Marriage of Gruneisen
Filed 10/19/10 Marriage of Gruneisen CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of DIANNE E.
and DONALD L. GRUNEISEN.
DIANNE E. GRUNEISEN,
Respondent,
v.
DONALD L. GRUNEISEN,
Appellant.
D056512
(Super. Ct.
No. ED62197)
APPEAL from
orders of the Superior Court
of San Diego
County, Joel R. Wohlfeil, Judge. Affirmed as modified.
Appellant Donald L.
Gruneisen (Father)
appeals from October 2009 postjudgment orders denying modification of his child
support obligation, and also granting a modification of visitation orders, in the dissolution
action between Father and his former wife, Dianne E. Gruneisen (Mother).[1]
With respect to child support,
Father contends the family court abused or failed to exercise its
discretion, by not making statutorily required findings about Father's and
Mother's current levels of income, which he argues amounted to significant
changed circumstances from the time of judgment. Instead, the court denied Father's modification
request, essentially finding he had presented insufficient, unreliable, or
untrustworthy evidence to justify modification of the existing 2006 support
order. (Fam. Code,[2] § 4052, 4058, 4059; Burchard v. Garay (1986) 42 Cal.3d 531, 533-535, 539-541 (
Regarding the visitation and custody issues, Father contends the family
court erred in ordering a change in visitation, without any adequate supporting
finding of changed circumstances to modify existing co-parenting orders. Father relies on the important values of
stability and continuity in custody matters.
(Burchard,
pp.
533-535, 539-541; § 3040.)
Our review of the entire record
persuades us that the family court had an adequate basis to exercise its discretion
in the manner it did on both the child support and visitation issues. We affirm the November 2, 2009 order
after the October 6, 2009 hearing, as it is now modified to incorporate by
reference the court's amended findings after hearing, dated October 7, 2009, on
the same visitation issue. (Code Civ.
Proc., § 43.) We explain.
I
We set forth only those facts
that are relevant to the issues on appeal concerning the child support and
visitation matters. The record shows
that Mother filed the petition for dissolution of marriage in 2004, and the
judgment on reserved issues, including joint legal custody, support orders, and
holiday visitation orders, was filed July
25, 2006. Father was ordered
to pay $68 per month child support to Mother.
After a family court services (FCS) mediator made recommendations at
that time, a limited holiday visitation schedule was ordered (respective
religious holidays to Mother (Jewish holidays) and Father (Catholic holidays)).
However,
visitation conflict continued. On
September 26, 2006, the court issued an order after hearing that modified the
existing custody and visitation orders, to provide that the shared parenting
order of one week with Mother and one week with Father would remain in effect,
and that for holidays, the children will be with the parent who has the
children on that particular day that the holiday falls on. Regarding joint legal custody, the court
stated that if there is a disagreement between the parents relative to the
health, education and welfare of the children, Father's decision shall prevail.
In October
2008, this series of motions began, challenging the existing support and
visitation orders. At that time, the
children were ages 12 and 10, and the custody arrangement was 50-50. Father sought to reduce his support
obligation of $68 per month, based on his claim of $2,271 average monthly
income, with expenses that were approximately $500 greater than that (amounting
to a 10 percent increase in Father's income since judgment). Father estimated that Mother now had a
monthly income of approximately $5,675 (amounting to more than a 200 percent
increase in her income). The parties provided income and expense declarations.
Mother
opposed Father's motion, arguing his figures were inaccurate and Father
remained significantly underemployed.
For several years before the dissolution petition was filed in 2004,
Father had worked as a design engineer in the electronics industry and made
more money than he did now (approximately $70,000 per year). He then worked part-time as an electronics
store salesman for a few years. At the
time of the hearing, he was self-employed, operating a consulting business.
Mother
filed her own modification petition January
6, 2009, requesting on the support issue that the court order
Father to submit to an employment evaluation and to make 10 job contacts per
week in suitable employment, among other things. On the visitation issue, the court ordered
the matter to be sent to a fourth appointment of FCS mediation, and a new
report was issued February 3, 2009,
discussing visitation issues, particularly for religious holidays. The report made recommendations providing for
Mother to have such visitation on certain Jewish holidays, and Father to have
Christmas and Easter. The court held a
hearing February 17, 2009,
initially adopting those holiday and school break schedule recommendations, and
continuing the matter to April 21,
2009.
At the April 21, 2009 hearing, several
pending matters were before the court, including a motion by Father to quash
Mother's motion or to set aside the recent visitation orders. Ultimately, after a contested ex parte
hearing on July 27, 2009
about the content of the ruling at that hearing, the court signed an order
after hearing for April 21, which changed the visitation provisions by
returning to the 2006 judgment's custody and visitation schedule, and ordering
further FCS mediation. Another hearing
date was set for June 30, 2009.
