Opinion
B324666
05-06-2024
In re the Marriage of GRACE and DALLAS AUSTIN. v. DALLAS AUSTIN, Respondent. GRACE AUSTIN, Appellant,
Grace Austin, in pro. per., for Appellant. Dallas Austin, in pro. per., for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 19VERO00438 Marilyn Mordetzky, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Grace Austin, in pro. per., for Appellant.
Dallas Austin, in pro. per., for Respondent.
RAPHAEL, J. [*]
Grace Austin (Mother) appeals from a trial court order modifying custody and visitation rights regarding her child. Before entering that order, the trial court determined the child's father, Dallas Austin (Father), rebutted the presumption under Family Code section 3044 that joint custody would be detrimental to the child's best interest based on his prior acts of domestic violence. Mother argues the court erred in making that determination by ignoring or disregarding evidence relevant to several factors a court must review when addressing the section 3044 presumption. She also contends the court erred in denying her request for a statement of decision. We affirm.
Undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties, the New York Protection Order, the Divorce, and Mother's Move
The parties were married in North Carolina in February 2013. Their daughter, M., was born in January 2017. Soon after M.'s birth, the parties relocated to New York.
Mother and Father physically separated in July 2017. In March 2018, Mother obtained a temporary order of protection from a New York state court that required Father to stay away from and not communicate with Mother except for text messages regarding the health, safety, welfare, and visitation of M. In June 2018, the court extended the protection order through December 1, 2018, and ordered the parties to maintain joint physical custody of M. using a three days on, three days off (3-3) schedule.
In July 2018, the parties entered into a postnuptial agreement that was later incorporated into a judgment of divorce filed in New York in December 2018. Under the agreement, the parties maintained joint legal custody, with Mother possessing ultimate tiebreaking authority, as well as joint physical custody on the same 3-3 schedule until Mother relocated to California with M. later that month. Upon Mother and M.'s relocation, the agreement provided, so long as Father remained in New York, he could exercise one week of physical custody per month in California or one weekend in New York. A few weeks later, Mother moved to Sherman Oaks with M.
B. Father's Move and the Original California Restraining Order
In March 2019, Father moved to Hermosa Beach. Shortly thereafter, Mother filed a petition for a domestic violence restraining order against Father. Following an evidentiary hearing, at which both parties appeared with counsel, the trial court issued a two-year restraining order with an expiration date of May 1, 2021. The court based its ruling on Father's "namecalling and voluminous e-mails castigating [Mother]," explaining Father's "venting" constituted harassment and his claim that his castigation was for M.'s benefit was not credible. The court denied Mother's requests for orders requiring Father to stay away and to participate in a batterer intervention program. The court also denied Mother's request to limit the number of daily communications between the parties, although it did instruct Father that he was not to use communications regarding M. as an excuse to express opinions about Mother.
Judge Dianna Gould-Saltman presided over the evidentiary hearing and issued the restraining order.
As to custody and visitation, the court found-albeit without any analysis-that Father rebutted the section 3044 presumption, which applied against him because of the New York protection order. The court issued a new custody and visitation order that maintained joint legal custody, with Mother possessing tiebreaking authority, and imposed a visitation schedule providing Father with first, third, and odd fifth weekends and several hours every Wednesday. The court also ordered the parties to coordinate daily video calls between M. and the parent without current physical custody.
C. Two More Moves and the Renewed Restraining Order In March 2020, Mother moved with M. to San Marino. In November 2020, Father moved to Pasadena.
In August 2021, following another evidentiary hearing at which both parties appeared with counsel, the trial court renewed the restraining order for three more years. The court discussed the ruling on the original restraining order, as well as evidence the parties presented regarding their electronic communications since the restraining order was issued. While noting evidence of the daily video calls showed both parties "want[ed] to be a parent of a very lovely child," the court found Father's messages to Mother showed he was still "vent[ing] about the past" and expressing opinions about Mother. The court explained Father's conduct constituted the same harassment that led to the original restraining order. Finding Mother had shown a reasonable apprehension of future abuse, the court implored Father to "move forward" and "[s]top with the past." The court denied Mother's request to make the restraining order permanent, expressing hope that Father could "understand the gravity of his conversations with" Mother and "make some changes." The court did not alter the custody and visitation order.
