Sullivan v. Touchet
Filed 1/9/07 Sullivan v. Touchet CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| BRADLEY SULLIVAN, Appellant, v. KATRINA TOUCHET, Respondent. | D047795 (Super. Ct. No. DN136328) |
APPEAL from an order of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Affirmed.
The issue in this family law case is whether the court abused its discretion by denying the petition of Bradley Sullivan for custody of Allison Touchet, his daughter with Katrina Touchet[1], and an order allowing him to move her to Spain with him and his family during his three-year Navy deployment there. Brad complains that the trial court ignored the custody evaluator's recommendations in his favor. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Allison was born to Katrina and Brad in Louisiana in November 1995. The parents did not marry and they separated in 1997. No custody or visitation orders were entered in Louisiana. Brad is a member of the Navy and he remained stationed in Louisiana until 1999; during that time, he and Katrina informally shared custody and visitation of Allison.
In February 1999 Louisiana prosecuted Brad for nonpayment of child support for Allison. He appeared in court and stipulated to his paternity and to begin making support payments. The following summers Katrina voluntarily sent Allison to Illinois, where Brad had moved, for summer visits.
In 2004 Brad was stationed at Camp Pendleton in San Diego County, and he and his wife Rosemary had a baby. Brad's son from a previous marriage, Dillon, also lived with the family. Katrina again voluntarily sent Allison to visit Brad during the summer of 2004. Toward the end of the visit, Brad and Katrina agreed Allison would remain in California during the 2004-2005 school year. Although she was a good student in Louisiana, the parents believed a change may help her with a propensity for talking in class and other minor behavioral problems. Also, Katrina thought it would be good for Allison to spend extra time with Brad because he anticipated an overseas duty. Brad and Katrina had no agreement that Allison would remain in California beyond the end of the 2004-2005 school year.
In March 2005, however, Brad attempted to obtain from the San Diego County Superior Court a custody decree and order allowing Allison to move with him to Spain where he was to begin a three-year deployment in June 2005. He filed a petition to register an out-of-state custody decree, but as there was no such decree he attached the documents from the criminal child support proceedings in Louisiana. In support, Brad submitted a declaration that claimed Katrina had " reasonable contact" with Allison and last saw her in December 2004. He also submitted a consent form Katrina signed in March 2005 for the issuance of a passport to Allison.
The court issued an order to show cause, and in a responsive declaration Katrina objected to Brad's custody bid and any move-away order. At the May 13, 2005 hearing, the court granted her request for an evidentiary hearing and a custody evaluation and ordered the parties to select an evaluator. Since Brad's move to Spain was imminent, the court authorized him to drive Allison to Louisiana where she would live with Katrina pending further court order.
Katrina later submitted a declaration that stated she and Brad agreed Allison would return to Louisiana at the end of the 2004-2005 school year to resume living with Katrina and her son Hunter; Brad agreed to send Allison to Louisiana for visits at Christmas and Easter, but he reneged on the Easter visit; Katrina tried repeatedly to contact Allison in April and May but was unable to reach her and did not receive any return calls from Brad or Rosemary, and Katrina signed the consent form for Allison's passport because she was willing to allow Allison to visit Brad in Spain.
Katrina submitted a telephone bill showing 25 calls to San Diego County between April 19 and May 2, all of one minute duration. She also submitted the declarations of two long-term friends, a relative by marriage, her fiancé, his mother, and the principal of the elementary school Allison attended in Louisiana during the 2001-2002, 2002-2003 and 2003-2004 school years. The principal's declaration stated " Allison is a very bright child, finishing first grade with a 4.0 average, second grade with a 3.2 average. Allison was never referred to the office once for behavior problems or concerns." Allison's grades and information pertaining to the school's performance were attached to the declaration.
Brad filed a reply declaration that stated Allison's flight to Louisiana for Christmas 2004 cost $318 and he had told Katrina an Easter 2005 visit was only a possibility. The declaration also stated Katrina made the telephone calls shown in the billing to Brad, not Allison, and Allison's behavior in school had " improved greatly" during the 2004-2005 term. Further, Allison purportedly wanted to move to Spain and she understood she could visit Katrina during summer and Christmas school breaks. The declaration acknowledged that both Brad and Katrina love Allison very much, and it concluded with, " I can't tell you how much Allison means to both families."
