In re Marriage of Lamusga 5/10/02 CA1/5

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2002 » In re Marriage of Lamusga 5/10/02 CA1/5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A096012

Case Date: 08/29/2002

Preview:Filed 5/10/02

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

In re the Marriage of SUSAN and GARY LAMUSGA. SUSAN POSTON NAVARRO, Appellant, v. GARY LAMUSGA, Respondent. A096012 (Contra Costa County Super. Ct. No. D95-01136)

Susan Poston Navarro (Mother) appeals a postjudgment order transferring custody of the two sons from her marriage to Gary LaMusga (Father) if she moves to Ohio. She contends the court erroneously denied her, as the custodial parent, the presumptive right to move with the children and that its findings do not support the order. BACKGROUND The parties married in October 1988. Their older son, Garrett, was born May 5, 1992 and their younger son, Devlen, was born May 5, 1994. Mother commenced dissolution proceedings in May 1996 and requested sole physical custody of the children. Father requested joint physical custody. In July 1996, the parties stipulated to a custody evaluation by psychologist Philip Stahl. Dr. Stahl's October 1996 evaluation reported that Mother wanted to move with the children to Ohio, where she is from originally and

1

where her sister lives. Father opposed the move because he believed the environment in Ohio was hostile to him and that he would have no relationship with the children if they moved there. Discussing the proposed move to Ohio, Dr. Stahl opined that the attachment between the children and Father was strong, but the children were not yet old enough to maintain this attachment if they were away from him over long distance and for long periods of time. If they were older, he opined, they would be able to manage the potential insecurity of frequent travel better and could use the telephone and fax machine to offset some of the loss, but a move would be difficult for them at their present age, given their developmental needs. Dr. Stahl further opined that it was important to establish a greater attachment between the children and Father and to stabilize that relationship prior to any move. It was also important for the children to have a reduction in parental conflict, if possible, and to develop a pattern of frequent and continuing contact with Father before a move took place. In December 1996, the parties were granted joint legal custody. Mother was granted primary physical custody, with reasonable visitation to Father. The parties' marriage was dissolved as to status only on December 31, 1997. Mother remarried in September 1998. In November 1998, Father sought a modification to expand his visitation schedule. In December 1998, the court ordered the 1996 visitation schedule to remain in effect except for a modification of the 1998 Christmas holiday visitation schedule and continued the matter for further hearing. In April 1999, the parties stipulated to having Dr. Stahl update his custody evaluation for purposes of recommending, inter alia, whether any change in "the custody timeshare" was appropriate. In September 1999, Mother and her new husband had a daughter. Some time prior to February 2001 Father remarried. On February 13, 2001, before Dr. Stahl submitted his updated evaluation, Mother sought an order modifying visitation and permitting her to move with the children to Ohio. She sought the order because, in addition to having family there, her new husband 2

had accepted a "more lucrative management" position with an Ohio business. Her supporting declaration stated that she informed Dr. Stahl of her new husband's job offer and her wish to move to Ohio with the children. On February 26, 2001, Dr. Stahl submitted his custody evaluation to the court.1 He opined that the children were "split" in their feelings toward the parties, regarding Mother positively and Father negatively. He recommended a schedule in which the children would spend longer blocks of time with Father. He did not recommend that Mother cease being the "primary parent." However, he suggested that if she continued to denigrate Father and reinforce the children's divided feelings, it might be appropriate to modify custody to a true joint arrangement or to transfer primary custody to Father. The evaluation did not address Mother's proposed move to Ohio because the issue was beyond the scope of the evaluation Dr. Stahl had been asked to make. Father filed his opposition to Mother's move-away request after Dr. Stahl had submitted his evaluation. He argued that Mother had engaged in conduct leading to the children's alienation from him, that it was in the children's best interest to have regular and uninterrupted visitation with him, and that a move out of state would frustrate such visitation and markedly increase the potential for further alienation. He also argued that if Mother moved, the current custody arrangement should be modified to provide primary physical custody to him because it would promote the children's best interest and shield them from further harm of alienation and polarization. In March 2001, the court ordered Dr. Stahl to conduct a focused evaluation on the issue of whether the relocation of the children to Ohio was in their best interest. It also adopted the schedule expanding Father's weekly and 2001 spring vacation visitation recommended by Dr. Stahl in his February 26 evaluation, as an interim visitation order. In May 2001, the court ordered Father to have "custodial time" with the children for alternating two-week periods during their 2001 summer vacation, as recommended by Dr. Stahl in his February 26 evaluation. The record does not disclose why the updated custody evaluation was not submitted until 22 months after the parties' stipulation thereto. 3
1

