed that the BHG loan was Jennifer's sole responsibility under the judgment and that she was obligated to indemnify James and otherwise hold him harmless with regard to liability for it. Jennifer does not contend otherwise. The court encouraged the parties to figure out a way to satisfy the reduced payoff amount of the BHG loan, but noted that, ultimately, it was Jennifer's responsibility to resolve that debt and if that meant selling the residence, then that is what she needed to do. Jennifer does not cite where in the record the court ordered her to pay $50,000 within 30 days or sell the residence.
Next, Jennifer argues there was no evidence that corroborated James's claim that Jennifer told the children he was to blame for her financial condition. More than substantial evidence, in the form of text messages from the children and James's testimony, showed that Jennifer at least impliedly communicated to the children that James was to blame for her financial situation.
Fifth, Jennifer argues there is "no authority that one parent's election to change parenting styles is a 'changed circumstance' warranting a change of custody." (Bold and italics omitted.) The trial court did not say this. The court simply found that in addition to all the other circumstances showing the parties were unable to coparent effectively, the sharply contrasting parenting styles of their respective households added to the friction.
Sixth, Jennifer argues there was no evidence that her relationship with her significant other "was negatively impacting" D. James, however, testified at trial that, in December 2015, he and Jennifer had discussed D.'s behavioral issues. He testified that Jennifer had asked him to care for D. because he did not want to go to the theater and was throwing a temper tantrum at Jennifer's house. In an exchange of texts with James, she stated that D. was an obstacle to her getting married to her significant other and that she might have to break up with him. In an email to James, she stated: "Mike won't even live with me because [D.] is such a nightmare. I wish I could put him on Prozac." This evidence supports the reasonable inference that D. suffered harm by his being perceived as an obstacle in Jennifer's romantic relationship.
Seventh, Jennifer argues there is no evidence the children demonstrated increased emotional issues postjudgment, much less that they were her fault. More than substantial evidence, including James's testimony, shows the children became upset, anxious, and angry after Jennifer would suggest to them that they were facing financial consequences and loss as a result of James's decisions. James specifically testified about the incident in February 2016 in which the children accused him of refusing to pay for therapy, not signing documents, and being mean to Jennifer. His email exchange with Jennifer regarding this incident was admitted into evidence without objection.
James also testified about a conversation he had had with R. the day after the March 21, 2016 hearing. In this conversation, R. was "hysterical, super upset" because Jennifer had stated that she would not pay for dance or any extracurricular activities because she had to pay $50,000 to keep the house. He testified that R. cried, yelled at him, and hung up on him. R.'s text message to James stating "I know the full story. I trust mommy, not you" was admitted into evidence without objection. James further testified that he was prompted to call R. by her text messages showing that she was distraught. During his telephone conversation with R. while she was traveling in a van on the way to a dance competition, R. cried and screamed at James that her phone was going to get shut off because he did not pay Jennifer child support and had not paid child support in three years. At the evidentiary hearing, Jennifer admitted that R. became mad and upset after being informed of Jennifer's financial troubles.
Finally, in her opening brief, Jennifer argues: "By focusing on conditions existing in February 2017, the court seeks to use 'changed circumstances' to validate its ex parte order terminating all of Jennifer's custody rights at that time. With the merits of the ex parte order purportedly settled, the court then imposed on Jennifer the burden of proving changed circumstances occurring since February 2017 to warrant a change from the court's current 'temporary' order. Hence, the court's conclusion that it 'is not willing to risk the children's hard fought for emotional stability to change a custody order that is working. Here, the best interests of the children are served by a custody order that is working.' . . . [Citation.] The court essentially is using 'changed circumstances' as a means of shifting the burden of proof onto Jennifer as the party seeking to modify custody. This is a gross misapplication of the changed circumstances rule." (Italics, bold, and underscoring omitted.)
Jennifer's argument is without merit. The statement of decision begins with a correct statement of the burden of proof: "As this is a request for post Judgment custody modification James, as the moving party, must generally demonstrate by the requisite burden of proof that there has been a material or substantial change of circumstances since the Judgment was entered on April 6, 2015." The court's observation that the children were doing well while temporarily placed in James's sole custody was made to reinforce its finding that the children's best interests were served under that arrangement and does not show that the court failed to apply the correct burden of proof in its decision.
III.
SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING THAT THE CHANGE IN CUSTODY WAS IN
THE CHILDREN'S BEST INTERESTS.
Jennifer argues there was "no evidence to support a finding that anything less than shared legal and physical custody, with equal time for both parents, is in the children's best interests." (Bold, italics, and some capitalization omitted.) The best interests determination includes the consideration of a child's health, safety, and welfare. (In re Marriage of Brown & Yana, supra, 37 Cal.4th at pp. 955-956.) Substantial evidence supported the trial court's finding that the children's best interests would be best served by awarding James full legal and physical custody.
The record establishes that over the course of at least 10 months, Jennifer embroiled the children in her efforts to unfairly pressure James to assume some responsibility for her liability under the BHG loan. Notwithstanding the trial court's repeated admonishments to refrain from discussing her financial stresses and James's involvement in them, Jennifer continued to discuss her financial woes with the children. Substantial evidence showed they became upset, anxious, and angry at James after Jennifer engaged in this behavior. The children's mental health providers worked to help the children reduce their anxieties.
The trial court became convinced after several months of hearings, at which the court could observe the parties, that Jennifer was motivated, at least in part, by a desire to alienate the children from James. In addition, substantial evidence showed Jennifer worked outside of the mental health providers' plan, providing R. with Xanax pills for her anxiety that had not been prescribed for R.
