J.M. v. G.H. ( 2014 )

Filed 9/5/14 (unmodified opn. and cert. order attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
J.M., B242123
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BF037073)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
G.H.,
[NO CHANGE IN JUDGMENT]
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed herein on July 29, 2014, be modified as follows:
1. The sentence commencing at the bottom of page 4 with “Although G. smoked”
and ending with “of the child” is deleted.
2. On page 8, the first full paragraph, beginning “No findings under” is deleted
and the following paragraph is inserted in its place:
“No findings on all eight factors under section 3048, subdivision (b)(1) were
required given the trial court’s finding that there were no facts indicating a risk of
abduction.”
There is no change in the judgment.
The petition for rehearing is denied.
CERTIFIED FOR PUBLICATION.
______________________________________________________________________
JOHNSON, Acting P. J. WILEY, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
2
Filed 7/29/14 Unmodified opinion
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
J.M., B242123
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BF037073)
v.
G.H.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert A. Schnider, Judge. Affirmed.
Cuneo & Hoover, Sarah J. Hoover; Law Offices of Robert S. Gerstein and
Robert S. Gerstein for Plaintiff and Appellant.
Honey Kessler Amado and Kristin L. Smith for Defendant and Respondent.
___________________________
J.M. appeals from a judgment on reserved issues granting joint physical custody of
his son Joey to J.M. and G.H., Joey’s mother, and allowing her to take Joey with her to
live in Israel during the school year. Finding no abuse of discretion, we affirm.
BACKGROUND
We use the parties’ first names to simplify and humanize our opinion in this
intensely contested custody case. (In re Marriage of Smith (1990) 225 Cal. App. 3d 469,
475, fn. 1.)
J.M. (Jonathan) and G.H., an Israeli citizen, met in 1996 and soon were living
together. They never married. When G. gave birth to Joey in September 2005, Jonathan
signed a voluntary declaration of paternity and the birth certificate. The couple separated
in late 2007, when Joey was two, and Jonathan moved into another house in the summer
of 2008, while G. and Joey were in Israel visiting G.’s family. In July 2008 Jonathan
married Michelle H., and lives with her and her son, his stepson Ryan. Before Michelle
H., Jonathan had been married to three other women, and Jonathan has three adult
children from two of those earlier marriages.
In July 2009, when Joey was nearly four, Jonathan filed a petition to establish his
paternity of Joey, requesting joint legal and physical custody and reasonable visitation.
In October 2009, he filed an order to show cause requesting sole legal custody and shared
physical custody (with primary custody to him), after G. and Joey returned from a
summer 2009 trip to Israel three weeks after the agreed-upon date of September 3, 2009.
In response, G. requested sole legal and physical custody of Joey, with the right to move
to Israel with Joey, and reasonable visitation for Jonathan in the United States and Israel.
She represented that her visa to remain in the United States was set to expire in
November 2010.
After hearing in March 2010, the trial court granted the paternity petition as to
status only, reserving all other issues. The parties agree that a June 2010 interim order
divided physical custody equally. Appellant’s appendix (Jonathan’s) contains an
unsigned (and explicitly temporary) custody order proposed by G. In June 2011, the
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parties stipulated to the appointment of a privately compensated temporary judge for all
purposes.
On March 2, 2012, after 12 days of trial, the trial court issued a 29-page amended
statement of decision on the bifurcated issues, making factual findings, awarding
Jonathan and G. joint legal and physical custody of Joey, and allowing G. to relocate to
Israel with Joey during the school year. Joey was to live with Jonathan during most of
the summer and longer school holidays, as well as during visits in Israel.
The court acknowledged that Jonathan and G. shared custody equally, both were
competent parents, and Joey was well bonded to both. Two parents living in the same
location would be ideal for Joey, but as G. had indicated her intent to relocate, the
standard was Joey’s best interest under those circumstances. “[S]o long as the court does
not find that the party intending to move is moving in bad faith, instead of assessing what
would be the very best circumstances for the child, the court must determine how the
child’s interest will best be served by that living arrangement which causes him the least
detriment after one parent moves away.” Based on the evidence, including an expert
child custody evaluation by Dr. Anthony Aloia and the testimony at trial, both Jonathan
and G. were “fully adequate to care for [Joey’s] organizational, educational[,] social,
emotional, physical and moral needs,” so “the tipping factor becomes comparing the level
of detriment the child will suffer under each scenario.”
