K.B. v. G.B. CA3 ( 2014 )

Filed 6/25/14 K.B. v. G.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
K. B., C072289
Respondent, (Super. Ct. No. 11FL03552)
v.
G. B.,
Appellant.
As part of its judgment in this parentage action, the trial court determined (among
other things) that if G. B., the birth mother to twins P. and P., moves to Idaho, the twins’
other mother, K. B., should have primary physical custody of the children. On appeal,
G. B. contends the trial court improperly based its custody decision on G. B.’s genuine
belief (prior to the court’s parentage decision) that K. B. was not a legal parent to the
twins and on G. B.’s legitimate opposition to the parentage action. G. B. also contends
the trial court failed to consider all of the relevant factors governing the custody
determination because the court did not address the detriment to the twins if G. B. moves
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to Idaho without them and instead focused exclusively (and improperly) on the impact
the move would have on K. B.’s relationship with the twins if they were to go with G. B.
Finally, G. B. contends the trial court’s finding that she would frustrate K. B.’s
relationship with the twins is not supported by substantial evidence.
Finding no merit in any of these arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
G. B. and K. B. began dating in the spring of 2008 and by the fall were in an
exclusive relationship with each other, although they never lived together. In 2009, they
agreed to do a “shared IVF [in vitro fertilization] cycle,” in which both of them would be
implanted with embryos produced with donor eggs fertilized by donor sperm. G. B. went
first. Two embryos were implanted in her in June 2009, and in July she learned she was
pregnant with twins. As a result, K. B. ultimately changed her mind about undergoing
implantation because she wanted only two children.
The twins, P. and P., were born in February 2010. Both women were involved in
caring for them following their birth, but G. B. was always present.
In October 2010, G. B. ended the couple’s relationship. Although K. B. no longer
stayed overnight at G. B.’s home following their break up, she did continue seeing the
twins daily. In January 2011, G. B. asked K. B. to stop her daily morning visits, and in
March she discouraged K. B. from visiting in the evenings. At that time, K. B.’s visits
occurred primarily on weekends, with visits also on Tuesdays and Thursdays.
In June 2011, K. B. commenced this parentage action. By that time, her visits
with the twins were of limited duration, from minutes up to an hour. When G. B. was
served with the petition, she ceased K. B.’s parenting time altogether. At K. B.’s request,
the court ordered the parties to private mediation. At the first mediation appointment on
June 29, 2011, G. B. told the mediator that she wanted to move to Idaho with the twins.
In August 2011, the court ordered an interim parenting plan. In October 2011, the
mediator issued her report recommending that if G. B. moved to Idaho, K. B. should have
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primary custody of the twins. The mediator’s recommendation was based on her
conclusion that “it would be more detrimental to the children to move to Idaho with
[G. B.] than it would to stay in Sacramento with [K. B.] given the number of adjustments
they would have to make and the loss of their other parent and their familiar
surroundings.”
With a hearing set for late November, K. B. filed a declaration asking the court to
adopt the mediator’s recommendation. She also asked the court to order the parties to
participate in some type of counseling designed to help eliminate conflict in the presence
of the children and to improve communication, or to order that the custody exchanges be
supervised, because G. B. was engaging in conduct at the exchanges that was aimed at
undermining K. B.’s relationship with the twins. The court ordered monitored exchanges
and set the case for trial in March 2012. The trial was later moved to May.
In March 2012, G. B. filed an ex parte motion to curtail K. B.’s parenting time
based on allegations that K. B. was abusing the twins. Child Protective Services
investigated and determined that the allegations of general neglect were unfounded.
The case was ultimately tried over five days between May 3 and June 21, 2012.
On July 5, the court issued a 50-page tentative decision, which was to become the court’s
statement of decision unless either party specified further controverted issues or made
proposals not covered in the tentative decision within 10 days. As pertinent here, the
court determined that K. B. was a presumed parent to the twins and G. B. had not
rebutted the presumption. The court then determined that the parties should share
physical custody of the twins, but if G. B. moved to Idaho, K. B. should have primary
physical custody. Among other things, the court found that while K. B.’s bonds with the
twins did not “measure to the same extent” as G. B.’s bonds with them, G. B. was “the
parent more likely to frustrate, impede, or impair [the other parent’s] parenting time,”
without therapy and counseling, G. B. would “engage in continuing and future behaviors
that will frustrate” “[c]o-parenting collaboration in the joint care and supervision of the
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twins” and K. B.’s “interaction with the twins,” and “were [G. B.] to depart with the
parenting plan she proposes . . . , the children’s relationship [with K. B.] would . . . wither
and die.”1
G. B. filed an “objection” to the tentative decision, asserting that because the court
had found that she had a stronger bond with the twins, the court should allow her to move
with the children and “fashion a plan that would allow for ‘frequent and continuing
contact’ with” K. B. G. B. also argued that there was no evidence that she was not likely
to allow K. B. frequent and continuing contact with the twins once she moved with them
to Idaho.
