Marriage of Bischler
Filed 2/26/13 Marriage of Bischler CA4/1
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
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of STACIA M.
and NEIL E. BISCHLER.
STACIA M. BISCHLER,
Respondent,
v.
NEIL E. BISCHLER,
Appellant.
D061894
(Super. Ct.
No. D475533)
APPEAL from
an order of the Superior Court of San
Diego County, Robert C. Longstreth, Judge.
Affirmed.
Neil
Bischler appeals from an order denying his motion to modify a
children to move from San Diego County
to live with him in Illinois. He argues the trial court (1) abused its
discretion by failing to consider or make express findings on various issues
and making several improper findings and (2) violated his
case. We reject these contentions and
affirm the order.
FACTUAL
AND PROCEDURAL BACKGROUND
Neil
Bischler (Father) and Stacia Bischler (Mother) separated in 2000 and were
divorced in 2003.
title="">[1] In a final custody order, Mother was given
physical custody of their three children and Father was given visitation. The children have resided primarily with
Mother since the parties' separation in May 2000, and have stayed with Father
in his home in Illinois during
school breaks.
On August 5, 2011 (when the children were
ages 17, 13, and 12), Father filed a motion to modify the child custody
order. Father requested that the court
change the order to award him physical custody of the three children and allow the
children to live with him and his current wife and her children in Illinois. Father alleged that Mother was neglecting the
children; the children were in an unstable living situation and were suffering
emotionally and academically; and it
was in the children's best interests to reside with him.
The hearing
on Father's motion was held on January
12, 2012. Both parties were
represented by counsel; Mother appeared and Father was available
telephonically. By the time of the
hearing, the parties' eldest child was 18 years old and accordingly she was no
longer part of the custody proceedings.
The other two children were ages 14 and 13. The court was presented with declarations
from Father and several other individuals in support of Father; testimony from
Mother; testimony from the parties' 14-year-old son (Son); and a report and
testimony from a Family Court Services (FCS) counselor.
In his
declaration Father stated that he has had little contact with Mother because
she instructs the children to contact him on her behalf. Since December 2008, Mother and the children
had been living with Mother's parents (the grandparents). Father had earlier learned that the
children's uncle, who also lived at the residence, might be using drugs. Father also said that Mother had moved out of
the grandparent's residence without the children to live with her boyfriend;
she only saw the children about every other weekend; and the children felt
Mother had abandoned them. He claimed
Mother was neglecting the children by failing to provide them with supervision
and emotional and financial support.
Father
stated the children's living situation was causing them to suffer emotional
distress, which was reflected in their failing grades at school and in their
engagement in altercations and aggressive behavior at school and home. He presented evidence that during the
previous school year all three children had failing grades, and Son was placed
on an Individual Educational Plan (IEP) and Mother had not notified Father of
this.
Father also
submitted declarations from individuals who attested to Father's close,
positive relationship with his children; his attention to their needs; and his
loving, stable home environment. He
proposed that the parenting plan be reversed so that the children would reside
primarily with him and would visit Mother during school breaks.
Responding
to Father's claims, Mother denied that she moved in with her boyfriend and left
the children to live with her parents. Mother stated that she and the children lived
with her parents for almost three years.
Mother had no knowledge or suspicion that her brother was using drugs. On some weekends Mother stayed at her
boyfriend's home, and the children usually came with her unless she and her
boyfriend were going out of town. She
never moved in with her boyfriend and all of her belongings remained at her
parents' home. Mother and her boyfriend
had now purchased a home, and they were living there with Mother's children and
the boyfriend's children. Mother stated
that Father's claim that the children felt abandoned by her was "pure
fabrication."
Mother
acknowledged the children had failed classes during the previous school year,
but stated their academic performance had improved during the current school
year. The older daughter was going to
graduate from high school in June, and the younger daughter was getting A's and
B's and maybe one C. Son has a
processing deficit and focusing problem that have been addressed through an
IEP; he is receiving after-school tutoring; Mother works with him constantly to
help him with his studies; and she pressures him to do his homework and to get
at least C's. Mother did not tell Father
about Son's IEP because Father had never participated in decisions about the
children. Mother believes Son's maturity
level is below his age level; i.e., at the level of an 11- or 12-year-old. Mother stated she and her boyfriend provide a
stable, enjoyable home environment for the children. She denied that the children were aggressive
or getting into altercations.
name="_ftnref3" title="">[3]
Mother
testified that Father is a long haul truck driver, which requires him to travel
long distances and causes him not to be home three to four or more nights per
week. Father told the FCS counselor that
he is on the road about 25 days each month for five days at a time; however,
when the children are in his care he does not travel outside the county and is
home every evening.
Son
testified that he had a good relationship with his father, he talked to him
regularly, and they had a good summer visitation. Son testified he wanted to live with Father,
explaining that he did not remember having a birthday or Thanksgiving with
Father. He stated he would miss his
sisters if they stayed in California. Regarding his grades, Son testified that the
last school year he failed all of his classes.
