Scognamillo v. Hoang



























Filed 4/18/13 Scognamillo v. Hoang CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




>

FRANK JOSEPH SCOGNAMILLO, Plaintiff and Respondent, v. THU SUONG HOANG, Defendant and Appellant.

B236967 (Los Angeles County Super. Ct. No. NF008127)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Lori R. Behar, Commissioner. Affirmed.

Law Offices
of Fred J. Knez and Fred J. Knez for Defendant and Appellant.

Law Office
of John A. Tkach, John A. Tkach; and Michael E. Eller for Plaintiff and
Respondent.



_______________________



INTRODUCTION



Appellant
Thu Suong Hoang (Mother) appeals from a judgment establishing parental
relationship and determining custody and
visitation between her and respondent Frank Joseph Scognamillo (Father),
over their minor daughter, Hailey. We
affirm.



FACTUAL AND PROCEDURAL BACKGROUND



Father
initiated this action with a petition to establish parental relationship, child
custody and visitation over then-six-year-old Hailey on June 18, 2009.href="#_ftn1" name="_ftnref1" title="">>^[1] He sought legal and physical custody over
Hailey, with visitation for Mother. In
his supporting declaration, he indicated that the precipitating factor for his
petition was Mother’s intention to move away from the San Pedro area, where
they had lived and where Hailey attended school, to the Riverside
area.

Father
filed an ex parte application for an
order to show cause on July 7, 2009,
requesting legal and primary physical custody of Hailey and an order that
Mother not remove Hailey from Los Angeles
County or enroll her in school in Riverside
County pending a hearing in the
case.

Mother
filed a responsive declaration requesting that Hailey be released to her and
“temporary legal and physical custody pursuant to status quo of de facto
custody.” Mother stated that she had had
primary custody of Hailey, with Father and the paternal grandmother having
custody of Hailey part-time. Mother was
going to move to Corona, where she
had more family support and she could afford a nicer apartment. She had already enrolled Hailey in school
there and had arranged for child care.

The trial
court granted Father’s ex parte application on July 7, 2009.
Mother filed additional paperwork in opposition to the application and
in August 2009, she filed her response to the petition. She also sought legal and physical custody
over Hailey.

There was a
good deal of animosity and gamesmanship between the parties and attempts to manipulate
Hailey. As a result, following hearings
on July 21 and 22, the trial court issued an order on October 23, 2009. The order provided that pending a further
hearing, the parties were awarded joint legal custody with the shared right to
make decisions as to Hailey’s health, education and welfare. The parties were to communicate by email and
contact each other by telephone only in case of emergency. The court also ordered them not to make
disparaging remarks about one another in Hailey’s presence or hearing. The order included a custody schedule. It further provided that it was made without
prejudice to either party and was “not meant to create the status quo.”

The case
dragged on and the animosity continued.
On July 25, 2011,
Mother filed a petition for modification of child custody. She sought primary physical custody of Hailey
and for Hailey to start attending school in Riverside
County beginning in the fall. In her supporting declaration, Mother stated
that Hailey had been having behavioral and academic problems at school. In addition, she stated that the paternal
grandmother was undermining her authority over Hailey.

In
response, Father filed objections to Mother’s declaration and his own
declaration, in which he claimed that Mother was the cause of Hailey’s problems
at school. He also accused Mother of
attempting “to brainwash Hailey into believing that her grandmother is bad.”

Judgment
was entered on September 6, 2011. The court awarded the parties joint legal
custody over Hailey, with Father to have primary physical custody. It ordered the parties to “consult with each
other on issues of childcare, education, health and other major decisions. The Court finds that it is in Hailey’s best
interest for the parties to develop a cooperative attitude for working together
and making decisions.” The court set out
a custody schedule and specified matters as to which the parties were to
consult and obtain permission from one another.



DISCUSSION



A. Standard
of Review

A court has
broad discretion in making a child custody determination and may award custody
to either parent based on “the best interest of the child.” (Fam. Code, § 3040, subd. (b).) Under the statutory scheme governing child
custody and visitation determinations, the overarching concern is the best
interest of the child. (>Montenegro> v. Diaz (2001) 26 Cal.4th 249,
256.) Appellate reversal of custody and
visitation orders is justified only for abuse of discretion. (In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

In reviewing
the trial court’s exercise of discretion, we do not substitute our judgment for
that of the trial court but determine only if any judge reasonably could have
made such an order. (Cf. >In re Marriage of Schlafly (2007) 149
Cal.App.4th 747, 753.) We determine
“only ‘whether the court’s factual determinations are supported by substantial
evidence and whether the court acted reasonably in exercising its
discretion.’” (In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079.) To meet the substantial evidence standard,
the court’s factual determination must be based on “evidence of ponderable
legal significance, evidence that is reasonable, credible and of solid
value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “The appellant has the burden of showing
there is no evidence of a sufficiently substantial nature to support the
finding or order.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

