MONTENEGRO v. DIAZ

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

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

No. E025810.

Decided: July 10, 2000

Covington & Crowe, Katrina West and Donald G. Haslam, Ontario, for Defendant and Appellant. Tuckerman & Thompson, Los Angeles, and Byron C. Thompson for Plaintiff and Respondent.

OPINION

Appellant Deborah Diaz had custody of Gregory Montenegro, her son by respondent Alex Montenegro, from the day Gregory was born.   Alex,1 however, sought custody vigorously and repeatedly.   On Alex's third application, when Gregory was five years old, the trial court awarded him custody of Gregory.   It reasoned that this change was in Gregory's best interest because Alex was willing to share Gregory and to cooperate and communicate regarding his care, whereas Deborah was not.

We will hold that the trial court erred by determining Gregory's best interest afresh.   Because there had already been a prior judicial determination of custody - in fact, two prior judicial determinations of custody - the trial court should have limited its consideration to changed circumstances since the last such determination.   Moreover, we will hold that this error was prejudicial, because there was insufficient evidence of changed circumstances that would have supported a change of custody.

I

FACTUAL AND PROCEDURAL BACKGROUND

Alex and Deborah had been dating for at least a year when she became pregnant with his child.   On November 2, 1994, Gregory was born.   Alex and Deborah continued to date for a while, but they broke up on February 25, 1996.

On March 27, 1996, Alex took Gregory home with him overnight.   According to him, he sought permission to do so;  according to Deborah, however, he did not have, and he did not seek, permission.   In the aftermath of this incident, Deborah told Alex, “ ‘That's it, get an attorney, you won't see him again.’ ”

On April 5, 1996, Alex filed a complaint to establish paternity.   He requested joint legal and physical custody.   In her answer, Deborah admitted paternity;  she consented to joint legal custody, but she requested sole physical custody.

A. First Order to Show Cause.

On the day he filed the complaint, Alex also filed an order to show cause (OSC), seeking, among other things, joint physical custody.

 1. First Stipulated Order (May 6, 1996).

On May 6, 1996, the trial court entered a stipulated order “pendente lite” which provided, among other things:

1. Deborah was to have “primary responsibility for the care, custody and control of the minor․”  (Capitalization omitted.)

2. Alex was to have visitation, which would increase, by stages, to one weekday a week and alternate weekends.

3. The hearing on the pending OSC was continued to September 9, 1996.

Later, the hearing on the pending OSC was further continued to September 30, 1996.

 2. Second Stipulated Order (September 30, 1996).

On September 30, 1996, the trial court entered a stipulated order.   Under the preprinted caption, “Stipulation and Order on Order to Show Cause,” the words “for Judgment” (capitalization omitted) were added by hand.   This order provided, among other things:

1. “[Alex] is the biological father of the minor․”  (Capitalization omitted.)

2. Deborah was to have “primary responsibility for the care, custody and control of the minor․”  (Capitalization omitted.)

3. Alex was to have visitation as follows:

a.  Alternate Tuesdays, from 10 a.m. to 5 p.m.

b. Alternate Thursdays, from 9 a.m. to 5 p.m.

c. Alternate weekends, from Friday at 9 a.m. to Sunday at 5 p.m.

d. Thanksgiving holiday every other year.

e. In 1996, 1997, and 1998, on Christmas eve;  in 1999 and thereafter, for one week during Christmas vacation.

f. Once Gregory was 5 1/212, every other week during summer vacation.

g. Gregory's birthday every other year.

4. “This stipulation covers all matters in dispute in this Order to Show Cause.”

B. Second (Alex's) and Third (Deborah's) Orders to Show Cause.

Alex lived in San Dimas and worked in Brea.

Deborah worked in Irvine.   Around October 1996, she moved from Chino to Irvine.   In November 1996, she told Alex she was considering moving to northern California.

On November 19, 1996, Alex filed an OSC to modify the September 30, 1996, order.   If Deborah went to northern California, he wanted primary physical custody;  if she stayed in southern California, he wanted joint physical custody, including having Gregory in his care from Monday through Friday.

 1. Third Stipulated Order (November 19, 1996).

Also on November 19, 1996, the trial court entered a stipulated order that neither parent would change Gregory's residence pending further order of the court.

