Marriage of Haney CA2/3 ( 2022 )

Filed 6/23/22 Marriage of Haney CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
In re the Marriage of AMY LAURA B314161
HANEY and DAVID CHARLES
HANEY. (Los Angeles County
_____________________________________ Super. Ct. No. 18AVFL00813)
DAVID CHARLES HANEY,
Appellant,
v.
AMY LAURA HANEY,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Robert J. Palazzolo, Commissioner. Affirmed.
David C. Haney, in pro. per., for Appellant.
No appearance for Respondent.
_________________________
David and Amy Haney’s1 marriage was dissolved, and Amy
was awarded primary physical custody of their child. David now
appeals orders requiring him to pay child and temporary spousal
support and attorney fees and allowing Amy to relocate to
Georgia with their child.2 We affirm.
BACKGROUND
David and Amy married in 2014. They had one daughter,
Charly, who was born in 2017. In 2018, David petitioned for
dissolution of the marriage. The family court granted the
dissolution. On August 8, 2019, the family court awarded
parents joint legal custody but gave Amy primary physical
custody and David visitation weekdays for three hours each day
and weekends twice a month.
In December 2020, Amy requested spousal support and to
be allowed to relocate with Charly to Georgia. She also requested
attorney fees in the amount of $18,000. In her brief, Amy
represented that she had job offers for full-time work in Georgia
and that Georgia’s educational system would be better for Charly.
David opposed the requests and asked that Charly remain
with him if Amy relocated. In his various written opposing
papers, David argued that if Charly moved away, it would
detrimentally impact his relationship with her and her
relationship with her half-sibling (David’s older daughter from
another relationship). It would also be detrimental because both
parents had cared for Charly, and Charly would not be able to
attend family gatherings with David’s extended family. As to the
1 We refer to the parties by their first names to avoid
confusion.
2 Amy has not filed a responsive brief on appeal.
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request for spousal support, David argued that the marriage was
of short duration and Amy, who was only working part-time, had
the means to provide for herself.
On April 2, 2021, after an evidentiary hearing, the family
court issued a statement of decision regarding attorney fees.
After reciting the parties’ respective incomes and cash, the family
court found that Amy had incurred $16,000 in reasonable
attorney fees and costs and that under the appropriate Family
Code provisions, she was entitled to $2,500 in attorney fees.
Thereafter, on May 5, 2021, after a short-cause trial at
which the parties testified, the family court ordered David to pay
child support in the amount of $520 per month from February
2019 to January 2020, increased to $677 per month in February
to April 2020, decreased thereafter to $619 per month until
Charly came of age. The family court further ordered David to
pay $140 per month in temporary spousal support from February
2019 to April 15, 2020.3 Finally, the family court made its prior
August 8, 2019 child custody and visitation orders final.
It appears that a further evidentiary hearing occurred on
May 18, 2021 regarding Amy’s request for a move-away order,
after which the family court took the matter under submission.
The family court then issued another statement of decision on
June 7, 2021 granting Amy’s relocation request. The family court
summarized that Amy wanted to move with four-year-old Charly
to Georgia to live with Amy’s fiancé and to seek better
employment opportunities for herself and educational
opportunities for Charly. After finding no evidence of domestic
violence, child abuse, or drug abuse, the family court found that
3 David moved for reconsideration and that motion was
denied.
3
although David had a “close bond” with Charly and was an
attentive parent, Amy had been Charly’s primary caretaker for
most of Charly’s life and had a “stronger” bond with Charly.
Charly loved each parent very much, and they loved her. Due to
Charly’s young age, the family court did not consider any
preference she might have. The family court found that David
and Amy were able to communicate and cooperate in Charly’s
best interests. Further, the family court considered that David
had full-time employment as a civil technician, while Amy was
seasonally employed part-time with a school district. Due to the
distance of the proposed move and the parties’ limited resources,
the family court also considered that any visits would have to be
fewer in number and longer. Amy was therefore given sole
physical custody of Charly, and David was given visitation in
Georgia at his expense. The court also established a holiday
schedule.
On July 21, 2021, the family court issued its order on the
statement of decision, stating it was granting parents joint legal
custody and allowing Amy to relocate with Charly, over whom
Amy would have sole physical custody while in Georgia.
David appeals the order allowing Amy to relocate to
Georgia with Charly, the May 5, 2021 orders, and the April 2,
2021 attorney fees order.
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DISCUSSION
I. Move-away order
The applicable legal standard to address a move-away
request depends on whether the relocating parent has sole or
joint physical custody of the child. A parent having sole physical
custody of a child has a presumptive right to move away. (Fam.
Code,4 § 7501, subd. (a); In re Marriage of LaMusga (2004) 32
Cal.4th 1072, 1078.) The noncustodial parent bears the initial
burden of showing that relocating the child’s residence would be
detrimental to the child, requiring a reevaluation of custody.
(LaMusga, at p. 1078.) If the noncustodial parent makes that
showing of detriment, then the trial court must determine
whether a change in custody would be in the child’s best
interests. (Ibid.) In assessing detriment and prejudice to the
child’s welfare as a result of relocating and whether to modify a
custody order, the family court may consider the child’s interest
in stability and continuity in the custodial arrangement; the
distance of the move; the child’s age; the child’s relationship with
the parents; the parents’ relationship, including their ability to
communicate and cooperate effectively and their willingness to
put the child’s interests above their own; the child’s wishes, if
appropriate; the reasons for the move; and the extent to which
the parents currently share custody. (Id. at p. 1101.)
4 All further undesignated statutory references are to the
Family Code.
