Opinion
A150291
06-22-2018
In re the Marriage of STEPHANNIE O. JAMES and DUILIO S. VALLE. STEPHANNIE O. JAMES, Appellant, v. DUILIO S. VALLE, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FFL137081)
Stephannie O. James (Mother) appeals an order granting to her former husband, Duilio S. Valle (Father), physical custody of their two children. She contends the evidence does not support the family court's finding that she did not support Father's relationship with the children and that it abused its discretion in focusing unduly on which parent was more likely to allow frequent contact with the other parent. We shall affirm the order.
I. BACKGROUND
Father has not filed a respondent's brief. In such a case, "the court may decide the appeal on the record, the opening brief, and any argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) Accordingly, we will not honor Father's request for oral argument. "We examine the record on the basis of appellant's brief and reverse only if prejudicial error is found." (Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3.)
Mother and Father were married in 2010 and have two daughters, born in 2011 and 2013. At the time they met, both Mother and Father were enlisted in the Air Force. Father was discharged from the military in September 2010, and stayed home with the children while Mother worked. Mother was deployed to Afghanistan for seven months in 2014, after both children had been born. During that time, Father and the children lived with Mother's mother (Grandmother), and Father cared for the girls with the help of Grandmother and of Father's father. Mother would have video chats with the girls about twice a week while she was in Afghanistan. In November 2014, shortly after returning from Afghanistan, Mother filed a petition for dissolution of the marriage.
In December 2014, Mother requested an order allowing her to move with the children to Japan, where she was to be stationed. At the hearing on the request, she testified she would like Father to have the girls for two months in the summer and on alternating holidays. Mother testified that she might be able to take the girls to California for visitation on a military aircraft for no cost, but that she would be willing to pay for the transportation if necessary. She also said she would be willing to have Father visit Japan and see the girls there.
Father was renting a room in a house in Vacaville with three male housemates, and was employed. The girls slept in Father's bed when they stayed with him.
Father testified that shortly after Mother returned from Afghanistan, Grandmother evicted him, and Mother filed for divorce. Mother did not accommodate his requests to see the children, particularly for overnight visits, so he sought a court order allowing him regular parenting time.
In a July 23, 2015 order, the family court found that Father was "more supportive of the children spending time with Mother than she is supportive of the children spending time with Father." The court went on: "The court has considered awarding custody of the children to Father but does not do so at this time. The court shall give Mother an opportunity to demonstrate her ability to support frequent and continuing contact by Father." Among other things, the court noted that there were "space-available flights through the military to transport the children at no or low cost. Mother indicated a willingness to transport the children so they could use those flights. Her military job is uniquely helpful in that regard. She works in air transportation, the military division that transports people and materials for the military." The court therefore ordered that Mother and Father share legal and physical custody of the children; that they alternate 60-day periods of custody; that the parties arrange for the children to communicate with the other parent three times a week through electronic communication; that each party have reasonable visitation if they visit the area where the children live in the custody of the other party, upon 15 days' notice; and that Mother provide transportation for the children in both directions. The children were to remain with Mother for 60 days when she went to Japan, and then be placed in Father's custody for 60 days; the court reasoned that Father could use the initial 60 days to obtain better housing.
In December 2015, Father made an ex parte application for an order returning the children to him, alleging Mother had failed to comply with the court's earlier order to bring the children to his custody for 60 days. He attached email correspondence with Mother. In a November 19, 2015 email, Mother indicated she had gone to Japan on October 23, that the sixtieth day would be December 22, and that it would be difficult to arrange a flight both because only limited seats were available so close to Christmas and because she had to get her leave approved to bring the girls to California. She said the earliest she could leave was December 26. In a December 20, 2015 email, Mother told Father she wanted to give him 30 more days to find a place of his own; according to the email, Father was renting a room from someone named Justin, and he might have to leave at any point because it was not legal for him to stay there. Mother said that if Father found a home of his own during that time, she would bring the girls to California and have them stay an extra 30 days. The family court denied the ex parte application and continued the matter to February 9, 2016 to hear Father's request for modification of child custody and visitation. On that date, the court took the matter off calendar and advised Father to seek legal advice as to how to enforce an order.
