Marriage of Lampe

Filed 8/22/08 Marriage of Lampe CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Lloyd B. Hicks, Judge.

McCormick, Barstow, Sheppard, Wayte & Carruth, Jerry D. Casheros and Leslie A. Soley for Appellant.

McKinney, Wainwright & Saul-Olson and James A. Wainwright for Respondent.

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This is an appeal from a custody and visitation order entered after a four-day trial. The order awarded the parents, Paul and Tamara Lampe, joint legal and physical custody of their child, and provided for an increase in Pauls^[1]time with the child to achieve a 50-50 custody sharing arrangement. Tamara appeals, contending the trial court improperly reduced her time with the child in retaliation for her allegation of sexual abuse against Paul, in violation of Family Code section 3027.5.^[2] Paul contends the trial court properly applied the best interest of the child standard, considering all the evidence and not just the unsubstantiated allegation of sexual abuse. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Paul and Tamara separated after two years of marriage, when their daughter, J., was about four months old. Tamara subsequently petitioned for dissolution, obtaining an ex parte temporary restraining order against Paul at the same time, based on an allegation that Paul had grabbed her arm and twisted it. By ex parte order, the court granted Tamara primary legal & physical custody of the child, with supervised visitation for Paul. After Paul was acquitted of the spousal abuse charges resulting from Tamaras accusation, Pauls visitation was increased.

Subsequently, Tamara moved to modify Pauls visitation based in part on allegations that he was physically violent with J.; she alleged that, when she gave J. to Paul and J. tried to give her a hug goodbye, Paul very forcefully clenched down on [J.s] leg and J. started to cry. On January 9, 2006, after a short trial, the court concluded there was no evidence of domestic violence, and entered another custody and visitation order, granting Paul visitation on the first and third weekends of each month, with alternating fifth weekends, and overnight visits on Wednesday in weeks when Paul did not have weekend visitation; the order provided that the Wednesday visits would run from Wednesday evening to Friday evening commencing July 1. On August 23, 2006, over Tamaras opposition, the court entered an order correcting the January 9, 2006, written order to delete language indicating the July 1 increase in visitation was limited to the remainder of summer. As a result, Paul continued to have an additional two days per month with the child.

Two days after that order was issued, on August 25, 2006, J.s maternal grandmother, who provided child care during the day, reported to Tamara that, while they were playing, the child tried to touch the grandmother in her personal area. On August 28, 2006, while playing with the grandmother, J. lay down with her knees up and legs spread and rubbed her own genital area, and later tried to rub her grandmother in that area. When the grandmother questioned her about it, J. stated, Daddy plays doctor this way, and I do this to daddy. Tamara took the child to her pediatrician, who referred her to Childrens Hospital Central California (CHCC)^[3]without examination. At CHCC, Tamara spoke with a social worker, who notified police and Child Protective Services (CPS). The emergency room doctor examined J., said she had perineal irritation (a redness in the vaginal area), prescribed ointment, and sent her home. The next day the child underwent a Child Abuse Response Team (CART) interview, and Tamara spoke with a CPS representative. The CPS representative later told Tamara the case was closed.

On September 22, 2006, Paul returned J. to Tamara after visitation. Tamara noticed the child looked ill and lethargic; she took J. to the pediatrician. After examination, the pediatrician noted J. had a more gaping or deeper vulvar[/]vaginal area depression than during her previous examination. When the doctors assistants attempted to attach a bag to J. to obtain a urine sample, the child became hysterical and screamed, I dont want to play doctor or I dont want to play doctor anymore. The pediatrician reported suspected child abuse to CPS. Tamara took J. to CHCC again. The police and CPS were notified, and Tamara was instructed to prevent Pauls visitation that weekend.

On September 29, 2006, based on allegations of sexual abuse, Tamara obtained an order to show cause (OSC) regarding modification of custody and visitation, which included an order that all visitation cease until further order of this court. The court appointed an independent family assessor, Dr. Bernstein, to prepare a report. Dr. Bernstein met with both parents and the child, individually and in various combinations.

On December 8, 2006, Paul moved for and obtained an OSC regarding modification of custody and visitation, in which he requested that visitation be reinstated in accordance with the August 23, 2006 order; alternatively, he requested that he be awarded primary custody, with visitation to Tamara. He asserted that the sexual abuse allegations had been investigated and determined to be unfounded. He further asserted: Instead of misconduct by myself, the Father, there appears to be a continued orchestrated attempt on the part of the Mother to deprive me of contact with my daughter by any means at her disposal.

