Marriage of Clayton CA4/1 ( 2021 )

Filed 10/6/21 Marriage of Clayton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of JON and
MELISSA CLAYTON.
D077033
JON CLAYTON,
Appellant,
(Super. Ct. No. 17FL007884C)
v.
MELISSA CLAYTON,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Daniel F. Link, Judge. Affirmed as modified.
Jon Clayton, in pro. per., for Appellant.
Primus Family Law Group and Amy Elizabeth West for Respondent.
This family law litigation involves a dispute between Jon Clayton
(Father) and Melissa Clayton (Mother) over where their child (Daughter) will
attend transitional kindergarten.1 Father, who lives in Ocean Beach, wants
Daughter to attend a school near him—either Ocean Beach Elementary (O.B.
Elementary) or Saint Charles Borromeo Academy (St. Charles), a private
Catholic school. Mother, who lives in Rancho Peñasquitos, asked that the
court order Daughter to attend Los Peñasquitos Elementary School (Los
Pen).
Based in large part on expert testimony, the family court determined it
was in the child’s best interests to attend Los Pen. To ameliorate Father’s
burden of driving Daughter to and from Los Pen on his custodial days, the
court ordered that Mother pay the cost of extended school services (ESS)
unless Father relocates. In the same order, the court also resolved the
parties’ unrelated discovery dispute.
Father appeals, asserting: (1) the court abused its discretion in
concluding it would be in Daughter’s best interests to attend Los Pen; (2) the
court’s oral order regarding ESS payments conflicts with the written order,
which terminates that obligation if and when Father relocates; and (3) the
court abused its discretion in adjudicating a discovery dispute that was not
properly before the court, then erroneously ruled that Father had waived
objections to the discovery requests.
We agree with only the second part of the last contention: The court
abused its discretion in determining Father waived objections to the
discovery requests. Accordingly, we will modify the order to strike the waiver
language and affirm the order as modified.
1 Transitional kindergarten is a program designed for children born
between September 1 and December 31 to “enhance their readiness for
kindergarten” for the following academic year. Unlike preschool or day care,
transitional kindergarten has a state-mandated curriculum.
2
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in 2013 and Father petitioned for dissolution
in 2017. At the time this dispute arose in 2019, their Daughter was five
years old. After separation, Father remained in the family home in Ocean
Beach; Mother lived with her parents in Rancho Peñasquitos. The parties
share joint legal and physical custody of Daughter.
As Daughter neared the end of her preschool education, Father wanted
her to transition to St. Charles, a Catholic private school, or O.B.
Elementary, a public school in the San Diego Unified School District. Both
schools are located in Ocean Beach. Mother wanted Daughter to attend Los
Pen, a public school in the Poway Unified School District.
A trial to resolve the issue of school selection occurred in August and
October 2019. Father asserted that enrolling Daughter at Los Pen would
take her away from her existing home, church, and community contacts.
He also voiced concern about his ability to maintain two jobs while making
the extended commute to Los Pen. He initially discussed moving to Rancho
Peñasquitos should the court order Daughter to attend Los Pen, but
ultimately said he could not afford to move to the area.
Mother expressed her discomfort with the prospect of enrolling the
child in a religious-affiliated school, as well as with the culture of O.B.
Elementary. She also noted the child’s “core group of friends” and social
involvement in the Rancho Peñasquitos community.
Dr. Helene T. Mandell, Ed.D., a recently retired director of field
experiences at the University of San Diego, testified as Mother’s retained
expert. According to the State of California, Los Pen is ranked in the top 20
out of 5,881 schools, whereas O.B. Elementary is ranked 1,169. Additionally,
St. Charles does not have a transitional kindergarten program and teachers
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at parochial schools are not required to have the “same rigorous” credentials
as do those in public school systems. Mandell compared various other
measures of school performance and concluded that Los Pen was the best
school choice for Daughter.
Father then called Denise Langlois, the director of St. Peter’s preschool
in Point Loma, where Daughter was currently attending. Langlois testified
that “[Daughter has] really acclimated well to everything that’s been going on
in her life. . . . She’s capable of doing anything we ask her to do. She’s
helpful, she’s friendly, she’s loving, she’s sweet. She’s a great kid.” When
asked about Daughter’s readiness to transfer to another school, Langlois
opined, “I would say [the child] is ready for anything that’s presented to her.”
