A.J. v. L.W.
Filed 12/19/13
A.J. v. L.W. CA2/4
NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
A.T.J.,
Plaintiff and Appellant,
v.
L.A.W.,
Defendant and Respondent.
B243437
(Los
Angeles County
Super. Ct. No. EF001794)
APPEAL
from an order of the Superior
Dianna Gould-Saltman, Judge. Affirmed.
A.T.J.,
in pro. per., for Plaintiff and Appellant.
L.A.W.,
in pro. per., for Defendant and Respondent.
__________________________________
>
Appellant
A.T.J. seeks review of family law orders governing custody of and his
visitation with his and respondent L.A.W.’s children. The orders were issued by the
2011, and June 2012. We conclude the
time is long past for appellate review of the 2008 and 2011 orders. We further conclude the contentions appellant
makes with respect to the 2012 order lack merit. Accordingly, we affirm.
A. Court
Appellant
and respondent were in a relationship for several years beginning in 1998. In April 2004, their first daughter (J.) was
born. In August 2006, while pregnant
with their second daughter (G.), respondent took J. and moved to Michigan, where her family
resided. In September 2006, appellant
obtained an order instructing respondent to return to California with J. Respondent returned, and G. was born in
October 2006.
title="">[1] In December 2006, the court issued temporary
child custody and visitation orders giving joint
of the girls to both parties and providing visitation for appellant.
The
parties stipulated to the appointment of a court evaluator who prepared an
evaluation in September 2007 to assist the court in making the final
determination. Appellant’s ex-wife
reported to the evaluator that appellant had been physically abusive to their
seven children and mentally and emotionally abusive to her. The evaluator found that appellant had
physically abused respondent on one occasion.
The evaluator also found that appellant had been emotionally abusive
toward respondent during their relationship, subjecting her to isolation,
financial control, disparagement, threats, and harassment.
only to surrender physical custody of the girls to him but to give up her
parental rights altogether. Appellant
also repeatedly indicated his intention to take the children out of the United States.
The
evaluator concluded that respondent should be given primary custody of the
girls and permission to move with them to Michigan to be near her
family. The evaluator found that
respondent had been their primary custodian, and that respondent was more
likely to promote a positive relationship between the girls and the
noncustodial parent than appellant would be if he were the primary
custodian. The evaluator noted that if
respondent moved to Michigan, her family could provide
support for her and the children.
name="_ftnref4" title="">[4] The evaluator investigated appellant’s
allegations that respondent’s father, with whom she and the girls would be
living in Michigan, was physically abusive or an
alcoholic, and that respondent’s brother had attempted to sexually abuse
respondent when she was a girl; the evaluator concluded that neither man posed
a threat to the children.
The
court’s February 27, 2008 order essentially
followed the evaluator’s recommendations, awarding respondent sole legal custody
and primary physical custody of the two girls, then ages three and one, and
permitting her to move with them to Michigan. The February 2008 order provided appellant
monthly visitation in Michigan.
the girls to California once a year in the
summer. The February 2008 order
represented a final judgment in the custody dispute, and notice of entry was
provided on March 10, 2008. Appellant did not appeal the February 2008
custody and visitation order.
name="_ftnref6" title="">[6]
B. Court’s
February 2011 Post-Judgment Custody and Visitation Order
In
November 2008, appellant filed an application for modification of custody and
visitation. The application sought to
re-litigate a number of matters resolved in the February 2008 order, including
whether respondent should have been given primary physical custody and
permitted to move to Michigan, whether respondent’s
male family members posed a threat to the girls, and whether appellant should
be required to travel to Michigan for the majority of the
visitation. The hearing took place in
October and November 2010. In the
interim, appellant filed reports with the Michigan State Police and Michigan’s Children’s Protective
Services (CPS), claiming the children were being sexually abused.
order requiring appellant’s visitation with the children to be monitored.
