Marriage of Bischler CA4/1

Filed 2/26/13 Marriage of Bischler CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of STACIA M. and
NEIL E. BISCHLER.
D061894
STACIA M. BISCHLER,

Respondent, (Super. Ct. No. D475533)

v.

NEIL E. BISCHLER,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Robert C.

Longstreth, Judge. Affirmed.

Neil Bischler appeals from an order denying his motion to modify a child custody

order and allow his children to move from San Diego County to live with him in Illinois.

He argues the trial court (1) abused its discretion by failing to consider or make express

findings on various issues and making several improper findings and (2) violated his due

process rights by prejudging the case. We reject these contentions and affirm the order.
 FACTUAL AND PROCEDURAL BACKGROUND

Neil Bischler (Father) and Stacia Bischler (Mother) separated in 2000 and were

divorced in 2003.1 In a final custody order, Mother was given physical custody of their

three children and Father was given visitation. The children have resided primarily with

Mother since the parties' separation in May 2000, and have stayed with Father in his

home in Illinois during school breaks.

On August 5, 2011 (when the children were ages 17, 13, and 12), Father filed a

motion to modify the child custody order. Father requested that the court change the

order to award him physical custody of the three children and allow the children to live

with him and his current wife and her children in Illinois. Father alleged that Mother was

neglecting the children; the children were in an unstable living situation and were

suffering emotionally and academically; and it was in the children's best interests to

reside with him.

The hearing on Father's motion was held on January 12, 2012. Both parties were

represented by counsel; Mother appeared and Father was available telephonically. By the

time of the hearing, the parties' eldest child was 18 years old and accordingly she was no

longer part of the custody proceedings. The other two children were ages 14 and 13. The

court was presented with declarations from Father and several other individuals in

1 Mother did not file a respondent's brief in the current appeal, and the appellate
record designated by Father is sparse. To assist with our evaluation of Father's
contentions, we have taken judicial notice of the superior court file and have reviewed it.
(Evid. Code, § 452, subd. (d).)
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support of Father; testimony from Mother; testimony from the parties' 14-year-old son

(Son); and a report and testimony from a Family Court Services (FCS) counselor.

In his declaration Father stated that he has had little contact with Mother because

she instructs the children to contact him on her behalf. Since December 2008, Mother

and the children had been living with Mother's parents (the grandparents). Father had

earlier learned that the children's uncle, who also lived at the residence, might be using

drugs. Father also said that Mother had moved out of the grandparent's residence without

the children to live with her boyfriend; she only saw the children about every other

weekend; and the children felt Mother had abandoned them. He claimed Mother was

neglecting the children by failing to provide them with supervision and emotional and

financial support.2

Father stated the children's living situation was causing them to suffer emotional

distress, which was reflected in their failing grades at school and in their engagement in

altercations and aggressive behavior at school and home. He presented evidence that

during the previous school year all three children had failing grades, and Son was placed

on an Individual Educational Plan (IEP) and Mother had not notified Father of this.

Father also submitted declarations from individuals who attested to Father's close,

positive relationship with his children; his attention to their needs; and his loving, stable

2 To corroborate his claims, Father submitted a declaration from a family member
(apparently related to Father) who stated the children had told her about their
unhappiness with their current living situation, including that they felt abandoned by
Mother; Mother had not been living with them at the grandparents' home for over a year;
Mother at most visited them one time per month; and they were concerned about the
uncle living at the home who was using and selling drugs.
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home environment. He proposed that the parenting plan be reversed so that the children

would reside primarily with him and would visit Mother during school breaks.

Responding to Father's claims, Mother denied that she moved in with her

boyfriend and left the children to live with her parents. Mother stated that she and the

children lived with her parents for almost three years. Mother had no knowledge or

suspicion that her brother was using drugs. On some weekends Mother stayed at her

boyfriend's home, and the children usually came with her unless she and her boyfriend

were going out of town. She never moved in with her boyfriend and all of her belongings

remained at her parents' home. Mother and her boyfriend had now purchased a home,

and they were living there with Mother's children and the boyfriend's children. Mother

stated that Father's claim that the children felt abandoned by her was "pure fabrication."