Gal had returned late from Israel with Joey after the summer of 2009 because G.’s
father was diagnosed with cancer, and she wished to stay with her family until tests were
completed. While the court found this “entirely reasonable,” it noted that G. could also
have accommodated Jonathan’s offer to fly to Israel and bring Joey back. G. showed “a
sense of ownership of the child on her part and her determination to do things the way
she chose rather than acting more cooperatively.” Nevertheless, this did not damage
Joey. Further, there was no showing that G. would not comply with future orders, as she
did return with Joey after her family obligations were met and allowed Jonathan
immediate time with Joey, and had always returned with the child each time they had
traveled to Israel.
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The court also found that as soon as the parties separated in late 2007, G.
expressed her desire to return to Israel and her family to raise Joey. Still, Jonathan paid
for a lawyer to help G. get a green card and permanent resident status in the United
States. When the support she received from Jonathan fell below what she considered
adequate, she decided to return to Israel and stopped her efforts. G.’s current
immigration status requires her to leave the United States when the custody case is
concluded.
The court found that G. was not negligent in abandoning her immigration claim,
because “the claim itself was probably based on false contentions.” G. admitted that she
had falsely stated that she attended Tel Aviv University and had been a captain in the
Israeli army (although she did serve). As her qualifying work was with one of Jonathan’s
companies, he would be in a position to disclose the misrepresentations, and would use
that power to control her. G. simply did not wish to remain in the United States as a
permanent resident, and had good faith reasons to relocate to a country where she could
obtain employment independent of Jonathan, be near her family for emotional and
financial support, and find a better environment to raise Joey.
The court found a variety of events (including the false statements on the visa
application) showed G.’s “situational ethics and [that she] will deviate from truth if it is
in her interest.” G. had taken prizes that she had not won at a charity picnic, and
encouraged Joey to say he was six to get on a ride at Legoland when he was a few
months shy of that age. None of these events, however, was directly related to her
parenting. Joey, who had been primarily raised by G., had been troubled by lying about
his age, which showed that he had internalized a positive value system.
An earlier order had required G. and Jonathan to use a website
(Ourfamilywizard.com) to communicate about Joey. While G. used the website less than
Jonathan and often did not respond to his frequent and detailed emails, the court found
“generally credible that the email system was simply too difficult for her in the way it
was established,” given her dyslexia and ADHD (established by an expert’s declaration).
Although G. smoked, there was no evidence that she did so in the presence of the child.
4
The parties’ tendency to “engage in mutual verbal combat” was not inflicted on or shared
with Joey. G.’s and Michelle’s mutual animosity showed no alienation of Joey or
attempts to interfere with each other’s relationship with him.
Jonathan also intended to move away from his house in Beverly Hills (to Santa
Barbara, La Jolla, or Carmel), which diminished his ability to provide stability in physical
surroundings. Whichever parent Joey lived with, Joey would experience a new home,
school, and friends. A move to Israel would reduce his time with his stepbrother Ryan,
and the court weighed that detriment against the greater detriment if he were not
permitted to relocate to Israel with his mother.
The court found no evidence that G. had mental health or disability issues causing
harm to Joey. As to the parties’ considerable attempts to raise issues regarding each
other’s character, Dr. Aloia had testified that Joey was “an exceptional child,” and as
Joey had spent more time with G., whatever character defects she might have did not
produce a negative effect. Dr. Aloia had testified that she was a “good competent and
acceptable parent.” While G. alleged misbehavior by Jonathan in his interactions with
her, no evidence showed that he behaved inappropriately with Joey, and Jonathan was
equally acceptable as a parent.
Neither parent would fail to cooperate with court orders. Jonathan would “without
hesitation” foster G.’s and Joey’s relationship. Although G. had shown some controlling
behavior, she also had tried to encourage Jonathan’s participation in Joey’s life and to
share information with Jonathan, and would do so in the future. G. has a tendency to “lie
or shave the truth in circumstances that she perceives [to be] to her benefit but that are
not generally harmful to others.” She was the more controlling in her relationship with
Jonathan, and had a sense of dominion over Joey, but the evidence did not show that she
tried to alienate Joey from Jonathan, instead consistently showing that she wished to
involve Jonathan in Joey’s life. “The court does not believe that [Gal] will use her larger
timeshare to keep important information from [Jonathan] or attempt to exclude him from
the child’s life or attempt to alienate the child from him.”
