IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 8, 2010
IN RE THE MARRIAGE OF RANDOM AND ANGELLA BLACKBURN. RANDOM BLACKBURN, APPELLANT,
ANGELLA BLACKBURN, RESPONDENT.
The opinion of the court was delivered by: McKinster Acting P.J.
Marriage of Blackburn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to family court orders, appellant Random Blackburn (father) and respondent Angella Blackburn (mother) shared legal and physical custody of their two children. When school was in session, the children were with father on most weekdays and with mother on most weekends; time during breaks from school was split approximately evenly between the parents.
Mother lived at the relevant time in Victorville. Until the spring of 2009, father lived in nearby Apple Valley. At that time, father moved approximately 50 miles away to Rancho Cucamonga in order to shorten his commute to his job in Irvine. Because of the move, he requested a change in the parties' custody and visitation plan such that the children would spend every weekday at his new residence during the school year and more time with mother during the summer. The court denied the request and modified the custody arrangement such that the children would live with mother during school weeks and with father on most weekends. The children would also live with father during most of the summer. Father appealed.
Father contends the court erroneously reviewed the custody issues de novo when it should have required mother to first establish that the move would cause detriment to the children. He also asserts that various procedural errors occurred which rendered the hearings on his motion unfair. We reject these arguments and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Father and mother were married and had two children, Cameron and Tabitha. They were divorced in the state of Georgia in October 2000. In 2003, father moved with the children to Victorville, California. Two years later, mother moved to Victorville to be closer to the children.
In November 2005, a San Bernardino County Superior Court ordered that the parents have joint legal and physical custody. The children's "[p]rimary residence" was with father.
In April 2006, the court set forth a "Custody and Visitation share plan," which provided that during the school year the children would be with mother on alternating weekends and, on alternating weeks, from 9:00 a.m. Wednesday until 12:00 noon Thursday; otherwise, the children were with father. During breaks from school and holidays, the children's time would be divided approximately equally between the parents.
In January 2009, this plan was modified such that mother had the children on the first, third, and fifth weekends of each month, with weekends beginning at the end of the school day on Friday until the beginning of school on Tuesday morning; mother also had the children on the second and fourth Wednesdays of the month, beginning with after school pickup until the time they are dropped off at school the next morning. The allocation of time for breaks from school and holidays was unchanged. According to the trial court, this plan resulted in the children being with mother 141 days per year, or approximately 39 percent of the time.
In May 2009, father filed an order to show cause (OSC) to modify the existing custody and visitation plan and seeking "[p]ermission to move away." He proposed to modify the custody and visitation plan such that mother's weekend time with the children would end on Sunday evening (instead of Tuesday morning) and the Wednesday overnight stays with mother would be eliminated. To compensate mother for the reduced time with the children during the school year, father proposed to give mother additional time with them during summers. The children would reside with him during the school week and enroll in schools near his new home in Rancho Cucamonga.
Father offered the following facts in support of the OSC: "After nearly one year of seeking permanent employment, I have secured a new job located in Irvine, CA. The commute between this job and my home is approximately 2 to 2.5 hours each direction. I am seeking to relocate to ameliorate this commute. [¶] The children in this case . . . will be entering the 7th and 9th grades . . . . Their performance in school is exemplary, and it is in their best interest they continue attending school under their father's primary tutelage." The court set the matter for a hearing in July 2009.
Mother submitted a declaration in opposition to the request. Mother stated that the proposed change would "require a reduction in [her] custodial and visitation (parenting) time." Father, she stated, failed to consider "the needs of the children for stability and consistency and [mother's] already extensive existing contact and involvement as the children's Mother." Any benefit in reduced commute time for father, she asserted, is outweighed "by the benefit of the children remaining in the Victor Valley area and attending the University Preparatory" school, a "top grade A school." She concluded: "The proposed move would be detrimental to our children, and I believe that a change of custody is warranted at this time, and I should be awarded the primary physical custodial parent of our children especially in light of the fact also that we presently share the children almost equally."
