Marriage of Parkerson and Carpenter

Filed 10/25/07 Marriage of Parkerson and Carpenter CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Edward Huntington, Judge. Affirmed.

Frequently in child custody disputes the parents' behavior leaves the trial court with no good choices but instead the unenviable task of selecting the least bad of various alternatives. This is such a case. Here the parents do not appear to be able to agree upon any matter related to the upbringing of their now seven-year-old child. Indeed because of hostility between the parents from the time the child was an infant, transfer of physical custody has consistently occurred at a sheriff's substation.

This appeal arises from the fact that in the summer of 2006 the child's mother, without consulting the child's father, attempted to enroll the child in a new school. When the child's father was informed about the change, he objected on the grounds that he had not been consulted about the proposed change and in fact believed that his son was doing well at the school he was attending.

With some hesitation about the prospect of giving either party a "win," the trial court ordered that in the future all decisions with respect to the child's schooling will be made by the child's mother. The record suggests the trial court's decision was not based on any assessment of the relative parenting skills of either parent, any determination by the trial court as to which parent was at fault with respect to the numerous disputes which had come to the court's attention while the case has been pending, or any evaluation of the two schools. Rather, the record reflects the trial court's belief that under the unfortunate circumstances presented here it simply had no practical alternative other than to give one parent the power to make all schooling decisions. We agree with this determination by the trial court.

As the child who is the subject of this appeal grows, some adult will have to make a host of decisions about his schooling. It is not in the best interest of the child or the parties that any or all of those decisions be subject to further litigation and ultimate resolution by the trial court. Decisions about the merits of available schooling alternatives or for that matter what field trips, enriched or enhanced school programs the child is permitted to participate in or whether a particular classroom placement is in the best interest of the child cannot await hearing in the trial court and then be subject to further review in this court. Because the record demonstrates the parties are unable to come to an agreement about such matters, the trial court reasonably assigned the responsibility of making schooling decisions to the parent who, at this point, is the child's primary caregiver.

FACTUAL AND PROCEDURAL BACKGROUND

Paul Parkerson and Rachelle Carpenter were married in October 1999 and their son Griffin was born in August 2000. Paul commenced dissolution proceedings in September 2000. The parties share joint physical and legal custody of Griffin, although Rachelle provides his primary residence. Rachelle also has custody Griffin's 10-year-old half-sister Seaton. Rachelle suffers from debilitating physical disorders that make it impossible for her to be gainfully employed.^[1]

An earlier report prepared by the Family Court Services division of the superior court noted that when the couple separated, Rachelle called the police, claiming Paul had assaulted her. Paul was not arrested but Rachelle obtained a restraining order against him. Because of disputes between Paul and Rachelle, Paul did not see Griffin until the child was eight months old. At that point Paul commenced a series of two-hour supervised visits with Griffin and eventually Paul was permitted regular overnight visitation. As we indicated at the outset, because of hostility between the parents, physical custody of Griffin is typically transferred at a sheriff's substation. Also, because of the restraining order, when Paul had physical custody of Griffin he would not take Griffin to Griffin's little league baseball games or soccer games because Rachelle was usually present and Paul feared that he would be found to be in violation of the restraining order. Although the restraining order expired in 2006, Paul remained concerned about the potential for conflict at Griffin's sporting events and continued to keep Griffin away from them when he had custody. Suffice it to say Paul and Rachelle do not speak to one another, even about matters concerning Griffin's well-being.

In this context in June 2006 Rachelle filed an order to show cause (OSC), which, among other matters, would permit her to enroll Griffin in a local publicly funded Montessori-style school. Without consulting Paul, in the spring of 2006 Rachelle participated in a lottery for positions at the Montessori school and Griffin and his half-sister were selected. Paul objected to the transfer on the grounds Griffin was doing well socially as well as academically in the local public school. Paul also argued Rachelle had made a number of derogatory comments to the public school principal about him and that it had taken him a number of months to develop a healthy relationship with school personnel. Paul feared that Rachelle would engage in the same behavior at the Montessori school and he would again have to demonstrate that Rachelle's accusations about him were unfounded.

In response to Rachelle's OSC, a Family Court Services counselor performed an evaluation of all the issues raised in the OSC. The counselor made the following findings about Paul and Rachelle: "The parents are highly conflicted and cannot even meet together in the same room to discuss the parenting plan. They cannot agree on the information provided. The father accuses the mother of withholding the child and the mother accuses the father of disregarding the child's emotional needs and neglecting the child's educational and medical needs. The undersigned reviewed the previous Family Court Services reports which indicate that the parents made similar accusations at previous mediations. The parents do not seem to have made any progress in improving their ability to communicate or reducing their anger towards each other, and both continue to blame the other party for all difficulties in their co-parenting." Thus the counselor recommended "that exchanges of the child continue to be either facilitated by a professional supervisor or occur at a police station or sheriff's substation."

With respect to Griffin's schooling, the counselor recommended that "the child continue to attend Ramona Elementary School. Both parents agree that the child has done well at Ramona Elementary School. It seems that the child would benefit from the consistency and stability of continuing to attend the same school, whether or not his sister attends the school with him. It should be emphasized that neither parent should attempt to change the child's school enrollment without first obtaining the permission of the other parent."

The counselor recommended that neither parent schedule any sports activity which would require Griffin's participation during the time he would be in the other parent's custody. The counselor stated: "Because the parents appear to be unable to communicate or cooperate in any aspect of the child's life, they should seek out recreational activities that the child can participate in during their own parenting time, without committing the child or encouraging the child to become involved in activities that the other parent may not support or facilitate. This should protect the child from being disappointed when the parents do not facilitate activities originally sponsored by the other parent."

