J.M. v. G.H. CA2/1 ( 2021 )

Filed 4/23/21 J.M. v. G.H. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
J.M., B305382
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BF037073)
v.
G.H.,
Defendant and
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Joshua D. Wayser, Judge. Affirmed.
Hoover Law and Sarah J. Hoover for Plaintiff and
Appellant.
No appearance for Defendant and Respondent.
_______________________________
J.M. appeals from an order denying his postjudgment
request to modify custody and visitation for his then 14-year-old
son and an order denying his request for a statement of decision.
Finding no error, we affirm the orders.
BACKGROUND
This matter involves a custody dispute regarding a child
named Joey, between J.M. (Joey’s father) and G.H. (Joey’s
mother). J.M. and G.H., who never married, ended their
relationship of more than 10 years in 2007, when Joey was two
years old. G.H. has no other children. J.M. had been married
three times before his relationship with G.H., and he has three
adult children from two of the earlier marriages. In 2008, J.M.
married M.H. (J.M. v. G.H. (2014) 228 Cal.App.4th 925, 928.)1
He later adopted her son. Joey has relationships with all his half
siblings.
I. 2012 Judgment on Custody and Visitation
In 2009, J.M. filed a petition to establish paternity of Joey
and later requested sole legal and primary physical custody of
Joey. In response, G.H., an Israeli citizen, requested sole legal
and physical custody of Joey and an order allowing her to move to
Israel with Joey, with visitation for J.M. in the United States and
Israel. (J.M. v. G.H., supra, 228 Cal.App.4th at p. 928.)
After a 12-day trial, the trial court (Judge Robert A.
Schnider) issued a judgment on custody and visitation on May 17,
2012 (hereafter, the judgment), when Joey was six years old.
(J.M. v. G.H., supra, 228 Cal.App.4th at p. 931.) Under the
judgment, which is included in the record in the present appeal,
the parties share joint and physical custody of Joey. Joey lives
1We issued a published decision in J.M.’s appeal from the
2012 judgment on custody and visitation of Joey, described below.
2
with G.H. in Israel during the school year, and he attends school
in Israel.2 Joey lives with J.M. in the United States during his
winter, spring, and summer breaks from school. The judgment
allows J.M. to have visitation with Joey in Israel and G.H. to
have visitation with Joey in the United States. Over G.H.’s
objection, the judgment requires J.M. and G.H. to communicate
with each other using a program called OurFamilyWizard (OFW),
notwithstanding an expert declaration G.H. presented at trial
stating G.H. has dyslexia and attention deficit hyperactivity
disorder, which makes it difficult for her to read communications
on OFW. The judgment requires the parties to file any request
for modification of the judgment in a “California court having
jurisdiction.” J.M. appealed from the judgment, and this court
concluded, among other things, the trial court did not abuse its
discretion in its custody determination. (Id. at pp. 935-939.)
In August 2015, Joey moved to Israel with G.H. In or
around 2017, J.M. moved to Florida with his wife M.H. and their
son, who is a few years older than Joey.
II. J.M.’s Current Request to Modify Custody and
Visitation
On April 11, 2019, when Joey was 13 years old, J.M.
(through counsel) filed in Los Angeles County Superior Court the
current request to modify custody and visitation. He requested
the trial court swap the parties’ physical custody, so that Joey
would live with him in Florida during the school year and with
G.H. in Israel during school breaks. He also requested sole legal
2At the time of the proceedings at issue here, Joey
attended an American International School in a suburb of Tel
Aviv. J.M. selected Joey’s school in Israel, as allowed under the
judgment.
3
custody as to Joey’s mental health treatment and school
selection, with joint legal custody remaining in all other areas.
In his memorandum of points and authorities and in his
declaration supporting his request to modify custody and
visitation, J.M. asserted it was in Joey’s best interest to attend
school in the United States, beginning in August 2019, for several
reasons. First, he informed the court that G.H. refused to
communicate with him on OFW, as the judgment required. G.H.
had not logged onto OFW since August 3, 2016 (more than two
and a half years), thus failing to respond to the messages J.M.
sent her regarding Joey’s health, activities, and education. J.M.
asserted he learned information about Joey’s life from Joey,
although G.H. obstructed telephone contact between Joey and
J.M. and M.H. by interrupting the calls. On the occasions when
G.H. communicated with J.M. in writing, she used email, text, or
the WhatsApp application.
Second, J.M. complained that G.H. changed the date of one
of Joey’s Bar Mitzvah parties (the children’s party, not the family
party) to a date that J.M. and his other children could not attend.
She also failed to send J.M. pictures from the Bar Mitzvah party
for more than five months and refused to provide the name of the
photographer to J.M.