Commissioner Marilyn Mordetzky presided over the evidentiary hearing and issued the renewed restraining order.
D. Father's Request for Custody Modification
In December 2021, Father filed a request for order seeking modification of custody, visitation, and support, as well as attorney's fees and costs. Relevant here, Father sought joint legal and physical custody with no tiebreaking authority and a visitation schedule of two days on, two days off, three days on (22-3). Mother filed a response and asked for an evidentiary hearing on Father's request. Father later filed a reply.
In April 2022, the trial court commenced an evidentiary hearing with both parties represented by counsel. Before taking any evidence, the court told the parties that Father was subject to the section 3044 presumption based on the findings of his domestic violence in the restraining order proceedings. The evidentiary hearing required seven appearances before concluding with closing arguments in August 2022. During the course of the hearing, Father switched counsel and represented himself for one appearance.
Commissioner Mordetzky presided over the evidentiary hearing on Father's request for custody modification.
The court also acknowledged that it did not have to apply the section 3044 presumption before renewing the restraining order in August 2021 because custody was not at issue during that proceeding.
Although primarily focused on custody and visitation, the extended evidentiary hearing also addressed Father's request for modification of child support and both parties' requests for attorney's fees. These issues are not subjects of this appeal.
On September 7, 2022, with the parties present, the trial court issued an oral ruling. Specifically, the court found Father had rebutted the section 3044 presumption and granted his requests for joint custody with no tiebreaking authority and a 22-3 visitation schedule. On September 12, the court served on the parties a minute order recognizing the rulings, as well as further written directions for how the parties were to implement the new custody and visitation order.
Thereafter, on September 16, Mother filed a request for a written statement of decision. A few days later, on September 19, Mother filed an amended request for a statement of decision, specifying an additional controverted issue. At the next court appearance, on October 6, the trial court denied Mother's requests before addressing remaining custody and visitation matters, including a holiday schedule. That same day, the court issued an amended restraining order to account for the new custody and visitation order.
Mother timely appealed.
DISCUSSION
Mother appeals from the trial court's order modifying custody and visitation. "We review custody and visitation orders for an abuse of discretion," applying the substantial evidence standard to the trial court's factual findings and considering de novo any issues of statutory interpretation. (Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.) "'A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child. [Citation.] A court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions. [Citation.]' [Citation.]" (S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 333.) "'An abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we disagree with the trial court's determination, we uphold the determination so long as it is reasonable. [Citation.] We do not reverse unless a trial court's determination is arbitrary, capricious, or patently absurd.'" (Id. at pp. 333-334.)
Aside from the denial of her request for a statement of decision, Mother's arguments on appeal challenge the trial court's determination that Father rebutted the presumption under section 3044. We turn to those arguments first, and start by discussing the relevant statutory language.
A. Section 3044
Subdivision (a) of section 3044 provides: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child . . ., there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child .... This presumption may only be rebutted by a preponderance of the evidence." The presumption under section 3044 is mandatory and must be applied "if any court has made a finding that the party seeking custody has perpetrated domestic violence within the past five years." (Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 196; see also In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1500, fn. 10 ["If a domestic violence restraining order has been issued, then it is clear that there has been a finding of domestic violence sufficient to trigger the presumption of section 3044"].) "The purpose of the rebuttable presumption statute is to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence." (Jaime G. v. H.L., supra, 25 Cal.App.5th at p. 805, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 840 (1999-2000 Reg. Sess.) July 13, 1999.)
While the presumption is mandatory, a perpetrator of domestic violence may overcome it with a preponderance of evidence showing two things under section 3044, subdivision (b). First, the court must find that awarding custody to the perpetrator is in the child's best interest without relying on the statutory preference for frequent and continuing contact with both parents or the noncustodial parent. (§ 3044, subd. (b)(1).) Second, the court must find that, "on balance," seven additional factors support the legislative findings in section 3020. (§ 3044, subd. (b)(2).) The enumerated factors are: "(A) The perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. [¶] (B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate. [¶] (C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate. [¶] (D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole. [¶] (E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions. [¶] (F) The perpetrator of domestic violence has committed further acts of domestic violence. [¶] (G) The court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389." (§ 3044, subd. (b)(2).) Meanwhile, section 3020, subdivision (a), provides: "The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child."
