Filed 3/11/21 R.W. v. D.B. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
R.W.,
Plaintiff and Appellant,
A157897
v.
D.B., (Contra Costa County
Super. Ct. No. D1705488)
Defendant and Respondent.
On April 26, 2019, appellant R.W. (father) filed a request for a change
of custody concerning his two sons, R. and A. (then nearly 15 and 12 years
old), because he was moving to New Jersey for a new job and wanted his sons
to relocate with him. After a contested evidentiary hearing involving several
witnesses, the trial court denied father’s request. He now appeals.
We affirm.
BACKGROUND
Father’s appellate briefing is challenging. It summarizes the facts and
proceedings in a confusing, one-sided manner that lacks citations to the
appellate record in many instances, and does not summarize any of the
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evidence from the contested evidentiary hearing.1 Based on our review of
portions of the record, we ascertain the following:
A. Prior Out of State Custody Awards
Appellant and his ex-wife, respondent D.B. (mother), were married
and living together in Delaware when their two sons were born, R. in 2004
and A. in 2007. While living in Delaware, mother cared for the boys as a
stay-at-home parent while father worked outside the home. Around 2009 or
2010, father lost his job and so mother entered the workforce. In 2011, father
accepted a new job in Ohio and moved there with the boys. Mother was
working in Maryland at this point, and the parties agreed she would keep her
job there to provide financial security for the family in case father became
unemployed again.2 Every weekend, from Thursday to Monday, she traveled
to her family in Ohio, where they rented a condominium under her name.
She testified she parented her sons during that period even while living away
from them in Maryland for part of the week.
In 2013, the parties obtained a judgment of divorce in Maryland.
Thereafter, in 2015, an Ohio state court entered a custody decree,
which recites it was reached by agreement. The 2015 Ohio custody decree
designated each parent “legal custodian of the minor children while in their
1 In addition, although appellant designated a clerk’s transcript on
appeal, he has filed two volumes of an appendix that include some documents
that mother says have been altered. Other than as specifically discussed in
this opinion, we have disregarded the contents of the appellant’s appendix.
2 According to court documents from a Maryland custody proceeding in
the record, mother got a job in Maryland in October 2011 and the family
moved there. Father couldn’t find a job in Maryland, though, and so after
several months (in December 2011) he and the children moved to Ohio where
he had been offered a job, with mother staying behind in Maryland to remain
gainfully employed.
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respective possession,” and designated father as “residential parent for school
purposes only.” It incorporated by reference a “shared parenting plan,” and
required father to file a “notice of intent to relocate if he intends to move to a
residence other than the one specified in this order.”
In 2016, father lost his job in Ohio and moved back to Maryland with
the boys, where they were enrolled in school for about a semester, alternating
weekly between mother’s and father’s homes (during the summer months).
Mother testified she was the primary residential parent for them while they
were in school in Maryland.
Then, in late 2016, father accepted a new job and moved to Northern
California with the children (who were then in elementary school and middle
school).
Shortly after that, in January 2017, a Maryland state court awarded
the parents continued joint legal custody and “primary residential custody of
the minor children for school purposes” to father. Mother had the right to
travel to visit the children up to three times a year in California at father’s
expense, with additional visits at her own expense. The order gave her
significant periods of custody during summer break and holidays as well as
daily phone access to the children when at father’s home. It also ordered that
if father moved from Northern California in the next five years, mother would
gain “residential” custody of the children.
Later that year (2017), mother got a job in California and relocated to
Northern California with her new husband (who gave up his own job), in
order to be near the children.
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B. These Proceedings
These family law proceedings commenced in Contra Costa Superior
Court several months later, in November 2017, when father registered the
2015 Ohio custody decree.3
Subsequently, on May 21, 2018, the superior court entered an order
awarding the parents continued joint legal and physical custody of the
children, with mother having physical custody three weekends a month and
dinner together weekly on Wednesdays (plus alternating weekends when
school is not in session), and specifying that the prior Ohio and Maryland
orders were to remain in effect regarding holidays. The order prohibited the
children from being relocated out of state without a court order. It ordered
father to pay mother $2,000 in relocation expenses, and $4,000 in attorney
fees.
In July 2018, father’s employer asked him to relocate out of state, but
he declined because of the move-away limitation in the May 2018 custody
order. He lost his job, got evicted from his home and, with mounting debt, his
finances worsened.
On September 18, 2018, the superior court entered an order continuing
the parties’ joint legal custody and expanding mother’s shared physical
custody schedule to every other week. The order recites that it is intended as
a final custody order.
In January 2019, father gave notice to mother he’d found a new job but
was being asked to relocate to New Jersey or be fired.
Thereafter, on April 26, 2019, father petitioned for a change of the
September 18, 2018 custody order, seeking permission to relocate with his
It is not clear why registration of the Maryland decree also was not
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sought, but irrelevant.
