Marriage of Leddy

Filed 8/14/09 Marriage of Leddy CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge. Affirmed.

Law Office of Julian Fox and Julian Fox for Appellant.

Archer & Associates and T. Lance Archer for Respondent.

Appellant Tabatha S. Leddy (mother) appeals a postjudgment order of the family law court awarding primary legal custody of the minor child of the marriage to respondent William D. Leddy (father). The trial court found changed circumstances justified the modification of the custody orders. The trial court did not abuse its discretion in so finding. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The parties were married to one another for approximately one year. They separated in 2004; there was one child from the marriage. In October 2006, the parties filed a marital settlement agreement (MSA) dissolving the marriage, providing for joint legal custody, and equally shared custody time with the child. Among other things, the MSA provided a 14-day rotating custody schedule on the basis of five days with one parent, five days with the other parent, and then two days with each parent, respectively. If a parent was unable to take care of the child during his or her visitation, the care of the child would first be offered to the other parent (first refusal). All exchanges were to take place at mothers residence at 7:00 a.m.

In November 2006, mother filed an order to show cause (OSC) to modify custody, child support and visitation. Mothers moving papers alleged that the child had some injuries to his mouth, that father placed the child in preschool or daycare instead of offering mother first refusal to care for the child, and that father and his girlfriend had engaged in inappropriate sexual behavior in the presence of the child. Mother claimed that father had admitted such misconduct in a letter he wrote to her. Mother also complained that she was not listed as an emergency contact person with the preschool.

Father opposed the OSC. He did not consent to transfer of custody to mother, but requested primary physical custody himself. The family had a history of contact with Child Protective Services (CPS) because of incidents of domestic violence by mother. In 2005, father obtained a restraining order against mother because of domestic violence and mothers history of drug use. During the CPS proceedings, father had primary custody of the child. Then, in October 2006, the parties entered into the MSA.

At the time of the MSA, mother and father lived near one another. Shortly thereafter, however, mother moved her residence 50 miles away. They informally arranged to meet at a gas station between their homes to transfer the child at visitation changes. Mother asked father to change the exchange dates from Tuesday and Thursday mornings to Monday and Wednesday nights to accommodate her schedule. Father declined because he would lose overnight visits with the child and because the child was adjusting well to his preschool routine. Mother responded by going to police in her city with the original MSA orders, which had provided that exchanges were to be made at mothers home at 7:00 a.m. When the police contacted father to enforce compliance with the original order, father acquiesced; that meant getting the child up at 5:15 a.m. to make the exchange at mothers home by the appointed time. Mothers insistence on the letter of the order, after she had moved 50 miles away, forced father to do all the driving four times in each two-week period.

The court ordered a child custody evaluation pursuant to Family Code section 3111. The social workers report opined that mother would be the parent least likely to cooperate and share the child with the other parent. The social worker found nothing in fathers letter which substantiated any sexual impropriety of father and his girlfriend in the childs presence. Rather, it appeared that father was apologizing for not telling mother about the new relationship. The social workers interviews with father, the girlfriend, and the child turned up no indications that anything untoward had happened. In addition, mother had made no reports to CPS about any suspected abuse (i.e., the injuries to the childs mouth) or sexual misconduct. The only time mother went to police was to insist on strict enforcement of the custody exchange orders, orders which were no longer appropriate in light of mothers change of residence.

As to mothers complaint that she was not listed in the records of the preschool as an appropriate contact person, that allegation was false. Mother was listed as the childs mother. Mother told the social worker she didnt believe in sending children to day care. Mother was unsupportive of the placement in preschool, and evidently denigrated the experience to the child.

The parents had been ordered to attend a program called Solutions for Families to facilitate their communication and skills in coparenting. Mother told the social worker that she didnt get much out of it. In joint therapy sessions, the parents would not look at each other during communications despite many encouragements from the social worker. Finally, the social worker had the parties place their chairs facing one another. Mother stated that the sessions were a waste of her time, and she accused the social worker of bias against her.

In addition to going to police to enforce the original exchange orders, mother had also gone to the preschool and taken the child out of school for a doctors appointment; in the social workers opinion, this was done in part as an effort to make father look wrong or bad in his parenting of the child.