Mother's response included documentation indicating the service member from whom Father was renting a room was informed on December 31, 2015 that he was not allowed to rent a room to Father and that Father would have to find a new residence by the end of the following week.
In June 2016, Father sought an order that he have custody of the children during the school year and that Mother have them during the summer. He alleged Mother had been violating the child custody order and frustrating his right to visitation.
Father's Testimony
At the October 7, 2016 hearing on the petition, Father asked for joint physical and legal custody of the children. He told the court that he currently had no physical custody of the children, and he wanted "50/50 custody." He testified that Mother was moving to Texas to attend nursing school. He had arranged a spot for the older child in kindergarten and he had identified a daycare for the younger child, and he wanted the children to live with him throughout the school year. He said he would be flexible in arranging for Mother to see the children on her school breaks, and suggested she have the children during the children's summer break. When he asked Mother why she could not go to nursing school in California so they could share physical custody of the children, she told him she did not want to return to California because if she did so, he would try to control her.
Father testified he was willing to coparent the girls. He had visited Japan, unannounced, to see the girls in April 2016. They spent several days with him. Mother had packed a bag of clothes for the girls, but the clothes did not fit and some items were missing. He visited the school the older child was attending, although Mother originally objected to him visiting. While Mother was in Japan, he had tried to persuade her to arrange for the children to come to California, but Mother did not respond. He saw the girls when he attended a birthday party in Oregon at the end of July 2016, and had not seen them since then. He had asked Mother to bring the children when she was coming to court, and Mother had told him he had not given enough notice.
On direct examination, Father testified he spent ten days in Japan and the girls were allowed to spend three nights with him. On cross-examination, he acknowledged that, although he had not given Mother advance notice that he was arriving, Mother allowed him to have uninterrupted visitation with the girls from shortly after his arrival until he left, with the exception of one night they spent with Mother.
Mother was currently living in Oregon with Grandmother. Father had been willing to negotiate a custody schedule with her until she began sending offensive text messages saying he was a "deadbeat dad." Two days before the hearing on Father's petition, he asked Mother to bring the children from Oregon for the court hearing, but she told him she would not be able to drive the girls that far in one day and she did not want to have to rent a hotel room for them to spend the night on the way to California. On another occasion, he asked Mother to have the children brought to California for a birthday party, but she said she did not want to do so because she did not know his housemates. Mother sometimes cut short Father's nightly phone calls with the children, and Mother or Grandmother was always present in the living room with the girls during calls. The children's attitude toward him during calls had become hostile since Mother had moved to Oregon. Mother and Grandmother would tell the girls that if they did not want to talk with him, they should hang up.
Sometime after the end of July, Mother told Father she would be going on a ten-day vacation in September, and she asked if he could care for the girls during that time. Father told her he could not do so because he did not have enough notice to arrange care for them.
Father testified he shared a house with a family of three people: a retired Army veteran, his wife, and his teenaged son. Father had a large bedroom that had room for bunkbeds and his own bathroom. He was making arrangement to rent another room for his father to stay in, so his father could help care for the girls. He was employed at a hospital on a military base. He worked regular hours Monday through Friday, and did not work nights or weekends.
A July 2016 mediation report had indicated that since February or March, Father had been renting two rooms in a five-bedroom house; the other occupants were two women, a three-year-old child, and an older child who visited. Father explained the change in residents by saying, "it is a house where people move in and out." He later testified he had moved to his current home a few days before the hearing.
Father testified he would be willing to pay half the cost of airplane flights when the children went to Mother's home.
Father had told a mediator he would be willing to consider letting the girls stay with Mother if she agreed to let him claim them on his taxes every year.
