Marriage of Murga, In re

• Decision Date: 18 March 1980
• Citation: 103 Cal.App.3d 498,163 Cal.Rptr. 79
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Anthony R. MURGA and Janice Lee Murga. Anthony R. MURGA, Petitioner and Respondent, v. Janice Lee Murga (PETERSEN), Appellant. Civ. 21113.

Page 79

163 Cal.Rptr. 79

103 Cal.App.3d 498

In re the MARRIAGE of Anthony R. MURGA and Janice Lee Murga.

Anthony R. MURGA, Petitioner and Respondent, v. Janice Lee Murga (PETERSEN), Appellant.

Civ. 21113.

Court of Appeal, Fourth District, Division 2, California.

March 18, 1980.

[103 Cal.App.3d 500] D. Dian Hixon, Santa Ana, for appellant.

[103 Cal.App.3d 501] Roger R. Meadows, Ontario, for petitioner and respondent.

OPINION

KAUFMAN, Acting Presiding Justice.

Janice Lee (Murga) Petersen (mother) appeals from an order modifying the child visitation provisions in the interlocutory and final judgments dissolving the marriage of the parties.

At the time of the dissolution, in December 1974, custody of Brian Murga (hereafter the child), then age three, was awarded to the mother. The father, Anthony Murga, was given visitation rights, including the right to visit with the child on alternate weekends and specified holidays, as well as for one week each summer and one week prior to Christmas Eve. In July 1978, the father sought a modification of his visitation rights because he was going to move to Pensacola, Florida, for at least three years and the mother had refused to agree to any period of visitation in Florida longer than a week. The mother opposed the requested modification of visitation rights and, in addition, requested that the father be restrained from: (1) requiring the child to engage in any religious activity except as approved by the mother; (2) "(s) ermonizing evangelizing, instructing, discoursing with, and/or attempting to indoctrinate" the child on any religious subject without her prior approval; and (3) removing the child from the seven southern counties of California without her consent.

The hearing on the motion was held on August 21, 1978. The trial court granted the father visitation with the child for one two-week period each year until 1980. In 1980, the period of visitation would be increased to three weeks, and in 1981, to four weeks. It permitted the father to phone the child once a week on condition that he refrain from discussing any "religious or biblical activities." Otherwise, the court refused to grant the religious restrictions requested by the mother.

On appeal the mother contends that the court abused its discretion in modifying the visitation order and in refusing to issue the requested restraining orders pertaining to religious activities.

The evidence disclosed that, since dissolution of the marriage, the father has exercised his visitation rights fairly regularly. The child becomes extremely anxious prior to his father's arrival and begs his mother to let him stay with her; when his father arrives to pick him up for the weekend, he sometimes has a fit of temper. However, these tantrums last only as long as the child is in his mother's presence, and, according to the father, once father and son are alone they enjoy a normal relationship. The child gets along well with the father's present wife and their daughter.

When the child is visiting with his father, he is required to spend 15 or 20 minutes a day with the family, reading and discussing the Bible, praying and singing. On Sundays, he is taken to church and Sunday School. He once told his mother that his father had taken him on a door-to-door crusade to save people; the father denied that any such outing ever occurred. The mother asserts that as a result of the father's imposition of his religious attitudes and practices, the child hates religion and refuses to go to church with her. She has requested the father not to discuss religion with the child, but the father has refused to accede to her requests.

In August 1978, the father was going to take his family to Pensacola, Florida, where he planned to attend the Pensacola Bible Institute for three or four years. He had quit his job as a lather and sold his house. In Florida he intended to buy a mobile home and find whatever kind of work he could, since there was no market for construction workers with his particular skill. He did not have any regular monthly income and had not yet located a place to live in Florida. The parties' briefs do not indicate whether the father has since moved, nor whether he has found employment and suitable housing.

Propriety of the Modification

In support of her contention that in modifying the visitation order the court abused its discretion, the mother argues that the father failed to show a change of circumstances affecting the child's welfare and that the father failed to carry his burden of proving that the requested modification would serve the best interests of the child. We do not agree with either of these arguments.

The mother's claim that the father failed to show a change of circumstances affecting the child's welfare is clearly without merit. Continued contact with the noncustodial parent is vitally important to the welfare of a child. (See Devine v. Devine, 213 Cal.App.2d 549, 553, 29 Cal.Rptr. 132.) It is the public policy of this state "to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage . . .." (Civ.Code, § 4600 (Stats.1979, ch. 915, § 3, p. ----).) Consequently, the decision of a noncustodial parent to establish residence in a place that is far enough away to preclude the exercise of existing visitation rights necessarily constitutes a changed circumstance sufficient to support a modification of a visitation order. (See Stack v. Stack, 189 Cal.App.2d 357, 370, 11 Cal.Rptr. 177.)

The mother's argument that the modification of visitation was not shown to be in the best interests of the child is based on the evidence that the father did not have a job to go to and did not know what kind of work he could find in Florida, had not located a place to live in Florida, and upon moving to Florida would have no regular monthly income. The mother relies on Stagliano v. Stagliano, 125 Cal.App.2d 343, 270 P.2d 91, in which the reviewing court reversed the trial court's expansion of visitation rights because of "the meager amount of evidence in the record bearing upon the subject of the welfare of the child under such change of custody . . .." (125 Cal.App.2d at p. 349, 270 P.2d at p. 94.)

However, in Stagliano the father had apparently been residing in the same place for a considerable period of time, and the court could rightly expect that he would be able to present evidence of the conditions under which the child would live while with him. The mother, who was resisting what the court characterized as a change of custody, testified that while she was living with her husband, she had found his companions and his living habits intolerable. Not only did the father fail to present evidence of the conditions in which the child would be living while with him, but it was shown by uncontroverted evidence that he had not seen the child for five years, that he was unable to maintain a reasonable standard of living for his family, that his expenses exceeded his income by $2,600 annually, and that he was unable to guarantee payment of the costs of transporting the child across the country to visit with him.

In the instant case, the father had demonstrated his ability to provide the child with suitable housing accommodations. The mother had no objection to the conditions at the father's house prior to the hearing, nor did...