Enrique M. v. Angelina V.

Decision Date31 August 2004
Docket NumberNo. D041780.,D041780.
Citation18 Cal.Rptr.3d 306,121 Cal.App.4th 1371
CourtCalifornia Court of Appeals Court of Appeals
PartiesENRIQUE M., Plaintiff and Appellant, v. ANGELINA V., Defendant and Respondent.

Enrique M., in pro. per., for Plaintiff and Appellant.

Olins, Hayes & Miller and Laura H. Miller, San Diego, for Defendant and Respondent.


Enrique M. (Enrique) filed an order to show cause seeking to modify a stipulated order governing the parenting schedule and schooling of his and Angelina V.'s (Angelina) son, X. The trial court denied Enrique's requests on the ground Enrique had failed to carry his burden of showing a change of circumstances sufficient to justify the modification. On appeal, Enrique contends that he was not required to demonstrate a change of circumstances because he did not seek to modify custody of X. We hold that the standard of proof a parent sharing joint custody must meet to effect a change in parenting time is the best interest of the child, not changed circumstances. We therefore reverse the order and remand for further proceedings.1


Enrique and Angelina dated from 1995 to 1997. In September 1997, after their relationship had ended, Angelina gave birth to their son, X.

In March 1998, Enrique filed a complaint to establish a parental relationship and child custody and visitation. In the complaint, Enrique alleged that Angelina had refused to allow him to have any involvement with X.

The parties reached a partial agreement in a mediation conducted by Family Court Services (FCS). The parties agreed to a "six-step program of gradually introducing [X.] into his father's life more extensively until such time as the parents are sharing the child fairly equally." After a hearing in April 1998, the trial court entered an order in June 1998 adopting the parties' partial agreement and the FCS recommendations. The court's order stated that the parents would share joint legal custody of the child, that X.'s primary residence would be initially with Angelina, and that Enrique's custody rights would be gradually increased over time until the parents shared joint physical custody.

By the end of 1998, X. was with Enrique from Sunday night through Monday morning, Tuesday night through Wednesday morning, Friday night through Saturday afternoon, and on alternating holidays. X. did well with this arrangement for several years.

Enrique and Angelina were unable to cooperate with each other regarding numerous issues relating to X.'s upbringing. By the time of the entry of the January 2003 order at issue in this appeal, the parties had participated in 17 private mediation sessions, and five mediation sessions with FCS.

In late 2001, a dispute arose over where X. would attend kindergarten the following year. At the time, Angelina lived in San Marcos with her husband and baby daughter, and Enrique lived in San Ysidro with his older daughter from a prior marriage. Angelina was working in Kearny Mesa, and Enrique attended law school at the University of San Diego. Angelina wanted X. to attend Richland Elementary School in San Marcos. She also wanted to modify the parenting schedule once X. started kindergarten so that X. would reside with her during the school week and with Enrique only on the first, third, and fifth weekends of the month. Enrique opposed any change in the parenting schedule, and wanted X. to attend the Language Academy in San Diego, where Enrique's older daughter attended school.

In December 2001, the family court denied a request by Angelina that she be awarded sole legal custody of X. and that Enrique's visitation rights be decreased. The court also ordered that X. be enrolled at Richland Elementary School for kindergarten. In its written order filed in February 2002, the court stated: "[I]t is appropriate to enroll the child in the district of the primary custodial parent. The court sees Mother in that role."

In March 2002, Angelina obtained a temporary restraining order based on her allegation that Enrique had "perpetrated domestic violence" against her by driving his car away while Angelina was leaning into the back window to kiss X. good-bye. Enrique contended that Angelina was exaggerating the incident, and that he had merely "inch[ed]" his car away while Angelina was peeking into the back window.

Concurrently with her application for a temporary restraining order, Angelina filed another request for modification of Enrique's visitation rights. She requested that Enrique's visitation rights be limited to alternating weekends to accommodate X.'s upcoming kindergarten schedule. This was essentially the same request Angelina had made prior to the court's order of December 2001.

