Marriage of Wayne and Solton

Filed 10/25/06 Marriage of Wayne and Solton CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County,John A. Kronstadt, Judge. Affirmed.

Eric S. Solton, in pro. per., for Appellant.

Trope and Trope, Lori A. Howe; and Samantha L. Wayne, in pro. per., for Respondent.

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Eric S. Solton (Father) appeals an order modifying a custody arrangement by permitting Samantha L. Wayne (Mother) to move to Los Osos from Los Angeles with their minor daughter Chloe. We find no abuse of discretion, and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Father and Mother were married in August 1997. Chloe was born in August 1998. The couple separated in November 2000. Both Mother and Father used drugs prior to and during their marriage. Mother stopped using drugs during her pregnancy, but used intermittently after she stopped breastfeeding. She contends that she stopped using drugs in the summer of 2000. Father testified that he checked himself into a rehabilitation center in October 2000 for three months and has been sober for five years.

Mother filed for divorce in 2001. The parties stipulated to temporary orders for joint legal custody and shared physical custody. The physical custody schedule was on a three-week cycle. In week one, Father had custody of Chloe for two days. During week two, he had custody Wednesday through Thursday and Friday through Sunday. In week three, Father cared for Chloe Wednesday through Thursday and Sunday through Monday. Holiday and vacation schedules varied. Mother had custody of Chloe at all other times.

In February 2004, Mother lost her position as an apartment manager where she had been living with Chloe rent-free. The property owner allowed her to stay in the apartment for $300 per month until June. Mother’s only income was from her employment as a child development specialist at a daycare center where she earned approximately $25,000 per year. In April 2004, the owner of the daycare center downsized the business and limited Mother’s work to 21 hours per week. Because of her financial difficulties, Mother’s father offered to let her live in his vacation house in Los Osos (near Morro Bay) for no charge. Mother accepted the offer because she was unable to afford an apartment in Los Angeles with her limited income.

In March 2004, Mother obtained an order to show cause for permission to move with Chloe to Los Osos and amend the custody and visitation schedule. The trial court appointed Roxanne Lipton, a marriage and family therapist, to conduct a child custody evaluation.[1] Ms. Lipton recommended that the parties continue to have joint legal and physical custody, and that Chloe remain in Los Angeles. She advised that if Mother chose to relocate, primary physical custody should be with Father. Ms. Lipton noted that Chloe was equally attached to both parents; Chloe was familiar with the Los Angeles area and had relationships with local extended family; and Mother and Chloe did not know anyone on the central coast. Ms. Lipton questioned Mother’s ability to remain sober and expressed concern about Mother’s lack of concrete plans to secure employment to meet household expenses.

A contested hearing was held at which Father, Mother, Ms. Lipton, and Mother’s child custody expert, Dr. Shawn McCoy, testified. Dr. McCoy testified that the evidence did not support Ms. Lipton’s recommendation that Mother and Chloe remain in Los Angeles. He testified that Mother was motivated to move in order to improve her situation, rather than to distance herself and Chloe from Father and his family. Dr. McCoy favored the move. He discussed Mother’s history of facilitating contact between Chloe and Father; the high level of cooperation between the parents; the limited contact Father had with Chloe after the parents’ separation; Mother’s generous visitation plan; and the statement of Mother’s therapist that Mother wanted to move to better her life and provide more opportunity for Chloe. After three hearings, the trial court granted Mother’s request to move with Chloe to Los Osos, but ordered that the parties alternate physical custody and continue to share legal custody.

This appeal followed.

DISCUSSION

I

Father contends the court erred in granting Mother’s request to move to Morro Bay with Chloe. He challenges the court’s determination that Mother was the more credible witness. He particularly challenges what he describes as the court’s failure to fully examine Mother’s finances, request financial records from Father, and to consider Mother’s marijuana use.

We review the trial court’s custody order for an abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) A trial court has broad discretion in making an initial child custody determination and may award custody to either parent based on the best interest of the child. (Fam. Code, § 3040, subd. (b).) We may disturb the court’s ruling only upon a showing of a clear case of abuse and a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) An abuse of discretion occurs only when the trial court exceeds the bounds of reason. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) We review the record in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference, and resolving all conflicts in his or her favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) We do not reweigh the evidence and credibility of witnesses. (In re Marriage of Cesnalis (2003) 106 Cal.App.4th 1267, 1275 [“trial court was free to make the credibility calls on the conflicting evidence”].)

After three hearings, the trial court found Mother to be a “sincere and credible witness [who] . . . described events with clarity and detail, including those about which there were disputes.” The court found that Father did not have the same credibility, noting that, “on more than one occasion, on an issue of significance, he gave testimony, or submitted a declaration, that the Court simply did not believe.” The record demonstrates that the court considered all of the evidence before it, including the parties’ finances and drug use. In any event, Father’s argument is an improper request that we reweigh credibility and redetermine contested facts. We decline to do so. (See Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)

II

Father also contends that the trial court erred in rejecting Ms. Lipton’s recommendation that Mother’s move-away request be denied.

