O.O. v.
Dennis R.
Filed 12/17/12
O.O. v. Dennis R. CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
O.O.,
Plaintiff
and Respondent,
v.
DENNIS R.,
Defendant
and Appellant.
B233505
(Los
Angeles County
Super.
Ct. No. LF004579)
APPEAL from an order of the Superior
Court of Los
Angeles County, Steff R. Padilla, Temporary Judge.
Remanded with directions.
Dennis R., in pro. per.; Robert F.
Smith, for Defendant and Appellant.
Carl Etting for Plaintiff and
Respondent.
_______________________________________
Dennis R. (father) appeals from the
trial court’s order granting O.O.’s (mother) request to be allowed to relocate
with their children to Israel.
AND PROCEDURAL BACKGROUND
name="_ftnref2" title="">[1]
Mother
and father, who were never married, have three children together: O.R., born in December of 2001; L.R., born in
October of 2003; and S.R., born in February of 2007. Mother is an Israeli citizen and the children
speak both Hebrew and English.
Mother
filed a request for a restraining order under the Domestic Violence Prevention
Act (DVPA) on September 2, 2008. Both
mother and father filed petitions to establish father as the father of the
children and the petitions were consolidated shortly thereafter. A temporary
father to monitored visitation with the children were put in place.
Mother
filed a request to relocate with the children to Israel on June 23, 2009. The bases for her request included father’s
history of violence against her, his anger management issues, his failure to
provide child support, mother’s inability to support herself in the United
States and being on welfare, her support system’s being almost entirely in
Israel, and a job at her sister’s retail establishment waiting for her in
Israel. The trial court ordered a child
custody evaluation report pursuant to Evidence Code section 730 on August
3, 2009. The evidentiary hearing on the
request for a DVPA restraining order and mother’s request to be allowed to relocate
began on April 7, 2010 and continued for eight more days in court over the span
of seven months.
On
November 18, 2010, the trial court issued an Order of Protection
under the DVPA requiring father to stay at least 100 yards away from mother,
her home, her vehicle and her workplace and to refrain from engaging in certain
harassing behaviors enumerated in the order.
The Order of Protection also granted mother the right to record
communications with father and directed father to take a 52‑week batterer
intervention program. Finally, with
respect to the children, the Order of Protection granted sole physical custody
to mother and ordered supervised visitation with father with the paternal
grandmother as the monitor. Father has
not appealed from this order.
With
respect to mother’s request to relocate with the children to Israel, the trial
court granted her request on March 30, 2011.
Disagreeing with the decision, father filed a motion for a new trial and
for reconsideration of the March 30, 2011 order on April 11, 2011,
which was denied. On May 27, 2011,
father filed a notice of appeal with respect to the order entered on
March 30, 2011 and the trial court’s denial of his motion.
Father
contends that the trial court erred in granting mother’s request to relocate
with the children to Israel. To support
his contention, father argues that (1) the trial court applied the wrong test
in deciding the issue; (2) the evidence did not support the order; and (3) the
order did not sufficiently safeguard father’s visitation rights.
1. Standard
of Review
“We
review for abuse of discretion relocation orders that permit a custodial parent
to move away with a child.
[Citations.]†(
106 Cal.App.4th 1294, 1298.)
2. The
Trial Court’s Application of the “Changed Circumstances†Standard
Father
argues that the trial court erred in applying the “changed circumstancesâ€
standard, which required father to show detriment, in ruling on mother’s
request to relocate with the children to Israel. He asserts that the DVPA Order of Protection
was not a final judicial determination of custody and therefore the proper test
was the “best interests†test.
“When
a final judicial custody determination
is in place . . . , and a noncustodial parent seeks to
modify custody in response to a proposed relocation, the trial court must apply
the changed circumstance rule. Although
the noncustodial parent is not required to show a custody modification is
‘essential’ to prevent detriment to the child from the planned move, he or she
bears the initial burden of showing that the proposed relocation of the child’s
residence will cause detriment to the child, requiring a reevaluation of the
existing custody order.