The court entered its statement of decision, substantially adhering to its tentative
decision, on July 17, 2012, then entered judgment on August 27. G. B. filed a timely
appeal.
DISCUSSION
I
Basic Custody Principles
“In an initial custody determination, the trial court has ‘the widest discretion to
choose a parenting plan that is in the best interest of the child.’ (Fam. Code, § 3040,
subd. (b).) It must look to all the circumstances bearing on the best interest of the minor
child.” (In re Marriage of Burgess (1996) 13 Cal. 4th 25, 31-32.) “In making an order
granting custody to either parent, the court shall consider, among other factors, which
parent is more likely to allow the child frequent and continuing contact with the
1 The mediator testified that G. B. was not “able to offer a concrete [parenting]
plan” if the twins moved with her to Idaho. “She stated that she didn’t think it was
healthy for the children to travel very much or to be on an airplane. She stated that she
could send photos and possibly Skype, and thought that if [K. B.] were able to come to
Idaho for a long weekend, but she did not feel that the children should be separated from
her for more than three nights.”
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noncustodial parent, consistent with [the best interest of the child].” (Fam. Code, § 3040,
subd. (a)(1).)
Where one parent proposes to move with the children, and custody must be
determined in the event the move is completed, relevant factors include “the children’s
interest in stability and continuity in the custodial arrangement; the distance of the move;
the age of the children; the children’s relationship with both parents; the relationship
between the parents including, but not limited to, their ability to communicate and
cooperate effectively and their willingness to put the interests of the children above their
individual interests; the wishes of the children if they are mature enough for such an
inquiry to be appropriate; the reasons for the proposed move; and the extent to which the
parents currently are sharing custody.” (In re Marriage of LaMusga (2004) 32 Cal. 4th
1072, 1101 (LaMusga).)
A proposed move that will cause detriment to the relationship between the
children and the noncustodial parent does not necessarily mandate a change in custody,
“[b]ut it is within the wide discretion of the superior court to order a change of custody
based upon such detriment, if such a change is in the best interests of the children in light
of all the relevant factors.” (LaMusga, supra, 32 Cal.4th at p. 1095.) “The weight to be
accorded to such factors must be left to the court’s sound discretion.” (Id. at p. 1093.)
II
The Trial Court Did Not Improperly Base Its Custody Determination
On G. B.’s Sincere Belief That K. B. Was Not A Legal Parent To The Twins Or
On G. B.’s Legitimate Opposition To The Parentage Action
On appeal, G. B. first contends the trial court improperly “faulted her for her belief
that [K. B.] was not a legal parent to the twins.” Stated another way, G. B. contends the
court abused its discretion by “denying her move-away request” to “punish” her for her
decision “to contest parentage.” We find no merit in these contentions.
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G. B.’s argument is based on the trial court’s findings that she “truly believed she
was protecting her children” by opposing the parentage petition, that she had “a
reasonable basis in fact” for her opposition to the petition, that her “persistence and
parental protectiveness rest[ed] on a genuine belief that she ha[d] been the twins’
exclusive parent,” and that she could not “be entirely faulted” for “jealously--but
maternally--protect[ing] her children and her interest in her children” “until a
determination of parentage.” In effect, as G. B. sees it, the trial court found that up until
the court decided the parentage issue, G. B. sincerely and reasonably believed that K. B.
had no parental rights with respect to the twins, and G. B.’s opposition to the parentage
action was based on that sincere and reasonable belief. From this premise, G. B. argues
that the trial court “punishe[d]” her for her belief by using her belief -- and her resulting
opposition to the parentage action -- as a basis for ruling that K. B. should have primary
custody of the twins if G. B. moved to Idaho.
To the extent G. B.’s argument rests on the bare premise that the trial court ruled
against her because she believed that K. B. was not a parent to the twins and because of
her opposition to the parentage action, we reject that premise. G. B. points to nothing in
the court’s decision that shows the court ruled against her just because of her belief about
K.B’s legal rights or just because she opposed the parentage action. Rather, in ruling that
K. B. should have primary custody of the twins if G. B. moved to Idaho, the trial court’s
primary focus was on its findings: (1) that G. B. was “the parent more likely to frustrate,
impede, or impair [the other parent’s] parenting time”; (2) that without therapy and
counseling, G. B. would “engage in continuing and future behaviors that will frustrate”
“[c]o-parenting collaboration in the joint care and supervision of the twins” and K. B.’s
“interaction with the twins”; and (3) that “were [G. B.] to depart with the parenting plan
she proposes . . . , the children’s relationship [with K. B.] would . . . wither and die.”
