Opinion
D040905.
10-23-2003
In re the Marriage of MICHAEL and SARAH EIFERT. MICHAEL EIFERT, Respondent, v. SARAH EIFERT, Appellant.
Sarah Eifert (mother) appeals the trial courts postdissolution order denying her request to move with her minor child, Allison, from San Diego to San Jose. The court denied her motion on the ground Allisons father Michael Eifert (father) was significantly involved with the child on a daily basis and for that reason it would not be in Allisons best interest to relocate. Mother contends the court prejudicially abused its discretion by (1) applying an incorrect burden of proof on her motion; (2) treating father, who was self-represented, with improper deference; and (3) failing to prepare an order conforming to the evidence at the hearing. Because we conclude the court did not decide which parent should retain sole physical custody in light of mothers plan to move, we reverse the order in part for the trial court to conduct a de novo determination of that question. We deny fathers request for sanctions on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father were married in July 1997 and had one child, Allison, during the marriage. The parties separated in July 1999. Their dissolution matter went to trial in December 2000.
The record before us is of little use in setting out the procedural background of this case. It contains only the minutes of the December 21, 2000 trial reflecting the family courts adoption of certain recommendations made in a report by Dr. Stephen Doyne. The record is absent both a full copy of Dr. Doynes recommendations and the judgment of dissolution or other order reflecting the parties operative custody and visitation arrangement. For history up to the time of mothers filing of the move-away request, mother refers us to her trial brief, which is not evidence.
In May 2002, seeking to relocate to San Jose, mother moved the court to modify the parties present child custody order from joint legal and physical custody, to joint legal custody with sole physical custody to her. She desired to be closer to Menlo Park, where she grew up, and to family and friends, and sought to show job opportunities in the Bay Area for nurse practitioners, her desired field of work, were better than in San Diego. Claiming father paid her no child support and owed her certain arrearages, Mother stated the move would help her financial situation
Father opposed mothers request, stating they shared joint physical and legal custody of Allison under a schedule by which he and mother had respectively a 30/70 percent sharing arrangement. He submitted materials pertaining to a nursing shortage in San Diego County, and declarations from his mother, two sisters and brother. Mother responded with her own supplemental declaration and declarations from her parents, brother and Allisons babysitter.
The matter was heard on July 16, 2002. At the hearing, mothers counsel conceded father spent at least 30 percent of the time with Allison. Father sought to show his time with Allison actually exceeded 30 percent by presenting records prepared by his mother purporting to document the additional time. He advised the court that Allison had stayed overnight through the week with him on two occasions in 2001 when his other daughter was visiting from Minnesota. Father pointed out that while in her mothers custody, Allison was in day care three days a week from 8:00 a.m. to 4:00 p.m. or 5:00 p.m. He related he was significantly involved in Allisons activities, teaching her to swim, playing games and puzzles with her, walking with her to the store, taking her to the museum, and keeping her when mother was at a seminar. In his declaration opposing mothers motion, father pointed out he was a stay-at-home dad and had been since Allisons birth in 1997. He averred mother consistently allowed him to take Allison for extra weekend get-togethers and requested activities. Fathers mother stated in a declaration that father typically took an extra day with Allison because he was granted time mother did not use. She testified about Allison and her fathers time spent together picking flowers, planting in her garden, and reading in the evening. She related how father took Allison to an acting class one week that she would have missed had he not offered to step in to take her. Fathers sister, Pamela Blumenthal, averred in her declaration that father was a highly involved dad who taught Allison things in every activity they did together. She stated: "He takes her to the pool, the beach, museums, as well as playing with her endlessly. She is strongly bonded to him and her love and adoration of him is obvious." Declarations by other family members attested to fathers high level of involvement in Allisons activities and the close connection between father and daughter.
In a July 10, 2002 report by Family Court Services social worker and counselor Wesley Adams, Adams set forth both mothers and fathers representations about time spent, and acknowledged both parents claimed to have spent more time with Allison than the court order allowed by mutual agreement. His report states: "Without considering additional contacts, the mother has generally had the child five nights per week and she has been with the father two nights per week for the last two years. The undersigned believes that the mother has provided primary care for the child. However, it appears that the father has been a very involved parent. Based on the documents provided by the father, it appears that the father has a close and loving relationship with the child and has played an integral role in her life. [¶] Presently, it appears that both parents have the capacity to provide appropriate care for the child." Adams did not make a recommendation as to whether or not mothers move-away request should be granted.
