Johnston-Rossi v. Rossi ( 2023 )

Filed 1/30/23; Certified for Publication 3/1/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KERRY ANN JOHNSTON- B318522
ROSSI,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BD542090)
v.
PAUL ROSSI,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County. Steven A. Ellis, Judge. Reversed.
Summers Levine & Kretzmer, Michael J. Kretzmer;
Greines, Martin, Stein & Richland, Robert A. Olson, Cynthia
Tobisman, Eleanor S. Ruth, Tina Kuang; Hall Family Law and
Stefanie Hall for Plaintiff and Appellant.
Arbogast Law, David M. Arbogast; Ovando Bowen and
Chumahan B. Bowen for Defendant and Respondent.
**********
Plaintiff and appellant Kerry Ann Johnston-Rossi (mother)
appeals from the postjudgment order modifying the parenting
plan between her and her former husband, defendant and
respondent Paul Rossi (father) with respect to their two minor
children. Mother contends the family court abused its discretion
in ordering the children to participate with father in a therapy
program operated by Family Bridges which mandated no contact
with mother for a minimum of 90 days.
We agree the court abused its discretion and reverse the
order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father married in 2004. During their marriage,
they had two children, a daughter B.R. and a son D.R. Mother
and father separated after six years of marriage, and their final
judgment of dissolution was entered on October 16, 2012. At the
time of dissolution, both mother and father lived in Los Angeles,
and the court ordered joint legal and physical custody of the
children.
In April 2015, mother obtained a domestic violence
restraining order against father and an order allowing her to
relocate with the children to Canada. The court ordered that
B.R. and D.R. “shall reside” with mother “at all times except for
the custodial parenting time awarded to [father].” Father was
given time with the children during breaks in their school year,
and he shared alternating holidays with mother, in addition to
regular weekly visitation via telephone or videochats (e.g.,
FaceTime). Mother subsequently was allowed to relocate with
the children to New York, their current state of residence. B.R.
and D.R. are now in high school.
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The Orders by Judge Dianna Gould-Saltman
After mother relocated with the children to New York, both
mother and father sought postjudgment modifications to the
parenting plan and related orders. In the fall of 2020, Judge
Dianna Gould-Saltman heard several days of testimony,
including from mother, father, B.R., Dr. Stan Katz, and Jayne
Roberman.
Dr. Katz, who was appointed to conduct child custody
evaluations, testified he felt additional monitored visitation with
father in New York was warranted and that the family would
also benefit from the appointment of a parenting coach. In
discussing different family therapy programs that might be
considered, Dr. Katz told the court he was familiar with and
approved of a program run by Rebecca Bailey. Dr. Katz said her
program was flexible, could be customized to fit the specific needs
of the family, and allowed both parents to participate. Dr. Katz
was less familiar with the Family Bridges program, but said he
understood it had success in cases of severe parental alienation.
He described the program as “the most extreme” because it
required removal of the child from the custody of the parent with
whom the child was aligned (in this case, mother). Dr. Katz said
Family Bridges “doesn’t allow for the aligned parent to be
involved at all.” Dr. Katz believed the Family Bridges program
lasted about five to seven days which was usually followed by a
period of time where the aligned parent was not allowed any
contact with the child, except potentially therapeutic contact.
Dr. Katz was not in favor of restrictive programs like Family
Bridges unless “nothing else ha[d] worked” to help rebuild a
child’s relationship with an alienated parent. He said he did not
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think such a program was necessary for B.R. and D.R. and hoped
it would not become necessary.
Ms. Roberman, who was appointed to provide reunification
therapy for the family, believed both children were resistant to
spending time with father, and that a team approach was
warranted. She told the court “the family needs a more
intensive, family-focused therapy to include relationships the
children have with both parents, addressing effective means for
the parents to resolve conflict and more effectively communicate.”
Mother and father each presented an expert who critiqued
the recommendations made by Dr. Katz.
After the hearing, Judge Gould-Saltman issued an order
requiring additional counseling for the children. Because of the
pandemic, the court allowed the sessions to be completed
remotely. The court also awarded father additional visitation
time with the children in New York on the first and third
weekends of each month. Because the pandemic was making
travel and contact between different households difficult in the
winter of 2020, the court ordered that a review hearing be set to
monitor whether the parties were complying with its order and to
see how father’s visitation and the children’s therapy sessions
were going.
The review hearing was held July 22, 2021. The court
heard testimony from B.R., mother, father, and father’s
girlfriend, primarily focused on how father’s visits with the
children in New York had been going since the last hearing.
Father had been unable to make several of the visits. The visits
that had occurred had not gone well, but there had been some
enjoyable time spent bike riding and visiting a museum.