In
determining whether the trial court acted reasonably in making the order, we
must also determine if there is a “reasonable basis on which the court could
conclude its decision advanced the best interests of the child. [Citations.]
. . . ‘[A]ll exercises of legal discretion must be
grounded in reasoned judgment and guided by legal principles and policies
appropriate to the particular matter at issue.’
[Citations.] Therefore, a
discretionary decision may be reversed if improper criteria were applied or
incorrect legal assumptions were made.
[Citation.] Alternatively stated,
if a trial court’s decision is influenced by an erroneous understanding of
applicable law or reflects an unawareness of the full scope of its discretion,
it cannot be said the court has properly exercised its discretion under the
law. [Citations.] Therefore, a discretionary order based on the
application of improper criteria or incorrect legal assumptions is not an
exercise of informed discretion and is subject to reversal even though there
may be substantial evidence to support that order. [Citations.]
If the record affirmatively shows the trial court misunderstood the
proper scope of its discretion, remand to the trial court is required to permit
that court to exercise informed discretion with awareness of the full scope of
its discretion and applicable law.
[Citations.] The appellant bears
the burden of showing a trial court abused its discretion. [Citation.]”
(F.T. v. L.J. (2011) 194
Cal.App.4th 1, 15-16, italics omitted.)



B. Consideration
of the Parties’ De Facto Custody Arrangement in Making the Initial Custody
Determination

Mother
contends the trial court abused its discretion in awarding Father primary
physical custody of Hailey because it failed to determine whether Mother had
primary physical custody under the parties’ de facto custody arrangement. Had it made that determination, she asserts,
it would have found that she had primary physical custody. Once it made that finding, the question
before it would have been whether Father met his burden of showing that a change
in custody was in Hailey’s best interests, and Father failed to make that
showing. Therefore, Mother concludes,
since there is no substantial evidence that a change in custody was in Hailey’s
best interests, the trial court abused its discretion in awarding primary
physical custody to Father.

As
discussed above, the record must affirmatively show that the trial court
misunderstood the scope of its discretion, and Mother, as the appellant, has
the burden of pointing out how the record shows this misunderstanding. (F.T.
v. L.J., supra, 194 Cal.App.4th
at p. 16.) In her opening brief, Mother
attempted to meet her burden by pointing to all the evidence which supports a
finding that she had primary physical custody of Hailey. This was insufficient.

In
addressing an appeal, we begin with the presumption that the judgment of the
trial court is correct. (>In re Marriage of Arceneaux (1990) 51
Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th
350, 357.) “We will indulge all
intendments and presumptions to support the judgment on matters as to which the
record is silent and prejudicial error must be affirmatively shown. [Citations.]”
(Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 267.) In the
absence of a statement of decision, we presume the trial court found every fact
necessary to support the judgment. (>Ibid.; Noguchi v. Civil Service Com. (1986) 187 Cal.App.3d 1521,
1544.) The question on appeal is whether
there is substantial evidence to support such findings. (Shaw,
supra, at p. 267; >Noguchi, supra, at p. 1543.)

The
appellant has the burden of “‘“demonstrat[ing] that there is >no substantial evidence to support the
challenged findings.” (Italics
added.) [Citations.] A recitation of only [appellant’s] evidence
is not the “demonstration” contemplated under the above rule. [Citation.]’”
(People v. Dougherty (1982) 138
Cal.App.3d 278, 282.) Rather, the
appellant must set forth all the material evidence, both “‘favorable and
unfavorable, and show how and why it is insufficient.’” (Huong
Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409, italics omitted; >Dougherty, supra, at p. 282.) Failure
to do so forfeits on appeal the challenge to the sufficiency of the
evidence. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177
Cal.App.4th 209, 218; Dougherty, >supra, at p. 282.)

As Father
points out in his brief, Mother failed to set forth all the evidence on the
custody issue in her opening brief. In
response to respondent’s claim that her contention therefore is forfeited,
Mother argues in her reply brief that “[t]he point raised by Mother, is >not
that the Trial Court made an incorrect
finding with regard to the defacto [sic]
custodial parent, but that the Trial Court failed to make any finding as to the defacto [sic]
custodial parent. Furthermore, the Trial
Court failed to make any analysis of this issue. This inquiry was essential in order for the
Trial Court to proceed under the correct standard.”

Mother
points out that at the July 21, 2009 hearing, she argued that “if your honor
felt able to make a determination that my client was the primary custodial
parent on a de facto basis, even though there are no orders in this case, no
permanent paperwork has ever been filed, then I think that we would have the
argument that the burden had shifted to [Father] to show that the move would be
detrimental to the child.”