Nothing in the court’s decision shows that these findings rested on G. B.’s belief that
K. B. was not legally a parent to the twins or on G. B.’s opposition to the parentage
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action. Certainly G. B. has not shown that the trial court’s findings in these regards were
intended to serve as proxies for G. B.’s belief that K. B. was not a legal parent to the
twins and/or G. B.’s opposition to the parentage action.
To the extent G. B.’s argument implies something more, i.e., that the trial court
improperly ruled against her because of her actions and/or her attitude toward K. B., both
of which were, in turn, motivated by her sincere and reasonable belief that K. B. was not
a parent to the twins -- we reject that argument also. We acknowledge that a parent in
G. B.’s position faces something of a Catch-22. (See People v. Broome (1988) 201
Cal. App. 3d 1479, 1489, fn. 2 [quoting Joseph Heller’s novel of the same name].) On the
one hand, if parent A treats the other party as though she, too, is a parent to the children,
even though parent A sincerely and reasonably believes otherwise, parent A must face the
possibility that her actions will be used against her to establish that the other party is a
legal parent to the children. On the other hand, if parent A acts consistently with her
sincere and reasonable belief that the other party is not a parent to the children, then
parent A must face the possibility that the court will determine that the other party is a
parent anyway and that her actions will then be used against her in determining what
custody arrangement is in the best interest of the children.
While this quandary is real, it cannot be used to limit the trial court’s ability to
fully consider all evidence of what custodial arrangement is in the best interest of the
children pursuant to the Family Code. (See Fam. Code, §§ 3011, 3020, 3040.) Yet that
is essentially what accepting G. B.’s argument would do here. In essence, G. B. (at least
arguably) would have us hold that in making its custody determination the trial court
could not lawfully consider any attitude or actions on her part that were motivated by her
sincere and reasonable belief that K. B. was not legally a parent to the twins. In making a
custody determination, however, the court “must look to all the circumstances bearing on
the best interest of the minor child” (In re Marriage of Burgess, supra, 13 Cal.4th at pp.
31-32) and in particular must consider “which parent is more likely to allow the child
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frequent and continuing contact with the noncustodial parent” (Fam. Code, § 3040, subd.
(a)(1)). How the parents behave toward each other is obviously critical in determining
which parent is more likely to allow the children frequent and continuing contact with the
other parent. (See LaMusga, supra, 32 Cal.4th at p. 1094 [“Clearly, the court must
consider the past conduct of the parents in fashioning a custody order that serves the best
interests of the children”].) Thus, to preclude a trial court from considering one parent’s
attitude or behavior toward the other parent just because the first parent’s attitude or
behavior was motivated by a sincere and reasonable belief that the second party was not
actually a parent to the children would necessarily prevent the court from considering
evidence that could be critical to a determination the court is required to make. We
cannot do that.
Because the discretion to determine what custodial arrangements are in the best
interest of the children rests with the trial court, it is up to the trial court to determine
what to make of one parent’s actions and attitudes toward the other parent. Certainly it
could be reasonable in a given case for a trial court, in determining how one parent is
likely to act toward the other parent in the future, to discount the significance of a past
attitude or action that arose from a sincere and reasonable belief that the other parent was
not, in fact, legally a parent to the child. In such a case, for instance, the trial court might
reasonably determine that a parent who initially was uncooperative with the other party’s
assumption of parental duties based on a sincere and reasonable belief that the other party
was not legally a parent to the child would be able to shed that attitude and fully
cooperate with shared parenting following the court’s determination that the other party
was a legal parent. On the other hand, depending on all of the facts and circumstances
presented, it could also be reasonable for a trial court not to discount the significance of
an attitude or action that arose from a sincere and reasonable belief that the other party
was not legally a parent. For example, in such a case the court might determine based on
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all of the evidence before it that the noncooperative parent would likely be unable to shed
her noncooperative attitude despite the court’s determination of parentage.
In either case, it is for the trial court to decide what significance parental conduct
and attitudes have to the determination of what custodial arrangement will be in the best
interest of the child. The rule that G. B. arguably would have us impose here -- that a
trial court determining custody of a child can never consider parental attitudes or conduct
that are premised on a sincere and reasonable belief that the other party is not legally a
parent -- is contrary to the provisions of the Family Code and thus is beyond our power to
create or sanction. The trial court must look to all the circumstances bearing on the best
interest of the child, and the trial court here, by considering G. B.’s attitude and actions
toward K. B., even though they might have arisen from a sincere and reasonable belief
that K. B. was not legally a parent to the twins, did exactly what it was required to do.
