Filed 9/27/17 Marriage of Qirreh CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Jaclyn Qirreh appeals from the trial court’s judgment awarding sole legal and physical custody of her children—seven-year-old K.S.Q. and five-year-old K.A.Q.—to Samer Qirreh, her former husband and father of the children. [1] She contends the court erred in: (1) finding there were changed circumstances justifying a modification of custody; and (2) refusing to apply a presumption against awarding custody to Samer based on his prior acts of domestic violence. We reject the contentions and affirm the judgment.

Factual and Procedural Background

Jaclyn and Samer were married in September 2007 and separated in June 2012. They have two minor children—a daughter, K.S.Q., born in 2010, and a son, K.A.Q., born in 2011. In July 2012, Jaclyn requested an emergency order for sole legal and physical custody on the ground that Samer was abusive and mentally unstable, and had “abandoned” her and the children. Samer opposed the request. After a hearing was scheduled, the parties agreed to vacate the hearing, and the matter was taken off calendar.

The following month, Samer filed a request for joint legal and physical custody. He declared that Jaclyn was preventing him from seeing the children. Thereafter, Jaclyn filed a request for a domestic violence restraining order protecting her and the children from Samer. She alleged he had engaged in various acts of domestic violence since 2009 and was stalking her, and that both she and her daughter, K.S.Q., were afraid of him. The trial court granted a temporary restraining order protecting her but denied the request as to the children. A hearing was set, but the matter was taken off calendar based on the parties’ stipulation that they had “reconciled and would like to cancel the court hearing.”

Approximately one year later, the parties filed a judgment of dissolution of their marriage and a marital settlement agreement (MSA) in which they agreed, among other things, that they would share legal custody of the children, with physical custody to Jaclyn and visitation to Samer. The parties agreed that Jaclyn “shall be free to take the minor children out of the state for the remainder of 2013 upon the sale of [Jaclyn’s] residence [in] . . . Vacaville, CA. Parenting plan will be revisited when [Jaclyn] relocates. Parties agree that [Jaclyn] may relocate outside the State of California.” Judgment was entered on October 2, 2013.

In January 2014, Samer filed a motion for modification of custody and visitation on the ground that Jaclyn was preventing him from communicating with the children. According to Samer, Jaclyn left the state with the children in December 2013 and unilaterally decided to settle in Ohio. She refused to discuss a co-parenting plan with him, “consistently avoided communicating the whereabouts of [the] children” to him, and “repeatedly blocked [his] phone number, effectively cutting off communication with [the] children.”

The parties attended an in court mediation session and entered into a partial agreement of joint legal custody and sole physical custody to Jaclyn. Jaclyn informed the child custody counselor that she left the state because of domestic violence and that K.S.Q. had seen a child trauma specialist due to her fear of Samer. The counselor recommended that Samer not have any contact with the children until further court hearing. At a hearing on May 7, 2014, the trial court denied Samer’s motion for modification. The court ordered Jaclyn to provide physical and mental health information regarding the children to Samer forthwith, and to resume therapy for K.S.Q.

In December 2014, Samer filed a request for a child custody evaluation, arguing that one was necessary in determining the best interest of the children. He asserted that Jaclyn had prevented him from seeing the children since December 2013 and from speaking to either of the children since February 2014. Jaclyn opposed the request, stating there was no need for an evaluation and that the children were thriving in her care. Jaclyn also objected to Samer’s choice of proposed child custody evaluators. The trial court granted Samer’s request for a child custody evaluation and instructed Jaclyn to provide the court with her choice of evaluators, but after being granted two extensions of time, Jaclyn failed to provide the court with any names. The court therefore selected an evaluator from Samer’s list—Janelle O’Donnell, Ph.D. The court also ordered the parties to resume video calls between Samer and the children.

In June 2015, Jaclyn returned to California with the children to meet with the child custody evaluator. During that visit, the children were reunited with Samer for the first time in nearly two years. Jaclyn returned to Ohio with the children in late summer 2015.

On September 8, 2015, Samer filed an ex parte request for emergency orders awarding him sole physical custody. He reported that the child custody evaluation had just been issued and was strongly in favor of him being named the custodial parent. The evaluator concluded that Jaclyn was not a healthy parent, was manipulative and deceitful, and had estranged the children from their father. Based on the nature of the report and the recommendations, Samer was concerned that Jaclyn would flee with the children and refuse to inform him of their whereabouts, in the same way she allegedly did after leaving the state in 2013.

The trial court agreed there was a need for emergency orders and awarded temporary sole legal and physical custody of the children to Samer. Pursuant to the court order, Samer retrieved the children from Ohio and they began living with him. At a September 17, 2015 hearing on the matter, the temporary orders granting custody to Samer were not changed, and Jaclyn was awarded supervised visitation.