At the
hearing on his November 2008 application, appellant attempted to persuade the
court that respondent was interfering with his visitation and communication
with the girls. He contended she had not
made the children available on one occasion when he was in Michigan and had failed to
cooperate when he attempted to schedule another visit. He sought to blame her for the fact that the
girls did not want to talk to him when he called. He also testified to statements and action of
the children that caused him to believe they might have been sexually
abused.
Respondent
testified that she always made the girls available for appellant’s calls. Respondent further testified she had refused
a request for a visit when appellant sought to arrange it one day after G. was
scheduled for a medical procedure and that on another occasion, an arranged
monitored visit did not take place because appellant arrived three hours late
and the monitoring facility was closed.
Respondent testified that she had enrolled the girls in therapy for six
months and that their psychologist had not indicated they had exhibited any
signs of having been sexually abused.
By
order dated February 7, 2011, the court denied
appellant’s request for modification of custody, finding there had been no
significant change of circumstances that would require or permit modification
of the February 2008 order. The court
specifically found that the evidence did not support that the minors had been
sexually abused or were at risk of sexual abuse. The court further found that respondent’s
failure to accommodate appellant’s travel delays and failure to encourage the
girls to communicate with him on the telephone were insufficient to support a
finding of parental alienation. The
court further found that appellant misused visitation “to develop evidence of
maltreatment.†The court concluded that
due to the hostility between the parents, visitation and arrangements for
visitation would “always be difficult.â€
The
February 2011 order lifted the monitoring requirement imposed by the January
2010 interim order. It modified the
original visitation schedule to replace the Saturday morning to Sunday evening
weekend visitation with two five-hour weekend daytime visits. The court also relieved respondent of the
responsibility of bringing the girls to California in the summer, instead
permitting appellant to visit them for one week in the summer in Michigan under the same terms and
conditions set forth in the February 2008 order for the California visits, as modified. The February 2011 order also declared
appellant to be a vexatious litigant.
C.
Visitation Order
In March 2012, appellant filed an application for
modification of custody and visitation claiming changed circumstances.
to the January 2010 psychologist’s report and to respondent’s testimony at the
2010 hearing that the children had undergone several months of therapy. He continued to accuse respondent of
instructing the girls to say they did not want to talk to him when he
called. He further contended that
respondent had interfered with a March 2011 visit and cut short his Christmas
2011 visit. He asked that he be given
primary custody. In the alternative, he
requested modification of the February 2011 order to permit overnight weekend
visitation in Michigan and to require respondent
to pay his travel costs to Michigan; he also sought
reinstatement of the portion of the February 2008 order requiring respondent to
bring the children to California in the summer for
visitation.
Respondent
filed a declaration stating that the Christmas 2011 visit was shorter than five
hours because she could not get the girls to the exchange location by 7:00
a.m. as appellant had unilaterally requested.
She admitted withholding the children from the second day of a two-day
visit in 2011, claiming appellant had transported the children without buckling
them into car seats and had refused to return them to the designated
location. Respondent further stated that
appellant owed over $70,000 in child support.
At the
hearing on appellant’s March 2012 application for modification, the court
advised appellant of his responsibility to show a change of circumstances since
the last order and warned him it could not address evidence previously
considered by the court, reconsider the prior order, or review prior orders for
error. Appellant testified that
respondent interfered with a visit in March 2011, refusing to return the
children for the second five-hour visit after the first was concluded.
that when the girls were put on the telephone to talk to him, they would say
they did not want to talk and hang up.
Appellant stated he was “certain†G. was being sexually abused because
her personality had “shifted.â€
Appellant
also contended at the hearing that the visitation order should be modified to
give him holiday visits. The court
reminded him that he set the visitation schedule by giving 30 days’ notice of
his arrival in Michigan and could do so whenever he desired a holiday visit.
the best interests of the [two girls] for a modification of visitation or
custody to be ordered as requested by [appellant],†and that appellant had
“failed to meet his threshold burden of showing a material change of
circumstances sufficient to warrant . . . a change of custody.†The court modified the prior visitation
orders by permitting appellant to communicate with the girls through Skype every
Monday, Wednesday, and Friday. The court
also changed the location of the custodial exchange from the police station
parking lot to the lobby of the hotel where appellant was staying.
