Marriage of Gimple and Parker

In this unpublished First Appellate District decision, the Court finds that reversible error was committed by the trial court when it failed to issue a Statement of Decision upon request of mother, as required by California Code of Civil Procedure, section 632. The case was remanded back to the trial court to issue a proper statement of decision.

Husband and wife obtained a status-only divorce in 2004; the court retained jurisdiction with regard to the custody and visitation of the minor child. During the subsequent trial on June 20, 2005, mother asked for primary custody and requested permission to relocate with child to New Mexico. Father requested joint physical and legal custody, with primary residence to be with father during the school year. The court issued its ruling orally, awarding joint physical custody with primary physical custody to father. Father was awarded sole legal custody.

In awarding sole legal custody to father, the court found that the father was more likely to facilitate an ongoing relationship between the child and the other parent; mother seemed to be "somewhat inflexible" on the issues which could affect her dealings with regard to father's contact with child. The court awarded solely legal custody to father because the parties had too many disputes over issues such as education, therapy, medical treatment; one parent needs to make these decisions. The court also made specific and detailed orders with regards to visitation. Finally, the court declared that the order would last one year only and was not a permanent order. At the end of the hearing, the court stated it's assumption that father's counsel would prepare the judgment and counsel agreed.

Only July 29, 2005, mother filed a written request for a statement of decision and motion for reconsideration. Mother requested that the court set forth the evidentiary and legal basis for deciding: legal custody; physical custody; that the order be temporary; that only the past two years of child's life was considered with regard to parental involvement.

Over the course of the next few months, the court kept deferring the matter of issuing a statement of decision and eventually ordered wife's counsel to prepare an amended request. This new request asked for the basis for awarding sole legal custody when neither party had requested that it be changed from joint; physical custody, including basis for denial of move to New Mexico; and why the order was deemed temporary. In the meantime, another hearing was held on November 2, 2005; the court issued findings and a visitation order and ordered father's counsel to prepare a proposed statement of decision.

On June 20, 2006, the court filed its Judgment on the custody and visitation issues from the June 20, 2005 determination. Mother timely appealed, contending that the court committed reversible error by not issuing a statement of decision as required by California Code of Civil Procedure, section 632. (See also Family Code, section 3022.3).

The Appellate Court found that the trial court was required to issue a written statement of decision following mother’s timely written request. “In a nonjury trial, the trial court’s failure to render a statement of decision after timely party request…is reversible per se.” See Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) citing In re Marriage of Sellers.

The case was remanded to the trial court to issue a proper statement of decision, although many of the issues are now moot and a new trial is not required.

Labels: child custody, reversible error, statement of decision, visitation

**Not to be Published**

Gorshkov v. Zakharova

Husband filed for divorce in June, 2006. Wife failed to respond and default judgment was entered in September 2006. In March 2007, wife filed a motion to set aside the judgment; it was denied. The lower court found that, even though the motion to set aside the judgment was timely pursuant to Code of Civil Procedure, section 473, the motion to set aside the entry of default was not. Further, there was no proof that setting aside the judgment would alter the outcome under Family Code, section 2121. The court further found that wife lacked credibility in her declaration.

Wife argues that the court abused discretion and exceeded bounds of reason - the court did not consider all the facts and law essential to an informed, intelligent and just decision. For instance, as to merits, the court stated that it would be unlikely for wife to ever receive spousal support; this was arbitrary, capricious and whimsical thinking as she would at least be entitled to temporary support while the divorce was pending.

HELD: wife has not provided support for claim of error; further, credibility is an issue for the trial court.

Labels: motion to set aside default

**NOT TO BE PUBLISHED**

Marriage of Lazor and Schoenbrun

Father was ordered to pay $14,500 in legal fees to the attorney appointed by the court to represent couple's three children during the divorce; mother's attorney had requested that an attorney be appointed. He argues that the Marin County local rule authorizing payments is inconsistent with the Family Code.

Initially, the appointed attorney ("Lueders") was to be paid the "court rate" of $65 per hour; the fees were to be split equally by the parents. Later in the hearing, mom's attorney suggested that Lueders be paid normal rates ($250/hr). In January 2007, Lueders filed motion for his fees and costs - father owned $14,500.

