Marriage of Fuesler
Filed 5/17/06 Marriage of Fuesler CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of CHRISTINA and ROBERT FUESLER | |
CHRISTINA SUTTON, Appellant, v. ROBERT FUESLER, Respondent. | D046429 (Super. Ct. No. 73661) |
APPEAL from an order of the Superior Court of Imperial County, Barrett J. Foerster, Judge. Affirmed.
This case involves a modification of a permanent child custody order based on changed circumstances. At the time of dissolution of the parties' marriage, Christina Sutton (Christina) was awarded sole physical custody of the parties' child, Andrew, and Robert Fuesler (Robert) was awarded visitation. In the proceedings underlying this appeal, the trial court changed the custody order to joint physical custody. The basis for the court's order was Andrew's declining academic performance while living with his mother. The trial court ordered that Andrew live with his father in Borrego Springs during the school week to attend high school, and live with his mother in El Centro during the weekends and summer. Christina challenges this order. We affirm.[1]
FACTUAL AND PROCEDURAL BACKGROUND
The parties divorced when Andrew was about one year old. The trial court ordered joint legal custody to the parties, sole physical custody to Christina, and visitation to Robert. Andrew has resided with his mother in El Centro his entire childhood. At the time of trial in January 2005, Andrew was 13 years old, in the eighth grade, and scheduled to commence high school the next school year. During the school year Andrew stayed on alternate weekends with Robert, Robert's second wife, and their two young children at their home in Borrego Springs.
In August 2004, Robert filed a motion requesting that he be awarded physical custody based on changed circumstances. Robert contended that Christina was not providing a stable situation for Andrew, citing a variety of factors including her recent separation from her husband (Judd Neves). Robert also maintained that Andrew's declining academic performance reflected lack of proper parenting by Christina. Andrew's school records showed that in the 2001-2002 school year, he received an " A" grade average (excluding his physical education grade); in the 2002-2003 school year his grade average was " B" ; in the 2003-2004 school year his grade average was " B-/C+" ; and in the first two quarters of the 2004-2005 school year his grade average was " C/C+." In the second quarter of 2004-2005, his grade average was " D+/C-" and he had failed his science class.
To support his request for a change in custody, Robert submitted a declaration from Christina's second husband Neves, whom she married in 1999. Neves set forth his observations regarding Christina's lack of attention to Andrew's academic situation. Neves declared:
" During our marriage, I was very involved in encouraging Andy's school homework. In 6th grade Andy began to lie about having completed homework and his grades reflected his lack of effort. When I attempted to get Andy to complete his homework, Christina would not follow-up on checking Andy's homework. Christina would occasionally take interest in Andy's school performance, but Christina was never consistent, and normally Christina would allow Andy to avoid his homework if Andy so desired." (Emphasis omitted.)
Robert declared that he had supported Andrew's academics by frequently talking to his teachers, volunteering in the classroom, and attending school functions. Further, he checked Andrew's homework on the weekends when Andrew was with him, even if Andrew did not ask for help, and checked his academic performance on the school website. Robert's current wife also described Robert's past involvement with Andrew's schooling.
In response to Robert's motion, Christina explained the circumstances of her separation from Neves, argued she was providing a stable situation for Andrew, and maintained that Andrew continued to get good grades.
The court appointed counsel to represent Andrew regarding the custody issue, and a hearing was held in January and February 2005. The court considered the declarations submitted by the parties, testimony from two psychologists, in chambers testimony by Andrew, and Andrew's school records.
Dr. Robert Simon, the psychologist appearing on behalf of Christina, recognized that Andrew's grades had been deteriorating. Reviewing Andrew's detailed school records for the most recent school year, Dr. Simon observed that Andrew appeared to do well in class and on tests, but that his performance was deficient in study sheets and homework. Dr. Simon acknowledged that a custodial parent had significantly more input regarding the performance of a child's homework than a parent with visitation, and that an important potential cause of homework problems could be the custodial parent's failure to require the child to do the homework. However, based on an evaluation of all the factors involved in Andrew's situation, Dr. Simon opined that a change in custody was not appropriate, and recommended that Andrew remain in El Centro for his schooling but with increased involvement by both parents in his academic life. In contrast, the psychologist who testified as the minor's expert (Dr. Beatrice Heller) opined that a change in custody to Robert would likely improve Andrew's academic performance and that staying in his current situation would not.
Psychological testing revealed that Andrew had above-average intelligence with no learning disabilities. Further, Andrew was well-bonded with both his parents, although the conflict between his parents was stressful for him.
In an in-chambers proceeding, Andrew told the trial court that he aspired to attend the University of Boston, obtain a doctoral degree in calculus, and become an astronaut. When queried about his parents' involvement with his homework, he stated they both helped him when he asked them, and they both " just like[ ] it done." Andrew noted that he had friends in both El Centro and Borrego Springs. He described his activities in Borrego Springs as including attending church, going to the skate park with his friends, and visiting his friend's house to play video games, ride bikes, or go swimming. In El Centro, he did " pretty much" the same thing, including going bowling, playing video games, watching movies and " hang[ing] out" with friends.
