Di Napoli v. Di Napoli
Filed 7/16/12 Di Napoli v. Di Napoli CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
NICHOLAS DI NAPOLI, JR.,
Plaintiff and
Appellant,
v.
PATARAWAN DI NAPOLI,
Defendant and
Respondent.
2d Civil No.
B235354
(Super. Ct. No.
1340405)
(Santa
Barbara County)
Nicholas Di Napoli
(Nicholas) was born in 2007. His father,
Nicholas Jr. (Nick) is a U.S.
citizen, his mother, Patarawand (Pat) is a dual citizen of Thailand
and the United States.
marriage. Pat wishes to return to
Thailand with Nicholas. Nick opposed the
move contending that cultural differences, distance and the enforceability of
court orders preclude granting Pat's request.
In an excellent, thoughtful and thorough statement of decision the trial
judge weighed the relevant factors and found, inter alia, the "best
interests of [the Child] requires an award of joint legal
custody . . . and an award of approximately 75% physical
custody to Pat in Thailand and 25% physical custody to [Nick] in California . .
. ."
Nick appeals and
contends that the trial court abused
its discretion by ignoring the requisite legal factors in its assessment of
whether the move-away order was in Nicholas' best interest. Our review of the record discloses that two
loving parents could not agree upon the care and custody of their child. Their disagreement appears to have been
grounded on irreconcilable notions of what would be best for Nicholas given
their respective futures. It is equally
clear that the trial court did anything but abuse its discretion in resolving
this Solomonic dispute. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Nick and Pat married on
January 30, 2003. They separated six
years later on April 1, 2009. Their sole
minor child, Nicholas, was born in May 2007.
Pat moved from Thailand
to the United
States before she met Nick. They
married in California with a later ceremony in Thailand attended by Nick's
mother, sister and a few family friends.
Pat became a United States citizen after their marriage.
Pat and Nick chose to
live in Santa Barbara in the last years of their marriage. Pat was the primary caregiver for Nicholas
during the marriage. Pat worked for
Citrix, a company based in Goleta, California, for over five years. She began as an accounts payable supervisor
and ordinarily worked from her home. Her
mother traveled from Thailand five or six times and stayed with Pat and Nick
for several months and helped with Nicholas.
Nick worked for several different employers during the marriage.
In 2008, Nick wrote a
note promising Pat that they would move to Thailand within five years, and
"live [there] forever." By
April 2009, Pat and Nick were living in separate bedrooms of their family home. This started when Nicholas was very young and
awoke frequently at night. Pat slept in
a separate room while breastfeeding him.
Later, their relationship "didn't go well" and they never
shared a bedroom again.
Nick agreed that Pat
could take Nicholas to Thailand for three months in the summer of 2009. Nicholas is a dual citizen of the United
States and Thailand. He also speaks
English and Thai. While Nicholas and Pat
were in Thailand, her mother was hospitalized.
Pat called Nick to say she would need to extend the visit for an
additional month. He did not
object.
In November 2009, after
returning from
Pat and Nicholas moved out of the family home.
Pat filed a notice of motion for child custody and visitation and child
support, but ultimately reached an agreement with Nick concerning custody in
March 2010. On March 18, 2010, Nick
filed a stipulation and order that provided for temporary joint legal and
physical child custody, with a specific visitation schedule.
When Pat initially moved
from the family home, Nick was working in Camarillo and had much less than 50
percent visitation with Nicholas. After he found employment in the Santa
Barbara area, he and Pat shared visitation with Nick on alternating weeks. In 2011, before trial, while Pat was in
California, she and Nick had a "week-on week-off visitation schedule,
changing visitation every Monday."
Nicholas attended the same Montessori school in Santa Barbara for more
than two years.
On May 24, 2010, Pat's
attorney sent a letter to Nick's attorney advising him that Pat planned to move
to Thailand. Citrix was promoting her to
become the financial operations manager of its Asian-Pacific region. In June 2010, Citrix increased Pat's salary
to $85,000 per year.
On July 2, 2010, Pat
went to Thailand for about two months.
When she left, she believed that she and Nick had reached a
that would allow both parents regular physical contact with Nicholas, including
travel on the 22-hour flight from California to Thailand. Although she and Nick had not signed the MSA
before she went to Thailand that July, Pat anticipated that Nick would have
primary physical custody of Nicholas in California and that Nicholas would
visit her in Thailand during the summer and other school breaks.
From July 2, 2010,
through September 24, 2010, while Pat was in Thailand, Nicholas lived with Nick
100 percent of the time. Pat and
Nicholas were able to accommodate the 14-hour time difference and had daily
contact via Skype.
