Marriage of Bischler CA4/1 ( 2013 )

Filed 2/26/13 Marriage of Bischler CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of STACIA M. and
NEIL E. BISCHLER.
D061894
STACIA M. BISCHLER,
Respondent, (Super. Ct. No. D475533)
v.
NEIL E. BISCHLER,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Robert C.
Longstreth, Judge. Affirmed.
Neil Bischler appeals from an order denying his motion to modify a child custody
order and allow his children to move from San Diego County to live with him in Illinois.
He argues the trial court (1) abused its discretion by failing to consider or make express
findings on various issues and making several improper findings and (2) violated his due
process rights by prejudging the case. We reject these contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Neil Bischler (Father) and Stacia Bischler (Mother) separated in 2000 and were
divorced in 2003.1 In a final custody order, Mother was given physical custody of their
three children and Father was given visitation. The children have resided primarily with
Mother since the parties' separation in May 2000, and have stayed with Father in his
home in Illinois during school breaks.
On August 5, 2011 (when the children were ages 17, 13, and 12), Father filed a
motion to modify the child custody order. Father requested that the court change the
order to award him physical custody of the three children and allow the children to live
with him and his current wife and her children in Illinois. Father alleged that Mother was
neglecting the children; the children were in an unstable living situation and were
suffering emotionally and academically; and it was in the children's best interests to
reside with him.
The hearing on Father's motion was held on January 12, 2012. Both parties were
represented by counsel; Mother appeared and Father was available telephonically. By the
time of the hearing, the parties' eldest child was 18 years old and accordingly she was no
longer part of the custody proceedings. The other two children were ages 14 and 13. The
court was presented with declarations from Father and several other individuals in
1 Mother did not file a respondent's brief in the current appeal, and the appellate
record designated by Father is sparse. To assist with our evaluation of Father's
contentions, we have taken judicial notice of the superior court file and have reviewed it.
(Evid. Code, § 452, subd. (d).)
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support of Father; testimony from Mother; testimony from the parties' 14-year-old son
(Son); and a report and testimony from a Family Court Services (FCS) counselor.
In his declaration Father stated that he has had little contact with Mother because
she instructs the children to contact him on her behalf. Since December 2008, Mother
and the children had been living with Mother's parents (the grandparents). Father had
earlier learned that the children's uncle, who also lived at the residence, might be using
drugs. Father also said that Mother had moved out of the grandparent's residence without
the children to live with her boyfriend; she only saw the children about every other
weekend; and the children felt Mother had abandoned them. He claimed Mother was
neglecting the children by failing to provide them with supervision and emotional and
financial support.2
Father stated the children's living situation was causing them to suffer emotional
distress, which was reflected in their failing grades at school and in their engagement in
altercations and aggressive behavior at school and home. He presented evidence that
during the previous school year all three children had failing grades, and Son was placed
on an Individual Educational Plan (IEP) and Mother had not notified Father of this.
Father also submitted declarations from individuals who attested to Father's close,
positive relationship with his children; his attention to their needs; and his loving, stable
2 To corroborate his claims, Father submitted a declaration from a family member
(apparently related to Father) who stated the children had told her about their
unhappiness with their current living situation, including that they felt abandoned by
Mother; Mother had not been living with them at the grandparents' home for over a year;
Mother at most visited them one time per month; and they were concerned about the
uncle living at the home who was using and selling drugs.
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home environment. He proposed that the parenting plan be reversed so that the children
would reside primarily with him and would visit Mother during school breaks.
Responding to Father's claims, Mother denied that she moved in with her
boyfriend and left the children to live with her parents. Mother stated that she and the
children lived with her parents for almost three years. Mother had no knowledge or
suspicion that her brother was using drugs. On some weekends Mother stayed at her
boyfriend's home, and the children usually came with her unless she and her boyfriend
were going out of town. She never moved in with her boyfriend and all of her belongings
remained at her parents' home. Mother and her boyfriend had now purchased a home,
and they were living there with Mother's children and the boyfriend's children. Mother
stated that Father's claim that the children felt abandoned by her was "pure fabrication."
Mother acknowledged the children had failed classes during the previous school
year, but stated their academic performance had improved during the current school year.