Mother acknowledged the children had failed classes during the previous school

year, but stated their academic performance had improved during the current school year.

The older daughter was going to graduate from high school in June, and the younger

daughter was getting A's and B's and maybe one C. Son has a processing deficit and

focusing problem that have been addressed through an IEP; he is receiving after-school

tutoring; Mother works with him constantly to help him with his studies; and she

pressures him to do his homework and to get at least C's. Mother did not tell Father

about Son's IEP because Father had never participated in decisions about the children.

Mother believes Son's maturity level is below his age level; i.e., at the level of an 11- or

12-year-old. Mother stated she and her boyfriend provide a stable, enjoyable home

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environment for the children. She denied that the children were aggressive or getting into

altercations.3

Mother testified that Father is a long haul truck driver, which requires him to

travel long distances and causes him not to be home three to four or more nights per

week. Father told the FCS counselor that he is on the road about 25 days each month for

five days at a time; however, when the children are in his care he does not travel outside

the county and is home every evening.

Son testified that he had a good relationship with his father, he talked to him

regularly, and they had a good summer visitation. Son testified he wanted to live with

Father, explaining that he did not remember having a birthday or Thanksgiving with

Father. He stated he would miss his sisters if they stayed in California. Regarding his

grades, Son testified that the last school year he failed all of his classes. However, he had

now changed schools; he was receiving after-school tutoring; his grades were improving;

and Mother helped him with his school work and pressured him to get it done.

The FCS counselor recommended no change in the custody order. The counselor

conducted a conference with both parents in November 2011, with Father participating

telephonically. The counselor reviewed the information provided by the parties,

including the children's living arrangements with Mother, and recommended that Mother

continue to provide the primary residence. The counselor took into consideration the

children's ages, the parenting schedule practiced by the parties, the fact Mother has been

3 Mother stated there was one incident when Son pushed another student when he
was in sixth grade, and he is now in eighth grade.
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the primary care provider for the children since the parents separated in 2000, and the

absence of any information from Father that would warrant a change in custody. The

counselor did not personally interview the children. When queried about this at the

hearing, the counselor explained that no one requested that the children be interviewed

about their preferences, and unless there were safety concerns it was not her practice to

interview children. The counselor also recommended that Mother be ordered to send to

Father on a monthly basis documents related to the children's health and school

performance, including report cards and parent-teacher conference reports.

The trial court denied Father's move-away request and adopted the FCS

counselor's recommendations, including regarding the ongoing transmission of school

documents by Mother to Father. When making its oral ruling at the hearing, the court

commented that Mother had intervened with the children's academic problems and their

grades were improving; Father had not presented any evidence about what school the

children would attend or what resources would be available in Illinois; and Father had not

presented evidence about whether he was "going to be around." The court also stated that

it was undisputed that Son expressed a preference to live with Father, and the court took

this preference into account. However, the court stated it did not "find there was a whole

lot behind the preference," and Son's expressed preference was outweighed by the fact

that if he was sent to Illinois, the siblings would be separated.

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 DISCUSSION

I. Contention that Trial Court Abused Its Discretion

Father argues the trial court abused its discretion in denying his move-away

request because it failed to mention or make findings concerning a variety of relevant

evidentiary items and factors. He contends the court failed to make findings on such

matters as the instability reflected in the children's failing grades and Mother's leaving the

children in the care of the grandparents; the FCS counselor's failure to interview the

children; and the fact that Mother used the children to communicate with Father and

failed to inform Father about Son's IEP.

Preliminarily, we note that when it made its oral ruling, the trial court expressly

referred to the issue of the children's grades and set forth its consideration of this matter.

