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Christina L. v. Chauncey B. ( 2014 )


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  • Filed 8/14/14; pub. order 9/9/14 (see end of opn.)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    CHRISTINA L.,
    Plaintiff and Appellant,
    A140155
    v.
    CHAUNCEY B.,                                             (Solano County
    Super. Ct. No. FFL083284)
    Defendant and Respondent.
    Christina L. (Mother) appeals an order granting to her and respondent Chauncey
    B. (Father) joint legal and physical custody of their son, O.L., and daughter, A.L. She
    contends the trial court improperly modified an earlier custody determination (under
    which she had sole legal and physical custody of the children) without finding a
    significant change in circumstances, and that the trial court erroneously failed to consider
    the effect of a domestic violence restraining order against Father. We shall reverse the
    order and remand the matter to the trial court for further proceedings.
    I. BACKGROUND1
    The two children were born in 2000 and 2002. It appears that Mother and Father’s
    1
    Father did not file a respondent’s brief. As a result, we may accept as true the
    facts stated in Mother’s opening brief. (Smith v. Smith (2012) 
    208 Cal.App.4th 1074
    ,
    1077–1078.) “However, we do not treat the failure to file a respondent’s brief as a
    ‘default’ (i.e., an admission of error), but examine the record, appellant’s brief, and any
    oral argument by appellant to see if it supports any claims of error made by the
    appellant.” (In re Marriage of Riddle (2005) 
    125 Cal.App.4th 1075
    , 1078, fn. 1; Cal.
    Rules of Court, rule 8.220(a)(2).)
    1
    relationship was marred by domestic violence on Father’s part, and by 2004, they were
    no longer living together.
    Mother obtained a temporary restraining order against Father in 2004, based on
    her assertions that he committed abuse, including pulling her hair and squeezing her hand
    so hard as she held car keys that her hand bled, bending the car keys, and that he grabbed
    the steering wheel of the car in which she was driving with the children, threw her,
    punched her, strangled her, and kicked and “stomped” her. Mother obtained another
    temporary restraining order against Father in 2005, after he pushed and grabbed her and
    refused to let her see the children after he picked them up from daycare. The court
    granted another temporary restraining order in 2006, after Father went into Mother’s
    backyard, watched her through the window, and later told her what he had seen. Also in
    2006, Mother was granted sole legal and physical custody of the children; Father was
    granted visitation at Mother’s discretion.
    The trial court issued a three-year domestic violence restraining order against
    Father in 2008 prohibiting him from, inter alia, harassing, striking, threatening, stalking,
    or contacting Mother. Father was granted two hours of supervised visitation a month.
    In August 2011, the court entered an order awarding Mother sole legal and
    physical custody of the children, with supervised visitation for Father. The order
    acknowledged that a criminal protective order was in effect.
    The court granted another temporary restraining order in August 2011, based on
    Mother’s statements that Father kept showing up at her place of work, parked by her car,
    and confronted her in front of her manager and customers. At a September 2011 hearing,
    Mother testified that Father had approached her while she was working in a store and told
    her repeatedly that she needed to answer her phone. Father had also been waiting in his
    car, parked near hers, when she left work. Mother also testified that father had been
    physically violent to her in the past. The trial court granted a domestic violence
    protective order for a period of two years.
    Father petitioned the court to terminate the restraining order in January 2013,
    asserting that Mother had visited his home and had spent time with him at holiday events.
    2
    The trial court denied the request, but modified the orders to allow brief and peaceful
    contact as required for court-ordered visitation.
    Father also made a request to modify the custody order in January 2013. In the
    request, he acknowledged that a domestic violence order was in effect. He alleged that
    Mother had violated the restraining orders and made false accusations against him in
    order to separate him from his children.
    At the hearing on the motion, Father stated that he wanted O.L. to be able to visit
    whenever O.L. wished. He also stated that since November 2012, he had had part-time
    custody of a daughter by another relationship, who was then six years old. He wanted
    A.L. to have the same visitation schedule as his younger daughter so the two sisters could
    get to know each other.
    Father testified that he had not seen O.L. or A.L. for three months, because Mother
    did not drop them off at his house, and that he had not contacted her about the issue.
    Mother testified that she no longer took the children to Father’s house, that Father had
    failed to show up for visitation at a neutral site, and that he had had very little contact
    with the children for the past five years.
    The trial court issued a written order. The court found Mother had raised issues
    regarding a history of abuse or neglect by Father, but that she had not adduced sufficient
    evidence for the court to find it must make a decision based on the children’s health,
    safety, and welfare. The court also found the children would benefit from spending time
    with their half-sister. The court ordered Mother and Father to share joint legal and
    physical custody of the children, and established a schedule under which they would
    spend each weekend with Father.2 Mother has appealed this order.
    2
    Under the schedule, Father would pick the children up from school each Friday