The older daughter was going to graduate from high school in June, and the younger
daughter was getting A's and B's and maybe one C. Son has a processing deficit and
focusing problem that have been addressed through an IEP; he is receiving after-school
tutoring; Mother works with him constantly to help him with his studies; and she
pressures him to do his homework and to get at least C's. Mother did not tell Father
about Son's IEP because Father had never participated in decisions about the children.
Mother believes Son's maturity level is below his age level; i.e., at the level of an 11- or
12-year-old. Mother stated she and her boyfriend provide a stable, enjoyable home
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environment for the children. She denied that the children were aggressive or getting into
altercations.3
Mother testified that Father is a long haul truck driver, which requires him to
travel long distances and causes him not to be home three to four or more nights per
week. Father told the FCS counselor that he is on the road about 25 days each month for
five days at a time; however, when the children are in his care he does not travel outside
the county and is home every evening.
Son testified that he had a good relationship with his father, he talked to him
regularly, and they had a good summer visitation. Son testified he wanted to live with
Father, explaining that he did not remember having a birthday or Thanksgiving with
Father. He stated he would miss his sisters if they stayed in California. Regarding his
grades, Son testified that the last school year he failed all of his classes. However, he had
now changed schools; he was receiving after-school tutoring; his grades were improving;
and Mother helped him with his school work and pressured him to get it done.
The FCS counselor recommended no change in the custody order. The counselor
conducted a conference with both parents in November 2011, with Father participating
telephonically. The counselor reviewed the information provided by the parties,
including the children's living arrangements with Mother, and recommended that Mother
continue to provide the primary residence. The counselor took into consideration the
children's ages, the parenting schedule practiced by the parties, the fact Mother has been
3 Mother stated there was one incident when Son pushed another student when he
was in sixth grade, and he is now in eighth grade.
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the primary care provider for the children since the parents separated in 2000, and the
absence of any information from Father that would warrant a change in custody. The
counselor did not personally interview the children. When queried about this at the
hearing, the counselor explained that no one requested that the children be interviewed
about their preferences, and unless there were safety concerns it was not her practice to
interview children. The counselor also recommended that Mother be ordered to send to
Father on a monthly basis documents related to the children's health and school
performance, including report cards and parent-teacher conference reports.
The trial court denied Father's move-away request and adopted the FCS
counselor's recommendations, including regarding the ongoing transmission of school
documents by Mother to Father. When making its oral ruling at the hearing, the court
commented that Mother had intervened with the children's academic problems and their
grades were improving; Father had not presented any evidence about what school the
children would attend or what resources would be available in Illinois; and Father had not
presented evidence about whether he was "going to be around." The court also stated that
it was undisputed that Son expressed a preference to live with Father, and the court took
this preference into account. However, the court stated it did not "find there was a whole
lot behind the preference," and Son's expressed preference was outweighed by the fact
that if he was sent to Illinois, the siblings would be separated.
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DISCUSSION
I. Contention that Trial Court Abused Its Discretion
Father argues the trial court abused its discretion in denying his move-away
request because it failed to mention or make findings concerning a variety of relevant
evidentiary items and factors. He contends the court failed to make findings on such
matters as the instability reflected in the children's failing grades and Mother's leaving the
children in the care of the grandparents; the FCS counselor's failure to interview the
children; and the fact that Mother used the children to communicate with Father and
failed to inform Father about Son's IEP.
Preliminarily, we note that when it made its oral ruling, the trial court expressly
referred to the issue of the children's grades and set forth its consideration of this matter.
In any event, to the extent the court did not address the other matters raised by Father on
appeal, he has not shown error in this regard. If a party wants the trial court to make
explicit findings on particular issues, he or she must request a statement of decision on
these issues. (Fam. Code, § 3022.3; In re Marriage of Hebbring (1989) 207 Cal.App.3d
1260, 1274; Hogoboom & King, Cal. Practice Guide, Family Law (2012 Rutter Group) ¶
17-405, p. 17-102.)4 A party's failure to request a statement of decision generally forfeits
an appellate challenge based on the lack of express findings. (In re Marriage of Ditto
4 Subsequent unspecified statutory references are to the Family Code. Section
3022.3 states: "Upon a trial of a question of fact in a proceeding to determine the custody
of a minor child, the court shall, upon the request of either party, issue a statement of the
decision explaining the factual and legal basis for its decision pursuant to Section 632 of
the Code of Civil Procedure."