Under subdivision (f) of section 3044, the court must "make specific findings on each of the factors in subdivision (b)," and if it determines the perpetrator has overcome the presumption, the court must state its reasons for that ruling "in writing or on the record." (§ 3044, subd. (f)(1) &(2).) The court shall use subdivision (b) as a "mandatory checklist" when considering the presumption. (Jaime G. v. H.L., supra, 25 Cal.App.5th at p. 805.) As this court stated in Jaime G., "[m]andatory checklists can seem bothersome to experienced professionals but the Legislature's intent [behind subdivision (b)] was to require family courts to give due weight to the issue of domestic violence. The requirement that courts make specific findings 'in writing or on the record' furthers this legislative goal." (Id. at p. 806.) Thereafter, the Legislature amended section 3044 to recognize it intends that subdivision (f) "be interpreted consistently with the decision in [Jaime G.], which requires that the court, in determining that the presumption in subdivision (a) has been overcome, make specific findings on each of the factors in subdivision (b)." (§ 3044, subd. (f)(1).)
B. The Trial Court Did Not Err in Determining Father Rebutted the Section 3044 Presumption
The trial court informed the parties at the start of the evidentiary hearing that Father would be subject to the section 3044 presumption. At the end of the hearing, the court ruled that Father had rebutted the presumption by a preponderance of the evidence. Mother argues the court erred in its consideration of three of the enumerated factors under subdivision (b)(2), as well as the best interest factor under subdivision (b)(1). Because the trial court addressed these factors in that order in issuing its ruling, we do the same here.
1. Completion of a batterer's treatment program under section 3044, subdivision (b)(2)(A)
Mother asserts the trial court ignored the factor under section 3044, subdivision (b)(2)(A), which requires the court to consider whether Father "successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code." The record does not support this contention. The trial court explained as part of its ruling that Father "did not complete a batterers' treatment program because that was not ordered." The record confirms the court never ordered batterer's treatment as part of the restraining orders against Father. It also shows that, contrary to Mother's assertion, the trial court considered the factor under subdivision (b)(2)(A), and did so to the extent required by the statute. (See S.Y. v. Superior Court, supra, 29 Cal.App.5th at pp. 342, 344 ["a trial court must consider completion of a batterer's treatment program and parenting classes when determining if the section 3044 presumption has been rebutted, but neither attendance at nor completion of those two classes are required by the statute"]; Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1028 ["The court reasonably could conclude, in light of the absence of evidence of physical violence, that completion of a batterer's treatment program was not necessary to rebut the presumption ...."].)
While the original California restraining order and its renewal were issued because of Father's harassing electronic communications, Mother contends the New York protection order was first issued after Father "physically attacked [her] at a gym parking lot in [M.'s] presence." Father disputes this characterization, explaining that he "adamantly denied" Mother's allegations and that no evidentiary hearing was held before the protection order was issued. He also asserts that, at the evidentiary hearing for the original California restraining order, a gym employee testified and refuted the primary allegations on which Mother relied to obtain the protection order. Aside from the protection order, which does not contain any factual findings, the parties do not support their factual claims on this matter with citation to the record on appeal.
We are unpersuaded by Mother's related argument that the trial court erred as to this factor by not considering whether Father should be required to complete some other form of counseling or therapy to overcome the section 3044 presumption. A court may condition a perpetrator's rebutting of the presumption on completion of other counseling or therapy. (See, e.g., Jason P. v. Danielle S., supra, 9 Cal.App.5th at p. 1028 ["The court reasonably could conclude, in light of the absence of evidence of physical violence, . . . that completion of a program of counseling to address the kind of harassment involved in this case was sufficient"].) But nothing under section 3044 requires a court to consider other counseling or therapy, much less determine whether such treatment must be completed before the presumption is rebutted. Rather, under the plain text of subdivision (b)(2)(A), a court need only consider whether there has been successful completion of a batterer's treatment program. Because the trial court did that here, we find no abuse of discretion.
