Marriage of Sloan CA2/6 ( 2021 )

Filed 7/22/21 Marriage of Sloan CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of SCOTT and 2d Civ. No. B309309
JENNIFER SLOAN. (Super. Ct. No. 1469098)
(Santa Barbara County)
SCOTT J. SLOAN,
Appellant,
v.
JENNIFER BUBALO SLOAN,
Respondent.
Father appeals an order denying his motion for a change in
custody and visitation with his daughter. We affirm.
FACTS
Scott and Jennifer Sloan were married for seven years
before separating and ultimately dissolving their marriage. A
daughter of the marriage, B., was born in February 2014.
Jennifer moved to Pasadena and Scott remained in Santa
Barbara after the dissolution.1
In September 2017, the parties stipulated to a judgment
that includes custody provisions. The parties agreed that
Jennifer would have “primary physical custody” of B. and Scott
would have “secondary physical custody” pursuant to the “time-
sharing plan” set forth in the stipulated judgment.
In addition to certain holidays, the time-sharing plan gives
Scott custody every other weekend and weekly midweek
overnight visits with B.
The time-sharing plan recognized that the midweek
overnight visits would not be practical once B. enters
kindergarten. The plan provides: “The Parties acknowledge that
when [B.] begins kindergarten, it will not be possible for [Scott] to
exercise the mid-week visits set forth in hereinabove, assuming
[Scott] is residing in Santa Barbara and/or he is residing more
than 50 miles from [B.’s] school. Therefore, at least sixty (60)
days prior to [B.] commencing kindergarten, the Parties shall
meet and confer, with a mutually agreeable therapist/mediator if
necessary solely with regard to establishing appropriate custodial
time for [Scott] and [B.] in replacement of his midweek visit.”
Scott used a second home he owned in Pasadena for the
midweek visits. Santa Barbara remained his principal residence.
In March 2019, the parties entered into a stipulation
modifying child custody. The stipulation did not end the
midweek visits. Instead, it adjusted the pick-up and drop-off
times and changed the summer schedule to alternate the
midweek visits between Pasadena and Santa Barbara. For
1 For the sake of clarity, we refer to the parties by their
first names. No disrespect is intended.
2.
unexplained reasons, the stipulation was not signed and filed
until August 2019.
In April 2020, California issued stay-at-home orders in
response to the COVID-19 pandemic. Scott notified Jennifer that
it was no longer safe to continue the midweek visits and that it
was in B.’s best interest that they be discontinued. The visits
every other weekend, however, continued.
Scott wanted an adjustment in his visitation to compensate
for the loss of his midweek visits. But, despite mediation, the
parties could not agree.
In August 2020, Scott filed the instant motion to modify
custody to replace the midweek visits with more weekend and
summer visitation. Among other modifications, Scott requested
the first, third, and fifth weekend of each month instead of every
other weekend, and every other week during the summer instead
of every other weekend. Scott also wanted additional custody
weekends where Jennifer’s holiday or vacation custody would
supplant Scott’s regular visitation.
Jennifer opposed Scott’s motion. Jennifer proposed that
Scott have visitation every other weekend during the school year
from Friday to Sunday and during the summer every other
weekend from Thursday to Sunday. B. spends two weeks with
each parent during the summer. Scott has B. for one-half of the
holidays.
Neither Scott nor Jennifer proposed reinstating the
midweek visits.
Ruling
The trial court stated that it is very familiar with the case;
it has been heavily litigated for years. The court found that the
paramount need for continuity and stability in custody
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arrangements and the harm that may result from disruption of
the established patterns of care weigh heavily in favor of
maintaining ongoing custody arrangements. (Citing In re
Marriage of Burgess (1996) 13 Cal.4th 25, 33.) The court found
that continuity and stability are in the best interest of the child.
The court ruled that “Scott has not met his burden of proof to
establish that upending [B.’s] schedule is in her best interest.”
The trial court ordered the custody schedule proposed by
Jennifer.
Scott made a motion to clarify the trial court’s order. The
court treated it as a motion for reconsideration and denied the
motion.
DISCUSSION
I
Legal Standard
Scott contends that the trial court applied the wrong legal
standard.
Scott concedes that the standard of review of a custody
order is abuse of discretion. (In re Marriage of Richardson (2002)
102 Cal.App.4th 941, 948.) He claims, however, that the trial
court abused its discretion by applying the wrong legal standard
in requiring him to show a change of circumstances. Scott relies
on the court’s finding that “[he] has not met his burden of proof to
establish that upending [B.s] schedule is in her best interest.”
Scott argues that because the original judgment did not
contain a final custody order, the legal standard is best interest of
the child, and that he need not show a change of circumstances.
(Citing In re Marriage of Richardson, supra 102 Cal.App.4th at
p. 952.) In addition, Scott points out that the best interest of the
child standard, and not the changed circumstances rule, applies
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where, as here, a parent requests only a change in parenting or
visitation arrangement, not amounting to a change from joint to
sole custody or vice versa. (In re Marriage of Lucio (2008) 161
Cal.App.4th 1068, 1072.)