Both
parties were ordered to enroll in “OurFamilyWizard.com†(Family Wizard) to
facilitate communication about the children, and were instructed to communicate
with each other only through Family Wizard, except with respect to matters of
an emergency nature concerning the health, safety, or welfare of the
children. The parties were further
instructed to permit the children’s attorney access to their Family Wizard
account. Appellant subsequently sought
“clarification†of the court’s order, specifically objecting to the requirement
that he and respondent communicate through Family Wizard and permit the children’s
attorney access to their communications.
The court modified the order in certain respects, but denied appellant’s
request to eliminate the Family Wizard requirements. Appellant noticed an appeal on August 21,
2012.
A. Appellant’s
Attempts to Raise Issues Pertaining to the February 2008 and February 2011
Custody and Visitation Orders Are Foreclosed
Much of
appellant’s brief is directed to matters addressed in the February 2008 and
February 2011 orders. The February 2008
custody and visitation order gave respondent primary custody of the children
and permitted her to move with them to Michigan. The order, entered after a hearing and
resolving all custody issues raised by the parties, was an appealable final
judgment. (See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088-1089, fn. 2
[order after hearing granting joint legal custody to both parties and primary
physical custody to mother constituted final judicial custody determination];
Cal.App.4th 1371, 1378 [order providing parents would share joint legal custody
and that father’s physical custody right would gradually increase over time
constituted appealable final judgment].)
The February 2011 custody and visitation order was similarly appealable
as an order after judgment. (See Code
Civ. Proc., § 904.1, subd. (a)(2); Enrique
M. v. Angelina V., supra, 121
Cal.App.4th at pp. 1376-1378 [order on father’s request that custody order be
modified constituted appealable order after judgment]; In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 705, fn. 1,
disapproved on other grounds by In re
Marriage of LaMusga, supra, 32
Cal.4th 1072 [trial court’s ruling on mother’s request for modification of
judgment as to custody and visitation was “appealable as an order made after a
judgmentâ€].)
“‘“If a
judgment or order is appealable, an aggrieved party must file a timely appeal
or forever lose the opportunity to obtain appellate review.â€â€™â€ (Chalmers
v. Hirschkop (2013) 213 Cal.App.4th 289, 304, italics omitted, quoting
v. Praszker (1990) 220 Cal.App.3d 35, 46.)
“Appellate courts have no jurisdiction to review appealable judgments or
orders from which a timely appeal was not taken.†(Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2013) ¶ 16.265,
pp. 16-84, italics omitted; accord, Silver
v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693.) Appellant appealed neither the February 2008
nor the February 2011 order, and both have become final. As we may not review those orders for legal
defects, we turn to the issues raised with respect to the June 2012 order.
B. Appellant
Failed to Establish that Changed Circumstances Required a Change of Custody
With
respect to the June 2012 custody and visitation order from which appellant
timely appealed, he first contends the trial court abused its discretion by
failing to consider the evidence of sexual abuse or to take into account the
evidence that respondent interfered with his visitation.
“In
making an initial permanent custody determination, the trial court ‘must look
to all the circumstances bearing on the best interest of the minor child. [Citation.]’â€
(Lester v. Lennane, supra, 84
Cal.App.4th at p. 591, italics omitted.) In determining best interest, the Family Code
lists specific factors that must be considered “among . . . others,†including
“[t]he health, safety, and welfare of the childâ€; “[a]ny history of abuse by
one parent . . . against . . . [a]ny child to
whom he or she is related . . . [or] [t]he other parentâ€; “[t]he
nature and amount of contact with both parents†(Fam. Code, § 3011, subds. (a),
(b)(1), (b)(2) & (c)); and “which parent is more likely to allow the child
frequent and continuing contact with the noncustodial parent†(
determination in February 2008, having considered these factors and
others.