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Where parents have joint custody, custody may be modified
if in the child’s best interests. (§ 3087; In re Marriage of Burgess
(1996) 13 Cal.4th 25, 40, fn. 12 (Burgess).) The relocating parent
does not have a presumptive right to change the child’s residence,
and the other parent does not have to show detriment. (Niko v.
Foreman (2006) 144 Cal.App.4th 344, 362.) Rather, the trial
court determines de novo what physical custody arrangement is
in the child’s best interests. (Id. at p. 364.)
Determining whether a parent has sole or joint physical
custody can depend on the parties’ actual practice. In one case,
for example, where the father saw his son as frequently as four or
five days a week (notwithstanding the formal arrangement), the
court said that the parties had joint physical custody. (Brody v.
Kroll (1996) 45 Cal.App.4th 1732, 1735–1736.) In In re Marriage
of LaMusga, supra, 32 Cal.4th at pages 1081 to 1082, the mother
had primary physical custody and the father had visitation for a
few hours two nights per week and overnight visits every other
weekend. The court treated this arrangement as mother having
sole physical custody.
We review custody and visitation orders for an abuse of
discretion. (Burgess, supra, 13 Cal.4th at p. 32.) A trial court
abuses its discretion if there is no reasonable basis on which it
could conclude its decision advanced the child’s best interests or if
the court applied improper criteria or made incorrect legal
assumptions. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) We
review the trial court’s findings of fact for substantial evidence
and its conclusions of law de novo, reversing only if its
application of law to facts is arbitrary and capricious. (In re C.B.
(2010) 190 Cal.App.4th 102, 123.)
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Moreover, on appeal, we presume that a lower court’s
judgment or order is correct, and we indulge all intendments and
presumptions in favor of its correctness. (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) Appellant, here David, had the
burden to affirmatively show error. David, however, did not
submit a reporter’s transcript of the evidentiary hearings relating
to the move-away request. Although we appreciate the expense
and difficulties in navigating the appellate process, especially for
an unrepresented parent, we nonetheless cannot properly
evaluate certain rulings in the absence of all relevant matters,
such as all evidence and testimony before the trial court. Thus,
where “no reporter’s transcript [or settled statement] has been
provided and no error is apparent on the face of the existing
appellate record, the judgment must be conclusively presumed
correct as to all evidentiary matters. To put it another way, it is
presumed that the unreported trial testimony would demonstrate
the absence of error.” (Estate of Fain (1999) 75 Cal.App.4th 973,
992; see Cal. Rules of Court, rules 8.130, 8.134, 8.137.)
Here, there is no clear or apparent error on the face of the
move-away order. The family court appears to have evaluated
various factors, considering, for example, that even though
parents shared custody and David had a close bond with Charly,
Amy was her primary caretaker and, as such, had a stronger
bond with her. (See, e.g., In re Marriage of Bryant (2001) 91
Cal.App.4th 789 [where mother had primary physical custody of
children, trial court did not abuse discretion in finding detriment
to children if custody were shifted to father].) By this, the court
was implicitly finding that remaining in Amy’s primary care
furthered Charly’s interest in stability and continuity and to
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upset that would be detrimental to Charly. Also, David and Amy
were able to communicate and to cooperate to further Charly’s
interests, suggesting that Amy could put Charly’s welfare first,
which would include maintaining a relationship with David.
Also, Amy stated reasons for the move that the court must have
found were legitimate: to be with her fiancé, to take advantage of
employment opportunities, and to give Charly educational
opportunities.
Thus, even if we would have ruled differently, we cannot
find that the family court abused its discretion on this record.
Rather, as a court has observed, “Unfortunately where, as here,
both parents are competent and loving, there is frequently no
solution that is fair to everyone involved.” (In re Marriage of
Bryant, supra, 91 Cal.App.4th at p. 794.)
II. The May 5, 2021 orders
David appears to appeal the May 5, 2021 child support and
temporary spousal support orders, which were also issued after a
short-cause trial or evidentiary hearing at which the parties
testified. We review such orders for abuse of discretion. (In re
Marriage of Hein (2020) 52 Cal.App.5th 519, 529 [child support];
In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 104
[temporary spousal support].) Given the standard of review,
David’s failure to provide the reporter’s transcript from the
hearing again prevents us from performing an adequate review.
In any event, David’s contention regarding the May 5, 2021
orders appears to be that the family court made its prior August
18, 2019 order regarding child custody final. It is unclear what is
the nature of David’s specific argument, and therefore the basis
for reversal is not apparent.
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III. Attorney fees order
David states in his opening brief that he is appealing from
the attorney fees order issued on April 2, 2021. Although such an
order is appealable (In re Marriage of Tharp (2010) 188
Cal.App.4th 1295, 1311), David did not identify the order in his
notice of appeal. Where several judgments or orders are
separately appealable, each appealable judgment or order must
be expressly specified, in a single notice of appeal or multiple
notices of appeal, to be reviewable on appeal. (Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.)
In any event, in a family law matter, a court may order
payment of attorney fees and costs based on “disparity in access
to funds to retain counsel” and “ability to pay.” (§ 2030,
subd. (a)(2).) Ordering payment of attorney fees and costs helps
ensure each party has access to legal representation to preserve
each party’s rights. (§ 2030, subd. (a)(1).) A trial court has
discretion in fashioning an attorney fees award (In re Marriage of
Tharp, supra, 188 Cal.App.4th at p. 1313), and, on appeal, we
review an attorney fees award for an abuse of discretion. (In re
Marriage of Ciprari, supra, 32 Cal.App.5th at pp. 111–112).
Given the absence of the record of the evidentiary hearing, David
has not sustained his burden of showing such an abuse of
discretion.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
KIM, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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