Jennifer contends the trial court abused its discretion in disregarding Kinney's conclusions and recommendations and giving credence to Mann's criticisms of Kinney's methodology. It was the province of the trial court as the trier of fact at the evidentiary hearing to evaluate the credibility of witnesses, including expert witnesses. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)
The trial court found Kinney appeared biased in her evaluation and found Kinney's supplemental evaluation to be unresponsive to the court's charge of determining what had happened in connection with the Xanax incident. The trial court was not bound to accept Kinney's conclusions and recommendations and did not abuse its discretion by giving limited weight to Kinney's original evaluation and no weight at all to her supplemental evaluation.
Jennifer also argues the trial court abused its discretion in considering Jennifer's financial condition to determine the children's best interests. Jennifer's argument suggests the trial court based its custody determination, in whole or in part, on the fact Jennifer was less financially stable than James. Jennifer's argument is without merit. The trial court found that Jennifer's difficulties in managing her finances had caused her stress and anxiety, which in turn caused her to discuss her financial woes with the children, causing them stress and anxiety and anger at James. There is nothing in the record to support the contention that Jennifer's financial condition in and of itself was a factor in the court's best interest analysis.
IV.
SUBSTANTIAL EVIDENCE SUPPORTED THE TRIAL COURT'S FINDING THAT JENNIFER GAVE
R. THE PILLBOX CONTAINING XANAX.
Jennifer argues the trial court abused its discretion in finding wrongdoing by Jennifer in connection with the Xanax-filled pillbox incident in November 2017. Jennifer's argument, which is based on the lack of direct evidence she gave R. the pillbox containing Xanax pills and on her contention that James fabricated the incident, is without merit.
In the statement of decision, the trial court made several findings in connection with the Xanax incident including the following: (1) after spending the 2017 Thanksgiving weekend with Jennifer, R. returned to James's home with a pillbox containing Xanax, a federally prescribed [sic] psychotropic medication; (2) R. did not have a prescription for Xanax; (3) in response to minors' counsel's ex parte request for emergency orders, Jennifer filed a declaration on November 29, 2017 in which she specifically denied giving R. the Xanax pills, stated she had never given either child medication not prescribed for them, and stated that if R. had obtained the Xanax from her home, R. must have stolen it; (4) given the dispute as to how R. obtained a pillbox containing Xanax, the Court ordered a supplemental Evidence Code section 730 evaluation on the specifics of the incident, but after extensive interviews and investigation, the evaluator was unable to make a recommendation on the Xanax incident; (5) there was an inconclusive Child Protective Services (CPS) investigation into the Xanax pillbox incident as well; (6) in that investigation, Jennifer made a statement that she did not know how R. obtained the pillbox of Xanax, but she admitted she had administered one .25 mg tablet of Xanax to R. for a panic attack in the past per Dr. Jensen's prescription; (7) R. told the CPS investigator that Jennifer had given her one-half of a Xanax tablet on four occasions for R.'s panic attacks; (8) Dr. Jensen told the investigator he had prescribed liquid Xanax for R. in 2011 with instructions to Jennifer to administer it for a panic attack; (9) Dr. Jensen stated he "had no problem" with Jennifer giving R. one-half of a Xanax tablet from Jennifer's own Xanax prescription for a panic attack; (10) on November 29, 2017, Jennifer met with Dr. Clougherty but refused to discuss what medications she had given R.; (11) in that same meeting, Jennifer told Dr. Clougherty in R.'s presence that debilitating anxiety runs in her family and "of course" R. has it too; (12) during the evidentiary hearing, Jennifer admitted she has taken Xanax regularly for 20 years and that she administered to R. a Xanax tablet from her own prescription (not R.'s expired prescription) on four occasions since the parties had separated and, most recently, on November 15, 2017; and (13) "[g]iven Jennifer's admission in Court about administering Xanax to R. on four occasions, with the most recent being November 15, 2017, the Court f[ound] Jennifer was not truthful in her artfully worded declaration filed on November 29, 2017."
Xanax, or Alprazolam, is a controlled substance under federal law. (See 21 C.F.R. § 1308.14(c)(2) (2020) (listing Alprazolam as a Schedule IV controlled substance); U.S. v. Amedeo (11th Cir. 2004) 370 F.3d 1305, 1311 (stating that Xanax is Alprazolam)).
In the statement of decision, the trial court concluded that Jennifer's failure to be forthcoming with the court on November 29, 2017 resulted in an unnecessary supplemental Evidence Code section 730 report. The court also found that "[g]iven Jennifer's lack of truthfulness on critical issues such as prescription medications being administered to a minor and her educational achievements on an employment application the Court finds Jennifer is not credible when it serves her personal interests." The court ultimately found: "Given the overabundance of evidence submitted to the Court on the Xanax evidence and the credibility findings, the Court concludes [R.] obtained the Xanax from Jennifer's home with Jennifer's knowledge" and that "Jennifer's actions in administering Xanax to [R.] on multiple occasions place [R.] at risk."
Jennifer does not contend that any of the above identified findings were unsupported by sufficient evidence except for the court's ultimate finding (which is amply supported by the other findings) that Jennifer had in fact given R. the pillbox containing Xanax. Substantial evidence supports the reasonable inference Jennifer had given R. the pillbox of Xanax.
Jennifer contends that James's version of the Xanax incident (that he discovered the pillbox, confronted R., and that R. told him that Jennifer had given it to her) should not have been believed by the court because James is not credible and his version was not corroborated. She argues the evidence suggests James was responsible for the incident. The trial court, however, did not cite James's statements as support for its ultimate finding that Jennifer gave the pillbox to R. In any event, the record does not show that the trial court abused its discretion in connection with any of its credibility determinations.
DISPOSITION
The postjudgment order is affirmed. Respondent shall recover costs on appeal.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.