While visiting Thailand
in 2009, Pat saw many of her long-time friends, including a man named Chibuth
Ananrattnasook (Chibuth), whom she had known since high school. He was very kind to Nicholas, helped care for
him, and took him places. Chibuth had
attended graduate school in Ohio, spoke English, and started a growing
information technology business in Thailand, with a presence in Japan. His goal was to make his business a worldwide
operation. In August 2010, Chibuth
proposed marriage to Pat.
On September, 24, 2010,
Pat returned to the United States for training and remained for several
weeks. For three weeks, Nick allowed her
to have 100 percent visitation time with Nicholas.
Pat went to Thailand on
October 24, 2010 and stayed there for several months. Nicholas resumed living with Nick full
time. Nick's mother and a babysitter
helped care for Nicholas when he lived with Nick.
On November 15, 2010,
the trial court entered a judgment re status only dissolving the marriage. In December 2010, Pat married Chibuth. Pat did not disclose her remarriage before
trial. She had planned to disclose it
during a child custody evaluation, but the court declined her request for an
evaluation.
Pat returned from
Thailand on January 21, 2011. After her
return, Nick told her that he objected to "any travel to Thailand by
Nicholas." On February 1, 2011,
Pat's lawyer wrote Nick's lawyer a letter stating that Pat decided to seek a
court order awarding her custody of Nicholas and the right to relocate to
Thailand with Nicholas. On February 22,
2011, the parties filed a stipulation that neither party would remove Nicholas
from California without the prior written consent of the other or prior court
order. On February 23, 2011, the court
denied Pat's request for a child custody evaluation. On March 23, 2011, Nick filed his opposition
to Pat's request for a move away and/or visitation in Thailand.
The trial court heard
testimony on May 9, 10, and 12, 2011, to consider Pat's request for physical
custody of Nicholas in Thailand, with liberal visitation to Nick, her request
for child support, and Nick's requests for attorneys fees and sanctions. Nick, Pat, and each of their mothers
testified at trial. Pat presented a
video of several sites in Bangkok, including her home, the private school that
Nicholas would attend, the local hospital, and a park.
On June 16, 2011, the
trial court issued its tentative decision.
Both parties filed objections. On
July 20, 2011, the court issued its statement of decision with findings,
conclusions and orders concerning custody and related issues. On the same date, it entered judgment
incorporating its orders.
The trial court found
that Pat "appeared to be open and honest in her testimony," and that Nick's credibility was undermined
by his inability to remember "facts that he reasonably would have been expected
to remember" and by his giving "testimony inconsistent with his
deposition testimony." It also
found that Margaret Di Napoli, Nick's mother, "was seriously impeached by
some deposition testimony strongly at variance with her testimony in court [which]
seriously damaged her credibility."
The trial court
concluded that Nick failed to present substantial evidence to support his claim
that the political or social situation in Thailand presented an actual threat
or detriment to the health, safety or welfare of Nicholas. It found that with the support of Nick,
Nicholas had established a significant connection with Thailand, its culture
and language, and his extended family there.
It further found that Nicholas had a primary and dependent relationship
with Pat and it was in his best interest to continue their relationship in
Thailand, while "maintaining frequent communication and significant
custodial time with his father in California."
The trial court awarded
joint legal custody of Nicholas to Pat and Nick, and awarded approximately 75
percent physical custody to Pat, in Thailand, and 25 percent physical custody
to Nick, in California. It ordered Pat
to enroll Nicholas in the English language program of the private school
depicted in the trial video exhibit, and to pay the entire cost of his tuition.
The trial court further
found that Pat had developed and continued to maintain strong ties to
California, including her dual citizenship and her employment with a United
States-based employer, and that she demonstrated that she respects and will continue
to respect the court's jurisdiction. The
court noted there was no evidence of Pat ever having threatened to abduct
Nicholas, or to take him to Thailand, or keep him there, without the full
knowledge and consent of Nick. It thus
found that there was minimal risk that Pat would violate its orders.
The trial court ordered
that Nick and Pat each obtain compatible computer equipment for Skype
communication. In addition, it ordered
the in-custody parent to initiate a daily Skype videoconference call each
weekday at 6:30 a.m. in Santa Barbara and 8:30 p.m. in Thailand, for Nicholas
to communicate with the out-of-custody parent for up to 30 minutes.