Andrew told the court that he preferred having his primary residence in El Centro because he felt " more at home" there. However, in his interview with Dr. Simon, he acknowledged that he would ultimately be " okay" if he moved to Borrego Springs, explaining that he would be upset at first but that he would adjust.
After considering the evidence, the trial court rejected Robert's claim that a change in custody was warranted based on assertions that Christina was not providing Andrew a stable emotional and living environment. However, the court concluded that Andrew's " steadily deteriorating" school performance constituted " a change of circumstance of sufficient and significant magnitude to warrant a modification of the existing child custody orders."
In a detailed statement of decision, the court found that Andrew was " sufficiently gifted and advanced beyond his years in verbal abilities" ; prior school reports reflected that Andrew could perform better; Andrew spoke of his aspirations for the future which showed he was a promising young man aware of his capabilities; and his steadily declining grades were at variance with what he could be accomplishing. The court observed that Andrew's scores from his school reports showed that most of his poor grades were attributable to homework and other out-of-school assignments, whereas his in-school test scores were significantly higher.
The court went on to explain that it was on " [Christina's] watch that Andrew's school performance ha[d] declined," and that Christina had not taken corrective action. The court considered and agreed with Dr. Simon's recognition that the custodial parent generally has a greater impact on a child timely completing homework than does a visiting parent. It also relied on and found persuasive the declarations of Robert and his current wife depicting Robert's involvement with Andrew's schooling, and the declaration of Christina's husband, Neves, reflecting Christina's lack of consistent attention to Andrew's school performance and failure to monitor his homework.
The court also noted it had considered Andrew's wishes, finding that although Andrew expressed a preference to remain in El Centro, he did not express a preference regarding the parent with whom he wished to live. The court, citing the psychologists' agreement that Andrew's " maturity [was] still in a developing stage," stated that it had given due weight to Andrew's wishes, but it was not bound to follow them.
The court concluded:
" In short, it is [Andrew's] declining school performance and [Christina's] lack of monitoring which predominate as a significant change of circumstance such that the court finds it is essential and expedient that a limited change in the existing custody arrangement be made now in order to re-channel [Andrew] toward achieving his full academic potential. While poor grades and study habits have some degree of importance in grade school, they take on much greater significance in high school. Next year, Andrew will be in 9th grade. How well he does will dictate whether or not he goes on to college and to what institution. He should not continue in school as he has done. His capabilities should not be wasted. The court is convinced that at this time, [Robert] and not [Christina], is more committed to helping [Andrew] improve his school performance."
Based on these findings, the trial court changed the custody order to award joint physical custody to both parents. The trial court's initial tentative decision, filed on March 3, 2005, provided for Andrew to attend high school in El Centro, but split the school week between his parents--i.e., with Robert having physical custody on Monday and Tuesday evenings, and Christina having physical custody on Wednesday and Thursday evenings. This arrangement required Andrew to commute approximately one hour between El Centro and Borrego Springs several times during the week.
In its tentative decision, the court invited the parties to propose limited amendments to the joint physical custody arrangement, but stated it was not disposed towards changing the approximately equal time-sharing it had set forth in the tentative decision. At a hearing on March 15, 2005, the court reiterated that its joint physical custody ruling did not have to be implemented in the manner specified in the tentative decision, and suggested there could be other arrangements such as having Andrew live with his father during the school week to attend Borrego Springs High School, and live with his mother in El Centro on weekends and during the summer. The court referred the parties to mediation to try to structure a joint physical custody agreement.
After mediation proved unsuccessful, the parties filed briefs and the matter was orally argued on April 28, 2005. Christina opposed both the split-week arrangement and the Borrego Springs High School proposal. Robert and Andrew's appointed counsel argued in support of the Borrego Springs High School suggestion.
Christina argued that the court did not have enough information about what was causing the decline in the grades, and that it was premature to change the custody arrangement without more information. Robert and counsel for Andrew disagreed, arguing that the court had enough information and that it was in Andrew's best interests that the court make a decision.
The court rejected Christina's argument that it did not have enough information to make a decision. The court adhered to its tentative ruling that the parties should share joint physical custody of approximately equal time. However, the court concluded that Andrew should attend high school in Borrego Springs instead of El Centro, that he should reside with his father during the school week, and that he should reside with his mother in El Centro every weekend (from Friday to Sunday evening) and during the entire summer except for one week prior to the start of school.
DISCUSSION
Christina argues that the court erred in disturbing the long-standing custodial arrangement merely because of a drop in Andrew's grades, and that the trial court should have ordered strategies other than a change in custody to address the academic concerns. She also suggests the court's decision is not supportable because there was insufficient information about the causes of Andrew's decline in performance. She posits it was not proper for the court to blame the problem on her as the custodial parent, noting that there were periods of time when Andrew performed academically well while in her custody. She further supports her arguments by emphasizing that the trial court found no other basis to support a change in custody, and contending that declining grades or the failure to turn in homework is legally insufficient to establish changed circumstances.