No error has been shown.
III
The Trial Court Properly Considered
All Relevant Factors In Making Its Custody Determination
G. B. next argues that the trial court “failed to consider or address all relevant
move-away factors” because the court did not address “the probable detriment to the
children when [G. B.] moves to Idaho and [K. B.] takes primary custody.” Instead,
according to G. B., “the court focused on only one factor: the twin’s relationship with
[K. B.],” which was an abuse of discretion. We disagree.
Proper resolution of this issue requires an understanding of what a party must do
to avoid a reviewing court drawing inferences in favor of the trial court’s decision, so we
begin with that subject. The foundational principle is this: “A judgment or order of a
lower court is presumed to be correct on appeal, and all intendments and presumptions
are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal. 3d
1130, 1133.) That means, for example, that if the record is silent or, if not entirely silent,
9
at least ambiguous as to whether the court considered a particular issue or as to how the
court resolved a particular issue, a reviewing court will normally assume that the court
did consider the issue and, in fact, resolved it in a manner consistent with the result in the
judgment. “When what occurred is conclusively established by the record, the contrary
cannot be presumed. . . . [But] where the record is silent as to what was done it will be
presumed that what ought to have been done was not only done but rightly done.” (Steuri
v. Junkin (1938) 27 Cal. App. 2d 758, 760.)
“[T]he means by which to avoid application of these inferences in favor of the
judgment” can be found in Code of Civil Procedure2 sections 632 and 634 (In re
Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133), as well as in rule 3.1590 of the
California Rules of Court.3 The process begins with the tentative decision. “On the trial
of a question of fact by the court, the court must announce its tentative decision by an
oral statement, entered in the minutes, or by a written statement filed with the clerk.”
(Rule 3.1590(a).) Following the announcement of the tentative decision, a party may
request that the court issue “a statement of decision explaining the factual and legal basis
for its decision as to each of the principal controverted issues at trial.” (§ 632; see also
rule 3.1590(d).) “The request for a statement of decision shall specify those controverted
issues as to which the party is requesting a statement of decision. After a party has
requested the statement, any party may make proposals as to the content of the statement
of decision.” (§ 632; see also rule 3.1590(d)-(e).)
Alternatively, “[t]he court in its tentative decision may: [¶] (1) State that it is the
court’s proposed statement of decision, subject to a party’s objection under (g); [¶]
(2) Indicate that the court will prepare a statement of decision; [¶] (3) Order a party to
2 All further section references are to the Code of Civil Procedure.
3 All further rule references are to the California Rules of Court.
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prepare a statement of decision; or [¶] (4) Direct that the tentative decision will become
the statement of decision unless, within 10 days after announcement or service of the
tentative decision, a party specifies those principal controverted issues as to which the
party is requesting a statement of decision or makes proposals not included in the
tentative decision.” (Rule 3.1590(c).)
Here, the trial court issued a written tentative decision that specified that it would
be the court’s statement of decision unless within 10 days either party “file[d] and
serve[d] a document that specifie[d] controverted issues or ma[de] proposals not covered
in the Tentative Decision.”
When a party has requested that the court prepare a statement of decision and has
specified the controverted issues as to which the party is requesting a statement of
decision and (optionally) made proposals as to the content of the statement of decision,
“the court must . . . prepare and serve a proposed statement of decision and a proposed
judgment on all parties that appeared at the trial, unless the court has ordered a party to
prepare the statement.” (Rule 3.1590(f).) “Any party may, within 15 days after the
proposed statement of decision and judgment have been served, serve and file objections
to the proposed statement of decision or judgment.” (Rule 3.1590(g).)
Where, as here, the trial court proceeds under rule 3.1590(c)(4) and directs that the
tentative decision will become the statement of decision unless, within 10 days after
announcement or service of the tentative decision, a party specifies those principal
controverted issues as to which the party is requesting a statement of decision or makes
proposals not included in the tentative decision, the rules are not explicit as to how the
matter is to proceed if, in fact, a party does specify principal controverted issues or make
proposals. The obvious implication is that in the event a party does either or both of
those things, the tentative decision does not automatically become the statement of
decision. And although the rules are not explicit, we presume that the court must address
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the principal controverted issues specified and/or the proposals made just as if the court
were responding to a request to prepare a statement of decision in the first instance.
