Opinion
F086129
02-02-2024
In re the Marriage of JEFFREY W. CARVER and KELLI DREHER. v. KELLI DREHER, Respondent. JEFFREY W. CARVER, Appellant,
McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Jerry D. Casheros for Appellant. Kahn, Soares & Conway and Carla R. D. Khal for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County, No. VFL287928 Tara K. James, Judge.
McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Jerry D. Casheros for Appellant.
Kahn, Soares & Conway and Carla R. D. Khal for Respondent.
OPINION
DE SANTOS, J.
Jeffrey W. Carver (Carver) appeals from a custody order entered in this marital dissolution case which granted Kelli Dreher's (Dreher) request to move to Ohio with the parties' now four-year-old son, C.C. (son). Carver contends the trial court erred in proceeding with the custody hearing without ordering a custody evaluation, and the trial court applied improper criteria and made incorrect legal assumptions in awarding primary custody to Dreher. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties separated on July 14, 2021, after a one-year seven-month marriage. On the date of separation, Dreher took the couple's then 18-month-old son to Ohio. Carver followed them to Ohio, arriving there on July 21, 2021. Two days later, Carver petitioned for dissolution of the parties' marriage and requested the parties be given joint legal and physical custody of son. On July 26, 2021, the trial court issued temporary emergency orders, as requested by Carver, that required Dreher to return son to California and set a hearing for July 28, 2021.
At the July 28, 2021 hearing, the trial court ordered Dreher to return son to California by August 1, 2021, and set a further hearing for August 18, 2021, with Dreher and Carver to file responsive and reply declarations, respectively. The parties were ordered to meet and confer regarding the time son was to spend with each parent and granted Carver specific custodial time on July 29 and 30, 2021.
Dreher filed a responsive declaration. She agreed to Carver's request for joint legal custody but asked the court to deny his request for joint physical custody. Instead, Dreher requested physical custody be awarded to her and that she be allowed to move to Ohio with son. Dreher listed numerous examples of Carver's verbal and emotional abuse of her and his teenage children, most of which occurred when he was abusing alcohol. Dreher explained she went to her family in Ohio to get a break, receive emotional support and decide her next steps. When Carver arrived in Ohio, Dreher agreed that son could spend a considerable amount of time with him if she were present.
Dreher asserted Carver had poor parenting skills and made poor parenting choices Dreher agreed Carver needed to be in son's life, but she did not think he should have overnight or extended visits until he received treatment for his alcoholism. Dreher wanted to live in Ohio to be near family, as she had no support system in California. Dreher claimed that if she were forced to stay in Visalia, Carver would not be present to assist with son since Carver traveled for work, but if she were in Ohio, Carver could visit son every other weekend. Maternal grandmother had a house available in Ohio where she and son could live while Dreher got reestablished and found a job. While Dreher and maternal grandmother had some issues in the past, they had been reconciled for a year and a half. Dreher asked the court to deny Carver's "request to hold me hostage in California when there is no real tie here, and [Carver] and I have both only lived here for a little over two years," and to protect son from Carver's volatile nature that caused him to be estranged from most of his older children.
Carver filed an 18-page reply declaration with two exhibits: (1) a list of times and dates Carver claimed Dreher told him when he could see son; and (2) emails and text messages between he and Dreher. Carver denied most of Dreher's allegations, including that he was an alcoholic. He claimed Dreher's behavior was erratic and volatile, and she was mentally abusive and controlling. Carver asserted he sent Dreher two drafts of coparenting plans that Dreher never responded to, and she engaged in erratic behavior to try to elicit violence from him. Carver stated son was involved with Carver's family, including family holidays and events, while Dreher had limited family in Ohio.
Carver asserted moving to Ohio was only good for Dreher, she did not consider its impact on son's relationship with him, and she had no intention of wanting to work through a co-parenting plan. Carver asked the court to require he and Dreher to demonstrate that they could work together for their son's best interest in California, where they both have a support network and agreed to raise son. Carver also asked the court "to conduct an assessment on Respondent/Mother and me to determine how fit we are to co-parent our son." Carver claimed he had no record of volatile behavior either in public or private, and stated he would do whatever the court wanted to show the allegations of alcoholism were false. Carver claimed Dreher was a "high flight risk for kidnapping our son" and since she had not been able to cooperate in developing a coparenting plan and attempted to alienate son from him, it was likely that alienation would continue if they moved to Ohio.
At the August 18, 2021 hearing, the trial court awarded the parties joint legal and physical custody and set a custody schedule. Carver was granted parenting time for four hours each Wednesday afternoon, and 10 hours each Saturday and Sunday, which would increase to overnight weekend visits in addition to the Wednesday visits beginning in mid-September. At the hearing, Carver's attorney noted the trial court admonished the parties at the July 28, 2021 hearing, "to see if they could actually co-parent in regards to a shared schedule regarding the minor child," and asserted that since Dreher's return to California, she had limited Carver to about 15 hours a week of visits. Carver's attorney did not request a custodial evaluation or any other kind of assessment. The trial court scheduled a child custody recommending counseling (CCRC) appointment and set a contested hearing for January 13, 2022.
The Child Custody Recommending Counseling Report
The parties participated in CCRC on December 6, 2021, with a licensed marriage and family therapist, who filed her report on December 13, 2021. The CCRC mediator reviewed both parents' court-filed pleadings and held a telephonic session with them.