[Citations.]†(
(2006) 37 Cal.4th 947, 959-960.) If
the noncustodial parent fails to show such detriment, the trial court may deny
any such request for modification without holding an evidentiary hearing.
at p. 962; Elkins v. Superior Court
(2007) 41 Cal.4th 1337, 1360.) But, if
detriment is shown, the trial court is obligated to apply the “best interestsâ€
test to determine whether a change in custody is needed. (In re
Marriage of Brown & Yana, supra,
37 Cal.4th at pp. 960-961.) In
cases where there is no prior judicial determination of custody, the initial
showing of detriment is not required and the trial court proceeds directly to
the “best interests†test. (
13 Cal.4th 25, 34.)
Father
correctly asserts that, under Keith R. v.
Superior Court (2009) 174 Cal.App.4th 1047, 1054, he should not have
been required to show detriment to the children as a result of the proposed
move because custody orders issued as part of a DVPA Order of Protection
are not generally considered the functional equivalent of a final judicial
custody determination. He fails to
argue, however, that he suffered any prejudice since the trial court found that
he had made a prima facie case of detriment then ultimately actually applied
the “best interests†test with respect to mother’s request to relocate. “We are required to uphold the ruling if it
is correct on any basis, regardless of whether such basis was actually
invoked. [Citation.]†(In re
Marriage of Burgess, supra, 13
Cal.4th at p. 32.) Although the trial
court erroneously initially required a showing of detriment, it ultimately
applied the correct legal test, the “best interests†test, in deciding mother’s
request to relocate with the children.
We find no reason to reverse the order for an abuse of discretion on
this basis.
3.
in the Record Supports the Trial Court’s Order
Father
next generally contends that the evidence was insufficient to support the trial
court’s order. He also specifically
makes three similar arguments that we address herein, which are: (a) that the trial court improperly
disregarded the evaluation report and the testimony of the expert evaluator;
(b) that the trial court improperly relied on mother’s representation that she
would move to Israel with or without the children; and (c) that the trial
court was biased
because it believed mother’s testimony over his.
“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,
for an exercise of discretion is similar to analyzing the sufficiency of the
evidence for the ruling. . . . Broad deference must
be shown to the trial judge. The
reviewing court should interfere only ‘ “if [it] find[s] that under all
the evidence, viewed most favorably in support of the trial court’s action, no
judge could reasonably have made the order that he
did.†. . . ’ â€
[Citations.]’ [Citation.] ‘ “The burden is on the party
complaining to establish an abuse of discretion, and unless a clear case of
abuse is shown and unless there has been a miscarriage of justice a reviewing
court will not substitute its opinion and thereby divest the trial court of its
discretionary power.†[Citations.]’ [Citations.]â€
(Rich v. Thatcher (2011) 200
Cal.App.4th 1176, 1182.)
Prior
to granting mother’s relocation request, the trial court issued an Order of Protection
based on its findings that father had engaged in domestic violence against
mother and had physically abused, on at least one occasion, his daughter (K.R.)
from a prior relationship. Neither that
order nor the findings on which it is based are challenged in this appeal. Under Family Code section 3044, “there
is a rebuttable presumption that an award of sole or joint physical or legal
custody of a child to a person who has perpetrated domestic violence is
detrimental to the best interest of the child.â€
Even without this presumption, the evidence presented to the trial court
supports its conclusion that it was in the best interests of the children for
them to remain in mother’s custody despite her move to Israel.
At
the combined trial on the Order of Protection and the request to relocate,
mother testified extensively regarding father’s abusive and bullying
behavior. She testified that he slapped
her, choked her, pushed her to the ground and dragged her along the floor. She also testified that he threw things at
her, attempted to force his way into her apartment and reached up her skirt in
public in front of the children. Mother
stated that father threatened to hurt her if she left him saying, “You’re finished. I’m going to hurt you. That’s the end of you.†She testified that he engaged in other
offensive tactics, such as spitting in her face at Chuck E. Cheese’s restaurant
and calling her offensive names, all in front of the children. The court found such testimony credible.
