Filed 3/8/18 Marriage of Buono CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re the Marriage of SALVATORE A. and CAROLYN N. BUONO.

SALVATORE A. BUONO,

Appellant,

v.

CAROLYN N. BEGGS,

Respondent.

E066816

(Super.Ct.No. SWD003122)

OPINION

PUBLIC - REDACTED VERSION OF OPINION

Redacts material from sealed record. (Cal. Rules of Court, rules 8.45, 8.46(f)(1) and (f)(2)

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Reversed and remanded with directions.
Salvatore A. Buono, in pro. per., for Appellant.
No appearance for Respondent.
Salvatore A. Buono (Husband) appeals from the order denying his Request for Order to modify child custody and visitation. He contends the trial court (1) erred in applying the significant change in circumstances standard of proof to the request to modify visitation; (2) erred in finding that modification of an interim custodial order required a showing of a change of circumstances; and (3) abused its discretion in finding there was no change in circumstances. We agree with Husband’s first contention; however, the record demonstrates there was confusion as to what Husband sought to modify, i.e., just visitation, or visitation and child custody. Given this confusion, we must reverse the order and remand the matter for clarification and further consideration of Husband’s request consistent with the principles explained in this opinion.
I. PROCEDURAL BACKGROUND AND FACTS
A. The Judgment Granting Child Custody and Ordering Supervised Visitation.
Husband and Carolyn N. Beggs (Wife) were married in 1997 and had one child in 2003. On January 20, 2004, Husband petitioned for dissolution of marriage. (In re Marriage of Salvatore and Carolyn Buono (Oct. 24, 2007, E040402 [nonpub. opn.].) On May 19, 2005, following trial, the court issued a restraining order against Husband as to Wife, and awarded sole legal and physical custody of the child to Wife. Husband was allowed supervised visitation. The 2005 orders were reduced to a judgment, which was signed and filed on March 28, 2006. Notice of entry of the judgment was mailed the same day. The judgment provides that Husband’s supervised visitation with the child shall continue “until such time as [Husband] petitions the court for any and all changes and until such time as he completes all of the requirements as set forth in the previous mediation.” Husband appealed, challenging the custody and visitation orders. Rejecting his challenges, we affirmed. (In re Marriage of Salvatore and Carolyn Buono, supra, E040402.)
B. Husband’s Initial Request to Modify Visitation.
On March 16, 2007, Husband filed an order to show cause seeking to modify visitation. (In re Marriage of Salvatore and Carolyn Buono, supra, E047302.) Acknowledging that the trial court had ordered supervised visitation pending completion of a coparenting course and repairs to his home, Husband claimed that he completed the course and made the repairs in 2005. He further claimed he was bonded with the child, and that the child suffered from the time limit restriction on visitation. The parties were ordered to attend mandatory mediation regarding custody and visitation issues. On September 6, 2007, the parties filed a stipulation that allowed Husband to have one unsupervised visit on Saturday, September 8, from 9:00 a.m. to 1:00 p.m. (In re Marriage of Salvatore and Carolyn Buono, supra, E047302.)
On September 11, 2007, the trial court (Judge Carol D. Codrington) found Husband to be a “vexatious litigant under California Code of Civil Procedure Section 391[, subdivision] (b) and prohibit[ed him] from filing any further papers . . . in pro[.] per[.] without first obtaining leave of the presiding judge to do so . . . .” On the issue of custody and visitation, the court ordered the parties back to mediation. On November 8, 2007, the trial court appointed Dr. Robert Suiter pursuant to Evidence Code section 730 to evaluate both parents, payable by Wife subject to reallocation. As an interim order, the court stayed all previous orders and added one more supervised day (by a professional) of visitation for Husband. (In re Marriage of Salvatore and Carolyn Buono, supra, E047302.)
On August 20, 2008, the trial court (Judge Angel M. Bermudez) found that before Dr. Suiter’s report would be considered, Husband had to show changed circumstances. On October 28, 2008, the trial court (Judge Bermudez) granted Wife’s motion to renew the restraining order for five years. (In re Marriage of Salvatore and Carolyn Buono, supra, E047302.) The court also ordered Husband to enroll in and complete a 52-week anger management program. Regarding custody and visitation, the court reviewed the March 28, 2006, judgment and found no reason to modify visitation or custody under either a change in circumstances standard or best interests of the child standard. On October 29, 2008, Husband filed a motion to reconsider based on the court’s (Judge Codrington) prior finding of a change of circumstances. The motion was denied on January 27, 2009, on the grounds that Husband had been found to be a vexatious litigant and his motion had not been reviewed by the presiding judge or designee. On July 21, 2010, we affirmed the order of the court. (In re Marriage of Salvatore and Carolyn Buono, supra, E047302.)
C. Husband’s Current Request to Modify Child Custody and Visitation.
On February 27, 2015, Husband filed a request for order to modify both child custody and visitation. However, according to his declaration, Husband was requesting a modification of visitation only: “[Husband] is respectfully requesting the court for unsupervised visits, but exchange shall continue to be supervised.” He further agreed that “[v]isit[ation] shall continue at supervisor’s approved locations and with the time frame tailored to [Wife’s] work schedule.” On April 21, 2015, Wife filed her opposition to Husband’s request. She argued that it was vague; Husband had not provided any new information since the prior ruling; and it appeared that Husband merely sought a reconsideration of the 2009 order that was affirmed by this court.
On May 14, 2015, the parties participated in a “Child Custody Recommending Counseling” session, and a recommendation memorandum was filed with the court.