Trial was held on August 16, 2005. Brad was unable to leave Spain, but he appeared by telephone. Katrina appeared in person. The court considered the declarations discussed above, a report from Family Court Services and the report of Judith Phillips Sill, Ph.D., whom the parents chose as the custody evaluator. Brad did not testify and he presented no other witnesses.
Mark Schecter, a Family Court Services supervisor, interviewed Allison shortly before trial began. He testified Allison is a " [d]elightful young lady," and he and a co-worker " heard nothing in the interview that caused us ay concern at all. Her relationship with both parents seems to be very strong. Her relationship as far as extended families is very strong. We heard nothing that was a red flag as far as any kind of abuse or mistreatment or anything. She seems very happy in both places." Schecter also said Allison expressed no reservations about going to Spain and thought it would be exciting.
Katrina was the only other witness. She testified that in her opinion Allison believed " she is going to Spain for school, but she doesn't know whether it's going to be three years or six years or even longer." Katrina conceded that Dr. Sill told Allison she would have to remain in Spain for at least one semester of school before the matter could be reviewed. Katrina, however, felt Allison did not understand the time concept as she said she would try Spain for three weeks and she could return to Louisiana if she did not like Spain.
In a June 2005 report, Dr. Sill explained she interviewed Brad, Rosemary, Dillon, Katrina and Allison. Dr. Sill wrote: " Allison is bonded to both parents. They are both devoted to her. Both parent homes afford Allison positive and supportive circumstances. However, it appears that the more structured parenting provided by Bradley and Rosemary . . . makes their home most appropriate for Allison during the school year. Her mother's home, with loving extended family at close proximity, provides an appropriate site for Allison's vacation time out of school."
Dr. Sill found that Allison " is a bright and able student," but she " appears at the present time to be socially immature. Regressive, immature behavior is triggered when Allison feels stressed or put on the spot. While both parents are aware of this problem, father and stepmother are more assertive in dealing with it and expecting her to function at an age-appropriate level. Mother tends to meet Allison where she is and to engage in parallel play rather than asking for a more mature level of interaction with her prepubescent daughter. The opportunity Allison has to experience life in a foreign country and culture offers her an incentive to act her age and get more out of her social and academic environment."
Dr. Sill recommended that the parties share joint legal custody and Brad have " permanent" primary physical custody, to be reviewed only for change of circumstances. On the other hand, Dr. Sill recommended that " Allison's adjustment to her living and school environments in Rota, Spain, be assessed after three months at a calendared Court review hearing . . . and again at the end of the first year of her father's deployment (at a calendared hearing if the Court deems it necessary or either attorney requests it) to determine if any changes in the Court orders are needed to protect this youngster's academic and emotional well-being." Dr. Sill acknowledged it was important to Allison to be permitted to " 'evaluate' her experience at the end of her first term,' " but Dr. Sill believed an evaluation should not be conducted until the end of the entire first year of school in Spain.
Dr. Sill also recommended that " the issue of father's ongoing primary custody be revisited at the time his three year deployment to Spain ends and in light of what his next set of orders indicates will be his duty station in the United States. Such a review is important because of decisions regarding where this child might best attend junior high and high school." Under Dr. Sill's plan, Katrina would have visitation during all Christmas and spring vacations and all but two weeks of the summer break, until the end of Brad's deployment and return to the United States.
The court determined that since it was delivering an initial custody order a best interest standard applied. The court denied Brad's request to move Allison to Spain. It granted joint legal custody to the parents and primary physical custody to Katrina, with Allison visiting Brad in Spain during her annual spring, summer and Thanksgiving school breaks, and during one-half of her winter break. The parties later stipulated that Allison would visit Brad every other winter break for its entire duration.[2]
DISCUSSION
I
Applicable Legal Principles and
Standard of Review
A
Custody
When making an initial custody determination, the trial court must consider the best interest of the child. (Fam. Code[3], § 3020, subd. (a).) The court " must look to all the circumstances bearing on the best interest of the minor child. [Citation.] . . . [S]ection 3011 lists specific factors, 'among others,' that the trial court must consider in determining the 'best interest' of the child in a proceeding to determine custody and visitation: '(a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent against the child or against the other parent. . . . [¶] (c) The nature and amount of contact with both parents.' " (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess).)