    afternoon and, on alternating weekends, would return them to school either on Monday or
    Tuesday morning. This schedule is consistent with Father’s custody schedule with his
    younger daughter.
    3
    II. DISCUSSION
    A. Effect of Domestic Violence Restraining Order
    Mother contends the trial court erred by not applying a rebuttable presumption
    under Family Code,3 section 3044 that Father should not have custody because of his
    history of domestic violence, as shown by the 2011 restraining order issued pursuant to
    the Domestic Violence Prevention Act (§ 6200 et seq. (DVPA)).
    Section 3044, subdivision (a), provides in pertinent part: “Upon a finding by the
    court that a party seeking custody of a child has perpetrated domestic violence against the
    other party seeking custody of the child . . . within the previous five years, there is a
    rebuttable presumption that an award of sole or joint physical or legal custody of a child
    to a person who has perpetrated domestic violence is detrimental to the best interest of
    the child, pursuant to section 3011. This presumption may only be rebutted by a
    preponderance of the evidence.” Subdivision (c) of the same statute provides that “a
    person has ‘perpetrated domestic violence’ when he or she is found by the court . . . to
    have engaged in any behavior involving, but not limited to, threatening, striking,
    harassing, destroying personal property or disturbing the peace of another, for which a
    court may issue an ex parte order pursuant to Section 6320 to protect the other party
    seeking custody of the child . . . .”
    “Because a DVPA restraining order must be based on a finding that the party
    being restrained committed one or more acts of domestic abuse, a finding of domestic
    abuse sufficient to support a DVPA restraining order necessarily triggers the presumption
    in section 3044.” (S.M. v. E.P. (2010) 
    184 Cal.App.4th 1249
    , 1267.) This presumption
    changes the burden of persuasion, but “may be overcome by a preponderance of the
    evidence showing that it is in the child’s best interest to grant joint or sole custody to the
    offending parent.” (Keith R. v. Superior Court (2009) 
    174 Cal.App.4th 1047
    , 1055; see
    also § 3020, subd. (a).)
    3
    All statutory references are to the Family Code.
    4
    The 2011 restraining order was based on evidence that Father had recently
    confronted Mother at her place of work, in front of a manager and customers, that on
    several occasions he had parked his car by hers near her workplace, and that he had been
    physically violent to her in the past. Harassing or disturbing the peace of another is
    sufficient to constitute domestic violence for purposes of section 3044 (§ 3044, subd. (c)),
    and Father’s most recent actions occurred less than five years before the court made the
    order on appeal here (§ 3044, subd. (a)). We accordingly agree with Mother that the trial
    court was obliged to apply the presumption of section 3044 that granting custody to
    Father would be detrimental to the children’s best interests.
    There is no indication that the trial court did so. Rather, the court appeared to rely
    solely on the standards of section 3011, subdivision (b). Under section 3011, in making a
    determination of the best interest of a child, the court should consider “(b) [a]ny history
    of abuse by one parent or any other person seeking custody against . . . [¶] (2) [t]he other
    parent.” However, “[a]s a prerequisite to considering allegations of abuse, the court may
    require substantial independent corroboration, including, but not limited to, written
    reports by law enforcement agencies, child protective services or other social welfare
    agencies, courts, medical facilities, or other public agencies or private nonprofit
    organizations providing services to victims of sexual assault or domestic violence.”
    (§ 3011, subd. (b).)
    Here, the trial court noted that “Mother [had] expressed to the court and mediators
    numerous fears of Father being abusive or dangerous to the children, thereby raising
    issues regarding a history of abuse or neglect by a parent, [Family Code section]
    3011(b).” The court continued: “The state legislature has recognized the need for
    caution when evidence is received from parties regarding abuse by a parent. Before even
    considering such evidence, the court can require substantial independent corroboration.
    See [Family Code section] 3011. [¶] . . . The court did not require Mother to provide
    such corroboration, but finds she did not adduce sufficient evidence for the court to find
    that it must make a decision based on children’s health, safety and welfare.”
    5
    In effect, the trial court put the burden on Mother to show anew that Father had
    committed domestic violence. In doing so, it appears to have ignored both the existing
    restraining order and the legal effect of the judicial findings that were necessarily made in
    connection with that order. (See S.M. v. E.P., supra, 184 Cal.App.4th at p. 1267.)
    Nothing in the order even hints the court applied the presumption of section 3044, or
    required Father to show by a preponderance of the evidence that it would not be
    detrimental to grant him custody of the children. (See F.T. v. L.J. (2011) 
    194 Cal.App.4th 1
    , 28–29 [on remand, trial court should expressly find whether section 3044
    presumption had been rebutted].) We shall therefore reverse the order and remand this
    matter to allow the trial court to consider whether Father has met this burden.4
    B. Changed Circumstances
    Mother also contends the trial court erred in modifying the prior custody order
    without finding a change in circumstances. Although we are reversing the order on the
    basis of the section 3044 presumption, we shall address this issue for the guidance of the
    trial court on remand.
    In its August 2013 order granting Mother and Father joint custody of the children,
    the court expressed concern that Mother was unwilling to ensure Father had frequent and
