And Tami Winternitz. William W. Winternitz v. Winternitz (In re Winternitz)

235 Cal.App.4th 644

185 Cal.Rptr.3d 458

IN RE the MARRIAGE OF William W. WINTERNITZ, Jr., and Tami Winternitz.

William W. Winternitz, Jr., Respondent,

v.Tami Winternitz, Appellant.

D065131

Court of Appeal, Fourth District, Division 1, California.

Filed February 27, 2015

Rehearing Denied March 27, 2015

Review Denied June 10, 2015

Kim M. Robinson, Barbara A. Kauffman, San Rafael, and Jennifer A. Hilton, for Appellant.

Edward Stephen Temko and Dennis Geis Temko, for Respondent.

McINTYRE, J.

Tami Winternitz (Mother) appeals the denial of her move-away request involving her daughter Jamison (born 2001) with ex-husband Dr. William W. Winternitz, Jr. (Father). She asserts the custody evaluator failed to comply with California Rules of Court, rule 5.220 and it was legal error for the family court to deny her motion to strike the evaluator's defective report. (All rule references are to the California Rules of Court.)

She also claims the family court did not apply the correct legal standard in assessing her relocation request, including (1) failing to consider her presumptive right to move under Family Code section 7501, (2) not weighing all of the factors set forth in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 12 Cal.Rptr.3d 356, 88 P.3d 81 ( LaMusga ), and (3) not giving meaningful consideration to Jamison's custodial preference to remain in her care as required by Family Code section 3042. (Undesignated statutory references are to the Family Code.) She also contends the family court abused its discretion by failing to award her any need-based attorney fees after May 21, 2013. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. First Move-away Request

The parents married in 1985. Father is an orthopedic surgeon. The couple had three children: Jill, Jana and Jamison. The couple separated in August 2001, shortly after Jamison's birth. The Yolo County Superior Court dissolved their marriage in 2004. To help determine custody of their then three minor children, the couple stipulated to the appointment of Dr. Frank Leek as a custody evaluator. In his June 2003 report, Dr. Leek addressed Mother's request to relocate the children to San Diego. Dr. Leek found that Mother manipulated the children. He reported that therapists who met with both parents concluded that Mother alienated the children from Father. Dr. Leek initially recommended the children remain with Father. In an amended report, Dr. Leek changed his recommendation to permit Mother's relocation with the children. He notes changes that occurred over the year, including Mother's act of alienating the children and the children's strong opposition to living with Father. Dr. Leek believed that by staying with Mother, the children would make a less conflicted adjustment and the possibility of reconciling with Father would be left open.

A March 2005 custody order found that Mother engaged in tactics "resulting in the alienation of the minor children from Father." Despite this finding, the court allowed Mother to relocate with the children to San Diego. The order provided that custody would be modifiable based on the children's best interests without showing a change in circumstance. After Mother moved to San Diego with the children, Father relocated to San Diego and established an orthopedic surgery practice there.

B. Instant Move-away Request

After some initial proceedings in the Yolo County Superior Court, Mother filed a move-away request in the San Diego Superior Court seeking an order to move Jamison with her to Chico, in northern California, where she had purchased a home. Mother sought to move as she had reconnected with a friend, Evan Said, to whom she was now engaged; Evan's former employer rehired him to work in Chico; Mother was unable to find a job in San Diego and she could not afford a home there. In turn, Father moved to modify custody and visitation, seeking physical custody of Jamison.

In July 2012, Father and Mother met with Family Court Services (FCS). The FCS report concluded with a recommendation that Mother remain Jamison's primary caregiver. Father did not agree with the FCS recommendation; accordingly, he requested a custody evaluation and evidentiary hearing. The family court granted Father's request and appointed Robert Simon, Ph.D., to conduct a custody evaluation.

Dr. Simon submitted his custody evaluation report in March 2013, recommending that the move-away request be denied and Jamison placed with Father. He interviewed Father and Mother, separately and with Jamison. He spent over 14 hours interviewing Father and over 20 hours interviewing Mother. He also interviewed Jamison, Jill, Jana, Evan and Cheri (Mother's younger sister). Dr. Simon admitted making mistakes in the case and Mother's counsel cross-examined him at length on his conclusions and impartiality.

After considering Dr. Simon's report, hearing testimony and argument from counsel, the family court denied Mother's move-away request and changed primary custody of Jamison to Father. The family court found that Father met his burden of showing the planned move would cause substantial detriment to Jamison. It then addressed the LaMusga factors and found that changing custody to Father was in Jamison's best interests. Mother filed several requests for an award of attorney fees and costs, which the family court denied. Mother timely appealed from the denial of the move-away order and the denial of attorney fees and costs.

DISCUSSION

I. Move-away Request

A. General Legal Principles

"A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." ( § 7501, subd. (a).) Accordingly, when a custodial parent proposes to relocate a child, "the noncustodial parent has the burden of showing that the planned move will cause detriment to the child in order for the court to reevaluate an existing custody order." ( LaMusga, supra, 32 Cal.4th at p. 1096, 12 Cal.Rptr.3d 356, 88 P.3d 81.) "The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child." ( Id. at p. 1097, 12 Cal.Rptr.3d 356, 88 P.3d 81.) If the noncustodial parent carries the threshold burden of showing that the planned move would cause detriment to the child, the "court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the child[ ]." ( Id. at p. 1078, 12 Cal.Rptr.3d 356, 88 P.3d 81.)

As the LaMusga court stated, "[T]his area of law is not amenable to inflexible rules." ( LaMusga, supra, 32 Cal.4th at p. 1101, 12 Cal.Rptr.3d 356, 88 P.3d 81.) Rather, courts must "exercise their discretion to fashion orders that best serve the interests of the children in the cases before them. 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; 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. )

To assist in making a change in custody determination, a court may appoint a child custody evaluator to report on the best interests of children. ( Evid. Code, § 730 ; rule 5.220(b).) The child custody evaluator must "(A) Consider the health, safety, welfare, and best interest of the child within the scope and purpose of the evaluation as defined by the court order; [¶] (B) Strive to minimize the potential for psychological trauma to children during the evaluation process; and [¶] (C) Include in the initial meeting with each child an age-appropriate explanation of the evaluation process, including limitations on the confidentiality of the process." ( Rule 5.220(d)(2).) In performing an evaluation, the evaluator has certain ethical obligations, including "[m]aintain[ing] objectivity, provid[ing] and gather[ing] balanced information for both parties, and control[ling] for bias." ( Rule 5.220(h)(1).)

All evaluations must include a written explanation of the process that clearly describes the following: purpose of the evaluation; procedures used and the time required to gather and assess information; scope and distribution of the evaluation report; limitations on confidentiality; and cost and payment responsibility for the evaluation. ( Rule 5.220(e)(1).) In presenting findings, the evaluator must "(A) Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached; [¶] (B) Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews; [¶] (C) Only make a custody or visitation recommendation for a party who has been evaluated. This requirement does not preclude the evaluator from making an interim recommendation that is in the best interest of the child; and [¶] (D) Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interest of the child if making any recommendations to the court regarding a parenting plan." ( Rule 5.220(e)(3).)

B. Background

At trial, Mother's counsel indicated to Dr. Simon...