Mother's Testimony
Mother testified that when she and the children were in Japan, Father sent a text message telling her he had arrived and would like to see the girls. Mother was shocked, because the court order required 15 days' notice of a visit. She met him the next day, a Friday, and the girls stayed with Father continuously until the following Wednesday. She dropped the girls off with Father again on Thursday, and they stayed with him until Saturday, the day he left Japan. She did not arrange for the children to fly from Japan to visit Father at the end of her 60-day custody period because she could not afford to pay for commercial flights to transport the children to California and military aircraft flights were not available.
Mother left Japan shortly after Father's visit, at the end of April 2016, to participate in a career intermission program, which would allow her to get her nursing degree so that she could become a commissioned officer upon her return to active duty. She was currently taking classes at a community college in Oregon and hoped to transfer to Texas A&M University. Mother wanted to go to Texas to visit the university on September 9, 2016; she asked Father on August 27 or 28 whether he could care for the girls while she was in Texas, but he did not arrange to pick them up.
Mother was living with Grandmother. The girls had their own room. Until Father testified in court, Mother did not know he was living in a new residence with new housemates.
Mother testified that she wanted primary physical custody of the girls. She suggested that she and Father alternate time with them during the holidays and spring break, and that they spent most of the summer with Father. When asked what visitation she should receive if the court transferred the children to Father, she replied, "I would assume the standard custody arrangement of them being in school and me visiting on school holidays."
Mother testified she had tried to allow Father to see them as much as possible. She could save money to pay for the girls to travel to and from California to see Father. Mother acknowledged that there were nursing programs available in California, but had only applied to Texas A&M because it offered more opportunities for scholarships and she wanted to remain in Texas when she returned to active duty.
The family court ruled that Mother and Father should have joint legal custody and Father should have physical custody, with visitation for Mother. In its order, the court noted that in its July 23, 2015 order, it found that Father was more supportive than Mother of the other parent's relationship with the children, and that it had given her a chance to demonstrate her support during her time in Japan. The court found, however, that Mother had failed to take advantage of this opportunity; the only visit that took place while Mother was in Japan occurred when Father travelled to Japan at his own expense. The court found not credible Mother's testimony that she was unable to arrange even a single visit between Father and the children. The court found: "Mother voluntarily took a leave of absence from the Air Force to attend school, and can return to active duty when she completes her education. She moved to Oregon to live with her Mother and made only token efforts for the children to have contact with Father. He did not have any regular contact until the court ordered daily telephone calls between him and the children as a temporary order pursuant to his request for order. [¶] [] Just before trial, Mother gave Father the opportunity to have the children with him when she traveled to the State of Texas. He was unable to avail himself of the opportunity because he did not have time to arrange child care. The court finds this effort too little and too late." The court again found that Father was more supportive of Mother's relationship with the children than Mother was of his relationship with them, and that "giving Mother further chances to be more supportive of his relationship is not in the best interests of the children and inconsistent with the policy of achieving frequent and continuing contact between the children with both parents." The court noted that the older child was starting school and stated it "has considered establishing stability for her education. Mother's stay in Oregon is temporary, and she has plans to relocate to Texas to complete school and then rejoin the military. The children's need for permanence will be better met by Father." The court therefore ordered that, unless the parties agreed otherwise, the children would spend the month of July with Mother, and spend holidays and vacations with each parent on an alternating basis. The children were to have regular communication with each parent through electronic communication that allowed the children to see the parent three times per week, and each parent would have reasonable visitation if they visited the area where the children lived while in the custody of the other parent.
Mother appeals this order.
II. DISCUSSION
Mother contends the family court abused its discretion granting Father sole physical custody of the children and imposing excessive limits on her parenting time.