In June 2001, Dr. Stahl submitted his "focused" report to the court. He concluded there were "no good choices" in the move-away matter. He observed that (1) Father's relationship with the children could be hurt if they moved with Mother and Mother did not support the Father/child relationship; (2) Mother's family could be fractured if she remained in California with her children and her new husband was in Ohio; (3) if Mother moved to Ohio and primary care was changed to Father, the children would be moved from the primary home they have known. He offered three visitation recommendations, depending on whether (1) Mother was permitted to move to Ohio with the children, (2) Mother moved to Ohio but physical custody was changed to Father, or (3) Mother remained in California because the court refused to permit the children to move. Following the August 23, 2001 hearing on Mother's motion, the court first found that Mother had legitimate reasons for wishing to relocate, so her request was not made in "bad faith," i.e., as an attempt to relocate the children specifically to limit their contact with Father. Nevertheless, it denied her motion because the "primary importance" at present was to reinforce the "tenuous and somewhat detached" relationship between Father and the children; disrupting the process presently underway with Dr. Barry Tuggle, a psychologist counseling Father and the children, would be extremely detrimental; there were realistic concerns that the Father/child relationship would be lost if the children moved; and moving 2,000 miles away would be detrimental to their welfare because the move would not promote their frequent and continuing contact with Father. It ordered physical custody to Father for the school year if Mother elected to move, and ordered the present custody/visitation schedule continued if she remained in California. Mother appeals the minute order. DISCUSSION I Father contends the appeal is premature because it is from a minute order. California Rules of Court, rule 2(c)(2) states: "The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But 4

if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 391 [governing preparation of orders] or similar local rule is not such an order prepared by direction of a minute order." Father acknowledges the August 23, 2001 minute order from which Mother appeals does not direct the preparation of a written order, but he argues the court's comments at the end of the August 23 hearing contemplated a written order. The court and parties had selected September 7 as the date for further hearing on the determination of primary physical custody based on Mother's decision during the interim about moving to Ohio. The court concluded the August 23 proceeding by saying, "All right. When you return here on September 7th, I assume that some elections will have been made and we can talk about finalizing the terminology of the order." The court's remarks may anticipate an eventual written order addressing the children's custody depending on Mother's choice of residence. However, the decision on Mother's motion became final when it was denied by the court on August 23, and the minute order reflecting that decision contains no express requirement for a written order. Consequently, Mother's August 24 notice of appeal is timely. (See In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410-1411.) II Mother contends the court erred in denying her, as the custodial parent, the "presumptive right" to move to Ohio with the children. a. Nature of August 23 Order As a preliminary matter, we note that although the August 23 proceeding was initiated by Mother's order to show cause for modification of visitation and "move-away order," it was in substance a hearing to determine whether to transfer physical custody to Father if Mother relocated to Ohio. As discussed, post, Mother, as custodial parent, was presumptively entitled to move with the children, so she did not need to obtain an order allowing her to do so. She would need to obtain only a modification of the existing visitation order because the distance of the move would presumably preclude adherence to it. The nature of Father's opposition to her order to show cause effectively 5

transformed the matter into a custody modification hearing. Once Mother established a sound good faith reason to move, the question for the trial court was not whether Mother would be permitted to move to Ohio, but what custody arrangements should be made as a consequence. (See Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1203, 1206.) We therefore construe the court's ruling as, in fact, a change of custody order and review it accordingly. b. Change of Custody Generally A parent with physical custody of the children has the presumptive right to change the children's residence, subject to the court's power to restrain a move that would prejudice the children's welfare. (Fam. Code,

Download In re Marriage of Lamusga 5/10/02 CA1/5.pdf