California Court of Appeals, First District, First Division
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 ...