Following presentation of evidence and argument the trial court concluded it was in Allisons best interest to stay in San Diego, and denied mothers motion. In its written order, which was not filed until February 6, 2003, the court made the following findings: (1) father exercised a greater than 30 percent time-share with Allison; (2) father was significantly involved with Allison on a daily basis including participating in a variety of her activities and interests; (3) fathers involvement rose to the level of joint physical custody, requiring the court to determine de novo which primary custody arrangement was in Allisons best interest; (4) mother was not attempting to move out of San Diego County in an attempt to frustrate fathers relationship; and (5) Family Code section 3011 applied to the courts analysis in determining what arrangement was in Allisons best interest. Finally, the order provides: "Even if the court did not consider the current arrangement to be that of a joint [physical] custody arrangement, it would not be in the childs best interest to relocate to Northern California. In fact, it is this Courts opinion, based on the evidence before the Court, a move to Northern California would be detrimental to the child sufficient to warrant a change in custody to Petitioner Father."
DISCUSSION
I. Application of Burgess Presumption
Mother contends the court did not apply the proper burden of proof on her move away request. Specifically, she maintains the court misapplied In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess) because it did not acknowledge her presumptive right, as the de facto custodial parent, to change her residence, and did not require father to meet his burden to demonstrate her proposed move would constitute a change in circumstances so detrimental to Allisons welfare as to require a change in custody. We agree with mothers contention in part.
We review custody and visitation orders, including move-away orders, for abuse of discretion. (Burgess, supra, 13 Cal.4th at p. 32; In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 712-718; In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1466; In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 760 (Biallas ).) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the `best interest of the child." (Burgess, supra, 13 Cal.4th at p. 32.) An abuse of discretion is shown only "`where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances." (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) Under Burgess, we must uphold the courts ruling if it is correct on any basis, regardless of whether such basis was actually invoked. (Burgess, supra, 13 Cal.4th at p. 32.)
Mother narrowly challenges the courts understanding and application of Burgesss presumption favoring a custodial parents right to move. She asserts: "The trial courts analytical path was that because [father] spends approximately 30% of the time with Allison, it is in Allisons best interests not to allow [mother] and Allison to move away." We have reviewed the record of the oral proceedings and find nothing indicating the trial court misconstrued the Burgess presumption or employed such a line of reasoning. In Burgess, the California Supreme court held a parent seeking to relocate with a minor child bears no burden of establishing the move is necessary, either in the initial custody determination or in a proceeding to modify an existing judicial custody order. (Burgess, supra, 13 Cal.4th at pp. 28-29.) In either case, the trial court must take into account the Family Code section 7501 presumption that a custodial parent — the parent with sole physical custody of the child — has a right to change the childs residence, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. (Id. at p. 32.) In these circumstances, the noncustodial parent has the burden of proving "the child will suffer detriment" from the custodial parents move," rendering it "essential or expedient for the welfare of the child that there be a change [in custody]."" (Id. at p. 38.)
In a footnote, the Burgess court suggested a different analysis for parents who have joint physical custody of their child: "A different analysis may be required when parents share joint physical custody of the minor [child] under an existing order and in fact, and one parent seeks to relocate with the minor [child]. In such cases, the custody order may be modified or terminated upon the petition of one or both parents or on the courts own motion if it is shown that the best interest of the child requires modification or termination of the order. [Citation.] The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor [child]." (Burgess, supra, at p. 40, fn. 12; accord Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736.) Under Burgess, no bright line rule is appropriate: "each case must be evaluated on its own unique facts." (Id. at p. 39.) In assessing prejudice to the childs welfare as a result of relocating, the court "may take into consideration the nature of the childs existing contact with both parents — including de facto as well as de jure custody arrangements and the childs age, community ties, and health and educational needs." (Ibid.)