Both parties OSCs were tried over the course of four days in February 2007. The court later issued its statement of intended decision. That document stated that it would become the statement of decision if neither party takes further steps as provided by law; in that event, Pauls attorney was to prepare the final order. Neither party challenged the intended decision and on April 17, 2007, the court filed its findings of fact and order after court trial. The court denied Tamaras OSC. It found there was no valid corroborating physical evidence from any medical professional, and no substantial independent corroboration of Tamaras allegations of abuse by Paul. It added that [a]ny additional unfounded allegations will be the basis for terminating custody. The court also noted certain aspects of Dr. Bernsteins psychological evaluation of Tamara. It then awarded the parents joint legal and physical custody, set an initial visitation schedule, and ordered that a 50-50 custody sharing arrangement be implemented one month after the order.

On June 15, 2007, Tamara filed this appeal. On July 3, 2007, she filed a motion to vacate or modify the April 17, 2007, order. She asserted the order reduced her visitation with the child in violation of Family Code section 3027.5; additionally, she contended the provision for termination of custody on the basis of future unfounded allegations of abuse was inconsistent with that section. The court denied the motion as untimely, but amended the findings of fact and order to state that [a]dditional unfounded child abuse allegations may be the basis of considering a restriction on that parents custody privileges. (Italics added.)

DISCUSSION

I. Appealability.

An appellants opening brief must [s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable. (Cal. Rules of Court, rule 8.204(a)(2)(B).) Tamaras brief contains no statement of appealability.

An appeal may be taken from a judgment that is not an interlocutory judgment (i.e., a final judgment) or from an order made after an appealable judgment. (Code Civ. Proc., 904.1, subd. (a)(1), (2); Lester v. Lennane (2000) 84 Cal.App.4th 536, 560.) A judgment is final if it decides the rights and duties of the parties and terminates the litigation. [Citation.] [Citation.] Where anything further in the nature of judicial action on the part of the court is essential to a final determination of the right of the parties, the decree is interlocutory. [Citation.] [Citation.] (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689, second & last bracketed insertions added.)

The custody and visitation order from which Tamara appeals reflects it was entered [a]fter a full and complete Trial lasting four days. It set out extensive findings of fact supporting the disposition, then awarded joint legal and physical custody to the parents, with specified visitation for Paul, increased until a 50-50 custody sharing arrangement was reached. While the order appears to be a final order entered after full trial, it does not fully dispose of the issues presented by the parties. The final paragraph of the order states: The issue of equally shared Holiday Visitation is not addressed by the Court, but, was the subject of a Motion filed by Paul Lampe on December 8, 2006 which included a request of Custody & Visitation and which may be the subject of a separate agreement or subsequent determination at a later time. Consequently, Tamara has not adequately explained why the April 17, 2007, order is appealable.

II. Merits of appeal.

Even if the order is appealable, the trial court did not abuse its discretion in entering the joint custody and visitation order that increased Pauls time with the child to 50 percent. 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. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

In making an initial permanent custody order, the court applies the best interest test; at that time, it has the widest discretion to choose a parenting plan that is in the best interest of the child. [Citation.] Family Code Section 3011 lists specific factors, among others, that the trial court must consider in determining the best interest of the child in a proceeding to determine custody and visitation. (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32.) These factors include:

(a) The health, safety, and welfare of the child.

(b) Any history of abuse by one parent against

(1) [a]ny child [or]

(2) [t]he other parent.

(c) The nature and amount of contact with both parents . ( 3011, subds. (a), (b)(1)(2), (c).)

As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. ( 3011, subd. (b)(3).) Subsequent modification of a final custody order requires changed circumstances. (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 996.)

At trial, both parties took the position that the then-existing custody and visitation order was not a final, permanent order that could only be modified if circumstances had changed. Consequently, the court did not require a showing of changed circumstances, but applied the best interest of the child standard.

Tamara contends that the trial court erred in applying the best interest of the child standard. She contends that the allegations of sexual abuse required the court to apply section 3027.5, and it failed to do so. Section 3027.5 provides:

(a) No parent shall be placed on supervised visitation, or be denied custody of or visitation with his or her child, and no custody or visitation rights shall be limited, solely because the parent (1) lawfully reported suspected sexual abuse of the child, (2) otherwise acted lawfully, based on a reasonable belief, to determine if his or her child was the victim of sexual abuse, or (3) sought treatment for the child from a licensed mental health professional for suspected sexual abuse.