[Redacted]





On March 8, 2016, the restraining order against Husband was renewed as to Wife, but not the child. The parties participated in another “Child Custody Recommending Counseling” session, [Redacted] , and an order pursuant to the counselor’s recommendation was filed with the court on May 16, 2016.

[Redacted]






Following several continuances, Husband’s request for order to modify visitation was heard on August 4, 2016. During the hearing, Husband’s counsel argued that Husband had completed all the requirements necessary for him to begin the “Parenting Time-Step Up Plan.” Counsel pointed out that the reference by both child custody recommendation counselors to a 52-Week Batterer’s Treatment Program was a mistake; the trial court had ordered Husband “to enroll in a 52 week anger management program and to show [the court] satisfactory completion of that.” Counsel noted that the child had been removed from the restraining order against Husband. In response, Wife’s counsel pointed out that Husband remains under a restraining order as to Wife, has been found to be a vexatious litigant, and has not followed the court’s orders to pay “numerous sanction awards, numerous attorney fee’s awards . . . .” Emphasizing the status of the case as of 2008 and 2009, Wife’s counsel argued that Husband has failed to demonstrate “substantial changes in circumstances which would warrant a modification of . . . the visitation.”
The trial court stated: “We know that there hasn’t been any [Family Code section] 3044 situations where he has gone beyond. He’s coming to court now, seven years after an order was made to do a 52-week batterers program and saying, well, in the transcript—which I have—it says 52-week anger management. Okay. And the order which you have from the . . . October 28th, 2008, the box is checked for a 52-week batterers program. So he had to have done both of them. He claims he just now completed that a couple months ago.” The trial court inquired about a material change of circumstance. In response, Husband’s counsel argued that Husband had completed the program “as dictated by the court that he was to comply—and he did—with the anger management classes” and “the restraining order was lifted as to the boy last year.” Additionally, counsel noted that Husband had received favorable reports from the visitation monitor, and both child custody recommendation counselors recommended unsupervised visitation. Wife’s counsel continued to argue for supervised visitation and denial of Husband’s motion on the grounds of no change of circumstances.
The trial court denied Husband’s request for order, stating: “I am not going [to] change the custody/visitation because I just don’t think it’s a material change of circumstances.” According to the court, “[W]e’re post-judgment. It’s a Montenegro [v. Diaz (2001) 26 Cal.4th 249] order. There is no material change of circumstances.”
II. DISCUSSION
A. The Trial Court Erred in Applying the Significant Change in Circumstances Standard of Proof to the Request to Modify Visitation.
Husband contends the trial court applied the wrong standard (namely, change of circumstance) in denying his request. He claims that, because he was seeking a modification of visitation, the correct standard of proof was the best interests of the child. We agree that the correct standard for determining whether to modify visitation is best interests of the child. “‘[A] party seeking to modify only visitation and not the allocation of “custody” between the parents is held solely to the normal “child’s best interest” standard of proof; the changed circumstances rule does not apply.’” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1080.) To the extent the trial court denied the request to modify visitation on the ground there had been no changed circumstances, it applied the wrong standard of proof.
The record is ambiguous, however, as to whether Husband sought only a change in visitation, or whether he also sought a change in custody. His request was made using the Request for Order, Judicial Council Form FL-300, and he checked the boxes marked “MODIFICATION,” Child Custody, and Visitation. But, his declaration indicated that he was requesting a modification of visitation only: “[Husband] is respectfully requesting the court for unsupervised visits, but exchange shall continue to be supervised.” He further agreed that “[v]isit[ation] shall continue at supervisor’s approved locations and with the time frame tailored to [Wife’s] work schedule.”
In support of his motion, Husband offered recommendation memoranda of both counselors from the parties’ participation in the “Child Custody Recommending Counseling” sessions in May 2015, and May 2016.

