In re Marriage of Richardson, B156621.

• Decision Date: 08 October 2002
• Docket Number: No. B156621.,B156621.
• Citation: 126 Cal.Rptr.2d 45,102 Cal.App.4th 941
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF Tara Rose and Scott James RICHARDSON. Tara Rose, Appellant, v. Scott James Richardson, Appellant.

126 Cal.Rptr.2d 45

102 Cal.App.4th 941

In re MARRIAGE OF Tara Rose and Scott James RICHARDSON.

Tara Rose, Appellant, v. Scott James Richardson, Appellant.

No. B156621.

Court of Appeal, Second District, Division 5.

October 8, 2002.

Certified for Partial Publication.^*

Barbakow & Ribet, Claudia Ribet, Los Angeles, and Wendy A. Herzog for Appellant Tara Rose.

Leslie Ellen Shear, Encino, Donald S. Eisenberg, Glendora, and Anne Haerhee Park for Appellant Scott James Richardson.

TURNER, P.J.

I. INTRODUCTION

This is a family law "move away" case. Tara Rose (mother) and Scott James Richardson (father) cross-appeal from custody and visitation orders as to their minor son, Christopher Scott Richardson.¹ The trial court issued a move away order after refusing to conduct a de novo review of the relevant facts and circumstances. In the published portion of this opinion, we address the question of whether a custody stipulation entered into by the parties constituted a "final judicial custody determination" within the meaning of Montenegro v. Diaz (2001) 26 Cal.4th 249, 258, 109 Cal.Rptr.2d 575, 27 P.3d 289. If the custody stipulation constituted a final judicial custody determination, then the trial court was not obligated to conduct a de novo review of the facts in devising a parenting plan that serves the best interests of Christopher. We conclude that the March 14, 2001, initial custody order pursuant to stipulation entered into by the parties did not constitute a final judicial custody determination within the meaning of Montenegro. Hence, the trial court was obligated to conduct a de novo review of the facts before devising a parenting plan that serves the child's best interest. We find the trial court acted beyond the scope of its allowable discretion in concluding no de novo review of the relevant facts and circumstances concerning the youngster's best interests was required. Accordingly, as discussed in the published portion of this opinion, we reverse the visitation and custody orders and remand for further consideration.

II. BACKGROUND

The mother and father were married on September 18, 1993. The child was born on October 16, 1998. The parents separated in May 2000. A stipulated judgment dissolving the parents' marriage was entered on March 14, 2001. The March 14, 2001, judgment of dissolution set forth the purpose of the settlement as follows: "The purpose of this Judgment is to effect a complete, final and permanent settlement and adjustment of all of the parties' respective property rights, spousal support claims and any other financial rights and obligations, interests and claims of whatsoever nature arising out of their marriage which presently exist or which might hereafter arise or exist in any jurisdiction worldwide but for the provisions contained in this Judgment. In addition, it is the intent of the parties to effect a reasonable and fair settlement of the issues of child support and child custody based on the best interests of their child." (Italics added.) The judgment contained comprehensive provisions irrevocably resolving property and other financial issues. Other language was consistent with an intention to resolve all issues between the parties. At one point, the agreement stated: "By this Agreement, Petitioner and Respondent intend to settle all rights and obligations between them, including all aspects of their marital rights and obligations. Except as otherwise expressly provided for in this Judgment, each of them releases the other from all liabilities, debts and obligations of every kind, whether previously or hereafter incurred, including both personal obligations and encumbrances on the other's property, and including all obligations of mutual support. [¶] [] Except for the claims and demands and rights in this Judgment created against either of the parties hereto, which claims, demands and rights are expressly reserved from the operation of this paragraph, each of the parties hereto, for himself or herself and his or her respective heirs, executors, administrators and assigns, hereby releases relinquishes, quitclaims and surrenders to the other party, and to his or her respective heirs, executors, administrators and assigns, all and every right the spouse of the other and any and all claims and demands of every kind, nature and description, whether past, present or future, on or against the other or on or against the property of the other, including any claims for support that either of said parties might otherwise have or claim to have against the other party, or his or her said estate, for or by reason of any matter whatsoever."

But the March 14, 2001, judgment also included child custody and visitation orders which were solely consistent with an intent to resolve those matters in the future. The court awarded joint legal custody of the child to the parents; primary physical custody² of the child to the mother; and "reasonable visitation, pursuant to the agreement of the parties" to the father. The judgment resulting from the stipulation further stated: "In the event the parties are unable to resolve their custody and visitation issues, they shall agree upon a therapist or counselor who has a background and/or specialty in child development and child custody issues to assist them in resolving their issues.... If after meeting with a therapist or counselor, the parties remain unable to resolve their differences, they shall make an appointment with the Conciliation Court at the Los Angeles County Superior Court prior to either party filing a request with the Court for a hearing on the issue."

After entry of the dissolution of marriage judgment, an arrangement developed whereby the father had physical custody of the child about 15 percent of the time— two evenings a week and alternate weekend overnights. As discussed below, the father contends he should have had more time with his son. But, the father argues, the mother restricted his contact and denied him reasonable visitation.

In October 2001, the father sought modification of the child custody and visitation orders. He presented evidence as to the following: he had a very close relationship with his son and they were bonded to each other; he spent two evenings a week with his son in addition to alternate weekend overnight visits; the mother had frustrated his contact with their son and had denied him reasonable visitation; the mother had recently announced her intention to move with the child to Seattle, Washington; and efforts to mediate the situation had failed given the mother's "inflexible and uncompromising" attitude and position. The father sought, among other things, joint legal and physical custody of the child. In the "other relief portion of the Judicial Council Application for Order and Supporting Declaration form, the father sought the following order: "For a focused child custody evaluation addressed to the developmental needs of three year old Christopher including an assessment of his temper[a]ment, attachment to [the father] and ability to spend periods up to fifteen days each month [away] from one parent or the other."

The mother opposed the father's requests, including the request for an evaluation, and sought to maintain primary physical custody of their son, then 3 years' old. She presented evidence she had been the child's primary caretaker since his birth. In addition, the father's visitations with their son had been marked by poor transitions and lack of appropriate care in terms of naps and meals. The mother requested that she be allowed to move with the child to Seattle. The mother further requested "... that the physical custody arrangement that this Court orders will take into account the need for a gradual increase of [the father's] overnights with Christopher, taking into account Christopher's age."

In his reply, the father denied the mother's claims; maintained he had consistently sought more time with Christopher; and asserted he had always taken proper care of the youngster. The father made the following request, "I request that the Court give me a 50/50 timeshare until Christopher is school age and a considerable timeshare after he enters school...."

The father's order to show cause re modification of custody and visitation was first heard on October 22, 2001. The court ordered the mother could move to Washington; there would be no de novo review of the custody and visitation order; there was no reason to order an evaluation; visitation between father and son would not exceed a three day stretch; but the parties were to return to conciliation to "hammer it out." The parties were ordered to return to court on October 30, 2001. At the October 30, 2001, hearing, the trial court denied the father's request to present further evidence, including expert evidence. The court stated it would consider the parties' separate visitation proposals and rule on the matter on December 3, 2001. On December 3, 2001, the court ordered the parties to present a joint statement of their positions on visitation by December 11, 2001.

The trial court issued orders on December 14, 19, and 21, 2001, resolving custody and visitation issues. Pursuant to the December 14, 2001, order, the parents were awarded joint legal custody of the child; the parents were also awarded joint physical custody; but primary custody was awarded to the mother. The December 14, 2001, order also set forth the following general visitation schedule: "[The mother] is ordered to bring Christopher to Los Angeles on the first weekend of each month [or an agreed-upon alternative weekend] for visitation with his father so that Christopher spends up to 72 consecutive hours in his father's care.... In no event is Christopher to miss his monthly weekend visit in Los Angeles with [the father]. [¶] [The father] is awarded additional visitation in Washington for two visits per month, of up to 72 hours consecutive duration. [The father] may combine...