Gonzalez v. Banuelos (In re the Marriage of Gonzalez)

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In re the Marriage of EDGAR GONZALEZ and MARIA BANUELOS.

EDGAR GONZALEZ, Appellant, v. MARIA BANUELOS, Respondent.

G063585

California Court of Appeals, Fourth District, Third Division

October 3, 2024

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Riverside County No FLIN2100706, Kristi E. Hester, Judge.

Westover Law Group and Andrew L. Westover for Appellant.

No appearance for Respondent.

OPINION

SANCHEZ, J.

Appellant Edgar Gonzalez and respondent Maria Banuelos^[1] were married and have one child, a son who was two years old when this action was filed. In 2020, Banuelos was recovering from surgery, and with the encouragement of Gonzalez, she went with the child to stay with her parents in Illinois. At the time, Banuelos said it was temporary, but she later told Gonzalez that she and the child would not be returning. Gonzalez then filed a petition for dissolution and sought physical and legal custody of the child. In temporary custody orders, the trial court awarded sole physical custody to Banuelos. Subsequently, after a multiday trial, the trial court found it was in the best interest of the child to remain with Banuelos.

On appeal, Gonzalez argues the trial court erred by allowing the child to remain with Banuelos in the temporary custody orders and erred by determining after trial that it was in the child's best interest to remain with Banuelos. Gonzalez's first argument is moot because it concerns the temporary custody orders, which were superseded by the final custody order after trial. Additionally, we conclude the trial court did not abuse its discretion following the multiday trial by concluding it was in the best interest of the child to remain with Banuelos. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Gonzalez and Banuelos, who were married, had their child in 2018. In 2020, Banuelos had surgery that required a recovery period. After discussing her recovery with Gonzalez, they brought her mother, who lived in Illinois, to California to help with her recovery. However, her mother needed to return to Illinois, and in August 2020, when Banuelos was still recovering from the surgery, Banuelos went with the child and Banuelos's mother to Illinois. Gonzalez did not have an issue with Banuelos visiting Illinois, and he purchased the tickets and drove them to the airport. Banuelos said at the time that it was temporary and she would be returning, but in early 2021, she informed Gonzalez that she would not be returning to California.

On March 25, 2021, Gonzalez filed a petition for dissolution of marriage, requesting legal and physical custody of the child, and filed a declaration under the Uniform Child Custody Jurisdiction and Enforcement Act. The next day, he filed an amended petition and amended declaration. Gonzalez also sought ex parte emergency orders regarding custody, which the trial court generally denied pending the hearing.^[2]

On May 17, 2021, the trial court held a hearing. Both parties and their respective counsel appeared telephonically, argument was presented by each counsel, and the trial court continued the hearing to June 10, 2021. No reporter's transcript was provided on appeal for this hearing.

On June 10, 2021, the trial court held the next hearing (again, no reporter's transcript was provided on appeal for this hearing). It authorized a 730/3111 evaluation and made "[t]emporary [f]amily [l]aw [o]rder(s)," awarding joint legal custody to Banuelos and Gonzalez, sole physical custody to Banuelos, and visitation to Gonzalez.

On July 7, 2021, the trial court held another hearing and ruled, among other things, Gonzalez was to have his visitation with the child in Illinois, pending further order of the court. The trial court also appointed Dr. Kim Shirin as the child custody evaluator.

On October 25, 2022, trial began and was held over six different days. Gonzalez and Banuelos testified, as well as Gonzalez's sister, Gonzalez's aunt, Gonzalez's cousin, Banuelos's brother, and Banuelos's mother. Dr. Shirin also testified and recommended Gonzalez to have physical custody and Banuelos to have visitation, but if Banuelos moved back to the area, there was no reason there could not be some type of even sharing of custody.^[3]

After hearing closing arguments, the trial court stated, among other things, it "believe[s] you both to be good parents[,]" and it thought "you both love [the child] very much" and the child "loves you both very much." The trial court noted it did "not agree with the way in which Ms. Banuelos moved to Illinois" and, "[b]ecause of the way that was handled, there was an extended period of time where Mr. Gonzalez was not provided the opportunity to have an active role in [the child's] life." However, the trial court recognized, when Banuelos initially "left to move to Illinois, she did so not just with the consent of Mr. Gonzalez but with his encouragement."

