IN RE: the MARRIAGE OF Michael A. and Elissa M. CONGDON.

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Court of Appeal, Fifth District, California.

IN RE: the MARRIAGE OF Michael A. and Elissa M. CONGDON. Michael A. Congdon, Appellant, v. Elissa M. Congdon, Respondent.

No. F029118.

Decided: February 25, 1999

Michael A. Congdon, in pro. per., Porterville, for Appellant. Kathleen Bakergumprecht-Davies, for Respondent.

OPINION

In the published portion of this opinion we hold that, in a non-“move away” situation, a parent with joint physical custody who seeks to modify a permanent child custody decree is required to show a change in circumstances justifying the requested modification of the custody decree.   To the extent that our holding in this case conflicts with In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 260 Cal.Rptr. 210, we respectfully disagree with Birnbaum.

FACTS

Appellant Michael Congdon and respondent Elissa M. Congdon were married in 1982.   Michael petitioned for legal separation from Elissa in June of 1994.   In October of 1995 the court issued a judgment dissolving the marriage and reserving jurisdiction over all other issues.   Michael and Elissa had four children:  Michael, Jr. (born Sept. 1, 1987);  Beverly (born Jan. 12, 1990);  Natalie (born Aug. 20, 1992) and Clayton (born Oct. 4, 1994).1  Michael and Elissa each filed an order to show cause raising issues of child custody, child support and visitation.   In July of 1995 the court issued a temporary support order directing Michael to pay Elissa $1,070 per month.   In October of 1995 Judge O'Hara had a three-day trial on the issue of custody and issued an order on that issue.   The order stated:

“1. The Court is persuaded by the testimony of Family Court Services mediator, Janet Hunsaker, that the children would benefit from a joint custody schedule.

“2. The parties shall share joint legal and joint physical custody of the minor children, Michael A. Congdon, born September 1, 1987, Beverly A. Congdon, born January 12, 1990, Natalie M. Congdon, born August 20, 1992, and Clayton M. Congdon, born October 4, 1994.   Joint physical custody shall be shared as follows:

“A. Custody of Michael and Beverly shall be shared on an alternating week schedule, from Monday at 3:00 p.m. until the following Monday at 3:00 p.m. This schedule shall commence on Monday, October 23, 1995, at which time the children shall go to Petitioner-Father's home.

“B. Custody of Natalie shall move between the parents by splitting each week from Monday at 3:00 p.m. to Thursday at 3:00 p.m. and from Thursday at 3:00 p.m. to Monday at 3:00 p.m. This schedule shall commence on Monday, October 23, 1995, at which time Natalie shall go the Petitioner-Father's home.

“C. Custody of Clayton shall be shared whereby Petitioner-Father shall have custody every Monday and Thursday, commencing at 3:00 p.m. until 7:00 p.m. the following day.   The child shall reside with Respondent-Mother at all other times.

“3. The Court directs that the issues of modification of child support and attorney's fees/costs be submitted to the family law court by motion.2

In late 1995 and early 1996 the parties had a six-day trial before Commissioner Brett Alldredge on the issue of permanent child support.   The record on this appeal does not reflect the result of this trial.   In late January of 1996 Michael and Elissa stipulated in writing that “all proceedings, including trial and contempt proceedings, in the above entitled matter may be heard by Brett R. Alldredge, Court Commissioner of Tulare County․”   Up until at least this point in time, Michael and Elissa were each represented by counsel.   In May of 1997, however, Michael was in pro. per. and filed a motion requesting modification of the October 1995 child acting custody order.   He called it a motion to “MODIFY VISITATION.”   Michael's motion sought to change the existing child custody order so that the two younger children (Natalie and Clayton, then aged 4 and 2, respectively) would be on the same schedule as the two older children (Michael, Jr., and Beverly, then aged 9 and 7, respectively).   Michael also filed simultaneously a document entitled “NOTICE OF REFUSAL TO STIPULATE.”   It stated that Michael “declines to stipulate to the use of the honorable Commissioner Brett Alldredge.”   Commissioner Alldredge heard Michael's motion on June 26, 1997, and denied it.