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Joey would suffer detriment from the move “without question,” so the court must
seek the custody schedule that gives him the least detriment. Significant evidence
showed that his connection to G. was stronger. Dr. Aloia had testified that Joey’s
emotional connection to G. would tip the balance in G.’s favor if he had to choose, and
the court had gleaned from undisputed testimony the strength of Joey’s relationship with
G., supported by G.’s history of providing Joey’s primary care.
Joey had already lived in Israel for longer periods of time with G., was fluent in
Hebrew and accustomed to the Israeli lifestyle, and the presence there of significant
family members was an additional positive factor. Jonathan would not be “‘losing
custody.’” Although his time-share would decrease, it would still be as much as 25 to 40
percent including visits to Israel, which Jonathan could afford.
“This was obviously a close and difficult case and the basis of the court[’]s
decision is a somewhat slender reed on which to base such a momentous change.
However, change must occur in the life of the child and his parents and whether the scale
is tipped heavily or only lightly, the court must rule in the direction where it tips.”
The court reviewed and summarized its findings under In re Marriage of LaMusga
(2004) 32 Cal. 4th 1072 (LaMusga) and In re Marriage of Condon (1998) 62 Cal. App. 4th
533 (Condon), and provided details of the order for joint legal and physical custody.
The court entered judgment on May 17, 2012. Jonathan filed a motion to set aside
and modify the custody order, alleging that he had just discovered that G. had been
driving (sometimes with Joey in the car) on a California driver’s license that had been
suspended on November 26, 2010, following a drunk driving arrest and vehicle impound
in October 2010. G. responded that she had been pulled over in October 2010 but there
had been no arrest and no charges filed. G. had a valid international license, and she had
learned for the first time when she received Jonathan’s motion that her California license
had been suspended. She immediately went to the Department of Motor Vehicles, which
confirmed that there was no case against her and her alcohol level had been well within
legal limits, lifted the suspension, and issued her an interim California license.
6
At a hearing in August 2012, G. testified that in October 2010 she had been pulled
over and taken to a highway patrol station, where she had been tested and told that her
blood alcohol level was very low. She showed the officer a temporary California license,
which was returned to her. She had not been given a ticket, or told that her California
license would be suspended. The court stated that it believed G. had a valid temporary
California license at the time she was stopped, that G. had not been arrested (based on the
DMV’s setting aside of the suspension), that G.’s description of what occurred when she
was stopped was correct, and that although she had been driving on a suspended license
(once her California license was suspended, all other licenses were suspended as well),
she could reasonably have believed that she had a valid license to drive (as she also
believed her Florida and international licenses were valid). Joey’s care had not suffered.
The court also declined to set aside its judgment based on G.’s failure to advise Jonathan
about Joey’s ongoing swimming lessons that summer.
In an order filed November 13, 2012, the trial court denied the motion to set aside
and to modify. Jonathan filed this timely appeal.
DISCUSSION
The trial court noted that each party disputed multiple issues and incidents
reflecting poorly on the character and parenting ability of the other, most of which were
not central to its findings. Similarly, such incidents (which Jonathan continues to
discuss) do not control our decision.
I. The trial court was not required to make findings under Family Code1 section
3048.
Jonathan argues that the court failed to make necessary findings regarding whether
measures were necessary to prevent G. from abducting Joey. Section 3048, subdivision
(b)(1), requires eight such findings in a custody order when “the court becomes aware of
facts which may indicate there is a risk of abduction of a child.” Jonathan points out that
1All further statutory references are to the Family Code unless otherwise
indicated.
7
the 2010 temporary custody order (by a different judge) states that “because of [Gal’s]
immigration status, the Court has a responsibility to make a 3048 order,” but the
temporary order also “makes no finding that there is a risk that [Gal] would violate the
court orders.” The judge who presided over trial concluded in the 2012 statement of
decision that there was no showing that G. was unlikely to comply with future custody
orders or was likely to refuse to return Joey to the United States during Jonathan’s
appointed custody times. G. had traveled to Israel a number of times with Joey and had
always returned, and in 2009, when her father was diagnosed with cancer, she returned
with no compulsion when her family obligations were satisfied. Nevertheless, the court
did require G. to register the judgment with the Israeli court system and to stipulate to
continuing jurisdiction of the California court, and ordered that G. (who did not have the
financial resources to post a bond) would forfeit all child support if she failed to comply
with any court order, as provided under section 3048, subdivisions (b)(2)(B) and
(b)(2)(H).