The mediator recommended the parents share joint physical custody of son as it appeared to be in his best interest to have frequent and consistent contact with both parents and to remain in California due to the stability and family support available there. The mediator noted Dreher did not state any clear or concise goals pertaining to her requested move to Ohio. While Dreher indicated she had a support system there and a home to reside in, it was unclear if that support was consistent or stable since she indicated in her declaration that she had a history of strained relationships with maternal family and recently had rekindled her relationship with maternal grandmother. It appeared to the mediator that Dreher's rationale for moving was in her own best interest rather than son's best interest, and if the move were granted, Carver would have significantly reduced parenting time.
The Parties' Hearing Briefs
Carver filed a contested hearing brief on January 10, 2022. Carver cited to In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 475 (McGinnis), stating the law is clear that when one parent attempts to relocate with a minor child and relocation interferes with the current parenting plan, "the Court must afford the parties meaningful mediation, opportunity for psychological evaluations, and an evidentiary hearing on the issue of relocation." Carver, however, did not specifically request a psychological evaluation. Carver argued a de novo hearing was required concerning the best interests of the child, with the court considering the potential adverse effects a move would have on the child's welfare. Carver asked the trial court to follow the CCRC report and award joint legal and physical custody to the parties because it was in son's best interest.
The custody hearing was continued several times and ultimately began on June 29, 2022. Dreher filed her trial brief in June 2022. She argued that because the current custody orders were temporary and there had not been a judicial determination of son's best interests, she did not have the burden of proving a change of circumstances in requesting primary physical custody while living in another state. Dreher asserted she would present evidence showing it was in son's best interest to be in her physical custody because she had been son's primary caretaker since birth and Carver failed to protect son's health, safety, and welfare. Dreher contended Carver would still have frequent and continuing contact with son if she were allowed to move with him to Ohio, and she did not need to prove necessity for the move. Dreher asserted the court must decide primary custody based on the assumption she was moving to Ohio and not assume, as the mediator did, that Dreher would not move if a joint custody order were made. Dreher pointed out it would be error for the court to adopt the mediator's recommendation against the move away where no consideration was given to the child's best interest if Dreher moved.
The Contested Custody Trial
The trial court conducted five days of trial between June 2022 and March 2023. The court heard testimony from 10 witnesses-principally from Carver and Dreher, but also from family members and the CCRC mediator-and the parties presented more than 20 exhibits. The evidence showed the following.
Carver met Dreher in January 2019, when Dreher was living in New York and Carver was living in Minnesota. Within a few weeks, they were discussing living together and possible locations for their future home, including Ohio, Colorado, Arizona, and California. The couple decided to move to Visalia-Carver claimed that was because his stepsiblings lived nearby but Dreher claimed it was because of the weather and the affordable housing. Dreher became pregnant in April or May 2019, and the couple moved to Visalia in June 2019. The couple married in December 2019, and son was born the following month.
Carver has four adult children from a prior marriage who are in their late teens or early 20's. When the couple moved to Visalia, Carver did not have custody of his other children and none of them lived in Visalia. That changed after the pandemic, when his then 16- and 17-year-old sons, Colton and Logan, came to live with them in April 2020. According to Dreher, the boys did not have behavior issues, but they were allowed to drink and smoke pot at will. Carver admitted he and Dreher disagreed about allowing them to drink alcohol, and while he did not approve of them consuming marijuana, he went to a marijuana dispensary to buy pot plants that they grow in their shed. Dreher testified Carver purchased marijuana at the dispensary for the boys multiple times. Dreher described Carver's parenting style with Logan and Colton as being a "[f]un dad" who wanted to be best friends with his sons and their friends and give them whatever they wanted. Carver never had primary parenting responsibility for any of his children, and the longest he had taken care of son was five days when the trial court granted him permission to take son to Texas for Thanksgiving.
Carver worked as a sales manager and his job required him to work out of state, mainly in the Midwest. Prior to the pandemic, most of the time he was traveling during the week and generally was home on weekends. When the pandemic was declared, he worked from home. But even when he was home, Dreher explained, she was the one who primarily cared for son, and while Carver would pop in to see son during the workday and play with him after work, she handled meals and bedtime.
Carver returned to his previous work schedule during the year prior to June 2022-he worked out of state during the week and returned to California on weekends to visit son. Carver conceded that while the trial court granted him Wednesday visits based on his representation that his schedule was flexible, he visited on that day very few times because of his work-required travel. As of December 2022, Carver continued to travel for work about three days a month, and Carver claimed his position required him to live at a specific location for at least the next 12 months. Carver had been offered additional time with son when Dreher was working, and he changed his schedule to accommodate those times.
When the couple first separated, Dreher stayed with Carver's stepsister in Lemoore. Carver went to his stepsister's house for exchanges and while he claimed son was always strapped in his car seat, he admitted there was a time son was not in the car seat when he pulled away from the house. Carver explained son was standing on his lap and holding the steering wheel, but after they played a bit, he put son in the car seat.
Son was not up to date on his vaccinations and while he had started receiving them, Carver blamed Dreher for the delay because she did not want him to be immunized. Carver claimed Dreher tried to change son's pediatrician without discussing the matter with him, but Dreher explained that she only was consulting with the pediatrician to get clarity on vaccinations and Carver participated in the consultation via video call. The pediatrician retired, however, and they returned to their regular pediatrician.