The trial court also
ordered that a parent accompany Nicholas during his trips between Thailand and
the United States, on the plane, and in the airport, and that the parents
maintain Nicholas's passports and make them available to the other parent. The court contemplated that Nicholas would
make one trip each year, absent another agreement between his parents. It ordered Pat to "pay the cost of all
air fare for Nicholas . . . and the parent accompanying him between the United
States and Thailand."
The trial court also
ordered Nick to pay Pat $912 for child support per month. It ordered that Nick and Pat pay their own
costs and fees, and denied Nick's request for sanctions and attorneys fees.
DISCUSSION
"In
Cal.4th 25, our Supreme Court discussed the so-called 'move-away' orders. As in all cases where an initial custody
determination is at issue, the trial court has ""'the widest
discretion to choose a parenting plan that is in the best interest of the
child."'" (
circumstances. (Id. at pp. 31-32.)" (
Cal.App.4th 789, 793 [disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1099-1100 (
have a working joint legal and joint physical custody agreement, and one parent
seeks to relocate, the family law court "must determine de novo what
arrangement for primary custody is in the best interest of the minor
children." (In re Marriage of Burgess, at p. 40, fn. 12.)
"[T]he statutory
policy promoting 'frequent and continuing contact with both parents' (Fam.
Code, § 3020) does not limit 'the trial court's broad discretion to determine,
in light of all the circumstances,
what custody arrangement serves the "best interest" of minor
children.' [Citation.] . . . Family Code section
3040, subdivision (b), expressly provides the court with '"the widest
discretion to choose a parenting plan that is in the best interest of the
child."' [Citation.]" (LaMusga,
supra, 32 Cal.4th at p. 1088.)
"The standard of
appellate review of custody and visitation orders is the deferential abuse of
discretion test. [Citation.] The precise measures whether the trial court
could have reasonably concluded that the order in question advanced the 'best
interest' of the child." (
Cal.4that p. 32.)
Nick contends that the
trial court abused its discretion by ignoring all significant factors in
assessing whether a move-away order is in the best interest of Nicholas. The record is to the contrary.
Condon
Factors
In In re Marriage of Condon (1998) 62 Cal.App.4th 533 (
significant factors that a trial court must consider in assessing whether a
parent's request to move a child to a foreign country is in the child's best
interest. Those factors are (1) the
enforceability of the order; (2) the cultural differences in the foreign
country; and (3) the distance between the United States and the foreign
country. (Id. at pp. 546-547.)
1.
The Enforceability Factor
Nick argues that the
trial court ignored the enforceability of the order when it granted Pat
physical custody of Nicholas in Thailand despite the fact that Thailand is not
a signatory to The Hague Convention. He
asserts that "the court has no mechanism whatsoever to enforce the terms
of the order, and it is therefore possible that [Nicholas] will never return to
the United States to see his father, or any of his relatives in this country
again." Neither the law nor the
record supports his claim.
Family Code section
3048, subdivision (b)(1) addresses child custody order enforceability and
specifies the factors the court should consider to determine the risk of
abduction to the child. Those factors
include whether a party has previously kept, withheld or concealed the child in
violation of the right of another person's right of custody or visitation, or
threatened to do so; whether a party lacks strong ties to California; and
whether a party has strong ties to another state, including foreign
citizenship. The trial court considered
the section 3048, subdivision (b)(1) factors and found that Pat had developed
and maintained ties to the United States, including her acquisition of United
States citizenship and her career with a Goleta, California-based company. She moved to Thailand to accept a position
with that company. It further found that
Pat had demonstrated her respect for and obedience to the California trial
court's orders and that there was minimal risk that she would violate its
orders.
In addressing the
problems inherent in enforcing an order where the child will live in a foreign
country, the Condon court stated that
"the trial court should take steps to ensure its orders [to maintain
custody and visitation rights in the nonmoving parent] will remain enforceable throughout
the minority of the affected [child].
Unless the law of the country where the children are to move guarantees
enforceability of custody and visitation orders issued by American courts . . .
the court will be required to use its ingenuity to ensure the moving parent
adheres to its orders and does not seek to invalidate or modify them in a
foreign court." (
Because Thailand is not
a signatory to the Hague Convention, it was necessary for the trial court to
"use its ingenuity" (Condon,
supra, 62 Cal.App.4th at p. 547) to issue orders to ensure Pat's
compliance with the custody and visitation order as contemplated by the
Family Code section 3048, subdivision (b)(2).