 2. Fourth Stipulated Order (December 10, 1996).

On December 10, 1996, the trial court entered a stipulated order which provided, among other things, that:

1. Alex was to have visitation every week from Sunday at 6 p.m. through Tuesday at 6 p.m.

2. The hearing on the pending OSC was continued to January 13, 1997.

3. The order was “[t]emporary” and “without prejudice to either party.”

On January 1, 1997, Gregory had bronchitis.   His doctor wrote a note stating he was too sick for visitation.   Deborah's attorney faxed the doctor's note to Alex's attorney.   When Deborah thus kept Gregory home, Alex showed up at Deborah's house, accompanied by the police, and demanded visitation.

 3. Fifth Stipulated Order (January 13, 1997).

On January 13, 1997, the trial court entered a stipulated order which provided, among other things, that:

1. Alex was to have visitation every week from Sunday at 6 p.m. through Tuesday at 6 p.m.

2. The hearing on Alex's pending OSC was continued to June 24, 1997.

3. The order was “[w]ithout prejudice to either party.”

On April 20, 1997, Deborah took Gregory to Alex's house for visitation.   When Gregory did not want to leave Deborah's arms, Alex grabbed him away.   Deborah claimed Alex also grabbed and hurt her breast;  Alex denied this.

On April 25, 1997, while Alex's OSC was still pending, Deborah filed her own OSC. She requested, among other things, that the December 10, 1996, order be modified so as to reduce Alex's visitation and to require that it be monitored.   Also on April 25, 1997, the trial court appointed counsel for Gregory.

 4. Sixth Stipulated Order (April 28, 1997).

On April 28, 1997, the trial court entered a stipulated order which provided, among other things, that:

1. Deborah was to enroll Gregory in a “day care preschool,” which was to be located “between the parties['] residences.”

2. Alex was to have visitation as follows:

a.  Every Tuesday and Thursday, picking Gregory up from preschool, through Wednesday and Friday, respectively, at 6 p.m.

b. Alternate Sundays, from 10 a.m. to 6 p.m.

3. Both parents were “referred to Dr. Bradbury for [a] co-parenting class․”

4. The hearing on Deborah's pending OSC was continued to May 19, 1997.

In early May 1997, Deborah notified Alex that Gregory would not visit because he was sick.   Gregory's counsel investigated;  she concluded that Gregory had only a sore throat, which did not preclude visitation.   On her advice, Deborah allowed visitation to go forward.   There may have been another occasion on which Deborah failed to produce Gregory for visitation, claiming she herself was sick.

Also in May 1997, Deborah placed Gregory in preschool at Tutor Time in Newport Beach.   He attended on Tuesdays and Thursdays, initially for a full day.   Alex filed a declaration objecting to this;  it was his understanding that, under the latest order, Gregory was supposed to attend a half day, so that Alex could pick him up at noon.2  Before the next hearing, Deborah changed Gregory's enrollment to a half day.

In addition, Tutor Time was not between the two parents' homes.   Alex complained about this;  in connection with the pending OSC's, however, he did not raise it as an issue.

The hearing on Deborah's OSC was further continued to June 24, 1997, the date already set for the hearing on Alex's OSC.

 5. Seventh Stipulated Order (June 24, 1997).

On June 24, 1997, the trial court entered a stipulated order which provided, among other things:

1. Deborah was to have “primary physical custody”;  Alex was to have “secondary physical custody.”  (Capitalization omitted.)

2. Alex was to have visitation as follows:

a.  Every Tuesday and Thursday, picking Gregory up from preschool at 12:30 p.m., through Wednesday and Friday, respectively, at 6 p.m.

b. The first weekend of each month, from Thursday at 12:30 p.m. to Sunday at 6 p.m.

c. On holidays, such as Easter, Halloween, Thanksgiving, and Christmas, every other year.

d. Deborah was to have Gregory on Mother's Day;  Alex was to have Gregory on Father's Day.

e. Each parent was to have Gregory for one uninterrupted week in July, in August, and in either December (as to Deborah) or January (as to Alex).

Between May 1997 and March 1998, Deborah and Alex attended eleven joint sessions with Dr. Bradbury.   Deborah missed two additional scheduled sessions.   Dr. Bradbury viewed these sessions as mediation, rather than as a coparenting class or as counseling.