A. Legal Standards
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.] Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' [Citation.]" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) "Generally, reversal is only warranted 'if there is no reasonable basis upon which the trial court could conclude that its decision advanced the best interests of the child.' [Citations.] ' " 'Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' . . ." ' " ' [Citation.]" (Ed. H. v. Ashley C. (2017) 14 Cal.App.5th 899, 904.) In other words, "[t]he test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but 'whether the trial court could reasonably have concluded that the order in question advanced the "best interest" of the child.' [Citation.]" (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The court and the family have 'the widest discretion to choose a parenting plan that is in the best interest of the child.' (Fam. Code, § 3040, subd. (b).)" (Montenegro, supra, 26 Cal.4th at p. 255.) In determining the best interest of the child, the court considers, inter alia, the child's health, safety, and welfare and the nature and amount of contact with the parents. (§ 3011.) The preferred custody arrangement in California, according to the best interest of the child, is "[t]o both parents jointly . . . or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent . . . and shall not prefer a parent as custodian because of that parent's sex." (§ 3040.)
All statutory references are to the Family Code.
After a final judicial custody determination is in place, a party seeking to modify the permanent custody order may do so only if there has been a significant change of circumstances justifying the modification. (Montenegro, supra, 26 Cal.4th at p. 256, citing In re Marriage of Burgess (1996) 13 Cal.4th 25, 37 (Burgess).) In the order on appeal here, the family court stated, "The court intends [the] custody portion of this decision to be a final one pursuant to Montenegro . . ." Mother does not contend the earlier, July 23, 2015, order allowing her to take the children to Japan and setting a 50/50 custody schedule was intended to be a permanent custody determination, which would require Father to show a change of circumstances before obtaining a modification. By its terms, the July 23, 2015 order was contingent: the family court stated that it had considered awarding custody to Father "but does not do so at this time. The court shall give Mother an opportunity to demonstrate her ability to support frequent and continuing contact by Father." Thus, the earlier order on its face contemplated further orders. We shall not treat it as a final custody determination requiring a change of circumstances for modification.
B. Analysis
Mother contends there is no substantial evidentiary basis for the family court's finding that she did not support Father's relationship with the children. We disagree. There was evidence that while both parents were living in California shortly after the parties separated, Mother did not accommodate Father's requests for overnight visits with the children. Mother told the court at the July 2015 hearing, before she went to Japan, that she might be able to arrange flights on military aircraft for no cost and that if necessary, she would be willing to pay for transportation. The family court ordered the parents to alternate 60-day periods of custody, but when the time came to transfer custody, Mother did not do so. In November 2015, she told Father it would be difficult to arrange a military flight at the time to transfer custody because the date was close to Christmas and because she had to get her leave approved and that the earliest she could leave was December 26. As that date approached, she told Father she was not comfortable bringing the girls to stay with him because of his living situation. During the six months Mother lived in Japan, she never brought the girls to California; the only time Father saw them during that time was when he flew to Japan in April 2016, shortly before Mother's return to the United States. Even after Mother was living in Oregon, she did not arrange for the children to live with Father in accordance with the court order. Mother did not comply with Father's request that they visit Father when he had planned a birthday party for the older child. It appears that the only time Father saw them while they were living in Oregon was in July 2016, when he travelled to Oregon for the older daughter's birthday. Although Mother asked Father if he could care for the girls when she went to Texas to visit the university, Father did not have enough notice to arrange child care. Thus, over the course of nearly a year, the children saw Father on only two occasions, and, except when she wished to visit Texas, there is no indication Mother made any effort to have the children visit him.
Mother contends this evidence is insufficient; she argues that the trial court's disbelief of her testimony that she could not arrange military flights and could not afford commercial flights for the girls to visit Father while she was in Japan does not amount to substantial evidence that she could have done so. (See Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1229 [even if witness's denial that more favorable contract terms could have been obtained but for party's negligence were not credible, "disbelief of [witness's] testimony does not constitute affirmative evidence of the contrary proposition"]; California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 48 ["If a witness testifies, for instance, that it was not raining at the time of a collision, and if the jury disbelieves that testimony, such disbelief does not provide evidence that it was raining at the time of the collision"].) This rule is not applicable here. There is evidence that in the six months Mother was in Japan, she was persistently unresponsive to Father's requests that the girls come to California for their court-ordered time with him. She told Father the earliest date she could arrange a military flight was December 26, 2015, because flights were full in the days leading up to Christmas. As that date approached, she told him she wanted to wait until he had a different living situation. She never arranged a military flight in the ensuing months, when the Christmas rush was over. After she moved with the girls to Oregon at the end of April 2016, within driving distance, she still failed to arrange for them to see Father in California. The evidence supporting the family court's findings is not limited to the court's disbelief of Mother's testimony. The family court could reasonably conclude Mother was less supportive than Father of the children having consistent contact with both parents. (See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094 (LaMusga) ["Clearly, the court must consider the past conduct of the parents in fashioning a custody order that serves the best interests of the children"].)