Because communication between the parents remained tense, if not hostile, the social worker recommended that primary legal and physical custody be assigned to one parent. She recommended awarding primary custody to father. Father was the parent more likely to share custody, and mother the least likely, because of mothers history of drug use and domestic violence, mothers resistance to the coparenting class, mothers resistance during therapy, and mothers reactive and vengeful acts in going to police to enforce the exchange orders and in taking the child from the preschool. In addition, mothers accusations of sexual misconduct were not borne out by investigation. The only corroboration was a statement from mothers other children, under circumstances in which the social worker suspected the children had been coached.

The court conducted an evidentiary hearing at which the social worker and the parents testified. The trial court found that there was a change in circumstances and awarded sole legal and physical custody of the child to father, with visitation for mother.

Mother appeals the custody order.

DISCUSSION

A. Standard of Review

Postjudgment orders modifying child custody and visitation orders based upon changed circumstances are reviewed for abuse of the trial courts discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

B. The Court Did Not Abuse Its Discretion in Awarding Custody to Father

Under the changed circumstance rule, after 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, 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 childs best interest. [Citation.] But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072.)

Here, mother initially moved for a change of custody; fathers response also requested a change of custody. Thus, the changed circumstances standard applies. Mother contends that the trial courts order was punitive, that the childs best interests were not given proper consideration, that the change of custody order split the child from his half-siblings (mothers other three children from a prior relationship), and that the ruling was based on an erroneous social workers report. Mother had requested relief based on fathers failure to give her the right of first refusal, his decision to enroll the child in preschool, fathers inflexibility in accommodating mothers class scheduling, and the childs troubling sexual behaviors.

Throughout mothers brief, she focuses on the evidence in her favor. This is improper. A statement of material facts in the brief requires more than merely the evidence favorable to the appellant. (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 847, fn. 2.)

We presume the trial court made all the factual findings requisite to support its order. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) As to the most serious allegations, that father had engaged in inappropriate sexual conduct in front of the child, the trial court did not find support for them. This finding was supported by the social workers testimony and report.

Mother objected to fathers having enrolled the child in preschool, and both father and the child reported that mother had denigrated the placement to the child; mother had been unsupportive of the childs experience until near the end of the evaluation period, when mother finally acknowledged that the child had received positive benefits.

Mother had asked father to change the exchange schedule to accommodate her attendance at the Solutions for Families class. Mother had rearranged her college class schedule to attend the program. Father wanted to keep the arranged schedule, as the child had adjusted well to his routine. Mother then went to police to enforce the letter of the exchange order, even though she had moved 50 miles away, instead of living five minutes away, as when the MSA had first been agreed upon. Although the parties had been exchanging custody at a mutually agreed midpoint for several months, mother invoked police authority to require father to do all the driving to make the exchanges.

Mother did attend the Solutions for Families program, but told the social worker that she did not get anything out of it. Mother was also resistive during conjoint therapy with father and the social worker, and complained that it was a waste of her time.

Mother admitted she had gone to the preschool and taken the child for a doctor appointment without informing father. This conduct also belied mothers contention that she had not been properly put on record with the preschool as a person authorized to deal with the child; manifestly, she was listed on the information card as the childs mother, and she had in fact been able to take the child from the school to the appointment.

Mothers move had made some of the circumstances of the original custody orders no longer practical. The 5-day/5-day/2-day/2-day schedule had been created when the parties lived a short distance away from one another. Communications remained strained between the parties. Mothers response to these difficulties was uncooperative. She resisted the coparenting program, she resisted conjoint therapy and she took actions with respect to the child without consulting father. Mother invoked the threat of police action to strictly enforce the letter of the MSA exchange provisions even though that provision was no longer appropriate, and in response to fathers alleged unwillingness to cooperate with her requested scheduling change. Mothers conduct was reactive and vindictive. Mother went to the police about the custody exchange, but made no reports to any authorities over fathers alleged acts that posed a risk of harm to the child.

The social worker indicated that mothers conduct in, among other things, disparaging the preschool to the child had affected him negatively and possibly had caused some alienation in the childs relationship with father.

Mothers move and her deteriorated coparenting skills constituted changed circumstances. The social workers report and testimony fully justified a finding that mother was the parent less likely to share time with the child with the other parent. The changed circumstances and the best interest of the child supported the changed custody order, awarding sole legal and physical custody to father.

DISPOSITION

The trial courts order awarding sole custody to father is affirmed. Father is awarded his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHLI

Acting P. J.

/s/ KING

J.

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