Anne H. v. Michael B.

         CERTIFIED FOR PARTIAL PUBLICATION ^[*]

          Order Filed Date: 6/15/16

         San Mateo County Superior Court No. 120660 Trial Judge: Hon. Susan Greenberg

          Leland, Parachini, Steinberg, Matzger & Melnick, Robert A. Roth for Plaintiff and Appellant.

Law Office of Leslie Ellen Shear, Leslie Ellen Shear and Julia C. Shear Kushner for Defendant and Respondent.

          MARGULIES, J.

         In August 2014, the family court entered a permanent custody order granting joint custody of L., the daughter of appellant Anne H. (Mother) and respondent Michael B. (Father). Under the order, Father, a Bay Area resident, was awarded physical custody of L. during school years, while Mother was awarded physical custody at her home in Virginia during the summers. In making the order, the family court stated that one of the primary considerations in granting Father custody during the school year was the presence of Mother’s family members in the Bay Area, which provided Mother a place to stay while visiting L. and allowed Mother’s family to share in L.’s care. The court’s order noted the relocation of Mother’s family members from the Bay Area, among several other factors, would be changed circumstances “requiring a new analysis of the ongoing custodial timeshare between the parties.”

         Less than a year later, Mother filed a request to modify the custody order, claiming her parents had relocated to Virginia and arguing, pursuant to the custody order, the relocation should be regarded as changed circumstances requiring a reexamination of L.’s best interests and a grant to Mother of school-year custody. The request was heard by a different judge than the judge who had entered the custody order. Without explanation, that judge denied Mother’s request to modify the custody order, finding no changed circumstances, and granted sanctions to Father under Family Code section 271 in the amount of $5, 000.

         Upon Mother’s appeal of these rulings, we conclude the statement in the custody order specifying changed circumstances requiring a reconsideration of custody arrangements was not binding on subsequent judges. Finding no abuse of discretion in the second judge’s conclusion that Mother had failed to demonstrate changed circumstances, we affirm the denial of her request for modification. We also find no abuse of discretion in the court’s award of financial sanctions.

         I. BACKGROUND

         At the time of L.’s birth in 2009, Mother and Father were unmarried members of the armed services. Within a year after the birth, Father left the service, moved into Mother’s home in the Bay Area, where she was attending law school as a member of the military, and began attending graduate school himself. Father eventually finished school and found a job in the Bay Area. During this time, each parent spent occasional, relatively brief periods away from the home, leaving L. in the sole care of the other parent, assisted by members of Mother’s family, particularly her parents and sister. In August 2012, after completing law school, Mother was posted to Georgia. Mother and Father agreed that L. would remain with Father on a temporary basis, while they worked toward a more permanent custody arrangement.

         Father filed a petition in Santa Clara County Superior Court to gain full custody of L. in February 2013. Mother thereafter filed this paternity action in San Mateo County, and the parties stipulated to dismiss Father’s action. Eventually, following a three-day trial, Judge Richard DuBois issued a 20-page statement of decision (custody order) in August 2014, awarding the parents joint custody over L. and requiring her to spend the academic year with Father and the summer months with Mother. In reaching his decision, Judge DuBois found it significant that Mother’s parents and sister lived in the Bay Area, which provided Mother a place to stay during visits with L., allowed her more “ ‘real time’ ” with L. during visits, and permitted her family members to participate in L.’s life while L. was living with Father. Unlike Mother in the Bay Area, Father had no friends or relatives in the places to which Mother was likely to be posted, making his visits comparatively more difficult and reducing the free time he could spend with L. during visits. The court noted that residence in the Bay Area also “would provide continued stability for” L., since it had always been her home and Father had a steady job and no plans to relocate, while Mother’s future was geographically uncertain, given her service. In the end, the court found the “most significant factor” in determining the custody arrangements to be the presence of Mother’s family members in the Bay Area. The court concluded: “Should these circumstances change by [Father] moving out of the Bay Area, or [Mother’s] family moving farther from the Bay Area, or [Mother’s] family not being allowed or able to have consistent independent contact with [L.], or [Mother] relocating to the Bay Area, such a change would constitute a change of circumstance requiring a new analysis of the ongoing custodial timeshare between the parties.” Neither party appealed the custody order.

         Less than a year later, in May 2015, Mother filed a request for modification of the custody order (request) to grant her physical custody of L. during the school year. In a declaration filed with the request, Mother stated that since entry of the custody order she had been given a posting in Washington, D.C. that would last for “at least the next 5–6 years.” Prior to taking that assignment, Mother would be required to attend a 10-month training course in Charlottesville, Virginia.^[1] In addition, Mother stated her parents (grandparents), who had been closely involved in L.’s care prior to the custody dispute, had moved from the Bay Area to northern Virginia. According to Mother’s declaration, the grandparents had purchased a home in Virginia located “less than 15 minutes” from her own Virginia home. Attached to the declaration was a grant deed of a parcel of Virginia real estate to the grandparents and Mother’s brother. Mother characterized the grandparents’ relocation as “a prima facie change in circumstances” under the custody order and sought a reevaluation of L.’s best interests.

