Marriage of Kiss

Filed 11/6/07 Marriage of Kiss CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Elizabeth English and Steven Kiss are the parents of a boy who is now seven years old. Elizabeth appeals from judgment after trial. The court denied her request to move to Maryland with the child. Elizabeth contends that the decision was impermissibly coercive, that as the customary custodial parent she was presumptively entitled to relocate with the child, that the trial court did not consider evidence of the effect on the child of Elizabeth's relocation without the child, and that the court ignored the presumption against awarding custody to a perpetrator of domestic violence. (Fam. Code, 3044.) We disagree and affirm the judgment.

Elizabeth appeals from two orders imposing sanctions against her and her counsel: (1) a December 16, 2005, order after hearing on the court's own motion imposing a monetary sanction for failure to comply with the court's order to prepare a statement of decision; and (2) a March 3, 2006 order, after hearing imposing a monetary sanction for uncooperative litigation conduct in connection with entry of judgment. We affirm the December 16, 2005 order, but reverse the portion of the March 3, 2006 order, that imposed a sanction because it was entered without prior notice.

FACTS AND PROCEDURAL HISTORY

Elizabeth and Steven met in Colorado in 1996 and were married there in 1997. Together they ran a telecommunications business. They moved to Solvang where their son was born in March of 2000.

Elizabeth and Steven separated in 2003 and Elizabeth filed for dissolution. She obtained a temporary domestic violence restraining order without notice or hearing, and it expired prior to adjudication on the merits. Before hearing, the parties stipulated to take the matter off calendar, expunge and dissolve the temporary restraining order and have a mutual stay away order entered.

Elizabeth and Steven also stipulated to a temporary custody schedule pursuant to which Steven would have physical custody every other weekend, every other Wednesday, and Father's Day weekend, and Elizabeth would have all other custodial time. The stipulation provided that "[t]his schedule is temporary only and is not to be considered by the court as a precedent or as the 'status quo' when considering future orders in the best interest of [the child]." Throughout the proceedings, the court and the parties consistently referred to the stipulated schedule "temporary."

In 2004, Elizabeth announced her intention to move to Maryland. In response, Steven moved for 50/50 custodial time. Elizabeth opposed his motion, and moved for a custody evaluation pursuant to Family Code section 3111, which Steven opposed. On November 4, 2004, the court granted the motion for an evaluation, and deferred any decision on custody until after the evaluation.

In February 2005, evaluator Robert M. Owen, Ph.D. recommended that it was in the child's best interest to remain in Santa Barbara County. Dr. Owen recommended that if Elizabeth stayed in Santa Barbra, the child should have alternating weekly contact with his parents, and that if Elizabeth moved to Maryland, "[Steven] should have primary custody of his son, with summer and alternating holiday visits [with Elizabeth]." Elizabeth objected to the recommendation and the matter proceeded to trial.

Trial was conducted over eight court days in August and September of 2005. Dr. Owen presented his findings and conclusions. He testified that Elizabeth had been the primary care giver, but that Steven's role had increased. Dr. Owen testified that it was important for the child to maintain a close relationship with his father, partly because the child was very high energy and "desperately" needed to play vigorously and to be in sports. He testified that the animosity between Elizabeth and Steven was "intense" and neither parent was "particularly flexible." He agreed that the parents did work together somewhat on their parenting plan through email, and that Elizabeth had made efforts to include Steven in the child's activities. He testified that on one occasion when Elizabeth needed a sitter for an appointment, she refused to ask Steven to watch the child. He testified that he did not believe that Elizabeth would actually move away if she were not allowed to take the child because she is a loving mother and very attached. He did not evaluate the impact on the child if Elizabeth were to move away without him.