A trial took place from February 29 to March 11, 2016, and the trial court heard testimony from many witnesses including the parents, the maternal grandfather, the paternal grandmother, the children’s therapist, Jaclyn’s therapist, the child custody evaluator, Jaclyn’s half-brother, and Jaclyn’s friend. As of the time of trial, Jaclyn had been staying with friends in California and had visits with the children.

After taking the matter under submission, the trial court issued an order filed May 31, 2016, awarding sole legal and physical custody to Samer, with visitation to Jaclyn. The court found that Samer was the “more credible witness” and that “[m]uch of [Jaclyn’s] testimony was self-serving,” e.g., misrepresenting to the child custody counselor and the court that K.S.Q. was actively obtaining trauma therapy when in fact she had been seen by a therapist just once.

The trial court found that Jaclyn did not allow Samer to have any contact with the children for many months at a time and kept their location secret from him despite his many requests for information, in violation of specific provisions in their marital settlement agreement that “ ‘[n]either parent shall conceal the children’s whereabouts at any time’ ” and ‘ “[e]ach party shall keep the other party informed of his or her current address and telephone number . . . .’ ” She took the children to Ohio and stayed there for some time after she met a woman at a pumpkin patch who told her of an available lease. She then left Ohio with the children in May 2013 on an extended “vacation” that lasted until they moved back to Ohio in October or November of 2014. During this “vacation,” she traveled with the children throughout the United States in a transient state, staying “here and there for as short as a single night and as long as a few months.” She did not give Samer an itinerary and blocked his calls.

The trial court noted that Jaclyn admitted at trial that she stopped communicating with Samer, and that she explained she did so because he did not pay the childcare expenses she asked him to pay. However, she also admitted she was neither working nor attending school, and that the only time she used childcare was four days in Florida and two days in South Carolina, when she was parasailing and horseback riding, or “ ‘needed a break.’ ” When Samer requested proof of childcare, Jaclyn terminated contact with him for months despite his repeated efforts to reach her and obtain information about the whereabouts and welfare of the children.

The trial court found that Jaclyn made questionable parenting decisions, such as assigning adult attributes to the children, especially to K.S.Q. Jaclyn “repeatedly testified that . . . ‘we’ (meaning Mrs. Qirreh and the children) decided Ohio was a good place to live; and that the children wished to move to Ohio after traveling around the country. [Jaclyn] testified she spent ‘hours daily’ helping [K.S.Q.] process or validate her feelings; i.e., ‘are you ([K.S.Q.]) okay with your decision to leave California’ and ‘what Daddy did to you isn’t right.’ ” The court found that the children, who were three years old and one year old at the time they left California, were “[c]learly . . . incapable of adult decision-making or formulating an opinion or desires regarding where to live. [Jaclyn] also involved the children in other inappropriate choices such as driving them to the police department with her to talk to police.”

The children’s therapist testified that Jaclyn’s “nomadic trip” during which she and the children were “on the road” “with no home” was not beneficial to the children who, at a young age, needed stability and consistency. The therapist also testified that K.S.Q. had not suffered any trauma at the hand of her father. The child custody evaluator agreed there had been no trauma and opined that Samer shared a “solid bond” with the children.

As to Jaclyn’s claims that Samer had engaged in acts of domestic violence against her, the trial court found that Samer’s testimony about Jaclyn physically attacking him—with scissors to his back and stabbing him in the arm with a screwdriver—“was more credible than was [Jaclyn’s] testimony about acts of violence allegedly performed by [Samer]. Indeed, [Jaclyn] admitted to cutting up [Samer’s] possessions in an effort to make him ‘want to leave.’ ” The court found there was “no credible evidence of domestic violence” by Samer against Jaclyn, but that there was evidence of domestic violence by Jaclyn against Samer. The court therefore found that the presumption against awarding custody to a parent who has perpetrated domestic violence applied against Jaclyn, and that Jaclyn had failed to rebut the presumption.

The trial court found that Jaclyn’s actions deprived Samer and the children of a relationship with each other and constituted “alienation.” The court found that Jaclyn removed the children from not only their father for nearly two years, but also from virtually all extended family members on both parents’ sides, all of whom lived nearby. “The children were wholly deprived of their relationship with all of their relatives for nearly the entire time they were absent from the State of California, despite having enjoyed close relationships with them since birth.” The court found that Jaclyn’s “pattern of misinformation, manipulation, exaggeration and fabrication of events was evident throughout the testimony of various witnesses from relatives to therapists.” Jaclyn’s “efforts to control every aspect of the children’s lives, including [Samer’s] access to the children and how the children feel about their father are evident throughout her own testimony.”