" The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether 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 revoked." (Burgess, supra, 13 Cal.4th at p. 32.) " 'The trial judge, having heard the evidence, observed the witnesses, their demeanor, attitude, candor or lack of candor, is best qualified to pass upon and determine the factual issues presented by their testimony. This is especially true where the custody of minor children is involved. An appellate tribunal is not authorized to retry the issue of custody, [or] to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge's discretion and not that of the appellate court which must control.' " (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.)
Move-Away Request
" A parent who is entitled to custodyof a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." (§ 7501, subd. (a).) In enacting that provision, the Legislature intended to affirm the court's decision in Burgess, supra, 13 Cal.4th 25. (§ 7502, subd. (b).)
In Burgess, the court held that " in an initial judicial custody determination based on the 'best interest' of minor children, a parent seeking to relocate does not bear a burden of establishing that the move is 'necessary' as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is 'necessary' to do so." (Burgess, supra, 13 Cal.4th at pp. 28-29.) Burgess concerned an initial custody order that allowed a move-away of only 40 miles from one California city to another. (Id. at p. 28.)
In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1078 (LaMusga), the court held " that just as a custodial parent does not have to establish that a planned move is 'necessary,' neither does the noncustodial parent have to establish that a change of custody is 'essential' to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody. The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." LaMusga concerned a mother with primary physical custody of the children who sought an order allowing her to relocate them from California to Ohio. (Id. at pp. 1080-1081.)
When a custodial parent seeks to relocate a child to a foreign country, unique concerns arise. For instance, " [e]xcept for Mexico and Canada, foreign relocation cases in this state inevitably involve a move to a different continent -- typically 8,000 miles or [farther] and 8 or more time zones away from California. With those great distances come problems of expense, jet lag, and the like. For a person of average income or below, an order relocating his or her child to a faraway foreign country is ordinarily tantamount to an order terminating that parent's custody and visitation rights." (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 546-547.) " Thus, when a relocation would have this practical effect, before allowing the move-away a trial court should require the moving parent to satisfy the burden of showing the termination of those rights would be in the best interests of the child." (Id. at p. 547.)
The deferential abuse of discretion standard also applies to a court's ruling on a move-away request. (LaMusga, supra, 32 Cal.4th at p. 1087.)
II
No Abuse of Discretion
Brad contends the court's ruling constitutes abuse of discretion because it does not comport with Dr. Sill's recommendations. He asserts the court " was second-guessing an evaluator with years of experience. It had not received any information that the expert opinion was based on unreliable information."
We find no abuse of discretion. The record shows the court gave thorough and thoughtful consideration to Dr. Sill's report and recommendations, and it was reasonably concerned with her approach and properly rejected it. For instance, Dr. Sill represented to Allison that she could try Spain for one school semester, a representation the court noted was " completely extrajudicial." The court explained, " [i]n other words, the court has never given any indication that this will be some type of temporary order or some temporary move . . . -- that the child will be there a certain period of time. The court has not [passed] judgment on any of those questions. . . . [¶] As far as the child's length of residence, this is all coming from Dr. Sill."
The court determined that because Dr. Sill purported to negotiate with Allison the length of time she would be required to remain in Spain before a " review" of her situation could occur, " what [she] thinks will happen to her is unclear to the court. I can't tell whether the child thinks she is moving to Spain for a full three years or whether she is going to Spain for some very limited period of time." The court found " that is a relevant factor because I don't believe [Allison] anticipates that she will be away from her mother as long as she probably will be away from her if the court grants the father's request, and I think that is detrimental to the child, and I think if the child realized that, we may hear a very different expression of desire from [her]."