No findings under section 3048, subdivision (b)(1) were required given the trial
court’s finding that there was no risk that G. would abduct Joey.
II. The trial court imposed adequate protective measures.
Jonathan argues that the court imposed “grossly inadequate” protections for
international relocation in violation of Condon, supra, 62 Cal. App. 4th 533. Condon
established that a child’s best interest in an international relocation case requires
guaranteed enforceability of the California custody order in the foreign country (there,
Australia). (Id. at p. 547.) The court of appeal concluded that the trial court erred in
failing to guarantee enforceability, and on remand the judgment must require a
concession to California’s continuing jurisdiction, and must create sanctions to enforce
that concession: “At a minimum, such sanctions should include the posting of an
adequate monetary bond within [the relocating parent’s] means and the potential
forfeiture of all or some support payments upon proof [the parent] is disregarding
essential terms of the court order or has violated the concession of jurisdiction by
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pursuing modification of the California order in the [foreign country’s] courts.” (Id. at
p. 562.)
Here, the order included a requirement that before leaving California for Israel, G.
must file a stipulation consenting to California’s continuing jurisdiction and further
stipulate that she would not file any action seeking modification in any but a California
court; she also must file the stipulation in the Israeli courts. G. was further required to
register the judgment with the Israeli court system and submit and file proof of such
registration. The court found that G. did not have adequate resources to establish a bond.
Therefore, the court ordered that 15 days after Jonathan filed a declaration contending
that G. violated any custody order, all child support would be deposited into a trust
account established and owned by Jonathan with G. as a beneficiary, to be used to pay for
the costs of any litigation; anything left over would be paid to G.
Jonathan argues that the absence of a bond is fatal. He does not dispute the court’s
finding that G. did not have the resources to post a bond, however, and Condon refers to a
bond within the relocating parent’s means. (Condon, supra, 62 Cal.App.4th at p. 562.)
Condon also contemplates another possibility, “whether or not the move-away parent has
the funds to post a substantial bond,” in the form of terminating or reducing child support
payments if the custodial parent attempts to frustrate the custody order and the foreign
court refuses to enforce it. (Id. at p. 548.) Under the circumstances in Condon (where
the mother had once moved the children to France and had defied a court order by
removing the children to Australia without allowing any access to the father), the court of
appeal commented that registration of the California custody order with Australia, does
not provide “absolute protection.” The children were Australian citizens and residents,
and had previously resided for long periods of time in Australia. A court would likely
consider them “‘settled’” there, and so would not make an order requiring their return to
California. (Id. at pp. 557, 559–560.) In this case, however, the court found that G.
could not afford to post a bond, and the circumstances do not show the same risk as in
Condon that a court would fail to enforce the California order.
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The trial court’s order in In re Marriage of Abargil (2003) 106 Cal. App. 4th 1294
(Abargil) required the mother moving to Israel to register the judgment in the Israeli
courts and file her stipulation consenting to the judgment and California’s continuing
jurisdiction in the Israeli courts. “[T]he judgment had teeth to compel [her] adherence
because it required her to post a bond or other surety to ensure her compliance,”
consistent with Condon’s provision that a “court may fashion creative mechanisms such
as bond and cut off of financial support to ensure overseas compliance.” (Id. at p. 1300.)
There was no provision for forfeit of support in the event of violation, and the court did
not require such a sanction on remand. (Id. at pp. 1303–1304.) The court here took the
circumstances into account and given that G. could not afford to post a bond, the order
imposed a reasonable sanction should she fail to comply with the court’s custody order,
allowing Jonathan to keep his support payments in trust 15 days after he filed a
declaration alleging a violation.
Jonathan also argues that the court should have imposed four additional
conditions, none of which he supports with authority. The trial court did not abuse its
discretion in declining to go beyond what Condon requires.
III. The custody order was not an abuse of discretion.
We review the custody order for an abuse of discretion, measuring “whether the
trial court could have reasonably concluded that the order in question advanced the ‘best
interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal. 4th 25, 32 (Burgess).)