The trial court found that Jaclyn’s acts of alienating Samer from the children constituted a “material change of circumstances” justifying a change in custody. The court further found that it was in the children’s best interest to remain in California with Samer. Samer had provided a loving home to the children since September 2015 and was meeting their needs for stability and continuity. The children were strongly bonded with their father, as well as with many family members on both sides of the family. K.S.Q. was doing well in school, had made friends, and was attending church and participating in community events. The children were enjoying regular contact with their mother, both in person and via phone calls. Noting that California courts are authorized to award custody to the parent who is more likely to provide frequent and continuing contact to the other parent, the court found Samer was the parent “far more likely” to encourage contact with the other parent. The court awarded sole legal and physical custody to Samer, with visitation to Jaclyn, including weekend visits, dinner visits, and nightly telephone calls on her non-custodial nights.

Discussion

Changed Circumstances

Jaclyn contends the trial court erred in finding there were changed circumstances justifying a modification of custody. We disagree.

California courts apply different tests in determining custody modification depending on whether or not there is a permanent custody order in place at the time of trial. If there is a permanent custody order already in place, the “changed circumstance” test applies in which the party seeking to modify the order is required to demonstrate a significant change of circumstances justifying a modification in custody. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro).) On the other hand, if there is no permanent custody order in place, the trial court makes findings concerning custody based on the “best interest” of the child. (Ibid.; Fam. Code, § 3040.) Under the best interest test, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (Montenegro, supra, 26 Cal.4th at p. 255.)

The changed circumstance test is not a different test, devised to supplant the best interest test; rather, it is an “adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. . . . Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.” (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)

The trial court has wide discretion in choosing a parenting plan, and its custody and visitation orders are reviewed on appeal for an abuse of discretion. (Fam. Code, § 3040, subd. (b); Montenegro, supra, 26 Cal.4th at p. 255.)

Jaclyn asserts that the parties’ MSA and judgment of October 2, 2013 granting sole physical custody to her constituted a permanent custody order, thereby triggering the changed circumstance test. Assuming, without deciding, that the MSA was a permanent custody order and the changed circumstance test applied in this case,[2] we conclude there was sufficient evidence of a significant change of circumstances justifying a modification of custody.

Samer’s testimony, which the trial court found credible, established that Jaclyn engaged in a series of acts over the course of nearly two years that drastically limited his time with the children. Jaclyn asserts that Samer “knew exactly what he was signing” when he entered into the MSA allowing her to move out of state. It appears her argument is that because Samer agreed she could leave the state with the children, the fact that she did in fact leave did not constitute a changed circumstance. The changed circumstance that occurred in this case, however, was not that Jaclyn and the children left the state. Rather, it was based on evidence of her engaging in various acts over the course of nearly two years that prevented Samer from having a relationship with the children, in violation of the MSA, e.g., not allowing him to contact the children for months at a time, keeping their location secret from him despite multiple requests for information, insisting that K.S.Q. was afraid of Samer even though no therapist had ever determined that she was.

Jaclyn complains that in finding changed circumstances and modifying custody, the trial court improperly relied on a child custody evaluation that “contained substantive errors” and was prepared by an evaluator who is unethical and has been charged with “gross misconduct” by the Attorney General’s office.[3] She argues the court also improperly entertained Samer’s allegations regarding “parental alienation.” In addition, she argues the court discredited her testimony because the court was “unduly” and “gross[ly]” biased against her.

Appellate courts, however, “ ‘do not reweigh evidence or reassess the credibility of witnesses.’ ” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) “Put another way, ‘[t]he Court of Appeal is not a second trier of fact.’ ” (Ibid.) In reviewing the sufficiency of the evidence to support a judgment, we view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that can be reasonably deduced from the evidence. We must affirm the judgment if an examination of the entire record viewed in this light discloses substantial evidence to support the judgment. (See Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, that supports the trial court’s factual findings. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.) Based on the record before us, we conclude there was sufficient evidence supporting the trial court’s finding of a significant change in circumstances.[4]

Prior Acts of Domestic Violence

Jaclyn contends the trial court erred in refusing to apply a presumption against awarding custody to Samer based on his prior acts of domestic violence. We disagree.

Family Code, section 3044, subdivision (a), establishes “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. . . . This presumption may only be rebutted by a preponderance of the evidence.” The statute provides seven factors the court is to consider in determining whether the presumption has been overcome. (Fam. Code, § 3044, subd. (b).)

Referring to an August 2012 incident in which she called the police and Samer was arrested, Jaclyn argues the trial court should have applied the presumption against Samer. Although Samer was arrested and Jaclyn was granted a temporary restraining order, no charges or findings of domestic violence were made and Jaclyn ultimately withdrew her request. Moreover, after hearing from various witnesses at trial, the court explicitly found there was “no credible evidence of domestic violence” by Samer against Jaclyn, and that in fact, it was Jaclyn who had engaged in acts of domestic violence against Samer. The court therefore did not err in declining to apply the presumption against custody to Samer.

Disposition

The judgment is affirmed. The parties shall bear their own costs on appeal.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

A148939