In any event, to the extent the court did not address the other matters raised by Father on

appeal, he has not shown error in this regard. If a party wants the trial court to make

explicit findings on particular issues, he or she must request a statement of decision on

these issues. (Fam. Code, § 3022.3; In re Marriage of Hebbring (1989) 207 Cal.App.3d

1260, 1274; Hogoboom & King, Cal. Practice Guide, Family Law (2012 Rutter Group) ¶

17-405, p. 17-102.)4 A party's failure to request a statement of decision generally forfeits

an appellate challenge based on the lack of express findings. (In re Marriage of Ditto

4 Subsequent unspecified statutory references are to the Family Code. Section
3022.3 states: "Upon a trial of a question of fact in a proceeding to determine the custody
of a minor child, the court shall, upon the request of either party, issue a statement of the
decision explaining the factual and legal basis for its decision pursuant to Section 632 of
the Code of Civil Procedure."
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(1988) 206 Cal.App.3d 643, 647; see In Marriage of Hebbring, supra, 207 Cal.App.3d at

p. 1274.) Absent a request for specific findings, it will be presumed on appeal that the

trial court found all facts necessary to support the judgment. (In re Marriage of LaMusga

(2004) 32 Cal.4th 1072, 1093; In re Marriage of Sabine & Toshio M. (2007) 153

Cal.App.4th 1203, 1219; In re Marriage of Hebbring, supra, 207 Cal.App.3d at p. 1274.)

After the trial court made its oral ruling denying Father's move-away request, the

court directed Father to prepare the court's order. Father agreed to do so, and Father

prepared a written order denying the move-away request in general terms. Father never

requested specific findings on an issue and never requested a statement of decision.

Under these circumstances, Father has not shown the trial court abused its discretion by

failing to make findings on any particular points now raised by Father on appeal.

Father also raises several challenges that essentially attack the court's ruling on its

merits. Father asserts the court erroneously found that if it granted the move-away

request based on Son's testimony that he wanted to live with Father, it would have to split

up the siblings. Father contends this reasoning was improper because Father had

requested that all three children move with him, and the court erroneously "assumed the

[move-away] request was for just one child."

Contrary to Father's assertion, the record shows the court understood the move-

away request was for all the children. The materials provided to the court (including

Father's order to show cause, Mother's opposition pleadings, and the FCS counselor's

report) refer to the parties' three children, state that Father was requesting physical

custody of the children, and say nothing to suggest that Father was requesting physical

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custody only of Son. We presume the court read and understood these materials. (Evid.

Code, § 664 ["It is presumed that official duty has been regularly performed."].) At the

hearing Father's counsel told the court that Father wanted "the two remaining minor

children" to be in Father's primary care and with school-break visitation to Mother.

When ruling to adopt the FCS counselor's recommendations, the court stated that it was

excluding the older daughter because she was now 18 years old. The court's written

order after the hearing states, "The Court denies Respondent's request to have the

children move to Illinois." There is nothing in the record to support Father's contention

that the court thought Father was solely seeking physical custody of Son.

Further, absent a showing that the other two children would or should go to live

with Father, the trial court could properly consider that an order granting Son's preference

would separate the siblings. There was no evidence indicating that the older daughter (an

adult at the time of the move-away hearing) intended to elect to live with Father. As to

the younger daughter, the record supports the court's ruling that the custody order should

not be changed to require her to move to Illinois. When a noncustodial parent seeks to

change a permanent physical custody order, "the noncustodial parent has a substantial

burden to show that ' "some significant change in circumstances indicates that a different

arrangement would be in the child's best interest.". . .' " (In re Marriage of LaMusga,

supra, 32 Cal.4th at p. 1088; In re Marriage of Brown & Yana (2006) 37 Cal.4th 947,

956.) Absent such a showing, the court " 'should preserve the established mode of

custody' " so as to " 'protect[] stable custody arrangements.' " (LaMusga, supra, at p.

1088.)

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 Father's request for a change in custody was primarily premised on Mother's

failure to live with the children at the grandparents' home and the children's failing

grades. Mother presented evidence showing that she never left the children to live with

her boyfriend; the children were currently living with her in a home she has purchased

with her boyfriend; and the children's academic situation is being addressed and has

improved. The trial court was entitled to credit this information and to reject Father's

assertion that it was in the children's best interests to change the long-standing physical

custody arrangement.

Father also contends the court erroneously found there was no evidence he would

be able to care for the children due to his work schedule. He contends he and his wife

submitted declarations "stating otherwise[,]" and Mother did not provide any evidence

indicating his work schedule would make him unable to care for the children. We

presume Father is referring to the trial court's comment at the hearing that Father did not

show whether he was "going to be around," which appears to be a reference to Father's

absence from his home due to his truck-driving job. Father has not cited to any evidence

(in the declarations he submitted or otherwise) specifically showing how the children

would be cared for in Illinois.