(b) The court may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020.

Tamara made allegations against Paul of sexual abuse of the child, which the trial court found were not proven by a preponderance of the evidence. The court stated that, [w]hen allegations of abuse are predicated on statements from a Mother with a substantial history of accusations against a Father, used to attempt to eliminate or reduce visits, it is imperative that such allegations be corroborated; the court found Tamaras allegations were not corroborated at all. Tamara contends section 3027.5, subdivision (a) applies, and her custody and visitation rights cannot be limited solely because [she] lawfully reported suspected sexual abuse of the child or acted based on a reasonable belief such abuse had occurred. She contends section 3027.5, subdivision (b), does not apply, because the court did not find that she knowingly made a false report of sexual abuse; rather it found that molestation could be suspected from the evidence.

Section 3027.5, subdivision (a), prohibits limiting a parents custody or visitation rights solely because of that parents report of sexual abuse or actions taken based on a reasonable suspicion of sexual abuse. Tamara argues that the entire trial was about sexual abuse, and therefore, the disposition must have been based solely on the courts finding that the sexual abuse allegations were not proven. The record does not support this argument.

When the trial commenced in February 2007, the court had before it two competing OSCs, one based on Tamaras request to modify custody and visitation in light of her allegations of sexual abuse by Paul, and another based on Pauls request to modify custody and visitation because the sexual abuse allegations were unfounded and Tamara was allegedly engaged in a continued orchestrated attempt to limit his contact with his daughter.

One of the factors that must be considered in determining custody and visitation is [t]he nature and amount of contact with both parents. ( 3011, subd. (c).) [I]t is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage , and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child. ( 3020, subd. (b).) When granting custody to one parent, the court must consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. ( 3040, subd. (a)(1).)

The bulk of the testimony at trial did focus on the validity of Tamaras allegations of sexual abuse. The court, however, also heard testimony from a court appointed expert, Dr. Bernstein. He was appointed as an independent Family Assessor, to among other issues assess any indication of the presence of Munchausens Syndrome by Proxy, the possibility of molest and the possibility of parental alienation of either parent. He understood he was to perform a psychological evaluation of the parents and to assist in determining a suitable parenting plan. He gave two psychological tests to each parent and testified extensively regarding the results.

Dr. Bernstein testified that Tamara had a tendency to be dominant and controlling in relationships. He stated she had some unusual types of thinking that were not well-grounded in reality as someone else might observe it and some delusional ideation about having a special mission in life to protect her daughter from perceived threats to her safety. Thus, she would believe her perception of reality, even if it were different from reality as others might see it. Dr. Bernstein believed Tamara was a devoted, committed, and protective mother who organized her life around her daughter. If her daughter were to spend more time with her father, that could become threatening to the mother; it would certainly create a void that would be disconcerting, at the least. Dr. Bernstein testified that Paul was insecure, oversensitive to criticism and rejection, passive, and unassertive. The personalities of the two parents were complementary; they fit with each other in a maladaptive fashion. Dr. Bernstein concluded that Tamara was not consciously attempting to alienate the child from Paul; she believed her perception that J.s safety was threatened by Paul, the support of experts seemed to validate that perception, and she did what she could to protect the child. Dr. Bernstein opined that Pauls assertion of his right to reasonable contact with J. may have contributed to the threat perceived by Tamara to her control over J.

Dr. Bernstein concluded [u]nsupervised contact between [J.] and her father did not pose an evident risk to [J.] and it would be in [J.s] best interests to have both parents share in her development. He recommended an equally shared custody arrangement. He added that additional unfounded child abuse allegations should be the basis for considering a restriction in that parents custody privileges. He explained that the emphasis in this statement was on the term unfounded. Any concerns about abuse should be handled in a more cooperative fashion, being addressed in conjoint counseling; the counselor might be required to report the allegations, but while the matter is being investigated, the parties, together with the therapist, would act in ways to protect J.s well-being. If there were a continued pattern of unfounded reporting, he stated, it would be unsettling to J.s well-being and pose a risk to her psychologically and emotionally.