Third, J.M. informed the trial court that Joey had mental
health treatment in 2018, and G.H. refused to engage in joint
conversations with J.M. and Joey’s therapist in Florida and
refused to provide contact information for Joey’s therapist in
Israel, which J.M. located on his own. According to J.M., Joey’s
mental health issues arose “as a result of his having had to
assume a parental role in [G.H.]’s home,” due to G.H.’s medical
issues. The school contacted J.M. (and G.H.) and stated staff
4
believed Joey needed counseling and they were concerned he
might hurt himself.
Fourth, J.M. asserted G.H. failed to properly supervise
Joey. According to J.M., Joey stayed up late at night and was
permitted to be out in the streets alone at night. He viewed
inappropriate material on the Internet and used profanity. He
was tardy to school 20 times during the current school year,
although G.H. did not work outside the home. He was not
completing school assignments on time and was underperforming
at school academically due to issues with procrastination,
organization, and focus.
Fifth, J.M. was concerned about Joey’s safety in Israel due
to “the current state of conflicts and unrest in the region.”
J.M. asserted his “efforts to address these issues with
[G.H.] have failed.” He further argued: “It is abundantly clear
that [G.H.] has no intention of co-parenting Joey and no intention
of communicating information about their son in writing to [J.M.]
as ordered by the Court. Under these circumstances, the Court
should exercise its discretion to modify child custody and order
Joey’s return to the United States without delay for the start of
the 2019-2020 school year.” J.M. pointed out that in the 29-page
statement of decision the trial court issued before it entered the
judgment on custody and visitation in 2012, the court expressly
stated that the order allowing Joey to live with G.H. in Israel
during the school year was “made on [G.H.’s] anticipated
compliance with the orders protective of [J.M.]’s relationship. As
this anticipated behavior is a key basis of this ruling, failure to
meet that expectation would be a change of circumstance.” J.M.
argued he had “shown that there has been a significant change of
circumstances (the complete failure of [G.H.] to communicate
5
with [J.M.] via OFW for almost three full years) and that Joey’s
best interests require modification of the moveaway order.”
G.H. did not respond to J.M.’s request to modify custody
and visitation. At a hearing on June 19, 2019, at which G.H. did
not appear, the trial court ordered the modification as J.M.
requested. On July 17, 2019, G.H., who was now represented by
counsel, filed an ex parte application to set aside the order
modifying custody and visitation. After hearing the matter, the
trial court granted the motion to set aside the order and
appointed counsel for Joey.
On October 4, 2019, J.M. filed a notice of intent to present
live testimony pursuant to Family Code section 2173 at an
evidentiary hearing on his request to modify custody and
visitation. He indicated he planned to call the following
witnesses: himself, G.H., Dr. Jason Quintal (the mental health
therapist who treated Joey in Florida), and David Makovsky (“an
expert on the issue[s] of safety and security in the Middle East,
including Israel”).4
3 Family Code section 217 provides, in pertinent part: “At a
hearing on any order to show cause or notice of motion brought
pursuant to this code, absent a stipulation of the parties or a
finding of good cause pursuant to subdivision (b), the court shall
receive any live, competent testimony that is relevant and within
the scope of the hearing and the court may ask questions of the
parties.” (Fam. Code, § 217, subd. (a).)
4J.M. did not call David Makovsky as a witness at the
evidentiary hearing.
6
III. Evidentiary Hearing on J.M.’s Request to Modify
Custody and Visitation
The three-day evidentiary hearing was held on October 25,
2019, November 21, 2019, and January 22, 2020 before a
different judge (Judge Joshua D. Wayser) than the judge who
issued the judgment on custody and visitation in 2012.
Before the testimony commenced, the parties stated on the
record that Joey was no longer being treated for mental health
issues. Joey’s counsel informed the trial court: “[W]e are in a
very good place for this child in terms of who he is as a human
being, and I think both parents would like this trajectory of good
welfare to continue.” Counsel also informed the court that Joey
preferred not to testify or take a position on the custody
determination.
At the evidentiary hearing, J.M. presented his case-in-chief
through the testimony of G.H., Dr. Quintal and himself.
Throughout the hearing, the trial court questioned the witnesses
and engaged in dialogue with counsel for J.M., G.H., and Joey
regarding the factual and legal issues in the case.
At the conclusion of J.M.’s case, the trial court concluded
J.M. did not meet his burden on his request to modify custody
and visitation. Accordingly, G.H. did not present her case, but
she testified on adverse direct examination in J.M.’s case.
A. G.H.’s testimony
G.H. testified by telephone from her home in Israel. Her
counsel was present in court.
J.M.’s counsel asked G.H. about her medical conditions—
autoimmune disorders which required infusion treatments and
an extensive surgery on her Achilles tendon in 2016. G.H.
7
testified that Joey assisted her around the house while she was
recovering from the surgery.