Dr. Bradbury testified that Deborah “was consistently quite hostile toward [Alex] and essentially appeared to me to be unwilling to try to establish an amicable relationship.”   Alex, on the other hand, “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.”   Dr. Bradbury eventually halted the sessions because both parents had become “bogged down” in “petty issues.”

C. Fourth and Final Order to Show Cause.

On February 11, 1998, Alex filed an OSC, requesting, among other things, that the June 24, 1997, order be modified so as to give each parent physical custody for alternate weeks, and that Alex be moved to a preschool halfway between both parents' homes.

This OSC, at last, was not to be resolved by stipulation.   An evidentiary hearing was held on August 4, 6, 11 and 18, 1999.3  The trial court also took judicial notice of the court file.

Meanwhile, on August 13, 1999, Alex got married.   He and his new wife already had a son together, and they were expecting a second child.

Gregory was due to start kindergarten in September 1999.   Deborah had begun the process of enrolling him in a public school in Irvine.   She had not consulted Alex about this.   Alex, on the other hand, had reserved a space for Gregory in a public school in San Dimas.

On September 10, 1999, the trial court issued a statement of decision.   In it, the trial court stated:  “This is an initial trial on custody.”   It rejected Deborah's contention that it could not modify the existing custody order without a showing of changed circumstances;  rather, it ruled:  “[T]he standard to apply in determining custody is best interests of the child.   (Fam. C. § 3040(a).)”   After discussing the evidence, it concluded:  “[T]his court finds that the best interests of Gregory are that he be in the primary physical custody of the father․”

On September 17, 1999, the trial court entered a “Judgment of Paternity.”   (Capitalization omitted.)   Despite this caption, it contained no provisions regarding paternity.   It awarded “[p]rimary physical custody” to Alex. It allowed Deborah visitation on alternate weekends, alternate holidays, and, during the summer, alternate weeks.

II

THE CHANGED-CIRCUMSTANCES RULE

Deborah contends the trial court erred by applying a “best interest” standard rather than a “changed circumstances” standard.   We agree.

 “The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.  [Citation.]”  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, 51 Cal.Rptr.2d 444, 913 P.2d 473.)  “A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.  [Citations.]”  (Paterno v. State of California (1999) 74 Cal.App.4th 68, 85, 87 Cal.Rptr.2d 754.)

 In custody matters, the overarching standard of decision is the best interest of the child.  (Fam.Code, §§ 3011, 3020, 3040.)   Once there has been an initial judicial determination of custody, however, the trial court can change custody only if changed circumstances make such an order essential or expedient for the welfare of the child.  (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 37-38, 51 Cal.Rptr.2d 444, 913 P.2d 473;  Burchard v. Garay (1986) 42 Cal.3d 531, 534-539, 229 Cal.Rptr. 800, 724 P.2d 486;  see also In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731, 157 Cal.Rptr. 383, 598 P.2d 36.)  “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.”  (Burchard v. Garay, supra, at p. 535, 229 Cal.Rptr. 800, 724 P.2d 486.)

 The changed-circumstances rule “requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child.”  (Burchard v. Garay, supra, 42 Cal.3d at p. 534, 229 Cal.Rptr. 800, 724 P.2d 486.)   What is critical is the finality of the custody decision.   A temporary, interim or pendente lite custody order does not trigger the changed-circumstances rule.  (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 29, 37, fn. 8, 51 Cal.Rptr.2d 444, 913 P.2d 473 [stipulated order dissolving marriage and providing for temporary custody and visitation];  Burchard v. Garay, supra, at p. 534, 229 Cal.Rptr. 800, 724 P.2d 486 [stipulation to custody pending custody hearing];  In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1487-1488, 231 Cal.Rptr. 433 [stipulation to custody pending custody hearing].)   This is true even if the temporary order is set forth in a judgment of dissolution or paternity.  (In re Marriage of Burgess, supra, at pp. 29, 37, fn. 8, 51 Cal.Rptr.2d 444, 913 P.2d 473.)