Elizabeth testified that Steven is a caring parent but that she offers the child greater structure. She testified that the child has behavioral problems. She testified that she had been offered a high paying job in Washington, D.C. that would allow her to work part-time, and that her parents live in Maryland.^[1] Elizabeth described occasions on which she had voluntarily offered Steven extra custodial time. She testified that Steven was late a number of times for custodial exchanges and that this upset the child. She testified that Steven made the exchanges difficult, but that recently the exchanges had improved, particularly when they had been conducted by Steven's girlfriend, Stacie, who had behaved appropriately. Elizabeth testified that during the marriage and separation, Steven had "abused" her on several occasions, including walking away from her on a ski slope, begging her to take him back while crawling on his hands and knees in front of the child, and following her into the shower while fully dressed to continue an argument. She did not describe any abusive physical contact or threats of harm.

Elizabeth also presented the testimony of a forensic psychologist, Marlene Valter, PhD., who criticized Dr. Owen's report in several respects. In particular, Dr. Valter testified that Dr. Owen's conclusion that Elizabeth might interfere with Steven's contact with the child was unfounded. She also pointed out that Dr. Owen did not analyze the impact on the child if Elizabeth were to move to Maryland while the child stayed behind with Steven. Dr. Valter had not conducted independent interviews, testing or investigation.

Steven testified that when the child is with him he follows a meal-time, bath-time and sleep-time routine. Steven testified that they cook together outside, work with horses on Steven's ranch, drive a tractor, go sailing, kayaking, hiking or bicycling, and the play baseball and smashball. He testified that he has volunteered in the child's classroom. Steven testified that Elizabeth is a caring parent. He testified that he may have been late for exchanges early on, but had improved and had been late only four times in the last year. He testified that he and Elizabeth had occasionally agreed that he could have extra custodial time, but that Elizabeth would not agree to his proposals for large blocks of time. He denied that the child was present when he begged Elizabeth to take him back. He testified that Elizabeth threw a water bottle once, threw a fork at him another time, and on a third occasion slammed his office door and broke it. (In rebuttal Elizabeth denied throwing a fork and testified that she threw the water bottle down to the floor.) Steven testified that from the time the child was born, he and Elizabeth had employed a nanny, and that Elizabeth continued to work full time. Steven testified that the nature of the telecommunications business makes it possible for him and Elizabeth to work from any location. He testified that he travels 20 percent of the time or less for business. He testified that his parents, his sister, his aunt and his girlfriend, Stacie Glasgow, have helped him to care for the child in Santa Barbara County. At the time of trial he had been in an exclusive relationship with Ms. Glasgow for about two years and they had lived together for a month and a half.

Ms. Glasgow testified that Steven and the child have a great relationship, and that the child demonstrates he is proud of his father. She testified that the child is very responsive to Steven and that Steven creates learning opportunities for the child. Ms. Glasgow testified that she has a good relationship with the child, and that she is not trying to replace Elizabeth. She testified that there was never any difficulty between she and Elizabeth. She testified that she had watched the child overnight when Steven traveled for business.

Steven also presented the testimony of his bookkeeper, Jennifer Denning, whose daughter plays with the child. Ms. Denning testified that Steven is a responsible, loving, attentive and patient father, and that Elizabeth also has a good relationship with the child. Ms. Denning testified that Elizabeth told her that Elizabeth's father may be an alcoholic and may have abused Elizabeth. Elizabeth testified that she does not believe her father is an alcoholic.