2. Compliance with a restraining order under section 3044, subdivision (b)(2)(E)
Mother argues the trial court erred in considering the factor under section 3044, subdivision (b)(2)(E), by excluding evidence of Father's failure to comply with the New York protection order and the original restraining order in California. As an initial matter, subdivision (b)(2)(E) requires the court to consider whether "[t]he perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions." (Italics added.) The emphasized language makes clear the court must consider the perpetrator's compliance with any active protective or restraining order. While section 3044 does not prohibit consideration of an expired order, nothing under the statute compels consideration of one. At the time of the evidentiary hearing, Father was only subject to the renewed restraining order.
Moreover, contrary to Mother's contention, the record shows the trial court admitted evidence of Father's failures to comply with the earlier, expired orders. This included evidence such as the reporter's transcript from the renewal of the restraining order, wherein the court discussed Father's history of abusive conduct at length. It also included hundreds of pages of the parties' electronic communications dating back to May 2019. As the court reminded the parties before issuing its ruling on the section 3044 presumption, it renewed the restraining order in August 2021 because these records showed Father violated the original restraining order.
We also reject Mother's broader contention that the trial court improperly weighed evidence relevant to section 3044, subdivision (b)(2)(E). For this part of its ruling, the court again focused on the parties' electronic communications. While finding the parties continued to "have difficulty in communicating between themselves," the court also found Father's hostile messages had ceased since it imposed the renewed restraining order. The court described Father as sending many messages informing Mother of everything he was doing with M., noting this practice sometimes led to confrontation between the parties as to their compliance with the custody and visitation order. The court stressed, however, that Father's actions were, if anything, a product of Mother creating an expectation that he must "let her know what he's doing every minute of every day." After reviewing specific examples of these interactions, the court acknowledged there was "still a lot of conflict" between the parties, emphasizing they were "two people that have a different approach to situations." Even so, the court explained, the messages did not show Father violated the renewed restraining order. Nothing in the record shows the court abused its discretion in reaching that conclusion.
Mother's final argument on this factor is that the trial court erred by ignoring other evidence of Father's noncompliance with the renewed restraining order. Although the court mentioned only the electronic communications when discussing whether Father complied with the renewed restraining order, it did so after recognizing throughout the hearing that that order was based on Father's prior abusive messages. In other words, the court's focus on the communications was not without reason.
Mother specifically points to evidence showing Father initiated unwanted video calls. Father, for his part, admitted he initiated the video calls and testified they were either accidental or efforts to "reestablish [a] connection" after missing calls initiated by Mother. Mother also asserts that Father stalked her, as demonstrated by his evidence showing the locations of her home and work, as well as a webpage showing her business. Father states that he submitted this evidence-as exhibits to his declaration in support of his request for custody modification-to demonstrate inconvenience in the location of M.'s daycare compared to his preferred alternative and to dispute Mother's claim for sole use of the child tax credit.
Moreover, even if not referenced in the ruling, nothing in the record suggests the court failed to consider other admitted evidence for purposes of section 3044, subdivision (b)(2)(E). The court stated multiple times that it reached its decision after "weighing and considering all of the evidence presented." Mother offers no basis for us to dismiss those statements. She instead describes the court as disregarding relevant evidence when it informed the parties they did not need to "reiterate" information in their declarations and emphasized the importance of presenting "new" communications that occurred after the renewed restraining order. In context, however, these examples merely show the court's efforts to move things along in an efficient fashion. As the court reminded the parties throughout the hearing, it was well aware of their history based on the restraining order proceedings. Its decision to rely on that knowledge for the benefit of judicial economy was not an abuse of discretion.
3. Commission of further acts of domestic violence under section 3044, subdivision (b)(2)(F)
Section 3044, subdivision (b)(2)(F), requires consideration of whether "[t]he perpetrator of domestic violence has committed further acts of domestic violence." As to this factor, Mother faults the trial court for disregarding acts of domestic violence that predated the renewed restraining order. She does not, however, identify any support in the record for her contention that "the court erred in declining offers of testimony on prior domestic violence." Instead, she points to a single statement from the court at the beginning of the evidentiary hearing about not "relitigating the past." The court made this statement in a discussion with counsel regarding how the parties' restraining order history affected the current evidentiary hearing. It echoed the sentiment throughout the hearing, most notably when warning Father he should be "moving forward, not backward," after sustaining several objections to the relevance of dated questions asked by Father, who was representing himself at the time. Far from a refusal to consider testimony, as Mother contends, the court's repeated statements were merely reminders to all involved of the issues at hand.