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sons to New Jersey. Mother responded by filing her own request for a change
in custody, requesting full legal and physical custody of the children. Citing
the children’s need for stability, the primary basis was that mother had
relocated to California to be with the children and the children’s lives were
settled in California. She stated the children wanted to remain living with
her in California.
The matter proceeded to an evidentiary hearing on July 24, 2019, at
the conclusion of which the court orally denied father’s request for full
custody of the boys, and designated mother as the boys’ primary custodial
parent during the school year with father having physical custody of them in
New Jersey during the vast majority of non-school periods.4
This appeal followed.
By way of relief on appeal, father asks us to “reverse the Superior
Court’s orders covering the one year, two months, and two days that are
appealed; reinstate [his] rights and physical custody to its status prior to the
Superior Court’s involvement in the move-away case on May 21, 2018,”
remand the case with instructions to grant his move-away request and order
the trial judge recused. In his reply brief, he asks us to reverse the court’s
orders and “reinstate his 8-year physical custody to its May 21, 2018 status”
as well as to award him $20,000 in damages
DISCUSSION
The most fundamental principle of appellate review is that “ ‘A
judgment or order of a lower court is presumed to be correct on appeal, and
all intendments and presumptions are indulged in favor of its correctness.’ ”
4 Father was awarded custody of them every Thanksgiving break,
every spring break, winter breaks in alternating years, and all but 17 days of
every summer break.
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(Grappo v. McMills (2017) 11 Cal.App.5th 996, 1006.) In light of that
presumption, “the burden is on [the appellant] to demonstrate error—and
also ‘prejudice arising from’ that error.” (Ibid.)
“ ‘In order to demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal analysis and
citation to the record.’ [Citation.] . . . ‘We are not obliged to make other
arguments for [appellant] [citation], nor are we obliged to speculate about
which issues counsel intend to raise.’ [Citations.] We may and do ‘disregard
conclusory arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the conclusions
he wants us to adopt.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 153.) “ ‘In civil appeals, the appellate courts are
not required to perform an unassisted study of the record or a review of the
law relevant to a party’s contentions on appeal. [Citations.] Instead, a
party’s failure to perform its duty to provide argument, citations to the
record, and legal authority in support of a contention may be treated as a
waiver of the issue.’ ” (In re Tobacco Cases II (2015) 240 Cal.App.4th 779,
808.)
In this case, several of father’s arguments on appeal, while supported
by citation to legal authority, are not intelligible (principally, his contentions
the court’s ruling denied him due process, violated his constitutional rights
and subjected him to involuntary servitude). We will address his remaining
arguments as best we understand them. “Although we exercise our
discretion to consider those issues we can discern in [appellant’s]
unsystematic and often incoherent arguments, there are times when it is
simply not possible for us to understand what [appellant] is arguing. Any
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arguments not discussed in this opinion are deemed forfeited.” (United
Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 153.)
1. Jurisdiction
Before turning to the merits, we briefly address the subject of
appealability. Father’s notice of appeal (filed on July 30, 2019) states it is
from a “judgment” entered after a court trial on July 24, 2019. No such
judgment appears in the record, and mother argues that father has failed to
file a duly perfected appeal from any of the rulings he challenges in his
appellate brief.
We agree that father cannot challenge the court’s rulings on
May 21, 2018 (changing custody and imposing an award of legal fees and
costs) or September 18, 2018 (changing custody), because father has not
appealed from those orders. But father’s challenge to the court’s
July 24 2019 decision rejecting his April 2019 move-away request is properly
before us. Final custody orders are appealable. (See Code Civ. Proc., § 904.1,
subd. (a)(14).) Here, at the conclusion of the July 2019 evidentiary hearing,
the trial court directed counsel for respondent to prepare findings and orders
on the court’s custody decision. The register of actions reflects that the court
entered its written findings and order on August 14, 2019, and a copy is
included in the “appendix” father has filed (see footnote 1, ante, page 1).
Liberally construing father’s notice of appeal as we must, we will construe his
appeal as having been prematurely filed and taken from the later order of
August 13, 2019, entered after the contested hearing. (See Cal. Rules of
Court, rule 8.104(d).)
2. Analysis
“The standard of appellate review of custody and visitation orders is
the deferential abuse of discretion test. [Citation.] The precise measure is
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whether the trial court could have reasonably concluded that the order in
question advanced the ‘best interest’ of the child. We are required to uphold
the ruling if it is correct on any basis, regardless of whether such basis was
actually invoked.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
Here, father argues the trial court applied the wrong legal standard in
ruling on his relocation request. He contends the court improperly evaluated
his request under a “best interest standard” rather than under a “change of
circumstances” standard. He argues that he effectively had sole physical
custody of the children at the time he made his move-away request (and had
been their primary caretaker for eight years) and that, in these
circumstances, the court “cannot justify change of custody [to mother] simply
because [father], the custodial parent of eight years . . . is made to relocate for
a sound good faith reason to a different state.” These arguments are
conclusory and undeveloped, and we reject them.