"Joint physical custody exists where the child spends significant time with both parents." (Biallas, supra, 65 Cal.App.4th at p. 760; see Family Code section 3004 ["`Joint physical custody means that each of the parents shall have significant periods of physical custody"].) Joint physical custody may exist even if the childs time is not precisely equally divided between each parent or if one parent is the "primary" caretaker. (See In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1515; Ruisi v. Thieriot, supra, 53 Cal.App.4th at p. 1205; Brody v. Kroll, supra, 45 Cal.App.4th at p. 1736 [term "primary physical custody" may have little significance in context of the case since the record could support a finding that the parents had worked out not just a nominal but an actual joint custody arrangement].) To trigger the Burgess exception of de novo review, the focus is on whether both parents in fact play a substantially equal parental role in raising the child and overseeing the childs day-to-day activities. That de novo review is, "in effect, a `reexamination of the basic custody arrangement" because one parents move in a joint physical custody arrangement will necessarily disrupt the status quo and require the court to modify the existing custody arrangement to determine the childs best interest. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142.)
The transcript of the proceedings on mothers motion reveals that the court understood Burgesss holding at least with respect to application of the initial presumption. It acknowledged that the amount of time Allison spent with father was a critical issue for the move-away request. It explained: "Generally, when there is a time share that I feel, as the court looking at the evidence, is somewhere, lets say for example ten percent, and the parent wants to move who has the physical custody of the child, they have a presumptive right to change the childs residence unless it is detrimental to the child. I dont get there in this case, detriment, and, in fact, I look at the best interest analysis. When I look at the best interest analysis, one of the things I have to look at is which parent or are the parents — who is the more centered, child-centered parent. For example, those are one of the issues I look at or one of the parts of the analysis I look at."
Relying on the evidence before it, the court found father very involved in Allisons life and activities, teaching her and taking her swimming, to museums and other places. It implicitly found both mother and father play a substantially equal parental role in raising Allison and overseeing her daily activities. (See Whealon, supra, 53 Cal.App.4th at p. 142.) Thus, contrary to mothers argument, the court did not err in failing to recognize her presumptive right to move away with Allison because it found the evidence at the time of the hearing supported a finding of de facto joint custody which entitled the court to conduct a de novo review to determine an arrangement for primary custody that would be in Allisons best interest. (Burgess, supra, 13 Cal.4th at p. 40, fn. 12.)
Mother has not meaningfully argued, nor can she, that there is no substantial evidence to support the courts conclusion as to de facto joint physical custody. Mothers arguments are premised on her assertion — which is unsupported by any record citation in her brief — that she is Allisons "primary caretaker" and the parent with "undisputed de facto sole physical custody." Under Burgess, this factor is critical and yet mother cites no supporting evidence for these statements. We do not have before us the operative order reflecting either a stipulated or court-ordered custody arrangement between the parties, only mothers moving papers indicating she sought a change in the present custody arrangement, which she described as a May 7, 2001 order granting "joint physical [custody] with mother being primary caretaker." As the appellant, mother bears the burden of demonstrating error on appeal. To prevail, she must provide this court with a complete summary of the evidence including appropriate citations to the record. (Cal. Rules of Court, rule 13; In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 847, fn. 2.) The "statement of facts" in her opening brief, however, provides no summary of the evidence presented at the hearing on her request for a change in custody and move away, only record citations to the declarations she and father submitted to the court below. In her legal argument she provides citations only to evidence that supports her own contentions on appeal. In the absence of an accurate and complete summary of the evidence, and appropriate citation to the record, this court need not consider any challenge to the sufficiency of evidence to support the courts findings, or undertake to search the record for relevant evidence. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Instead, because of the presumptions in favor of the judgment, we may simply presume the existence of evidence to support the courts findings. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
However, because an award of custody must be in the childs best interest, we undertook to satisfy ourselves that the court properly proceeded on the de novo best interests analysis it was required to perform after determining under Burgess that mother and father shared joint physical custody. We are compelled to conclude the court did not, because it failed to determine what "primary custody," i.e., sole physical custody arrangement would be in Allisons best interest and make an order awarding such custody. Burgess said: "The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children." (Burgess, supra, 13 Cal.4th at p. 40, fn. 12, emphasis added.) This analysis "arises out of the disruption of the status quo which necessarily inheres in a move-away case where there is genuine joint physical custody since, in such an instance, it is unavoidable that the existing custody arrangement will be disrupted. One parent or the other must be given primary physical custody . . . ." (Whealon , supra, 53 Cal.App.4th at p. 142, italics added.)