Apparently,
the June hearing was continued until October
6, 2009, and the parties continued to dispute the visitation and
support issues. The parties provided new
declarations, including income and expense declarations. Father represented that he had an average
monthly income of approximately $1,930, with expenses of $2,980. Father also provided his 2007 IRS Form 1040,
schedule C, stating his gross income was $22,515. Father also declared that although Mother
wanted visitation on the Jewish holidays, she would not agree to allow him to
have visitation when New Year's Day fell on a Sunday, which was a Catholic
holiday of obligation for attending Mass.
Mother's
income and expense declarations stated that her average monthly income was
$4,775 (less than the $6,034 that Father estimated for her). Mother proposed further mediation for
subsequent visitation disagreements.
At the October 6, 2009 hearing, the court
had before it Father's pending OSC filed October 1, 2008 (modification of support), which had been
continued several times, as well as his OSC filed on April 10, 2009 (visitation). Also before the court at that time was
Mother's OSC filed on January 6,
2009 (visitation). The court
had the FCS report dated February 3,
2009 before it, and heard argument.
The court orally ruled that Mother's request to modify
custody/visitation or the parenting plan was denied, for failure to carry her
burden that a material change of circumstances had occurred. Regarding child support, the court denied
Father's request to modify child support based upon either an increase or a
decrease in income by either parent, thus leaving the existing child support
order as is. The family court expressly
stated that it did not find Father's income evidence to be trustworthy.
Counsel for
Father prepared the formal order after the October 6, 2009 hearing, but it was not filed until November 2, 2009 (the
"FAOAH"). In the interim, on October 7, 2009, the court
issued and served its "Amended Findings and Orders After Hearing,"
which states as follows on the visitation issue:
"After
reviewing the pleadings and hearing
arguments from Petitioner and Respondent's counsel, the Court made a series
of findings and orders at the conclusion of which Respondent's counsel was
directed to prepare the Findings and Orders After Hearing ("FAOAH")
and submit them directly to the Court with a copy to Petitioner. [¶] Upon further reflection and re-review of the
pleadings, the Court directs that the
following modification to the parenting plan be incorporated into the
"FAOAH": [¶]
[incorporating the referenced recommendations in the FCS report dated
February 3, 2009, which provide that under its § 5(g), (h) and (j),
the children shall be in Mother's care for Rosh Hashanah, Yom Kippur and
Passover]. All other findings and orders
remained in effect." (Italics
added.)
In the
November 2 "FAOAH", regarding child support, the court made specific
findings (to be discussed in pts. II and III, post), and orders as follows:
"1. The Court denies all of Mother's motions related
to property issues.
"2. The Court denies Mother's request for an
Employment Evaluation of Father.
"3. The Court denies Mother's motion for job
contacts by Father.
"4. The Court denies Mother's request for
refinance of the mortgage on Father's residence.
"5. The Court denies Mother's request for
appointment of a mediator to resolve issues and/or disputes regarding custody
and/or visitation of the minor children.
"6. The Court denies both parties' requests for a
contribution of attorneys' fees and/or costs."
Although
the November 2 "FAOAH" states as "findings" that Mother's
requested visitation modification was denied and no change of circumstances has
occurred, it also does not reference in any way the October 7 "Amended
Findings and Orders After Hearing," on the visitation issue. In his notice of appeal, Father has
referenced both the November 2, 2009
"FAOAH", and the October 7,
2009 "Amended Findings and Order After Hearing."
II
A. Rules of Review; Statutory Standards
Child support awards are reviewed
for abuse of discretion. (
Cal.App.4th 1353, 1366.) The appellate
court reviews the record to determine if the court's factual determinations are supported by
substantial evidence: "Our
review is limited to determining whether the court's factual determinations are
supported by substantial evidence and whether the court acted reasonably in
exercising its discretion. [Citation.] We do not substitute our judgment for that of
the trial court, but confine ourselves to determining whether any judge could
have reasonably made the challenged order.
[Citation.]" (
The trial court must
exercise "an informed and considered discretion" with respect to
child support obligations, and must not "ignore or contravene the purposes
of the law regarding . . . child support. [Citations.]" (In
re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283;
1425; § 4053 [each parent should support child to extent of
ability].) On appeal of a child support
award, the family court's interpretation of statutory definitions of income
will be reviewed de novo. (In re
Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1371-1372.)
"A judgment or order of a lower
court is presumed to be correct on appeal, and all intendments and presumptions
are indulged in favor of its correctness."
(In re Marriage of
that a prejudicial abuse of discretion occurred. (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1291.)
B. Analysis
In arguing
abuse of discretion, or failure to exercise it, Father essentially complains
that the trial court failed to follow the statutory scheme for computing
Father's gross and net disposable income, in connection with applying child
support guidelines. (§§ 4052, 4058,
4059.) Father complains that the court
did not use the tools available to it, such as an employment evaluation or imputed
income principles.