At the end
of the day, however, the trial court stated:
“I know that there’s a lot more that both of you want to tell me. I appreciate that. And I understand it, but I have to make some
temporary orders today to get us through until the next hearing date. I’m not making any determination as to what
the custody time has been until now because I have not heard all of the
evidence on that[.]”

After
hearing all of the evidence, the trial court stated that it was in Hailey’s
best interests to stay in San Pedro.
Mother complains that “[i]nstead of making any defacto [>sic] analysis, the Trial Court proceeded
directly to a determination that the best interests of Hailey would be served
by continuing to attend school in San Pedro . . . .” Thus, Mother states, “there is no portion of
the record where the Trial Court made a finding as to the defacto [>sic]
arrangement . . . .”

The place
where that finding would have been made would have been a statement of
decision, which Mother did not request.
“‘In a nonjury trial the appellant preserves the record by requesting
and obtaining from the trial court a statement
of decision . . . .
The statement of decision provides the trial court’s reasoning on disputed
issues and is our touchstone to determine whether or not the trial court’s
decision is supported by the facts and the law.’ [Citation.]”
(Shaw v. County of Santa Cruz,
supra, 170 Cal.App.4th at
p. 268.) The court’s oral comments
during the trial are not a substitute for a statement of decision. Even if such comments suggest that the trial
court misunderstood the applicable law, “[a]bsent [a] contrary indication in
the final judgment or statement of decision, the appellate court will assume
that, during the period before [the] rendition of judgment, the trial court
realized any error and corrected it.” (>Ibid.)

In the
absence of a statement of decision, the record does not “affirmatively show[]
the trial court misunderstood the proper scope of its discretion” (>F.T. v. L.J., supra, 194 Cal.App.4th at p. 16) by failing to determine whether
Mother had primary physical custody under the parties’ de facto custody
arrangement. Mother failed to meet her
burden of demonstrating error by an adequate record. (Ibid.;
accord, Ballard v. Uribe (1986) 41 Cal.3d
564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3
Cal.App.4th 313, 318.) As to the
question whether substantial evidence supports the trial court’s implied
findings, that issue has been forfeited by Mother’s failure to set forth all
evidence on the issue. (>Doe v. Roman Catholic Archbishop of Cashel
& Emly, supra, 177
Cal.App.4th at p. 218; Huong Que, Inc. v.
Luu, supra, 150 Cal.App.4th at p.
409.)

To the
extent Mother’s remaining contentions are simply variations on her claims that
the trial court misunderstood the scope of its discretion and the evidence does
not support its judgment, those contentions are similarly forfeited by Mother’s
failure to obtain a statement of decision or to fairly set forth the evidence
on the question. Mother claims that
because the trial court should have found her to be the primary custodial
parent, Father bore the burden of proving that a change of custody was in
Hailey’s best interests, and he failed to meet that burden. Since we have no statement of decision
explaining the trial court’s reasoning on these issues to enable us to
determine whether or not the trial court’s determinations as to primary custody
and burden of proof are supported by the facts and the law (>Shaw v. County of Santa Cruz, >supra, 170 Cal.App.4th at p. 268), we
presume the trial court found every fact necessary to support the
judgment. (Id. at p. 267; Noguchi v.
Civil Service Com., supra, 187
Cal.App.3d at p. 1544).

Mother
further contends the trial court abused its discretion in adopting the
recommendation of the evaluator, because that evaluation was based on improper
criteria and applied factors which held less weight than stable and continuing
contact with the primary custodial parent.
But we have no statement of decision showing that the trial court relied
on the evaluator’s recommendation or the weight it gave to the various factors
it considered. Again, the contention is
forfeited. (Shaw v. County of Santa Cruz, supra,
170 Cal.App.4th at pp. 267-268; Noguchi
v. Civil Service Com., supra, 187
Cal.App.3d at p. 1544.)

The result
is the same with respect to Mother’s claim that the trial court abused its
discretion by failing to apply the correct legal analysis, which required the
court to balance the factors set forth
in the Family Code as well as matters of public policy. There is no statement of decision to show
what factors the trial court considered in reaching its judgment, so the record
does not demonstrate that the trial court failed to apply the correct legal
analysis. (Shaw v. County of Santa Cruz, supra,
170 Cal.App.4th at pp. 267-268; Noguchi
v. Civil Service Com., supra, 187
Cal.App.3d at p. 1544.)

Mother
finally claims that the effect of the trial court’s order was to place primary
physical custody of Hailey with the paternal grandmother, who the trial court
recognized had “exercised too much control.”
At this point, her claim is speculation.
If it turns out to be the case, Mother is free to seek modification of
the trial court’s order.



DISPOSITION



The
judgment is affirmed. Father shall
recover his costs on appeal.





JACKSON,
J.





We concur:







PERLUSS,
P. J.







ZELON,
J.