“Once
the trial court has entered a final or permanent custody order reflecting that
a particular custodial arrangement is in the best interest of the child, ‘the
paramount need for continuity and stability in custody arrangements -- and the
harm that may result from disruption of established patterns of care and
emotional bonds with the primary caretaker -- weigh heavily in favor of
maintaining’ that custody arrangement.â€
(In re Marriage of Brown &
Yana (2006) 37 Cal.4th 947, 956; see In
re Marriage of Burgess (1996) 13 Cal.4th 25, 32-33.) The court has no obligation to reexamine past
custody decisions; to the contrary, the court should “preserve the established
mode of custody unless some significant change in circumstances indicates that
a different arrangement would be in the child’s best interest,†thus
“foster[ing] the dual goals of judicial economy and protecting stable custody
arrangements.†(Burchard v. Garay (1986) 42 Cal.3d 531, 535.) Put simply, “a child should not be removed
from prior custody of one parent and given to the other ‘“unless the material
facts and circumstances occurring subsequently are of a kind to render it
essential or expedient for the welfare of the child that there be a
change.â€â€™â€ (In re Marriage of Burgess, supra,
at p. 38, quoting In re Marriage of
Carney (1979) 24 Cal.3d 725, 730.)
This
rule places a weighty burden on the noncustodial parent seeking to persuade the
court that a change in stable custody, lawfully acquired and maintained for a
significant period, is in the child’s best interest: “Under the changed circumstance rule, custody
modification is appropriate only if the parent seeking modification
demonstrates ‘a significant change of circumstances . . . .’†(In re
Marriage of Brown & Yana, supra,
37 Cal.4th at p. 956; see Burchard v.
Garay, supra, 42 Cal.3d at p.
536.)
The
court found that appellant did not meet his burden of demonstrating a
significant change of circumstances to justify a change in the custody
arrangement put in place more than four years earlier and upheld in February
2011. We review the trial court’s order
denying modification of custody for abuse of discretion. (In re
Marriage of Burgess, supra, 13
Cal.4th at p. 32; Montenegro v. Diaz
(2001) 26 Cal.4th 249, 255.) Under that
standard, “reversal is warranted only if there is no reasonable basis upon
which the trial court could conclude that its decision advanced the best
interests of the child[ren].†(
Cal.App.4th 601, 610.) “‘An appellate
tribunal is not authorized to retry the issue of custody, nor to substitute its
judgment for that of the trier of facts.
Only upon a . . . showing of abuse of discretion will the order of the
trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the
trial judge’s discretion and not that of the appellate court which must
control.’†(In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.)
Application
of the changed circumstances rule “requires that one identify a prior custody
decision based upon circumstances then existing which rendered the decision in
the best interest of the child. The
court can then inquire whether alleged new circumstances represent a
significant change from preexisting circumstances, requiring a reevaluation of
the child’s custody.†(
The record reflects that the original custody order was based on the
evidence, inter alia, that appellant was emotionally abusive toward respondent
and determined to sever respondent’s relationship with the children, although
she had been their primary custodian and caregiver. Appellant presented no evidence in support of
his March 2012 application to suggest that these essential facts had
changed. To the contrary, the evidence
established that appellant had continued a pattern of harassment, using the
legal, criminal, and child welfare systems to force respondent to repeatedly
defend her right to custody and her fitness to be a parent. In its February 2011 order, the trial court
concluded that appellant’s primary focus in exercising his visitation rights
had been to attempt to develop evidence against respondent. The evidence at the most recent hearing
showed this pattern had continued. For
example, appellant chose an unworkable schedule for the Christmas 2011 visit
and then sought to blame respondent for failing to meet it. He also continued to use his visitation time
to scrutinize the girls’ words and actions in an attempt to develop evidence to
be used against respondent. The record
before the court demonstrated no meaningful change in circumstances, and thus,
the court did not abuse its discretion in denying appellant’s request for a
change in custody.
