Marriage of Geiger
Filed 12/12/12 Marriage of Geiger 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 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of NICOLE E.
and DERREN L. GEIGER.
NICOLE E. GAYAN,
Appellant,
v.
DERREN L. GEIGER,
Respondent.
D061114
(Super. Ct.
No. D497487)
APPEAL from
an order of the Superior Court
of
County, Maureen F. Hallahan, Judge. Affirmed.
Nicole E.
Gayan and her ex-husband Derren L. Geiger have lived in different states since
2006 when they entered into a marital
settlement agreement (MSA). Under
the MSA, they have joint legal and physical custody of their two children. The children originally lived with Gayan
during the school year and with Geiger during school breaks. Gayan appeals an order reversing the
parenting schedule based on a substantial change of circumstances.
Gayan
contends this is a so-called "move-away" case because the children
are being removed from her primary custody, and thus the family court erred by
applying a changed circumstances standard of proof rather than requiring a
showing of detriment. We conclude this
is not a move-away case, but even if it could be characterized as such, no
showing of detriment is required when, as here, the parents have joint physical
custody and the modification request is for a change in the parenting
schedule. We also find no merit to
Gayan's contentions reversal is required because the court abused its
discretion by finding the modification was in the children's best interests,
and by excluding evidence in rebuttal to the opinions of a court-appointed
custody evaluator. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The parties
married in 2000, and they lived in Illinois. Their daughter Tanner was born in 2000 and
their son Derren Jr. (Derren) was born in 2002.
The family moved to California
in early 2006 for Geiger's job, and shortly thereafter the parties separated.
A November
2006 judgment of dissolution incorporates the parties' MSA, under which they
have joint legal and physical custody of the children. The parties agreed Gayan and the children
would return to Illinois. The MSA includes a parenting schedule under
which the children lived with Gayan during the school year, and with Geiger
during most of the summer break and other school holidays. The MSA gives the Superior
Court of San
Diego County
continuing jurisdiction over custody and visitation.
In February
2011 Geiger filed an order to show cause (OSC) to reverse the parenting
schedule. One of Geiger's chief
complaints was Gayan's alleged lack of attention to Derren's medical
needs. Geiger's declaration states as
follows: Derren had amblyopia of the
left eye and treatment included eye exercises, and daily prescription eye drops
to and patching of the right eye, which made the left eye work harder. Twice, Gayan failed to pack the eye drops
when Derren went to California. After the latest incident, Geiger tried to
reach Gayan, but she did not return his messages for two days, which required
him to locate Derren's doctor in Illinois
to get the prescription transferred to California. Derren reported to Geiger that Gayan
frequently forgot to administer the eye drops, and he had to remind her. Time was of the essence because Derren had
turned eight years old in May 2010 and, according to his doctor, once a child
reaches that age "it is less likely that the brain can be taught to
strengthen the drifting eye, causing the eye to permanently drift."
Geiger's
declaration also states Derren had a dermatological disorder that caused wart-like
bumps on his body. The condition
required regular visits to the dermatologist for removal of the bumps, and when
Derren arrived in California for
his summer 2010 visit, he had 14 large bumps on his arm that Gayan had left
untreated. Geiger took Derren to the
dermatologist twice that summer, and advised Gayan that follow-up care was
required in Illinois. Instead of taking Derren to a dermatologist,
Gayan took him to a general practitioner after she "picked at one of his
bumps and it wouldn't stop bleeding."
During the Thanksgiving visit, Geiger took Derren to a
dermatologist. Geiger told Gayan that
Derren needed follow-up care in Illinois,
but she did not arrange for the care, and at the winter visit Geiger again took
Derren to a dermatologist.
name="_ftnref2" title="">[2]
In May 2011
Geiger filed a supplemental declaration.
It stated he had spoken with Derren's ophthalmologist in Illinois,
Dr. Gregory Pacelli, who reported that while Gayan "seemed to show concern
for Derren's treatment, it was clear that Derren had not received his eye drops
regularly, and/or that his eye had not been patched" (italics omitted) as
frequently as recommended. Dr. Pacelli
had released Derren from treatment because he had "surpassed the age where
improvements to his vision are likely."
Geiger had scheduled an appointment in June 2011 for Derren at the
Shiley Eye Clinic, at the University
of California, San
Diego, which Geiger claimed "is world-renowned
for [its] pediatric eye expertise."