Dreher had son evaluated for speech deficiencies without Carver's knowledge. The first evaluation found he did not require speech services, but Dreher obtained a second evaluation that showed he needed speech therapy because his expressive language skills were poor and below average for his age. Carver, however, was not concerned about son's speech development, as he believed son was "just a quiet kid." Son was receiving twice-weekly speech therapy from a speech pathologist. Carver was able to pick the days son attended therapy, but he had been able to attend only about 30 to 40 percent of those appointments. Carver did not arrange his work schedule so he could attend appointments because he did not agree that the work being done was "appropriate work based on a professional." Nevertheless, Carver believed he could stay current on what son was being taught and implement those things at home.
Carver purchased a house in Texas in October 2021. As of June 2022, his fiance, who he met in September 2021 and married before the conclusion of the custody trial, lived in the Texas house, but his fiance and her daughter were going to move to Visalia in July 2022. By December 2022, he had entered into a one-year lease contract which stated he would sell the Texas house after a year and the lessee would have first right of refusal.
Since Dreher left the family residence in July 2021, Carver's son Colton, his fiance's son, and a stranger and her two daughters, who were unhoused, were living in the family home in Visalia. The stranger and her daughters were at the house when son was there; Carver did not see any safety concerns with having a stranger in the house. According to Dreher, the unhoused woman eventually was arrested and removed from the home.
Carver had many family members who lived in California, who son had spent time with, but he claimed Dreher's relationship with her maternal mother was nonexistent. Carver testified that if he were awarded primary custody and Dreher moved to Ohio, he and his wife would provide son's day-to-day care, and while Carver would be home "as much as a normal working family," son would be well taken care of if he were not home.
Dreher testified she wanted to move to Ohio because she had very few friends in California who could provide support and since her family was in Ohio, there was no other place she would go. Dreher had a few options for work in Ohio, and she was planning to return there with or without son.
Dreher explained her relationship with her mother. They had not spoken for nearly six and a half or seven years when Dreher contacted her mother in November 2020 to see if she had been communicating with Carver, as he claimed her family told him that Dreher was crazy. After that conversation, they spoke nearly every day. Dreher had other family in Ohio, including two sisters. The benefits of living in Ohio included living in a house instead of an apartment, better air quality, and family members nearby.
Dreher had health and safety concerns for son if she moved and he was left in Carver's primary custody. She did not think Carver could make good decisions and his drinking had always been a problem. Dreher was concerned Carver would get angry with son over nothing.
Dreher testified there had been co-parent communication issues. For example, Carver ignored her when she asked about potty training and then he stated they had introduced the idea, but they did not include Dreher in the training plan. While Carver was respectful in his communications about son, during doctor or therapy visits, he would tell Dreher to be quiet or shut her mouth. Dreher had heard Carver make inappropriate comments and call his daughter a derogatory name. In September 2021, Dreher noticed that son's car seat in Carver's car was front facing. She did not realize until December that state law required the seat to be rear facing until age two. When she texted Carver about it, a whole other set of issues was created, and she needed police to be present for their exchanges to ensure the car seat was rear facing.
Dreher and Carver arranged for daily video calls with son when he was with the other parent, but Carver had not exercised all those calls. When she called son at Carver's home, he was eating junk food and drinking soda, and was constantly in front of the television, which prevented him from interacting with her. When Carver called son while in her custody, she heard Carver call her names to someone else in his company, saw him flip her off, and Carver told her to shut up when she was trying to get son to interact with him.
Dreher believed Carver loved son and they had a good time together, but she believed it was in son's best interest to live primarily with her due to Carver's alcohol consumption and comments. She would maintain son's relationship with Carver if they moved to Ohio through calls and contact, but she did not believe Carver would do the same if son stayed in California.
Carver's stepsister, who lived in Lemoore, testified that after Carver and Dreher separated, she decided she did not want Carver at her home because of his excessive alcohol consumption. The stepsister confirmed that she had personally observed Carver make inappropriate comments to children and she testified Carver liked to make a scene to make everyone uncomfortable. The stepsister believed Carver loved his children and wanted to be a part of their lives, but she did not like his decisions when he was drinking. She had seen Carver drive away from her home with son sitting in the front seat and not in his car seat.
Carver's 23-year-old daughter Shelby testified that after Carver's divorce from her mother when Shelby was seven, Carver was not involved in her daily life and rarely was involved in important events. After the divorce, Shelby lived primarily with her mother in Idaho while Carver moved to Minnesota and remarried. Shelby visited Carver during summers and rotating holidays, but she stopped visiting when she was 14 years old because she did not want to be in that environment and did not feel welcome. Shelby did not have a relationship with Carver because he was frequently upset with her and made inappropriate comments about her mother when she was younger. She had not had contact with Carver for some time and did not spend much time around him.
Shelby described Carver as frequently being short of patience and drinking excessively. Shelby's mother had issues with Logan and Colton using marijuana. She recalled a conversation in which she and her grandmother were trying to explain to Carver why Shelby's mother was upset about their marijuana use-Carver understood about not wanting them to be in danger but stated that "if they could just stick to the normal Cheech-and-Chong shit this would be a different story."
Carver's extended family members, including his brother, mother, and sister, testified Carver had a great relationship with son and was a loving father, and they were not aware that Carver had a problem with alcohol. They were not concerned about Carver's parenting abilities or that he would be able to take care of son if Dreher moved to Ohio without him.
The CCRC mediator testified that the parties should share joint physical custody, with son primarily residing with Dreher and Carver exercising first, third, and fifth weekend visitation. The mediator believed the plan would be feasible even if Dreher moved to Ohio, as son would live primarily with her in Ohio and Carver would have weekend visits. The mediator's recommendation for weekend visits was based on Carver's travel work schedule; the mediator believed those visits would occur in Visalia, with Dreher living in California. The mediator explained that she did not recommend whether Dreher could move, but she considered "the schedule for the parenting plan as far as the move," and the proposed parenting plan "took into consideration if the child moved or did not move." The mediator believed that given son's age a court would create a graduated schedule for the child, which would be difficult if Dreher moved to Ohio. The mediator conceded it would be difficult for son to have a relationship with both parents if he were to move.