First, the factual premise of father’s argument is incorrect. By the
time of the contested move-away request, father and mother shared joint
legal and physical custody of their sons, alternating weekly, an arrangement
that had been in place since the September 2018 custody order entered in
this case. “When the parents have joint physical custody, modification of the
co-parenting arrangements is not a change of custody requiring change of
circumstances. Instead, the trial court has wide discretion to choose a
parenting plan that is in the best interest of the child. [Citation.] The joint
custody moving parent does not have the presumptive right to change the
child’s residence, and bears no burden of proving the move is essential or
imperative. [Citation.] Nor does the nonmoving parent bear the burden of
showing substantial changed circumstances require a change in custody . . . .”
(Niko v. Foreman (2006) 144 Cal.App.4th 344, 363-364, italics added.) Even
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father acknowledged below that his move-away request implicated his
children’s best interests: he opened the contested hearing by telling the court
“[t]he matter before this court is about my children’s best interest.”
Even accepting father’s contention he was the primary custodial
parent, moreover, the court did not apply the wrong legal standard to
evaluate his move-away request. In re Marriage of LaMusga (2004)
32 Cal.4th 1072 establishes the legal standard that applies when a primary
custodial parent wishes to relocate. In this circumstance, our Supreme Court
explained, “[T]he noncustodial parent bears the initial burden of showing
that the proposed relocation of the children’s residence would cause
detriment to the children, requiring a reevaluation of the children’s custody.
The likely impact of the proposed move on the noncustodial parent’s
relationship with the children is a relevant factor in determining whether the
move would cause detriment to the children and, when considered in light of
all of the relevant factors, may be sufficient to justify a change in custody. If
the noncustodial parent makes such an initial showing of detriment, the
court must perform the delicate and difficult task of determining whether a
change in custody is in the best interests of the children.” (Id. at p. 1078.)
In LaMusga, the California Supreme Court stressed the highly
discretionary nature of this undertaking, noting that superior court judges
must be permitted “to exercise their discretion to fashion orders that best
serve the interests of the children in the cases before them.” (LaMusga,
supra, 32 Cal.4th at p. 1101.) It explained that, “Among the factors that the
court ordinarily should consider when deciding whether to modify a custody
order in light of the custodial parent’s proposal to change the residence of the
child are the following: the children’s interest in stability and continuity in
the custodial arrangement; the distance of the move; the age of the children;
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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.”
(Ibid.)
In this case, the trial court expressly considered all of the LaMusga
factors, discussed them on the record, and concluded they weighed in favor of
maintaining the children’s primary residence with mother in California.
Considering the children’s interest in stability and continuity, the court found
that the children “have moved around a bit and have been in California for
sometime now, a few years” and appeared to be doing relatively well in school
(noting that one child was “doing fantastic” and the other child had been
“doing quite well until recently,” and was still “doing okay”). It found the
distance of the proposed move was “very long”: approximately 2500 miles
away. It considered the children’s ages (14 and 11), and found they have a
good relationship with both parents. It noted concern with the parents’
ability to cooperate and communicate effectively, because it found father is
very critical of mother in various ways. The court found that mother was the
children’s “primary school year parent” and believed she is more likely than
father to cooperate and communicate effectively about the children.
Considering the children’s wishes, the court noted that the older son was
“slightly” in favor of remaining in California to graduate high school. The
younger son, it found, is too young to have an impactful opinion. The court
found father’s reason for the move legitimate, and that both parents were
currently sharing joint custody on a 50/50 basis. Having reviewed these
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factors, the court concluded that “it is in the best interest of the children to
remain in California for the primary school year.”
Father has not discussed any of the evidence bearing on the
application of these factors, nor the court’s analysis of them. He thus has
failed to meet his burden of demonstrating any legal error or that the court
abused its discretion in the circumstances here.
Finally, we also note the appellate record is incomplete. The trial
court admitted into evidence a mediator’s evaluation of the children which
apparently discussed their ties to their community and peers, and which
mother also said reflected that their older son did not want to move. As far
we can tell, that report (identified as Exhibit A) is not in the record. This too
compels us to affirm the court’s ruling, because it is father’s burden to show
error on the basis of a complete record of all the evidence that was before the
court. (See, e.g., Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 976-977
[rejecting husband’s challenge to family court order where appellate record
does not contain all evidence introduced below on child support issue].)
For all of these reasons, we conclude father has failed to meet his
burden on appeal of demonstrating the trial court erred.
In her respondent’s brief mother has requested an award of appellate
sanctions in the amount of $20,000. We deny the request because it is
improper to request sanctions in an appellate brief. A properly supported
motion is required. (See Saltonstall v. City of Sacramento (2014)
231 Cal.App.4th 837, 858 [denying sanctions request].)
DISPOSITION
The order denying father’s April 26, 2019 move-away request is
affirmed. Respondent shall recover her appellate costs.
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STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
R.W. v. D.B. (A157897)
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