What is clear, however, is that by whatever path a statement of decision comes
into being, a party who finds the statement of decision deficient or ambiguous in any way
must bring that deficiency or ambiguity to the attention of the trial court to prevent a
reviewing court from drawing inferences in favor of the judgment on that particular
subject. This requirement flows from section 634, which provides as follows: “When a
statement of decision does not resolve a controverted issue, or if the statement is
ambiguous and the record shows that the omission or ambiguity was brought to the
attention of the trial court either prior to entry of judgment or in conjunction with a
motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion
under Section 657 or 663 that the trial court decided in favor of the prevailing party as to
those facts or on that issue.” As the Supreme Court summarized the point in Arceneaux,
“a party claiming deficiencies [in a statement of decision] must bring such defects to the
trial court’s attention to avoid implied findings on appeal favorable to the judgment.” (In
re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134.) The court also made clear that
“[a] party who asks only that the court explain its tentative decision by requesting a
statement [of decision] as to a particular issue obviously has not fulfilled this
requirement.” (Ibid.)
Here, following the court’s issuance of its tentative decision, G. B. filed a
document she called an “objection.” In that document, she stated that she had two areas
of primary concern, one substantive and one procedural. Her procedural concerns have
no bearing on the matter presently before us, so we focus on her substantive concerns.
Essentially, G. B. argued that the court’s decision to give K. B. primary custody of the
twins if G. B. moved to Idaho was “in violation of law.” According to G. B., having
found that the twins’ bonds to G. B. were stronger than their bonds to K. B., the court
was bound to grant custody to G. B. in the event she moved because granting custody to
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K. B. would “[c]learly” not be “in the children’s best interest.” G. B. specifically argued
that “upon finding that the children were bonded more with [G. B.] than with [K. B.], it
became the Court’s duty to fashion a plan that would allow for ‘frequent and continuing
contact’ with [K. B.] It should not have developed a plan which, in effect, denies [G. B.]
the right to move and is not in the children’s best interest.”4
Following receipt of G. B.’s objection, the court issued its statement of decision.
So far as the record shows, G. B. did not offer any other objections to the statement of
decision in the trial court thereafter.
With the foregoing in mind, we turn back to G. B.’s arguments that the trial court
“failed to consider or address all relevant move-away factors” because the court did not
address “the probable detriment to the children when [G. B.] moves to Idaho and [K. B.]
takes primary custody” and instead “focused on only one factor: the twin’s relationship
with [K. B.]” Recognizing that we might be inclined to draw inferences against her
relating to these arguments, G. B. asserts that “[t]he doctrine of implied findings does not
apply here” because she “timely objected to the decision on this ground.” We disagree.
G. B. contends that in objecting to the tentative decision, she “not[ed] that the
court must consider all factors under LaMusga.” That contention is simply false. G. B.
did not mention LaMusga in her objection to the tentative decision, let alone argue to the
trial court that it was required to consider certain factors under that case in deciding the
custody issue. In fact, properly understood, G. B.’s argument to the trial court was to the
contrary. In essence, G. B. argued that having found she had a stronger bond with the
twins than K. B. did, the trial court had a duty to grant her primary custody of the twins
4 G. B. also argued that there was “not one iota of evidence to sustain the position
that [she] would not follow any order fashioned by the Court to continue frequent and
continuing contact between [K. B.] and the children” if she were permitted to move to
Idaho with the twins. We address that argument, which G. B. renews on appeal,
hereafter.
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and to fashion a visitation plan that would ensure K. B. frequent and continuing contact.
Thus, G. B. essentially argued that the strength of her bond with the twins trumped any
other consideration that might be relevant. She never argued that the trial court had failed
to consider or analyze certain issues relevant to the custody determination or that the trial
court had improperly focused on the impact of the proposed move on K. B.’s relationship
with the twins to the exclusion of all other considerations.
With a proper understanding of G. B.’s objection in mind, it is easy for us to
conclude that the arguments G. B. now seeks to raise on appeal are all defeated by the
inferences we must draw in favor of the judgment. For example, G. B. complains that
“[d]espite the court’s lengthy statement of decision, it never addressed the probable
detriment to the children when [G. B.] moves to Idaho and [K. B.] takes primary
custody.” Because G. B. did not object to the statement of decision on this ground, and
because the statement of decision does not affirmatively show that the court did not
consider this issue, we are bound to infer that even if the court did not specifically
mention the issue of detriment, the court nonetheless implicitly considered it and
implicitly determined that, on balance, the best interest of the children would be better
served by giving K. B. primary custody of the twins if G. B. moved to Idaho
notwithstanding any such detriment.