Dreher's mother, Barbara Watson, testified that she had property near her home where Dreher could live, which had an 1,800 to 2,000 square foot home on it, and Dreher could help her with maintenance issues on other property that they rent out. Either Watson or other family members would care for son while Dreher worked. Watson claimed there would be family and friends close by. Watson believed Dreher would be a good parent if she had primary custody and she would accommodate Carver's relationship with son if she and son moved to Ohio. There was a six- or seven-year period when Dreher was living in New York City that Watson and Dreher did not have contact-they did not have a fall-out but rather just stopped getting in touch.
Carver's stepsister's daughter, Cristin Olson, recalled that her first memory of Carver was when he came to visit when she was in fourth or fifth grade and Carver got very drunk and used vulgar language in front of her. Carver had also made comments that made her uncomfortable, such as saying she should not be in a committed relationship but rather should be a "whore" and sleep around as much as possible. Cristin first smoked marijuana at her 16th birthday party with Carver's two sons. Carver told her he got a "Mod pen from the dispensary," which Cristin described as an electronic marijuana device that releases higher amounts of THC. Cristin had seen Carver intoxicated. She also observed his interactions with his children-he had overall hostility toward them and was quick to get angry and snap at them, even in front of other people. Dreher was very attentive to son and Cristin had never seen her lose her patience with him or raise her voice.
Dreher testified in March 2023 that since the last court hearing in December 2022, she and Carver had been able to communicate regarding son's needs. At her request, Carver had watched son when she needed to work. Dreher, however, still was concerned about Carver caring for son-that he was not paying close attention to son and was drinking-but most times son came home fine. As of March 2023, son, who was diagnosed with a speech delay, still was receiving twice-weekly speech therapy in Visalia. Since the last court session in December, Carver had attended about half the sessions. The therapy was helping-son was speaking in sentences, but they were working on making certain sounds.
At the conclusion of the trial, the trial court issued an oral ruling. The trial court first explained its findings. The court found Dreher was son's primary attachment figure and son's interest was to remain primarily in her care. The court was concerned about Carver's parental judgment, his alcohol use, and his representation that he was available to care for son when he was unable to do so. While the court noted Carver's communication had improved recently, and he was attending more speech therapy sessions, it was concerned he was doing so due to this litigation. The court did not find Dreher's proposed move was in bad faith, that she intended to move to frustrate Carver's relationship with their son, or that it would be appropriate to prevent the move based on the impact on father's relationship. Finally, the court found it was in son's best interest to be allowed to move to Ohio with Dreher. The trial court then announced its ruling-that Carver and Dreher would share joint legal custody, while Dreher would have primary physical custody, with Carver receiving visitation in Ohio. Neither party requested a statement of decision.
A minute order of the hearing states only that the court grants mother's request for a move-away order, with the ruling recited on the record.
The trial court filed a written child custody and visitation order that day which contained a detailed parenting plan that covered joint legal custody, physical custody with Dreher in Ohio and specifically scheduled visitation with Carver there, exchanges and transportation, communication, and parental conduct and child safety. In addition, both parents were ordered to complete an online co-parenting program, while Carver also was ordered to complete in-person parenting classes.
Carver moved for an immediate stay of the move-away order or alternatively a new trial with a custodial evaluation. Following a hearing on Carver's motion, the trial court granted a 60-day stay of the order pending appeal, which it intended to review periodically, but denied the request for a new trial. Carver subsequently filed a timely notice of appeal.
DISCUSSION
On appeal, Carver argues the trial court abused its discretion because it failed to order a child custody evaluation and it considered inappropriate facts in deciding whether it was in son's best interest to move to Ohio with Dreher. As we explain, Carver did not meet his burden of establishing reversible error.
I. Legal Principles
Move-away requests in marital dissolution proceedings arise primarily in two contexts: (1) an initial custody determination in which one parent, prior to the issuance of a final custody order, indicates his or her intent to move; and (2) the modification of a final custody order based on one parent's potential relocation. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37 (Burgess); In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088 (LaMusga).) The present appeal arises in the former context, i.e., an initial custody determination. (See Montenegro v. Diaz (2001) 26 Cal.4th 249, 257 [custody determination is "initial" absent "any final 'judicial custody determination' "].)
"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.'" (Burgess, supra, 13 Cal.4th at p. 31, quoting Fam. Code, § 3040, former subd. (b), now subd. (c).) The court "must look to all the circumstances bearing on the best interest of the minor child." (Burgess, at pp. 31-32.) "[I]n considering all the circumstances affecting the 'best interest' of minor children," in addition to the statutory considerations, the trial court "may consider any effects of such relocation on their rights or welfare." (Burgess, supra, 13 Cal.4th at p. 32; accord, LaMusga, supra, 32 Cal.4th at p. 1078 [reaffirming Burgess standard].)
Further undesignated statutory references are to the Family Code.
The Legislature has found and declared that the public policy of the state is to ensure both "that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children" and "that children have frequent and continuing contact with both parents after the parents have separated ... and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child ..." (§ 3020, subds. (a) & (b).) In determining the child's best interests in a custody proceeding, the trial court shall, "among any other factors it finds relevant and consistent with Section 3020," consider the following: "[t]he health, safety, and welfare of the child"; "[any] history of abuse by one parent ... seeking custody"; "[t]he nature and amount of contact with both parents, including as provided in [Family Code] Sections 3046 and 3100"; and "[t]he habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent...." (§ 3011, subds. (a)(1)-(4).)