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On August 17, 2021, Judge Gould-Saltman issued a written
order that addressed various matters. As relevant here, the court
ordered that father was allowed to have a week vacation time
during the summer with the children in Los Angeles. Further,
the court ordered that father was permitted to enroll himself and
the children in “a week-long program such as Family Bridges or
Turning Point” and in the event he chose to do so, father was
entitled to have “the children during the week-long program” in
Los Angeles in addition to his one week of summer vacation time
with them in Los Angeles.
Mother filed an appeal from the August 17, 2021 order
which she subsequently dismissed.
The Order by Judge Steven A. Ellis
About a month later, father filed a new motion requesting
further orders modifying the parenting plan in order to allow him
uninterrupted time with B.R. and D.R. to complete both the in-
person portion of the Family Bridges program and the “Family
Bridges required post aftercare.” According to father’s
declaration, the program starts with a four-day in-person therapy
component followed by a minimum of 90 days of “aftercare” which
would require no contact between the children and mother.
Father submitted paperwork from Family Bridges confirming the
scope of the program. Father testified he was advised by
Dr. Randy Rand of Family Bridges that he could not enroll in the
program without a court order requiring the children’s
participation in the 90-day aftercare portion of the therapy.
Father said he had no interest in taking custody from mother and
“fully expect[ed] for custody to return to 50/50 in [New York] once
the program is successfully completed.”
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Mother opposed father’s request for an order requiring the
children to participate in the Family Bridges program and
requiring them to be removed from her custody for 90 days or
more. Mother filed notice, pursuant to Family Code section 217,
of her intent to present live testimony at the hearing, including
the testimony of B.R. and D.R. Mother contended that, as
teenagers, they were entitled to testify about the prospect of
being ordered out of their home and excluded from talking to
their mother.
The hearing on defendant’s motion was held on
November 8, 2021 before a different judge, Judge Ellis. Judge
Ellis denied mother’s request to present witnesses. The court
found good cause to deny an evidentiary hearing on the basis that
Judge Gould-Saltman, in her August 2021 order, had “already
resolved” the substantive issues regarding the Family Bridges
program. The court then heard argument from the parties on
how the Family Bridges program could be completed without
interfering with the children’s schooling and whether it was
feasible for the program to be completed in Los Angeles.
On December 22, 2021, Judge Ellis issued a nine-page
order allowing father to have custody of the children for the time
necessary to complete the Family Bridges program and outlining
alternative procedures depending on whether the program was
completed in Los Angeles or New York. Judge Ellis ordered that
participation in the Family Bridges program was not to interrupt
the children’s regular schooling in New York. If the program,
including the minimum 90-day aftercare portion, could not be
completed in Los Angeles during the summer break, then it
would have to be completed in New York with father arranging
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for a residence in New York during the school year where he and
the children would reside.
Judge Ellis found it was in the best interest of the children
to have no contact with mother during the Family Bridges
program unless the parties otherwise agreed or by further order
of the court. “Contact” was defined to include telephone calls,
text messages, letters and all forms of digital contact or
correspondence. Judge Ellis ordered that once the Family
Bridges program was completed, B.R. and D.R. “will be able to
move back with mother and the prior custody order will be
reimplemented subject to any further order of the court.”
This appeal followed. We granted mother’s writ of
supersedeas, staying the order pending resolution of this appeal.
DISCUSSION
1. Applicable Law
The overarching concern of California’s child custody and
visitation law is the best interest of the child. (Montenegro v.
Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) Where, as here,
there is a final custody determination in place, a postjudgment
request to modify custody requires the moving party to
demonstrate not just the best interest of the child but changed
circumstances. (Id. at p. 256.) “Under the so-called changed
circumstance rule, a party seeking to modify a permanent
custody order can do so only if he or she demonstrates a
significant change of circumstances justifying a modification.”
(Ibid., italics added.)
Once a final custody determination has been made, “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
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primary caretaker—weigh heavily in favor of maintaining
ongoing custody arrangements.” (In re Marriage of Burgess
(1996) 13 Cal.4th 25, 32–33.) The changed circumstances rule
“ ‘fosters the dual goals of judicial economy and protecting stable
custody arrangements.’ ” (Montenegro, supra, 26 Cal.4th at
p. 256; accord, In re Marriage of Brown & Yana (2006) 37 Cal.4th
947, 955–956 & In re Marriage of McKean (2019) 41 Cal.App.5th
1083, 1089.)
Unlike postjudgment modifications of custody orders,
postjudgment modifications of visitation and the parenting plan
are governed by the statutory best interest of the child test, and
the changed circumstance rule does not apply. (In re Marriage of
Lucio (2008) 161 Cal.App.4th 1068, 1077; accord, In re Marriage
of Furie (2017) 16 Cal.App.5th 816, 827 [the appropriate standard
for ordering a modification in parenting authority that does not
rise to the level of a change in custody is the best interests test].)
Relevant factors for the court to consider in determining the best
interest of the child include the health, safety and welfare of the
child, any history of physical or substance abuse by either parent,
and the nature and amount of contact with each parent. (Fam.
Code, § 3011, subd. (a).)
