D.L. v. E.L. CA4/2

Filed 3/28/23 D.L. v. E.L. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
D.L.,
Appellant, E077561
v. (Super. Ct. No. HED1800300)
E.L., OPINION
Respondent.
APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge.
Affirmed.
Law Office of Melissa J. Schmitt, and Melissa J. Schmitt, for Appellant.
E.L. in pro. per., for Respondent.
I.
INTRODUCTION
D.L. appeals the family court’s order denying his request for a change of custody
over his minor son, L.A.L. We affirm.
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II.
FACTUAL AND PROCEDURAL BACKGROUND
D.L. and E.L. had L.A.L. in July 2015. They never married and separated when
L.A.L. was a toddler.
In June 2020, while D.L. and E.L. were living in Riverside County, the Riverside
County Family Court ordered that they would share joint legal and physical custody over
L.A.L. The court also ordered that L.A.L. would reside primarily with E.L. while staying
with D.L. on the first, third, fourth, and fifth weekends during the school year, and they
would share time equally during the summer on a week on/week off basis.
About 11 months later, D.L. filed a Request for Order (RFO) seeking a change in
the custodial arrangement. D.L. asked the family court to change its previous order so
that he would have primary physical custody of L.A.L. at his home in an unidentified
place in San Diego County and E.L. would have weekend visits. D.L. explained that he
was concerned for L.A.L. because E.L. had moved with him to Chino Hills in San
Bernardino County and purportedly could not provide for his care during the workweek.
E.L. opposed the RFO, arguing that she had always adequately cared for L.A.L. and
would continue to do so in Chino Hills.
The family court denied D.L.’s request. The court explained that “the current
orders” were made “not even a year ago,” and ruled that they would remain the same “in
the interest of keeping continuity.” The court then reiterated its orders that (among other
things) the parents would share joint legal and physical custody, E.L. would have primary
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physical custody, and D.L. would have visits on the first, third, fourth, and fifth
weekends. D.L. timely appealed.
III.
DISCUSSION
D.L. argues the family court erred because it failed to apply seven of the eight
factors for ruling on his “move-away” request outlined in In re Marriage of LaMusga
(2004) 32 Cal.4th 1072 (LaMusga) and found that his request was not a move-away
request. We find no prejudicial error.
At the beginning of the hearing on D.L.’s RFO, his counsel argued the RFO was
“a technical move-away, as [D.L.] is seeking to move . . . to San Diego County.” The
family court replied, “No, it’s not a move-away, counsel. It’s not a move-away. It’s not.
It’s 77 miles. It’s 35 miles from the current residence.”
A move-away request is when “one parent seeks to relocate with the minor
child[].” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 40, fn. 12.) Given that D.L.
sought to move L.A.L. from Chino Hills in San Bernardino County to San Diego County,
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which is at least 72 miles away, his RFO was a move-away request. (See id. at p. 28
[holding proposed move of 40 miles from Tehachapi to Lancaster was a move-away
request]. But even though the family court incorrectly found otherwise, it properly
denied D.L.’s RFO under LaMusga.
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As D.L. notes, the part of San Diego County nearest to Chino Hills is Oceanside,
which is about 73 miles from Chino Hills.
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In LaMusga, our Supreme Court held that family courts “ordinarily should
consider” the following eight factors in move-away cases: (1) the child’s interest in
stability and continuity in the custodial arrangement, (2) the distance of the move, (3) the
child’s age, (4) the child’s relationship with both parents, (5) the relationship between the
parents, including, but not limited to, their willingness to put the child ’s interests above
their own, (6) the child’s wishes if the child is mature enough for this inquiry to be
appropriate, (7) the reasons for the proposed move, and (8) the extent to which the
parents currently share custody. (LaMusga, supra, 32 Cal.4th at p. 1101.)
The LaMusga court cautioned, however, that the family court may consider other
factors bearing on the child’s best interest. (See LaMusga, supra, 32 Cal.4th at p. 1101
[“[T]his area of law is not amenable to inflexible rules.”]; Jane J. v. Superior Court
(2015) 237 Cal.App.4th 894, 905 [“list of [LaMusga] factors is not exhaustive”]; see also
In re Marriage of Burgess, supra, 13 Cal.4th at p. 39.) Thus, “[t]he weight to be
accorded to such factors must be left to the [family] court’s sound discretion.”
(LaMusga, supra, at p. 1093.) As a result, we review the family court’s decision denying
D.L.’s move-away request for an abuse of discretion, and will reverse only if “there is no
reasonable basis on which the court could conclude that its decision advanced the best
interests of the child.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125;
accord, Niko v. Foreman (2006) 144 Cal.App.4th 344, 364; see also Marriage of Bryant
(2001) 91 Cal.App.4th 789, 793 [family court has “‘“the widest discretion to choose a
parenting plan that is in the best interest of the child”’”].)
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The family court here reasonably found that changing the custodial arrangement
was not in D.L.’s best interests. After observing that the parties’ custodial arrangement
had been decided less than a year prior, the family court found that it was in D.L.’s best
interests to keep the arrangement the same. As D.L. acknowledges, the family court thus
applied the first LaMusga factor in making its decision. We must give great deference to
this decision and cannot conclude on this record that there was “no reasonable basis” for
it. (Mark T. v. Jamie Z., supra, 194 Cal.App.4th at pp. 1124-1125.)
D.L.’s main argument on appeal is that the family court’s order should be reversed
because the court did not analyze seven of the LaMusga factors. Thus, in D.L.’s view,
the family court failed to consider whether there were “changed circumstances
warranting a different arrangement.”
We reject the argument for two reasons. First, although the family court
“ordinarily should consider” all of the LaMusga factors, the court may permissibly
consider only one (or none) of the factors in ruling on a RFO if its decision is in the best
interests of the child. (See LaMusga, supra, 32 Cal.4th at p. 1093; Jane J. v. Superior
Court, supra, 237 Cal.App.4th at p. 905.) The trial court here reasonably found that the
first LaMusga factor—the child’s interest in stability and continuity in the custodial
arrangement—justified keeping the same custodial arrangement. In doing so, the family
court necessarily (if impliedly) found there were no changed circumstances that
warranted modifying the custodial arrangement. Second, D.L. makes no attempt to
explain how the family court’s alleged failure to consider seven of the eight LaMusga
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factors prejudiced him. He thus fails to show that the family court’s reliance on only one
of the LaMusga factors was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1291
[appellant must show the family court prejudicially abused its discretion erred].) We
therefore affirm the family court’s order denying his RFO.
IV.
DISPOSITION
The family court’s order denying D.L.’s RFO is affirmed. E.L. may recover her
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.
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