Father thus
argues the court incorrectly evaluated his declarations when it found that
Father has greater ability to earn than is reflected in his current income,
such that the existing support orders should remain in place. The "FAOAH" of November 2, 2009 states: "The [c]ourt makes the following
findings after having reviewed the file, prior [c]ourt transcripts, and having
heard from the parties and/or their attorneys:
[¶] 1. The conflict between
Mother and Father has not diminished as it relates to the minor children. [¶] . . . [¶] [¶] 3.
Father's earning capacity substantially exceeds what he claims he is
making. [¶] 4. The
Court cannot determine what Father's income is even considering the prior
judgment related to imputing income to Father and Father's current filings." (Italics added.)
In bringing
his modification request, Father had the burden to show that the current
$68/month support obligation was not appropriate, based upon his average
monthly income of around $1,930 to $2,271.
(In re Marriage of Bardzik
(2008) 165 Cal.App.4th 1291, 1303-1304.)
He mainly based his arguments on a claim that Mother's income had
increased to over $5,000 per month, so that Mother must not need any child
support. Regarding his own showing, he
opposed undergoing any employment evaluation, as Mother was requesting, and he
did not otherwise document his earning capacity. Nor did he supply enough information to
enable the court to more completely apply the available statutory tools, in
order to better implement the statutory policies promoting appropriate levels
of child support. (§ 4053, subds.
(a), (d), (e), (f).)
Father's
arguments challenging the support ruling are therefore unpersuasive, because
the trial court expressly indicated that it had scrutinized Father's factual
showing about the change in income for Father since the 2006 judgment was
entered, and that showing was not "trustworthy." Therefore, the court stated it was "simply
not comfortable in being able to reasonably evaluate how much, if at all,
Father's income has increased since the date the judgment was
entered." It was not the fault of
the court that Father fell well short of demonstrating any significant change
of circumstances to justify changing the existing orders, whether it pertained
to his own income or to Mother's. The
proper policies relating to child support obligations of each parent were
properly considered here. (§ 4053,
subds. (a), (d), (e), (f).) On appeal,
Father has likewise failed to show entitlement to relief. (Maria
P. v. Riles, supra,
III
A. Rules of Review; Statutory Standards
When reviewing courts
evaluate a superior court custody or visitation ruling, they inquire
" 'whether the trial court could have reasonably concluded that the
order in question advanced the "best interest" of the
child.' " (
We seek to determine whether the trial court "exceeded the bounds
of reason, all of the circumstances before it being considered. [Citation.]" (In re
Marriage of Loyd (2003) 106 Cal.App.4th 754, 758-759.)
When a trial court makes an initial
custody determination, it has " ' "the widest discretion to
choose a parenting plan that is in the best interest of the child." ' [Citation.]
It must look to all the
circumstances bearing on the best interest of the minor child. [Citation.]" (LaMusga,
supra, 32 Cal.4th 1072, 1087;
The considerations and interests in both initial custody determinations
and "change of circumstances" custody matters are closely
interrelated. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, 37, fn. 8;
§ 7501.) " 'The [changed
circumstance] rule requires that one identify a prior custody decision based
upon circumstances then existing which rendered that decision in the best
interest of the child. The court can
then inquire whether alleged new circumstances represent a significant change
from preexisting circumstances, requiring reevaluation of the child's
custody.' " (
p.
37.)
Where, as here, the parents share
legal and physical custody, a trial court has the discretion to modify
visitation orders, even without any demonstration of changed circumstances
clearly demanding such changes. (
Cal.App.4th 1371, 1381; Burgess,
parenting time, are treated differently than outright requests to modify
custody. (Ibid.) Regarding requests to
alter a parenting schedule (that fall short of requests to modify a joint
custody arrangement), " 'the changed-circumstance rule should be
flexible and should reflect the changing needs of children as they grow up. . .
.' " (Enrique M., supra, at p.
1382.)
B. Analysis
Here, we had several judicial
custody/visitation determinations. The
record first shows the 2006 judgment (allowing holiday visitation), and then
the September 2006 modification (requiring a strict week on/week off schedule,
holidays notwithstanding). FCS mediators
made 2006 and 2009 recommendations, both of which made the respective religious
holiday recommendations.
From the time of the February 17
hearing, through the April 21 hearing, through the July 27 ex parte hearing,
the parties continued to dispute an appropriate holiday visitation schedule,
among other things. At the October 6, 2009 hearing, the court observed
that despite all the conflict between the parents, the children appeared to be
doing well. Essentially, the court then
rebuked both parties for trying to bring New Year's Day into the religious
holiday calculation, and for continuing to maintain a high decibel level of
disagreements and failing to cooperate with one another, particularly on the holiday
issue.