No matter the reasoning of the trial court, we must uphold the ruling if it is correct on any
basis. (Ibid.) We draw all reasonable inferences in support of the court’s ruling and
defer to the court’s express or implied findings when supported by substantial evidence.
(In re Marriage of Catalano (1988) 204 Cal. App. 3d 543, 548.) We may reverse if the
trial court applied improper criteria or misunderstood the law, as then the court has not
properly exercised its discretion. (F.T.v. L.J. (2011) 194 Cal. App. 4th 1, 15.)
Jonathan appeals from an initial permanent custody order. “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.’ ( . . . § 3040, subd. (b).) It must look to all the
10
circumstances bearing on the best interest of the minor child.” (Burgess, supra, 13
Cal.4th at pp. 31–32.) “In addition, in a matter involving immediate or eventual
relocation by one or both parents, the trial court must take into account the presumptive
right of a custodial parent to change the residence of the minor children, so long as the
removal would not be prejudicial to their rights or welfare. ( . . . § 7501 . . . .)” (Id. at
p. 32.)
The Family Code has no preference or presumption regarding any arrangement for
custody and visitation, and “under . . . section 7501, the ‘general rule [is that] a parent
having child custody is entitled to change residence unless the move is detrimental to the
child.’” (Burgess, supra, 13 Cal.4th at p. 35.) “A trial court may consider the extent to
which the minor children’s contact with their noncustodial parent will be impaired by
relocating. In so doing, however, it is not restricted to any particular formula for contact
or visitation; nor is it required to make a custody determination that preserves
the . . . status quo.” (Id. at p. 36.) “The dispositive issue is, accordingly, not whether
relocating is itself ‘essential or expedient’ either for the welfare of the custodial parent or
the child, but whether a change in custody is ‘“essential or expedient for the welfare of
the child.”’” (Id. at p. 38.) A change is essential or expedient if it is in the child’s best
interest. (LaMusga, supra, 32 Cal.4th at p. 1098.)
A. The trial court considered Joey’s best interest.
Jonathan argues that the trial court applied the wrong standard in making the
custody order, neglecting the best interest standard and focusing entirely on the relative
detriment to Joey of awarding primary physical custody to G. or to Jonathan. The
statement of decision belies that claim. The trial court began by stating that in making
the initial permanent custody order, it had the broadest discretion to determine what
arrangement would be in Joey’s best interest. In the abstract, Joey’s best interest would
be served if neither G. nor Jonathan were to relocate and if they continued to share
custody equally. Given the circumstance of G.’s return to Israel, “the court must base its
order on the child’s best interest under those circumstances,” determining “how the
child’s interest will best be served by that living arrangement that causes him the least
11
detriment after one parent moves away.” The court also considered the detriment to
Joey’s relationship with Jonathan’s stepson Ryan and stepmother Michelle. Joey was
closely bonded to both parents, and “[h]e will suffer detriment from the move without
question. Thus, the court order should be for a schedule that gives him the least
detriment.” Joey’s connection to G. was stronger, so “he would suffer more detriment by
losing that connection to his mother for the longer period of time.”
The court’s discussion of detriment does not mean it did not base its order on
Joey’s best interest. When one parent proposes a move, “it is within the wide discretion
of the superior court to order a change in custody based upon such detriment [to the
relationship between the child and the noncustodial parent], 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.) In this case, the parents could not continue to share physical custody equally.
The court was correct to consider whether Joey’s relationship with G. would suffer more
detriment if Joey stayed behind while G. moved to Israel, leaving Jonathan with the
larger share of physical custody, or if Joey’s relationship with Jonathan would suffer
more detriment if Joey moved to Israel with G., leaving G. with the larger share of
physical custody. Acknowledging that this was a delicate and difficult decision, the court
concluded that Joey’s closer bond with G. meant that he would suffer a greater detriment
if she were the parent with a lesser share of physical custody, and given all the
circumstances discussed in the lengthy statement of decision, it was in Joey’s best interest
to reside primarily with G. in Israel.
The trial court in F.T. v. L.J., supra, 194 Cal. App. 4th 1 declined to address the
question of which custody arrangement would be in the child’s best interests,
“misunderstanding and/or avoiding the fundamental question before it.” (Id. at p. 22.)