In applying this best interests analysis in a move-away situation, the trial court also should consider circumstances specific to the proposed move, including: "the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p. 1101.)
"It is well settled that the standard of review for custody and visitation orders, including move-away orders, is whether the trial court abused its discretion." (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Burgess, supra, 13 Cal.4th at p. 32.)" 'The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.'" (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474-1475.)
In child custody cases, "[g]enerally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) An abuse of discretion may also be found when the trial court applied improper criteria or made incorrect legal assumptions. (Ibid.) "When applying the deferential abuse of discretion standard, 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.'" (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
" 'We do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the [ruling] in favor of the prevailing party.'" (In re Marriage of Brooks (2019) 33 Cal.App.5th 576, 592.) "So long as substantial evidence supports the trial court's findings, 'it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' [Citation.] If we conclude substantial evidence supports the trial court's findings, 'we must affirm' the trial court's ruling." (Ibid.) The fact that the record may contain substantial evidence in support of an appellant's claims is irrelevant to our role on appeal, which is limited to determination of the sufficiency of the evidence in support of the ruling actually made. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890).
As the reviewing court we presume the move-away order is correct and, as the appellant, Carver has the burden of establishing an abuse of discretion. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 93-94, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see LaMusga, supra, 32 Cal.4th at p. 1093, quoting In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We indulge all intendments in favor of the order's correctness. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
Carver failed to request a statement of decision from the family court." 'A party's failure to request a statement of decision when one is available has two consequences. First, the party waives any objection to the trial court's failure to make all findings necessary to support its decision. Second, the appellate court applies the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence.'" (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996.)
II. Custody Evaluation
Carver contends the trial court abused its discretion in failing to order a professional custody evaluation. Pointing to statements made in his responsive declaration and trial brief, he asserts he requested such an evaluation, yet the trial court proceeded with the trial without ordering one. He also asserts that even if not requested, the trial court had a sua sponte duty to order an evaluation because this is a move-away case and the parties were not provided with a meaningful mediation.
Section 3111 provides: "In a contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interest of the child." (§ 3111, subd. (a), italics added.) The child custody evaluation under section 3111 "is an expert investigation and analysis of the health, safety, welfare, and best interest of children _." (Cal. Rules of Court, rule 5.220(c)(3).) A child custody evaluation may either be a full or partial evaluation of the child's "health, safety, welfare and best interest"; the former is a comprehensive evaluation while the latter is "limited by court order in either time or scope." (Rule 5.220(c)(4) &(5).) Among other things, the evaluation may include observing parent-child interaction, interviewing the parents, and conducting age-appropriate interviews and observation with the children. (Rule 5.220(e)(2)(B), (C) &(D).)
Evidence Code section 730 also grants the court discretion to appoint an expert. That statute provides in part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."
Further undesignated rule references are to the California Rules of Court.
Rule 5.220 also governs child custody evaluations ordered under Evidence Code section 730. (Rule 5.220(b).)
Here, Carver made the following request in his reply declaration filed in August 2021: "I also ask the court to conduct an assessment on Respondent/Mother and me to determine how fit we are to co-parent our son." Carver asserts that he reaffirmed this request in his January 2022 trial brief, when he cited McGinnis for the proposition that a parent's attempt to relocate with a child interferes with the current parenting plan, and "the [c]ourt must afford the parties meaningful mediation, opportunity for psychological evaluations, and an evidentiary hearing on the issue of relocation."
Even if we construe these statements as requests for a child custody evaluation, we conclude Carver waived or forfeited any trial court error in not ordering an evaluation by not objecting below and instead fully participating in the trial. (Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 967 [appellant waived or forfeited trial court's erroneous interpretation of appellant's request for a hearing as a demand for a court trial by failing to object and instead appearing at, and fully participating in, a court trial]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [forfeiture of alleged child support error due to failure to timely object]; Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 262 [failure to timely object to inadequate polling of jury resulted in waiver].)
Carver certainly was aware at the outset of the trial that the trial court had not ruled on his purported request for a child custody evaluation and that one had not been ordered. Carver asserts he was denied the ability to build and present his case because an evaluation was not ordered, but he did not bring the matter to the trial court's attention or object to proceeding with the trial without a child custody evaluation. Since the trial took place over nine months, Carver had ample time to remind the trial court of his request and obtain an evaluation. Because Carver and his counsel failed to object to proceeding without an evaluation and participated in the trial through its conclusion without one, Carver is deemed to waived or forfeited the failure to order a child custody evaluation.
"An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method... [¶] ... Often ... the explanation [for this rule] is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." (9 Witkin, Cal. Procedure (6th ed. 2023) Appeal, § 420, italics added.) That is precisely the case here.
Carver asserts he did not need to continue to raise the issue because he raised it twice and the trial court obviously decided to move forward with the trial without the custodial evaluation or a meaningful mediation. But when the record does not reflect a ruling in the trial court on a party's request and it does not appear the party prompted the court to make a ruling, we deem the request forfeited. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247 [a party's "failure to prompt the court to rule on its request and obtain such a ruling amounted to a forfeiture of its request"].)