We review custody and visitation orders under the
deferential abuse of discretion test. (Montenegro, supra,26 Cal.4th at p. 255; accord, In re Marriage of Burgess, supra,13 Cal.4th at p. 32 & Chalmers v. Hirschkop (2013)
213 Cal.App.4th 289, 299.) The “precise measure” of whether the
family court abused its discretion is whether the court “could
have reasonably concluded that the order in question advanced
the ‘best interest’ of the child.” (In re Marriage of Burgess, at
p. 32.) To the extent mother’s appeal challenges the trial court’s
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factual findings, our review is governed by the substantial
evidence test. (Chalmers, at p. 300.)
2. The Family Court Abused Its Discretion in Ordering
the Children to Participate in the Family Bridges
Program with Father.
Mother contends Judge Ellis erred by failing to apply the
changed circumstance rule. She says father did not show a
significant change in circumstances that warranted B.R. and
D.R. being removed from her custody to participate in the Family
Bridges program, and the court abused its discretion by granting
father’s modification request without requiring such a showing.
She also claims the court abused its discretion in denying her
request to present testimony at the hearing, and that the record
does not contain substantial evidence demonstrating the
modification was in the children’s best interest.
Father argues Judge Ellis, in ordering the Family Bridges
program in December 2021, was merely implementing Judge
Gould-Saltman’s order of August 17, 2021. He contends we
should affirm Judge Ellis’s order but also says that given the
passage of time, we should remand for further proceedings to
allow the family court the opportunity to reconsider what type of
program is in the best interests of the children at this time.
The practical effect of the December 2021 modification
order was to remove B.R. and D.R. from mother’s custody for at
least 90 days. The order concedes as much by concluding with
the language that after completion of the Family Bridges
program “the prior custody order will be reimplemented subject
to any further order of the court.” Judge Ellis ordered this
modification without any evidence of changed circumstances.
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Nothing in the record supports the court’s finding that this
significant disruption to the children’s established living
arrangement with mother was in their best interest. The order
requires the children, for a minimum period of three months, to
be moved out of their home and either moved across the country
to Los Angeles if the Family Bridges program can be completed
during a school break, or moved into a new home in New York
with father until the program can be completed there during the
school year. The children would not be allowed any contact with
mother during this disruptive period.
The order was based on the incorrect assumption that
Judge Gould-Saltman had already ordered the children to
participate in the Family Bridges program. Judge Gould-
Saltman’s order did not direct the children to participate in
Family Bridges, or in any other program that might last more
than one week. The order granted father one week of vacation
time with the children in Los Angeles during their summer
break, and also permitted father to enroll himself and the
children in “a week-long program such as Family Bridges or
Turning Point.” In the event father chose to enroll himself and
the children in a conjoint therapy program in Los Angeles, the
court ordered that he was entitled to have “the children during
the week-long program” in addition to his one week of summer
vacation with the children. (Italics added.)
The fact Judge Gould-Saltman was apparently under the
mistaken impression the Family Bridges program was one of the
therapy programs that could be completed in one week
underscores the fact that all of the details related to Family
Bridges had not been fleshed out and resolved by Judge Gould-
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Saltman, let alone the factual issues related to removing the
children from mother’s custody for a minimum of 90 days.
In denying mother’s request for an evidentiary hearing,
Judge Ellis prevented mother from offering evidence relevant to
the propriety of ordering the children to participate in a 90-day
Family Bridges program during which they would be deprived of
all contact with mother. The court’s finding that good cause
supported the denial of an evidentiary hearing because
Judge Gould-Saltman had already resolved the substantive
issues regarding the Family Bridges program is not supported by
the record as we already explained above.
Without evidence that it is in the best interest of the
children to remove them from mother’s custody for a period of at
least 90 days in order to participate in the Family Bridges
program, the court abused its discretion in issuing its order of
December 22, 2021. (In re Marriage of Burgess, supra, 13 Cal.4th
at p. 32.)
We deny mother’s requests to take judicial notice of records
related to father’s 2020 felony conviction for a violation of Penal
Code section 245, subdivision (a)(1) as the records are not
relevant to our decision.
DISPOSITION
The order of December 22, 2021 ordering the children to
participate in the Family Bridges program is reversed. Plaintiff
and appellant is awarded costs on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J. VIRAMONTES, J.
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Filed 3/1/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KERRY ANN JOHNSTON- B318522
ROSSI,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BD542090)
v. ORDER CERTIFYING
OPINION
PAUL ROSSI, FOR PUBLICATION
Defendant and Respondent. [No change in judgment]
THE COURT:
The opinion in the above-entitled matter filed on
January 30, 2023, was not certified for publication in the Official
Reports. For good cause, it now appears that the opinion should
be published in the Official Reports and it is so ordered.
There is no change in the judgment.
____________________________________________________________
STRATTON, P. J. GRIMES, J. VIRAMONTES, J.