The trial court further stated, while it understood how Dr. Shirin reached his conclusions, it disagreed with some of Dr. Shirin's conclusions and would not adopt his recommendation. For example, the trial court noted Dr. Shirin's report discussed the difference in the relationship between the child and Gonzalez and the child and Banuelos, but the trial court found Dr. Shirin's report did not include much discussion on how that demeanor was impacted by the fact that the child had only spent short periods of time with Gonzalez as opposed to longer interactions with Banuelos.

The trial court concluded it was in the best interest of the child to remain with Banuelos and detailed, among other things, a schedule for who the child would be with at certain times (e.g., summer). The trial court asked counsel for Banuelos to prepare the findings and order.

On January 10, 2023, the trial court entered its Findings and Order After Hearing (FOAH). The FOAH stated it was in the best interest of the child to remain with Banuelos. The FOAH awarded joint legal and joint physical custody to Banuelos and Gonzalez, and it made certain other rulings related to who would have the child at certain times, communication, and the sharing of information. For example, the FOAH noted Gonzalez shall spend as much time with the child as possible; when he travels to Illinois and provides at least 10 days' notice, he may have custody of the child in Illinois; and he will have the child every summer (starting one week after school ends until one week before school begins, or a six-week consecutive period if there is not a traditional school break schedule). Gonzalez timely appealed from the FOAH.^[4]

DISCUSSION

On appeal, Gonzalez argues (1) the trial court erred by permitting the child to remain in Illinois in its temporary custody orders, which created the status quo that the trial court supposedly later relied on, and (2) substantial evidence did not support the trial court's decision to disagree with Dr. Shirin's recommendation. We conclude these arguments are unavailing.^[5]

I. THE TEMPORARY CUSTODY ORDERS

As an initial matter, Gonzalez appears to argue the trial court's temporary custody orders were not actually temporary and should have been appealable. But to the extent Gonzalez is making such an argument, it is unclear what relief Gonzalez is seeking because, if the temporary custody orders had been appealable, the current appeal would be untimely as to the temporary custody orders. (See In re Marriage of Weiss (1996) 42 Cal.App.4^th 106 119 [concluding "immediately appealable pendente lite attorney fees orders" were final and binding because party failed to timely appeal from them].)

In any event, Gonzalez is incorrect: the temporary custody orders were temporary and not appealable. The trial court expressly stated its orders were "[t]emporary", and the facts plainly support that these were temporary custody orders as the trial court went on to hold a multiday trial on custody before issuing the FOAH. That the temporary custody orders provided for a status quo at the time of the child remaining in Illinois does not make them final; if that were the case, then essentially any temporary custody order giving sole physical custody to one parent would be a final custody order. We also disagree with Gonzalez's suggestion that case law holding that temporary custody orders are not appealable is no longer valid. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 557-565 (Lester); Banning v. Newdow (2004) 119 Cal.App.4th 438, 456.)

Additionally, Gonzalez contends the trial court erred by not holding a trial before issuing the temporary custody orders. Gonzalez cites Andrew V. v. Superior Court (2015) 234 Cal.App.4th 103 (Andrew V.), which recognized "[a] meaningful hearing is a critical requirement of California law before any judicial determination regarding an out-of-state move-away request for parents who, as here, share joint legal and physical custody following a final judicial custody order" and "[a] full adversarial hearing must precede, not follow, any out-of-state move-away order, however denominated." (Id. at pp. 105, 107.) According to Gonzalez, Andrew V. left a "loophole" and should be clarified so that it applies here, where the trial court supposedly "effectively granted [Banuelos] a relocation, without trial, thus establishing a new status quo for the child."

Gonzalez does not say what evidence he wanted, but was unable, to present in the trial court before the temporary custody orders. The record on appeal reflects that the trial court held two hearings before issuing the temporary custody orders. Additionally, Andrew V. was a different procedural context where there already was a final custody order and the mother was seeking an order to allow her to move away with the children, but here,...