Regarding Joey’s performance in school, G.H. stated Joey
did not make the honor roll in the first semester of the previous
school year, but he made it in the second semester. According to
G.H., Joey’s grades on his current progress report were an A- in
physical education, a C in art class, and four B’s. G.H. did not
send a copy of the progress report to J.M., although she
acknowledged the 2012 judgment required her to do so. She also
conceded she did not regularly provide information to J.M.
regarding Joey’s extracurricular activities or her meetings with
school personnel. G.H. believed that Joey was tardy to class 11
times during the 2018-2019 school year. During a parent-teacher
conference, G.H. was told Joey needed to improve his time
management skills and that he sometimes had difficulty focusing.
G.H. conceded she had not logged into the OFW program
since 2016. She was aware that the 2012 judgment required her
to communicate with J.M. through OFW. When the trial court
asked her why she declined to comply, she stated that she had
“developed a fear” of OFW because J.M. “abused it” by sending
her “thousands of emails nonstop” over several years. According
to G.H., in late 2015, she asked J.M. if they could communicate
using the WhatsApp application, which was easier for her to use
than OFW. She represented that they reached an understanding
to use WhatsApp for their communications, and in exchange she
agreed that J.M. could visit Joey whenever he wanted when he
was in Israel.
G.H. testified that in 2018, before Joey’s spring break from
school, she did not know Joey was having any “emotional
8
difficulties.” At no time did she believe Joey was having suicidal
thoughts.
In or around April 2018, G.H. received a telephone call
from Joey’s homeroom/science teacher, who explained that during
drama class, Joey simulated hanging himself with a noose, but he
did it in a silly way. He also wrote a story that was published in
the school literary journal in which he stated he felt responsible
for his parents’ separation. After receiving the call from the
teacher, G.H. contacted J.M. about the issue. When Joey
returned home from school that day, she spoke with Joey about
it, asked him if he wanted to talk to a therapist, and he said he
did.
According to G.H., she contacted J.M. to tell him Joey
wanted to see a psychologist. She decided to arrange for Joey to
see a therapist in Israel. She said that unbeknownst to her, J.M.
planned to arrange for Joey to see a therapist in Florida during
summer 2018. G.H. asked a counselor at Joey’s school for
recommendations for therapists in Israel. According to G.H.,
J.M. told her he would not agree to any therapist she (G.H.)
proposed.
G.H. testified that in spring 2018, Joey saw a therapist in
Israel named Dr. Rubenstein, and in summer 2018, he saw a
therapist in Florida named Dr. Quintal. G.H. stated she had
communications with both Dr. Quintal and Dr. Rubenstein that
did not include J.M. In communications with Dr. Rubenstein,
G.H. acknowledged she may have referred to Dr. Quintal as a
“quack.” G.H. continued to have communications with Dr.
Rubenstein during the pendency of these proceedings, including
communications regarding J.M. The trial court expressed
9
concern about such communications between G.H. and Joey’s
therapist.
According to G.H., when Joey returned from Florida at the
end of summer 2018, he told her he no longer wanted to see Dr.
Rubenstein or any therapist in Israel because he felt fine. G.H.
testified that at that time, Dr. Rubenstein told her he did not
believe Joey would hurt himself. G.H. told Joey he could resume
therapy at any time. G.H. conceded that in her communications
with Dr. Rubenstein during the pendency of these proceedings,
Dr. Rubenstein told her Joey was having suicidal thoughts in
spring 2018.
G.H. testified that Joey would have to serve in the Israeli
army if he remained in Israel.
J.M.’s counsel examined G.H. at length about the children’s
Bar Mitzvah party that J.M. and his family could not attend
because of when G.H. scheduled it. J.M. was able to attend the
Bar Mitzvah ceremonies and the family party.
G.H.’s counsel and Joey’s counsel reserved their
examination of G.H. until after J.M. presented his case. As
explained above, G.H. never presented her case.
B. Dr. Quintal’s testimony
Dr. Quintal testified that he has a bachelor’s degree in
psychology and elementary education, a master’s degree in social
work, and a doctoral degree (Ph.D.) in clinical sexology. Prior to
earning his Ph.D., he worked for eight years in a public school
district as a social worker. At the time of the hearing, he was in
private practice.
Dr. Quintal explained that a primary care physician
referred J.M. to Dr. Quintal. During the summer of 2018, Dr.
Quintal met with Joey on four occasions. Prior to their first
10
meeting, Dr. Quintal spoke with Dr. Rubenstein, the therapist
Joey had seen in Israel during spring 2018. Describing his
conversation with Dr. Rubenstein, Dr. Quintal testified: “[W]e
had discussed that Joey had challenges that [his] parents don’t
get along well. That he was experiencing depression. That he
was somewhat sad and distraught. That he wasn’t feeling very
good. [¶] Those were really more of adjustment challenges with
what we had talked about at that time.”
During his treatment of Joey, Dr. Quintal learned that Joey
had been “having depressed thoughts.” Joey had also engaged in
“burning [with a lighter] and cutting behaviors,” as a result of
feeling overwhelmed and out of control. Dr. Quintal observed
some “superficial” cuts on Joey’s wrist. Joey was stressed
because he believed he was going to be forced to make a decision
about who he wanted to live with, G.H. or J.M.