Carver compares his request for a child custody evaluation to a request for a statement of decision, which the trial court has a mandatory duty to provide when properly requested. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1397.) But there, a statute mandates the trial court to issue a statement of decision on the request of a party. (Miramar Hotel Corp. v. Frank B. Hall &Co. (1985) 163 Cal.App.3d 1126, 1129; Code Civ. Proc., § 632 ["[t]he court shall issue a statement of decision ... upon the request of any party appearing at the trial" (italics added)].) In contrast here, there is no comparable statute requiring a trial court to order a child custody evaluation upon a party's request. Instead, the statute gives the trial court discretion to appoint a child custody evaluator "where the court determines it is in the best interest of the child." (§ 3111.)
Carver asks us to exercise our discretion to consider the issue in the interests of justice. Citing to juvenile dependency cases in which appellate courts exercised discretion to consider waived or forfeited issues, Carver argues move-away cases mirror the issues in dependency cases and "involve matters of the highest public importance, the well-being and welfare of children." We decline Carver's invitation. As our Supreme Court stated in In re S.B. (2004) 32 Cal.4th 1287, 1293, an "appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (See In re Brianna S. (2021) 60 Cal.App.5th 303, 311 [" 'appellate court may consider a claim raising an important question of law despite' a forfeiture where the case' "present[s] an important legal issue"' "]; In re Anthony Q. (2016) 5 Cal.App.5th 336, 345 [same].) The trial court's failure to exercise its discretion to order a child custody evaluation, however, is not a purely legal issue subject to our independent review.
Nevertheless, we consider Carver's argument that the trial court had a sua sponte obligation to order a child custody evaluation. He contends that in move-away cases, the trial court has a sua sponte duty to ensure it has an outside evaluation to assist the court in applying the LaMusga factors. As we have pointed out, section 3111 expressly gives the trial court discretion to order a child custody evaluation, as it provides that "the court may appoint a child custody evaluator" when it "determines it is in the best interest of the child." (§ 3111, subd. (a).) The word "may" as used in section 3111 is permissive, not mandatory. (§ 12.) Thus, while a trial court may appoint a child custody evaluator, there is no authority requiring it to do so. (See Harris v. Harris (1960) 186 Cal.App.2d 788, 801 [former version of § 3111 did not require the court to appoint investigator in child custody case].)
Apparently recognizing that section 3111 gives the trial court discretion to order a child custody evaluation, Carver asserts he is not relying on that section for the source of the trial court's mandatory duty to order an evaluation in move-away cases. Instead, he argues, the trial court was bound by the following statement in McGinnis: "In 'move away' cases where a shared parenting arrangement is working, an order changing custody should be made only after adequate notice, a meaningful mediation, and the parents have been given the opportunity for an outside evaluation." (McGinnis, supra, 7 Cal.App.4th at p. 481.)
Carver's reliance on McGinnis for a mandatory duty is misplaced. There, the trial court in a move-away case heard the matter on declarations without any live-witness testimony and denied the father's request to maintain the status quo until an independent evaluation of the best interests of the children could be done. (McGinnis, supra, 7 Cal.App.4th at pp. 476-477.) The appellate court held the move-away issue, which was litigated less than a month after the mother advised the father she was moving with the children, was not mediated on adequate notice or with sufficient time for the father to have a professional evaluator offer a declaration or testify. (Id. at pp. 477-478.) Noting that the trial court has discretion over a request for a change of custody, the appellate court explained that "[b]efore a trial court may intelligently exercise that discretion, the parties must be given adequate notice, time for meaningful mediation, and time to marshall evidence." (Id. at p. 479.) In reversing the move-away order in the mother's favor, the appellate court remanded the case with directions for the trial court to hold a new hearing "only after allowing [the father] the opportunity to obtain an outside evaluation." (Id. at p. 481.)
McGinnis does not hold that a child custody evaluation is required in every move-away case or that a trial court must order an evaluation on its own if mediation has not been meaningful, and we decline to read such a requirement into the case. To the extent McGinnis holds that a parent must be given an opportunity to obtain a child custody evaluation, we note that Carver had ample opportunity to obtain such an evaluation on his own yet failed to do so. Carver contends the trial court is obligated to ensure the requisite processes are followed, citing In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116. But there, the appellate court held the trial court abused its discretion in denying the father's request for a three-day continuance to permit his rebuttal expert witness to testify. (Id. at pp. 1130-1131.) The case did not hold that a trial court must obtain a child custody evaluation in every move-away case or where there is no meaningful mediation.
In response to our request for supplemental briefing, Carver argues for the first time that the trial court had a sua sponte duty to order a second mediation because the mediator did not make her recommendations based on the assumption Dreher would move to Ohio. (See Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1127-1128 [trial court considering parent's move-away request during initial custody determination must decide what physical custody arrangement would be in the child's best interest presuming the parent's relocation].) In support, he cites In re Marriage of Vargas &Ross (2017) 17 Cal.App.5th 1235, 1238-1239, where the trial court declined to adopt the mediator's recommendation and instead sent the parties back to mediation for a full move-away analysis.
This new contention, however, exceeds the scope of this court's request for supplemental briefing, which asked if Carver forfeited his claim that the trial court was required to order a child custody evaluation by failing to object below. For this reason, and because it was not raised in his opening or reply briefs, the contention has been waived or forfeited. (People v. Culuko (2000) 78 Cal.App.4th 307, 330; Children's Hospital &Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777; San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38 Cal.App.4th 523, 559, fn. 28.) No request was made for permission to file additional briefing (see Rule 8.200(a)(4)), nor has any explanation been offered for the failure to make this contention earlier.