Dr. Sill's report does not suggest she spoke with Allison about the prospect of never returning to her mother's primary custody or to Louisiana where she lived most of her life and enjoyed the love and support of extended family. Dr. Sill's report, however, acknowledged Katrina was concerned that Brad may " be unwilling to reverse primary custody if Allison wishes to come back home to Louisiana at any time during her father's deployment to Spain -- or upon their return three years hence." As the court found, Brad " is asking for custody of [Allison]. And I don't think Dad has any intention of saying 'well, we will reverse this at the end of year' or something."
The court explained that " everybody has presented [the] move [to Spain] as an experiment to broaden [Allison's] horizons. That is certainly the way it was presented to [her] by Dr. Sill." Dr. Sill's report states that Allison viewed the " positive aspects of going with her father to [Spain] are scuba diving, 'seeing the bulls run!', visiting new places, enjoying the beaches and making some new girlfriends." In the court's view, " [i]f we are going to see how [Allison] likes Spain, the better way to do this is to send [her] over to Spain all summer and let her experience Spain on that basis. Not move the child to Spain and hope that she adapts to Spain, which is really the way this is presented by [Dr. Sill]. That makes no sense to the court at all." The court, noting the bond between Allison and her mother, found a danger that " if [Allison] gets over to Spain and has some difficulty adjusting to that, . . . we will have a more serious problem."
We agree with the court that under Dr. Sill's plan Allison would not have permanence and stability. Rather, she would be trying Spain to see if it suited her, or if she thrived so far away from her mother, and if not, the arrangement would supposedly be subject to review and a return of Allison to Katrina's custody in Louisiana. This plan appears inadvisable, and indeed unworkable, since a change in custody after a move to Spain would require a showing of changed circumstances. In any event, our high court has " frequently stressed . . . the importance of stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds." (Burchard v. Garay (1986) 42 Cal.3d 531, 541; In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) As Justice Mosk explained in his concurring opinion in Burchard v. Garay, supra, 42 Cal.3d at page 549 (con. opn. of Mosk, J.), " Dr. Andrew Watson, psychiatrist and professor of law, has observed, stability is 'practically the principal element in raising children' and 'a child can handle almost anything better than he [or she] can handle instability.' "
Moreover, the evidence shows that a grant of custody to Brad may have thwarted Katrina's relationship with Allison. As Dr. Sill's report acknowledges, " the failure of father to return Allison for a visit during [s]pring [b]reak [2005] without an explanation does not appear appropriate or sensitive to the need [Allison] feels to be with her mother at least periodically. It is understandable that mother fears that if father is given primary custody for the coming school year, he will not communicate with her about their daughter's school progress [and] will fail to return her for vacation."
The court criticized Brad's diligence regarding visitation and wondered " whether we will have more exacerbated problems with a [flight] from Spain." The court also observed it " is going to be financially prohibitive of these parties to have frequent contact with [Allison]. I don't see how they will do that. It will be very expensive to move [her] back and forth from Spain. Even if [Brad] gets military rates on airlines, it will be tough." Indeed, Brad's declaration indicates he could not afford to send Allison from California to Louisiana to visit Katrina during her spring 2005 vacation. The custodial parent's frustration of visitation rights is a significant consideration in making a custody determination. (Burchard v. Garay, supra, 42 Cal.3d at p. 540, fn. 11.)
Contrary to Brad's assertion, the court did not arbitrarily disregard Dr. Sill's report and recommendations. Rather, it carefully considered the information and rationally rejected it, opting instead to make independent rulings in Allison's best interest. " Generally a trier of fact may reject the evidence of a witness, including an expert, even though that evidence is uncontradicted. However, the trier of fact may not act arbitrarily in doing so and thus where testimony is uncontradicted, unimpeached, and no rational reason for rejecting it appears, then the trier of fact may not reject it." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1206, fn. 27, italics added.) Under all the circumstances, the court properly exercised its discretion.
DISPOSITION
The order is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
McDONALD, J.
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[1] As is customary in family law cases to avoid confusion, we refer to the parties and minor by their first names. Bradley goes by Brad, and we use the shortened version.
[2] At the hearing there was an issue as to whether Brad had physically abused Dillon, but it is not germane on appeal as the allegations pertaining to Dillon did not affect the court's decision regarding Allison.
[3] All statutory references are to the Family Code.
