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Brandi Holguin v. Jose Cerda

July 19, 2012

BRANDI HOLGUIN, PLAINTIFF AND RESPONDENT,
v.
JOSE CERDA, JR., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Fresno County. James R. Oppliger, Judge. (Super. Ct. No. 01CEFL03496)

The opinion of the court was delivered by: Wiseman, Acting P.J.

Holguin v. Cerda

CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORT

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appellant Jose Cerda, Jr. (father), appeals from an order entered on his request to modify the existing custody and visitation order for the parties' daughter. Father contends the trial court failed to issue a statement of decision despite his timely request. We hold that, under the circumstances of this case, the trial court's filing of a written order that contained the necessary findings satisfied Code of Civil Procedure section 632's requirement to issue a statement of decision. This is especially true where (1) father did not raise the issue of preparation of a statement of decision at the final hearing when the court could have made the statement orally or assigned an attorney to prepare it, and (2) father's attorney participated in the preparation of the order, which included factual findings addressing the issues in controversy.

Father also contends the trial court abused its discretion by permitting respondent Brandi Holguin (mother) to move the daughter's residence and change her school. We conclude there is no error and affirm.

FACTUAL AND PROCEDURAL HISTORIES

On August 18, 2010, at father's request, the trial court issued an order to show cause regarding modification of the 2002 child custody and visitation order applicable to the parties' 10-year-old daughter (daughter) and an ex parte order granting temporary physical custody to father with visitation by mother. Father alleged that mother, who had primary custody of daughter, moved daughter's residence out of Fresno County in violation of the existing order. He sought to keep daughter in Selma and to have her continue to attend the elementary school that she had attended since kindergarten. In addition, he opposed mother's plan to enroll daughter in school in Visalia, where mother then resided. A contested hearing was held on September 29 and 30, 2010, before Judge James R. Oppliger.

At a further hearing on October 6, 2010, the trial court delivered what it described as "probably ... a preliminary ruling or judgment ...." The court broadly outlined its intended order, which included giving mother physical custody 60 percent of the time, granting mother's request to move daughter to Visalia, and permitting mother to enroll daughter in school in Visalia beginning at the semester break. The trial court then instructed the parties either, (1) to agree on the details and draft a joint proposed order reflecting the court's criteria or, (2) if they were unable to agree, for each to draft a proposed order reflecting the court's criteria and the party's version of the details. The matter would then be submitted to the court. The drafts were due by October 20 and a further hearing was set.

On October 18, 2010, father filed a request for a statement of decision, setting out nine issues for the court to address. The matter was heard again on October 25, 2010. The court commented the parties had "worked out 99 percent of this agreement," but had three matters left to resolve. It heard argument on these matters and issued oral rulings on them. On November 15, 2010, the court filed its written order after trial.

Father appeals from the November 15, 2010, order. He asserts the trial court failed to issue a statement of decision, despite his timely request, and the error requires reversal. He asserts that Judge Oppliger has since retired, so a remand for preparation of a statement of decision is not feasible. Consequently, he contends the order should be invalidated, which he concludes would result in reinstatement of the prior temporary order that gave primary custody to father. Father also argues the trial court abused its ...


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