After hearing argument on the OSC, the trial court made the following statement: "It's probably one of the worst cases of parenting on both sides that I've had. I've been doing this for nine, ten, eleven years, and you guys have been with me for most of it. The child -- Griffin is six years of age. You've been to family court services every year. You've been to the appellate court at least once or twice. This is just an incredibly bad job of parenting.

"Your kid's now having, I guess, asthma and stress attacks. It's going to get worse. It's not going to get better. And the two of you apparently are not going to change.

"I'm going to give the mother the absolute right to make all school decisions from here on out. Period. I hate doing that for the one reason, I don't like giving either side in this case a win, but there has to be a point where you just don't have any basis for coming to court anymore. That's going to eliminate any reason to come back to court on school decisions from here on out. Mother will make all decisions regarding school.

"As far as sports go, the recommendation in here was that sports are on your time and don't create -- you don't get the kid involved with a sport that interferes with other parent's time. That will be an order."

Paul filed a timely notice of appeal.

DISCUSSION

I

As Rachelle notes, custody orders are reviewed for an abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) "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 invoked." (Ibid.)

II

On appeal Paul argues that participating in Griffin's schooling decisions is an important aspect of his rights as a parent who shares custody of the child and that there is no basis in the record to support the trial court's decision which effectively permitted Griffin to attend the Montessori school. Paul relies on the mediator's finding that Griffin should stay at the public school he was attending at the time of the hearing.

The trial court clearly had the power to assign one parent the responsibility for making schooling decisions. As Rachelle points out, the trial court has the "widest discretion to choose a parenting plan that is in the best interest of the child." (Fam. Code,^[2] 3040 subd. (b).) Moreover, section 3083 provides that "[i]n making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court." (Italics added.) The last phrase of section 3083 plainly permits a family court, in cases of joint custody, to give some parental responsibilities exclusively to one parent or the other.

The record here clearly establishes the need for such an order. There is no dispute these parents are unable to act cooperatively in Griffin's best interest with respect to any aspect of his life. Moreover, there can be no dispute as to the harm this has caused him and will continue to cause him. As the court in In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 114, noted in a case of similar parental hostility: "As all too often happens in such distressing situations, '[t]he parents' conflicts have resulted in extreme suffering for the children' and continued to have a pervasive negative impact on them."

With respect to Griffin's education, his parents' well-documented inability to cooperate left the trial court with the two unenviable alternatives: it could permit the parents to litigate every aspect of Griffin's education or give the power and responsibility for his education to one of the parents and thereby exacerbate their hostility. We cannot fault the trial court's choice of the later alternative over the former. The trial court could quite reasonably conclude that the delay, disruption and emotional toll on Griffin caused by continual litigation of schooling decisions would be far more harmful to him than the loss of one parent's participation in making schooling decisions.

The trial court's decision that the parent who makes schooling decisions will be Rachelle was also reasonable. We do not interpret this aspect of the trial court's decision as in any sense an endorsement of Rachelle's behavior over the course of these proceedings. Rather, the record suggests the choice of Rachelle was solely a matter of practical necessity. As the parent with primary physical custody over Griffin, inevitably Rachelle will have the most day-to-day contact with Griffin's school and teachers.

The trial court's decision is in no manner undermined by the mediator's recommendation that Griffin stay at the public school as a means of providing him stability. If there were any indication in the record that this dispute would be the only educational issue the trial court would be required to resolve, the mediator's opinion might have more bearing. However, the trial court correctly determined that the question presented on this record was not which school Griffin will attend, but, in light of the parents' hostile relationship, which parent will make that determination. As we have indicated, the trial court acted reasonably in choosing the parent with primary physical custody.

III

Paul also contends the trial court's order represents a change of custody which requires that the moving party establish a change of circumstances.^[3] In light of section 3083, under which both parents would normally have the power to make schooling decisions, we agree with Paul that the trial court's order limiting his right to participate in

those decisions must be supported by a change of circumstances. The trial court's order did in fact materially alter the previous custodial arrangement. (See In re Marriage of McLoren, supra, 202 Cal.App.3d at p. 113.)

The record here does demonstrate the requisite change of circumstances. Admittedly, if the question posed in this case were limited to whether Griffin should continue attending the public school where he was enrolled at the time of the hearing, it would be difficult to find a change of circumstances. All parties agree Griffin was doing well in the public school and that the parents' unfortunate relationship had not improved. However, what did change, and what did necessitate a new order, was the fact that the parents' inability to cooperate posed an increasing threat to Griffin's well-being. Although the record shows that there had been previous disputes between the parties related to Griffin's preschool education, there had been no actual litigation between the parties as to where Griffin would attend school. The status quo in this regard was altered when the opportunity to attend the Montesorri-style school arose. By failing to resolve the issue between themselves, Paul and Rachelle presented the trial court with a substantial new threat to Griffin's well-being: continuing litigation over his education. The trial court had the power to deal with this new threat by altering the existing custody arrangement.

Order affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

HALLER, J.

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^[1] In a prior proceeding the trial court denied Rachelle's motion to move Griffin out of state. The trial court found Rachelle's reasons for wishing to move were whimsical and designed to frustrate Paul's visits with Griffin. On appeal we affirmed the trial court's order. (In re Marriage of Parkerson, unpublished opinion filed September 23, 2004, D042629.)

^[2] All further statutory references are to the Family Code unless otherwise specified.

^[3] Although Paul did not directly raise the requirement of changed circumstances in the trial court, we will interpret his declaration in which he expressed Griffin's need for stability and his desire that no change in Griffin's schooling take place, as adequately preserving the issue.