On August 29, 2018, Dr. Quintal spoke with G.H. about
Joey’s treatment. He told her Joey “was overwhelmed” and had
mentioned to him that G.H. “had had an injury” and Joey “had to
do a lot more caretaking because she wasn’t physically able to do
as much.” Dr. Quintal also told her Joey was “feeling down and
depressed” about a potential custody dispute. Dr. Quintal further
told G.H. that Joey had been cutting himself, and G.H. said she
was unaware of it. Dr. Quintal did not mention to her the
burning behavior. He described to G.H. the traumatic events he
had “unplugged or cleared” with Joey, such as the 2012 custody
dispute, the move to Israel, and “knowing that his parents don’t
get along very well.” He also described to G.H. Joey’s thoughts
about “being dead,” which were not necessarily about committing
suicide.
11
Dr. Quintal recalled that Joey “was much lighter and much
happier” at the end of summer of 2018, after their four sessions
together. Joey was no longer “burdened” by the move to Israel.
Dr. Quintal stated that he met with Joey three or four
times during summer 2019 (a couple months before the
evidentiary hearing). Joey was concerned about the pending
custody dispute and whether he would be asked to decide where
he wanted to live. Dr. Quintal testified: “He [Joey] likes being in
Israel with the friends and relations that he already has. The
transition the first time when he left [the United States for
Israel] was a very difficult transition for him, so that was a big
problem.” Joey expressed concern about how G.H. would support
herself without child support money from J.M. if Joey were in the
United States during the school year. He also worried that G.H.
would not be able to visit him in the United States.
The trial court asked Dr. Quintal what was important for
the court to know about Joey’s situation. Dr. Quintal responded:
“So my personal take on this, I think that Joey -- Joey says
that he does not like Sarasota [Florida, where J.M. lives]. He
would be okay living in L.A. [Los Angeles], but does not like
Sarasota for whatever reason.
“He likes being with mom and thinks mom is a little more
open minded. I think that he has much more freedom to do all
sorts of things that he wants to do, and stay up late and all that
kind of stuff which I think as a teenager is a thing that they
might want, but may not be necessarily best for them.
“I think that at dad’s house there is more structure. I think
that they have an older brother who is also there. I think that
that is a good situation for him, however, we also have to go with
12
he had difficulty adjusting the first time [when he moved to
Israel].
“He is in a specialized program when he is in Israel
meaning that he lives in Israel, but attending a U.S. school, so
that is a much smaller setting. He knows everybody there, so it’s
just way more comfortable in Israel.
“Even if I would say, in my professional opinion, the
household that dad has is a better household, knowing that he
has got extended family [in Israel], a maternal grandmother, an
uncle, and that he wants to be in Israel, I think we have to weigh
that as a piece too, so I have a thing [sic], what is the actual best
thing for him.
“I want him to make sure, regardless, him [sic] feel that
mom is taken care of because I know that that is a heavy thing on
him, and I know that he realizes that he’s like a lifeline in that
way with mom and that he helps mom a lot at home, and whether
that’s a burden that a child his age [14 years old] should have or
not, it is what he does and he is willing to do that.”
On cross-examination, Dr. Quintal conceded he never
mentioned Joey’s burning behavior to J.M. or G.H. He also
explained he did not believe the cutting or burning behavior
stemmed from suicidal thoughts. He described the origins of the
behavior as follows:
“It was out of feeling overwhelmed and out of control, and
what cutting does is it take[s] something that’s out of control, and
what burning does is it takes something that’s out of control and
makes it controlled, so now I’m in control of it.
“It localizes, it’s something that is overwhelming and it
localizes it to a particular area that I am in control of, and with
13
both cutting and burning, it produces endorphins that are
released as that experience happens and it causes relief.
“So my interest with Joey wasn’t about the [cutting and
burning] stuff per se, but was about getting him so that he was
not so stressed and, therefore, not having to use that maladaptive
coping skill.”
C. J.M.’s testimony
J.M. testified about Joey’s positive relationships with him,
his wife M.H., and his adult children. He discussed the activities
Joey engaged in during summers in Florida, including spending
time with his cousins and attending sports camps.
J.M. stated that Joey wanted to attend college in the
United States. J.M. had researched high schools in Sarasota in
anticipation of Joey starting school there if the trial court
modified the custody order.
J.M. testified about spring break in 2018 when Joey told
him he wanted to see a therapist. He did not press Joey about
why he wanted to see a therapist, but he told Joey he would make
arrangements as soon as possible. He immediately sent G.H. a
message about his conversation with Joey through OFW. Then,
he contacted a pediatrician and was referred to Dr. Quintal. He
informed G.H. that he had found a therapist for Joey.
J.M. stated that he and G.H. never reached an agreement
not to use OFW, and he continued to use it to communicate with
her, although she told him she did not want to use it. Since she
stopped logging into OFW in early 2016, he had told her to check
it for messages from him.