However, he had now changed schools; he was receiving after-school
tutoring; his grades were improving; and Mother helped him with his school work
and pressured him to get it done.
The FCS
counselor recommended no change in the custody order. The counselor conducted a conference with
both parents in November 2011, with Father participating telephonically. The counselor reviewed the information
provided by the parties, including the children's living arrangements with
Mother, and recommended that Mother continue to provide the primary
residence. The counselor took into
consideration the children's ages, the parenting schedule practiced by the
parties, the fact Mother has been the primary care provider for the children
since the parents separated in 2000, and the absence of any information from
Father that would warrant a change in custody.
The counselor did not personally interview the children. When queried about this at the hearing, the
counselor explained that no one requested that the children be interviewed
about their preferences, and unless there were safety concerns it was not her
practice to interview children. The
counselor also recommended that Mother be ordered to send to Father on a
monthly basis documents related to the children's health and school
performance, including report cards and parent-teacher conference reports.
The trial
court denied Father's move-away request and adopted the FCS counselor's
recommendations, including regarding the ongoing transmission of school
documents by Mother to Father. When
making its oral ruling at the hearing, the court commented that Mother had
intervened with the children's academic problems and their grades were
improving; Father had not presented any evidence about what school the children
would attend or what resources would be available in Illinois;
and Father had not presented evidence about whether he was "going to be
around." The court also stated that
it was undisputed that Son expressed a preference to live with Father, and the
court took this preference into account.
However, the court stated it did not "find there was a whole lot
behind the preference," and Son's expressed preference was outweighed by
the fact that if he was sent to Illinois,
the siblings would be separated.
DISCUSSION
I.
Contention that Trial Court Abused Its Discretion
Father
argues the trial court abused its discretion in denying his move-away request
because it failed to mention or make findings concerning a variety of relevant
evidentiary items and factors. He
contends the court failed to make findings on such matters as the instability
reflected in the children's failing grades and Mother's leaving the children in
the care of the grandparents; the FCS counselor's failure to interview the
children; and the fact that Mother used the children to communicate with Father
and failed to inform Father about Son's IEP.
Preliminarily,
we note that when it made its oral ruling, the trial court expressly referred
to the issue of the children's grades and set forth its consideration of this
matter. In any event, to the extent the
court did not address the other matters raised by Father on appeal, he has not
shown error in this regard. If a party
wants the trial court to make explicit findings on particular issues, he or she
must request a statement of decision on these issues. (Fam. Code, § 3022.3; In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274;
Hogoboom & King, Cal. Practice Guide, Family Law (2012 Rutter Group) ¶
17-405, p. 17-102.)
title="">[4] A party's failure to request a statement of
decision generally forfeits an appellate challenge based on the lack of express
findings. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647; see
Cal.App.3d at p. 1274.) Absent a request
for specific findings, it will be presumed on appeal that the trial court found
all facts necessary to support the judgment.
(In re Marriage of LaMusga
(2004) 32 Cal.4th 1072, 1093; In re
Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1219;
Cal.App.3d at p. 1274.)
After the
trial court made its oral ruling denying Father's move-away request, the court
directed Father to prepare the court's order.
Father agreed to do so, and Father prepared a written order denying the
move-away request in general terms.
Father never requested specific findings on an issue and never requested
a statement of decision. Under these
circumstances, Father has not shown the trial court abused its discretion by
failing to make findings on any particular points now raised by Father on
appeal.
Father also
raises several challenges that essentially attack the court's ruling on its merits. Father asserts the court erroneously found
that if it granted the move-away request based on Son's testimony that he
wanted to live with Father, it would have to split up the siblings. Father contends this reasoning was improper
because Father had requested that all three children move with him, and the
court erroneously "assumed the [move-away] request was for just one
child."
Contrary to
Father's assertion, the record shows the court understood the move-away request
was for all the children. The materials
provided to the court (including Father's order to show cause, Mother's
opposition pleadings, and the FCS counselor's report) refer to the parties'
three children, state that Father was requesting physical custody of the
children, and say nothing to suggest that Father was requesting physical
custody only of Son. We presume the
court read and understood these materials.
(Evid. Code, § 664 ["It is presumed that official duty has been
regularly performed."].) At the
hearing Father's counsel told the court that Father wanted "the two
remaining minor children" to be in Father's primary care and with
school-break visitation to Mother. When
ruling to adopt the FCS counselor's recommendations, the court stated that it
was excluding the older daughter because she was now 18 years old. The court's written order after the hearing
states, "The Court denies Respondent's request to have the children move
to Illinois." There is nothing in the record to support
Father's contention that the court thought Father was solely seeking physical
custody of Son.
Further,
absent a showing that the other two children would or should go to live with
Father, the trial court could properly consider that an order granting Son's
preference would separate the siblings.
