Marriage of Bowman

Filed 1/29/09 Marriage of Bowman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. David A. Williams, Judge. Affirmed.

Gregory Paul Benton for Appellant.

Edmund L. Montgomery for Respondant

Appellant Katherine Worden Bowman (Katherine) appeals from the superior courts post-dissolution order that Katherine and respondent Chad Bowman (Chad) share the transportation of their three minor children for weekend visitation. Katherine lives in Glendora and Chad lives in Wasco, just north of Bakersfied. The order specified that the parties meet in Valencia to exchange the children. Katherine contends the court abused its discretion because it based its decision on the frequent and continuing contact standard rather than on the best interests of the children standard, and, by implication, implementation of the best interests standard would have resulted in the outcome Katherine sought. As discussed below, we conclude that Katherines arguments are without merit.

Statement of Facts and Procedure

The marriage of the parties was dissolved by a Judgment Pursuant to Stipulation (Judgment) entered March 7, 2007. The Judgment provided for joint legal custody of the parties three sons, then ages 8, 9 and 10. Primary physical custody was awarded to Katherine, with Chad to have the children on the weekends beginning with the first, third and fourth Fridays of each month, from 6:00 p.m. Friday until 6:00 p.m. Sunday. The Judgment provides that The receiving parent shall be responsible for transporting the minors for visitation. The parties lived in Upland, California prior to the judgment. Shortly thereafter, Katherine moved to Glendora. Chad lost his job in Murrieta and in October 2006 had moved to Wasco, where he had found a job and at some point remarried. Beginning in October 2006, Chad drove from Wasco to Glendora to pick up the children for visitation.

On June 12, 2007, Katherine filed an ex parte application to modify the Judgment. Katherine asked for an order that Transportation for visitation shall be provided by Chad Bowman for his 3 sons . . . [f]rom their primary physical address . . . and returned to the same address. Chad responded on July 2, 2007. Chads response is not included in the record on appeal. The matter was heard on August 20, 2007, then continued to October 18, 2007, so the parties could be referred to mediation. In the meantime, the court changed visitation to the weekends commencing on the first and third Fridays of each month, plus any weekends commencing on the fifth Friday. On October 11, 2007, Katherine filed a memorandum of points and authorities addressing the merits of modifying the visitation orders. That memorandum requested both that Chad provide all transportation and, for the first time, that he conduct the visitation in Glendora. This request was not included in Katherines June 12, 2007, ex parte application to modify the Judgment.

At the continued hearing held on October 18, 2007, Katherines counsel referred to a filing in which Chad requested modification of support and visitation. This filing is not part of the record on appeal. It appears that Chad requested that the children be exchanged in Castaic. This was the first hearing at which Katherine requested that all visits take place in Glendora. The court ordered the parties to conduct the visitation exchange in Valencia. The court stated that Valencia is 15 to 20 minutes south of Castaic and about a 45-minute drive from Glendora.

On October 26, 2007, Katherine filed a Motion for Reconsideration. This motion is not included in the record on appeal.^[1] Chad filed his response on December 4, 2007. At the hearing held on December 5, 2007, the court first commented that it saw nothing new in your motion for reconsideration, just additional argument. Counsel for Katherine stated there are new facts regarding the travel times and regarding the fact that my client did secure a job that now makes it almost impossible for her to make the 6:00 deadline in terms of exchanging the children up north. Katherines counsel also argued, as he stated that he had also argued in the motion for reconsideration that is not a part of this record, that the court erred in not using the best interest of the child standard when it ordered Katherine to participate in transporting the children for visitation with Chad. The court found that no new facts had been presented, and denied the motion.

Discussion

1. Petition to Modify Transportation (and Place of Visitation)^[2]

Katherines argument that the juvenile court erred in ordering her to share in transporting her children to and from weekend visits with Chad revolves around the public policy statements set forth in Family Code, section 3020. That provision provides, essentially:

(a) . . . it is the public policy of this state to assure that the health, safety, and welfare of the children shall be the courts primary concern in determining the best interest of children when making any orders regarding . . .visitation of children. . . .

(b) . . . it is the public policy of this state to assure that children have frequent and continuing contact with both parents . . . .

(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any courts order regarding . . . visitation shall be made in a manner that ensures the health, safety and welfare of the child[ren] and the safety of all family members.

In other words, the courts must consider both: 1) the health, safety and welfare of the children as the primary criteria in determining their best interest; and 2) the benefits of frequent and continuing contact with both parents. When and if these policies conflict, the courts orders must ensure the health, safety and welfare of the children, and the safety of all family members.

The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. Under this test, the reviewing court must uphold the trial court's ruling if it is correct on any basis, regardless of whether such basis was actually invoked. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Moreover, under the so-called rule of changed circumstances, a party seeking to modify a permanent custody or visitation order can do so only if he or she demonstrates changed circumstances justifying a modification. (Id. at p. 256.) In other words, the trial court should preserve the status quo unless a significant change in circumstances indicates that something different would be in the child's best interest. (Ibid.)

Here, Katherine first argues that it would be in the best interest of the children for Chad to be solely responsible for transporting the children back and forth from Glendora to Wasco. We fail to see how this affects the best interest of anyone other than Katherine and Chad.