According to J.M., G.H. had not traveled to the United
States to visit Joey when he was in J.M.’s custody, as permitted
under the 2012 judgment. J.M. travelled to Israel to pick up Joey
14
each time Joey visited him in the United States, and J.M.
travelled back to Israel with Joey each time Joey returned to
G.H.
When J.M.’s counsel asked him to state his concerns about
Joey’s safety, J.M. responded: “I have concerns in different areas.
One concern I have is that he is out late at night periodically,
often times on his own, whether he’s walking the dog or he’s
walking home from a friend or coming home from a friend. One
night he called me at -- I think it was about 1:30 or 2:00 in the
morning to tell me that he’d like me to stay on the phone with
him because he was afraid as he was walking home. It was late
and he heard noises. And I told him of course I’ll stay on the
phone with him. I can’t understand why he’d be out at that hour.
But I am concerned about his safety in that respect. [¶] I’m also
concerned about the -- you know, just the general safety factors of
living in Israel on a regular basis. I mean I understand there are
certain risks of visiting there, but it’s nowhere near the risk of
living there and being there most of the time.” J.M. also testified
about the military service requirement for Joey in Israel.
When J.M.’s counsel asked him why he wanted to change
the custody arrangement, J.M. responded:
“Because I believe that Joey needs guidance, Joey needs
counseling, Joey needs help in a lot of areas. Joey’s grades would
be better if he were with me, he would be more focused on getting
his work done. He would be in an environment where there are
controls, where there are limits.
“He wouldn’t be free to roam the streets at night, he
wouldn’t be free to just do what he wants to do as is what appears
to me to be the case now from what I know from Joey and from
what I’ve observed.
15
“I mean -- I know that he would get prompt medical
attention when he needed it. Dr. Quintal who is the only
therapist that Joey has had that he [has] related to and has
helped him is right there in Sarasota as well and can be of
comfort to him if he ever needed or requested.”
The trial court asked J.M.: “If [Joey] is in fact stabilized I
guess the question is wouldn’t the move then put him at a new
risk? And that’s what I’m worried about.” Father responded:
“No, on the contrary. I believe that one of the reasons why I
would respectfully disagree about his being stable is the fact that
over the past two years he’s come to me and asked me to see a
psychologist or psychiatrist or a therapist in order to help him
overcome the problems that he developed while he wasn’t with
me. So if you ask me is he stable over there. I don’t think so.”
J.M. added: “Why would he need a therapist if he’s stable over
there? So where does he come to get therapy? He comes to
Sarasota.”
J.M. concluded his testimony by asserting Joey “can’t
possibly say that he wants to move to the United States because
[G.H.] has put so much psychological pressure on him he needed
to see a counselor twice.” J.M. stated he wanted to remove Joey
from that cycle.
D. Statements by Joey’s counsel
Joey’s counsel stated Joey did not want to move back to the
United States because he did not like Sarasota and he was
concerned about G.H.’s welfare. Joey told his counsel he was
“way more comfortable in Israel.” Counsel believed Joey
“remain[ed] at risk” in terms of his mental health.
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E. The court’s comments on the issues
The trial court repeatedly stated throughout the hearing
that it believed Father showed a change of circumstance—G.H.’s
violation of the 2012 judgment requiring her to communicate
with Father through OFW, and G.H.’s poor co-parenting. But the
court concluded J.M. did not meet his burden of showing that a
change of circumstance indicated a different custody
arrangement would be in Joey’s best interest, based on the
evidence presented in J.M.’s case.5
IV. Trial Court’s Order Denying J.M.’s Request to Modify
Custody and Visitation and J.M.’s Request for
Statement of Decision
On January 23, 2020, the trial court issued an order stating
that, after conducting a three-day evidentiary hearing and
considering the evidence and arguments presented, the court
concluded J.M. “has not established that a change in custody is in
the minor’s best interests at this time for the reasons set forth on
the record on January 22, 2020 [the final day of the evidentiary
hearing]. As a result, Petitioner/Father’s request for order is
denied.” The court’s order also states: “This Court does reiterate
the prior Court Order that Respondent/Mother is to check and
use Our Family Wizard as the means of communication with
Petitioner/Father pursuant to the terms and conditions of the
prior Court Order. Respondent/Mother cannot simply choose
which Court orders to comply with and which to ignore. Nor did
5 We need not address whether J.M. demonstrated a
significant change of circumstance within the meaning of the
applicable law because we agree with the trial court’s conclusion
that J.M. did not demonstrate a different custody arrangement
would be in Joey’s best interest, as explained below.
17
her testimony on adverse direct establish a significant reason to
justify not complying with the prior Court Order.”
On January 31, 2020, J.M. requested a statement of
decision, listing eight “principal controverted issues” he wanted
the trial court to address. On February 7, 2020, the trial court
denied J.M.’s request, explaining in its order that under existing
law, a statement of decision is not required under the
circumstances of this case—i.e., a ruling on a motion (request for
order) after an evidentiary hearing.