In response to Lueders's motion, father argued that he did not have the financial ability to pay. He also argued that the order did not comply with Family Code, section 3153 because it allowed for the order without determining ability to pay as there was no sum certain. The lower court held that this father must make this argument in the form of a Motion for Modification of the original order, not in a reply brief to motion for fees. Father now argues that this burden is improper.

HELD: father waived right to object to order as he had already begun paying a portion of it. He also failed to bring a motion to modify based on his inability to pay. Further, it is not clear that the trial court did not conduct a proper examination into ability to pay as father's counsel assented to the agreement at the time of appointment.

Labels: minor's counsel; attorney fees; ability to pay

**Partial Publication Only**

Sarah B. v. Floyd B.

Mother and father began dating and shortly after found that mother was pregnant; mother was in the air force in Texas, father lived in San Diego. Mother left the air force and moved to San Diego before the baby was born. Approximately six months later, mother and baby moved to Los Angeles for six month active duty tour. She and baby returned to San Diego and approximately one year later mother got a new job, with benefits and health insurance for the baby. Mother and father began fighting; father refused counseling. In February 2006, mother left father by taking baby and driving to sister's house in Colorado.

In March 2006, mother filed Petition to Establish Parental Relationship in San Diego County; the parties went to mediation later that month but could not agree on a custody plan. The mediator recommended that baby reside primarily with mother. In May 2006, court entered judgment of paternity establishing father's parentage and temporary custody orders allowing mother to keep baby in Colorado; father was granted visitation. Court delayed the custody determination pending a custody evaluation. In October 2006, court heard testimony from both parents and father's friend and considered the evaluation. The court granted primary physical custody to mother with visitation to father every other week (half in San Diego, half in Colorado).
The court found that there was a more mature and stable relationship between mother and daughter.

Father argues that trial court erred in not finding that mother was in violation of the standard temporary restraining orders (TRO) when she moved the child to Colorado; that court should not have adopted reports of the mediator and child custody evaluator; and that the court failed to apply the move-away standard appropriately.

Custody and visitation orders are reviewed for abuse of discretion under the "best interest of child" standard.

Issues:

1.) Did mother violate TRO that took affect when she filed the paternity action that prevents either parent from taking child out of state without written permission of other parent or by court order (Family Code, Section 7700; Uniform Parentage Act)? Father argues that mother should have been required to return child to Colorado when temporary orders were issued. HELD: No - the statute does not state that a child who is already residing in another state when the petition is filed must be returned to California. In the absence of a court order or custody decree, both parents have equal right to custody (Family Code, section 3010 and 7500). Cline v. Sup. Ct. (1982) 135 Cal.App.3d 943. Furthermore, even if the TRO was violated, custody is determined in "best interest of child"; therefore, court could determine that it was in child's best interest to not be returned to California.

2.) Did CA courts have jurisdiction of custody of child living out of state? Yes. CA Courts can make initial custody determination as long as child lived in California within six months before the action is filed and at least one of the parents still lives there. (Family Code, section 3421)

3.) Did court apply the "move-away" standard incorrectly? Father argues that court failed to consider the child's interest in stability and continuity; distance of the move; age of child; relationship with both parents; relationship between parents; reason for the move; and extent of current custody. HELD: court applied the correct standard. As this was an initial permanent custody determination (and thus not a true "move away" case), the court had to devise a parenting plan in the child's best interest. Pursuant to Family Code, section 7501, parent can change residence of child unless the removal would prejudice the rights and welfare of the child. See, In Re Marriage of Burgess (1996) 13 Cal. 4th 25. The record showed that court did consider best interest and commented upon which parent would be more likely to aid in the child's relationship with the other.

4.) Did court apply "best interest" standard? Yes, court concluded that mother had a more stable and mature bond with child and that father might have trouble dealing with pressure of raising a young girl. In essence, it would be more detrimental to remove baby girl from mother than from father.

Labels: best interest, child custody, move-away, temporary restraining order