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(1988) 206 Cal.App.3d 643, 647; see In Marriage of Hebbring, supra, 207 Cal.App.3d at
p. 1274.) Absent a request for specific findings, it will be presumed on appeal that the
trial court found all facts necessary to support the judgment. (In re Marriage of LaMusga
(2004) 32 Cal.4th 1072, 1093; In re Marriage of Sabine & Toshio M. (2007) 153
Cal.App.4th 1203, 1219; In re Marriage of Hebbring, supra, 207 Cal.App.3d at p. 1274.)
After the trial court made its oral ruling denying Father's move-away request, the
court directed Father to prepare the court's order. Father agreed to do so, and Father
prepared a written order denying the move-away request in general terms. Father never
requested specific findings on an issue and never requested a statement of decision.
Under these circumstances, Father has not shown the trial court abused its discretion by
failing to make findings on any particular points now raised by Father on appeal.
Father also raises several challenges that essentially attack the court's ruling on its
merits. Father asserts the court erroneously found that if it granted the move-away
request based on Son's testimony that he wanted to live with Father, it would have to split
up the siblings. Father contends this reasoning was improper because Father had
requested that all three children move with him, and the court erroneously "assumed the
[move-away] request was for just one child."
Contrary to Father's assertion, the record shows the court understood the move-
away request was for all the children. The materials provided to the court (including
Father's order to show cause, Mother's opposition pleadings, and the FCS counselor's
report) refer to the parties' three children, state that Father was requesting physical
custody of the children, and say nothing to suggest that Father was requesting physical
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custody only of Son. We presume the court read and understood these materials. (Evid.
Code, § 664 ["It is presumed that official duty has been regularly performed."].) At the
hearing Father's counsel told the court that Father wanted "the two remaining minor
children" to be in Father's primary care and with school-break visitation to Mother.
When ruling to adopt the FCS counselor's recommendations, the court stated that it was
excluding the older daughter because she was now 18 years old. The court's written
order after the hearing states, "The Court denies Respondent's request to have the
children move to Illinois." There is nothing in the record to support Father's contention
that the court thought Father was solely seeking physical custody of Son.
Further, absent a showing that the other two children would or should go to live
with Father, the trial court could properly consider that an order granting Son's preference
would separate the siblings. There was no evidence indicating that the older daughter (an
adult at the time of the move-away hearing) intended to elect to live with Father. As to
the younger daughter, the record supports the court's ruling that the custody order should
not be changed to require her to move to Illinois. When a noncustodial parent seeks to
change a permanent physical custody order, "the noncustodial parent has a substantial
burden to show that ' "some significant change in circumstances indicates that a different
arrangement would be in the child's best interest.". . .' " (In re Marriage of LaMusga,
supra, 32 Cal.4th at p. 1088; In re Marriage of Brown & Yana (2006) 37 Cal.4th 947,
956.) Absent such a showing, the court " 'should preserve the established mode of
custody' " so as to " 'protect[] stable custody arrangements.' " (LaMusga, supra, at p.
1088.)
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Father's request for a change in custody was primarily premised on Mother's
failure to live with the children at the grandparents' home and the children's failing
grades. Mother presented evidence showing that she never left the children to live with
her boyfriend; the children were currently living with her in a home she has purchased
with her boyfriend; and the children's academic situation is being addressed and has
improved. The trial court was entitled to credit this information and to reject Father's
assertion that it was in the children's best interests to change the long-standing physical
custody arrangement.
Father also contends the court erroneously found there was no evidence he would
be able to care for the children due to his work schedule. He contends he and his wife
submitted declarations "stating otherwise[,]" and Mother did not provide any evidence
indicating his work schedule would make him unable to care for the children. We
presume Father is referring to the trial court's comment at the hearing that Father did not
show whether he was "going to be around," which appears to be a reference to Father's
absence from his home due to his truck-driving job. Father has not cited to any evidence
(in the declarations he submitted or otherwise) specifically showing how the children
would be cared for in Illinois.