It is true that the court, in its statement of decision, found that the consideration
most pertinent to its determination of custody in the event G. B. moved to Idaho was the
impact a move with the twins was likely to have on their relationship to K. B. For
example, the court found that it was “patently evident that were [G. B.] to depart with the
parenting plan she proposes vis-à-vis [K. B.]’s plan, the children’s relationship would . . .
wither and die.” The court also found that “[o]f more critical significance in the court’s
consideration” than “[w]hether [G. B.’s] intention to relocate [wa]s genuine” “are the
resounding testimonies of several witnesses that [K. B.] is the parent more likely to allow
the children frequent and continuing contact with the other parent.” The court also stated
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that G. B. “clearly emerges, at present, as the parent more likely to frustrate, impede, or
impair [K. B.’s] parenting time.”
We cannot conclude from these statements, however, that the court affirmatively
failed to consider any other relevant factors -- including, but not limited to, the effect it
would have on the twins if K. B. were to assume primary custody of the twins in the
event G. B. chose to move to Idaho. Certainly the court’s focus was on what would
happen to K. B.’s relationship with the twins if G. B. took them to Idaho with her, but we
cannot say that the court necessarily focused on that issue to the exclusion of all others.
Custody determinations require a careful balancing of a variety of considerations, which
the trial court here recognized by setting forth in its statement of decision a number of
those considerations. The fact that the trial court did not separately address each relevant
issue in its statement of decision does not mean that the court did not consider each
relevant issue -- at least where, as here, the statement of decision does not affirmatively
show such a failure. Absent an affirmative showing in the statement of decision itself
that the court improperly limited its consideration to the effect of the move on the
relationship between K. B. and the twins, and absent an objection to the statement of
decision on this basis in the trial court, we must presume “that what ought to have been
done was not only done but rightly done” (Steuri v. Junkin, supra, 27 Cal.App.2d at
p. 760), and that presumption defeats G. B.’s arguments on appeal.5
5 The foregoing analysis applies with equal force to each of the following assertions
that G. B. advances on appeal:
(1) “[T]he court relied on [its determination that G. B. would be more likely to
frustrate the children’s relationship with K. B.] to the exclusion of all other factors”;
(2) “[T]he statement of decision never addresses the need for continuity and
stability or the potential harm to the twins when [G. B.] moves to Idaho and is separated
from them for significant periods of time if [K. B.] takes primary custody”;
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In fact, in this regard the present case is much like LaMusga. There, in its
decision on a move-away the trial court “placed ‘primary importance’ on the effect the
proposed move would have on ‘what is now a tenuous and somewhat detached
relationship with the boys and their father,’ concluding that the proposed move would be
‘extremely detrimental’ to the children’s welfare because it would disrupt the progress
being made by the children’s therapist in promoting this relationship.” (LaMusga, supra,
32 Cal.4th at p. 1093.) The trial court did not expressly mention that it had considered
the children’s need for continuity and stability in custody arrangements and the harm that
might result from disruption of established patterns of care and emotional bonds with
their mother, who was their primary caretaker. (See id. at pp. 1092-1093.) As a result,
the Court of Appeal concluded that the trial court abused its discretion because it did not
take into account “ ‘this paramount need for stability and continuity in the existing
custodial arrangement. Instead, it placed undue emphasis on the detriment that would be
caused to the children’s relationship with Father if they moved.’ ” (Id. at p. 1093.)
On review, the Supreme Court disagreed with the Court of Appeal, noting that
there was “nothing in the record . . . that indicate[d] that the superior court failed to
consider the children’s ‘interest in stable custodial and emotional ties’ with their mother.”
(LaMusga, supra, 32 Cal.4th at p. 1093.) The Supreme Court further concluded that
(3) “The trial court placed undue emphasis--in fact sole emphasis--on promoting
[K. B.’s] relationship with the twins”;
(4) “The court did not address any other factors in its discussion of the move away
request”;
(5) “The court merely gave lip service to the children’s need for continuity and
stability in their established custodial arrangements”; and
(6) “The court’s reliance on [the detrimental effect of a move on the twins’
relationship with K. B.] to the exclusion of all other relevant factors was an abuse of
discretion.”
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while “[i]n future cases, courts would do well to state on the record that they have
considered this interest in stability, . . . the lack of such a statement does not constitute
error and does not indicate that the court failed to properly discharge its duties.” (Ibid.)
In support of this conclusion, the court cited Arceneaux. (LaMusga, supra, 32 Cal.4th at
p. 1093.) The court also went on to conclude that “the superior court did not place
‘undue emphasis’ on the detriment to the children’s relationship with their father that
would be caused by the proposed move” because “[t]he weight to be accorded to such
factors must be left to the court’s sound discretion,” and “[t]he Court of Appeal erred in
substituting its judgment for that of the superior court.” (Ibid.)