Regarding
the visitation/holiday orders, the issues on appeal are complicated by the
sequence of the two orders after hearing that were made, following the October 6, 2009 hearing. Counsel for Father prepared the
"FAOAH", filed November 2,
2009. However, in the
interim, the day after the October 6 hearing, the court issued its
"Amended Findings and Orders After Hearing," which states:
"After
reviewing the pleadings and hearing arguments from Petitioner and Respondent's
counsel, the Court made a series of findings and orders at the conclusion of
which Respondent's counsel was directed to prepare the Findings and Orders
After Hearing ("FAOAH") and submit them directly to the Court with a
copy to Petitioner. [¶] Upon further
reflection and re-review of the pleadings, the
Court directs that the following modification to the parenting plan be
incorporated into the "FAOAH": [¶] (incorporating the referenced
recommendations in the FCS report dated February 3, 2009, which provide
that under its § 5(g), (h) and (j), the children shall be in Petitioner's
care for Rosh Hashanah, Yom Kippur and Passover). Other findings and orders remained in
effect."
Despite the
clerk's service of this order, when counsel for Father prepared the November 2
"FAOAH", after the October 6 hearing, he failed to incorporate the
amended findings of the October 7 order, and instead the "FAOAH"
merely states that: "The Court
denies Mother's request to modify any portion of the prior custody and
visitation order." The November 2
"FAOAH" also made a specific finding that "2. Mother has failed to carry her burden to
demonstrate a material change of circumstances to allow modification of the
child custody and/or visitation orders."
Also, the November 2 "FAOAH" made another specific finding
that "5. The Court denies Mother's
request for appointment of a mediator to resolve issues and/or disputes
regarding custody and/or visitation of the minor children."
The problem that arises in
interpreting the orders, both of which are before this court, is that the
family court gave the parties notice immediately after the
October 6 hearing that the February 2009 FCS holiday recommendations
should be incorporated into the order after hearing, but unfortunately, this
was not done when counsel prepared the order or when the court signed it. We seek to determine whether the court had an
adequate basis to amend its findings and orders, when we read the two orders
together.
Based on
the respective positions of the parties, we think the family court had a
sufficient basis to amend its order by utilizing the FCS holiday
recommendations, which were limited in nature and capable of being made
certain. From all of the circumstances
reported to the trial court, it could very reasonably have concluded that confirming the
FCS recommendations on holiday visitation would advance the "best
interest" of the children. (
" 'the changing needs of children as they grow
up. . . .' " (
Visitation orders are
supposed to accommodate the best interests of the children, and when the court
ordered on October 7 that this modification to the parenting plan should be
incorporated into the November 2 "FAOAH", it was impliedly making
such findings, that Mother had demonstrated that the children would now benefit
from participating in those activities with her, and that neither the children
nor Father would be prejudiced, since he was also allocated other religious
holidays. Father has no basis to contend
that the November 2 "FAOAH" general finding on lack of change of
circumstances regarding the prior custody and visitation order must control
over the more specific order made by the court on October 7, regarding a
portion of that visitation order, pertaining to religious holidays. It does not make any difference that the
court stated all other findings and
orders would remain in effect, since the ones on this issue were specifically
changed. Rather, it appears that the
October 7 amendment was erroneously omitted from the November 2
"FAOAH", and Father has failed to show it is inconsistent, inappropriate,
or detrimental to implement.
Instead,
the trial court was entitled, upon further reflection on the exercise of its
discretion, to determine that there was a reasonable basis to amend its
previous orders. Accordingly, to give
effect to the order of October 7, the appropriate course of action in this
appeal is to affirm the November 2 "FAOAH" as it is hereby modified
to incorporate the order of October 7, thus adopting the holiday parenting plan
schedule as set forth in section 5(g), (h) and (j) of the FCS report, to take
precedence over the regular parenting schedule.
Since this co-parenting schedule change did not amount to a change of
custody, the trial court could properly make such a discretionary
determination, based on the respective showings made at the hearing, including
the age of the children. In any case,
enough of a significant change in circumstance was impliedly recognized, indicating that a
different arrangement would be in the children's best interests. (See Burgess,
supra, 13 Cal.4th at p. 38.)
DISPOSITION
The
"FAOAH" of November 2, 2009 is modified, to incorporate by
reference the amended findings and orders of October 7, 2009 into the
parenting plan, including the FCS recommended holiday visitation schedule as
set forth in section 5(g), (h) and (j) of the report, to take precedence over
the regular parenting schedule. As so
modified, the orders are affirmed. Each
party to bear its own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER,
J.
IRION,
J.
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[1] Mother has returned to her former
name, Feureisen. For convenience, and
out of no disrespect, we will call the parties Father and Mother.
[2] All further statutory references are
to the Family Code unless noted.