Appellant
contends the court erred in failing to consider the January 2010 psychologist’s
report which he claims “indicate[d] possible sexual abuse.†The record reflects that in connection with
the original custody hearing, the evaluator and the court carefully considered
whether respondent’s close male relatives posed any risk of abusing the girls
and concluded they did not. The issue of
sexual abuse was reexamined in connection with appellant’s November 2008
application for a change of custody. In
the February 2011 order, the court specifically set forth its finding that
there was no evidence to support that the minors were sexually abused or at
risk of sexual abuse. The trial court in
resolving appellant’s 2012 application for modification rightfully rejected
appellant’s attempt to establish changed circumstances through evidence
repeatedly and thoroughly examined and found wanting.
Appellant
contends the court “ignor[ed]†respondent’s “history†of interference with
visitation and communication. “Conduct
by a custodial parent designed to frustrate visitation and communication may be
grounds for changing custody.†(
However, appellant describes only three visits allegedly interfered with
by respondent since 2008, including the June 2010 visit which was cancelled
because appellant did not arrive at the monitoring facility before it closed
and the Christmas 2011 visit, when appellant insisted that the children be
brought to his location by 7:00 a.m.
Neither of these occasions indicates a design by respondent to frustrate
visitation. To the contrary, it was
appellant’s failure to make reasonable travel arrangements that created these
situations. Only the circumstances
surrounding the March 2011 visit, when respondent refused to bring the children
for the second of a two-day visit supports that respondent ever interfered with
visitation. A single instance of
interference with visitation is not a basis for changing custody.
C. Appellant
Failed to Establish that the Best Interest of the Children Required a Change of
Visitation
Before
we address the specific modifications to the visitation schedule to which
appellant claims entitlement, we address his contention that the court
erroneously applied the wrong standard.
Visitation schedules may be modified based on the best interest of the
children without proof of the significant change of circumstances required to
modify custody. (See, e.g.,
Cal.App.4th 1068, 1072 [“[T]he changed circumstance rule does not apply when a
parent requests only a change in the parenting or visitation arrangement not
amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request
to change the parenting or visitation arrangement under the best interests of
the child standard.â€]; accord, Enrique M.
v. Angelina V., supra, 121
Cal.App.4th at pp. 1378-1382 [court erred in applying changed circumstance
rule to request for change in visitation].)
An appellate court does not generally interfere with a trial court’s
discretionary determination that a change in visitation is not in the best
interest of the child; however, a discretionary visitation order may be
reversed if the trial court applied “improper criteria or incorrect legal
assumptions . . . .†(
Cal.App.4th 1115, 1124-1125.) “If the
record affirmatively shows the court misunderstood the proper scope of its
discretion, remand . . . is required to permit that court to exercise informed
discretion with awareness of the full scope of its discretion and applicable
law.†(F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16, italics omitted.)
Nothing
in the record below suggests the court misunderstood the correct standard when
considering appellant’s request for modification of the visitation
schedule. In discussing the basis for
the denial of appellant’s request for a change in custody, the court’s order
stated that appellant failed to meet his threshold burden of showing “a
material change of circumstances.â€
However, in discussing the basis for the denial of the requested changes
in visitation, the court referred only to the “best interests of the . . .
minors†standard. Moreover, the court’s
actions reflect that the court understood the distinction. Having found no change of circumstances sufficient
to justify a change in the girls’ custody, the court nevertheless modified the
prior visitation order in two respects:
requiring respondent to connect to Skype so that appellant and the girls
could see each other during telephone communications, and changing the place of
the exchange to accommodate appellant.
