Thompson v. Krippendorf

 

 

 

 

 

 

 

Filed 6/25/13  Thompson v. Krippendorf CA1/5

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FIRST APPELLATE
DISTRICT

 

DIVISION FIVE

 

 

 
>

TANYA THOMPSON,             Plaintiff and Appellant,                         v. BRIAN KRIPPENDORF,             Defendant and Respondent.

A136031               (>Contra> Costa >County>             Super. >Ct.> No. D0901592)

 

            Tanya
Thompson (appellant), formerly known as Tanya Nemick, appeals from the trial
court’s orders granting the motion of Brian Krippendorf (respondent) as to
child support and denying the request of appellant to modify href="http://www.mcmillanlaw.com/">custody and visitation.  We affirm the child support order but remand
for reconsideration of appellant’s request regarding custody and visitation
under the proper standards.

Background

            Appellant
and respondent have two children together, boys born in April 2006 and January
2008.  Appellant filed a complaint to
establish respondent’s parental relationship in March 2009; appellant requested
joint legal custody and sole physical custody of the children.  In July 2009, the trial court awarded
temporary physical custody to
appellant, and respondent was permitted visitation and ordered to pay child
support.  Court orders in September and
October 2009 made some adjustments to respondent’s visitation and provided for
limited weekend custody.  The October
order directed, “There shall be a full custody evaluation for the minor
children.”

            Following
a December 2009 hearing, the court appointed Dr. Nancy Olesen under Evidence
Code section 730 to conduct an expert child custody evaluation.  In September 2010, Dr. Olesen produced a
detailed report and recommended that custody be awarded to respondent.  Among other things, she opined appellant was
suffering from a “delusional disorder” that resulted in appellant making
various unfounded accusations regarding respondent.

            On
September 16, 2010, in
light of Dr. Olesen’s report, the trial court awarded “temporary” physical
custody of the children to respondent and permitted appellant to have
supervised visitation, pending a recommendation conference.  In November 2010, the parties agreed to a
stipulated order on custody and visitation. 
The stipulated order largely adopted Dr. Olesen’s recommendations.  Among other things, respondent was awarded
sole physical custody, appellant was limited to supervised visitation one day a
week, and appellant agreed to receive therapy and attend parenting
classes.  The trial court made the
stipulated agreement an order of the court.

            In
October 2011, the trial court entered as an order of the court a stipulation
providing, among other things, that the parties had shared responsibility for
the children’s preschool and daycare expenses, therapy expenses, and
unreimbursed health care expenses.  The
court reserved jurisdiction over child support, effective January 1, 2011.

            In
February 2012, respondent filed a motion seeking, among other things, child
support starting in January 2011 and arrearages for the children’s child care,
therapy, and medical expenses.  In April
2012, appellant requested modification of the trial court’s custody and visitation
order; she requested joint physical custody and unsupervised visitation.

            Following
a hearing in August 2012, the trial court issued an order that, among other
things, directed appellant to pay off arrearages for child support and other
expenses at a rate of $200 per month, and directed her to pay $1,322 per month
in child support effective May 2012.  The
court denied appellant’s request to modify the custody and visitation
order.  This appeal followed.

Discussion

I.  The
Changed Circumstances Rule Did Not Apply to Appellant’s Request

            At
the April 2012 hearing on the parties’ motions regarding child support,
custody, and visitation, the trial court explained to appellant the denial of
her request to modify the custody and visitation order as follows:  “I’m saying, because you have not been exercising
your visitation and you have not been fully in complete compliance, I don’t see
a basis -- there has to be a change of circumstances.  If anything, because you’re not fully
exercising your . . . supervised visitation, . . . it would
maybe go the other way in terms of your ability to see your children as often
as has been allowed.  I’m going to keep
it the way it is.”href="#_ftn1" name="_ftnref1"
title="">[1]  Appellant contends the trial court erred in
denying her request on the basis that she failed to show changed circumstances
and without consideration of the best interests of the children.  We agree.

            “In
general, child custody and visitation orders in family court proceedings are
subject to the trial court’s broad discretion and an abuse of discretion is
found only where the court exceeds the bounds of reason.  [Citation.] 
Nonetheless, appellant’s contention as to the appropriate legal standard
to apply in ruling on [her motion] raises a question of law, which we review de
novo.  [Citation.]”  (In re
Marriage of David and Martha M. (2006) 140 Cal.App.4th 96, 100-101, fn.
omitted.)

            “Ordinarily,
after a judicial custody determination, the noncustodial parent seeking to
alter the order for legal and physical custody can do so only on a showing that
there has been a substantial change of circumstances so affecting the minor
child that modification is essential to the child’s welfare.  [Citation.]” 
(In re Marriage of Burgess (1996)
13 Cal.4th 25, 37.)  “It is settled that
to justify ordering a change in custody there must generally be a persuasive
showing of changed circumstances affecting the child.  [Citation.] 
And that change must be substantial: 
a child will not be removed from the prior custody of one parent and
given to the other ‘unless the material facts and circumstances occurring
subsequently are of a kind to render it essential or expedient for the welfare
of the child that there be a change.’ 
[Citation.]  The reasons for the
rule are clear:  ‘It is well established
that the courts are reluctant to order a change of custody and will not do so
except for imperative reasons; that it is desirable that there be an end of
litigation and undesirable to change the child’s established mode of
living.’  [Citation.]”  (In re
Marriage of Carney (1979) 24 Cal.3d 725, 730-731, fn. omitted.)  “[T]he burden of showing a sufficient change
in circumstances is on the party seeking the change of custody.  [Citations.]” 
(Id. at p. 731.)

