Marriage of Molina

Filed 2/16/07  Marriage of Molina CA4/1

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COURTOF APPEAL, FOURTH APPELLATE DISTRICT

DIVISIONONE

STATEOF CALIFORNIA

            APPEAL from anorder of the Superior Court of San DiegoCounty, Jeffrey S. Bostwick, Judge.  Affirmed.

            Lisa Molinaappeals from a postjudgmentorder modifying the parenting schedule set forth in a stipulated judgment that she entered intowith her ex-husband, Tony Molina.  Lisa argues that the trial court erred bymodifying the parenting schedule without requiring Tony to show a change ofcircumstances.^[1]

            We conclude thatLisa's contention lacks merit, and accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

            Lisa and Tonywere married in 1996 and separated in 1999 when their son B. was two years old. After a brief attempt at reconciliation their marriage was dissolved in 2001.  InOctober 2003, they entered into a stipulated order regarding custody and parentingtime (the Stipulation), which was entered by the trial court as a judgment onreserved issues. 

            The Stipulationprovided that Lisa and Tony would share joint legal custody of B., and that B.'sprimary residence would be with Lisa.  Further, the Stipulation stated thatTony "shall have the right of reasonable child sharing." Specifically, Tony was to parent B. every other weekend from Friday afternoonto Sunday evening, each Wednesday afternoon through Thursday morning, half ofthe two-week winter school break, all school holidays falling on a Mondayduring Tony's weekend with B., one week of summer vacation, alternatingThanksgiving and Easter holidays, alternating birthdays, and each Father's Day. 

            The Stipulationstated that the parenting schedule "may be altered by mutual agreement, inwriting signed by both parties," and that "[t]he parties shallparticipate in extended mediation to resolve their disputes regarding childsharing prior to filing a motion."  The Stipulation's final paragraphstated, "This judgment shall be a final Judgment under Montenegro [v. Diaz (2001)26 Cal.4th 249 (Montenegro),]thus the moving party must show a change of circumstance to modify saidJudgment."  

            In July 2004,Lisa filed an order to show cause to modify the child custody judgment to awardher sole legal and physical custody of B.  Lisa claimed that the coparentingplan was not working due to Tony's alleged hostility and aggression toward her. Tony opposed Lisa's request and sought an order expanding his parenting timeto include (1) the extension of his weekend time to Monday mornings andthe extension of holidays with B. to the morning after the holiday; (2) fivefloating vacation days during the week to remove B. from school; (3) an additionalweek of summer vacation with B.; and (4) the designation of Halloween andthe Fourth of July as alternating holidays.  At a hearing held in January 2005,the trial court denied both parties' requests.   

            During the January2005 hearing, the trial court discussed the standard that applied to Tony'srequest for modification.

"On the issueof how much time the parties should spend with the child, the court reminds theparties that they stipulated to the existing child sharing orders in this caseback in October of 2003, and that the parties expressly provided that thatorder was to be a Montenegro order -- a final order under the Montenegrov. Diaz case.  [¶]  That means, by the stipulation, that the court mustfind substantial changes in circumstances that would justify modification ofthe visitation.  Alternatively, incidentally -- and there is a recent casethat discusses this -- if one party wishes to increase his or her personalparenting time, no change of circumstances is necessary.  Rather, the bestinterest of the child in that standard dictates.  Now, of course, the case thatI've just referred to is the Enrique[ M. v. Angelina V.(2004) 121 Cal.App.4th 1371 (Enrique)] case[, which] did not discuss a Montenegroorder.  So that's a difference.  Because, again, the parties stipulated thatthe custody and visitation orders in 2003 would be final orders.  No suchstipulation was entered into in the Enrique case, which is a 2004decision.  But even if . . . the best interest of the child was thestandard in this case, the court has heard no evidence that would justify achange in the existing child sharing schedule."   

With these comments in mind,the trial court denied Tony's requests on the alternative grounds that therewere no changed circumstances to justify the modifications to the parentingschedule and that the requested modifications would not be in B.'s bestinterest.  

Approximatelysix months later, in July 2005, Tony filed an order to show cause to obtain anincrease in parenting time with B.  Specifically, Tony asked for the followingmodifications to the child sharing schedule, most of which overlapped with hisprevious requests:  (1) extending his weekend time through Monday morning,instead of ending it on Sunday evening; (2) extending the length of theThanksgiving holiday to a full week to match B.'s school vacation schedule; (3) addingan extra week of summer vacation for each parent; (4) designatingHalloween and the Fourth of July as alternating holidays; and (5) extendingholiday visitation days to 9:00 a.m. the next morning instead of endingthem at 7:00 p.m. the prior evening.  In August 2005, the trial courtcontinued the hearing on Tony's order to show cause and ordered that theparties attend a mediation with Family Court Services.  Before continuing thehearing on Tony's order to show cause, the trial court addressed the standardthat it believed would apply to Tony's request to modify the parentingschedule.  Although it had equivocated about the correct standard at the January2005 hearing, the trial court was more definite at the August 2005 hearing.