Clearly, the court understood that a significant change in circumstances
was not required to support modifications to visitation orders and applied the
correct standard for all of its determinations.
Appellant
claims the court abused its discretion in refusing to modify the visitation
schedule to allow overnight visits. An
order of the trial court is presumed correct and the burden is on the appellant
to show that the court erred. (
Gradow (1994) 28 Cal.App.4th 966, 971.)
An appellant defaults if he or she “ignores or does not present to the
appellate court portions of the proceedings below which may provide grounds
upon which the decision of the trial court could be affirmed.†(Uniroyal
Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285,
302.) If the record on appeal does not
contain all of the documents or other evidence submitted to the trial court, a
reviewing court will “decline to find error on a silent record, and thus infer
that substantial evidence†supports the trial court’s findings. (Haywood
v. Superior Court (2000) 77 Cal.App.4th 949, 955.) In January 2010, the court restricted
appellant to monitored visitation. The
February 2011 order lifted the monitoring restriction, but continued to restrict
appellant’s time with the children, limiting him to daytime visits. Appellant did not include in the record any
of the hearings that preceded the court’s decision to impose the monitoring
requirement or any of the evidence that led to its modification. Accordingly, we must presume that the
conditions which led to the currently operative order remain, and that the
court did not abuse its discretion in refusing to liberalize visitation.
Appellant
further contends the court abused its discretion by refusing to set out a clear
holiday and summer schedule, and by rejecting his request that respondent bring
the girls to California at her expense in the summer or contribute to the cost
of his travel. With respect to holiday
and summer visits, as the court pointed out, appellant controls the dates of
his visitation based on when he gives notice.
With respect to the expense of travel and the fact that all visitation
is to take place in Michigan, we observe that the children are very young and
require an adult companion to travel.
Accordingly, the cost of transporting them to California would be three
times the cost of transporting appellant to Michigan. The court could reasonably take the
difference in travel expenses into account in determining the place of visitation,
as well as the burden on young children of making a lengthy trip. With respect to payment for transportation,
the evidence is undisputed that respondent earns very little and is surviving
on the charity of her family and a small amount of government support.
unable to contribute to travel expenses.
D. The
Order Requiring Appellant and Respondent to Communicate Through Family Wizard
and Allow the Children’s Attorney Access to Their Communications Does Not
Implicate Appellant’s Constitutional Rights
Finally,
appellant contends the court infringed his “first amendment right to privacyâ€
by allowing the minors’ counsel access to his Family Wizard communications with
respondent. Family Wizard is a Web site
which permits parents to share information, such as their children’s activity
schedules, by posting on a calendar available for viewing by both parties. It also provides a message board for direct
email communication between parents.
When parents use Family Wizard, the court has a record to assist it in
determining whether parents are cooperating by timely sharing information about
the children and whether they are communicating civilly. (See Harris
v. Hamilton (2013) 141 Conn.App. 208 [61 A.3d 542, 551-552];
Ill.App.) 974 N.E.2d 927, 929.) The
record reflects that appellant and respondent have had difficulty communicating
civilly in the past, and that appellant in particular uses written
communications to denigrate respondent and her family. At the same time, the parties must
communicate with each other to set up visitation. The court’s decision to require their
communications to be monitored by a third-party was reasonably designed to
lessen the hostility and discourteousness.
(See Jacob B. v. County of Shasta
(2007) 40 Cal.4th 948, 961 [“‘Invasion of a privacy interest is not a violation
of the state constitutional right to privacy if the invasion is justified by a
competing interest.’â€].) Appellant can
avoid any privacy concerns by restricting his communications with respondent to
matters concerning the children and his visitation with them.
The
order is affirmed. Respondent is awarded
her costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
attempted to reconcile, and lived together between September and December
2006. In December, respondent moved with
the girls to a separate residence.
536, 559 (temporary custody order is interlocutory and “made pendente lite with
the intent that it will be superseded by an award of custody after trialâ€).