As we have said, this case is much like LaMusga. Here, the trial court placed
primary emphasis in its statement of decision on the impact of the proposed move on
K. B.’s relationship with the twins. That it did so, however, demonstrates neither that the
court ignored other relevant factors, such as the children’s interest in the stability of their
relationship with G. B., nor that the court abused its discretion by placing undue
emphasis on the potential detriment to their relationship with K. B. We must presume
that the trial court did its job properly unless the appellant carries his or her burden of
affirmatively demonstrating otherwise. Here, G. B. has not carried that burden.
IV
G. B. Has Not Shown That There Is No Substantial Evidence To Support
The Trial Court’s Finding That G. B. Was The Parent Most Likely To Frustrate
The Twins’ Relationship With The Other Parent
In determining that K. B. should have primary custody of the twins if G. B. moved
to Idaho, the trial court found that G. B. was “the parent more likely to frustrate, impede,
or impair [K. B.’s] parenting time” and that, without therapy and counseling, G. B. would
“engage in continuing and future behaviors that will frustrate” “[c]o-parenting
collaboration in the joint care and supervision of the twins” and K. B.’s “interaction with
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the twins.” G. B. contends these findings are not supported by substantial evidence. We
disagree.
“[I]n examining the sufficiency of the evidence to support a questioned finding, an
appellate court must accept as true all evidence tending to establish the correctness of the
finding as made, taking into account, as well, all inferences which might reasonably have
been thought by the trial court to lead to the same conclusion. Every substantial conflict
in the testimony is, under the rule which has always prevailed in this court, to be resolved
in favor of the finding.” (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142.)
Moreover, “the burden is on the appellant ‘to demonstrate that there is no substantial
evidence to support the challenged findings.’ ” (Green v. Green (1963) 215 Cal. App. 2d
31, 35.) “An appellant ‘is required to set forth in his brief all of the material evidence on
the point and not merely his own evidence. If this is not done, the error assigned is
deemed [forfeited].’ ” (Ibid.)
In challenging the sufficiency of the evidence to support the finding that she was
likely to frustrate the twins’ relationship with K. B., G. B. never sets forth all of the
material evidence in the record on the point. Instead, as will be seen hereafter, G. B.
takes a somewhat scattershot approach to the sufficiency of the evidence issue, offering
various arguments about why there was no substantial evidence without ever actually
presenting all of the pertinent evidence to us, let alone accounting for the requirement
that we must draw every inference that we can from the evidence in favor of the trial
court’s decision. Under these circumstances, G. B.’s challenge to the sufficiency of the
evidence is without merit.
G. B. begins her sufficiency of the evidence argument by emphasizing that the
trial court did not find that her desire to move to Idaho was maintained in bad faith, i.e.,
for the purpose of frustrating the relationship between K. B. and the twins. This is true.
In fact, the court concluded that “[w]hether [G. B.]’s intention to relocate is genuine, it is
of no import to this court’s consideration.” But the fact that G. B.’s desire to move to
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Idaho may not have been born of a desire to frustrate K. B.’s relationship with the twins
does not establish a lack of substantial evidence to support the trial court’s finding that
G. B. was more likely to frustrate K. B.’s relationship with the twins than K. B. was
likely to frustrate G. B.’s relationship with them. Why G. B. wanted to move and what
she was likely to do once she did move are not one and the same.
Next, G. B. emphasizes that the trial court found she cooperated with all court
orders. Again, this is true. In finding that G. B. possessed the capacity to “yield to the
court’s judgment,” the trial court specifically noted “her prior compliance with court
orders.” Similarly, the court noted elsewhere that “[w]ere the court to find that [K. B.] is
a parent, [G. B.], compliant with prior orders, will abide by the court’s finding and
concomitant orders.” Once again, though, this finding does not establish a lack of
substantial evidence to support the trial court’s finding that G. B. was more likely to
frustrate K. B.’s relationship with the twins than K. B. was likely to frustrate G. B.’s
relationship with them. Even if the court found that G. B. had complied with its orders in
the past and was likely to do so in the future, this finding did not preclude the court from
weighing the relative likelihood that each parent would frustrate the other parent’s
relationship with the twins and resolving that weighing in K. B.’s favor rather than
G. B.’s.
G. B. contends that because the trial court found she had complied with its orders
and would continue to do so, the court’s finding that she was likely to frustrate K. B.’s
relationship with the twins must have been based on her “ ‘parental attitude’ ” -- which
she contends is equivalent to her “belief that [K. B.] was not a parent and her opposition
to the parentage action.” She further contends that her “decision to oppose [K. B.’s]
parentage claim cannot constitute substantial evidence” for the finding that she was likely
to frustrate the relationship between K. B. and the twins.