"[L]et's beclear, Montenegro, the application of what is a final order and thetrigger of that requiring a change in circumstances does not apply when a partyis seeking merely to modify visitation or parenting time, and that's the Enriquecase.  So let's be clear about that.  [¶]  So he does not have to show a changein circumstances to simply alter his parenting time.  If he was trying to movethe primary residence of the child from the mother to his house, that would bedifferent.  He would then have to show a change in circumstances pursuant to Montenegroand all of those things we talked about earlier.  [¶]  But if he is trying tosimply seek additional parenting time . . . he does not have to showa change in circumstances.  [¶]  The test is the best interest of the child . . . ."

Beforethe continued hearing was held, Tony filed a supplemental declaration, whichrequested additional alterations to the parenting schedule.  Tony soughtmodifications (1) extending the alternating Easter holiday to an entireweek, to coincide with B.'s school vacation, instead of a single day; (2) allowinghim to pick up and drop off B. at all Little League baseball games andpractices, even during Lisa's time with B.; (3) allowing him up to sixhours with B. for each Chargers home game; and (4) allowing him to removeB. from school at noon on Friday during his weekends to allow travel time toMammoth for skiing.   

Priorto the continued hearing, Tony and Lisa participated in the ordered mediationconference with a Family Court Services counselor.  The counselor recommendedthat Lisa have sole legal custody of B.  In response to the counselor'srecommendation, Lisa filed a competing order to show cause in which she requestedthat the judgment be modified to award her sole legal custody.

            The trial courtheld a hearing on the competing orders to show cause.  The trial courtdetermined that it was in B.'s best interest to modify the parenting schedule by(1) adding one week of summer vacation for each parent; (2) expandingthe alternating Thanksgiving and Easter holidays to full weeks; and (3) designatingHalloween and the Fourth of July as alternating holidays.  The trial courtdenied Tony's remaining requests for modification of the parenting schedule.  Asit had done at the August 2005 hearing, the trial court again emphasized thatchanged circumstances were not necessary for a modification of the parentingschedule.  The trial court explained, "Enrique . . . specificallysays that if the request is to increase parenting time as opposed to modifyingcustody, then no change in circumstances has to be shown."  

RegardingLisa's request for sole legal custody, the trial court stated that a change ofcustody could be ordered only upon a showing of changed circumstances.  Rulingthat changed circumstances were not present and that sole legal custody wouldalso not be in B.'s best interest, the trial court denied Lisa's request forsole legal custody.

Beforethe trial court issued a written order on the competing orders to show cause, Lisafiled a motion to "vacate" the order that the court had deliveredorally, or, in the alternative, to enter a different order than was announcedat the hearing.  She argued, among other things, that the trial court appliedthe wrong legal standard in deciding whether to increase Tony's parenting time. According to Lisa, the trial court should have increased Tony's parenting timeonly upon a showing of changed circumstances, not upon a showing that theincrease in parenting time was in the best interest of the child.  The trialcourt rejected Lisa's argument, reaffirming that changed circumstances need notbe shown to modify a parenting schedule.  The trial court stated, "Mybelief is that Enrique has told . . . the trial courts that ifthe parent seeks to alter parenting time and that's all, the review is supposedto be the best interest of this child."   

Thetrial court then issued a written order on the competing orders to show causethat was substantially consistent with its oral pronouncement.^[2] Lisa filed a notice of appeal.^[3] 

II

DISCUSSION

            On appeal, Lisa arguesthat the trial court erred in modifying the parenting schedule withoutrequiring a showing of changed circumstances.  In support of her position, Lisapresents two separate theories.  First, she argues that the trial court's statementsat the January 2005 hearing had a res judicata effect, requiring that it applythe changed circumstances standard to Tony's subsequent requests to modify theparenting schedule.  Second, she argues that because the Stipulation statedthat "the moving party must show a change of circumstance to modify saidJudgment," and the stipulated judgment included the parenting schedule,Tony was required by the Stipulation to show changed circumstances before thetrial court could modify the parenting schedule.  As we will explain, we rejectboth of Lisa's arguments.

A.        The Res Judicata Effect of the Trial Court's January 2005Ruling

            We first addressLisa's claim that the trial court's comments at the January 2005 hearingprecluded the trial court, under the doctrine of res judicata, from refusing toapply the change of circumstances standard in a subsequent proceeding.