 On the other hand, a paternity or dissolution judgment, no matter how final, which does not determine custody also does not trigger the changed-circumstances rule.  (Burchard v. Garay, supra, 42 Cal.3d at pp. 534, 538, fn. 4, 229 Cal.Rptr. 800, 724 P.2d 486;  see also Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 929, 269 Cal.Rptr. 547 [stipulated judgment and subsequent stipulated orders did not trigger changed-circumstances test because they did not determine custody].)

 Alex argues that the changed-circumstances rule does not apply to a stipulated custody order.   He neglects to note, however, that in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717 [Fourth Dist., Div. Two] this court rejected the identical argument.   We held:  “[A]n existing custody order, however it may have originated, reflects the best interests of the child until it is shown otherwise by changed circumstances.   It does not matter that the custody order was entered pursuant to a stipulation ․”  (Id., at p. 761, 76 Cal.Rptr.2d 717, italics added.)

Burchard also supports this conclusion.  Burchard noted a minority of states would apply the changed-circumstances standard “only when custody was determined through an adversarial hearing.”  (Burchard v. Garay, supra, 42 Cal.3d at p. 535, 229 Cal.Rptr. 800, 724 P.2d 486, fn. omitted.)   Nevertheless, Burchard adopted “[t]he rule established in a majority of jurisdictions, which ․ applies th[e changed-circumstances] standard whenever custody has been established by judicial decree.”  (Ibid., italics added, fn. omitted.)   This necessarily includes a nonadversarial, i.e., stipulated, decree.

In Burchard itself, there was a stipulated paternity judgment and a stipulated custody order.  (Burchard v. Garay, supra, 42 Cal.3d at pp. 533-534, 229 Cal.Rptr. 800, 724 P.2d 486.)   The court held the stipulated judgment did not trigger the changed-circumstances test, but not because it was stipulated;  rather, it explained:  “custody ․ was not at issue in that proceeding;  the stipulated judgment says nothing on the subject, and there is no showing that [the father], by agreeing to that judgment, acknowledged that [the mother]'s custody was in the best interest of their child.”  (Id., at p. 538, fn. 4, 229 Cal.Rptr. 800, 724 P.2d 486.) The court also held (at least implicitly) the stipulated order did not trigger the changed-circumstances test;  but, once again, this appears to have been because it was an interim, pendente lite order, not because it was stipulated.  (Id., at p. 534, 229 Cal.Rptr. 800, 724 P.2d 486.)

Similarly, in Catherine D., there was a stipulated judgment, followed by three orders, at least some of which were stipulated.   The court held that the changed-circumstances test did not apply.   It acknowledged “that such stipulated orders have the force of law․”  (Catherine D. v. Dennis B., supra, 220 Cal.App.3d at p. 930, 269 Cal.Rptr. 547.)   It reasoned, however, that the orders had not determined custody:  (1) In the judgment, “custody was not at issue ․, [and] the judgment was otherwise silent on that subject”;  (2) the first order provided that the father would abandon his custody motion, but the court found “no indication that the order constituted a judicial determination of custody”;  (3) in the second order, “[t]he question of physical custody was in no way implicated, let alone decided”;  and (4) although the third order referred to the mother “ ‘as the party with physical custody,’ ” it did not otherwise address custody, and “custody had not been litigated․”  (Id., at pp. 929-930, 269 Cal.Rptr. 547, italics omitted.)   Accordingly, we adhere to our holding in Biallas that a stipulated custody order, if sufficiently final, triggers the changed-circumstances rule.

 In a footnote, Burgess carved out an exception to the changed-circumstances rule:  “A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children.   In such cases, the custody order ‘may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order.’   (Fam.Code, § 3087.)   The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children.”  (In re Marriage of Burgess, supra, 13 Cal.4th at p. 40, fn. 12, 51 Cal.Rptr.2d 444, 913 P.2d 473.)   Subsequent appellate cases have squarely held that this is indeed an exception to the changed-circumstances rule.   (In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 759, 76 Cal.Rptr.2d 717;  Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1203-1204, 62 Cal.Rptr.2d 766;  In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 141-142, 61 Cal.Rptr.2d 559;  Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736-1737, 53 Cal.Rptr.2d 280;  see also In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1466, fn. 5, 78 Cal.Rptr.2d 671 [dictum].) 4

Here, the trial court ruled that the best-interest test applied and the changed-circumstances test did not:  “[Deborah] argues that ․ Carney ․ and ․ Biallas ․ require that custody be confirmed to [her] unless there is a showing of substantial change of circumstances.   The Biallas case certainly changed practitioners' views of trials following stipulated judgments.   It seems unlikely that the Biallas court meant to rule that the Carney test of substantial change of circumstances applies in such instances.   The very issue was raised ․ in Burchard ․  The California Supreme Court ruled that the Carney standard did not apply․  This court believes that the standard to apply in determining custody is best interests of the child.”