Michael appeals from the court's June 26, 1997, order denying his motion to modify visitation.   He contends that (1) the court erred “in denying, as untimely, appellant's Notice of Refusal to Stipulate to the use of a Commissioner,” and (2) the court erred in denying his motion to modify the children's visitation schedule.   As we shall explain, we find Michael's contentions to be without merit and will affirm the court's order denying Michael's motion.

I.**

II.

THE COURT DID NOT ERR IN DENYING MICHAEL'S MOTION TO MODIFY VISITATION

 Michael contends that even though the issue of custody of the children was the subject of a three-day trial in October of 1995, and even though the court issued the above-quoted custody order as a result of that three-day trial, the court was required to examine anew in June 1997 the issue of when the children should be with Michael and when they should be with their mother, and was required to do so without any showing by Michael of changed circumstances.   In support of this contention Michael relies on In re Marriage of Birnbaum, supra, 211 Cal.App.3d 1508, 260 Cal.Rptr. 210.   Birnbaum held that “when parents have joint physical custody of their children, an order modifying the coparenting residential arrangement does not constitute a change of custody.”  (Id. at p. 1510, 260 Cal.Rptr. 210.)   Michael argues that because the custody trial resulted in an order giving the parents “joint physical custody,” his June 1997 request that the court change the October 1995 custody order was not a request for a “change of custody” and therefore required no showing of changed circumstances.   As we shall explain, we respectfully disagree with Birnbaum to the extent that it may be read as requiring no showing of a change in circumstances by a parent seeking to change a child custody arrangement which resulted from a judicial decree on the issue of custody.5

Prior to Birnbaum, the law was clear that a motion seeking a change such as the one sought by Michael in this case would require a showing of changed circumstances.   In In re Marriage of Carney (1979) 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36, the California Supreme Court reversed a trial court order transferring custody of two young boys from their father to their mother after the father suffered an accident rendering him a quadriplegic.   The boys had lived with the father for several years prior to the father's accident.   The court stated:

“It is settled that to justify ordering a change in custody there must generally be a persuasive showing of changed circumstances affecting the child.  (Goto v. Goto (1959) 52 Cal.2d 118, 122-123, 338 P.2d 450 ….) And that change must be substantial:  a child will not be removed from the prior custody of one parent and given to the other ‘unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient of the welfare of the child that there be a change.’  (Washburn v. Washburn (1942) 49 Cal.App.2d 581, 588, 122 P.2d 96 ….) The reasons for the rule are clear:  ‘It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons;  that it is desirable that there be an end of litigation and undesirable to change the child's established mode of living.’  (Connolly v. Connolly (1963) 214 Cal.App.2d 433, 436, 29 Cal.Rptr. 616 ….)” (In re Marriage of Carney, supra, 24 Cal.3d at pp. 730-731, 157 Cal.Rptr. 383, 598 P.2d 36, fn. omitted.)

Several years later the court in Burchard v. Garay (1986) 42 Cal.3d 531, 229 Cal.Rptr. 800, 724 P.2d 486 clarified that the changed-circumstances rule applies “whenever custody has been established by judicial decree.”   (Id. at p. 535, 229 Cal.Rptr. 800, 724 P.2d 486, fn. omitted.)   The Burchard court stated:

“In deciding between competing parental claims to custody, the court must make an award ‘according to the best interests of the child’ (Civ.Code, § 4600, subd. (b)).  This test, established by statute, governs all custody proceedings.  (In re B.G. (1974) 11 Cal.3d 679, 695-696, 114 Cal.Rptr. 444, 523 P.2d 244 ….) The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test.   It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question.   Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest.   The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.  (In re Marriage of Carney [supra, at pp. 730-731, 157 Cal.Rptr. 383, 598 P.2d 36];  Connolly v. Connolly [supra, 214 Cal.App.2d at p. 436, 29 Cal.Rptr. 616].)