While deliberating on the school choice question, the court
acknowledged it was a “difficult decision” because of the distance between the
parents’ homes and Daughter’s familiarity with Ocean Beach. But it
emphasized that “[Father’s] argument . . . lies in geographic desirability . . . .
[¶] [Mother] has put an expert on the stand . . . [w]ho has talked about
essentially Poway out performing Ocean Beach Elementary in almost every
category.”
The court delivered its final ruling: “[I]t’s important that since you are
a good father and clearly love [Daughter] very much, you are fighting for her
and the Court sees that[;] it’s important to maintain the 50/50 custody. . . .
The facts are what they are. Poway is an excellent school district with an
excellent program and excellent ratings and [Daughter] appears to be going
fine. So my decision for the school is it remains [Los Pen].” The court added,
“If you want ESS before and after school, which would be an option for you to
get her there earlier and pick her up late . . . [t]hat is something you can have
and that is something mom can pay for.”
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After delivering its ruling, the court instructed Father as to how to
preserve his objections to any written order. There is nothing in the record to
suggest Father objected to the proposed order, yet it contained the ESS and
discovery provisions Father disputes on appeal.
DISCUSSION
1. Substantial Evidence Supports the Court’s Determination That It Was In
Daughter’s Best Interest to Attend Los Pen.
Father contends the court abused its discretion by placing Daughter at
a public school in her Mother’s neighborhood when there was a similarly
ranked public school in his neighborhood. His argument is rooted in a desire
to maintain the “status quo” by keeping Daughter in the community “in
which she was living and had made friends.” He further argues that relying
on expert witness testimony as to which public school is superior violates
public policy.
a. Standard of Review
The parents’ choice of school for their child falls within the issues
lumped under the heading “legal custody.” (Fam. Code, § 30032; see, e.g.,
In re Marriage of Adams & Jack A. (2012) 209 Cal.App.4th 1543, 1568.)
“ ‘The standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th
249, 255.) To the extent Father challenges the court’s factual finding that it
was in Daughter’s best interests to attend Los Pen, our review is limited to
whether substantial evidence supports the ruling. (See Sanchez v. Sanchez
(1961) 55 Cal.2d 118, 126 [“Our function has been fully performed when we
find in the record substantial evidence which supports the essential findings
of the trial court.”].) “An expert’s opinion is substantial evidence if it has
2 Further statutory references are to the Family Code.
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evidentiary support and is accompanied by a reasoned explanation
connecting the factual predicates to the ultimate conclusion.” (San Diego Gas
& Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1292 (San Diego
Gas).)
b. Substantial Evidence Supports the Court’s Choice of School
Father asserts that “[s]tatus quo is best” and, therefore, the court
abused its discretion by “[p]lucking” Daughter from her Ocean Beach
community to attend Los Pen. It is true, of course, that continuity and
stability are important for a child’s welfare. (See, e.g., Ragghanti v. Reyes
(2004) 123 Cal.App.4th 989, 999 [under the “best interest analysis,” the
child’s “need for stability and continuity” is important].) But maintaining the
status quo is not the only relevant consideration. (See In re Marriage of
LaMusga (2004) 32 Cal.4th 1072, 1091 [noting that determining the best
interest of the child “ ‘requires the court to consider all the circumstances’ ”
(italics added)].)
Here, the court considered the benefits to Daughter of attending school
in Ocean Beach, noting, “[S]he did spend a great deal of her life in OB, the
preschool that she attends is in OB, a lot of her friends and community [are]
in OB.” But relying on Langlois’s testimony, the court emphasized that
“[Daughter] is bright and wherever she goes she will likely excel so we have
to figure out what school is best.” Thus, contrary to Father’s contention, the
family court considered the benefits of maintaining the status quo but
determined those benefits were outweighed by other considerations.