There was no evidence indicating that the older daughter (an adult at
the time of the move-away hearing) intended to elect to live with Father. As to the younger daughter, the record
supports the court's ruling that the custody order should not be changed to
require her to move to Illinois. When a noncustodial parent seeks to change a
permanent physical custody order, "the noncustodial parent has a
substantial burden to show that ' "some significant change in
circumstances indicates that a different arrangement would be in the child's
best interest.". . .' " (In re
Marriage of LaMusga, supra, 32 Cal.4th at p. 1088; In re Marriage of Brown & Yana (2006) 37 Cal.4th 947,
956.) Absent such a showing, the court
" 'should preserve the established mode of custody' " so as to "
'protect[] stable custody arrangements.' "
(LaMusga, supra, at p. 1088.)
Father's
request for a change in custody was primarily premised on Mother's failure to
live with the children at the grandparents' home and the children's failing grades. Mother presented evidence showing that she
never left the children to live with her boyfriend; the children were currently
living with her in a home she has purchased with her boyfriend; and the
children's academic situation is being addressed and has improved. The trial court was entitled to credit this
information and to reject Father's assertion that it was in the children's best
interests to change the long-standing physical custody arrangement.
Father also
contends the court erroneously found there was no evidence he would be able to
care for the children due to his work schedule.
He contends he and his wife submitted declarations "stating
otherwise[,]" and Mother did not provide any evidence indicating his work
schedule would make him unable to care for the children. We presume Father is referring to the trial
court's comment at the hearing that Father did not show whether he was
"going to be around," which appears to be a reference to Father's
absence from his home due to his truck-driving job. Father has not cited to any evidence (in the
declarations he submitted or otherwise) specifically showing how the children
would be cared for in Illinois.
In any
event, even assuming arguendo there was no basis for the trial court to infer
Father would not be able to provide proper care for the children if they
resided primarily with him, the court's comment about Father's absence from the
home does not show it abused its discretion in denying the move-away
request. Father was seeking to
significantly alter the custodial arrangement that had been in place for almost
12 years, and he bore a substantial burden to justify this change. We will not upset the trial court's
discretionary ruling on this issue unless "there is no reasonable basis
upon which the trial court could conclude that its decision advanced the best
interests of the child." (
Cal.App.4th 601, 610.)
As set
forth above, the court's decision was supported by the showing that the
children were now living on a full-time basis with Mother in their own home and
their academic needs were being addressed.
Further, the court properly considered Son's preference to live with
Father (§ 3042), and could reasonably reject Son's request given Mother's
testimony about his level of maturity, the existing IEP addressing his special
academic needs in the current placement and the lack of evidence concerning
resources available in Illinois, and the bond between Son and his two sisters
who would not be moving to Illinois.
changed circumstances warranting a change in the custody order, and we are
satisfied the court would have reached the same conclusion even if it had not
considered Father's absence from the home due to work obligations. (See People
v. Price (1991) 1 Cal.4th 324, 492 [reversal not warranted absent
reasonable probability court would have reached different result had it
realized one of its reasons was erroneous]; see generally In re J.S. (2011) 196 Cal.App.4th 1069, 1078.)
II. Contention
that Trial Court Prejudged the Case and Denied a Full Hearing
Father
argues his due process rights were violated because prior to the conclusion of
his case, the trial court prejudged and decided the move-away issue and
dissuaded his counsel from fully presenting his case. In support, he cites a comment by the trial
court during his counsel's closing argument where the court stated: "I think it's pretty clear-cut on the
move-away." According to Father,
his counsel then rested his case without finishing the closing argument because
it was apparent the court had already decided the move-away issue.
Father's
contention that the trial court prejudged the move-away issue and caused his
counsel to prematurely rest his case is speculative. Before making the comment that the move-away
issue was "pretty clear-cut" the court summarized the evidence that
it viewed as supporting this conclusion.
Thus, it is apparent the court's statement about its assessment of the
issue was based on the evidence, not
on a prejudgment independent of the evidence.
Further, although Father's counsel's closing argument was short and he
rested his case immediately after the court stated its view on the merits,
there is nothing in the record suggesting the court would have prevented
further argument had counsel wished to continue.
Father has
not shown the trial court violated his due process rights.
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] Mother did not file a respondent's brief in the current
appeal, and the appellate record designated by Father is sparse. To assist with our evaluation of Father's
contentions, we have taken judicial notice of the superior court file and have
reviewed it. (Evid. Code, § 452, subd.
(d).)
name="_ftn2" title="">[2] To corroborate his claims, Father submitted a declaration
from a family member (apparently related to Father) who stated the children had
told her about their unhappiness with their current living situation, including
that they felt abandoned by Mother; Mother had not been living with them at the
grandparents' home for over a year; Mother at most visited them one time per
month; and they were concerned about the uncle living at the home who was using
and selling drugs.