“ ‘The change of circumstances standard is based on principles of res judicata.’  (Sharp, Modification of Agreement-Based Custody Decrees:  Unitary or Dual Standard?  (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.) The rule established in a majority of jurisdictions, which we here endorse, applies that standard whenever custody has been established by judicial decree.   A minority of states limit the standard further, applying it only when custody was determined through an adversarial hearing.   No state, so far as we have ascertained, applies the changed-circumstance standard when there has been no prior judicial determination of custody.”  (42 Cal.3d at pp. 535-536, 229 Cal.Rptr. 800, 724 P.2d 486, fns. omitted.)

Three years after Burchard, the First District decided In re Marriage of Birnbaum, supra.   In Birnbaum there were three children of the marriage.   An agreement incorporated into the interlocutory judgment of dissolution of the marriage provided for the mother and father to have “joint legal and physical custody” of the three daughters.  (211 Cal.App.3d at p. 1510, 260 Cal.Rptr. 210.)  “ ‘Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”  (Fam.Code, § 3003.)  “ ‘Joint physical custody’ means that each of the parents shall have significant periods of physical custody.   Joint physical custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.”  (Fam.Code, § 3004.)   During the school year, the Birnbaum daughters lived with their mother during the week.   They spent weekends and Wednesday afternoons with their father.   There was also a “very detailed” summer schedule which in essence allowed each parent to have the children for half of the time comprising each summer.  (In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1511, fn. 2, 260 Cal.Rptr. 210.) In September of 1983 the mother moved from the City of San Mateo to another portion of San Mateo County known as El Granada.   She filed a motion seeking to modify the existing custody order.   She asked that the order for joint physical custody be modified to give her sole “physical” custody, that the father's Wednesday visits be eliminated, and that the father's school year visitation be limited to alternate weekends.6  In response, the father also moved for sole physical custody with reasonable visitation rights for the mother.   The father “objected to the existing situation because of the distance between San Mateo and El Granada and because ‘the schools there are inferior to the San Mateo Schools, especially at the middle and high school levels.’ ”  (Id. at p. 1511, 260 Cal.Rptr. 210.)   At an initial hearing, the parents agreed to “undergo coparenting counseling which would result in an evaluation and recommendation by a psychologist they selected.”  (Ibid.) Ultimately, the court issued an order which denied each parent's request for sole physical custody and which preserved joint legal and physical custody.   But the new order called for the children to live with the father, not the mother, for three out of each four weeks during the school year.   During those weeks the children would spend weekends and Wednesday nights with the mother.   For the fourth week the children would live with their mother, and would spend the weekend and one weeknight with their father.   For the summer, this schedule was reversed so that the children would spend three of each four weeks with their mother.   In essence, the court acted as a “super-parent.”  (Id. at p. 1518, 260 Cal.Rptr. 210.)   It fashioned an order which attempted to meet both parents' concerns, but which denied each parent's request for sole physical custody and which did not leave intact the original custody judgment, apparently because the court was persuaded that the children would be better off remaining in the San Mateo schools rather than transferring to the school district they would be in if they attended school near the mother's new El Granada home.

 Much of the Birnbaum opinion deals with the appellate court's conclusion that the trial court did not abuse its discretion in “adjusting coparenting residential arrangements involved in joint physical custody.”  (211 Cal.App.3d at p. 1518, 260 Cal.Rptr. 210.)  “An application for modification of an award of custody is addressed to the sound discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of abuse of that discretion.”   (Messer v. Messer (1968) 259 Cal.App.2d 507, 509, 66 Cal.Rptr. 417;  In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1512, 260 Cal.Rptr. 210.)  “ Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.”  (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598, 153 Cal.Rptr. 423, 591 P.2d 911;  In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1512, 260 Cal.Rptr. 210.)   This standard of appellate review has been called “the deferential abuse of discretion test.”  (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32, 51 Cal.Rptr.2d 444, 913 P.2d 473.)   But the significance of the Birnbaum opinion for purposes of the case before us is part “I,” subpart “A” of the opinion, where the court states:

“Lorene first asserts that there were no material changed circumstances sufficient to justify a change in custody.  ‘It is settled that to justify ordering a change in custody there must generally be a persuasive showing of changed circumstances affecting the child.’  (In re Marriage of Carney (1979) 24 Cal.3d 725, 730, 157 Cal.Rptr. 383, 598 P.2d 36 ….) The basic deficiency in Lorene's contention and her appeal from an order she claims changes custody is, whether there were changed circumstances or not, there has been no change of custody.   The trial court ordered, ‘The parties shall continue to have and share joint legal and joint physical custody of their minor children,’ just as they did under the prior order.   At most there has been a change in what the trial court termed the ‘co-parenting residential arrangement.’ ”  (In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1513, 260 Cal.Rptr. 210.)

According to Hogoboom & King, California Practice Guide:  Family Law (The Rutter Group 1998), the Birnbaum case stands for the proposition that “no ‘changed circumstances' need be shown to revise a coparenting residential arrangement under a joint custody order where the provisions of the prior order for joint custody otherwise remain unchanged.”  (Hogoboom & King, supra, ¶ 7:322.3 rev. # 1 1998.) 7  Our criticism of Birnbaum is the same as that which has been voiced by other commentators:  by allowing a parent with “joint custody” to seek a change in the custody order by calling the requested change a change in “coparenting residential arrangements,” and thereby allowing that parent to circumvent the changed circumstances rule, the stability of custodial arrangements is lessened and the potential for abusive, never-ending litigation over custody is increased.  (See Berke, In Re Marriage of Birnbaum:  Modifying Child Custody Arrangements By Ignoring the Rules of the Game (1991) 24 Loyola L.A. L.Rev. 467 and Adams & Sevitch, Trial Court Order Modifying Joint Custody “Co-Parenting Residential Arrangement” Does Not Constitute Change of Custody, (Cal.Fam.L.Rep. Sept. 1989) pp.   4093-4095 (Sept.1989).)   Birnbaum appears to say that if the custody order established by judicial decree is one labeled joint legal custody and joint physical custody, then a court may entertain a request to tinker with it even if the parent seeking modification of the order does not and cannot make any persuasive showing of changed circumstances affecting the child.   Any custody order so labeled would then appear to be an open invitation to never-ending litigation over a series of never-ending requests for various “modifications” of the custody order.   The trial court in the present case expressed this very concern.   In denying Michael's motion, Commissioner Alldredge stated:

“Burnbaum [sic ] is not - I find that Burnbaum [sic ] is not controlling on this issue.   I think the facts are distinguishable.   I am also of the opinion that the case of Burchard versus Garay and the Marriage of Carney case do in fact set forth the direction that the appellate courts have given trial courts on this issue.

“There is a requirement for a showing of a significant change of circumstances before the court.   It gets to the issue of best interest of the children, or assesses contentions by one party or the other why the current situation should be changed.

“If that were not the case, then a party could in fact come into this court every six months and ask that the order be changed.   And that is a standard that is not only supported by the case law, but is enforced in this court on an almost daily basis for those reasons.

“I find that there has not been a significant change of circumstances showing.”

The Commissioner also expressly noted that he viewed Michael as someone who is more interested in litigating to attempt to obtain any perceived advantage over his ex-wife than in looking out for the best interests of the children.

“I find it particularly difficult to entertain someone's contentions about what's in the best interest of children, and people trying to persuade me that their only interest in the case is what's in the best interest of their children when we have almost four volumes of pleadings filed.

“Mr. Congdon, as far as I've been in this case, and I don't know if I've been the only judge that has been involved other than Judge O'Hara, I doubt that.   You have essentially objected to every order that's been made.   You have voiced your displeasure about just about every order that's been made.   You have filed at least one appeal as I recall.

“This matter's been litigated in the bankruptcy court.   It's been litigated here, now.   It's being litigated at the court of appeal.

“The documents relating to this motion in and of itself are of an absurd size, and I am speaking to you from a perspective of somebody who sees hundreds of cases a week, thousands of cases a month.