If the trial court meant the changed-circumstances test did not apply because the prior custody determinations here were stipulated, it erred.   As we have already noted, Burchard indicated and Biallas held that a stipulated custody determination can trigger the changed-circumstances test.

If the trial court meant the changed-circumstances test did not apply because the prior custody determinations here were merely temporary, once again it erred.   The stipulated order entered on September 30, 1996, had all the earmarks of a final judgment as to both paternity and custody.   It was captioned “for judgment.”   Boxes labeled “[p]endente [l]ite” and “[t]emporary order pending the trial of this action or further order of the Court” were not checked.   Alex was given a visitation schedule with provisions for 1996, 1997, and 1998, and from 1999 onward.   The order did not contemplate any further hearing;  no further hearing was pending.   We conclude that the September 30, 1996, order was the initial custody determination.5

Thereafter, Alex and Deborah both filed OSC's to modify the September 30, 1996, order.   While those were pending, the trial court entered a series of stipulated orders affecting custody;  each of these orders, however, clearly contemplated a future hearing.   Finally, on June 24, 1997, the trial court entered a new stipulated order, which modified the September 30, 1996, order.   At that point, no further hearing was contemplated.   Had the June 24, 1997, order not been stipulated, it would have been appealable as an order after judgment.  (Code Civ. Proc., § 904.1, subd. (a)(2);  Fam.Code, § 3554.)   Thus, although the June 24, 1997, order was not the initial custody determination, it was a final custody determination;  and as such, it was equally entitled to the protection of the changed-circumstances rule.

On February 11, 1998, Alex sought to modify the June 24, 1997, order.   On September 10, 1999, the trial court ruled:  “This is an initial trial on custody.”   As we have just discussed, there had already been not just one, but two prior judicial determinations of custody.   Thus, once again, it erred.

 We also note, if only for the sake of completeness, that the “Burgess footnote 12-Brody exception” did not apply.   First, and most obviously, this was not a “move-away” case, in which “one parent seeks to relocate with the minor children.”  (In re Marriage of Burgess, supra, 13 Cal.4th at p. 40, fn. 12, 51 Cal.Rptr.2d 444, 913 P.2d 473.)

 Second, even assuming that the exception could apply outside the “move-away” context,6 the existing custody order did not provide for joint physical custody.  “[T]he trial court looks at the existing de facto arrangement between the parties to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent.”  (In re Marriage of Biallas, supra, 65 Cal.App.4th at pp. 759-760, 76 Cal.Rptr.2d 717.)   Under the June 24, 1997, order, Alex could have Gregory for “overnights” on Tuesdays and Thursdays, the first weekend of each month, and specified holidays in alternate years.   Previously, we have held that having a child for one “overnight” per week and every other weekend is “liberal visitation” rather than joint physical custody.  (Id., at pp. 758, 760, 76 Cal.Rptr.2d 717.)   We conclude Alex's arrangement, with two “overnights” per week and one weekend per month, was likewise visitation and not custody.

 Finally, Alex tries to suggest the error was either waived or invited.   He states that the trial court “determined, without objection by either attorney, that the trial on the issues of custody and visitation would be the initial and one trial on these issues.”   He is referring to this exchange:

“THE COURT:  Your understanding is there's one trial to rule on custody, so this is the trial for custody;  correct?

“[ALEX'S COUNSEL]:  That's fine.

“THE COURT:  [Deborah's counsel]?

“[DEBORAH'S COUNSEL]:  Well, I would like to add just one thing to what [c]ounsel has indicated.   The triggering event or the need for the assistance of the Court at this particular point is that the child is scheduled to begin kindergarten within approximately the next month, and mom lives in Irvine and dad lives in San Dimas, so it would appear that the arrangements which have gone on up to the present time likely will not work from this point forward because some kind of a choice has to be made with regard to the schooling arrangements.”

