Montenegro v. Diaz

• Decision Date: 30 July 2001
• Docket Number: No. S090699.,S090699.
• Citation: 26 Cal.4th 249,109 Cal.Rptr.2d 575,27 P.3d 289
• Court: California Supreme Court
• Parties: Alex MONTENEGRO, Plaintiff and Respondent, v. Deborah DIAZ, Defendant and Appellant.

109 Cal.Rptr.2d 575

26 Cal.4th 249

27 P.3d 289

Alex MONTENEGRO, Plaintiff and Respondent, v. Deborah DIAZ, Defendant and Appellant.

No. S090699.

Supreme Court of California.

July 30, 2001.

Covington & Crowe, Katrina West and Donald C. Haslam, Ontario, for Defendant and Appellant.

Tuckerman & Thompson and Byron C. Thompson, Claremont, for Plaintiff and Respondent.

Starre & Cohn, Shelley L. Albaum and Harold J. Cohn, Los Angeles, as Amici Curiae on behalf of Plaintiff and Respondent.

Sissie L. Barker and P. Timothy Pittullo, Rancho Cucamonga, for Minor.

Leslie Ellen Shear, Encino, for Levitt and Quinn Family Law Center, Inc., Association of Certified Family Law Specialists, Inc., Los Angeles, Harold J. Cohn, Douglas Darnell, Robin Drapkin, Lyn Greenberg, Lee Lawless, San Diego, Hugh Mclsaac, Nancy Oleson, Philip M. Stahl, Peter Walzer, Woodland Hills, Richard Warshak, Leonard Weiler, San Ramon, and Linda Wisotsky, Beverly Hills, as Amici Curiae on behalf of Minor.

Sandra E. Purnell, Mammoth Lakes, for Mary A. Duryea as Amicus Curiae.

BROWN, J.

In a story that has become all too familiar, Deborah Diaz and Alex Montenegro could not agree on custody and visitation over their son, Gregory. During the child custody proceedings, Diaz and Montenegro entered into various stipulations, confirmed by the trial court, "resolving" their disputes over Gregory. In the last such stipulation, Diaz and Montenegro agreed to joint legal custody of Gregory, with Diaz having primary physical custody. When Gregory was to start kindergarten, however, they were unable to resolve their differences and asked the trial court to modify its last stipulated custody order. After an adversarial hearing, the trial court awarded primary physical custody to Montenegro based on the "best interests" of the child. The Court of Appeal reversed, concluding that the trial court applied the wrong standard. Finding that two of the stipulated orders were final judicial custody determinations, the Court of Appeal held that the custody arrangement was subject to modification only if Montenegro established a significant change in circumstances. We now reverse and hold that the trial court properly applied the best interest standard, rather than the changed circumstance rule.

FACTS

Montenegro and Diaz were unmarried when their son Gregory was born in November 1994. For the first 18 months after the birth, Montenegro had short visits with Gregory, usually in the home Diaz shared with her mother.

In March 1996, Montenegro visited Gregory while Diaz was at work and Gregory was in the care of his grandmother. Although Montenegro had made no previous arrangements with Diaz, he took Gregory for an overnight visit. After that incident, Diaz refused to allow visitation without a court order. Montenegro then filed a complaint and order to show cause to establish paternity and requested joint legal and physical custody. Diaz conceded paternity but sought sole physical custody of Gregory. She also sought child support and a restraining order preventing Montenegro from harassing her at home or work. The trial court referred them to family court services, including mediation counseling.

Montenegro and Diaz were both represented by counsel and initially stipulated to a temporary custody order after mediation. Under the order, Diaz retained physical custody and Montenegro had visitation rights that would increase by stages to one weekday a week and alternate weekends.

On September 30, 1996, the superior court entered another order, signed by the parents and their attorneys, captioned "Stipulation and Order to Show Cause for Judgment." The order stated that Montenegro was Gregory's biological father and that Diaz had "primary responsibility for the care, custody and control of the minor." The order included a detailed visitation schedule for Montenegro, specifying weekend and midweek visits, holiday visits on alternate years, and visits on alternate weeks in the summer "when [the] child reaches 5 ½ years old." The order further provided that "[t]his stipulation covers all matters in dispute in this Order to Show Cause. This Order when signed is the formal Order. No further documents are necessary." The minute order, however, was virtually identical in form to the previous temporary minute orders, and the end of the order contained a "Notice to Parties Without Attorneys" stating that "[t]his order, although temporary, shall remain in effect until further order of court."