Prior to the hearing on the request, mother and father met with a family court services mediator. The mediator also interviewed the children and the parties' family therapist. In a report to the court, the mediator stated: "While it is understandable father wishes to move closer to work to avoid a long commute time to and from Irvine, his request does not take into consideration the needs of the children to remain bonded to both parents on a continuous and frequent basis. The children have already suffered the anxiety and confusion of the parents' past conflict and are now being exposed to a new loyalty conflict." According to the mediator, "father's move will disrupt the stability and continuity of the current custodial arrangement. The current plan took a significant amount of time, effort and expense to determine and has only been in place for approximately 2-1/2 years. The distance of father's move would eliminate weekday overnights for either parent during the months the children attend school. The move also requires a change in schools." She noted that University Preparatory School, where the children would attend under the current custody arrangement, has an Academic Performance Index score of 841; the score for the school near father's proposed residence is 691.
The mediator interviewed the children. Tabitha (then 12 years 5 months old) said "she feels kind of 'iffy' about" moving and expressed concern that mother might not be able to move to Rancho Cucamonga. Cameron (then 13 years 11 months) said he would like to move with father, but added that "'there's nothing wrong with'" continuing to live where he is now. The mediator stated: "The children's ages and their maturity levels do not appear to weigh against the move as the children appear adaptable and did not express concern about losing their bond with peers. The children are clearly bonded to both parents. The relationship between the parents is perhaps the most significant factor of consideration given the parents have experienced a high degree of difficulty cooperating with one another in spite of numerous professional interventions and suggestions that they put the interests of the children above their individual interests."
A hearing on the OSC was held on July 8, 2009. Father testified he found a job in Irvine and "tried to make that commute work." However, the commute "can be horrendous at times," lasting up to three hours one way. He moved to Rancho Cucamonga, which is one or one and one-half hours away from his work. He also bought cell phones for the children so they can talk to mother, and asserted that the move would not substantially affect the stability of the children's relationship with mother. He pointed out that Cameron wishes to live with him and that "his opinion should hold . . . a great deal of weight in this decision."*fn1
The court denied father's request and ordered that father have the children on the first, third, fourth, and fifth weekends of each month and during all but two weeks of the summer. The "weekends" begin on Friday evening and end on Sunday evening. By implication, mother would have physical custody during the school week. The parents are to have joint legal custody.
In explaining its ruling, the court began by noting that father's move was not made in bad faith. The court expressly considered the children's desires and noted that "Cameron clearly wants to continue to live with [father, while] Tabitha is more equivocal[.]" "Both children say they've got a good mom and a good dad." Regarding the stability of the children's custodial arrangement, the court found that "the children have really had the benefit of seeing both parents on a regular basis throughout the week, week-on/week-off," and viewed "the proposed move to Rancho [Cucamonga] as being destabilizing with respect to the children's continued contact with both parents."
Father filed a motion for reconsideration and sought a hearing on shortened notice. On July 23, 2009, the parties appeared before the court to set a hearing date for the motion. At that time, the court further explained its reasons for denying father's OSC. First, the "children appeared to have been doing very well under the existing custodial plan," which "goes to the issue of stability. The children have lived locally in this high desert area and experienced a shared custody plan for a number of years[.]" Second, father's prior move from Georgia with the children to California and the current move to Rancho Cucamonga suggest "there may be a pattern on Father's part of moving away from Mother."*fn2 The court stated, however, that it was not finding that father moved "for a bad purpose or to undermine or block Mother's contact with the children." The court stated it relied upon the mediator's report that, if father moved, the children's best interests were to remain locally with mother. The court again noted that it considered the wishes of the children, acknowledging that Cameron wished to be with father and that Tabitha "was more ambivalent." The court also stated it considered father's reason for the move, i.e., to decrease his commute time.
Father's motion for reconsideration was set for hearing at 8:30 a.m. on August 28, 2009. On the morning of the hearing, father's counsel called the court to say he would arrive at court at 9:30 a.m. Mother's counsel expressed frustration over the failure of father's counsel to inform her of the delay. She explained she had a trial on calendar in another court set for 8:30 a.m. and made arrangements to have that case trail until 9:30 a.m. so she could be at the hearing in this case at the appointed time. There was discussion among the court, mother's counsel, and father about continuing the hearing. Father asserted it would be "completely inappropriate . . . to continue the matter or to even worse dismiss it when I do have counsel representing me, and he's not here to respond to that." The court then denied the motion "for the reasons stated last time in detail by the Court."