For example, it ordered Pat to post a $10,000 bond to provide Nick with
the means to seek redress in Thailand if Pat should attempt or threaten to
violate the court's orders. (Fam. Code,
§ 3048, subd. (b)(2)(B). It also ordered
that she "agree in writing by declaration in proper form for filing with
any Thai court with jurisdiction over her and Nicholas . . . that she submits
to the continuing exclusive personal jurisdiction of the Superior Court of the
State of California in . . . Santa Barbara in all matters regarding her
marriage to [Nick], and over the parental custody and visitation of Nicholas .
. . in consideration of the court's order allowing her to have Nicholas . . .
with her in Thailand and agrees . . . to return Nicholas . . . to the State of
California when and as ordered by the court." (Fam. Code, § 3048, subd. (b)(2) The court further ordered that should Pat
seek to frustrate the custody and visitation order or take steps to acquire
jurisdiction in Thailand, Nick could apply to the court for an order to
terminate or reduce his support obligations as an offset to the cost of
recovery of Nick. Finally, it ordered
that a violation of its order could subject the violating party to
In arguing that the
order is unenforceable, Nick emphasizes that Nicholas will be in Thailand,
which is not a signatory to the Hague Convention. The trial court recognized that fact but
found that the risk that Pat would violate its orders was minimal and that the
$10,000 bond was sufficient to provide Nick the means to seek redress in
Thailand if she attempted or threatened to do so. Moreover, as the Condon court observed, "[T]he Hague Convention protects a
custodial parent from unlawful removal or retention of minor children for only
one year. [Citation.] Only within the first year after the removal
of the children from their habitual residence are courts of the country to
which the children were removed obligated to order the return of the child
forthwith." (Condon, supra, 62 Cal.App.4th at p. 556.) The trial court acted within its discretion
and with care to include orders "to ensure the moving parent adheres to
its orders and does not seek to invalidate or modify them in a foreign
court." (Id. at pp. 547-548.)
2. The Cultural Factor
We reject Nick's claim
that the trial court ignored the cultural differences in Thailand. He argues that Nicholas will be
"deprived of many protections and advantages he was enjoying in the United
States." He also asserts that
"Thailand is currently at war with Cambodia and facing significant
political unrest," and cites material, including a News.Com article and a
States Embassy notice. Nick further
claims that the "trial court did not even address the culturally-based
risks or problems [he] raised." The
record belies his claim. The court found
that Nick had "offered little to no evidence of the political or social
situation in Thailand or that it presents an actual threat or detriment to the
health, safety or welfare of Nicholas."
The evidence supports its finding.
The News.Com article
states that "[a] border fight between Thailand and Cambodia appears to
have cooled after Indonesia this week mediated an agreement to send observers
to the disputed area. But their
militaries remain on high alert.
[¶] [G]unfire along this border this month [February 2011]
left several people dead . . . ."
[¶] An . . . analyst of Thai politics, . . . says the dispute
appears aimed at raising nationalist sentiment ahead of elections this
year." The Embassy notice
"recommend[ed] . . . defer[ing] travel along the Thai-Cambodian
border in the area of the Preah Temple because of a border dispute between
Thailand and Cambodia. Soldiers from the
two countries have been stationed along the border in this area since July 2008
and have exchanged gunfire on several occasions. Until the situation has been resolved, you
should exercise extreme caution if you must travel to areas along the
Thai-Cambodian border where troop activities are reported." The notice also discusses violent protests in
Bangkok and cautioned travelers to remain "vigilant and cautious when
transiting public areas," and to exercise caution, "especially in
locations where Westerners congregate, such as clubs, discos, bars,
restaurants, hotels, places of worship, schools, outdoor recreation venues,
tourist areas, beach resorts, and other places frequented by
foreigners." Unlike its warnings
concerning the Thai-Cambodia border, the notice does not recommend that
travelers "defer travel" to or in Bangkok, where Pat has her
home. It also states that the
"crime threat in Bangkok remains lower than that in many US cities."
In addition, the trial
court found that Nick "led Pat to believe-in writing-that they would both
permanently move to Thailand with Nicholas by 2013, and [Nick] has voluntarily
allowed Nicholas to spend significant time with his mother in Thailand [in
2009], all of which is inconsistent with his claim that the political or social
situation in Thailand is detrimental to the well being of Nicholas. Further, [Nick] has spent time in Thailand,
has had positive experiences there, and he will have the right - and he has the
resources - to visit Nicholas in Thailand . . . ." The court also found that Nicholas already
had established a significant connection with Thailand, its culture and
language, and his extended family there, all with the support of Nick. It found that Pat would be maintaining the
equivalent of a middle to upper middle class lifestyle in Thailand, and
"produced substantial evidence that Nicholas's educational and health care
opportunities in Thailand [would] be as good as or better than here in
California," and that the "cultural differences between the U.S. and
Thailand therefore do not weigh against allowing Nicholas to live in Thailand
for 75% of the year."