But the trial court applied the proper legal standard of the
best interest of the child. The court stated in its ruling, “When
determining the best interest of the child, stability and continuity
are paramount.” Accordingly, the order for custody and visitation
is very close to what B. had already been experiencing.
The trial court’s finding that Scott failed to meet his
burden, to show that changing B.’s schedule is in her best
interest, did not require Scott to show a change of circumstances.
All Scott had to show is that it is in B.s best interest to adopt his
proposed custody schedule. Scott failed to show that.
Nowhere in the trial court’s ruling does it mention changed
circumstances or any similar term. There is simply no basis for
claiming the court applied the wrong legal standard.
For the first time in his reply brief, Scott contends that
reversal is required even assuming the trial court applied the
best interest of the child standard. Scott cites no reason why he
could not have raised this contention in his opening brief. The
court’s ruling is unequivocally based on the best interest of the
child standard. Points raised for the first time in the reply brief
will not be considered. (9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 723, p. 790.)
Terms of Original Judgment
Scott contends the trial court abused its discretion in
failing to consider the terms of the original judgment.
Scott points out that under the terms of the original
stipulated judgment, once B. starts kindergarten, the parties
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shall meet and confer for the purpose of “establishing appropriate
custodial time for [Scott] and [B.] in replacement of his midweek
visit.” (Italics added.) Scott argues the trial court’s order did not
replace his lost midweek custodial time; instead the order
diminished it.
Scott points to nothing in the record to show that the trial
court did not consider the original judgment. The court’s order
did increase Scott’s biweekly custodial time during the summer
by adding a Thursday to the weekend visits. Nothing in the
judgment requires that the replacement be one-for-one, or that
adjustments cannot be made that have the effect of diminishing
Scott’s total visitation time.
In any event, although the parents’ stipulations may be
helpful, the trial court is not bound by them. (Stewart v. Stewart
(1955) 130 Cal.App.2d 186, 193.) Instead the trial court is tasked
with making an independent determination of the best interest of
the child. (Ibid.) That is what the trial court did here.
Framework and Approach
Scott contends the trial court, across the board, applied the
wrong framework and approach.
The trial court is highly experienced and is very familiar
with this case. The case has been heavily litigated for years.
Scott’s most recent request to modify custody prior to this one
was heard less than a year prior. The court is very familiar with
the parties, the original stipulated judgment, and with B.’s needs.
The court applied the correct best interest of the child standard.
The trial court considered Scott’s claim that the custody
order creates significant gaps in his custody and rejected it. Scott
points to no evidence whatsoever that the custody order as it
stands will have a negative effect on B. or his relationship with
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her. The trial court could reasonably conclude that the order
fulfills the policy of ensuring that B. has frequent and continuing
contact with both parents. (Fam. Code, § 3020, subd. (b).)
Scott believes that what he views as an adverse outcome is
a result of Jennifer misleading the trial court as to the legal
standard and her ad hominem attacks against him. But the
court’s ruling shows that the court applied the correct legal
standard, and it was based on B.’s need for continuity and
stability, not on Jennifer’s personal attack against Scott.
Factual Assumptions
Scott contends the trial court’s order was made on the
erroneous factual assumptions that he sought to increase his
custody, and that the order gave B. contact with him consistent
with or similar to the stipulated judgment.
Scott claims that, in fact, under his proposal, his total time
with B. would be reduced considering the loss of his midweek
visits. In addition, he claims the order was neither consistent
with nor similar to what is required under the stipulated
judgment.
Scott misrepresents the trial court’s ruling. The court did
not find or assume that Scott sought to increase the total amount
of his custody time or that the court’s order was consistent with
the judgment. The court was simply summarizing the position of
the parties.
The trial court stated: “[Scott] seeks to expand his
custodial time to the first, third and fifth weekends of the month.
He seeks to change the exchange location. He seeks
modifications in the holiday schedule and the summer schedule,
including a two-week consecutive block of vacation time for each
party. [¶] Jennifer has opposed Scott’s requests. She contends
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he is seeking to increase his custodial time beyond the
agreements the parties already reached in the Judgment and
subsequent orders and in a manner that is contrary to the status
quo and not in the child’s best interest.”
First, the trial court accurately stated that “[Scott] seeks to
expand his custodial time to the first, third and fifth weekends of
the month.” Scott had only every other weekend.
Second, simply because the trial court ruled generally in
Jennifer’s favor does not mean it adopted all her contentions.
The court’s ruling was based solely on consistency and stability of
custody arrangements being in B.’s best interest.
The judgment (order) is affirmed. Costs are awarded to
respondent.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
8.
Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Wasser, Cooperman & Mandles, Melanie D. Mandles, Jennifer R. Mora;
Misho Law Group, Jacqueline Misho; Greines, Martin, Stein & Richland,
Robert A. Olson and Edward L. Xanders for Plaintiff and Appellant.
Kirker|Wright Law Group, Vanessa Kirker Wright; Drury
Pullen and Susanna V. Pullen for Defendant and Respondent.
9.