Marriage of Cronan

Filed 10/25/06 Marriage of Cronan CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Patricia Ito, Commissioner. Affirmed.

No appearance for Respondent.

Scott Gailen for Appellant.

_________________________

Richard Cronan appeals the custody and visitation orders contained in a judgment on reserved issues entered in this family law matter regarding the dissolution of his marriage to Debra Pryde.^[1] We affirm the judgment.

BACKGROUND

The parties married on October 4, 2002 and separated on February 26, 2003. Debra filed for dissolution on March 3, 2003. Richard and Debra’s son, Christian, was born on April 4, 2003. On April 14, 2003, Debra and Richard signed a temporary stipulation regarding child custody and visitation of Christian. It provided: “1. Both parties shall have joint legal custody of the minor child; 2. [Debra] shall have primary physical custody, without prejudice, of the minor child and shall be permitted to move to Texas with the minor child on a temporary basis until further order of the court or agreement of the parties; 3. [Richard] shall have the right to visit with the minor child every other weekend in Texas. Said visitation with the infant shall be with [Debra] pend[ent]e lite; . . . 6. [Richard] shall acquire health care insurance coverage for the minor child. [Richard] and [Debra] shall each pay one-half (12) of the health insurance coverage premium of the minor child. [Richard] and [Debra] shall each pay one-half (12) of any medical expenses incurred or not covered by said health insurance plan on behalf of the minor child.”

Commencing in January of 2004, the parties amended their agreement regarding visitation to permit Richard to visit Christian for one week every month in California. This agreement was formalized shortly after the mandatory settlement conference held on May 10, 2004.

In advance of the trial of this case, Richard retained a child custody evaluator, Jeffrey Ludlow, PhD, who traveled to Texas to assess Christian’s situation. Ludlow recommended equal custody of Christian if Richard and Debra were in close physical proximity. However, if the parties continue to live hundreds of miles apart, Ludlow recommended Christian remain in mother’s custody under the current visitation arrangement until Christian started kindergarten.

The matter was tried on August 19, 2005. Ludlow testified Debra admitted to him that she signed the Temporary Stipulation because she needed to sign it in order to leave the state. Debra told Ludlow she stayed in California as long as she did because she thought Richard had the right to see his son born. She moved to Texas because she had family support there.

Richard testified the temporary basis of the stipulation was critical to his agreement. Debra threatened that if Richard did not sign the stipulation, she would go to Texas immediately. Richard paid $29,938.31 for Ludlow’s custody evaluation. Richard has paid attorneys fees of $53,550.48 and he has expended $20,743.48 for travel expenses from January of 2004 through August of 2005. Richard has had to borrow money from his mother to pay these travel expenses.

Debra testified she earns $30,000 per year in the insurance business in Texas. She earned $42,000 per year as a teacher in California. However, earnings of $30,000 in Texas are equivalent to $50-55,000 in California. Debra indicated she took maternity leave from her job in California and her position was not going to be renewed for the next school year. Debra moved to Texas to be near her family, whose support she needed in order to raise Christian and her two daughters as a single parent.

Debra closed her testimony by reminding the trial court that Richard previously had been ordered to seek employment but he had not done so. Thus, child support continued to be based on the presumption Richard was unemployed. Debra had not sought additional child support because she understood Richard pays travel expenses to visit Christian.

The trial court commenced its ruling by noting that Debra has been the primary caregiver for Christian’s entire life, two years and four months. Also, Richard has visited the child frequently, notwithstanding the distance, and has developed a strong bond with the child. However, Christian also has a strong bond with his half-sisters. The trial court stated it understood Richard’s feeling he had been tricked into signing the stipulation for temporary removal of Christian to Texas. However, the stipulation does not state that Debra would return to California with Christian and the word temporary seems to acknowledge the move may be temporary in the sense that Debra might be ordered to return to California or the parties might agree that she would return. “Notwithstanding any deception or misunderstanding,” the trial court concluded it was not in Christian’s “best interests to transfer custody from [Debra] to [Richard], given the length of time that [Debra] has been the primary custodial parent. . . . [ and Christian] shares a home with her and his sisters.”

The trial court congratulated Richard for maintaining a strong bond with Christian given the distance involved and the child’s age. However, the trial court rejected Richard’s suggestion Debra moved to Texas for the purpose of interfering with Richard’s visitation with Christian. The trial court chastised Debra for permitting Christian to call her boyfriend “daddy” in Richard’s presence but also scolded Richard for not making a greater effort to contribute to the support of the child.

The trial court adopted Ludlow’s visitation recommendation but increased the length of the visit to ten days rather than one week. The trial court imputed to Richard full-time minimum wage income of $1170 a month and ordered him to pay $43 per month in child support. The trial court indicated it was imputing full-time minimum wage income to Richard because it was unacceptable that he does not have a regular job. “And frankly, I don’t think he is making any effort to get a regular job.” “You have a son and it is your obligation to help support him.” The trial court ordered Richard to pay all costs of transportation, refused his request for reimbursement for Ludlow’s child custody evaluation and denied his request for attorneys fees. The trial court ordered each party to pay one half of Christian’s uncovered medical expenses.

Later in the proceedings, Richard’s counsel indicated Richard had experienced difficulty obtaining employment because his visits with Christian required four days of travel per month. Richard then stated, “and I have to do all the travel and pay for the travel. I can’t afford to keep paying $20,000 a year.” When Richard’s counsel added it was Debra who had moved to Texas, the trial court responded, “she moved. And he pays $43 a month in child support.” Richard then interjected he had been paying $408 per month child support as well as half the child care, medical expenses and health insurance. Thus, Richard actually paid $600 per month. The trial court responded “and now it is going to be $43 per month. And he can pay all the transportation.” Richard again interjected: “transportation is $800, your honor.” The trial court responded, “If you want to skip a visit, he can skip a visit.” Richard responded, “thank you.”

