Vargas v. Ross (In re Vargas), C082867

• Decision Date: 04 December 2017
• Docket Number: C082867
• Citation: 226 Cal.Rptr.3d 442,17 Cal.App.5th 1235
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Cynthia VARGAS AND Christopher ROSS. Cynthia Vargas, Appellant, v. Christopher Ross, Respondent.

17 Cal.App.5th 1235

226 Cal.Rptr.3d 442

In re the MARRIAGE OF Cynthia VARGAS AND Christopher ROSS.Cynthia Vargas, Appellant,

v.Christopher Ross, Respondent.

C082867

Court of Appeal, Third District, California.

Filed December 4, 2017

Hassan Gorquinpour for Appellant.

Bowman & Associates and Roger G. Kosla, Sacramento, for Respondent.

RENNER, J.

Cynthia Vargas, mother, appeals from a court order awarding Christopher Ross, father, primary physical custody of their minor children. She contends the trial court applied the wrong legal standard in reaching its decision. We agree. Accordingly, we vacate the court's order and remand the matter for further proceedings.

I. BACKGROUND

Mother and father are both active service members in the United States Air Force. They were married in 2009, had two children, and divorced in 2013. At the time of their divorce, both parents were stationed in South Carolina and the initial custody order was for joint legal and physical custody. After the divorce, father relocated to Washington D.C., returning to South Carolina about once a month to visit the children. Later, mother relocated to serve in Korea for one year.

On September 13, 2013, in anticipation of her relocation to Korea, mother filed a motion seeking sole legal and physical custody of the children. She believed father's assignment inhibited his ability to parent the children, so she proposed the children should live in Nevada with her mother for the duration of her assignment in Korea. She later agreed, however, that the children would stay with father and the court issued an order granting father sole physical custody and granting mother electronic access to the children and visitation when she was "state side."¹ The parties would continue to share joint legal custody.

In November 2014, nearing the end of her assignment in Korea, mother learned she would be transferred to Wyoming. She filed a motion seeking sole physical custody of the children upon her return to the states. At that time, father was stationed in Florida, where he lived with the children.

Prior to the hearing on mother's motion, the parties participated in family court services mediation. At the conclusion of that mediation, the parties agreed the children would remain in father's physical custody with specified dates and locations for mother's parenting time, which included the children spending summer break in Wyoming with mother. On January 12, 2015, the trial court adopted the parties' agreement as the order of the court.

In July 2015, while the children were in Wyoming, mother filed a motion seeking custody of the children for the 2015-2016 school year. The parties returned to family court services but failed to reach an agreement. The mediator recommended leaving the children in Wyoming with mother for the 2015-2016 school year and giving father parenting time as outlined in the recommendation. The trial court did not adopt the mediator's recommendation but sent it back for "a full move-away analysis." The court also found the presumption under Family Code section 3047 did not apply to mother's assignment in Korea.²

On August 4, 2015, after performing a "full move-away analysis," the mediator stated that her prior recommendation to leave the children in mother's custody (in Wyoming) for the coming school year was based "on the assumption that the mother had been deployed to Korea for a year (thereby triggering [ section] 3047 ) and also upon the information about the relationship between the parents and their attitudes and demeanor during the [family court services] session." Under the operative custody order, however, the children would be returned to father in Florida the following week. The hearing on mother's motion was scheduled for September 9, 2015. Thus, the mediator found, and mother agreed, it was not in the children's best interest to return to Florida for a few weeks, until the hearing, then move back to Wyoming after the hearing. Accordingly, the mediator recommended the children remain in father's custody in Florida for the 2015-2016 school year, with visitation for mother as often as she could travel to Florida, and for all major holiday and vacation periods.

While she recommended the children remain in father's custody for the 2015-2016 school year, the mediator had "serious doubts" about father's willingness to cooperate with mother. She found that "mother appeared much more willing to bend in order to make the visits work and to cooperate with the father in order to see the children."

Days after the mediator issued her recommendation, mother applied for a temporary emergency order to have the children remain in her custody "pending the next court date" on September 9, 2015. The trial court denied her application.