“This case is off track, and I cannot begin to figure out where the energy or the money is coming from to continue this extremely high emotional and financial level that now continues to exist in this case.”

Commissioner Alldredge also described this divorce case as “over-litigated ․ to the extent that you're in the 99.9 percentile” and stated that “I am not going to continue to allow this matter to proceed in the fashion that it has in the past.” 8

We are not of the view that the label “joint legal and joint physical custody” in a custody order furnishes the parties with a license to continually relitigate that order.   Other cases have noted that when a change in what might be called a custodial arrangement is sought, the courts will look to actual arrangement itself, and not just its label.  (See, e.g., In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717, and In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 61 Cal.Rptr.2d 559.)   Michael was seeking a change from having Clayton “every Monday and Thursday, commencing at 3:00 p.m. until 7:00 p.m. the following day,” to having Clayton half of the time, and in blocks of one week.   This would certainly have been a significant change for Clayton, even though Clayton's custody is labeled “joint legal and joint physical custody.”   We also note that the original custody order which Michael sought to change was not only the result of a three-day trial, but was also drafted by the attorney who represented Michael at that trial.

Michael does not contest the legal sufficiency of the trial court's finding that there has been no significant change in circumstances.   We therefore need not and do not reach that issue.

The order denying Michael's motion to modify visitation is affirmed.   Costs on appeal are awarded to Elissa.  (See Cal. Rules of Court, rule 26.)

FOOTNOTES

1.   We refer to the parties by their first names simply for purposes of clarity and not out of disrespect.  (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1, 30 Cal.Rptr.2d 306;  Askew v. Askew (1994) 22 Cal.App.4th 942, 947, fn. 6, 28 Cal.Rptr.2d 284;  and In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 109, 49 Cal.Rptr.2d 339.)

2.   Judge O'Hara ruled orally from the bench and the court also issued a written minute order in October 1995.   A formal, signed order, prepared by Michael's counsel, was signed by Judge O'Hara and filed in January of 1996.   Although the parties refer to the custody order as an October 1995 order, and so do we in this opinion, we note for the sake of accuracy that the custody order quoted here is the court's formal order signed and filed in January of 1996.

FOOTNOTE.   See footnote,*, ante.

5.   We note that we are not dealing here with a situation in which the parents share joint physical custody of minor children and one of those parents seeks to relocate with the children.  (See In re Marriage of Burgess (1996) 13 Cal.4th 25, 40, fn. 12, 51 Cal.Rptr.2d 444, 913 P.2d 473.)   In the present case, neither Michael nor Elissa was seeking to relocate.

6.   “ ‘Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.”  (Fam.Code, § 3007;  see also In re Marriage of Burgess, supra, 13 Cal.4th at p. 29, fn. 2, 51 Cal.Rptr.2d 444, 913 P.2d 473.)

7.   Justice Donald B. King is one of the authors of the Hogoboom and King treatise, and also the author of the Birnbaum opinion.   We should perhaps add here that our disagreement with Birnbaum is highly atypical in the sense that Justice King is a scholar of well-earned preeminence.   It is no secret that for many years members of the bench and bar have looked to his writings for his wisdom and guidance when dealing with family law issues.   We also note that Birnbaum came about because of one parent's relocation and that parent's motion seeking sole custody of the children.   When viewed in that context, Birnbaum 's analysis may well have been correct.  (See In re Marriage of Burgess, supra, 13 Cal.4th at p. 40, fn. 12, 51 Cal.Rptr.2d 444, 913 P.2d 473.)   In the present case we are concerned with the applicability, if any, of Birnbaum in a situation which is not a “move-away.”

8.   Michael's May 3, 1997, declaration in support of his motion stated that he had “for the past six months” attempted informally to change the October 1995 custody order.   Although attempting to resolve disputes informally is to be encouraged, our point here is that Michael admits to have begun seeking to change the custody order only one year after it was made.

ARDAIZ, P.J.

DIBIASO, J. and LEVY, J., concur.