Family Code section 7501, subdivision (a) expressly addresses the right of a parent to relocate with a child. The statute provides that “[a] parent entitled to the custody of 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.” In In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101 (LaMusga), the Supreme Court clarified factors the trial court should consider in move-away cases: (1) the child’s interest in stability and continuity in the custodial arrangement; (2) the distance of the move; (3) the age of the child; (4) the child’s relationship with both parents; (5) the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the child above their individual interests; (6) the wishes of the child if he or she is mature enough for such an inquiry to be appropriate; (7) the reasons for the proposed move; and (8) the extent to which the parents currently are sharing custody.

The trial court evaluated these factors in a lengthy memorandum of decision. The court stated that Ms. Lipton presented a helpful report and testimony, but did not agree with the “weight that [she] gave to certain events, which in turn shaped her conclusions and recommendations. This is not to criticize Ms. Lipton. Rather, it is to say that she has written about how she would apply the factors set forth in Justice Moreno’s majority opinion in [LaMusga]. Her commentary is helpful to, but not binding on, the Court, which has independently assessed all the evidence, including Ms. Lipton’s Report and testimony.”

The trial court did not abuse its discretion in granting Mother’s petition to relocate to Los Osos. The court had before it the comprehensive report prepared by Ms. Lipton, the testimony of Dr. McCoy, and the testimony of the parties and the evidence they submitted. The court carefully considered all of this evidence to find in favor of the move on every LaMusga factor.

Regarding the reason for the relocation, the court found that Mother decided to move to Los Osos in good faith and without intent to frustrate Father’s visitation with Chloe. Ms. Lipton suspected that Mother’s motivation to move was not strictly financial, since she found that Mother requested the move less than a month after losing the property management position and she failed to research job opportunities on the central coast. The court, however, credited Mother’s testimony that she was unable to find affordable housing or well-paid positions in the childcare or secretarial fields in Los Angeles. Mother also testified that she would not have considered moving to Los Osos if she were able to secure affordable housing in Los Angeles. The relocation offered a substantial savings in living expenses and the opportunity for Mother to obtain a college degree.

Ms. Lipton’s report and testimony also expressed concerns relating to other LaMusga factors: the possible disruption of the relationships between Chloe and her Father and Father’s family; Mother’s unwillingness to promote these relationships; Mother’s negative feelings toward Father; and Mother’s risk of drug relapse. On the last point, the court concluded that Ms. Lipton did not have a sufficient basis to opine that Mother is more likely to relapse into drug use than Father. Mother admitted to using marijuana five times in the last 12 months, but never in front of Chloe. She testified that she had not used hallucinogenic drugs and only drank alcohol in moderation with friends. Mother tested negative for all substances in two drug tests, one unannounced.

Regarding the relationship between Chloe and her father, Mother testified that it is important for Chloe to have a positive relationship with her father. Mother stated that she put her differences with Father aside to ensure that Chloe has a good relationship with him. Mother also testified that she has a positive rapport with Father’s girlfriend of three years, Tami. Mother and Father both testified that their relationship has deteriorated because of the potential move, and that each made negative statements about the court case in front of Chloe. Mother testified about several such incidents. Ms. Lipton was not aware of this information and did not consider it in her report.

The court relied on Mother’s testimony to find that Mother is supportive of the relationships between Chloe and her father, paternal relatives, and friends. It determined that this factor should not drive the decision, since “the evidence did not establish that any of these relationships is as significant as Chloe’s links to her parents in deciding this matter.” The court received evidence demonstrating that the parents cooperated well in coparenting Chloe before Mother requested the move. This evidence supports the court’s finding that Mother is likely to encourage the preservation of Chloe’s relationship with Father. Further, Mother’s proposed visitation schedule (all three-day weekends, alternating holidays, 50/50 during the summer and vacations, and every other weekend) provides for substantial contact so as to minimize any disruption.

In terms of the continuity and stability of the custodial arrangement, the court recognized that Mother has been Chloe’s primary caretaker throughout her life. Based on that fact, the court determined that, if the move were not allowed, Chloe’s separation from Mother would be more difficult for her than separation from Father. The court found that Chloe’s relationship with both parents is strong, but that the connection between Chloe and her Mother is deeper. Regarding the wishes of the child, Chloe expressed a preference to live with her Mother. The court determined that Chloe’s age supports a move since she is young enough to adapt easily to change. Finally, the court determined that the distance of the move--200 miles--is significant but manageable, particularly with long weekends and vacations.

In light of these facts, the court properly concluded that the move to Morro Bay is in Chloe’s best interests. We therefore find no error.

DISPOSITION

The order is affirmed. Mother is to have her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] Ms. Lipton’s report was filed in the superior court, but is not included in the record on appeal. We requested a copy of it and, on our own motion, augment the record to include the report.