Filed 8/25/26 Melvin v. Fogg CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
JOHNNYE MELVIN,
Plaintiff and Respondent, A173846
v. (Lake County
STEVE FOGG Super. Ct. No. FL216154)
Defendant and Appellant.
Plaintiff and respondent Johnnye Melvin (Mother) and defendant and
appellant Steve Fogg (Father) had a joint child custody order in place when
Father petitioned for: (1) sole legal and physical custody of their minor child
with daytime visitation rights for Mother; and (2) an order prohibiting
Mother from moving with their child out of Lake County. Following a short-
cause hearing, the trial court modified the child custody order, maintaining
joint legal custody but granting Mother primary physical custody and
allowing her to move with the child to Butte County. Father was given
custody of the child three weekends per month and for stretches of time
during the summer, winter, and spring school holidays. Father appeals the
modification order. Finding no error, we affirm.
I. BACKGROUND
In 2021, the trial court entered an order granting the parties joint legal
and physical custody of their child. Mother had physical custody from
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Sunday evening until Thursday evening of each week; Father had physical
custody for the remaining time.
In 2024, Father filed a petition for temporary emergency orders and to
modify the 2021 custody order. In the petition, Father asked the trial court
to award him sole legal and physical custody of the child with Mother having
only daytime visitation rights on Saturdays. Father also asked for an order
that “neither party can remove the child’s residence out of Lake County.” In
support, Father alleged that Mother intended to move from Lake County to
the Chico area in Butte County, that Mother assaulted Father twice and
assaulted a former boyfriend once in 2024, that Father was “fearful” Mother
was using controlled substances even though he admitted that he had “never
witnessed her use,” and that Mother was not adequately caring for the child.
Mother filed a response in which she denied Father’s allegations and
asked the trial court to award her sole legal and physical custody with Father
having visitation rights every weekend from Friday evening until Sunday
evening.
The trial court held a hearing on Father’s petition and Mother’s
request. At the hearing, the court also considered whether Mother could
move the child out of Lake County. Father was represented by counsel;
Mother was self-represented. At the outset of the hearing, the court
acknowledged that there was an existing joint legal and physical custody
arrangement in place. Mother denied Father’s allegations of violence,
substance use, or inadequate caring of the child. Mother explained that she
wished to move with the child to Magalia, California in Butte County, near
Chico. Mother believed the move was in the child’s best interests because the
schools were better and because Mother could attend California State
University, Chico to get a degree in Child Education. Mother submitted
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evidence that schools in Magalia allow more one-on-one time with students
compared to schools in Clearlake. Mother admitted that her classes would be
“mainly online” but she would still have to “go attend classes” once or twice a
week. Mother would also have better job opportunities in Butte County
because she was offered a promotion and a raise to manage a Dollar General
store in a town near Chico. Finally, Mother had been approved to rent a
condo in Magalia.
Father admitted Mother had a negative drug test after he insisted that
she take one. Nonetheless, he believed Mother was using controlled
substances based on statements from Mother’s sister and friends. Father
conceded he was pulled over by the police on the road for riding a dirt bike
with the child two years earlier. Father also admitted that he did not take
the child to the hospital when she fell off a trampoline at Father’s house and
broke her arm because Father did not suspect the break. He had concerns
about Mother’s lifestyle, her romantic partners, and her inability to maintain
a stable residence. He further claimed that Mother was not adequately
caring for the child based on incidents involving lice and bug bites. Father
also believed that the child was coming to him sick and missing school more
often than she should. Some custody drop offs were hostile. On one occasion,
Mother shoved him, spat on him, and hit him in the chest. During another
drop off, Father saw one of Mother’s boyfriends smoking marijuana in the
car. Father was concerned about Mother’s desire to move to the Chico area
because Mother had no family other than a sister in that area, whereas she
had a larger support system in Lake County. Father described the home he
maintained, the church he attended, and the relatives and neighbors the
child regularly interacted with when he had physical custody.
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Father called five witnesses in support of his petition. Father’s
girlfriend testified about the strong relationship Father had with the child,
the couple’s home, the relatives and friends who regularly visited their home,
and their weekly church attendance with the child. She had noticed the
child’s bug bites and that the child was “consistently” sick. The nursery
director at Father’s church testified about the relationship she witnessed
between Father and the child at the church.
One of Mother’s ex-boyfriends who dated her for one-and-a-half to two
months testified that Mother was verbally abusive toward the child.
Specifically, he testified that Mother cussed at the child or flipped the child
off. He, however, never saw Mother physically hurt the child or any bruises
on the child. He stated that Mother had been physically violent toward him
“a couple different times” but never around the child. He described Mother’s
home at the time of their relationship as unclean. There was marijuana at
the home Mother shared with her family and while he never saw Mother use
it, marijuana was left out or used by others when the child was present. He
stated that Mother would drink alcohol nightly and become violent. On
cross-examination, he admitted bias “based [on his] past relationship [with
Mother].”