J.M. timely appealed the orders on his request to modify
custody and visitation. G.H. has not appeared in this appeal.
DISCUSSION
I. The Trial Court Did Not Err in Concluding the
Evidentiary Hearing
J.M. contends the trial court deprived him of due process
and a full and fair hearing when it terminated the evidentiary
hearing during his case-in-chief, and the error is reversible per
se. He asserts: “On January 22, 2020, while [he] was testifying,
the Court directed him to step down from the witness stand and
suddenly declared an end to the evidentiary hearing.” We
disagree with J.M.’s characterization of the record.
On the third and final day of the evidentiary hearing, while
J.M. was testifying during his case-in-chief, the trial court and
counsel for J.M. and G.H. engaged in a discussion on the record
regarding the legal and factual issues in the case. J.M.
interjected and stated, “I just want to finish my testimony, if I
may.” Addressing the court, J.M. added, “Because you asked me
a question and I didn’t get to finish it.” The court allowed J.M. to
complete his answer, and then the court commented on J.M.’s
testimony. J.M. interjected again and stated, “I’m sorry. Just
18
one more comment to make because then I’m done because I don’t
know what else I can say.” J.M. further testified, engaging in a
dialogue with the trial court regarding the issues in the case.
During further discussion between the trial court and
counsel for J.M., G.H., and Joey regarding the legal and factual
issues in the case, the court stated to J.M.: “Hold on one second.
[¶] Mr. M[.], why don’t you step down. You can testify if you
need to from there,” presumably indicating counsel table. The
discussion between the trial court and counsel continued.
After hearing arguments from J.M.’s and G.H.’s counsel,
the trial court stated: “I need to look at the evidence one more
time. The tentative is to deny for the reasons that I’ve stated on
the record. But I’ll issue a new ruling tomorrow. [¶] Does
anyone have anything else they wish to say?” Counsel for J.M.
and Joey made additional arguments, and the hearing concluded.
Based on the foregoing, we reject J.M.’s contention the trial
court deprived him of due process and a full and fair hearing
when it concluded the evidentiary hearing. When the court asked
J.M. to step down from the witness stand—after J.M. had
indicated he had nothing further to say—the court explained that
J.M. could resume his testimony if need be. Neither J.M. nor his
counsel ever informed the court they had additional evidence to
present, including further testimony from J.M. Moreover, J.M.
does not state on appeal what further evidence he could have
presented.
In the one case cited by J.M. on this issue, In re Marriage of
Carlsson (2008) 163 Cal.App.4th 281, the Court of Appeal
concluded the error was reversible per se where the trial court
abruptly terminated the trial in a marital dissolution proceeding,
ignoring the husband’s statements that he not yet finished
19
presenting the evidence in his case. (Id. at pp. 288-292.) No such
error occurred here, as the record before us demonstrates.
At oral argument, J.M.’s counsel raised another issue
related to the manner in which the trial court conducted the
evidentiary hearing, an issue J.M. did not raise in his appellate
brief: that the trial court requested that J.M. and G.H. set forth
their respective “positions in a narrative fashion” during their
testimony. To the extent J.M. now takes issue with the trial
court’s request, he has forfeited the issue. When the trial court
made the request, J.M.’s counsel responded: “Thank you, your
honor. I very much appreciate your candor and what you’re
looking for and I have no problem with Mr. M[.] so testifying [in a
narrative fashion] toward the end of his testimony here today.”
Counsel continued to examine J.M. and, at the conclusion of his
testimony, J.M. set forth his position in a narrative fashion, as
quoted above in the background section of this opinion. Even if
J.M. had preserved the issue for review by objecting below, the
manner in which the trial court asked the parties to testify could
not have prejudiced J.M. because (1) J.M.’s counsel had a full and
fair opportunity to examine J.M. in the manner she chose, and (2)
G.H. did not testify after the trial court asked the parties to set
forth their positions in a narrative fashion because she did not
present her case, as explained above. (See Silva v. Dias (1941) 46
Cal.App.2d 662, 664 [a trial court’s decision to allow a witness to
testify in narrative form is “primarily addressed to the sound
discretion of the trial court, and unless prejudice is shown, it can
scarcely be said that such action amounted to an abuse of
discretion”].)
20
II. The Trial Court Did Not Err in Denying J.M.’s
Request for a Statement of Decision
J.M. contends the trial court’s denial of his request for a
statement of decision “should be reversed” because it “deprived
him of the ability to determine and understand the legal and
factual bases of the Court’s decision.”6 For the reasons explained
below, we disagree with this contention.