Gayan's
June 2011 responsive declaration states she consistently took Derren to
appointments with Dr. Pacelli and she always made sure Derren's eye was
patched, but because he had difficulty reading with the patch on in first and
second grades, Dr. Pacelli okayed removal of the patch during reading. She conceded she forgot to pack the eye drops
for the Thanksgiving visit, but she did pack them for the winter visit. She asked Dr. Pacelli if missing an
occasional dose of the eye drops would have caused Darren a problem, and he
said no and despite consistent treatment Derren's eye condition had not
improved over the years.
Gayan's
declaration also states she took Derren to his general doctor about his skin
condition before his scheduled trip to California. The doctor referred Derren to a
dermatologist, but an appointment was not available before the visit. Gayan asked Geiger to take him to a
dermatologist in California and
"he did not seem to have a problem with that." Derren did have dermatology treatments in
Illinois when he returned home, and the condition had cleared up. She denied picking at one of his bumps, and
claimed Derren told her his father "popped" it.
Gayan's
declaration also described the children's lives with her in Illinois. Derren played basketball and baseball. Tanner played basketball and softball, took
riding lessons, and was a member of the band.
Both children were members of a swim team and Gayan helped with
coaching. The family routinely had
dinner together, and went hiking and camping.
The family regularly attended church and Sunday school, and Tanner
belonged to a church youth group and she was an acolyte. When Gayan trained for runs, the children
rode alongside her on their bikes and Tanner participated in a children's
charity run. Gayan has a flexible work
schedule so she can attend the children's school and extracurricular
activities, and there were many family members near the children in Illinois.
Lynn
Waldman, a mediator with Family Court Services, issued a report in June
2011. Waldman interviewed the parents,
but not the children. She recommended
the continuation of Gayan as the primary custodial parent, because the children
"most likely have developed a routine in her care and roots in the
community where they live." Waldman
wrote, "[a]lthough the father has stated many concerns regarding the
mother's care for [the] children there does not appear to be a reason for
change in their primary residence at this time." Waldman noted that most of Geiger's
complaints appeared to have occurred in 2008, but he allowed the children to
remain with Gayan.
title="">[4]
Waldman
also noted that insofar as Derren's eye condition was concerned, Geiger
"has not presented any information regarding whether or not Derren's needs
have been met." Gayan reported that
Dr. Pacelli discontinued treatment.
Geiger reported he was unsure of whether he agreed with the
discontinuation of treatment, and he planned to take Derren to the Shiley Eye
Center that summer. Waldman recommended
that Derren have an ophthalmology assessment by a jointly chosen doctor, and
that the parents follow his or her recommendations. Waldman was concerned about the parents'
inability to communicate in the best interests of the children, and she
recommended that the parents participate in counseling.
After
Waldman issued her report, Geiger filed a reply declaration. It states that Dr. Shira Robbins had
evaluated Derren at the Shiley Eye Center, and she was extremely concerned with
diminished vision in his left eye. She
wrote a new prescription for him and set up a treatment schedule, which he had
begun. Geiger believed a change in
primary custody was Derren's "last real chance to correct a very
potentially disabling visual condition, which could affect him throughout the
rest of his life." Further, Gayan had only recently begun taking
Derren to a dermatologist.
The hearing
began in late June 2011. After the
testimony of Waldman and the parties, the court appointed a custody evaluator,
John C. Parker IV, Ph.D. (Fam. Code,
§ 3111.)
title="">[5] The court instructed Dr. Parker to interview the
children and the parties, and to assess the children's view of "their
medical needs, school progress and tutoring," as well as "the
atmosphere in mother's home and father's home, the care of them by mother and
father, the children's attachments and connects [sic] to friends and family in Ottawa, Illinois, and the children's
attachments and connects [sic] in San
Diego."
Dr.
Parker's report states, "both children enjoy a strong bond and attachment
with both parents," and "the children are bright, verbal, well
socialized, socially adept, and socially outgoing." It was evident, however, that they were
"experiencing psychological distress and tension" because they sense
the parents dislike each other and communicate poorly. The report explains that Tanner was
"somewhat parentified," meaning she was cautious in sharing
information with her parents. Dr. Parker
agreed with Waldman that the principal problem was the parents' inability to
communicate effectively for the children's sake.
Further,
the report states "Derren . . . clearly is
experiencing tension and distress with regard to his medical treatment and/or
medical follow-up, particularly with regard to his vision therapy." Derren understood that Dr. Pacelli, whom he
referred to as the "no" doctor, discontinued treatment because no
benefit was likely to occur, and Dr. Robbins, whom he referred to as the
"yes" doctor, believed there was an opportunity for further treatment
and improvement. The report explains,
"Derren . . . feels somewhat confused and distressed
with regard to his perception that his mom sometimes forgets about vision
treatment.