At the conclusion of trial, the court announced its decision by oral statement entered in the minutes. The court adopted the findings and recommendations of Dr. Owen, concluding that it was in the best interest of the child to remain in Santa Barbara. The court ordered that if Elizabeth remained in Santa Barbara, then custody would be shared jointly on an alternating weekly basis, and that if she moved to Maryland, physical custody would be awarded primarily to Steven with visitation to Elizabeth. The court did not specify the visitation schedule that would take effect upon Elizabeth's relocation. The court noted that the child is especially energetic and needs a physical outlet for his energy, that Steven provides that activity, and that "from the child's viewpoint, this father is a necessary element of his life." The court found that the impact on the child of separation from his father would be "grievous." The court adopted the findings and recommendations of Dr. Owen's report. These included the findings that "it is important . . . that [the] father not be excluded from [the child's] life, as [the child] will develop his male identity by emulating a well-adjusted father," and that, "the move would probably enhance Ms. English's life, but not [the child's]." The court also adopted the findings that the child would "probably live more of an indoor existence in Maryland, supervised by babysitters, and probably not be as happy as if here were to stay here," and that "separating a closely bonded son from his father is obviously detrimental to the minor's development." The court adopted the recommendation that "it appears to be in the minor's best interest to remain in this county." The court's factual findings and its ruling were set forth in a detailed minute order issued on September 22, 2005. The court ordered Steven to prepare a proposed judgment.

Elizabeth requested a statement of decision on October 3, 2005, in which she specified controverted issues. On October 7, the court issued a minute order that directed Elizabeth's counsel to prepare the statement of decision. No proposals as to content were submitted within 10 days. Elizabeth filed a 35-page proposed statement of decision more than 15 days after expiration of the time for proposals as to content. Her proposed statement directly contradicted the court's findings and its custody determination. It appears to have been reformatted from her trial brief, stating for example, "Several witnesses will testify to their observation of Steve's physical harassment and threatening behavior towards Beth, often in [the child's] presence." In response to Elizabeth's proposed statement of decision, Steven submitted objections and his own proposed statement on November 16, 2005. Elizabeth moved to strike Steven's proposed statement. The court issued notice of its own motion for sanctions against Elizabeth's counsel for willful disobedience of the court's order to prepare the statement of decision, pursuant to Code of Civil Procedure, section 575.2, California Rules of Court, former rule 232(c) (now rule 3.1590(c)), and Santa Barbara Superior Court Local Rules, rule 102.

The court heard all three matters on December 14, 2005. It awarded $3,499 in attorney's fees as a sanction against Elizabeth's counsel for willful disobedience of a court order, denied Elizabeth's motion to strike, and adopted and issued Steven's proposed statement of decision. An order after hearing was entered December 16, 2005.

In the following month, as Elizabeth prepared to move to Maryland, the parties shared custody on an alternating weekly basis and exchanged proposed forms of judgment. They were unable to agree. In January 2006, Steven filed a motion for entry of judgment and for an order confirming the visitation schedule. Elizabeth filed objections in which she proposed that the child should reside in Maryland every other year, alternating annually between school systems and residences.

At the hearing on February 8, 2006, the court ordered that Steven's judgment be entered, and awarded Steven his attorney's fees in an unspecified amount. The court found that Elizabeth's objections to Steven's proposed judgment were "another insult to the court" and that the proposal "that this child is bounced from coast to coast, year to year . . . [is] utterly beyond anything the court could have imagined." The court did not identify the legal grounds for the fee award. The court also asked whether the December 14 sanction had been paid. Learning that it had not, the court ordered that it would be then imposed against both Elizabeth and her counsel.

On February 9, 2006, the court entered judgment on the reserved issues, including child custody, child support and property division. Effective upon Elizabeth's relocation, she was awarded visitation every summer, every spring break, every other Thanksgiving, one weekend each month, three-day holiday weekends, and half of each winter break. On March 3, 2006, the court entered an order after hearing setting forth the specific visitation schedule and imposing attorney's fees in the amount of $3,265.00 against Elizabeth and her counsel as ordered on February 8, 2006.

DISCUSSION

Custody

We review a child custody decision under the deferential abuse of discretion standard. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We affirm if "the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (Ibid.)

In an initial custody determination such as this, the superior court has the widest discretion to choose a parenting plan that is in the best interest of the child, considering all the circumstances. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 31; Fam. Code, 3011.) If a parent plans to relocate, the court is required to consider the right of a custodial parent to change the residence of the minor child as long as relocation will not prejudice the rights or welfare of the child. (Fam. Code, 7501.)