To that end, the record also shows the court fully considered Father's prior acts of domestic violence in ruling on the section 3044 presumption. The court informed the parties at the beginning of the evidentiary hearing that the presumption applied because of Father's acts of domestic violence that led to the original restraining order and its renewal. The court also noted that because of those proceedings it was familiar with the parties' history and Father's acts of domestic violence. During the hearing, the court admitted evidence from both sides on Father's acts of domestic violence, including records of the electronic communications containing Father's prior abuse. In issuing its ruling, the court stated it reviewed the communications in their entirety, explaining further that it "spent a lot of time" going through them to try to "really get a feel of the conflict that stems between these two parents." The court also reminded the parties that it had imposed the renewed restraining order because the parties' communications showed Father's pattern of bringing up the past "as a method to vent what [he'd] been feeling for so long." The court then explained that it sought to determine whether this behavior "went away," and concluded that "it did." Instead, the court noted, the parties' latest communications dealt with issues such as video calls, M.'s medication, and Mother's desire to know what Father and M. were doing. After providing a "flavor" of the communications by reviewing some examples on the record, the court again concluded that "in reading the messages since the renewal [Father] did not violate the renewal." In other words, the court found for purposes of subdivision (b)(2)(F) that Father had not committed further acts of domestic violence. Mother asserts the trial court erred by not describing that finding as specific to subdivision (b)(2)(F). But the record makes clear the court was addressing the factor within its broader discussion of Father's compliance with the renewed restraining order. Because substantial evidence supports the finding on the factor, the trial court did not abuse its discretion.
4. Best interest of the child under section 3044, subdivision (b)(1)
The trial court then examined the first section 3044 factor, the best interest of the child pursuant to sections 3011 and 3020. (§ 3044, subd. (b)(1).) As laid out in those statutes, "[t]he best interest of the child is always the overriding goal, and when there has been domestic abuse, the health, safety, and welfare of the child is the controlling factor." (S.Y. v. Superior Court, supra, 29 Cal.App.5th at p. 336.) "The section 3044 presumption does not change that test and does not limit the evidence cognizable by the court." (Ibid.)
Mother's first contention on this factor is that the trial court entirely ignored it. The record does not support this contention. Rather, it shows the court took care to consider and reject Mother's various arguments that equal custody would be against M.'s best interest. For instance, the court explained that, notwithstanding some missed visitations because of work, Father's compliance with the order for daily video calls belied Mother's assertion that he was not exercising his custody rights. The court likewise rejected the argument that Father's cohabitation with a girlfriend would be detrimental to M. The court explained Mother had not substantiated any detriment, sharing too its "expect[ation] that divorce[d] parents move on with their lives," which "is going to include significant others on both sides." The court also found Mother's contention that Father desired custody as a "reason to harass her" to be unsupported. Instead, the court continued, evidence showed Father to be invested "in spending quality time with his daughter." Finally, the court noted M.'s experience with preschool and a nanny undermined Mother's contention that equal custody would be detrimental because it would lead to M. being left in the care of other people. The court also highlighted evidence showing that Father had offered to care for M. when she would have otherwise been left in the care of others because Mother had to work. After addressing these arguments, the court concluded that "in weighing and considering all of the evidence presented . . . it would be in the best interest to [M.'s] health, safety and welfare that she spend equal time with both of her parents." In short, the court did not ignore the factor.
On this basis, we are able to distinguish this case from decisions Mother cites where the trial court failed to apply, and in some cases even consider, the section 3044 presumption. (See Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 663 [visitation order violated section 3044 because it effectively awarded joint physical custody despite no evidence to rebut the presumption]; Ellis v. Lyons (2016) 2 Cal.App.5th 404, 417 ["We see no indication in the record that the family law court applied the rebuttable presumption called for by section 3044"]; In re Marriage of Fajota, supra, 230 Cal.App.4th at pp. 1498-1500 ["There is no indication in the record that the judges who made orders granting or affirming joint legal custody for [the father] applied the mandatory presumption provided in section 3044"]; Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 736-737 ["Nothing in the order even hints the court applied the presumption of section 3044, or required Father to show by a preponderance of the evidence that it would not be detrimental to grant him custody of the children"].)