Father
denied these allegations and any responsibility for his actions generally and,
in the opinion of Dr. Jill Schneider, the psychologist hired to write a custody
evaluation report, father frequently took the position that
had impulse control and anger problems.
When
asked whether mother or father was more likely to facilitate a relationship
with the other if mother left the country, Dr. Schneider testified that she
believed mother would. She also testified
that mother was a “fabulous mother†and that she had the proper parenting
skills to take care of the children whereas father would need help. In her opinion, the animosity between the
parents would “slow down†if mother moved to Israel. And finally, she testified that she did not
believe father should have primary custody of the children. The trial court’s conclusions in light of the
evidence in the record were not unreasonable.
a. The
Trial Court Could Properly Disregard the Evaluation Report
Father
argues that the trial court improperly disregarded the evaluation report
prepared by Dr. Schneider. This argument
is without merit. “The [trial] court
merely and appropriately determined that [the contents of the report were] not
dispositive.†(In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 718.) From Dr. Schneider’s testimony, it was clear
that in her evaluation report she did not properly analyze the issue of custody
in the context of a move-away order.
Instead, she only considered whether the best interests of the children
were served if mother remained in California versus if mother moved to Israel
with the children.
b. The
Trial Court Properly Assumed Mother Would Move
Even
if Custody Would be Given to Father
Father
argues that it was improper for the trial court to assume that mother would
move to Israel even if father was granted custody of the children. We disagree.
With
respect to move-away orders, the “issue is not whether the custodial parent
will be permitted to move, since both the federal and California Constitutions
preclude the court from prohibiting a move.
[Citation.] The issue before the
court is: assuming the custodial parent moves, does the best interest of the
child require changes be made in the existing custody or visitation
arrangements? To phrase the issue
any other way would assume the unrealistic possibility that a court order could
result in the custodial parent moving away, leaving the child behind
(presumably in the care of third parties).â€
(Brody v. Kroll (1996) 45
Cal.App.4th 1732, 1736 [Italics added].)
Unless the trial court found that mother’s decision was in bad faith,
and no such finding was made here, “the trial court must treat the plan as a
serious one and must decide the custody issues based upon that premise. The question for the trial court is not
whether the parent may be permitted to move; the question is what arrangement
for custody should be made.†(
1197, 1206.) Father points to no
authority that supports his contrary view.
The
trial court’s analysis of the best interests of the children, assuming that
mother would move to Israel and father would remain in his current location,
was the correct legal standard and, therefore, was not an abuse of discretion.
c. The
Trial Court Could Properly Find that Mother’s Testimony
Was More Credible
Than Father’s
Although
father’s argument is under the heading “Abuse of Power and Judicial Bias,†he
attributes error to the trial court’s decision to disregard mother’s “repeated
filing of false accusations and perjuring herself under oath.†In his opening brief, he lists numerous
alleged “lies†and “contradictions†in her testimony as well as includes
a vague statement asserting that “Civil procedure codes [sic] were
violated†in support of his argument. It
is well established that a trial court in a bench trial is the finder of
fact and that “[e]vidence from a single witness, even a party, can be
sufficient to support the trial court’s findings. [Citations.]â€
(In re Alexis E. (2009)
171 Cal.App.4th 438, 450-451.)
Father fails to point to any authority to the contrary that supports his
argument and we find that it is entirely without merit.
Based
on the foregoing, we find that father failed to meet his burden of establishing
that the evidence in the record did not support the trial court’s conclusions.
and a number of other individuals in a lengthy trial, the trial court
could reasonably find that it was in the best interest of the children that
mother retain sole physical custody, even if she moved to Israel.