Derren . . . indicates he sometimes needs to remind
her with regard to his vision treatment.
Derren . . . is particularly distressed with regard
to his mother getting caught up in the flurry of the pressures of the routine
of the moment, and simply not making time to prioritize his treatment,
especially when he has reminded her of [the] same. Derren . . . clearly
expressed . . . feeling more cared for and safer with his
father.
Derren . . . indicates his father never
forgets.
Derren . . . is adamantly expressing a preference to
follow the direction of the yes doctor.
He optimistically views the yes doctor as being able to assist him in
improving his vision. Derren . . . reports
currently observing improvement when he removes his patch."
In closing,
Dr. Parker wrote that both parents "offer significant benefits and skill
sets" to the children. It was
evident from the children, however, that "the organizational capacity and
capacity for sustained effort with regard to accommodating and supporting their
academic, social and medical needs leads them to be comfortable and feel safe
with father independent of the . . . greater activity
resources available in urban San Diego.
They do however enjoy and favor these benefits too. Likewise, mother's more laissez-faire and
relaxed parenting style may, particularly within the context of more rural
Ott[a]wa, and fabulous access to family and extended family, lead the children
to prefer her companionship during less structured time."
On the last
day of the hearing, the court struck a declaration Gayan had filed in response
to Dr. Parker's report. Further, the
court did not allow Gayan to testify in rebuttal to the report. The court did allow the parties to examine
Dr. Parker. He testified that Derren
expressed frustration over his math grade.
Because of his eye condition, he sometimes could not see whether there
was a plus or a times symbol before a number.
The court accepted Derren's records from the Shiley Eye Center, which
showed improved vision in his left eye after recent patch treatment.
As to the
parents, Dr. Parker testified that "mother tends to underreport for fear
of criticism, and father appears to overreport for fear that the children will
be harmed." Gayan tended to react
to problems when they arose, and Geiger tended to be proactive. When Geiger proposed tutoring and psychological
counseling for the children, Gayan initially opposed both measures. Dr. Parker testified that Gayan's refusal to
agree to these measures until the OSC was pending demonstrated her tendency to
be reactive rather than proactive. He
characterized Geiger as more stable and reliable, and Gayan as "do[ing]
less well." He also believed the
children's scholastic performance would suffer in the future if they continued
to be distressed and tense. He also
believed that if the parenting schedule was reversed, the children would handle
it well because they already spent substantial time in California.
The court
found the OSC was for a change in primary custody, and thus a changed
circumstances standard applied. It
rejected Gayan's argument this was a move-away case, and thus it determined
Geiger was not required to show detriment to the children absent a move to
California.
The court
reversed the parenting schedule, relying principally on Dr. Parker's
report. The court determined Derren
"has a significant medical condition that needs to be
addressed . . . in a consistent and appropriate
manner," and Gayan "is not as good at follow-through with either the
protocol set forth with the medical conditions of Darren and other
issues." The court also found
Tanner "is greatly influenced by her mother," and "is attempting
to meet the emotional needs of the parents."
DISCUSSION
I
Applicable Legal
Standard
Gayan
contends the family court erred by applying a changed circumstances standard of
proof. She asserts the proposed
relocation of the children to California during the school year made this a
move-away case because of the children's interest in stability in their living
arrangements, and thus Geiger was required to show the status quo was
law we review independently. (
Cal.App.4th 1371, 1378.)
When the
family court makes an initial permanent custody order, a best interest standard
applies. The court "must look to
best interest of the minor child." (
Cal.4th 25, 31-32 (Burgess).) When the court considers a request for
modification of a permanent custody order, a "variation on the best
interest standard, known as the changed circumstance rule," typically
applies. (In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 956.) "Under the changed circumstances 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." (Ibid.)
There are
two types of move-away cases, depending on the nature of the parents' physical
custody of the children. A parent with
to change the residence of the child, subject to the power of the court to
restrain a removal that would prejudice the rights or welfare of the
child." (§ 7501, subd.
(a).) This rule codifies the holding in
public policy in California.
(§ 7501, subd. (b).) In
with sole physical custody, who in good faith seeks to relocate, has no burden
to prove the relocation is "necessary." (Burgess,
at p. 37.) Rather, the noncustodial
parent seeking a change of custody based on the children's proposed relocation
has the burden of proving a substantial change in circumstances. (Id.
at pp. 37-38.) In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1078 (
"noncustodial parent bears the initial burden of showing that the proposed
relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the
children's custody." (Italics
added.)