            In
Montenegro v. Diaz (2001) 26 Cal.4th
249 (Montenegro), the Supreme Court
clarified the application of the changed circumstance rule to stipulated
custody orders.  The court first
explained that “the changed circumstance rule applies ‘whenever [final] custody
has been established by judicial decree.’ 
[Citation.]”  (>Id. at p. 256.)  The court then rejected the argument that
“stipulated custody orders cannot be final judicial custody determinations for
purposes of the changed circumstance rule absent a ‘judicial inquiry as to
whether the agreement results in an actual custody arrangement that fosters the
child’s best interest.’ ”  (>Id. at p. 257.)  Nonetheless, although “stipulated custody
orders may be final judicial custody
determinations for purposes of the changed circumstance rule,” “a stipulated
custody order is a final judicial custody determination for purposes of the
changed circumstance rule only if there is a clear, affirmative indication the
parties intended such a result.”  (>Id. at p. 258.)  In requiring such affirmative indication of
the parties’ intent, the court “recognize[d] the reality that many family court
litigants do not have attorneys and may not be fully aware of the legal
ramifications of their stipulations. Because most trial courts
‘ â€œ â€˜rubber stamp’ â€ â€™ stipulations in custody proceedings
[citation], our holding ensures that courts effectuate the actual intent of the parties when they entered into the stipulation
without precluding them from making enforceable promises [citation].”  (Ibid.)

            Appellant
contends there is no “clear, affirmative indication” (Montenegro, supra, 26
Cal.4th at p. 258), that the November 2010 stipulated order was intended to be
a final custody determination.  The
argument has merit.  Neither the order
nor the detailed agreement incorporated therein include any clear language
affirmatively indicating it was the intent of the parties the order would
constitute a final judicial custody determination.  Nowhere in the order or its attachments do
the words “ â€˜final,’ â€ “ â€˜permanent,’ â€ or
“ â€˜judgment,’ â€ or words to that effect, appear.  (Montenegro,
at p. 259; F.T. v. L.J. (2011) 194
Cal.App.4th 1, 19.)  There is no
indication in the record that the parties were informed the order would
constitute the court’s final determination on custody, and the order does not
terminate the court’s jurisdiction.  The
fact that the order included detailed provisions regarding custody, visitation,
and other matters, and did not provide for further hearings on those issues, is
not a sufficient basis to conclude the parties intended the order to be the
final judicial determination.  (>Montenegro, at p. 259 [“Although these
orders included detailed visitation schedules and did not provide for further
hearings, they did not clearly state that they were final judgments as to
custody.”].)

            Notably,
the order directed appellant to participate in psychotherapy and a parenting
class, which appellant may have viewed as calculated to resolve the problems
that led to the recommendation of custody with respondent, with an eventual
goal of restoring shared physical custody. 
Ultimately, because there is no clear indication whether the parties
intended the order to be the final judicial custody determination, >Montenegro precluded the trial court
from treating it as such.

            Where
there has not been a final judicial determination as to custody, a request for
a change in custody is to be determined pursuant to the best interests
standard.  (Montenegro, supra, 26
Cal.4th at p. 252.)  Because the trial
court below believed appellant needed to support her motion with a showing of
changed circumstances, we must remand to provide the court an opportunity to
decide the motion under the proper standard. 
In exercising its discretion in determining the best interests of the
children, “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.  [Citation.]” 
(Montenegro, at p. 255; Fam.
Code, § 3011.)  The trial court’s
expressed concern about appellant’s failure to visit the children may properly
be considered in the context of the best interests determination.  The trial court should also consider
appellant’s request for unsupervised visitation without requiring appellant to
show changed circumstances.  (>In re Marriage of Lucio (2008) 161
Cal.App.4th 1068, 1077.)

II.  Appellant
Has Not Shown the Trial Court Abused Its Discretion as to Support

            Appellant
also contends the trial court abused its discretion in fashioning the child
support award.  She does not argue the
trial court erred in calculating the appropriate award under the statutory
guidelines; instead she argues the court should have deviated downward because
the guideline support level is “unjust or inappropriate” within the meaning of
Family Code section 4057.href="#_ftn2"
name="_ftnref2" title="">[2]  In particular, she argues the child support
award consumes an excessive percentage of her monthly income.  However, Family Code section 4507,
subdivision (b) requires that a departure from the guideline support level be
justified by one of several specified factors, and appellant fails to explain
how her evidence justified a departure under any of those factors.  Thus, appellant has failed to show the trial
court abused its discretion.  (>In re Marriage of Rosen (2002) 105
Cal.App.4th 808, 825.)

Disposition

            We
affirm the trial court’s child support order but reverse its order denying
appellant’s request to modify the custody and visitation order.  We remand for reconsideration of that request
consistent with this opinion.  The
parties shall bear their own costs on
appeal.

 

                                                                                                                                                           

                                                                                    SIMONS,
J.

 

 

 

We concur.

 

 

 

                                                                       

JONES, P.J.

 

 

 

                                                                       

NEEDHAM, J.