There is ample substantial evidence to support the court’s conclusion
that attending Los Pen is in Daughter’s best interest. Mandell’s expert
testimony alone is enough to sustain that finding. (See, e.g., San Diego Gas,
supra, 228 Cal.App.4th at p. 1292.) Indeed, Father does not contend
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otherwise. Rather, without citation to authority he contends that as a matter
of law, determining which of two public schools is superior “violates public
policy” and “is perverse.” If a school meets state standards, he argues, “that
should be the end of it”—especially where, in his view, one school is ranked
“only marginally” above the other.
We are unpersuaded. To begin, this is not a case where one school is
ranked “only marginally” above the other. Out of some 5,880 California
public elementary schools, Los Pen ranked 17. O.B. Elementary ranked
1,169. More importantly, Father does not explain how evaluating the
relative quality of available school options violates public policy.3 The
quality of the local public school is a factor considered by parents in deciding
where to reside. Relative school ranking is certainly not determinative, but it
is a relevant factor in the “best interest” analysis that in this case fully
supports the family court’s decision.
2. Properly Interpreted, There Is No Discrepancy Between the Court’s Oral
and Written Orders.
Father next maintains that the reporter’s transcript and the court’s
final written order are in conflict. At the hearing, the court verbally recited
an ostensibly unconditional obligation on Mother to pay for Daughter’s before
and after school care. Yet the subsequent written order conditions Mother’s
payment obligation on Father remaining at his current residence in Ocean
Beach. Father urges us to resolve the inconsistency in favor of the reporter’s
transcript.
3 Indeed, the California Department of Education takes the position that
ranking public schools actually promotes the public policy of accountability
and improvement of public education. (See [as of Oct. 6, 2021], archived at .)
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a. Father Forfeited the Issue, But We Exercise Our Discretion to Excuse
the Forfeiture
We agree with respondents brief that Father forfeited his argument by
failing to comply with the proper procedure for objecting to a proposed order
after hearing outlined in California Rules of Court, rule 5.125(e). (In re
Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 (Hinman) [“Failure to
object to the ruling or proceeding is the most obvious type of implied
waiver.”].)4 But “[a]ppellate courts have discretion to consider a theory or
issue raised for the first time on appeal where it presents a pure question of
law . . . .” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 2010) ¶ 8:272.) Here, Father’s argument hinges on a pure
question of law—i.e., the correct interpretation of the court’s written order.
(See Mendly v. County of Los Angeles (1994) 23 Cal.App.4th 1193, 1205 [“
‘The interpretation of the effect of a judgment is a question of law within the
ambit of the appellate court.’ ”].) We therefore exercise our discretion to
consider the issue despite forfeiture.
b. Correctly Interpreted, There Is No Discrepancy Between the Court’s
Oral and Written Orders
“ ‘In construing orders they must always be considered in their
entirety, and the same rules of interpretation will apply in ascertaining the
meaning of a court’s order as in ascertaining the meaning of any other
writing. If the language of the order be in any degree uncertain, then
4 Though Hinman uses the term “implied waiver” to characterize the loss
of the right to challenge a ruling on appeal based on failure to adhere to
proper procedure in the trial court, our Supreme Court has observed that the
correct legal terminology is “forfeiture”: “[A] person who fails to preserve a
claim forfeits that claim” whereas “waiver is the ‘ “intentional relinquishment
or abandonment of a known right.” ’ ” (In re S.B. (2004) 32 Cal.4th 1287,
1293, fn. 2.)
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reference may be had to the circumstances surrounding, and the court’s
intention in the making of the same.’ ” (Concerned Citizens Coalition of
Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77.)
Here, the text of the order provides that “Mother shall pay for [ESS]
pending . . . termination due to Father’s relocation of residence.” Directly
below is an additional provision titled “FATHER’S POTENTIAL
RELOCATION” that reiterates termination of Mother’s obligation “[s]hould
Father relocate out of his present community . . . .” We note not only the
repetition of this provision, but also that the court manually struck out other
parts of the proposed order while leaving this portion untouched—indicating
that it carefully reviewed the language of the proposed order to ensure
consistency with the court’s intent.