Gayan
relies on Burgess and
A different rule attains, however, in a move-away case when the parents
have joint physical custody, and the
requested modification alters the parenting schedule, but not the joint
physical custody arrangement.
name="_ftnref6" title="">[6] In such a case, even changed circumstances
are not required. The
"different analysis may be required when parents share joint physical custody of the minor children under an
existing order and in fact, and one parent seeks to relocate with the minor
children. In such cases, the custody
order 'may be modified or terminated upon the petition of one or both parents
or on the court's own motion if it is shown that the best interest of the child
requires modification or termination of the order.' [Citation.]
The trial court must determine de novo what arrangement for primary
custody is in the best interest of
the minor children." (
40, fn. 12, italics added; § 3087 ["An order for joint custody may be
modified . . . upon the petition of one or both parents or
on the court's own motion if it is shown that the best interest of the child requires
modification."].)
Appellate
courts have uniformly held detriment is not at issue in a joint custody
move-away case. For instance,
344, 363-364, explains: "When the
parents have joint physical custody, modification of the coparenting
arrangements is not a change of custody requiring change of circumstances. Instead, the trial court has wide discretion
to choose a parenting plan that is in the best
interest of the child.
[Citation.] The joint custody
moving parent does not have the presumptive right to change the child's
residence, and bears no burden of proving the move is essential or
imperative. [Citation.] Nor does the opposing nonmovant parent bear
the burden of showing substantial changed circumstances require a change in custody
or that the move will be detrimental to the child. [¶]
The value in preserving an established custodial arrangement and
maintaining stability in a child's life is obvious. But when the status quo is no longer viable
and parents have joint custody, a court must review de novo the best interest
of the child. It can fashion a new
time-share arrangement for the parents."
(See also Jacob A. v. C.H. (2011)
196 Cal.App.4th 1591, 1599-1600 (Jacob A.);
Enrique M. v. Angelina V. (2004) 121
Cal.App.4th 1371, 1381-1382; In re
Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1510.)
We agree
with the family court that this is not a move-away case. In the typical move-away case, a parent with
joint custody intends to relocate and the relocation would make it impossible
or imprudent to maintain the original parenting schedule. Here, the parents were living in different
states when the MSA was entered into and there was no inherent reason the original parenting schedule could not be
maintained. Rather, Geiger sought a
reversal of the schedule on the ground Derren's medical conditions and Gayan's
alleged lack of attention to them constituted a substantial change in
circumstances.
Moreover,
even if the court had classified this as a move-away case, no showing of
detriment was required. In that
instance, the court presumably would have applied the best interest standard
rather than the more stringent changed circumstance rule, arguably a worse
result for Gayan. A best interest
standard applies in joint custody move-away cases, even when a significant
change in the parenting schedule is required because of the distance between
the parents' homes. (See, e.g.,
at pp. 348-349 [equal time-sharing substantially modified after child's
relocation out-of-state]; Jacob A.,
In arguing
the court erred by not applying a detriment standard, Gayan relies on secondary
sources, and even poetry, on the importance of stability in children's living
arrangements. Indeed, the "decision
to move a child away from one of his or her parents is one of the most
difficult decisions a judge will ever have to make." (Jacob
A., supra, 196 Cal.App.4th at p. 1603.)
Here, the family court described this as "one of the most difficult
cases that I have confronted on the bench." It remains, however, that in addressing
Gayan's argument the court was required to follow established legal precedent. We find no error in the court's application
of a changed circumstances standard.
II
Exercise of
Discretion
Gayan also
contends that under any standard, the family court's ruling constitutes abuse
of discretion. "The standard of
appellate review of custody and visitation orders is the deferential abuse of
discretion test. [Citation.] The precise measure is whether the trial
court could have reasonably concluded that the order in question advanced the
'best interest' of the child." (
32.) "Although precise definition
is difficult, it is generally accepted that the appropriate test of abuse of
discretion is whether or not the trial court exceeded the bounds of reason, all
of the circumstances before it being considered." (In re
Marriage of Connolly (1979) 23 Cal.3d 590, 598.)
Gayan
focuses solely on the children's interest in stability. Her attorney violates basic principles of
appellate practice by citing only the evidence favorable to her, and ignoring
the evidence in support of the court's ruling.
Gayan's briefing ignores Derren's medical conditions and Dr. Parker's
findings. An appellant's opening brief
shall "[p]rovide a summary of the significant
facts . . . ."