Steven was not required to make a threshold showing of detriment or changed circumstances in order to obtain the change in custody. Where there has already been a final adjudication of custody, the non-custodial parent seeking a change must prove that relocation would be detrimental to the child. (Marriage of La Musga (2004) 32 Cal.4th at p. 1089.) However, in our case only a temporary custody order had been issued before trial. Where the existing custodial arrangement is based only on an interim stipulation or order, the non-custodial parent is not required to prove detriment or changed circumstances in order to obtain a change in custody. (Ragghanti v. Reyes (2005) 123 Cal.App.4th 989, 996.) The ordinary "best interest" test applies. (Ibid.)

The trial court did not abuse its discretion when it awarded Steven a change in custody upon Elizabeth's relocation. The trial court did consider Elizabeth's presumptive right to change the child's residence. It reasonably concluded that relocation of the child would be detrimental to the child's welfare and that it was in the child's best interest to remain in Santa Barbara County. The court heard evidence that the child attended two years of preschool in Santa Barbara County and had commenced kindergarten in Santa Barbara County, that the child has friends in Santa Barbara County and is engaged in activities including gymnastics and martial arts in the county. The child had no existing ties to Maryland. Elizabeth's parents live in Maryland, but she told the evaluator that she did not have a close emotional attachment with either of her parents and that her mother did not have the capacity to form one.

The court was confronted with two loving parents who were both able and willing to care for the child. The court did consider that Elizabeth had always been the primary caregiver, but weighed heavily the father's increasing role in the child's life, the child's particular need for a close male bond, and evidence that the child is extremely energetic and benefits from many outdoor activities with his father. The fact that Elizabeth subsequently submitted a proposed judgment that would have had the child attending different school systems every other year suggests that the child's best interests may not have been foremost in her mind.

Elizabeth contends that the court issued an improper conditional order in order to coerce her to stay in Santa Barbara. "[A] court must not issue such a conditional order for the purpose of coercing the custodial parent into abandoning plans to relocate. Nor should a court issue such an order expecting that the order will not take effect because the custodial parent will choose not to relocate rather than lose primary physical custody of the children." (Marriage of La Musga, 32 Cal.4th 1072, 1098.) We are satisfied that the purpose of the court's order was not coercive. Rather, it was based upon the child's best interest, which the court found was best served by staying in Santa Barbara County. The conditional order was a pragmatic approach to providing equal physical custody to both parents while Elizabeth remained in Santa Barbara, and providing a parenting plan for relocation.

Elizabeth contends that the court did not take her relocation plans seriously. The custody evaluator did not, but the trial court did. The court expressly noted that Dr. Owen should have considered the impact on the child if Elizabeth moved and the child stayed with Steven. The court itself considered that impact after eight days of trial and implicitly found that Elizabeth's intention to relocate was sincere. It expressed "grievous" concerns about the impact of her planned move.

Elizabeth also contends that she was presumptively entitled to custody because Steven was the perpetrator of domestic violence against her. "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child . . . within the previous five years, 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 . . . ." (Fam. Code, 3044, subd. (a).) The court found that there were "elements of abuse" in the marriage, but did not find that Steven had perpetrated domestic violence within the meaning of section 3044. Pursuant to that section, a person has perpetrated domestic violence only if they have "intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury . . . or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 . . . ." ( 3044, subd. (c).) The allegations upon which Elizabeth obtained a temporary restraining order were never adjudicated.^[2] The trial court did not find that Steven perpetrated any domestic violence. It found that the presumption of section 3044 did not apply. We agree.

"The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." (In re Marriage of La Musga, supra, 32 Cal.4th at p. 1097.) We find no abuse of discretion in the custody determination here.