On October 19, 2009, the court issued its formal written order denying father's "request to move away with the children," awarding "joint legal custody of the minor children," and setting forth the physical custody and visitation schedule described above. Father appealed from this order.*fn3
A. Standards Applicable in Move Away Cases
When a custodial parent requests permission to move a child to a new residence and the other parent opposes the request, the court's analysis will depend upon whether the moving parent has sole physical custody of the child or has joint physical custody with the nonmoving parent.*fn4 (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759 [Fourth Dist., Div. Two].) The different standards were initially distinguished in In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess). The Burgess court explained that a parent who has been awarded sole physical custody has a "presumptive right" to change the residence of the children. (Id. at p. 32; see also In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094 (LaMusga).) This presumption is based upon Family Code section 7501, subdivision (a),*fn5 which provides: "A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." (See Burgess, supra, at p. 32.)
As the text of section 7501 indicates, the right is not absolute. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 957 (Brown & Yana).) The statute "contemplates that even a parent with sole legal and sole physical custody may be restrained from changing a child's residence, if a court determines the change would be detrimental to the child's rights or welfare." (Ibid.) The burden of establishing that the proposed relocation would cause detriment to the children is on the non-custodial parent opposing the move. (LaMusga, supra, 32 Cal.4th at p. 1078.) Our state Supreme Court has explained: "Imposing this burden on the non-custodial parent is consistent with the recognition that '"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 ongoing custody arrangements."' [Citations.]" (Brown & Yana, supra, at p. 960.)
If the non-custodial parent makes the requisite showing of detriment, the court must then "perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." (LaMusga, supra, 32 Cal.4th at p. 1078; accord, Brown & Yana, supra, 37 Cal.4th at p. 960.) The Supreme Court has identified the following "factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child . . . : the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, at p. 1101.) In according weight to and applying the different factors, the trial court enjoys wide discretion. (Brown & Yana, supra, at p. 961; LaMusga, supra, at p. 1093.)
Although Burgess involved a parent with sole physical custody, that court recognized that a different analysis may be required when the parents share joint physical custody of the children. (Burgess, supra, 13 Cal.4th at p. 40, fn. 12; see In re Marriage of Whealon decision, the Burgess court noted that when parents share physical custody and one parent seeks to relocate with the children, the existing custody order may be modified or terminated "'if it is shown that the best interest of the child required modification or termination of the order.' (Fam. Code, § 3087.)" (Burgess, supra, at p. 40, fn. 12.) In this situation, there is no presumption in favor of a custodial parent over a non-custodial parent (because custody is joint and shared) and the parent opposing the move does not bear any burden of showing that the move would be detrimental to the children. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 363-364; Whealon, supra, at p. 142.) Rather, the trial court determines "de novo what arrangement for primary custody is in the best interest of the minor children." (Burgess, supra, at p. 40, fn. 12.) This determination is subject to the trial court's "wide discretion." (Niko v. Foreman, supra, at p. 363; Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1204.)
"'Joint physical custody' means that each of the parents shall have significant periods of physical custody." (§ 3004.) The Family Code does not define "significant" for this purpose. (See In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 715 (Lasich), disapproved on another point in LaMusga, supra, 32 Cal.4th at p. 1097.) Courts have provided some, albeit imprecise, guidance. In In re Marriage of Condon (1998) 62 Cal.App.4th 533 (Condon), the court established a visitation schedule under which the father visited the child two afternoons each week and on alternating weekends. (Id. at p. 538.) The Court of Appeal held that this constituted "actual joint custody" and analyzed the trial court's decision to allow the mother to move the children to Australia under the best interest of the child standard. (Id. at pp. 550-554.)*fn6 In Brody v. Kroll (1996) 45 Cal.App.4th 1732, the mother had "primary physical custody" under an arrangement that expressly provided for the child to stay with the father two nights per week and all day Saturday, except on those Saturdays when the child attended Hebrew school. (Id. at p. 1735.) In fact, however, the "father saw [the child] as frequently as four or five days a week." (Ibid.) The Court of Appeal held that the trial court should have applied the de novo standard to the mother's request to relocate with the children to Connecticut. (Id. at pp. 1736-1737.) In In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, the parents had joint physical custody and a "shared parenting plan" when the mother had the child four nights each week and the father three nights. (Id. at pp. 1341-1342.)