The court followed Dr. Bernsteins recommendations. Dr. Bernsteins recommendation that the parents share custody equally was not based solely on Tamaras unsubstantiated allegation of sexual abuse by Paul. Dr. Bernstein concluded there was insufficient evidence to support that allegation, but also concluded Tamara did not intentionally make a false allegation. He suggested a continued pattern of future unfounded allegations might be the basis for considering a restriction on Tamaras custody rights, because of the adverse effects of such allegations on J., but he did not indicate any restriction should be made currently. His recommendation of equally shared custody appears to be based on his conclusion that both parents displayed effective parenting skills, had meaningful bonds with their child, and should participate in the childs development.

Frustration of visitation rights by the custodial parent is a proper ground for transfer of custody to the formerly noncustodial parent. [Citations.] This concept finds support in the language of Civil Code section 4600, subdivision (b)(1) [now Family Code, 3040, subdivision (a)(1)], which provides that in awarding custody as between parents, the trial court should consider ...which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent,... (Speelman v. Superior Court (1983) 152 Cal.App.3d 124, 132, second bracketed insertion added.) In addition to Dr. Bernsteins report and testimony, the court also had before it evidence that, at the outset of the dissolution proceedings, Tamara had initiated charges of domestic violence against Paul, and used those allegations to obtain a restraining order against him, as well as an order granting Tamara primary legal and physical custody of J., with only supervised visitation for Paul. Paul was acquitted of those charges. Tamara subsequently sought modification of the custody and visitation order based on allegations that Paul was physically violent with J.; the court rejected those allegations.

The court had before it evidence relating to the various factors to be considered in determining the best interest of the child. Regarding the health, safety and welfare of the child ( 3011, subd. (a)), there was evidence that both parents related well to J. and had formed a bond with her. Tamaras asserted ground for limiting Pauls visitation the allegation of sexual abuse - was not established, and there was no evident risk to J. from unsupervised contact with Paul. Dr. Bernsteins psychological evaluation indicated Tamara was dominant and controlling, and saw Pauls requests for more time with J. as a threat to her control over J. and over Pauls access to her; this suggested further attempts by Tamara to limit Pauls contact might occur. There was evidence it was in J.s best interests to have both parents participate in her development.

There was no substantiated history of abuse by a parent against the child or the other parent ( 3011, subd. (b)); there was evidence Tamara had twice previously made allegations of physical abuse against Paul in connection with requests to limit his contact with J., but those allegations were rejected. As to the nature and amount of contact with both parents ( 3011, subd. (c)), there was evidence both parents maintained contact with J. to the extent permitted by the existing custody and visitation orders. Paul repeatedly requested greater visitation, and Tamara opposed.

The record does not support Tamaras claim that the April 17, 2007, custody and visitation order reduced her time with J. based solely on her unsubstantiated allegations of sexual abuse by Paul. Rather, the record indicates there were two competing requests for modification of the custody and visitation order and, after concluding Tamara had not met her burden of establishing sexual abuse as alleged in her request, the court applied the best interest of the child standard to determine an appropriate disposition. There was substantial evidence supporting the courts conclusion that a custody arrangement granting equal time to both parents would be in the best interest of the child. The trial court could have reasonably concluded that the order advanced the best interest of the child; therefore, the court did not abuse its discretion by ordering joint custody with equal time to both parents.

This is a close case. Although we uphold the trial courts order and find no violation of section 3027.5, we are concerned with the manner in which the issue of modification of custody was handled in this matter. Section 3027.5 serves an important function in custody determinations and should be given its full effect when allegations of sexual abuse are made, but ultimately are found to be unsubstantiated. It would be a better practice for the trial court to hear a request for modification of custody based on allegations of sexual abuse separately from any competing request for modification based on other factors, in order to isolate the issues and avoid a chilling effect on parents who might otherwise perceive they are being punished for lawfully reporting suspected abuse. The perception of the fairness of the proceedings may be adversely affected by combining the issues for hearing.

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal.

_____________________

HILL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

WISEMAN, J.

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^[1] As is customary in family law cases, we refer to the parties by their first names for purposes of clarity and brevity, and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

^[2] All further statutory references are to the Family Code, unless otherwise indicated.

^[3] In the record, the hospital is referred to at times as Childrens Hospital Central California and at times by its prior name, Valley Childrens Hospital. For consistency, we will refer to it by its current name.