         Mother also contended Father had failed to cooperate with the grandparents in allowing them access to L. in the Bay Area, but she provided no evidentiary support for the claim, other than her conclusory statement, “Despite repeated requests to resume [the grandparents’] independent visits with [L.] when she is in California, [Father] has consistently declined with excuses, or required them to spend time with her in his presence, ” but she provided no support for the claim. The only documentary evidence submitted in support of this claim did not, in fact, support it, and the portion of her declaration detailing Father’s lack of cooperation focused entirely on his relations with Mother and contained no information suggesting Father had prevented the grandparents from spending time with L.^[2]

         Father opposed the request. In a declaration, he argued no significant change of circumstances had occurred because the grandparents retained ownership of their home in the Bay Area, Mother’s sister continued to live in the Bay Area, and Mother “has other relatives living in [the Bay Area] with whom she stays during her visitation with [L.].” Further, according to Father, the grandparents had chosen to limit their contact with L., failing to visit with her for months despite his open invitation to do so. Father also challenged the genuineness of the grandparents’ relocation, pointing out that Mother had listed the Virginia home deeded to the grandparents as her own home in a school application, and L. had stayed with the grandparents in their Bay Area home “[a]s recently as June 2015.”^[3] Father claimed he continued to have only limited opportunities to visit L. when she was in Mother’s custody, since he was allowed only 12 days annually of vacation and had no place to stay in Virginia, while Mother’s posting permitted much more opportunity for west coast visits. Her job permitted flexibility of scheduling; she had substantial banked leave time; and she acquired 30 additional days of leave per year. Since the custody order went into effect, Mother had been able to spend two four-day weekends per month visiting L. Further, Father argued, Mother would be required either to move L. to Charlottesville for the duration of the 10-month training course or commute over two hours each way, making it difficult for her to care for L. during that time.

         Father’s opposition also requested attorney fees in the amount of $15, 867.50 as a sanction under Family Code section 271. His declaration reiterated the procedural history of the proceedings, noting Mother had filed five ex parte applications regarding custody and visitation during the period 2013 to 2014, in addition to the request, while he had filed no pleadings seeking relief other than the initial petition. In ruling on the last of Mother’s ex parte applications in December 2014, Judge Susan Greenberg had commented with respect to the parties’ squabbling: “It’s a nightmare. I’m hoping that the parenting coordinator can resolve that for you because frankly, you guys are adults and you can deal with the stress. But this little girl is going to have a horrible time if you continue to act this way and treat each other this way.” At the time, Judge Greenberg denied without prejudice motions for section 271 sanctions Father had filed, noting: “I don’t believe that they should be ruled on now. I want the parties to... use the parenting coordinator to try and resolve their constant and continuous fighting and bickering over every single aspect of the timeshare with this little girl.”

         Father’s opposition renewed the earlier sanctions motion. As he argued, Mother was an attorney, and therefore able to assist in the preparation of litigation documents, while he was required to rely on counsel with respect to the proceedings. He concluded, “[Mother’s] refusal to accept the Court’s custody orders and incessant efforts to change the Order have exhausted me not only financially, but physically and emotionally as well.” Father argued Mother had the ability to pay the requested sanctions because she is employed as a judge advocate and had the resources to fund the three-day custody trial and four motions to modify the custody order in the preceding year. The requested award of $15, 867.50 was based primarily on the attorney fees Father incurred in responding to the request.

         In a reply declaration, Mother stated that although her sister remained in the Bay Area, the sister lived in a small apartment with her husband, making it difficult for her to support Mother’s visits with L. Mother claimed to have no other relatives or friends in the Bay Area on whom she could rely for “logistical support” in visitation. Mother said she owned her own home in Virginia “approximately 20–30 minutes” from her parents’ home and explained her parents leased their house in the Bay Area to college students during the academic year. Addressing Father’s request for sanctions, Mother denied that she had superior financial means. According to Mother, Father’s parents had financed his side of the custody litigation, while Mother had to finance her representation from her own pocket. Mother contended she had attempted to be conciliatory, but Father’s “hostile and unreasonable behavior” had forced her to seek judicial relief.

         At the hearing on the request, conducted by Judge Greenberg, Mother’s attorney stated he had brought with him additional evidence to support the claim that the grandparents had moved, including “their utility bills and the lease of their [Bay Area] home.” Those documents were never offered into evidence, however, and they are not in the appellate record. Counsel for Father argued no move had, in fact, occurred, pointing out that the grandparents had not submitted their own declarations with respect to the claim. Following argument, Judge Greenberg denied the request, stating without further explanation: “... I find that [Mother] has not met that ...