Some courts of appeal have observed that the term "primary physical custody" has no legal meaning. (See Biallas, supra, at p. 759 [citing cases].) However, it is clear from the context of the Burgess courts opinion that its use of the term "primary custody" in footnote 12 was intended to refer to sole physical custody by one parent.
Here, the court refrained from making a sole physical custody order, leaving the existing joint physical custody order in place. Its decision did not comport with Burgess. (Accord, Ruisi v. Thieriot, supra, 53 Cal.App.4th at pp. 1204-1205 [court of appeal remanded for redetermination of custody where trial court concluded only that existing joint custody arrangement should be continued and did not address question of who should have primary physical custody when mother moved].) Moreover, the court incorrectly focused on whether it would be in Allisons best interest to remain in San Diego. This is not the appropriate inquiry under Burgesss de novo review. The court was required to determine whether it was in Allisons best interest to give mother sole physical custody, which would allow her to take Allison to Northern California, or whether it was in Allisons best interest that sole physical custody be awarded to father. (See Brody v. Kroll, supra, 45 Cal.App.4th at p. 1737; Whealon, supra, 53 Cal.App.4th at p. 142.) "[W]hen the trial court is faced with a request to modify the existing custody arrangement on account of a parents plan to move away (unless the trial court finds the decision to relocate is in bad faith), the trial court must treat the plan as a serious one and must decide the custody issues based upon that premise." (Ruisi v. Thieriot, 53 Cal.App.4th at pp. 1205-1206.) We therefore reverse the order and remand the matter to the trial court to determine de novo the sole physical custody and visitation arrangement upon mothers move to San Jose.
In part, the court said: "What Im getting to is Im not inclined to grant the move away. I think it would be in the best interest of this child to stay in San Diego. Obviously it is always important for — it is always detrimental to the child to move away from one parent. Thats a nonissue. I think we will all agree with that. Now, would it be more detrimental to this child to be moved from San Diego County and not enjoy the benefits that she has with dad? I think so. I think it will be detrimental to this child to move away from dad, and I think it would be in the best interest of the child to stay here."
We acknowledge the trial court went on to address the issue of transferring sole custody to father, but it did so only to issue an order conditioning such custody on mothers move. At the hearing, after making findings as to Allisons best interests, the court said: "Now, would it be in the best interest of the child to transfer custody to dad? And that is one of the things I have to look at. In this situation, if you are inclined to move, I would probably be inclined to transfer custody to dad. So your request to move away is denied." Indeed, the courts final written finding was that a move to Northern California would be sufficiently detrimental so as to justify a change in custody to father. This kind of order can be construed as calling the relocating parents bluff — she will not move if doing so would result in a loss of custody — when there is no statutory basis for permitting the trial court to test parental attachment or risk detriment to the best interest of the child on those grounds. (Burgess, supra, 13 Cal.4th at p. 36, fn. 7.) An order conditionally granting sole physical custody to father is contrary to Burgess. (See also In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 795-796.)
The California Supreme Court has granted review in a case in which the court of appeal rejected just such an order under Burgesss rationale. (People v. LaMusga, review granted Aug. 28, 2002, S107355.)
II. Admission of Visitation Records as Evidence
Because we have left the trial courts order as to joint physical custody undisturbed, we address mothers evidentiary challenge to that finding. Mother contends the court improperly gave greater latitude to father as a self-represented litigant, guiding him on issues and allowing him to introduce inadmissible hearsay evidence — a record of visitation prepared by his mother — for the first time at the hearing on her motion in order to establish he had custody of Allison more than 30 percent of the time.
Even if we assume the court erred by admitting these logs into evidence, we would conclude it did not result in prejudice to mother. "No judgment shall be set aside . . . on the ground of . . . the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; accord, Evid. Code, §§ 353 & 354.) Generally, "a `miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (See Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1013; see also Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)
The courts comments at the hearing indicated it did not rely on the grandmothers visitation records to reach its conclusion that the parties had de facto joint physical custody. In addressing the joint custody issue with mothers counsel it said: "By your clients own admission and by the documents in the file, and Mr. Adamss report, this is at least by court order a 30 percent time share. I think even by your own clients admission, there was a voluntary expansion of the time, so I would suspect that the time that the father spends with this child is more than 30 percent, if not at least 30 percent of the time. 30 percent of the time is the — I did these calculations yesterday — from Sunday at 4:00 p.m. to Monday at 8:00 p.m., Thursday 4:00 p.m. until Friday at 8:00 p.m. That came out to be exactly 30.9 percent so 31 percent time share, approximately." The court further observed that in addition to spending at least 30 percent of his time with Allison, father was "tremendously involved" in Allisons life. The evidence provided through declarations of fathers family supports a finding that the parents each spent significant time with Allison. On the record before us, we cannot conclude admission of the visitation record evidence prejudiced mother; that is, we cannot say it is reasonably probable the trial court would have reached a different conclusion as to the issue of joint physical custody had it excluded the records from evidence.