In any event, even assuming arguendo there was no basis for the trial court to infer
Father would not be able to provide proper care for the children if they resided primarily
with him, the court's comment about Father's absence from the home does not show it
abused its discretion in denying the move-away request. Father was seeking to
significantly alter the custodial arrangement that had been in place for almost 12 years,
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and he bore a substantial burden to justify this change. We will not upset the trial court's
discretionary ruling on this issue unless "there is no reasonable basis upon which the trial
court could conclude that its decision advanced the best interests of the child." (In re
Marriage of Melville (2004) 122 Cal.App.4th 601, 610.)
As set forth above, the court's decision was supported by the showing that the
children were now living on a full-time basis with Mother in their own home and their
academic needs were being addressed. Further, the court properly considered Son's
preference to live with Father (§ 3042), and could reasonably reject Son's request given
Mother's testimony about his level of maturity, the existing IEP addressing his special
academic needs in the current placement and the lack of evidence concerning resources
available in Illinois, and the bond between Son and his two sisters who would not be
moving to Illinois.5 The court reasonably found there were no changed circumstances
warranting a change in the custody order, and we are satisfied the court would have
reached the same conclusion even if it had not considered Father's absence from the
home due to work obligations. (See People v. Price (1991) 1 Cal.4th 324, 492 [reversal
5 Section 3042, subdivision (a) states: "If a child is of sufficient age and capacity to
reason so as to form an intelligent preference as to custody or visitation, the court shall
consider, and give due weight to, the wishes of the child in making an order granting or
modifying custody or visitation."
The section also provides that a child 14 years of age or older should be permitted
to testify unless the court finds it is not in the child's best interests; younger children may
be permitted to address the court if appropriate; if a child is precluded from testifying the
court should provide alternative means of obtaining input from the child; and a child is
not required to express a preference or provide input. (§ 3042, subds. (c)-(e), (g).)
This provision does not require the court to accede to a child's preference, but only
requires the court to consider it and give it due weight. (In re Marriage of Mehlmauer
(1976) 60 Cal.App.3d 104, 110.)
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not warranted absent reasonable probability court would have reached different result had
it realized one of its reasons was erroneous]; see generally In re J.S. (2011) 196
Cal.App.4th 1069, 1078.)
II. Contention that Trial Court Prejudged the Case and Denied a Full Hearing
Father argues his due process rights were violated because prior to the conclusion
of his case, the trial court prejudged and decided the move-away issue and dissuaded his
counsel from fully presenting his case. In support, he cites a comment by the trial court
during his counsel's closing argument where the court stated: "I think it's pretty clear-cut
on the move-away." According to Father, his counsel then rested his case without
finishing the closing argument because it was apparent the court had already decided the
move-away issue.
Father's contention that the trial court prejudged the move-away issue and caused
his counsel to prematurely rest his case is speculative. Before making the comment that
the move-away issue was "pretty clear-cut" the court summarized the evidence that it
viewed as supporting this conclusion. Thus, it is apparent the court's statement about its
assessment of the issue was based on the evidence, not on a prejudgment independent of
the evidence. Further, although Father's counsel's closing argument was short and he
rested his case immediately after the court stated its view on the merits, there is nothing
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in the record suggesting the court would have prevented further argument had counsel
wished to continue.6
Father has not shown the trial court violated his due process rights.
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
HUFFMAN, J.
6 The colloquy between Father's counsel and the court was as follows: "[Father's
counsel]: . . . With regards to the move-away . . . my client has provided evidence as to a
substantial change in circumstances, namely, the drop in the children's grades. Granted,
they may be going up but all we have is Mother's testimony. [¶] The Court: And the
child's testimony. And nothing on the other side. I have no reason to disbelieve that.
They both say Mother was intervening and got tutoring and things are better. And we
have nothing on the other side what will happen when they get to Illinois. What school
they will go to. What resources are there going to be. Is Dad going to be around. All of
those things. I think it's pretty clear-cut on the move-away. [¶] [Father's counsel]: I
rest. [¶] The Court: Okay."
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