Mother also argues the court unduly focused on the single factor of which parent was more likely to allow frequent and continuing contact with the other parent. The record does not support this assertion. As Mother acknowledges, the law requires a court making a custody order to consider, among other factors, "which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent." (§ 3040, subd. (a).) The family court properly did so. It also found that the children's interest in educational stability would be furthered by living with Father, rather than living temporarily in Oregon, then in Texas while Mother completed school, then moving again after her education was finished. Finally, while Father was testifying, the court inquired into his living situation, the sleeping arrangements, the other residents of the home, the financial arrangements, and Father's plans for getting the children to work and their activities. The weight to be accorded to the factors relevant to a child's best interest are left to the court's sound discretion. (LaMusga, supra, 32 Cal.4th at p. 1093.) The record does not indicate the court relied exclusively, or unduly, on Mother's reluctance to allow the children to spend time in Father's custody.
Father represented himself, and the court questioned him during his testimony.
Mother contends, however, that the court failed to consider the children's "paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker." (Burgess, supra, 13 Cal.4th at pp. 32-33.) Bearing in mind the family court's broad discretion, we reject this contention. In the first place, the interest in stability is entitled to the most weight only "[o]nce the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) That factor is not entitled to the same weight where, as here, the family court has not yet entered such a final order. Moreover, the need for stability is not necessarily determinative. (See LaMusga, supra, 32 Cal.4th at p. 1093 [despite " 'paramount need for continuity and stability in custody arrangements,' " trial court did not abuse discretion in transferring custody from custodial parent who wanted to move away where move would be detrimental to children's welfare because it would disrupt relationship with father]; Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 999 ["while the child's interest in continuity and stability is a factor that weighs heavily in the equation, it does not change the fact that if there was no existing final determination of what custody arrangement was in the child's best interest, the noncustodial parent does not have a burden to show that an existing arrangement is detrimental"].) Although the children had been living exclusively with Mother for nearly a year at the time of the hearing—as a result of her failure to comply with the previous court order—Father had cared for them, either with Mother before her deployment, or without Mother during her deployment, during the first years of their lives. Mother's actions since the couple separated provided an adequate basis for the court to conclude she was less likely than Father to assist the children in maintaining regular contact with both parents, and the family court could reasonably exercise its discretion in awarding physical custody to Father.
Finally, we reject Mother's contention that the court abused its discretion in limiting her parenting time with the children to the month of July and alternating holidays and vacations. Mother provides no authority for the proposition that this arrangement constitutes an abuse of discretion. Mother and Father would be living in different states, and Mother had the opportunity to visit with the children if she visited California during Father's custodial periods. We see no abuse of discretion. (See In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1474 [where custodial parent moved to Indiana, no abuse of discretion in providing noncustodial parent 35 days of visitation in California, plus five-day Christmas visit, plus unlimited time in Indiana with advance notice].)
We acknowledge, as we must, that child custody decisions are difficult and often involve "heart-wrenching circumstances." (LaMusga, supra, 32 Cal.4th at p. 1101.) " 'Unfortunately where, as here, both parents are competent and loving, there is frequently no solution that is fair to everyone involved.' [Citations.]" (Id. at p. 1091.) But where the trial court has not abused its broad discretion, we have no power to reverse its decision.
III. DISPOSITION
The order appealed from is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------