Richard’s counsel again raised the topic of travel expenses. Counsel indicated that, normally, one parent is not required to travel in both directions and thus lose four days in travel time every month. “Why shouldn’t it work both ways where the receiving parent picks up the child?” The trial court responded, “it is unusual for a parent to have a ten-day block of time with a [child] this age. I could make it a short period of time all in Texas, and I’m not. So this is as good as it is going to get for Mr. Cronan right now.” The trial court reiterated that it found it hard to believe Richard was incapable of working at any kind of job. The trial court noted Debra had failed to recognize Christian’s best interests by permitting the child to call her boyfriend “daddy” just as Richard fails to realize that a loving, caring parent should work to help support his child.

CONTENTIONS

Richard contends the trial court abused its discretion in failing to grant him physical custody of Christian or order Debra to return to California with Christian. Alternatively, Richard claims the trial court should have awarded the parties equal physical custody of Christian and should have ordered Debra to pay one-half of the travel expenses related to Richard’s visits with Christian.^[2]

DISCUSSION

Custody and visitation orders are reviewed under the deferential abuse of discretion test. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) An abuse of discretion arises if the trial court’s order exceeded the bounds of reason, considering all the circumstances before it. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598; In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 949-950.)

Richard’s contentions rely primarily on his assertion Debra deceitfully obtained Richard’s agreement to the temporary stipulation. He claims Debra intended to move to Texas on a permanent basis when she presented the stipulation to Richard and she admitted as much to Ludlow. Had Richard known Debra intended to move to Texas on a permanent basis, he would have sought a restraining order to prevent the move. Richard claims the trial court should have considered Debra’s deceit and fraud in fashioning its visitation and custody order.

Richard also argues Debra moved only to thwart his visitation. Richard claims Ludlow’s recommendation of 50/50 custody if the parents were in geographic proximity should apply here because Debra moved to Texas. Richard claims the trial court failed to consider Ludlow’s finding that Debra’s move to Texas with Christian has had a detrimental effect on Christian. Richard asserts he has demonstrated detriment to Christian. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 434.)

Richard also argues he is more stable than Debra because he has been living in California for seven years whereas Debra had not lived in Texas for twelve years when she moved there and she has lived in three different states in the recent past. Richard concludes the trial court should have granted Richard primary custody of Christian or ordered Debra to return to California with Christian.

Alternatively, Richard claims the trial court’s order granting only 10 days per month was unreasonable in light of the travel expenses involved. Richard has expended $20,743 for travel expenses from January of 2004 through August of 2005. He claims he lost his job and his mother has moved to California to help him by loaning money for travel to and from Texas, which costs approximately $2,000 per month. Richard asserts Debra misrepresented that she had been laid off from her job as a teacher in California when, in fact, she resigned. Richard claims Debra earned substantially more income in California as a teacher and her California income should have been used as her income basis. Richard further contends Debra’s annual income of $30,000 in Texas is equivalent to approximately $50,000 in California. Thus, Debra has the ability to contribute to Richard’s travel expenses. Finally, the trial court’s suggestion Richard could “skip a visit” would weaken the parent-child relationship, which would not be in Christian’s best interests. Thus, the trial court should have ordered Debra to pay all travel expenses because she moved to Texas without considering Christian’s best interests. Alternatively, she should pay one half of these expenses.

Richard’s claims uniformly lack merit. The trial court expressly rejected Richard’s argument that Debra moved to Texas in order to frustrate Richard’s visitation with Christian. Similarly, the trial court rejected Richard’s assertion Debra had acted deceitfully in obtaining his consent to the Temporary Stipulation. Thus, each of Richard’s arguments that depends on these assertions fails.

Further, the evidence supports the trial court’s conclusion that Debra moved to Texas to be near her family, whose support she needed to raise three children on her own. The trial court’s finding that it was in Christian’s best interests to remain with Debra and his two sisters in Texas was corroborated by Ludlow’s opinion that “the current arrangement, whereby Christian spends one week each month with Richard, gives the child continued and meaningful contact with both parents, and it is not excessively burdensome on the child, requiring only two transitions between households each month.” Thus, no error appears in the trial court’s refusal to grant Richard primary custody of Christian or in the refusal to order Debra to return to California.

Regarding the assertion Debra should have been ordered to pay one-half of the travel expenses, the trial court’s remarks indicate it disbelieved Richard’s claim he was unable to find work. Thus, the trial court properly could consider the fact Richard effectively paid no child support in ordering Richard to pay all the travel expenses. We reject Richard’s assertion the trial court’s remark that Richard could “skip a visit” demonstrated the trial court misunderstood the child’s best interests. Rather, this remark was intended to denigrate Richard’s argument that he could not afford to pay the travel expenses.

In sum, no abuse of the trial court’s discretion appears.

DISPOSITION

The judgment is affirmed. Richard to bear costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. ALDRICH, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect. (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828, fn. 2; Askew v. Askew (1994) 22 Cal.App.4th 942, 947, fn. 6.)

^[2] In the reply brief, Richard contends, for the first time in these proceedings, that the trial court erroneously ordered him to pay $43 per month in child support. Richard asserts that, based on the income imputed to each of the parties, the trial court should have ordered Debra to pay Richard child support of $43 per month. Richard also claims the trial court improperly ordered him to provide Debra with monthly reports of his attempts to find employment. Richard claims this order violates his right to privacy.

Under well settled principles, a party may not raise new issues for the first time in a reply brief unless some meritorious explanation for the failure to raise the issue in the opening brief is also given. ( Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584; Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn. 11; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)

Richard has not offered any explanation as to why these claims were not raised in the opening brief. Accordingly, we decline to address them.