Further, the trial court erroneously required the moving parent to show that the planned
relocation was necessary, and focused excessively on the detriment to the child’s
relationship with the nonmoving parent without considering the detriment to the child’s
relationship with the relocating parent if the child stayed behind. (Id. at p. 23.) The court
of appeal found an abuse of discretion for those reasons and others, including that
12
insufficient evidence supported some of the trial court’s findings. (Id. at p. 25.) F.T. v.
L.J. does not require us to find an abuse of discretion, as here the trial court understood
and applied the proper standard.
B. The trial court made the necessary findings.
Under the “heart-wrenching circumstances” in move-away custody cases, the “law
is not amenable to inflexible rules.” (LaMusga, supra, 32 Cal.4th at p. 1101.) Our
Supreme Court listed eight factors “[a]mong [those] that the court ordinarily should
consider” in relocation cases when deciding whether to modify custody. (Ibid.)
Jonathan argues that the trial court failed to make a finding regarding Joey’s
“interest in stability and continuity in the custodial arrangement.” (LaMusga, supra, 32
Cal.4th at p. 1101.) To the contrary, the court considered Joey’s interest in a stable
arrangement throughout the statement of decision, noting that Jonathan’s intent to
relocate meant that even in California there would be an effect on the stability of Joey’s
physical surroundings, and that given Joey’s closer bond with G., emotional stability
would be best achieved if Joey spent the school year with G. in Israel. Jonathan reargues
the evidence, but substantial evidence supports this finding.
We easily reject Jonathan’s next argument (that the court failed to make findings
regarding “the reasons for the proposed move”). (LaMusga, supra, 32 Cal.4th at
p. 1101.) Citing its own conclusions and Dr. Aloia’s findings, the court concluded that
G. “has valid good faith reasons for her wish to relocate. She wishes to be near her
family in a country where she can obtain employment not associated with [Jonathan],
where she will not be as dependent upon [Jonathan], where she can obtain emotional and
financial support and where she believes she will find a better environment for raising the
child.” These findings are based on substantial evidence, and we must remember that
there is no dispute that G.’s immigration status requires her to return to Israel when the
custody litigation is at an end. The court “may consider whether one reason for the move
is to lessen the child’s contact with the noncustodial parent” (id. at p. 1100, italics added),
but “in the end the trial court was not persuaded. In its statement of decision, the court
13
did not find [the moving parent’s] motives to be impure. All conflicts in the evidence are
drawn in favor of the judgment.” (Niko v. Foreman (2006) 144 Cal. App. 4th 344, 364.)
Jonathan faults the trial court for not finding which parent was most likely to
ensure that Joey would have frequent and continuing contact with both parents. This is
not a factor in LaMusga, supra, 32 Cal. 4th 1072, but a factor to be considered in whether
to grant sole custody to either parent under section 3040 (a)(1), which is not in issue here.
Nevertheless, the trial court did conclude that even before court involvement G. had
attempted to “include and involve” Jonathan in Joey’s life, and she would not use her
larger time-share to exclude Jonathan, showing “a willingness to take all necessary and
proper steps to maintain [Jonathan’s] connection with” Joey. Dr. Aloia initially
expressed some concern in his report, but after he reviewed additional information, he
testified that he had no serious concerns that G. would not foster a relationship with
Jonathan if Joey moved to Israel with G. G.’s difficulties with email were not evidence
that she intended not to foster a relationship between Joey and Jonathan.
Jonathan argues that the court did not find compelling circumstances to justify
Joey’s separation from his stepbrother, Michelle’s son Ryan. In a move-away case where
the trial court split the parents’ four biological children, allowing two to move with the
mother while two remained with the father, both parents argued that separating the
siblings was an abuse of discretion. (In re Marriage of Williams (2001) 88 Cal. App. 4th
808, 811–812 (Williams).) The court of appeal agreed that the trial court abused its
discretion when it “‘split the babies’” and made no findings regarding the adverse effect
on the children, with no testimony, psychological evaluations, or evidence about the bond
between the siblings or how the separation would affect their best interests. (Id. at
p. 813.) Such a split required the trial court to articulate “compelling circumstances.”
(Id. at pp. 814–815.) Similarly, in a custody dispute after a mother with primary physical
custody of two biological brothers moved to another county, the court awarded custody
of one brother to the mother and one to the father, with no testimony or evidence
regarding the needs of the brothers or their relationship (counsel represented that one
brother was autistic, which the father argued had a negative effect on the other child’s
14
development). (In re Marriage of Heath (2004) 122 Cal. App. 4th 444, 447–448 (Heath).)