In sum, Carver has forfeited any claim that the trial court erred in not granting his purported request for a child custody evaluation and the trial court did not have a sua sponte duty to order an evaluation.
III. The Move-Away Order
Carver contends the trial court abused its discretion in issuing the move-away order because it made improper findings that resulted in an improper application of the move-away standard. Specifically, he asserts the trial court: (1) placed the burden on him to prove the planned move was not in son's best interests based on an erroneous finding that he had approximately 23 percent visitation; (2) improperly considered that father worked fulltime outside the home and needed to rely on childcare arrangements; and (3) failed to consider whether compelling circumstances existed to separate half siblings and disrupt son's medical services. Carver further asserts the trial court failed to consider son's bond with father and the detriment son would suffer if that bond were disrupted.
Carver's argument is based on the following oral comments the trial court made when announcing its findings:
(1) noting that based on the evidence of Carver's "work schedule and the amount of time he has been out of state for work while the parties have been together," Dreher "was clearly the only parent in the child's life every single day";
(2) while explaining its concerns about Carver's parental judgment for not making his own parenting time a priority, the trial court noted there had been incremental and age-appropriate increases to Carver's time, "which now appears to be at approximately 23 percent";
(3) in finding it was in son's interest to remain primarily in Dreher's care because mother was his primary attachment figure, the trial court stated it would not grant Carver primary custody even if Dreher remained in California, noting it appeared father was working out of state and if he had primary custody, he would "simply leave the child with his new wife in his absence";
(4) in considering son's relationship with both parents, the trial court noted Carver's "work schedule has allowed him to have just over 50 hours a week and that time has only increased recently," which supported an inference that Dreher "is the primary attachment and bond";
(5) the trial court noted that Carver testified he only made it to 30 to 40 percent of son's speech pathology appointments, but by the last trial session he "suddenly ... made it to half of the appointments since [the] last hearing";
(6) the trial court was concerned that Carver essentially wanted to change custody to remove son from his primary parent (Dreher) so son could be cared for by Carver's new wife while Carver was working out of state, and "we can only be called upon to imagine a situation where the child falls off a swing set and is injured, potentially with the stepmother to watch him, dad out of state, mom living in Ohio, and that is a situation this court can easily, easily avoid"; and
(7) "[a]s to whether or not under the LaMusga decision it would be appropriate to prevent the move based upon the impact to the father's relationship, the Court does not find that that is persuasive in this case." (Italics added.)
As we set forth above, where, as here, the trial court is making an initial custody determination, the trial court has wide discretion to choose a parenting plan that is in the child's best interest, with the court looking to all the circumstances bearing on the best interest of the child. (Burgess, supra, 13 Cal.4th at pp. 31-32.) While we review a trial court order granting a request to relocate for abuse of discretion, a "discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order." (Mark T. v. Jamie Z., supra, 194 Cal.App.4th at pp. 1124-1125.)
Carver claims the trial court's oral ruling shows it misapplied this essentially discretionary standard. In so arguing, he relies on caselaw that prohibits a trial court from: (1) placing the burden on him to prove the move was not in son's best interest, citing Burgess, supra, 13 Cal.4th at page 40, footnote 12 and In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759-760; (2) considering a parent's inability to care for the child fulltime because the parent works outside the home, citing In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 760; and (3) failing to consider whether compelling circumstances exist to separate half siblings, citing In re Marriage of Williams (2001) 88 Cal.App.4th 808, 814. According to Carver, the trial court failed to follow these principles and its errors infected its decisionmaking by, among other things, shifting the court's attention to the issue of Carver's work schedule and custodial time and away from the more crucial issue of the impact of the proposed move on son's bond with Carver.
While Carver's challenge on appeal hinges on his theory the trial court misapplied the law, Carver never asked the trial court to prepare a statement of decision to set forth its legal reasoning, much less alert the trial court to a specific erroneous legal conclusion in its oral ruling. Yet, because an "appealed judgment is presumed to be correct" and "all intendments and presumptions" must be indulged in support of the judgment, if there is no statement of decision, the reviewing court must "presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267 (Shaw), citing, among other cases, In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133, 1136 ["[Code of Civil Procedure] Sections 632 and 634 were amended in 1981 to provide respectively, as they do now, that a statement of decision must be rendered at the request of a party, explaining the factual and legal basis for the court's decision on the issues specified by that party, and that if the statement fails to resolve a controverted issue or is ambiguous the defects must be brought to the court's attention to avoid presumptions in favor of the judgment"].)
The court in Shaw went on to explain: "There are instances in which a court's oral comments may be valuable in illustrating the trial judge's theory, but they may never be used to impeach the order or judgment on appeal. [Citation.] This is because a trial court retains inherent authority to change its decision, its findings of fact, or its conclusions of law at any time before entry of judgment and then the judgment supersedes any memorandum or tentative decision or any oral comments from the bench. [Citations.] Thus, a trial judge's prejudgment oral expressions do not bind the court or restrict its power to later declare final findings of fact and conclusions of law in the judgment. [Citation.] In the absence of a statement of decision, a reviewing court looks only to the judgment to determine error. [Citation.] Absent contrary indication in the final judgment or statement of decision, the appellate court will assume that, during the period before rendition of judgment, the trial court realized any error and corrected it." (Shaw, supra, 170 Cal.App.4th at p. 268; accord, In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-648.)