Despite the September 30, 1996 order, several disputes concerning custody and visitation arose, which resulted in additional mediation and in orders that were, on their face, temporary. One of these temporary orders referred Montenegro and Diaz "to Dr. Bradbury for [a] co-parenting class."

On June 24, 1997, the trial court entered another stipulated order signed by the parents and their attorneys after both parents filed orders to show cause seeking to modify the custody arrangement. Prior to this stipulation, neither Montenegro nor Diaz claimed that the September 30, 1996 order was a final judgment as to custody. In the new stipulation, the parents agreed to joint legal custody. Diaz had "primary physical custody," and Montenegro had "secondary physical custody." The order also included the following detailed visitation schedule: Montenegro had physical custody of Gregory on the first weekend of each month and twice weekly, on holidays in alternating years, and for week-long vacations in the summer and winter. His physical custody of Gregory amounted to approximately 12 out of every 28 days, and a nearly equal division of time during holidays. Although the June 24, 1997 order did not provide for further review, it never stated that it was a permanent custody order.

Not surprisingly, this order did not end the feuding as Montenegro and Diaz had a disagreement over Gregory's future school. As a result, Montenegro filed an order to show cause requesting that the June 24, 1997 order be modified to provide for joint physical custody, with Gregory living with each parent on alternating weeks. Diaz filed a responsive declaration indicating that a joint custody arrangement would not be feasible once Gregory began to attend regular school, and that it would be in his best interest to be with her. Although she argued that Montenegro had not made "the requisite showing of a `change in circumstances' or that a change in custody would be `in the best interests' of their child, she did not contend that the June 24, 1997 order was a final judicial custody determination.

Trial commenced on August 4, 1999. At the outset, both parents agreed that the triggering event for the hearing was Gregory's impending enrollment in kindergarten and the need to choose his school. They also agreed that the current custody arrangement would no longer be appropriate once Gregory began kindergarten, because his new daily schedule would necessitate that he spend the majority of his time with one parent.

At trial, Montenegro argued that he should have sole physical custody of Gregory. Although he admitted that the situation had improved somewhat since the June 24, 1997 order, he claimed that Diaz was still unwilling to share Gregory with him. She was also hostile to Laura, his new wife and the mother of his second child, and had referred to Laura, in Gregory's presence, in very derogatory terms. Diaz argued that she should have sole physical custody of Gregory. She denied that she was unwilling to share Gregory with Montenegro, but conceded that she had not given Montenegro medical information about Gregory, even though Gregory was frequently ill. She also admitted that she had not attended all court-ordered sessions with Dr. Bradbury, and that she had not attended previously arranged meetings concerning a childcare provider used by Montenegro. Dr. Bradbury testified that Diaz was "consistently quite hostile toward Mr. Montenegro and ... appeared ... to be unwilling to try to establish an amicable relationship." In contrast, Montenegro "was quite willing to extend himself and go to almost any length in order to maintain contact with his son and to make the relationship between himself and the mother an amicable one."

On September 10, 1999, the trial court issued a statement of intended decision. In the decision, the court acknowledged that the parents had previously entered into stipulated orders concerning custody. It, however, concluded that "[t]his is an initial trial on custody" and held that a showing of changed circumstances was not required for a change in custody. Because Montenegro was more willing to share Gregory, the court ruled that it was in "the best interests of Gregory ... that he be in the primary physical custody of the father...." Consistent with these rulings, the trial court entered an order awarding physical custody to Montenegro and visitation to Diaz on alternate weekends, alternate holidays, and, during the summer, alternate weeks.

The Court of Appeal reversed. Concluding that the September 30, 1996 and June 24, 1997 orders were final judgments as to custody, the court held that the trial court should have applied the changed circumstance rule described in Burchard v. Garay (1986) 42 Cal.3d 531, 534, 538, footnote 4, 229 Cal.Rptr. 800, 724 P.2d 486 (Burchard) and In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 761, 76 Cal. Rptr.2d 717 (Biallas), rather than the best interest standard.¹ After reviewing the evidence presented at trial, the Court of Appeal determined that there was no evidence of a significant change of circumstances. Consequently, the court abound that application of the changed circumstance rule likely would have yielded a different result.

We granted review.

DISCUSSION

"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (Burgess, supra, 13 Cal.4th at p. 32, 51 Cal.Rptr.2d 444, 913 P.2d 473.) Under this test,...