Katherine also argues it would be in the best interest of the children for Chad to conduct the weekend visitation in Glendora, rather than having the children transported two and one-half hours in each direction. Her complete argument on appeal is that the court orders placed an undue burden on the children regarding their stability in the community and their daily schedules and that [t]he childrens contacts with friends within their community have been drastically reduced because of the visitation in Wasco. However, the court also had before it evidence that the children were tolerating the visitation and even enjoying it. Chad stated at the August 20, 2007, hearing that [t]he children have done fine in the car driving back and forth. I was able to get ahold of a DVD player for them to watch in the car. There are comic books also. They have other things to keep them entertained and busy. Chad also stated that the children have a number of friends up in the community that they live in and in the church that they have known for a number of years. When the court asked for further information on the childrens connection to Wasco, Chad answered To their new sisters and also to the friends that they know from camp, friends they know -- they used to live up in the Taft area, which is up in the Bakersfield area. They have a number of friends that they are reconnecting with in the community. Chad also stated that the children were involved in Sunday youth church in Wasco.

We conclude that Katherine did not meet her burden to show that the health, safety and welfare of the children would be served by either having Chad provide all of the transportation for the visitation, or by having Chad conduct the weekend visitation exclusively in Glendora. The evidence available to the trial court shows that the children have friends in and are part of the community in Wasco, as well as Glendora.

Katherine also argues that The court may not apply the frequent and continuing contact standard where it is in conflict with the best interest of the child standard, citing In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 995. Even assuming this is a correct statement of the law, Katherine still has not established that regular visitation with Chad in Wasco conflicts with the childrens best interest, as described immediately above.

Finally, Katherine points to section 3020, subdivision (c), for her argument that where the best interest of the children conflicts with the need for frequent and continuing contact with both parents, the court must consider the safety, health and welfare needs of the children and the parents. The only additional argument Katherine provides as to how continued contact with Chad in Wasco is detrimental to the childrens best interest is to assert that the children would have to endure the additional burdens of step-siblings and inadequate sleeping arrangements resulting from the Respondents new marriage and relocation. First, Katherine does not explain how having step-siblings would be a burden. Second, Katherine also fails to point to any evidence as to what the sleeping arrangements are and how they are inadequate. It is the burden of the appellant to demonstrate that the trial court erred such that reversal is merited. (Frank & Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) Katherine has failed to adequately support her arguments on appeal that the best interests of the children require that Chad both provide all transportation and conduct the visitation in Glendora. Thus, we find Katherines arguments to be without merit and so must affirm the trial courts ruling on Katherines motion to modify the transportation and the visitation.

2. Motion to Reconsider

Katherine also argues the trial court erred when it denied her motion for reconsideration because it applied an incorrect legal standard. Specifically, Katherine argues that In making its ruling, the court applied paragraph (b) of Family Code section 3020 without considering paragraph (a) and stated that the most important principal was the frequent and continuing contact standard. We review the trial court's ruling on the motion for reconsideration under the abuse of discretion standard. (Gladev. Glade (1995) 38 Cal.App.4th 1441, 1457.)

A party affected by a trial court's order may seek reconsideration of that order under Code of Civil Procedure section 1008  . . . within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law . . . . The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc., 1008, subd. (a).)

Here, Katherine does not argue that her motion for reconsideration, which is not part of this record on appeal, presented new or different facts. Rather, she argues the court used an incorrect legal standard. However, she fails to support this argument with either a citation to the record as to what legal standard the court employed, or any specific authority as to what the correct legal standard is. Again, Katherine does not meet her burden on appeal to affirmatively establish error. (Frank & Freedus v. Allstate Ins. Co., supra, 45 Cal.App.4th at p. 474.)

3. Motion for Sanctions

On July 28, 2008, Chad filed a motion for award of sanctions, asking this court to award his attorney fees and costs and arguing both that this appeal is frivolous and has no merit whatsoever, and that it was taken for the purpose of harassing Chad or to delay the proceedings, pursuant to California Code of Civil Procedure section 907 and California Rules of Court, rule 8.276. On August 19, 2008, this Court reserved ruling on Chads motion for consideration with this appeal.

[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [] However, any definition must be read so as to avoid a serious chilling affect on the assertion of litigants rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals. (In re Marriage of Flaherty 31 Cal.3d 637, 650.) Moreover, the punishment should be used most sparingly to deter only the most egregious conduct. (Id. at p. 651.) Weighing the chilling effect of sanctions against the issues raised in this appeal, and finding that a reasonable attorney could possibly have believed the appeal had some modicum of merit, we conclude that sanctions are not justified. The motion for sanctions is denied.

Disposition

The judgment of the trial court is affirmed. Chad shall recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

MILLER

J.

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^[1] The record includes Katherines Notice of Motion for Reconsideration, but not the referenced supporting declaration of Katherine or memorandum of points and authorities.

^[2] Katherine raised only the transportation issue in her petition to modify the Judgment. She argued only later in the proceedings that the Judgment should be modified to provide that Chad must conduct the visitation exclusively in Glendora. Out of an abundance of caution, we assume that the place of visitation issue is a proper issue in this appeal.