The statement, “this is the trial for custody,” did not clearly indicate that the trial court understood it was making an initial custody determination.   Moreover, while Alex's counsel agreed with this statement, Deborah's counsel did not.   Somewhat to the contrary, he indicated there were existing custody (and/or visitation) “arrangements.”   He also indicated these might need to be modified.   Thus, he never concurred in the notion that the task before the trial court was to make an initial custody determination, rather than to modify some prior determination.

Later, at the end of the hearing, Deborah's counsel argued:  “[M]y client is the primary custodian of this child․  And in order to grant the change in custody, ․ the Court is obligated ․ to find that there is a change in circumstances that would justify a change in custody.   That simply has not been presented in the evidence before you․”  Thus, Deborah in no way waived or invited the error of applying the best-interest test rather than the changed-circumstances test.

Accordingly, we conclude that, by applying the best-interest test, the trial court erred.

III

THE ERROR WAS PREJUDICIAL

 Deborah contends the error was prejudicial;  indeed, she contends that, under the changed-circumstances test, there was insufficient evidence to support an award of custody to Alex.

 “A reversible error only exists when it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of that error.  [Citation.]”  (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 606, 92 Cal.Rptr.2d 897;  accord, Cal. Const., art. VI, § 13;  Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal.Rptr. 528, 728 P.2d 1163;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The trial court, applying the best-interest test, based its order changing custody “almost totally” on the parties' respective “ability and willingness to share and communicate.”  “The court was convinced that [Alex] felt that the child had to have the benefit of time with both parents.   The court was equally convinced that [Deborah] wished [Alex] to have as little contact as possible.”  “[Deborah] has been unwilling to share time with [Alex] over a considerable period of time.   In addition, [Deborah] is unable or unwilling to adequately communicate matters regarding the child's welfare to [Alex]. This problem has existed over a long time period.”

As the trial court's reference to “a long time period” might suggest, this situation did not represent a change of circumstances since the June 24, 1997, order.   Deborah first manifested unwillingness to share in March 1996, when she said, “That's it, get an attorney, you won't see him again.”   In response, Alex filed his very first OSC;  he was already complaining that Deborah failed to communicate.

Admittedly, the strongest evidence of Deborah's unwillingness to share or to communicate was Dr. Bradbury's opinion testimony.   He began seeing the parents shortly before the June 24, 1997, order was entered, and he continued to see them for nearly nine months thereafter.   Thus, arguably, he did not form his opinion until after the order was entered.   There was no evidence, however, that Deborah actually became more unwilling to share or to communicate after the order was entered.   Thus, there was no evidence that Deborah's unwillingness to share Gregory with Alex represented a change of circumstances.

The trial court cited Deborah's selection of a preschool farther from Alex's home, rather than midway between their respective homes, as evidence of her “unwillingness to consider the opinion of the other parent.”   This, however, happened in May 1997.   On June 3, 1997, Alex filed a declaration complaining about the preschool's full-day schedule;  he did not complain about its location.   Moreover, knowing its location, he stipulated to the June 24, 1997, order.   The location of the preschool was not a change of circumstances since the June 24, 1997, order.

The trial court also noted that “[Deborah] denied [Alex] visitation on occasion.”   The evidence showed, at most, three specific instances of denied visitation;  one was in January 1997, one was around May 6, 1997, and the date of the third was never established.   Moreover, Alex admitted that, since he had begun picking Gregory up from preschool in May 1997, his ability “to exercise court-ordered visitation” had actually “improved.”   Thus, once again, this was not a change in circumstances.

The main things that had changed since the June 24, 1997, order were that (1) the sessions with Dr. Bradbury had failed,7 (2) Alex had gotten a full-time job, married, and fathered another child, and (3) Gregory was due to start kindergarten.   On the other hand, Gregory had been in Deborah's custody since birth.   Alex had stipulated to this repeatedly;  although most of those stipulations were intended to be temporary, interim arrangements, two of them were intended to be as final as custody judgments ever can be.   Each of those two times, Alex presumably agreed it was in Gregory's best interest to remain in Deborah's custody.