December 15, 2005 Sanction - Failure to Comply With Court's Order

to Prepare Statement of Decision

The superior court has authority to impose sanctions for failure to submit any form required by its order. (Code Civ. Proc., 575.2, Santa Barbara Superior Court Local Rules, rule 102.) The sanction may consist of "payment of the opposing attorney's reasonable expenses and attorney's fees." (Santa Barbara Superior Court Local Rules, rule 102.) Elizabeth failed to submit a timely statement of decision after being ordered to do so. The court's order directing Elizabeth to prepare the statement was authorized by former rule 232 of the California Rules of Court. (Cal. Rules of Court, former rule 232(e) (now rule 3.1590(e)). Elizabeth was required to serve and submit the proposed statement by October 28, 2005, "within 15 days after the expiration of the time for filing proposals as to the content of the statement . . . , or within 15 days after notice, whichever is later . . . ." (Ibid.) She did not. The untimeliness of her proposed statement justified the sanction, regardless of its content. Thus, the court did not err when it ordered Elizabeth's counsel to pay the opposing attorney's reasonable expenses and attorney's fees. The amount of the award was supported by the declaration of Steven's counsel, filed and served before the hearing.

The award is enforceable against counsel, but is not enforceable against Elizabeth. The court gave prior notice only of its intention to sanction counsel. Section 575.2, subdivision (b) of the Code of Civil Procedure provides, "It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel . . . ." The court implicitly found that the failure to submit a timely statement of decision was the responsibility of counsel, and not Elizabeth, on December 14, 2005, as reflected in the minute order which states, "it is not the Court's intention to have Petitioner Elizabeth English pay for the fees; Petitioner's counsel shall pay . . . ." The court ordered that "[s]aid fees are to be paid by Petitioner's counsel and not the client, Elizabeth English. [] . . . [T]here shall not be a bill sent to Petitioner for the fees ordered on this date."

March 3, 2006 Sanction in Uncooperative Litigation Conduct

At the hearing on Steven's motion for entry of judgment, the court imposed sanctions against Elizabeth and her counsel. The order must be reversed because it was based on grounds that were not asserted before its rendition.

We independently review an order imposing sanctions for compliance with notice and hearing requirements. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) The trial court imposed sanctions against Elizabeth, finding that her objections to the proposed judgment were an "insult to the court." The court did not did not identify the legal grounds for the order, and did not warn counsel that it was considering imposing sanctions. The court announced, "I'm going to enter the judgment that Mr. Rydell set forth because it accurately reflects what the court was trying to do. [] So I'm going to award him attorney's fees. I think this is the kind of litigation it's a clever argument, Ms. Misho. I don't mean to tell you that you're not clever, you really are. But cleverness is not a winner when we're dealing with these charged situations."

Family Code section 271 authorizes an award of costs and fees as a sanction for uncooperative litigation conduct, but requires prior notice and an opportunity to be heard. (Fam. Code, 271, subds. (a) & (b).) Due process does not necessarily require a separate hearing on sanctions (Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 179), but a "clear warning from the bench of the anticipated grounds for sanctions" must precede the court's findings and decision. (In re Marriage of Quinlan (1980) 209 Cal.App.3d 1417, 1423; Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal.App.3d 1380, 1387.) No prior notice was afforded here, and the sanction set forth in the March 3, 2006, order after hearing must be reversed.

DISPOSITION

We reverse that portion of the March 3, 2006 order after February 8, 2006 hearing that imposes sanctions against Elizabeth and her counsel. We otherwise affirm. Costs on appeal are awarded to Steven Kiss.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Zel Canter, Judge

Superior Court County of Santa Barbara

______________________________

Misho, Kirker & Associates, Vanessa Kirker and Jacqueline Misho for Appellant.

Griffith & Thornburgh, Marisa K. Beuoy and John R. Rydell II, for Respondent.

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^[1]The record does not include a complete trial transcript. Elizabeth's testimony on the first day of trial is among the omitted portions. For the omitted testimony, we assume that the trial court's summary is accurate.

^[2]We are unaware of the substance of the allegations that supported issuance of the temporary restraining order. No affidavit in support of the temporary restraining order was included in the record.