III. Correction of Courts Order
Pointing out that the court inexplicably delayed several months in issuing its final order after hearing, mother contends the courts order does not conform to the transcript of the hearing or the proposed order submitted by her counsel. Because she cites authority for the proposition that a trial court has the inherent authority to correct its own orders to conform to the proceedings, we presume she seeks an order from this court compelling the trial court to so correct its order.
We address this contention to the extent it applies to those findings in the trial courts final order after hearing that we have left undisturbed, and reject it. Simply, the cases cited for mothers proposition do not compel her requested relief. Mindardi v. Collody (1957) 49 Cal.2d 348 discusses the trial courts inherent power to correct mistakes and amend orders that are not the result of an exercise of judicial discretion, but are inadvertent acts that misstate the courts true intention. (Id. at p. 351-352.) There is no showing that the court here acted under such a misapprehension or was not exercising its judicial discretion in making its final order after hearing. In Airline Transport Carriers, Inc., v. Batchelor (1951) 102 Cal.App.2d 241, a trial court granted a defendants motion to set aside a default judgment, but later refused to correct its order to reflect that the default entry was also vacated. (Id. at pp. 242-243.) The court of appeal reversed the order and ensuing judgment. (Id. at p. 248.) Convinced that the trial court intended to grant the defendant complete relief from the default in its original order, it held the trial court abused its discretion in refusing to correct its minute order to conform to its evident intent. (Id. at pp. 246, 248.) "To hold otherwise would not only in our opinion unreasonably subordinate substance to form and tend to make the law and rules of procedure ridiculous, but would be contrary to both reason and authority." (Id. at p. 248.) The present case involves no such directly contradictory order; mother has not shown such an abuse of discretion to warrant reversal. To the contrary, the trial courts order contains findings that are generally consistent with its comments at the hearing.
Mother further substantively attacks the trial courts specific findings within its order after hearing. She initially repeats her arguments that they are based on the courts misunderstanding of Burgess or on the inadmissible visitation records. We have rejected those arguments ante. She next argues the findings are either unsupported by the evidence or erroneous "as to law and fact." Specifically she contends the courts finding that father is significantly involved with Allison on a daily basis and bonded to her is not supported by competent evidence such as a psychological evaluation. But this assertion is not supported by a discussion of what evidence the trial court relied upon to make that finding (mother only points out the evidence the trial court did not consider), and as we have stated above, mother has waived her substantial evidence argument to the extent she has failed to set forth a summary of fathers evidence.
Mother also argues the hearing transcript is absent any finding by the trial court that the present arrangement was tantamount to a joint physical custody arrangement. We disagree. The trial courts comments regarding the parties sharing arrangement and the time father spent with Allison, as well as its statement that it did not get to the issue of detriment, but was proceeding to the best interests analysis, was an implicit finding of de facto joint physical custody.
IV. Sanctions
Father has requested we impose a $1,000 sanction on mothers counsel for submitting a "falsified document" to this court. He asserts that in a sworn declaration seeking an extension of time to file her opening brief, mothers counsel represented a self-prepared, unsigned, non-file-stamped order to be the courts final order after hearing. Father, however, has not complied with the procedural requirements for seeking an award of sanctions by accompanying his motion with a memorandum of points and authorities (Cal. Rules of Court, rules 27(e), 41) and we deny his request on that basis.
DISPOSITION
The order as to joint physical custody is affirmed; the order is otherwise reversed and the matter remanded to the superior court with directions to conduct a de novo determination of the sole physical custody and visitation arrangement upon mothers move to San Jose, and enter an order awarding sole physical custody and visitation as the evidence warrants. Fathers request for sanctions is denied. The parties are to bear their own costs on appeal.
WE CONCUR: BENKE, Acting P. J., and McINTYRE, J.