In any event, even assuming arguendo there was no basis for the trial court to infer

Father would not be able to provide proper care for the children if they resided primarily

with him, the court's comment about Father's absence from the home does not show it

abused its discretion in denying the move-away request. Father was seeking to

significantly alter the custodial arrangement that had been in place for almost 12 years,

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and he bore a substantial burden to justify this change. We will not upset the trial court's

discretionary ruling on this issue unless "there is no reasonable basis upon which the trial

court could conclude that its decision advanced the best interests of the child." (In re

Marriage of Melville (2004) 122 Cal.App.4th 601, 610.)

As set forth above, the court's decision was supported by the showing that the

children were now living on a full-time basis with Mother in their own home and their

academic needs were being addressed. Further, the court properly considered Son's

preference to live with Father (§ 3042), and could reasonably reject Son's request given

Mother's testimony about his level of maturity, the existing IEP addressing his special

academic needs in the current placement and the lack of evidence concerning resources

available in Illinois, and the bond between Son and his two sisters who would not be

moving to Illinois.5 The court reasonably found there were no changed circumstances

warranting a change in the custody order, and we are satisfied the court would have

reached the same conclusion even if it had not considered Father's absence from the

home due to work obligations. (See People v. Price (1991) 1 Cal.4th 324, 492 [reversal

5 Section 3042, subdivision (a) states: "If a child is of sufficient age and capacity to
reason so as to form an intelligent preference as to custody or visitation, the court shall
consider, and give due weight to, the wishes of the child in making an order granting or
modifying custody or visitation."
The section also provides that a child 14 years of age or older should be permitted
to testify unless the court finds it is not in the child's best interests; younger children may
be permitted to address the court if appropriate; if a child is precluded from testifying the
court should provide alternative means of obtaining input from the child; and a child is
not required to express a preference or provide input. (§ 3042, subds. (c)-(e), (g).)
This provision does not require the court to accede to a child's preference, but only
requires the court to consider it and give it due weight. (In re Marriage of Mehlmauer
(1976) 60 Cal.App.3d 104, 110.)
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not warranted absent reasonable probability court would have reached different result had

it realized one of its reasons was erroneous]; see generally In re J.S. (2011) 196

Cal.App.4th 1069, 1078.)

II. Contention that Trial Court Prejudged the Case and Denied a Full Hearing

Father argues his due process rights were violated because prior to the conclusion

of his case, the trial court prejudged and decided the move-away issue and dissuaded his

counsel from fully presenting his case. In support, he cites a comment by the trial court

during his counsel's closing argument where the court stated: "I think it's pretty clear-cut

on the move-away." According to Father, his counsel then rested his case without

finishing the closing argument because it was apparent the court had already decided the

move-away issue.

Father's contention that the trial court prejudged the move-away issue and caused

his counsel to prematurely rest his case is speculative. Before making the comment that

the move-away issue was "pretty clear-cut" the court summarized the evidence that it

viewed as supporting this conclusion. Thus, it is apparent the court's statement about its

assessment of the issue was based on the evidence, not on a prejudgment independent of

the evidence. Further, although Father's counsel's closing argument was short and he

rested his case immediately after the court stated its view on the merits, there is nothing

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in the record suggesting the court would have prevented further argument had counsel

wished to continue.6

Father has not shown the trial court violated his due process rights.

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

HUFFMAN, J.

6 The colloquy between Father's counsel and the court was as follows: "[Father's
counsel]: . . . With regards to the move-away . . . my client has provided evidence as to a
substantial change in circumstances, namely, the drop in the children's grades. Granted,
they may be going up but all we have is Mother's testimony. [¶] The Court: And the
child's testimony. And nothing on the other side. I have no reason to disbelieve that.
They both say Mother was intervening and got tutoring and things are better. And we
have nothing on the other side what will happen when they get to Illinois. What school
they will go to. What resources are there going to be. Is Dad going to be around. All of
those things. I think it's pretty clear-cut on the move-away. [¶] [Father's counsel]: I
rest. [¶] The Court: Okay."
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