We do not agree with G. B.’s reading of the court’s decision. It is true that the
court observed that G. B.’s “parental attitude must be demonstrably shown to change, as
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evinced by therapeutic reports and conduct, in any future proceeding before the court
should or will consider [custody] modifications of further particular significance.” But
this observation was not directly tied to the court’s finding that G. B. was the parent most
likely to frustrate the other parent’s relationship with the children, nor did it suggest that
the trial court was faulting G. B. for opposing the parentage action. In fact, in finding
that G. B. was more likely to frustrate K. B.’s relationship with the twins than vice versa,
the court did not refer to G. B.’s “parental attitude” but rather to “the resounding
testimonies of several witnesses that [K. B.] is the parent more likely to allow the
children frequent and continuing contact with the other parent and thereby serve the
twins’ best interest.” (Fn. omitted.) Moreover, the court specifically stated that it was
G. B.’s “past behaviors,” rather than her parental attitude, that “portend clinical harm to
the twins’ development and interactions with [K. B.]”
G. B. next argues that she “has continually supported the relationship between
[K. B.] and the twins, even though she did not view [K. B.] as a parent.” Thereafter, she
recites evidence of the various ways she supported that relationship. To the extent she
admits the existence of any evidence of less than supportive conduct -- a short period
when she did not allow K. B. to have any visitation with the twins -- she downplays that
evidence by asserting that it was “an isolated occasion” when she was “understandably
shocked and upset” that K. B. had served her with the papers commencing this parentage
action.
In this regard, G. B.’s sufficiency of the evidence argument particularly fails to
comply with the governing principle that she “ ‘set forth in h[er] brief all of the material
evidence on the point and not merely h[er] own evidence.’ ” (Green v. Green, supra, 215
Cal.App.2d at p. 35.) To comply with that principle, G. B. needed to set forth in her brief
all of the evidence on which the trial court might have reasonably premised its finding
that she was more likely to frustrate K. B.’s relationship with the twins than vice versa,
not just the evidence tending to show that she has supported K. B.’s relationship with the
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twins at various times in the past. That G. B. has not honored the governing principle we
have noted is readily apparent from the fact that she almost entirely glosses over an area
of evidence potentially detrimental to her by “acknowledg[ing] that she has had serious
concerns over [K. B.]’s parenting, when the twins had marks and rashes, and that there
have been difficulties with the child exchanges.” Instead of thoroughly setting forth the
evidence on these points and explaining how that evidence, even viewed in the light most
favorable to the trial court’s findings, is insufficient to support a determination that she is
the parent least likely to support the twins’ relationship with the other parent, G. B.
proceeds directly to attempting to minimize the points she has failed to adequately
explain, citing only evidence favorable to herself to support her assertion that “these
reasons are not [a] sufficient basis to deny the move away request or to find that she will
frustrate the children’s parenting time with [K. B.]”
“A reviewing court starts with the presumption that the record contains evidence
to sustain every finding of fact, and it is not the province of such a court to search the
record in order to ascertain whether it contains evidence which will support a contention
made by either party to an appeal.” (Leming v. Oilfields Trucking Co. (1955) 44 Cal. 2d
343, 356.) Thus, it is not for us to comb through the record to see if we can now find
evidence of G. B.’s behavior with respect to her “concerns over [K. B.]’s parenting” and
the “difficulties with the child exchanges” that is substantial enough to support the trial
court’s determination that G. B. is more likely to frustrate K. B.’s relationship with the
twins than vice versa. Rather, it was for G. B. to affirmatively show us that there is no
such evidence in the record. She has not done so.
Finally, G. B. argues that her “opposition to [K. B.]’s parentage action and her
beliefs cannot supply substantial evidence of the court’s finding that [G. B.] is likely to
frustrate [K. B.]’s relationship with the twins.” Again, G. B. fails to present a proper
challenge to the sufficiency of the evidence. Under the rules we have previously
identified, it is not enough for G. B. to argue that certain things do not constitute
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substantial evidence. Rather, to carry her burden on appeal, she had to put all of the
relevant evidence before us and show us why that evidence, taken as a whole, was
insufficient to support the trial court’s finding. She did not do this. Accordingly, her
challenge to the sufficiency of the evidence is without merit.
DISPOSITION
The judgment is affirmed. K. B. shall recover her costs on appeal. (Cal. Rules of
Court, rule 8.276(a).)
ROBIE , J.
We concur:
RAYE , P. J.
MAURO , J.
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