            The term "resjudicata" is used to describe either (1) the doctrine of collateralestoppel (also known as issue preclusion), which precludes relitigationof issues argued and decided in prior proceedings; or (2) the doctrine of claim preclusion, which prevents relitigationof the same cause of action in a second suit between the same parties orparties in privity with them.  (See Mycogen Corp. v. Monsanto Co. (2002)28 Cal.4th 888, 896 & fn. 7.)  Lisa appears to rely on thedoctrine of collateral estoppel because she seeks to preclude relitigation of anissue decided in a prior proceeding, i.e., whether, in light of theStipulation, the changed circumstance standard applies to a request to modifyparenting time. 

            Collateral estoppel "applie[s] only ifseveral threshold requirements are fulfilled.  First, the issue sought to beprecluded from relitigation must be identical to that decided in a formerproceeding.  Second, this issue must have been actually litigated in the formerproceeding.  Third, it must have been necessarily decided in the formerproceeding.  Fourth, the decision in the former proceeding must be final and onthe merits.  Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to theformer proceeding."  (Lucido v. Superior Court (1990) 51Cal.3d 335, 341 (Lucido).)  " 'The party asserting collateral estoppel bears the burden of establishingthese requirements.' "  (Pacific Lumber Co. v. State WaterResources Control Bd. (2006) 37 Cal.4th 921, 943.) 

            Lisa's argument forcollateral estoppel assumes that the trial court decided in January 2005 that theparenting schedule could be modified only upon a showing of changedcircumstances.  We reject Lisa's argument because we disagree with itspremise.  The trial court did not conclusively rule in January 2005 that the changedcircumstances standard applied. 

            In addressing thestandard to apply to Tony's request for more parenting time, the trial court,at the January 2005 hearing, pointed out the interplay of two factors:  (1) theStipulation's provision that the judgment was intended as final judgment under Montenegro,including its statement that therefore the judgment could be modified only upona showing of changed circumstances; and (2) the recently decided case of Enrique,supra, 121 Cal.App.4th 1371, 1382,which held that changed circumstances need not be shown to modify a parentingschedule.  The trial court noted that Enrique was not precisely on pointbecause the parties in Enrique had not stipulated to a final judgment atthe January 2005 hearing, but, as we understand the trial court's statements, itdid not come to a resolution with respect to the correct standard toapply to Tony's modification request.  The trial court avoided the need todecide the issue by simply ruling that under either the changedcircumstances standard or the best interest standard, it would deny therequest to modify the parenting schedule.

            Collateralestoppel arises only when an issue is "necessarily decided" in aformer proceeding.  (Lucido, supra, 51 Cal.3d at p. 341; seealso In re Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1083 [when a statementin a previous order "was unnecessary to the court's decision and purelygratuitous," "the doctrine of res judicata [was] inapplicable"].) " ' "If, on the face of the record, anything is leftto conjecture as to what was necessarily involved and decided, there is noestoppel . . . ."  [Citations.]' "  (Silver v. Los Angeles CountyMetropolitan Transportation Authority (2000)79 Cal.App.4th 338, 357.) Further, collateral estoppel requiresthat the issue was "actually litigated."  (Lucido, at p. 341.) Here, because the trial court did not conclusively decide at the January 2005hearing that the changed circumstances standard applied to Tony's request tomodify the parenting schedule, the issue was neither necessarily decided noractually litigated.  Accordingly, collateral estoppel did not arise from thetrial court's comments in January 2005.^[4] 

B.        The Trial Court Did Not Err by Ruling thatChanged Circumstances Are Not Required to Modify the Parenting Schedule

            We next review the trial court's decision thatTony was not required to establish changed circumstances to obtain amodification of the parenting schedule agreed to in the Stipulation.  

            Because it is an issue of law, we apply a de novo standard of reviewto a trial court's ruling regarding the appropriate standard to apply to arequest to modify a visitation schedule.  (Enrique, supra, 121Cal.App.4th at p. 1378.)  Further, to the extent we are required tointerpret the Stipulation, we independently determine its meaning, as noextrinsic evidence was offered on that issue.  (Parsons v. BristolDevelopment Co. (1965) 62 Cal.2d 861, 866.)

            We begin our analysis with a review of the caselaw addressing whether a parent must show changed circumstances to obtain amodification of a parenting schedule.  As Enrique observed, no published California case "has held that the changed circumstance rule applies toa request to modify the allocation of parenting time, where a preexisting jointcustody order was in place and custody was not an issue."  (Enrique,supra, 121 Cal.App.4th at p. 1379.)  As stated in Enrique, ". . . Inre Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513 [(Birnbaum)]expressly held that where a court's order does not change custody, butrather alters a parenting schedule, the changed circumstance rule doesnot apply."  (Enrique, at p. 1379.)  Reaffirming Birnbaum'sholding, Enrique concluded that "the standard of proof a parentsharing joint custody must meet to effect a change in parenting time is thebest interest of the child, not changed circumstances."  (Enrique,at p. 1373.)  Thus, based on Enrique and Birnbaum, it is firmlyestablished that a parent need not show changed circumstances to obtain modificationof a parenting schedule.