Decisions in which the relocating parent was deemed to have sole physical custody include Lasich, supra, 99 Cal.App.4th 702 and Whealon, supra, 53 Cal.App.4th 132. In Lasich, the father had the child only 20 percent of the time. (Lasich, supra, at p. 715.) That court held that "this amounts to sole physical custody for the mother with 'liberal visitation rights' for the father." (Ibid.) Accordingly, the father was "not entitled to de novo custody review." (Id. at p. 716.) In Whealon, the father had the child every Wednesday evening until Thursday morning, plus alternate weekends from Friday evening until Monday morning. (Whealon, supra, at p. 137.) This amounted to 28 percent of the child's time. (Id. at pp. 144-145.) Under these circumstances, the mother "had, in substance, primary physical custody of the child and the [father] generous visitation rights." (Id. at p. 142.)
We now turn to the court's application of these standards in this case.
B. The Application of the Move Away Standards in This Case
Father contends he "has de facto sole physical custody with visitation rights accorded to the mother." Based on this premise, he contends the court erred in applying the de novo standard identified was required to establish that the move will result in detriment to the children and she failed to do so.
Initially, we note that it is not clear from our record whether the court applied the de novo standard applicable to joint custody arrangements or found the children would suffer detriment as required in sole custody cases. At the the July 8, 2009, hearing on the OSC, circumstances would be that if Father moves to Rancho [Cucamonga], Mother's time with the children will be . . . changed. She will not have the week-to-week regular contact with the children particularly during the school week; so I find that to be a change in circumstances."
At the July 23, 2009, hearing on father's request to have his motion for reconsideration heard on shortened notice, the court made the to calculate Mother's actual time with the child[ren]. And based on that rough calculation it appeared to me that pursuant to the order that was in effect at the time [father] requested the move away, Mother had 141 days; that is 38, 39 percent[--]almost 40 percent. And of importance . . . is the fact that both parents saw the children on a weekly basis. As I understand it[,] one week Mother had the kids for an extended three-and-a-half-day period; the next week she had the kids for an overnight during the week, a school night[,] plus any shared holiday, off-track time. So there was a frequent exchange of the children on a weekly basis . . . ."
The court's written orders concerning the hearing state only that father's request is denied. The court's comments suggest the court believed that, regardless of which standard applies, the court would arrive at the result it reached. Because we will affirm the court's decision if it is correct on any basis, we need only decide if it is correct under either standard. (See Burgess, supra, 13 Cal.4th at p. 32.)
If, as father contends, the court applied the de novo standard err in doing so. The de novo standard applies when the parents have genuine joint physical custody. (Whealon, supra, 53 Cal.App.4th at p. 136.) That is, when each parent has "significant periods of physical custody." (§ 3004.) According to father, it "can be argued that [mother's] true timeshare with the children is only 37 [percent] . . . ." Mother stated she had the children approximately 43 percent of the time. Neither party, however, explains how they arrived at these percentages. The court found that the children were with mother approximately 39 percent of the time.
Regardless of which percentage is used, we conclude that both parents had significant periods of physical custody of the children. Mother's time with the children was significantly more than the two afternoons and alternating weekends the father had in Condon, which was held to constitute actual joint custody. Contrary to father's assertion that the arrangement in Whealon "very nearly characterizes" the arrangement in this case, the father in Whealon spent only 28 percent of his time with his child, a significantly smaller percentage of time than mother's time with the children in this case. Whealon is thus factually distinguishable.
The use of the de novo standard is also supported by the nature of the custody sharing. Mother's time with the children was not segregated into blocks of time separated by long periods of absence from the children. The custody sharing arrangement involved frequent midweek overnight visits with mother, as well as extended weekend visits (Friday evening through Tuesday morning) at least every other week during the school year. In addition, the two parents split custody in roughly equal shares during school breaks and holidays during which each parent was never away from the children for more than two weeks at a time. The contact between the children and mother was thus not only significant in terms of her percentage of time with the children, but also "frequent and continuing." (See § 3004.) Therefore, a determination by the court that the parties had joint physical custody of the children is amply supported by the evidence.