One of Father’s neighbors testified that her children would frequently
play with the child at Father’s house. She described Father as a “loving and
caring” dad. She also witnessed “problems” when the child was exchanged
between Mother and Father. During one exchange, Mother came to collect
the child but the child did not want to leave and was “hysterical.” Mother
became upset and shoved Father. Another time, her daughter told her that
she witnessed Mother screaming at and hitting Father. Although the
neighbor did not witness the incident herself, she “heard yelling.”
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The child’s paternal grandfather testified about the child’s relationship
with Father and Father’s girlfriend, the cleanliness of Father’s house, and
interactions between Father and Mother. One time when Mother brought
the child to Father, the grandfather saw Mother spit and cuss at Father. The
grandfather was concerned about the child moving to the Chico area because
it would be hard for Father to be present if the child needed him.
At the end of the hearing, Father and Mother gave closing arguments.
Father argued that he provided “a good, strong environment for the child.”
Father identified Mother cussing at the child, the bug bites, and Mother’s
unstable housing arrangements as evidence that she provided a less stable
environment for the child. Father also contended that “any move of the child
is going to be very detrimental to the child.” In her closing, Mother again
denied Father’s allegations. She argued that the move “offer[ed] a safer
environment with lower crime rates and a strong sense of community
essential for my child’s wellbeing. The chance to engage in various
extracurricular activities and more nurturing atmosphere will foster my
child’s growth and happiness.” Mother also stated she had an “unwavering
commitment to ensuring that [the] child has a meaningful and ongoing
relationship with her father.”
After taking the matter under submission, the trial court issued an
interim order requiring that all exchanges take place at the Clearlake Police
station, which had cameras, because “there were a lot of allegations brought
here about things that happened but very little actual evidence showing that
they happened.”
In its Findings and Order After Hearing (FOAH), the trial court
modified the prior custody order, maintaining joint legal custody but
awarding Mother sole physical custody. The court also gave Mother the
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power to make the final decision if she and Father disagreed. The court
found that Father’s allegations of abuse and substance abuse against Mother
were not “proven.” The court gave Father custody of the child during the
first, second, and fourth weekends of every month. It also awarded Father
custody for “2 full weeks during the summer, 1 week of winter break and 1
week of [s]pring break.” The court then permitted Mother “to move out of
Lake County ([to] Chico) to pursue education and employment options” and
the child “to move with [Mother] and will be enrolled in school in Chico.”
Father timely appealed.
II. DISCUSSION
Father contends that the FOAH should be reversed for three reasons:
(1) the trial court failed to “ ‘determine de novo what arrangement for
primary custody is in the best interest of the’ ” child because he and Mother
had joint custody (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089,
fn. 3 (LaMusga)); (2) Father presented substantial evidence that it was in the
child’s best interests for him to have sole physical custody; and (3) the court
failed to sufficiently state its reasons for modifying the 2021 child custody
order. None are persuasive.
A. The Applicable Law and Standard of Review
Under Family Code section 3087,1 the trial court may modify a joint
custody order “if it is shown that the best interest of the child requires” it. “If
either parent opposes” modification, “the court shall state in its decision the
reasons for” it. (§ 3087.)
In deciding whether to modify a joint custody order, the trial court
must apply the “changed circumstance rule,” “ ‘an adjunct to the best-interest
1 All statutory references are to the Family Code unless otherwise
specified.
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test.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro), quoting
Burchard v. Garay (1986) 42 Cal.3d 531, 535.) Under that rule, a party
seeking to modify an existing custody order must show that a “ ‘significant
change in circumstances indicates that a different arrangement would be in
the child’s best interest.’ ” (Montenegro, at p. 256.)
“A parent entitled to the custody of a child has a right 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).) If
one parent has primary physical custody, “the 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 . . . . If the noncustodial parent makes such an initial
showing of detriment, the court must perform the delicate and difficult task
of determining whether a change in custody is in the best interests of the
children.” (LaMusga, supra, 32 Cal.4th at p. 1078.) But “ ‘[a] 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.’ [Citation.] In such cases, if it is shown
that the best interests of the children require modification or termination of
the order, the court ‘must determine de novo what arrangement for primary
custody is in the best interest of the minor children.’ ” (Id. at p. 1089, fn. 3.)
“ ‘In a “move-away” case, a change of custody is not justified simply
because the custodial parent has chosen, for any sound good faith reason, to
reside in a different location, but only if, [absent] relocation with that parent,
the child will suffer detriment rendering it “ ‘essential or expedient for the
welfare of the child that there be a change.’ ” ’ ” (LaMusga, supra, 32 Cal.4th
at pp. 1088–1089.) “Among the factors that the court ordinarily should
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consider when deciding whether to modify a custody order in light of the
custodial parent’s proposal to change the residence of the child are the
following: the children’s interest in stability and continuity in the custodial
arrangement; the distance of the move; the age of the children; the children’s
relationship with both parents; the relationship between the parents
including, but not limited to, their ability to communicate and cooperate
effectively and their willingness to put the interests of the children above
their individual interests; the wishes of the children if they are mature
enough for such an inquiry to be appropriate; the reasons for the proposed
move; and the extent to which the parents currently are sharing custody.”