Based on these principles, Carver's misapplication-of-law theory cannot support reversal of the judgment in this case. As explained in Shaw, the judgment "will not be impeached either by the court's oral comments or the memorandum decision as they pertain to legal theories or conclusions." (Shaw, supra, 170 Cal.App.4th at p. 269.) "A formal statement of decision enables a reviewing court to determine what law the trial court employed. A failure to request a statement of decision results in a waiver of findings and conclusions necessary to support the judgment and we will accordingly infer such conclusions." (Ibid.)
Carver asserts the trial court's oral statements concerning Carver's work and travel schedule reflected a misunderstanding of the proper legal standards, and we cannot imply findings that are directly contrary to those statements or pretend they were not made. He also asserts the trial court's oral statements show the trial court failed to consider the impact of the move on son's relationships with his half siblings and because no professional testimony or evidence was received, the trial court could not have undertaken the factual inquiry necessary to support its oral finding that it was not appropriate to prevent the move based on the impact to father's relationship.
The cases he relies on, however, do not apply where, as here, the written order supersedes the trial court's oral statements. (See, e.g., F.T. v. L.J., supra, 194 Cal.App.4th at pp. 12-14, 23 [written custody order disclosed trial court misunderstood the proper legal standards]; Bouton v. USAA Casualty Ins. Co. (2008) 167 Cal.App.4th 412, 422 [appellate court may not infer factual finding where written order showed the trial court did not undertake the factual inquiry necessary to determine the applicable question]; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [appellate court would not presume trial court awarded costs and attorney fees only for motion to strike where transcript of fee hearing demonstrated the trial court awarded costs and fees for the entire case]; United Services Auto. Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 186 [no findings to be implied where written order expressed the trial court's legal conclusion].]
These cases are distinguishable because in the absence of a statement of decision, we look only to the judgment to determine error and, unless there is a contrary indication in the judgment, assume the trial court realized any error and corrected it. (Shaw, supra, 170 Cal.App.4th at p. 268.) In this case, the judgment we look to is the trial court's written child custody and visitation order, which granted mother primary physical custody of son, and established a parenting plan upon mother relocating with son to Ohio. That order does not indicate the trial court misunderstood or misapplied the law. Instead, we presume the trial court made all the factual findings to support the judgment and that any legal error was corrected by the court's written order.
In any event, review of the comments does not support Carver's contention that the trial court misunderstood or misapplied the law. A trial court may not base its custody decision on the fact that one parent would place the child in daycare while he or she worked absent evidence that the parent's work schedule has a negative impact on the best interests of the child. (In re Marriage of Loyd, supra, 106 Cal.App.4th at pp. 761762; Burchard v. Garay (1986) 42 Cal.3d 531, 539-540.) But the trial court's comments about father's work schedule and custodial percentage were made primarily in the context of deciding which parent was son's primary attachment figure and to whom son was bonded. Contrary to Carver's assertion, the trial court's comments show it was primarily concerned about son's bond with each parent and, based on the evidence, it determined son was primarily bonded to Dreher.
Carver complains that the trial court's estimation of his custodial time was erroneous. He seems to believe the trial court found he was the noncustodial parent and therefore it required him to prove it would be in son's best interest to change the custody order due to a change in circumstances. (In re Marriage of Biallas, supra, 65 Cal.App.4th at pp. 759-760, 762 [where one parent has sole physical custody under an existing custody order, the noncustodial parent has the burden of showing a significant change of circumstances that would make a change of custody in the child's best interest]; Burgess, supra, 13 Cal.4th at p. 40, fn. 12 [when parents share joint physical custody under an existing order and one parent seeks to relocate with the children, the trial court must determine de novo what arrangement for primary custody is in the children's best interest].) But this is belied by the trial court's explanation that because a final judicial determination of custody had not been made, the change of circumstances standard did not apply, and it would be guided simply by the best interest of the child.
Carver contends the move-away order had the effect of separating son from his half siblings; therefore, the trial court could only enter such an order on a showing of "compelling circumstances." (In re Marriage of Williams, supra, 88 Cal.App.4th at p. 814.) This case is distinguishable because it concerned a custody order separating minor children from the same marriage who had always lived together. Carver cites no authority for the proposition that the standard articulated in Williams applies to half siblings or that it applies where the half siblings are adults.
Carver asserts the trial court could not find it would be inappropriate to prevent the move based on the impact on father's relationship absent a professional evaluation. We disagree, as there was evidence from which the trial court reasonably could find the detriment the move would cause on son's relationship with Carver, when considering all the relevant factors, did not warrant denying Dreher's move-away request. (LaMusga, supra, 32 Cal.4th at p. 1097 ["the detriment to the child's relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child's residence or changing custody"].) The evidence showed Dreher was son's primary caretaker and had been so his entire life, and while Carver cared for son after the couple's separation, his custodial time was limited, and he did not avail himself of all the phone or contact visits that were open to him. Given son's young age of three years old at the time of the ruling, the trial court reasonably could conclude that any detriment he may suffer from being separated from Carver was outweighed by remaining with Dreher, who was the parent he was primarily attached to, who engaged in proactive parenting, and who would work to maintain son's relationship with Carver.
Finally, we note that at best the trial court's explanations were ambiguous statements which Carver did not seek to clarify despite his statutory right to a statement of decision. (Shaw, supra, 170 Cal.App.4th at p. 268 [where a statement of decision may be requested, "the trial court's less formal comments on the record ... are insufficient to form the basis of reversible error"].) The record does not demonstrate any abuse of discretion.
DISPOSITION
The trial court's March 9, 2023 order is affirmed. Costs on appeal are awarded to Dreher.
WE CONCUR: POOCHIGIAN, Acting P. J. SMITH, J.