J.M. cites Code of Civil Procedure section 632, which
provides in pertinent part: “In superior courts, upon the trial of a
question of fact by the court, written findings of fact and
conclusions of law shall not be required. The court shall issue a
statement of decision explaining the factual and legal basis for its
decision as to each of the principal controverted issues at trial
upon the request of any party appearing at the trial.” He also
cites Family Code section 3022.3, which applies Code of Civil
Procedure section 632’s requirements for issuance of a statement
of decision to “the trial of a question of fact in a proceeding to
determine the custody of a minor child.” (Fam. Code, § 3022.3.)
J.M. acknowledges, however, that courts have declined to
require a statement of decision when requested by a party after a
hearing on a motion or order to show cause (OSC). “This is true
even if the motion involves an evidentiary hearing and the order
[granting or denying the motion or OSC] is appealable.” (In re
Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040 [“Since the
proceeding on respondent’s order to show cause [regarding
spousal support and attorney fees in a marital dissolution
6In his appellate brief, J.M. does not list the eight principal
controverted issues he asked the trial court to address in his
request for a statement of decision. He discusses the absence of a
statement of decision in more general terms.
21
proceeding] was not a trial and was not followed by a judgment,
under the general rule, the trial court was not required to issue a
statement of decision”].)7
J.M. also acknowledges there is no rule requiring a trial
court to issue a statement of decision on a postjudgment request
for an order modifying child custody or visitation. (See Anne H.
v. Michael B. (2016) 1 Cal.App.5th 488, 501, fn. 7 [“A statement
of decision, however, is ordinarily available only after trial, not in
connection with a ruling on a motion or special proceeding
[citation], and Father cites no legal authority suggesting a
statement of decision was available in connection with a motion
to modify an existing custody order”].) J.M. asks this court to
create such a rule, arguing: “When Family Code Section 217
applies and evidentiary hearings are held in post-Judgment
family law child custody proceedings . . . , statements of decision
should be issued when properly requested.” (Italics omitted.) He
asserts there are “significant public policy reasons” that favor
such a rule, including that “child custody proceedings have
priority over other issues in family law cases” and the
“importance of child custody issues [has] been codified by our
Legislature.”
In support of his request for a new rule, J.M. cites a
comment in a family law practice guide, stating, “it would appear
the ‘general rule’ [that does not require a statement of decision] is
not really appropriate” in “many family law motion/OSC
hearings” where “the court’s decision turns on factual findings.”
(Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter
7 Before entering the 2012 judgment on custody and
visitation in this matter, the trial court issued a 29-page
statement of decision.
22
Group 2015) ¶ 15:129, p. 15-29, italics omitted.) The comment
continues, “it is quite arguable that the tide should now turn in
favor of applying [Code of Civil Procedure section] 632 in
connection with family law motion and OSC hearings because,
with few exceptions, the family court ‘shall receive’ relevant live
testimony offered by the parties at any Family Code OSC or
motion hearing (Fam. [Code,] § 217); i.e., when [Family Code] §
217 applies, Family Code motion/OSC hearings are effectively
conducted as ‘mini-trials.’ ” (Ibid., italics omitted.) In its written
order denying J.M.’s request for a statement of decision, the trial
court cited this comment—as well as existing law holding a
statement of decision is not required after an evidentiary hearing
on a motion or OSC—and explained: “While this Court
understands the point made in the practice guide, and the
request by [J.M.], this Court follows the existing law, which does
not require a statement of decision under the circumstances.”
We have no cause to reverse the trial court’s order and
create a new rule.
III. Family Code Section 3048 Is Inapplicable Because
the Trial Court Did Not Issue a Custody or Visitation
Order
J.M. contends the trial court erred in failing to comply with
Family Code section 3048, subdivision (a), which sets forth the
information a trial court must include in “every custody or
visitation order”: “(1) The basis for the court’s exercise of
jurisdiction. [¶] (2) The manner in which notice and opportunity
to be heard were given. [¶] (3) A clear description of the custody
and visitation rights of each party. [¶] (4) A provision stating
that a violation of the order may subject the party in violation to
civil or criminal penalties, or both. [¶] (5) Identification of the
23
country of habitual residence of the child or children.” He argues
we should reverse the order and remand the matter for the trial
court to issue an order containing the information specified in
Family Code section 3048, subdivision (a).
J.M. cites no authority indicating Family Code section 3048
is applicable in the present circumstances. Here, the trial court
denied J.M.’s request to modify the custody and visitation
arrangement set forth in the 2012 judgment, leaving the existing
arrangement in place. The court did not issue a custody or
visitation order. Accordingly, Family Code section 3048 is
inapplicable to the court’s order denying J.M.’s request to modify
custody and visitation, under the plain language of the statute
stating it applies to a custody or visitation order, not a trial
court’s order declining to issue a new custody or visitation order.
IV. The Trial Court Did Not Abuse its Discretion in
Denying J.M.’s Request to Modify Custody and
Visitation
J.M. contends the trial court abused its discretion in
denying his request to modify custody and visitation. He argues:
“No reasonable judge would have similarly conducted, concluded,
and decided the post-Judgment trial in the manner [the trial
court] did in this case,” and the order “should be reversed.” The
trial court did not abuse its discretion here, as explained below.