4. The
Order Insufficiently Safeguarded Father’s Visitation Rights
Father
also contends that the trial court did not sufficiently safeguard his rights
with respect to visitation. Father
relies on In re Marriage of Condon
(1998) 62 Cal.App.4th 533 and In re
Marriage of Abargil, supra, 106 Cal.App.4th 1294 to support this
contention.
The
Court of Appeal in In re Marriage of
Condon set forth three factors that must be considered by a trial court
when “confronted with a parent’s request to relocate a child to a foreign
jurisdiction . . . in addition to those affecting a
domestic move-away.†(
raise any significant cultural problems; (2) whether the distance,
problems of expense, jet lag and the like resulting from the move is likely to
result in a de facto termination of the nonmoving parent’s rights to visitation
and the child’s rights to maintain a relationship with that parent; and
(3) what steps must be taken in order to ensure the enforceability of the
custody and visitation arrangements made for the nonmoving parent. (Id.
at pp. 546‑547.) Father does
not challenge the trial court’s findings with respect to whether the move will
raise any significant cultural problems.
Instead, he challenges only the second and third factors.
In
taking the position that the distance, problems of expense, jet lag and the
like resulting from the move is likely to result in a de facto termination of
father’s rights to visitation, he cites the following excerpt from
relocation to another continent is likely to represent a de facto
termination of the nonmoving parent’s rights to visitation.†(Id. at
p. 547.) However, father includes
no analysis or argument as to how the trial court’s order failed to take this
into consideration. To the contrary, the
record indicates that the trial court did.
In
In re Marriage of Condon, the lower
court provided that a portion of the support payments that father otherwise
would have made could be used to cover the visitation expenses of travel
between the United States and Australia.
(Id. at p. 553.) The order also provided for specific
additional visitation time. (
together, this method carefully balanced the factors and served the bests
interests of the children and was thus reasonable. (Ibid.) The trial court here did the same thing.
In
its Statement of Decision, the trial court here found, despite father’s claims
that he could not afford to travel to Israel, that visitation was not
financially prohibitive as both parties had traveled back and forth between the
United States and Israel several times before.
The trial court found that father could use the child support payments
he was required to make under an August 2010 order to fund the children’s and
his travel between Israel and the United States.
The
trial court also ordered that father could travel to Israel for a ten-day
unmonitored visit with the children in the summer of 2011. The trial court ordered the visit in the
summer of 2012 to occur in California and be extended to 14 days. It also ordered father to have electronic
visitation contact with the children via Skype for at least 15 minutes every
Monday, Wednesday, Thursday and Sunday.
Although
neither parent was found to be “of considerable means,†father fails to show
that the relocation represents a de facto termination of his rights to
visitation given the availability of court-ordered support payments to cover
transportation costs, the unmonitored summer visits, and the required Internet
communication via Skype.
name="_ftnref8" title="">[7] “The trial court’s orders on custody,
visitation, and Internet communication [were] tailored to foster the minors’
frequent and continuing contact with father [pursuant to Family Code
section 3020
title="">[8]]. [While] [i]t is true that in-the-flesh visits
will occur farther apart in time, . . . nothing in section
3020 precludes that change.†(
With
respect to the question of enforceability, father asserts that the trial court
erred in failing (1) to require mother to put forth an enforcement bond; and
(2) to reduce his child support order as a method of enforcing the
move-away order. He also asserts that
the Hague Convention provides no safeguards with respect to enforcement of
a California court order in Israel.
The
court in In re Marriage of Condon
stated that the “Hague Conference on Private International Law, Convention on
the Civil Aspects of International Child Abduction (Oct. 25, 1980) 19 Intl.