3. The Distance Factor
We also reject Nick's
claim that the trial court ignored the distance between Thailand and the United
States. Several provisions of the order,
which are set forth below, expressly recognize and address the distance factor. Nick acknowledges that the court granted him
visitation privileges in Thailand while Nicholas is there. He nonetheless argues that it is unlikely
that he will be able to have the money or time away from his job to travel
there for weeks at a time every year.
Nick asserts that "he is a person of average means and has a
negative cash flow on a monthly basis."
The record indicates otherwise.
The trial court found
that Nick had earned income of $3,701, plus $1,000 from his roommate, and also
received about $4,500 in gift income from his mother each month to cover his
"negative cash flow . . . including his mortgage payment of $3,546 and
property taxes of $584," which Margaret Di Napoli "testified she
would continue to do." The court
further found that Nick lives "in a three-bedroom, two bath . . .
residence that he purchased about three years [before trial and that] his
mother provided about $120,000 for the down payment" which was a loan and
that Nick "thinks he signed a promissory note but has not made any
repayment of the loan." In addition,
it found that "[w]hen Pat stipulated to the current order to pay [Nick]
$255 in child support [Nick] had not disclosed the amount of regular gift
income he received from his mother" on his income and expense declaration.
The statement of
decision reflects that the trial court considered the distance and took steps
to facilitate the policy of Family Code section 3020 which favors
"frequent and continuing contact" between parent and child. For example, it states: "Although the distance between California
and Thailand, and the air travel time, is significant, it does not pose a
significant detriment to the safety and welfare of Nicholas or to the ability
of [Nick] to maintain his parental relationship with his son. One, or another parent will accompany
Nicholas on all flights between Thailand and the U.S., and the court's order
contemplates there shall be only one roundtrip per year unless otherwise agreed
by the parties. Pat is ordered to pay
for all travel by Nicholas between Thailand and California. . . . [Nick]
shall have visitation rights in Thailand . . . as well as
daily visual and voice communication with Nicholas via Skype." It further ordered Pat to pay the cost of all
air fare for the parent accompanying him on his annual trip between the United
States and Thailand.
Moreover, the trial
court found that "[a]ny detriment to [Nick's] relationship with Nicholas
is outweighed by the benefits to Nicholas of allowing him to reside with his
mother in Thailand for three quarters of the year." The record supports that finding. Pat has been his primary caregiver for most
of his life. Her employer allows her to
conduct much of work at home, which provides Nicholas with tremendous access to
her. In Bangkok, he can attend a school
that is equal to or better than California schools and participate in an
English program.
CONCLUSION
In the twenty-seven page
statement of decision, Judge Brown offered a detailed summary and analysis of
the facts of the case giving this court the benefit of his assessment of the
credibility of the witnesses as well as a thorough discussion of the applicable
law. Our duty is to determine if, in
reaching his conclusions, Judge Brown "abused his discretion." He did not.
To the contrary, this case evidences the meticulous application of
judicial discretion necessary to resolve this thorniest of problems. (Condon,
supra, 62 Cal.App.4th at 549 [Justice Johnson's characterization of a trial
court's "Herculean effort" is particularly apt.].) Here, the trial court "reasonably
concluded that the order in question advanced the 'best interest' of the
child." (In re Marriage of Burgess, supra, 13 Cal.4th at p.32;
549.) We give the trial court's
conclusion the "great deference" our standard of review requires of
us. (LaMusga,
supra, 32 Cal.4th at p. 1090.)
"[W]e must permit our superior court judges --guided by statute and
the principles we announced in Burgess--to exercise their own discretion to
fashion orders that best serve the interests of the children in the cases
before them." (Id. at p. 1101.)
DISPOSITION
The judgment is
affirmed. Each party shall bear their
own costs on appeal.
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NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
>
James W. Brown, Judge
Superior Court County of Santa Barbara
______________________________
Matthew E. Palmer for
Plaintiff and Appellant.
Christopher K. Brown for
Defendant and Respondent.
We refer to the
parties by their first names for clarity, not out of disrespect.
On April 13, 2011, Nick filed an in limine
motion for judgment on the pleadings alleging that the Hague Convention
precluded granting Pat's motion because Thailand is not a signatory
thereto. The trial court denied the
motion on multiple grounds, including Nick's failure not meet his evidentiary
burden to support the motion, despite the evidence that Thailand is not a
signatory to the Hague Convention.