Mother next argues that, even if it did not ignore the factor, the trial court abused its discretion because Father presented no evidence showing it would be in M.'s best interest to award him joint custody. According to Mother, the trial court excused this lack of evidence, which in turn effectively placed the burden on her to show joint custody would be detrimental to M.'s best interest. The record refutes this argument as well. Father presented substantial evidence showing he took on an active and positive parenting role in M.'s life. In addition to the video calls, Father testified about the activities he engaged in with M., including long bike rides and trips to the library, theme parks, and the beach. He described friendships of M.'s, at school and near his home, that he helped support with frequent playdates. He demonstrated concern for M.'s intellectual development, explaining how he worked with her on math and spelling and regularly quizzed her on different subjects. He also expressed concern for M.'s health, showing an understanding of her allergy and other medical history.
In addition to his relationship with M., Father testified as to his ability to parent notwithstanding work demands, explaining he wanted to be more than a "weekend dad" and that his primary focus was to spend more time with his daughter. He also testified that he moved to California, and eventually to Pasadena, to be closer to M. While Mother stresses how the evidence does not show Father to be perfect, that is neither the standard for the trial court to consider M.'s best interest nor the standard for our review of the court's determination on that factor. Rather, the trial court's findings that Father was invested in spending quality time with his daughter and that equal custody was in her best interest are supported by substantial evidence.
Mother finally contends the trial court erred by making its decision based on the policy preference for frequent and continuing contact with both parents under subdivision (b) of section 3020. This contention too is unpersuasive. The perpetrator of domestic violence cannot rely on the policy preference to rebut the section 3044 presumption. (§ 3044, subd. (b)(1).) But once the presumption has been rebutted, "the case becomes like any other in determining what custody arrangement is in the best interests of the child." (Jason P. v. Danielle S., supra, 9 Cal.App.5th at p. 1033; see also Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1055 ["where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order"].) The trial court followed these exact steps here. After the court determined Father had overcome the section 3044 presumption based on its subdivision (b) findings, it explained an order of equal custody would both be in the best interest of M.'s health, safety, and welfare, and reduce the nature and amount of contact between the parties. (§ 3011, subd. (a)(1) &(3); § 3020, subd. (a); Keith R., at p. 1053.) The court then further explained that an order of equal custody "promotes the policy of the State of California that frequent and continuing contact with both parents should be implemented unless there is a detriment or some scheduled concerns that should be considered, of which the court does not find any." The court did not abuse its discretion by citing the policy preference at this point in its ruling.
Amidst her arguments on the best interest factor, Mother appears to challenge the trial court's finding that Father demonstrated a significant change of circumstances justifying modification of the existing custody and visitation order. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) The record shows the trial court's finding, which was based on Father's relocation to Pasadena and completion of a nine-month deployment in Egypt, to be reasonable. Thus, we will not disturb it here. (See In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089 [changed-circumstance ruling reviewed for abuse of discretion].)
D. The Trial Court Did Not Commit Reversible Error in Denying Mother's Request for a Statement of Decision
Mother contends the trial court committed reversible error by failing to issue a statement of decision under Family Code section 3022.3. The statute provides that, "[u]pon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure." Section 632 of the Code of Civil Procedure provides that "upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required," but also that "[t]he court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial." A request for a statement of decision under section 632 "must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision." (Ibid.) "The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties." (Ibid.)