The court did not abuse its discretion in finding the best interests of the children required modification of the custody order. It is undisputed that father's move would necessarily disrupt the stability and continuity of the pre-existing custodial arrangement. As the court explained, the children "had the benefit of seeing both parents on a regular basis throughout the week, week-on/week-off." If the children moved with father, they would be denied the overnight midweek stay with mother and significantly shorten mother's time with the children during the school year. It would also require a change in schools. According to the mediator, the high school the children would be expected to attend if they lived with father has a significantly lower Academic Performance Index score. In explaining its ruling, the court further stated it considered father's reason for the move--to decrease his commute time. Although the court did not clearly indicate what part this fact played in its decision, its comment suggests that the court perceived father to be more concerned about avoiding a long commute than, as the mediator stated, "the needs of the children to remain bonded to both parents on a continuous and frequent basis." Based on these considerations, the court acted within the scope of its wide discretion in concluding that the children's best interests were served by modifying the custody arrangement as it did. Accordingly, we reject father's arguments.
C. Procedural Issues
Father contends that "proper legal procedure was not followed, depriving him of the right to a just and fair outcome." First, he asserts he did not receive mother's papers opposing the OSC until the day before the July 8, 2009, hearing, and he "expressed a desire to postpone the hearing in order to be able to properly address the accusations made by [mother], and the findings of the [mediator's] report . . . ." We reject this argument. The record reveals that mother's opposition was served by mail on June 24, 2009--nine court days before the July 8, 2009, hearing. The service was thus timely. (Code Civ. Proc., § 1005, subd. (b).)*fn7 Moreover, even if the service was defective, father did not object to or move to strike the opposition. Any claim of defective service is therefore waived. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [appellate court will ordinarily not consider procedural defects where an objection could have been, but was not, presented to the lower court by some appropriate method].)
Father's assertion that he expressed a desire to postpone the hearing suggests an argument that the court erred in refusing to continue the hearing. Father refers us to two excerpts from the transcript of the hearing. In the first, father stated: "I believe that the Mediator is incorrect in this statement that the Mediator made in saying that I would be more likely to alienate the children than the mother. That's a complete, complete falsity. And a more careful review of all the facts and interviewing of witnesses, you know, re-examination of testimony given by other matters would clearly show that." The court then told father: "Well, as far as I'm concerned that's what we're here to do today." Father responded, "Okay." In the second excerpt, father told the court that if the court believed it was necessary to go into all of the allegations mother filed in her response, he "may need more time to . . . call in witnesses because this is a very profound, profound thing."
We do not construe father's comments as a request to postpone or continue the hearing. Even if we did and we assumed the court denied the request, we "will not disturb its ruling absent a clear showing that it abused its discretion." (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 489.) Father makes no showing of any abuse of discretion here.
Next, father asserts the court "should have insisted on a full child
custody evaluation" pursuant to Evidence Code section 730.*fn8
The record does not indicate that father ever sought or
requested such an evaluation. Indeed, in making its ruling, the court
commented: "I also want to state for the record that the parties were
given the opportunity to have a custody evaluation done before this
hearing today, and they declined to do that . . . ." At a subsequent
hearing regarding father's motion for reconsideration, the court again
noted that it had "offered a[n] [Evidence Code section] 730
Evaluation, and Father declined[.]" Father's argument is without
Father also argues that he was "denied the opportunity to call and cross-examine witnesses." He does not cite to the record for this assertion and our own review reveals no basis for it. Indeed, the court expressly informed father at the hearing: "[Y]ou're free to go into whatever you want in terms of evidence, testimony, if you want to point the Court's attention to any particular documents." He also suggests that he was misled by certain statements by the court that it might reverse its custody ruling if father moved back to the high desert area. According to father, this caused him to focus on efforts "to fix or remand the issue at hand" when his time would have been better spent "focusing on preparing for an Appeal." Father does not explain how the court's comment constituted error and we find none.
Finally, father contends he was denied a right to a fair hearing on his motion for reconsideration because the court denied the motion without waiting for his counsel to arrive. We reject the argument. The hearing was scheduled for 8:30 in the morning. Mother's counsel was present at the scheduled time; father's counsel was not, having called the court to say he would arrive at 9:30 a.m. When mother's counsel said she needed to be in another court for trial at 9:30 a.m., the court considered whether to continue the hearing to a time when all counsel could be present. The court decided to rule on the motion at that time only after father insisted that the matter not be continued. Under these circumstances, the court's decision to rule on the motion without further delay was well within the court's discretion.
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS