In re Marriage of David and Martha M.

Decision Date15 May 2006
Docket NumberNo. B177632.,B177632.
Citation140 Cal.App.4th 96,44 Cal.Rptr.3d 388
PartiesIn re MARRIAGE OF DAVID and MARTHA M. David M., Petitioner/Appellant, v. Martha M., Respondent.
CourtCalifornia Court of Appeals Court of Appeals

Vincent W. Davis & Associates, Vincent W. Davis and Elizabeth Briceño-Velasco, Arcadia, for Appellant.

Thomas P. Dovidio, Diamond Bar, for Respondent.

WOODS, J.

David M. appeals from orders of the family court which modified a prior juvenile court exit order concerning his visitation rights and child support payments for his daughter Amy. He argues the family court applied the incorrect legal standard in modifying the juvenile court's exit order. Specifically, appellant asserts the family court should have applied the "change of circumstances and best interest" test provided in California Welfare and Institutions Code section 302, subdivision (d).1 The family court, however, applied only a "best interests of the child" rule in ordering modification and concluded respondent Martha M. did not need to demonstrate a change of circumstances to modify the exit order. Appellant also argues the court erred in ordering him to pay child support arrearages. As we shall explain, the family court erred in failing to modify the exit order in accordance with section 302, subdivision (d). Consequently, we reverse the visitation order and remand for the court to consider the matter pursuant to the standards set forth in section 302, subdivision (d). In addition, because the child support and arrearages order was dependent on the visitation order, we reverse and remand the child support and arrearages order for reconsideration as well.

FACTUAL AND PROCEDURAL HISTORY

Appellant and respondent were married in 1993 and separated in 1997. Amy M., the parties' daughter, was born in January 1997. Pursuant to the Judgment of Dissolution entered on February 14, 2001, both parents were to retain joint legal and physical custody of Amy, with respondent to retain primary physical custody. In particular, the original custody order stated appellant's timeshare with Amy as follows: (1) alternate weekends from 7:30 p.m. Friday evening until 6:30 p.m. Sunday evening; (2) each Tuesday and Thursday from 7 p.m. to 9 p.m.2 Additionally, the order required appellant to pay respondent $700 per month commencing on August 15, 2000, as child support.

Subsequently, on October 20, 2000, respondent reported to the Department of Children and Family Services (DCFS) that appellant had sexually molested Amy. DCFS initiated a juvenile dependency petition against appellant. (LASC case No. CK43859.)3 A juvenile dependency petition was filed and later amended to reflect an allegation that a conflict between the parents existed which placed the child at risk.4 At the detention hearing the juvenile court ordered the matter continued for the parties to participate in mediation and Amy was released to her mother. The juvenile court also ordered the family law case and the juvenile dependency proceedings consolidated/coordinated, indicating: that all matters relating to custody, visitation, and placement for Amy would be heard in the juvenile court until the juvenile court "dismisses the petition or terminates jurisdiction."

On February 22, 2001, the juvenile court sustained the amended petition, ruling that the minor was a person described by section 300, subdivision (b), declaring Amy dependent of the juvenile court and ordering Amy be placed in respondent's home with supervision by the DCFS. Appellant was ordered to have monitored visitation on Tuesday evenings and on Saturdays.

Over a year later the parties reached a mediated agreement as to visitation. On February 27, 2002, the juvenile court entered an exit order pursuant to section 362.4. The exit order provided the following: (1) joint legal and physical custody of Amy to both parents, with primary physical custody belonging to respondent; (2) appellant's time with Amy would include: (a) every 1st and 3rd weekend of the month from Friday after school until Monday morning drop off at school, and (b) every 2nd and 4th Wednesday after school to Friday morning drop off at school.5 The minute order from the February 27, 2002, hearing and the exit order state the juvenile court had terminated its jurisdiction in the dependency proceedings and that any requests for modification must be brought in family court.

The exit order made no change and no mention of appellant's monthly $700 child support payments.

On December 20, 2002, respondent applied for an order to show cause (OSC) to modify the exit order in the family court. On February 10, 2003, appellant filed a responsive declaration to the OSC objecting to a modification of the exit order.

On March 14, 2003, appellant also applied for an OSC to modify the original support order's allocation of child support payments. He contended his increased timeshare with Amy as reflected in the juvenile court's exit order ought to reduce his monthly child support payments.

On June 2, 2003, the parties entered into a temporary stipulation regarding the child support payments, which stated appellant would pay respondent $180 per month retroactive to March 14, 2003. The stipulation also provided the court would revisit the child support issue on August 21, 2003. Subsequently, on August 12, 2003, respondent filed a responsive declaration to the OSC, arguing the family court should not reduce appellant's child support payments. On August 21, 2003, the family court appointed Tisha Harman as Amy's counsel.

At the family court hearing on June 21, 2004, the court granted respondent's custody and visitation OSC applying the "best interests of the child" rule of Montenegro v. Diaz (2001) 26 Cal.4th 249, 109 Cal. Rptr.2d 575, 27 P.3d 289. In particular the court ordered: (1) appellant's time share with Amy would be (a) from 6 p.m. on Friday evenings to 6 p.m. on Sunday evenings on alternate weekends, and (b) from 5:30 p.m. to 7 p.m. every Wednesday;6 and (2) appellant would pay respondent $557 per month in child support payments made retroactive to September 1, 2003. The court also ordered that for the period of September 1, 2003, to July 1, 2004, appellant would pay the difference between the stipulated child support payment of $180 per month and the modified child support payment of $557 per month, a total of $3,770.

This timely appeal followed.

DISCUSSION
I. Modification of the Juvenile Court's Exit Order.

On appeal, appellant contends the court used the incorrect legal standard in modifying the exit order because the court adopted the "best interests of the child" rule as opposed to a "change of circumstances" rule as mandated by section 302, subdivision (d). We agree.

In general, child custody and visitations orders in family court proceedings are subject to the trial court's broad discretion and an abuse of discretion is found only where the court exceeds the bounds of reason. (See Montenegro, supra, 26 Cal.4th at p. 255, 109 Cal.Rptr.2d 575, 27 P.3d 289). Nonetheless, appellant's contention as to the appropriate legal standard to apply in ruling on the custody visitation OSC raises a question of law, which we review de novo. (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378, 18 Cal.Rptr.3d 306.)7

In the instant matter, the juvenile court issued the exit order pursuant to section 362.4.8 Respondent subsequently sought to modify that exit order. Under section 302, subdivision (d), any modification of that exit order entered pursuant to section 362.4 requires a finding there has been a significant change of circumstances since the juvenile court issued the order and the modification is in the best interests of the child.9 Both parties concede the juvenile court issued its order pursuant to section 362.4. Based on the clear language of section 302, subdivision (d), the trial court was required to find a significant change in circumstances before it could have modified the exit order.

This notwithstanding, the record from the OSC hearing reflects the court decided the case on a best interest rationale alone. The court stated: "[w]hat the court looks to is what's best for the child in the court's opinion ..." and "the fact is that we look to see what the court considers best for the child over the long run." The record does not disclose any other basis for the court's decision. Moreover, on the record from the OSC hearing, we cannot conclude a family court properly applying section 302, subdivision (d) would have found a significant change of circumstances to modify the order.10 By applying the best interest rule in lieu of the change in circumstances rule, the court made a clear legal error.

Respondent, however, argues the court properly applied only the best interest rule and section 302, subdivision (d) does not apply to the exit order, because there is no evidence Amy was "adjudged" a dependent of the juvenile court. On the contrary, the record in the juvenile court proceeding establishes the child was declared a dependent on February 22, 2001. Consequently, in modifying the juvenile court exit order the family court was required to comply with section 302, subdivision (d).

Respondent also argues the court properly applied the best interest test because the exit order was not a "final order." She relies on Montenegro to establish the exit order was not final. In Montenegro, the California Supreme Court concluded the exit order was not final, because the order contained language indicating it was a temporary arrangement. (Montenegro, supra, 26 Cal.4th at p. 259, 109 Cal. Rptr.2d 575, 27 P.3d 289.) The court also found conduct by the parties to suggest they did not intend for the exit order to be permanent. (Ibid.) Because the court held the order was temporary, the court did not require a change of circumstances to modify the exit order. Respondent claims this court is bound by the ruling in Montenegro and thus this...

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