[Redacted]


At the hearing on August 4, 2016, the court observed: “We’re here for a review of custody and visitation.” Wife’s counsel stated that they were present for modification of custodial time-share. Husband’s counsel failed to correct the statement. Nonetheless, he proceeded to argue for changing visitation based on the facts that there was no restraining order against Husband as to the child; Husband had completed a 52-week anger management program; and Husband wished to subscribe to the parenting time “step up program” as recommended. Wife’s counsel responded: “The law is clear. The Supreme Court has made it very clear that before this man could come in and request a modification of the visitation, he has to show and demonstrate substantial changes in circumstances which would warrant a modification of—of the visitation.” Wife’s counsel discussed the history of the case through 2009, pointed out that the restraining order had just been renewed, and argued that Husband’s request for modification filed on February 27, 2015, failed to identify “a change in circumstances.”
The trial court stopped Wife’s counsel and said, “Counsel, what about the issue of a material change of circumstances? Counsel is right.” Husband’s counsel replied, “Clearly, as laid out in the Montenegro case, there has to be a substantial change of circumstances. We have two.” Counsel again identified the facts that Husband had completed the 52-week anger management program, that the restraining order was lifted as to the child, and that Husband had received favorable reports from the visitation monitor. The court responded: “If you’re post judgment, and we are post judgment from 2006—I am showing March 28th, 2006, when it was filed—you have to show a material change of circumstances before you get anywhere else. [¶] . . . [¶] Okay. And, counsel, I don’t think that is a material change of circumstances” to “change the custody/visitation . . . .”
A review of the record suggests there was confusion on the part of both parties and the trial court as to what Husband was requesting. If Husband was only requesting a modification of visitation, then why did the parties participate in two “Child Custody Recommending Counseling” sessions? If Husband recognizes that he must establish it is in the best interests of the child to modify visitation, then why did his trial counsel argue the change of circumstances standard of proof?
[Redacted]

Given the confusion over what Husband sought to modify, it is unclear whether the trial court applied the correct standard. Moreover, it is unclear if application of the incorrect standard precluded the trial court from considering the visitation monitor’s reports.
Based on these ambiguities, we find it appropriate to reverse the order of August 4, 2016 and remand for clarification and further consideration. As such, we need not reach the merits of Husband’s other contentions.
V. DISPOSITION
The order is reversed and the matter is remanded. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RAMIREZ
P. J.
We concur:

MCKINSTER
J.

MILLER
J.