The court of appeal relied on Williams to conclude that where the record was silent as to
the “potential detriment of their separation,” there was no proof of “compelling
circumstances,” making it an abuse of discretion to separate the children based on
“[s]peculation by lawyers, conflicting argument on behalf of parents, and ‘hunches’ of
judges.” (Heath, supra, 122 Cal.App.4th at p. 450.) Detriment also could not be
presumed from the alleged disability of one of the brothers. (Ibid.) The court reversed
and ordered separate counsel appointed for each brother. (Id. at p. 452.) No case has
extended the reasoning in Williams and Heath to stepsiblings.
We decline to apply the “compelling circumstances” requirement to this case.
Ryan, who is four years older than Joey, is not Joey’s biological sibling. We grant
Jonathan’s request for judicial notice of his adoption of Ryan in October 2013, but this
postjudgment alteration in Jonathan’s legal relationship with Ryan does not change
Joey’s relationship with Ryan for the purpose of our analysis. Joey was born in
September 2005. Jonathan married Michelle in July 2008, when Joey was nearly three
and G. had primary physical custody. Jonathan has had equal physical custody of Joey
since June 2010, when Joey was nearly five.
Unlike in Williams and Heath, there was ample evidence and testimony regarding
the boys’ relationship. Dr. Aloia testified at trial that Joey’s close relationship with Ryan
was very important, and breaking that bond would be a detriment, but was not the
primary issue: “Take Ryan out of this. He’s not a parent.” The bond had strengthened
since his initial report 15 months ago and the boys were now “virtually inseparable.”
Nevertheless, Dr. Aloia foresaw no difficulty for Joey in resuming that close relationship
when he returned to California for Jonathan’s portion of custody. The trial court took the
evidence into account in determining Joey’s best interest, recognizing that Joey was close
to Ryan and the move would reduce their time together, mitigated by Joey’s substantial
time with Jonathan and the ability to communicate electronically.
Equating the relationship of a stepsibling with whom a child has spent half of his
time since the age of five with that between a child and his biological sibling would be
15
inappropriate, and requiring compelling circumstances to separate stepsiblings would
affect all cases in which the subject of a custody dispute has a blended family. The court
appropriately evaluated the evidence regarding the boys’ relationship, and was not
required to find compelling circumstances to allow their separation during the time that
G. and Joey reside in Israel.
Jonathan points out that the trial court failed to make a specific finding regarding
G.’s willingness to put Joey’s interests above her own. While this is one of the eight
factors in LaMusga, supra, 32 Cal.4th at p. 1101, among those that a trial court ordinarily
should consider, the absence of a specific finding does not mean that the custody decision
was an abuse of discretion.
Finally, Jonathan argues that the trial court failed to determine which parent would
be a better moral role model, and that the court failed to determine which parent would
“best serve Joey’s interest in becoming a well-educated and competent adult.” He cites
no legal authority requiring those specific findings, and so we do not consider his
arguments. (Abargil, supra, 106 Cal.App.4th at p. 1300.)
IV. The trial court did not abuse its discretion in refusing to set aside the
judgment.
The same abuse of discretion standard applies to our review of the denial of
Jonathan’s motion to set aside the judgment, with Jonathan bearing the burden to make
“‘a clear showing of an abuse in the exercise of such discretion.’” (Roberts v. Roberts
(1966) 245 Cal. App. 2d 637, 639.)
Jonathan argues that the trial court “compounded its prior errors” in failing to set
aside the judgment based on the new evidence regarding the suspension of G.’s
California driver’s license. We described above the court’s findings, which are based on
substantial evidence, that the license had been suspended in error and G. did not know
about the suspension. Jonathan has not shown that the denial of the motion to set aside
was an abuse of discretion.
16
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
JOHNSON, J.
We concur:
CHANEY, Acting P. J.
WILEY, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
17
Filed 8/6/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
J.M., B242123
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BF037073)
v. CERTIFICATION AND
ORDER FOR PUBLICATION
G.H.,
Defendant and Respondent.
The opinion in the above-entitled matter filed July 29, 2014, 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.
CHANEY, Acting P. J. JOHNSON, J. WILEY, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.