            Although Lisa acknowledges the rule establishedin Enrique and Birnbaum, she contends that the Stipulation contains an agreement that makes thosecases inapplicable.  Lisa relies on the following language in the Stipulation:  "Thisjudgment shall be a final Judgment under Montenegro[;] thus the movingparty must show a change of circumstance to modify said Judgment."  Sheargues that, as shown by this language, the parties agreed that a change ofcircumstances was required to modify any part of the stipulated judgment,including the parenting schedule.^[5]  Aswe will explain, we disagree.

            In addressingLisa's argument, we are faced with a question of contract interpretation.  Wemust decide whether the Stipulation should be interpreted as an agreement thatthe parties will be barred from obtaining a modification of the parentingschedule without first showing changed circumstances.  We address this questionby applying the customary rules of contract interpretation.  (See In reMarriage of Hasso (1991) 229 Cal.App.3d 1174, 1180.)  " ' "Under statutory rules of contractinterpretation, the mutual intention of the parties at the time the contract isformed governs [its] interpretation.  [Citation.]  Such intentis to be inferred, if possible,solely from the written provisions of the contract." ' "  (In re Marriage of Davis (2004)120 Cal.App.4th 1007, 1018; see also Civ. Code, §§ 1636, 1639.)

            We look closely at the contractual language atissue to determine the intention of the parties.  The relevant paragraph containstwo clauses.  The first clause sets forth an agreement of the parties, i.e., thatthe judgment is intended to be a final judgment as described in Montenegro,supra, 26 Cal.4th 249.  The second clause, however, does not state anagreement of the parties.  Instead, it purports to offer a legalinterpretation, presumably based on Montenegro, regarding the effectof the agreement in the first clause.  According to the Stipulation's legal interpretationof Montenegro, because the parties have agreed that the judgment isfinal, "a moving party must show a changeof circumstance to modify said Judgment."  The legal interpretation is very truncated,and does not specifically state whether the parties believe that the legaleffect of the first clause will be a requirement that a moving party must showa change of circumstances to obtain a modification of any part of thejudgment, including the parenting schedule, or if the requirement of changedcircumstances will apply only to a change in the custody agreement.  

            Because the parties referred to Montenegroin the Stipulation, we examine that case to attempt to determine the parties' intentionin referring to the finality of the judgment.  In Montenegro, ourSupreme Court clarified the circumstances under which changedcircumstances would be required to modify a stipulated custody judgment.  (Montenegro,supra, 26 Cal.4th at p. 258.)  As background to its decision, Montenegroexplained that "[u]nder the so-called changed circumstance rule, a partyseeking to modify a permanent custody order can do so only if he or shedemonstrates a significant change of circumstances justifying a modification,"and that the changed circumstances standard applied "once a final judicialcustody determination is in place."  (Id. at p. 256.)  Basedon the observation that "many stipulated custody orders are not intendedto be final judgments," Montenegro ruled that "a stipulatedcustody order is a final judicial custody determination for purposes of thechanged circumstance rule only if there is a clear, affirmativeindication the parties intended such a result."  (Id. atp. 258, italics added.)  Because the issue was not presented, Montenegrodid not discuss whether the changed circumstances standard could ever apply to requests to modify final stipulated judgmentsconcerning parenting schedules, rather than stipulated custody judgments.  "[A]case does not standfor a proposition neither discussednor analyzed . . . ."  (DCM Partners v. Smith(1991) 228 Cal.App.3d 729, 739, citation omitted.)  Birnbaum, whichpredates Montenegro, had already established that a parent neednot show changed circumstances to obtain modification of a parenting schedule.  (Birnbaum,supra, 211 Cal.App.3d at p. 1513.)

            Having reviewed Montenegro, supra,26 Cal.4th 249, we conclude that when Lisa and Tony agreed in the Stipulationthat the judgment would be "final under Montenegro," theymerely meant to set forth a "clear affirmative indication," asrequired by Montenegro, that they intended to stipulate to a finaljoint custody judgment.  Further, Montenegro does not address whetherthe changed circumstance standard applies to a request to modify a parentingschedule.  Thus, it would be illogical for us to conclude that byoffering, in the second clause of the Stipulation, their legal interpretationof the effect of a Montenegro judgment, the parties meant to indicatethat the changed circumstance standard would apply to requests to modify theirstipulated parenting schedule.^[6] 

            We accordingly conclude that the Stipulationdoes not contain an agreement that any request to modify the stipulatedparenting schedule would -- contrary to Enrique and Birnbaum --require a showing of changed circumstances.  The trial court thus did not errin modifying the parenting schedule without requiring Tony to show a change incircumstances.

DISPOSITION

            The order isaffirmed.

IRION, J.

WE CONCUR:

                         McCONNELL, P. J.

                                       HALLER,J.

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