On September 9, 2015, mother objected to the mediator's recommendation and the trial court set the matter for trial on November 13, 2015. The court also ordered joint legal custody of the parties' children, granting primary physical custody to father. Mother would have parenting time in Florida and Wyoming, as outlined in the court's order.

The November 13, 2015, trial on mother's motion, however, did not take place because on October 7, 2015, father requested a change in the physical custody of the children as a result of his deployment. On October 13, 2015, the court granted father's request and gave mother temporary physical custody of the children pursuant to section 3047.

Father returned from his deployment and on July 14, 2016, the issue of the children's custody went to trial. Mother and father both testified at trial and numerous family court services reports, along with the mediators' recommendations, were admitted into evidence. At the conclusion of trial, the court said if it were ruling on "straight best interest analysis, what's in the best interest of these two young men, my ruling would be that mother should be the primary custodial parent. If you are going to rule on a move-away standard, I thought I would rule the same way, that mother should have primary custody because I do feel that the big issue on these type[s] of cases[,] where there is such a geographical distance[,] is which parent is more likely to cooperate and facilitate the non-custodial parent, and I do feel that mother—and it's included in the mediation reports—has tended to be the one more willing to cooperate with the other parent, but under the standard that we're dealing with, I don't think I can rule any other way than to indicate that we should—we have to go back to the orders where father has primary custody in the state of Florida. There—I think that—I mean, the case law interprets [ section] 3047 clearly indicates that a trial court has to be very careful on these types of cases, and the legislative intent, again, suggests that the [c]ourt should, unless it's a clear case, should basically indicate that the parent who was deployed should resume custody."

The court's subsequent "[j]udgment, [o]rder and [s]tatement of [d]ecision [a]fter [b]ench [t]rial" reflected the same findings and conclusions: "The Family Code [section] 3047 [ subdivision](b)(2) presumption applies in this case. Upon Father's return from his October 13, 2015[,] deployment, the custody schedule presumptively should revert back to September 9, 2015[,] unless ‘the party opposing reversion of the order makes a prima facie showing that reversion is not in the best interest of the child.’"5. Mother did not overcome the Fam[ily] C[ode, section] 3047 [, subdivision] (b)(2) presumption.

"6. The court did not need to reach a decision on whether or not the ‘limited inquiry’ discussed in Marriage of E.U. [v]. J.E. (2012) 212 Cal.App.4th 1377, 1391-1392 limited rebuttal factors for purposes of the Fam[ily] C[ode, section] 3047 [, subdivision] (b)(2) presumption."

"[¶] ... [¶]

"9. If the matter was sent to the [c]ourt on a regular best interest of In re Marriage of LaMusga (2004) 32 Cal.4th 1072 [12 Cal.Rptr.3d 356, 88 P.3d 81] analysis, then the ruling likely would be in favor of Mother. Mother, based on the current evidence, would be the parent who would be more likely to facilitate visits. ...

"10. However, under the current standard, the September 9, 2015 [,] [c]ourt [o]rder is reverted back to as a result of the Fam[ily] C[ode, section] 3047 military presumption. The case law clearly indicates that the trial [c]ourt has to be very careful with military deployment. The legislative intent is clear.

"[¶] ... [¶]

"12. As a result of the above, the military deployment presumption was not overcome by Mother and custody should revert back to the September 9, 2015 [,] order that grants Father custody." (Italics added.)

Mother appeals from this order.

II. DISCUSSION

Mother contends the trial court "applied an incorrect legal test" to the question of which parent should have primary physical custody of the parties' minor children once father had returned from deployment. We agree. To resolve the issue we must interpret section 3047 and effectuate the Legislature's intent.

A. Legal Standards

" ‘The general principles that guide interpretation of a statutory scheme are well established. When assigned the task of statutory interpretation, we are generally guided by the express words of the statute. " ‘Our function is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] To ascertain such intent, courts turn first to the words of the statute itself [citation], and seek to give the words employed by the Legislature their usual and ordinary meaning. [Citation.] When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted. ( Code Civ. Proc., § 1858.) The language must be construed in the context of the statutory framework as a whole, keeping in mind the policies and purposes of the statute [citation], and where possible the language should be read so as to conform to the spirit of the enactment.’...