“As [the Supreme Court] ha[s] repeatedly emphasized, the paramount need for continuity and stability in custody arrangements - and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker - weigh heavily in favor of maintaining ongoing custody arrangements.  [Citations.]”  (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 32-33, 51 Cal.Rptr.2d 444, 913 P.2d 473.)   In light of this preference for continuity and stability, there was insufficient evidence that these changed circumstances, individually or collectively, rendered it “ ‘ “essential or expedient” ’ ” (id., at p. 38, 51 Cal.Rptr.2d 444, 913 P.2d 473, quoting In re Marriage of Carney, supra, 24 Cal.3d at p. 730, 157 Cal.Rptr. 383, 598 P.2d 36) to take five-year-old Gregory away from Deborah and give him to Alex.

IV

DISPOSITION

The order appealed from is reversed.

Our decision does not necessarily determine the custody of the child.  (See Burchard v. Garay, supra, 42 Cal.3d at p. 541, 229 Cal.Rptr. 800, 724 P.2d 486;  In re Marriage of Carney, supra, 24 Cal.3d at p. 741, 157 Cal.Rptr. 383, 598 P.2d 36;  In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 764, 76 Cal.Rptr.2d 717.)   However, the trial court shall restore physical custody to Deborah, pursuant to the June 24, 1997, order, unless it determines, on a new OSC or other appropriate application, that changed circumstances since the June 24, 1997, order render a different custody arrangement essential or expedient for the welfare of the child.   In the event such a new application is made, the trial court shall have discretion to make appropriate temporary orders pending a full custody hearing.

FOOTNOTES

1.   We refer to the parties by their first names because this is the preferred practice in family law appeals.  (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2, 81 Cal.Rptr.2d 797.) Moreover, in their briefs, the parties used their own and each other's first names;  we trust they will not be offended if we follow suit.

2.   The existing order did not specify a pickup time.   Alex argued that the order referred to “preschool,” which implied a half day, rather than “day care,” which would imply a full day.   Actually, the order had referred (rather ambiguously) to “day care preschool.”

3.   We have not been supplied with the reporter's transcript for August 6, 1999.   However, because neither side has requested augmentation, we may presume the existing record includes everything material to our determination of the points on appeal.  (Cal. Rules of Court, rule 52.)

4.   Justice Sills, in an uncharacteristic lapse of eloquence, dubbed this the “ ‘Burgess footnote 12-Brody exception.’ ”  (In re Marriage of Whealon, supra, 53 Cal.App.4th at p. 136, 61 Cal.Rptr.2d 559.)

5.   The trial court's comments suggest that it was somehow equating a stipulated order with an order pendente lite - it referred to “a stipulation as opposed to judgment.”   We see no reason, however, why the parties to a custody dispute cannot stipulate to a final judgment as any other litigants can.   Indeed, that is the goal of mandatory mediation under Family Code section 3160 et seq.  (See Fam.Code, § 3186, subd. (b) [agreement reached through mediation cannot be incorporated in an order unless each party has assented “in open court or by written stipulation.”].)Perhaps for this reason, the trial court apparently misread Biallas as involving, not a stipulated judgment, but a stipulated temporary order.   That would be incorrect.  Biallas involved a stipulated judgment of dissolution which awarded physical custody to the mother and visitation to the father.  (In re Marriage of Biallas, supra, 65 Cal.App.4th at pp. 758, 760-761, 76 Cal.Rptr.2d 717.)   Clearly, this was a final custody determination.

6.   This issue was before the Supreme Court, all too fleetingly, in In re Marriage of Congdon (1999) 70 Cal.App.4th 358, 82 Cal.Rptr.2d 686, review granted, May 26, 1999, S077916, review dismissed, January 13, 2000.

7.   Alex states:  “In derogation of the Court's order, Deborah did not continue counseling with Dr. Bradbury․”  (Capitalization omitted.)   This is inaccurate.   Leaving aside the fact that the order was for a “co-parenting class” rather than “counseling,” it cannot be said Deborah chose not to continue.   Dr. Bradbury testified he “indicated ․ the session[s] should stop” because “we weren't getting anyplace.”

RICHLI, J.

RAMIREZ, P.J., and GAUT, J., concur.