(Cal. Rules of Court, rule 8.204(a)(2)(C).) "[A]n attack on the evidence without a
fair statement of the evidence is entitled to no consideration when it is
apparent that a substantial amount of evidence was received on behalf of the
respondent. [Citation.] Thus, appellants who challenge the decision
of the trial court based upon the absence of substantial evidence to support it
' "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless
this is done the error is deemed waived." ' " (Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246; In
re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.)
In any
event, we find no abuse of discretion.
" '[W]e are bound by the established rules of appellate review that
all factual matters will be viewed most favorably to the prevailing party
[citations] and in support of the judgment [citation]. All issues of credibility are likewise within
the province of the trier of fact.' "
(Catherine D. v. Dennis B. (1990)
220 Cal.App.3d 922, 931.) " '
"The trial judge, having heard the evidence, observed the witnesses, their
demeanor, attitude, candor or lack of candor, is best qualified to pass upon
and determine the factual issues presented by their testimony. This is especially true where the custody of
minor children is involved." ' "
(Ibid.)
We conclude
the evidence permitted the family court to reasonably find changed
circumstances based on Derren's medical conditions, particularly his amblyopia,
the effect of the amblyopia on him, the potential that further treatment may
succeed or at least improve the condition, and the greater likelihood that
Geiger would follow through with ensuring treatment. The amblyopia threatened Derren's vision and
his emotional well-being, and given his age there was limited time within which
additional treatment might be effective.
Dr. Robbins of the Shiley Eye Institute was concerned about Derren's
loss of vision, she offered further treatment, and there was some early
indication of improvement. After
interviewing Derren, Dr. Parker wrote in his report that Derren was
"somewhat confused and distressed" because his mother sometimes
forgot his treatments. Derren felt
"more cared for and safer" with his father, who never forgot
treatments, and Dr. Parker found Geiger to be more stable and reliable than
Gayan. In the past, Gayan had not consistently
provided Derren the treatment Dr. Pacelli prescribed.
As to
Tanner, Dr. Parker determined she had become "somewhat parentified"
and tried to protect her mother. While
this is a weak ground for reversal of the parenting schedule as to Tanner,
Gayan does not suggest the children should have been separated.
III
Evidentiary
Rulings
Lastly,
Gayan contends the family court violated her constitutional rights of due
process by striking her declaration and excluding her testimony in rebuttal to
Dr. Parker's report. Geiger counters
that she waived appellate review of the constitutional issue by raising it for
the first time on appeal. " '
"Typically, constitutional issues not raised in earlier civil proceedings
are waived on appeal." ' " (
Cal.App.4th 240, 254.)
Gayan
argues the forfeiture rule is inapplicable because a due process challenge
would have been futile. She cites the
court's comment before Dr. Parker's testimony that "no other testimony of
either parent is going to be admissible today as they submitted their cases at
the last hearing." "
'Reviewing courts have traditionally excused parties for failing to raise an
issue at trial where an objection would have been futile or wholly unsupported
by substantive law then in existence.' "
(K.C. Multimedia, Inc. v. Bank of
America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 949.)
Assuming
futility, we nonetheless find against Gayan.
" 'No judgment shall be set aside . . . in any
cause, on the ground of . . . the improper admission or
rejection of evidence . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.) Under this standard, the appellant bears the
burden to show it is reasonably probable he or she would have received a more
favorable result at trial had the error not occurred." (Citizens
for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 308.)
Gayan
ignores her burden of showing prejudice, and thus her position lacks
merit. She does not discuss the contents
of her declaration or proposed testimony, or explain why it is likely she would
have prevailed had her evidence been admitted.
We decline Gayan's tacit request that we comb through the record in
search of reversible error. "As a
general rule, 'The reviewing court is not required to make an independent,
unassisted study of the record in search of error or grounds to support the
judgment.' [Citations.] It is the duty of counsel to refer the
reviewing court to the portion of the record which supports appellant's
contentions on appeal. [Citation.] If no citation 'is furnished on a particular
point, the court may treat it as waived.' " (Guthrey
v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
DISPOSITION
The order
is affirmed. Geiger is entitled to costs
on appeal.
McCONNELL,
P. J.
WE CONCUR:
BENKE, J.
IRION, J.
name="_ftn1" title="">[1] As the appellate record does not contain the judgment of
dissolution and attached MSA and other relevant documents, we have taken
judicial notice of the superior court file on our own motion. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
name="_ftn2" title="">[2] Additionally, Geiger claimed the children's school
performances had declined. The evidence,
however, did not support this claim and the family court impliedly rejected it.