Enrique again opposed any change in the parenting schedule. He stated that he was planning to move from San Ysidro to Normal Heights, and he reiterated that he wanted X. to attend The Language Academy with his daughter. In mediation with FCS, the counselor recommended that the parenting schedule be changed once X. entered kindergarten in San Marcos. Specifically, the counselor recommended that when kindergarten started, Enrique's parenting time during the school year be limited to the first, third, and fifth weekends of the month, and one evening per week.

Enrique opposed the FCS recommendation. He submitted a declaration stating that the recommended reduction of his parenting time would be detrimental to his relationship with X. Enrique also requested a continuance in order to allow him time to secure housing in the North Park/Normal Heights area. He contended that once he moved from San Ysidro to North Park, which is closer to San Marcos, he would be able to take X. back and forth to school with no difficulty, even if X. were to remain at Richland Elementary.

On June 19, 2002, the parties entered into a handwritten stipulation and order signed by them and by the family court judge. The parties agreed that they would continue to share joint legal and physical custody, and that X.'s primary residence would be with Angelina. They further agreed that once X. was in school, Enrique would have him from Friday afternoon until Monday morning on the first, third, and fifth weekends of each month. In addition, Enrique would have X. on Thursday evenings preceding each of these weekends, and on Thursdays, overnight, preceding Angelina's weekends. Finally, the parties agreed to share parenting time equally during school breaks, with Enrique having X. on Wednesdays, Thursdays, and alternating weekends, and Angelina having him on Mondays, Tuesdays, and alternating weekends.

In July 2002, X. started kindergarten in Track D at Richland Elementary School, a year-round school with four different tracks, or schedules. Enrique moved to North Park later that month.

In August 2002, Enrique filed the motion underlying this appeal. In his motion, Enrique requested that the parenting schedule be modified to include overnights with him every Tuesday and Thursday. Enrique also requested that X. be enrolled in the Track B schedule at Richland Elementary rather than Track D, so that X.'s school schedule would coincide with Enrique's daughter's school schedule. In the alternative, Enrique requested that he be allowed to enroll X. in The Language Academy.

On January 7, 2003, the court denied Enrique's requests. The court concluded that, due to the stipulation and order of June 19, 2002, "the father bears the burden of showing a substantial and compelling change in circumstances in order to modify the existing order," and that "there isn't evidence of a substantial and compelling change in circumstance that would cause the Court to modify the existing order."

However, the court indicated it would have been inclined to modify the parenting schedule if it were considering the matter in the first instance. The court stated in relevant part:

"By the way, let me say as an aside, I don't really like the current schedule. I don't think it's the best schedule for this child.... The schedule is too complicated for you folks to work through together because you don't cooperate with each other very well.... And, frankly, to be honest with you, I don't think it gives dad enough time with the child....

"Even though I may not think it's the best order for this child and the best order for the child and the father or even the child and the mother, it doesn't matter what I think about it. You've entered into a stipulation that became an order of the court. It became a final order of the court on the issue of custody and visitation. And you haven't shown me enough of a change in circumstance that would allow the Court, as a matter of law, to modify the order.

"If we had to start this from scratch, I'd probably come up with a different plan.... But, again, I don't think, as a matter of law, that I can change this order because I don't think you're shown me the—the level of evidence under the standard of [review] that's required for me to make the change. So that's why I denied the motion.

"The changes that I would impose on this order, if I had the ability to make the change, would not be to add more time with father during the school week. It would be to probably add another weekend.... I'd probably ... [give dad the] first, second, and fourth and give mom the third or something like that. [¶] I'm not doing that, but I'm just telling you that the time that I would add for dad would be weekends time, not school time.

Enrique appeals from the trial court's order of January 7, 2003.

A. The Trial Court's January 7, 2003 Order is Appealable

We requested supplemental briefing on the appealability of the trial court's January 7, 2003 order. We conclude that the January 7, 2003 order is an appealable order after final judgment.

It is settled that the right to appeal is strictly statutory, and a judgment or order is not appealable unless made so by statute. (H.D. Arnaiz,...

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