(Id. at p. 1101.)
“We review a ruling on a request for modification of a custody order for
abuse of discretion. [Citation.] ‘Generally, a trial court abuses its discretion
if there is no reasonable basis on which the court could conclude its decision
advanced the best interests of the child.’ ” (Anne H. v. Michael B. (2016)
1 Cal.App.5th 488, 501 (Anne H.).) “[W]e start with the presumption that the
judgment or order is correct, and if the record is silent we indulge all
reasonable inferences in support of the judgment or order.” (Chalmers v.
Hirschkop (2013) 213 Cal.App.4th 289, 299.) Accordingly, we must uphold
the court’s ruling “ ‘if it is correct on any basis, regardless of whether such
basis was actually invoked.’ ” (Ibid., quoting Montenegro, supra, 26 Cal.4th
at p. 255, emphasis added.)
Mother did not file a respondent’s brief. However, a “respondent’s
failure to file does not require an automatic reversal” because “the appellant
has the affirmative burden to show error.” (In re Marriage of Davies (1983)
143 Cal.App.3d 851, 854.) Thus, Father’s brief will guide our review, but we
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will “reverse only if prejudicial error is found.” (In re Marriage of Matthews
(1980) 101 Cal.App.3d 811, 815.)
B. Analysis
Father contends that the trial court “did not determine this matter de
novo.” We agree that the court should have “ ‘determine[d] de novo what
arrangement for primary custody is in the best interest of’ ” the child because
he shared joint physical custody with Mother. (LaMusga, supra, 32 Cal.4th
at p. 1089, fn. 3.) But Father has not shown that the court applied the wrong
standard here. According to Father, “the limited comments in the” FOAH
establish that the court wrongly assumed that Mother “had sole physical
custody.” But Father points to nothing in the FOAH to support this
contention, and we could find none. We also found nothing in the hearing
transcript to support Father’s contention either. To the contrary, the court
expressly acknowledged the “joint legal and joint physical custody” order in
place at the time of the hearing. (Italics added.) We must therefore conclude
that the court did, in fact, apply the correct standard here. (See Cueto v.
Dozier (2015) 241 Cal.App.4th 550, 561 [“Absent any evidence to the
contrary, we presume that the . . . court applied the correct legal standard”].)
Father next contends that the trial court erred because he “presented
substantial evidence that the best interests of the child was for him to have
physical custody.” (Block capitalization omitted.) According to Father, “[i]t
was apparent from the [undisputed] testimony [that Mother] consumes
controlled substances and alcohol,” “has a problem with violence,” and was
verbally abusive to their child. But Mother did, in fact, dispute these
allegations. More importantly, the court found that Father did not prove his
allegations of substance abuse, violence, and verbal abuse. Because “[g]reat
deference must be given to the . . . court’s adjudication of the facts” (In re
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Marriage of Condon (1998) 62 Cal.App.4th 533, 549), we cannot, as requested
by Father, retry the factual disputes resolved by the court below.
In any event, Father appears to misunderstand the substantial
evidence standard. The test is not whether substantial evidence supports
Father’s claims. Rather, the test is whether substantial evidence supports
the trial court’s FOAH. (Anne H., supra, 1 Cal.App.5th at p. 501.) And there
is ample evidence in the record to support the court’s implied finding that
allowing Mother to move with the child to the Chico area and giving Mother
primary physical custody was in the best interest of the child. Indeed, the
court reasonably concluded, based on Mother’s testimony alone, that the
move would provide a better education and community for the child.
Finally, we reject Father’s contention that the FOAH failed to
sufficiently state the trial court’s reasons for modifying the 2021 child
custody order. Simply put, detailed findings are not required by section 3087.
(See In re Marriage of Wood (1983) 141 Cal.App.3d 671, 680 [former Civil
Code section 4600.5, subdivision (d)’s requirement for statement of reasons
related to modification of existing joint custody order did not “require
‘findings’ whenever custody is modified”].) Nonetheless, the court did, in fact,
state the reasons for its order. First, the FOAH explained that the court did
not find Father’s “allegations proven.” Second, it explained that Mother
could move with the child to the “Chico” area to “pursue education and
employment options.” No more was needed.
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III. DISPOSITION
The FOAH filed on May 2, 2025 is affirmed. The parties shall bear
their own costs on appeal.
CHOU, J.
WE CONCUR.
SIMONS, Acting P. J.
BURNS, J.
A173846/ Melvin v. Fogg
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