Additionally, the court ordered Mother to pay for ESS as a direct
response to Father’s claimed difficulties managing his work and the school
commute on his custodial days. If Father were to relocate closer to Rancho
Peñasquitos, before and after school care might no longer be necessary and
the underlying rationale for the order would cease to exist. Thus, the written
order merely explicates what was already an implicit assumption of the oral
order.5
5 The plain language paradoxically suggests Mother’s obligation to pay
ESS will terminate whether Father’s moves closer to or farther from Los Pen.
What it really means is that the court will revisit the issue if and when
circumstances change. If Father relocates but still requires ESS, he may, of
course, initiate proceedings seeking a new order. (See § 3078 [“An order for
joint custody may be modified or terminated upon the petition of one or both
parents or on the court’s own motion if it is shown that the best interests of
the child requires modification or termination of the order.”].)
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3. The Court Abused Its Discretion by Violating Fixed Legal Principles When
It Determined That Father Had Waived his Objections to Discovery.
Father contends the court erroneously decided an issue not before it.
He notes that the hearing was as to “school issues only,” yet the court went
on to address an unrelated discovery dispute between the parties. He further
argues that the court erred in finding he waived objections to the discovery
requests.6
a. Additional Procedural Background
After resolving the issue of school selection, the court addressed trial
dates for the parties’ pending marital dissolution litigation. Mother’s counsel
informed the court the dates might need to be postponed because Father had
failed to respond to discovery requests. Father maintained he had not
received them.
In an effort to save both parties time and expense in litigating a motion
to compel, the court created a new, expedited discovery schedule in which
Mother would resend discovery the following day and Father would respond
eight days later. The court’s final written order reflected the modified
discovery schedule, but it also added an additional provision that was not
discussed during the hearing: “Father’s failures [to respond to discovery]
have resulted in a waiver of objections per Code.”
6 As with the ESS issue discussed above, Father again failed to comply
with the proper procedure for objecting to the proposed provision. But here,
Mother did not assert forfeiture in her respondent’s brief. (See Sciarratta v.
U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 560, fn. 6 [party
“forfeited the [forfeiture] issue by failing to assert it” in the respondent’s
brief].) Even if she had, we would have rejected the argument and reached
the merits because the issue presents a pure question of law. (Eisenberg et
al., supra, at ¶ 8:272.)
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b. The Court Properly Exercised Its Inherent Power to Administer
Judicial Proceedings
It is well established that courts have the “inherent power” to “exercise
reasonable control over all proceedings connected with pending litigation . . .
in order to insure the orderly administration of justice.” (Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; see also Code Civ. Proc.,
§ 128, subd. (a)(3).) Here, although the hearing was set to address “school
issues only,” both parties implicitly consented to adding a discussion of the
discovery issues. Therefore, the court’s decision to streamline the
proceedings was proper and consistent with its inherent power.
c. The Court Abused Its Discretion in Determining That Father Waived
His Objections to Discovery
“[A]ppellate review of discovery rulings is governed by the abuse of
discretion standard.’ ” (Advanced Modular Sputtering, Inc. v. Superior Court
(2005) 132 Cal.App.4th 826, 833.) The discretion exercised by the court in
making these rulings “ ‘is not a capricious or arbitrary discretion, but an
impartial discretion, guided and controlled in its exercise by fixed legal
principles. . . .’ ” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283.)
At no point during the hearing did the court mention any waiver of
Father’s objections. Instead, the order presumably relies on Code of Civil
Procedure section 2031.300, which provides that a party who “fails to serve a
timely response” to discovery “waives any objection to the demand.” But this
provision only applies in the case of an untimely response, and the court made
no such finding here. Rather, it found it unnecessary to decide whether
Father had timely responded. Instead of adjudicating that issue, and in the
interests of efficiency, the court simply reset the discovery schedule. Father
was afforded no opportunity to be heard on whether he received actual notice
of the requests and, accordingly, on the timeliness of his response. By
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entering a written order that added, without notice, the finding that Father
had waived any objections to the discovery requests, the court violated
statutory requirements as well as fixed principles of due process.
DISPOSITION
The order entered November 25, 2019, is modified to strike, “Father’s
failures have resulted in a waiver of objections per Code.” As so modified, the
order is affirmed. Both parties shall bear their own costs.
DATO, Acting P. J.
WE CONCUR:
GUERRERO, J.
DO, J.
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