As an initial matter, Family Code section 3022.3 and Code of Civil Procedure section 632 require the trial court to issue a statement of decision "upon the trial of a question of fact." (Italics added.) Based on this plain language, courts recognize the statutes apply "'when there has been a trial followed by a judgment,'" but not "to an order on a motion . . . even if the motion involves an evidentiary hearing and the order is appealable." (City and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531, 544.) Notwithstanding the statutory text, courts have also recognized child custody cases as an exception to the rule that a statement of decision is only required after a trial. (See id. at pp. 544-545.) But even under this case law, the trial court's failure to issue a statement of decision is subject to harmless error review, and Mother has not shown prejudice. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 ["a trial court's error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review"]; City and County of San Francisco v. H.H., supra, 76 Cal.App.5th at p. 547, fn. 6 [failure to issue a requested statement of decision subject to harmless error review]; see also Parris J. v. Christopher U. (2023) 96 Cal.App.5th 108, 134 ["'"[T]he burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice"'"].) Mother asserts the trial court's failure to issue a statement of decision was "harmful" to her ability to appeal its ruling. But she does not identify any arguments she was unable to make on appeal or show that we are unable to meaningfully consider the arguments she did make. (Cf. F.P., at p. 1116 ["A trial court's failure to issue a properly requested statement of decision may effectively shield the trial court's judgment from adequate appellate review"].) Rather, as discussed, we are able to review each of Mother's substantive challenges to the trial court's ruling based on an appellate record that includes full reporter's transcripts of that ruling and the seven days of evidentiary hearing that preceded it.
Those facts distinguish this case from City and County of San Francisco v. H.H., supra, 76 Cal.App.5th 531, Abdelqader v. Abraham, supra, 76 Cal.App.5th 186, and Jaime G. v. H.L., supra, 25 Cal.App.5th 794, three cases Mother cites extensively for purposes of ascribing error to the trial court's ruling.
In City and County of San Francisco v. H.H., supra, 76 Cal.App.5th 531 the trial court granted sole legal and physical custody to the mother "pursuant to Family Code section 3044," but maintained an existing visitation schedule that effectively provided joint physical custody. (H.H., at p. 540.) Describing these orders as "irreconcilable," the appellate court explained it had "no choice but to conclude the [trial] court failed to comply with section 3044," given there were no findings in the record that the father had overcome the section 3044 presumption. (Id. at pp. 544-546.) Moreover, because the record offered "no explanation to reconcile the orders and demonstrate the [trial] court found the presumption rebutted," the appellate court also held the trial court committed reversible error by refusing the mother's request for a statement of decision. (Id. at pp. 546-547.)
As in H.H., the trial court in Abdelqader maintained joint physical custody without explaining how the father had rebutted the section 3044 presumption. (Abdelqader v. Abraham, supra, 76 Cal.App.5th at pp. 194-195, 197.) The appellate court rejected the father's argument that the doctrine of implied findings controlled because the mother did not request a statement of decision. (Id. at p. 197.) The court explained, regardless of whether such a request was made, subdivision (f) of section 3044 required the trial court to state its findings if the presumption had been overcome. (Abdelqader, at pp. 197-198.) Because the trial court had not provided any findings in writing or on the record, the appellate court refused to hold that the trial court's failure to comply with subdivision (f) was harmless. (Abdelqader, at p. 198.)
Finally, the court in Jaime G. held the trial court misapplied section 3044 when it modified custody without providing a complete statement of findings on the record as to the rebutting of the presumption. (Jaime G. v. H.L., supra, 25 Cal.App.5th at pp. 802-803, 805, 807-809.) The court recognized counsel contributed to the trial court's failure to complete its oral ruling with their repeated interruptions. (Id. at p. 807.) But, the court continued, if the trial court was going to end the hearing before completing its statement on the record, it needed to subsequently state its findings in writing. (Id. at p. 809.) With neither, the court explained, questions remained as to whether the trial court considered factors with "deliberate and thoughtful" logic or simply overlooked them. (Id. at 807.)
Thus, in each of these decisions, the trial court recognized the section 3044 presumption applied and issued a custody award reflecting that a parent had rebutted the presumption. When the other parent challenged the award on appeal, however, the appellate court was unable to fully review the ruling on the presumption because the trial court had not stated its required findings in writing or on the record. As shown, the same is not true here. Because Mother fails to establish how she was prejudiced by the absence of a statement of decision, any error in the trial court's denial of her request for one is harmless.
DISPOSITION
The order modifying custody and visitation is affirmed. The parties are to bear their costs on appeal.
We concur: SEGAL, Acting P. J. MARTINEZ, J.
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.