    continuing contact with the children (see § 3020, subd. (b)), but also noted the
    importance of continuity and stability in custody arrangements (In re Marriage of
    Burgess (1996) 
    13 Cal.4th 25
    , 32–33 (Burgess)). The court concluded the children would
    benefit from increasing their time with Father as well as from spending time with their
    half-sister. However, the court made no finding that circumstances had changed since it
    made the 2011 custody order.
    4
    Because we are reversing and remanding the matter to the trial court on this
    basis, we need not separately consider Mother’s related contentions that the trial court
    improperly failed to give primary consideration to the children’s health, safety, and
    welfare (§ 3020, subd. (c)) and did not provide an adequate statement of reasons (§ 3011,
    subd. (e)(1)).
    6
    “ ‘It is settled that to justify ordering a change in custody there must generally be a
    persuasive showing of changed circumstances affecting the child. [Citation.] And that
    change must be substantial: a child will not be removed from the prior custody of one
    parent and given to the other “unless the material facts and circumstances occurring
    subsequently are of a kind to render it essential or expedient for the welfare of the child
    that there be a change.” [Citation.] The reasons for the rule are clear: “It is well
    established that the courts are reluctant to order a change of custody and will not do so
    except for imperative reasons; that it is desirable that there be an end of litigation and
    undesirable to change the child’s established mode of living.” [Citation.] [¶] Moreover,
    although a request for a change of custody is also addressed in the first instance to the
    sound discretion of the trial judge, he [or she] must exercise that discretion in light of the
    important policy considerations just mentioned. For this reason appellate courts have
    been less reluctant to find an abuse of discretion when custody is changed than when it is
    originally awarded, and reversals of such orders have not been uncommon. [Citations.]
    [¶] ‘Finally, the burden of showing a sufficient change in circumstances is on the party
    seeking the change of custody. [Citations.]’ ” (Speelman v. Superior Court (1983) 
    152 Cal.App.3d 124
    , 129–130 (Speelman); see also Burgess, 
    supra,
     13 Cal.4th at p. 37.)
    “The changed circumstances test requires a threshold showing of detriment before a court
    may modify an existing final custody order that was previously based upon the child’s
    best interest.” (Ragghanti v. Reyes (2004) 
    123 Cal.App.4th 989
    , 996; see also In re
    Marriage of Brown & Yana (2006) 
    37 Cal.4th 947
    , 959–960.) A “substantial showing”
    must be made to modify a final custody determination. (In re Marriage of Brown &
    Yana, at p. 960.)
    The 2011 custody order granted Mother sole legal and physical custody of the
    children, and there is nothing in the order to suggest it was anything but a final custody
    determination. Accordingly, Father had the burden to show changed circumstances to
    justify a change to the order. The only “change of circumstances” Father asserted in his
    request for a modification was that Mother had made false accusations against him in
    order to obtain a restraining order, that as a result she had had exclusive access to the
    7
    children, that the children had been “neglected and coached,” and that Mother had not
    obeyed the restraining order. But the trial court refused Father’s request to terminate the
    restraining order. There is no basis for a conclusion that Mother made false accusations
    against Father to obtain the order or that her accusations somehow constituted changed
    circumstances. Nor is there any evidence in the record that Mother neglected the
    children.
    The only arguably changed circumstance shown by the record is that Father’s six-
    year-old daughter had begun living with him part-time. Father did not argue, and the trial
    court did not find, that this constituted a substantial change such that it was “ ‘essential or
    expedient for the welfare of the child[ren] that there be a change’ ” (see Speelman, supra,
    152 Cal.App.3d at p. 129) or that that children would suffer detriment absent the change
    in custody (see Ragghanti v. Reyes, supra, 123 Cal.App.4th at p. 996). Indeed, the trial
    court did not make any findings with regard to changed circumstances. In any further
    proceedings, the court shall consider whether Father has met his burden to show a change
    in circumstances sufficient to justify altering the prior custody order.
    III.    DISPOSITION
    The order appealed from is reversed. The matter is remanded to the trial court for
    further proceedings consistent with this opinion.
    _________________________
    Rivera, J.
    We concur:
    _________________________
    Ruvolo, P.J.
    _________________________
    Reardon, J.
    8
    Filed 9/9/14
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    CHRISTINA L.,
    Plaintiff and Appellant,
    A140155
    v.
    CHAUNCEY B.,                                       (County of Solano
    No. FFL-08-3284)
    Defendant and Respondent.
    BY THE COURT:
    The written opinion which was filed on August 14, 2014, has now been certified for
    publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered
    published in the official reports.
    Date: _____________________       ___________________________________________ P.J.
    1
    Trial court:       Solano County
    Trial judge:       Hon. Garry T. Ichikawa
    Attorneys:
    Dentons US, LLP and Bella Shirin and Karen C. Marchiano for Plaintiff and Appellant.
    Family Violence Appellate Project and Erin D. Smith, Nancy K.D. Lemon, and Jennafer
    Dorfman Wagner for Plaintiff and Appellant.
    No appearance for Defendant and Respondent
    2
    

Document Info

Docket Number: A140155

Filed Date: 9/9/2014

Precedential Status: Precedential

Modified Date: 3/3/2016