Legal Materials 1501 (Hague Convention), serves an analogous function to the UCCJA[
in custody disputes involving countries that are
signatories . . . . â€
(In re Marriage of Condon,
one year. (Ibid.) In reversing the
lower court’s order allowing the mother to move to Australia with the minor
children, the appellate court directed the trial court to “obtain a concession
of jurisdiction and furthermore to create sanctions calculated to enforce that
concession. At a minimum, such sanctions
should include the posting of an adequate monetary bond within [that mother’s]
means and the potential forfeiture of all or some support payments upon proof
[the mother] is disregarding essential terms of the court order or has violated
the concession of jurisdiction by pursuing modification of the California order
in the courts of Australia or any other nation.†(Id. at
p. 562.)
In
order to comply with In re Marriage of
Condon, the court in In re Marriage
of Abargil remanded the matter and ordered the trial court to modify its
judgment, which allowed the mother in that case to move to Israel with her son,
to ensure enforcement of the visitation orders by: (1) requiring the mother to post a
substantial financial bond in an amount sufficient to ensure her compliance
with the court’s judgment and order; (2) prohibiting the mother, who had
conceded to California’s continuing jurisdiction, from attempting to modify the
judgment except on application to a California state court with any attempt to
do so in a non-California court absent a showing of good cause being deemed a
violation and grounds for forfeiture of the bond and other sanctions as
appropriate; and (3) requiring the mother to register the trial court’s
judgment with the proper Israeli authorities before traveling to Israel. (In re
Marriage of Abargil, supra, 106 Cal.App.4th at pp. 1303-1304.)
In
the case before us, the trial court made the following orders: (1) mother shall not file any action in
the Israeli courts involving custody and visitation; (2) any requests for
modification shall be made in California; and (3) child support payments shall
not be paid to mother, but rather shall be used to fund visitation travel for
father and the children thereby reducing the father’s child support paid
directly to mother. Mother filed a
“stipulation and consent†in the form of a declaration stating that she agreed
that the United States is the “habitual home†of the children and that she
consented to California’s having jurisdiction over her, father and the children
with regard to all child‑custody issues.
The trial court took judicial notice that Israel is a signatory to the
Hague Convention without objection.
Mother
was not required to post any bond and she was allowed to leave the United
States with the children without registering the order with the proper Israeli
authorities before doing so. As a
result, the trial court’s order failed to satisfy the requirements of both
In
In re Marriage of Abargil, a stay was
issued and not lifted until that mother complied with that court’s
modifications upon remand. We do not
have such a stay in place here and mother has already departed. Additionally, father’s counsel stated that
mother failed to allow the children to visit father during the summer of 2012
and that she had filed a legal proceeding in Israel to obtain an order
preventing the children from leaving Israel and granting her 100-percent
custody of them. Ordinarily, we would
have remanded the case to the trial court with directions to modify the order
to require mother to post an adequate bond or other surety that would be
forfeited in the event she failed to comply with the order and to require
mother to register the order with the proper Israeli authorities. But if the information provided by father’s
counsel is true, it is unlikely that mother would comply with any such
modifications.
Because
we find that the trial court did not abuse its discretion in granting the
move-away order, we will affirm it.
However, the interests of justice require that we remand the case in an
attempt to mitigate the consequences suffered by father as a result of mother’s
potential violation of the lower court’s orders. In our remand, we will direct the trial court
to hold a hearing for a factual determination of whether mother has violated
its orders after which it is to consider suspending or otherwise modifying
father’s child support obligations as of a date that the trial court determines
to be appropriate until mother submits herself and the children to California’s
jurisdiction with respect to child-custody
issues.
The
move-away order is affirmed. The matter
is remanded to the trial court for reconsideration of the existing child
support order in accordance with the views expressed in this opinion. The parties shall each bear his or her own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
CROSKEY,
Acting P. J.
We Concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">* Pursuant to Cal. Const., art. VI, § 21.
name="_ftn2" title="">[1]
the record, which includes a two-volume Clerk’s Transcript, a four-volume
Reporter’s Transcript and a one‑volume augmentation.