In making a custody determination, the trial court must ascertain the best interests of the child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) As an adjunct to the best-interests test, a party seeking to modify a permanent custody order must demonstrate a significant change in circumstances. (Ibid.) " 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." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) Accordingly, to protect the weighty interest in stable custody arrangements, the trial court '" 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.'" (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256; In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956.)
To justify a modification of a permanent custody order, the " change must be substantial: a child will not be removed from the prior custody of one parent and given to the other 'unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.'" (In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) The burden of showing a sufficient change in circumstances is on the party seeking the change in custody. (Id. at p. 731.) " Moreover, although a request for a change of custody is . . . addressed . . . to the sound discretion of the trial judge, he [or she] must exercise that discretion in light of the important policy considerations" applicable to permanent custody orders. (Ibid.) " For this reason appellate courts have been less reluctant to find an abuse of discretion when custody is changed than when it is originally awarded . . . ." (Ibid.)
There is no dispute that Andrew's grades have been significantly declining, and that by the time of trial there were serious concerns about his academic performance. For a child entering high school, this is an important concern given the impact of high school grades on the opportunities to attend college. Further, there was no dispute that Andrew was academically capable of performing well in school, and that he had an interest and the potential to attend college. The record shows that Andrew is a well-adjusted, intelligent young man with high aspirations for himself, and that his declining school performance is inconsistent with his views of his capabilities and his goals for himself. Thus, the record supports a finding that Andrew's declining grades were a significant changed circumstance warranting review of the custody arrangement, and that it was in Andrew's best interests for the court to structure a custodial arrangement that would maximize his likelihood of advancing academically.
The record contains evidence showing that Robert was attentive to and keenly focused on Andrew's academic progress, whereas Christina was not. The trial court credited Robert's statements that he took the initiative to monitor Andrew's homework and academic performance to the extent possible given his limited visitation, and credited Neves's claims that Christina did not make this effort. In Christina's declarations, she merely stated her view (contradicted by school records) that Andrew's grades were good. She did not set forth any efforts on her part to monitor his performance or to facilitate his at-home homework habits. The trial court concluded that the custodial parent had a greater opportunity to track Andrew's out-of-school academic work, and that because Robert had established he was more likely to engage in such monitoring, a change in the custodial arrangement was warranted. The record supports this conclusion.
The trial court's selection of a shared custody arrangement whereby Robert would live with his father during the school week and attend high school in Borrego Springs, and live with his mother on weekends and during summer vacation, was appropriately tied to Andrew's best interests. Andrew's academic needs were addressed by placing him with his father during the school week, and his emotional/social needs were addressed by allowing him to stay in El Centro during off-school periods. Although the trial court's order changed his father's rights from visitation to shared custody, the order did not place Andrew in a milieu where he had no established emotional or social ties. To the contrary, the record shows that during his visits with his father, Andrew had established a social network of friends and pattern of activities in Borrego Springs.
We are not persuaded by Christina's arguments that the court was required to order strategies other than a change in custody, that the court could not modify the custody order without additional information about the causes of Andrew's drop in grades, and that the court improperly " blamed" her for the academic decline. Evaluation of the factors affecting a child's academic performance and selection of corrective strategies can be a complex process. Although more educational testing could have been performed and may still be warranted to evaluate the reasons for Andrew's academic problems, the key issue for the trial court was which parent would be most likely to monitor and facilitate amelioration of the situation. As reflected in our analysis above, the record contained sufficient facts for the trial court to make this determination.
Finally, Christina's argument that the law cannot support a changed-circumstance ruling based on deficient school performance is unavailing. Contrary to Christina's suggestion, the trial court did not render its ruling based on a superficial assessment that Andrew's failure to turn in homework and declining grades was the custodial parent's fault. Rather, the record shows that the court considered the steady decline in Andrew's grades in the context of an intelligent young man who voiced high aspirations and whose noncustodial parent showed a strong interest in working closely to advance his son's academic future. As we stated, if the pattern of grade deterioration continued into high school, Andrew's post-high school academic options would be reduced. The trial court's ruling sought to intervene in the situation to increase the chances that Andrew would have the opportunity to fulfill his aspirations. We do not mean to suggest that a decline in grades will support a change in custody in all cases. However, the circumstances of this case--involving an intellectually bright adolescent who desires to advance academically after high school--support the court's ruling.
We conclude the trial court did not abuse its discretion in finding that Robert carried his burden to show changed circumstances and that Andrew's best interests warranted an order requiring him to live with his father during the school week.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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[1] After briefing was completed and the matter set for oral argument, Robert filed a motion to dismiss Christina's appeal as frivolous and requesting sanctions. We deferred ruling on the motion until consideration of the case on its merits. We conclude the appeal was not frivolous, and accordingly deny Robert's motion.