A. General legal principles applicable to
modifications of custody and visitation
In “determining the best interests of children when making
any orders regarding the physical or legal custody or visitation of
children,” the “court’s primary concern” is “the health, safety, and
welfare of children.” (Fam. Code, § 3020, subd. (a).) “Once the
trial court has entered a final or permanent custody order
24
reflecting that a particular custodial arrangement is in the best
interest of the child, ‘the paramount need for continuity and
stability in custody arrangements—and the harm that may result
from disruption of established patterns of care and emotional
bonds with the primary caretaker—weigh heavily in favor of
maintaining’ that custody arrangement. [Citation.] In
recognition of this policy concern, [our Supreme Court has]
articulated a variation on the best interest standard, known as
the changed circumstance rule, that the trial court must apply
when a parent seeks modification of a final judicial custody
determination. [Citations.] Under the changed circumstance
rule, custody modification is appropriate only if the parent
seeking modification demonstrates ‘a significant change of
circumstances’ indicating that a different custody arrangement
would be in the child’s best interest. [Citation.] Not only does
this serve to protect the weighty interest in stable custody
arrangements, but it also fosters judicial economy.” (In re
Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.)
“ ‘The standard of appellate review of custody and
visitation orders is the deferential abuse of discretion test.’
[Citation.] Under this test, we must uphold the trial court ‘ruling
if it is correct on any basis, regardless of whether such basis was
actually invoked.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249,
255; In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “ ‘ “The
reviewing court should interfere only ‘ “if [it] find[s] that under
all the evidence, viewed most favorably in support of the trial
court’s action, no judge could reasonably have made the order
that he did.” ’ ” ’ ” (Rich v. Thatcher (2011) 200 Cal.App.4th 1176,
1182.)
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B. Analysis
We have no cause to disturb the trial court’s denial of J.M.’s
request to modify custody and visitation. The trial court did not
abuse its discretion in concluding that J.M. failed to prove a
different custody arrangement would be in Joey’s best interest.8
Neither Dr. Quintal (J.M.’s chosen Florida-based therapist) nor
Joey’s counsel advocated to move Joey back to the United States.
They both noted that the 2015 international move was very
destabilizing and difficult for Joey; he had adjusted to his life in
Israel and felt comfortable at his school; and he did not want to
live in Florida. Joey was not currently receiving mental health
treatment and the evidence demonstrated he was stable. He
spoke up before when he wanted to go to therapy, and there was
no reason to believe he would not do so again if he felt
overwhelmed or depressed. There is nothing unreasonable about
the trial court’s order.
In arguing the trial court abused its discretion in denying
his request to modify custody and visitation, J.M. asserts the trial
court “did not consider ‘all evidence’ available to it bearing on the
issue of the child’s best interests” because G.H. did not testify on
direct examination, G.H. only conducted a brief cross-
examination of Dr. Quintal, and Joey did not testify. J.M. bore
the burden of proving he was entitled to a modification of custody
and visitation. As discussed above, he had a full and fair
opportunity to present his case. He never stated there was
additional evidence he wanted to present. What evidence G.H.
8 Because we reach this conclusion, we need not review the
trial court’s finding that J.M. established a change of
circumstance.
26
might have presented in her case is irrelevant to whether he
proved his case.
J.M. takes issue with comments the trial court made that it
did not want to “punish” Joey or make him “pay” for Mother’s
poor co-parenting and her failure to use OFW, by moving him to
Florida. When J.M. pointed out to the trial court that its
comments offended him, the court acknowledged they were the
wrong choice of words. The court explained it should not move
Joey to a place he said he did not want to be (Florida) based on
G.H.’s violations of the terms of the 2012 judgment, if J.M. had
not demonstrated the move would be in Joey’s best interest.
J.M. argues the trial court failed to consider the factors set
forth in In re Marriage of LaMusga (2004) 32 Cal.4th 1072(LaMusga). There, our Supreme Court set forth “the factors that
the court ordinarily should consider when deciding whether to
modify a custody order in light of the custodial parent’s proposal
to change the residence of the child” in a so-called move-away
case. (Id. at p. 1101.) Here, neither parent was relocating (as
G.H. was when the trial court issued the judgment in 2012), so
LaMusga is inapplicable.
For the reasons set forth above, the trial court did not
abuse its discretion in concluding J.M. failed to prove a different
custody arrangement would be in Joey’s best interest. Although
J.M. presented evidence indicating there would be more rules and
structure in his home, it was not unreasonable for the trial court
to favor the stability of the current arrangement, in light of Joey’s
difficulty adjusting to the international move, his preference to
remain in Israel at his current school, and the deleterious effect
on his mental health when he becomes overwhelmed or stressed.
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DISPOSITION
The orders are affirmed. J.M. is to bear his own costs on
appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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