KELLY ANN JONES v. MICHAEL HOLLAND (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

This case involves pro se appellant Michael Jerome Holland, Sr.'s (Holland) appeal from the family court's order entered on June 8, 2010.   The order provided in relevant part, that Holland and Kelly Ann Jones (Jones), Holland's ex-wife, jointly share legal and physical custody of their two children of the marriage, Michael Jerome Holland, Jr., born November 6, 2002 and now approximately age 7 (Mikey), and Quincy Kelly Holland, born April 6, 2004 and now approximately age 5 (Quincy);  and that based on changed circumstances, a modification to the custody arrangement to require that the parties equally split transportation costs relating to visitation is necessary.

Holland argues that the family court erred because, under the Marital Settlement Agreement (MSA) he has the final say, not the court, in the determination of whether Jones should share in legal and physical custody of the children, and that he has the authority to make unilateral decisions regarding the children's education and location because he is the primary parent under the MSA. He challenges the court's order that, with respect to visitation, the receiving parent provides transportation for the children.

Because we interpret the MSA to have given both Holland and Jones joint legal and physical custody and reserved jurisdiction for the family court to enforce the MSA, and we find that the family court's order was not an abuse of discretion, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND 1

Holland and Jones married on February 12, 2000.   After the irremediable breakdown of their marriage, the parties separated in September of 2006, filed for divorce, stipulated to a custody arrangement with respect to Mikey and Quincy in 2007 and subsequently entered into the MSA. Under both the custody arrangement and the MSA, the parties agreed to both joint legal and physical custody.   Despite having joint physical custody, the parties agreed to allow Holland to care for the children the majority of the time (from Monday at 9 a.m. to Friday at 7 p.m.) with Jones caring for the children the rest of the time (from Friday at 7 p.m. to Monday at 9 a.m.) – an approximately 65%/35% split.   Jones also agreed to exclusively provide transportation for visitation purposes.   The MSA also provided that the physical custody arrangement would change to a 50%/50% split once Jones found safe and suitable housing.   A judgment dissolving the marriage and adopting the MSA was entered on May 6, 2009.

In 2009, Holland's employer, International Services, a security and investigation services provider, went out of business and, as a result of the employer's failure to pay its employees wages, Holland was evicted from his Hollywood apartment.   The successor to this employer with respect to its contract with Los Angeles County hired Holland and requested that he work in the Palmdale/Lancaster area.   Holland's supervisor assisted him in relocating to Palmdale sometime between April and June of 2009.   By moving to Palmdale, Holland added approximately 25 miles distance between Jones's Chatsworth residence and Holland's new residence (totaling approximately 50 miles one-way).   Holland withdrew the children from school and enrolled them in Barrel Springs Elementary School as well.   Holland failed to seek permission of the family court or to properly notify and confer with Jones regarding his unilateral decision to transfer the children to a different school.

Jones filed a request for an order to show cause hearing regarding the modification of the current child/spousal support, visitation and physical custody orders on September 30, 2009.   Jones alleged that she was a victim of domestic violence at the hands of Holland ² but that now she has obtained financial independence and secured a two-bedroom apartment in a safe neighborhood.   She argues that due to these changed circumstances and Holland's moving the children in violation of the MSA, a change in the current custody and other orders is necessary.

At the hearing on January 14, 2010, the parties introduced evidence and testimony and the family court made the following findings.   The family court found that the children were happy and that it was not in their best interests to make any changes to their visitation schedule during the current school year.   The family court found that the stipulated judgment signed by the parties states that they have joint legal custody, that Holland does not have primary custody and that neither party has the right to unilaterally move and change the children's school.   The family court adjusted the children's visitation schedule for the following summer and holidays and ordered the receiving parent to cover the costs of transportation.   Finally, the family court set monthly child support at $287 per month effective October 1, 2009 and ordered the parties to split equally any childcare related costs.   Remaining issues were continued.   The family court's order was entered on June 8, 2010.   Holland appealed on June 21, 2010.

Additional hearings and orders were made subsequent to Holland's appeal on July 20, 2010 (child/spousal support and related arrearages and request for sanctions against Holland for an earlier failure to appear);  on July 26, 2010 (revision to summer vacation visitation);  and on September 10, 2010 (primary custody change to Jones, children ordered to attend Superior Elementary School and changes in visitation schedule).

ISSUES ON APPEAL 3

Holland makes numerous contentions in his appeal.   However, many of his contentions involve either issues that allegedly arose from changes in custody, visitation and child/spousal support and related arrearages made in subsequent orders or issues made moot by such subsequent orders.   As a result, we discuss herein only those issues which stem from the order being appealed and which are not moot.

The first such issue involves the family court's interpretation of the stipulated MSA. Holland contends that, under the MSA, he was given primary legal and physical custody of the children but that he would “consider” a “50%/50%” legal and physical custody arrangement with Jones provided that Jones met certain requirements enumerated therein.   He argues that because of the word, “consider,” he has the final say, not the court, in the determination of whether Jones should share in legal and physical custody of the children, and therefore, the family court's determination that Jones had joint legal custody with Holland was in error.

The second issue on appeal involves another provision of the MSA. Holland contends that the family court erred in finding that he had violated the terms of the MSA when he moved the children to Palmdale and switched the children's school over Jones's objections.   He claims that he has the authority to make unilateral decisions regarding the children's education and location because he is the primary parent under the MSA. He challenges the court's resulting order that, with respect to visitation, the receiving parent provides transportation for the children due to the burden of increased distance traveled.

DISCUSSION

1. Appealability

With certain limited exceptions not applicable here, an order made after a judgment is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2).   Orders for child and spousal support as well as child custody arrangements are such appealable orders.  (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 [spousal support];  In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906 [child support];  In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287 [child support arrearages];  Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377–1378 [child custody].)

“To appeal from a superior court judgment or an appealable order of a superior court, ․ an appellant must serve and file a notice of appeal in that superior court․  [¶] The notice of appeal must be liberally construed.   The notice is sufficient if it identifies the particular judgment or order being appealed․  “ (Calif.   Rules of Court, Rule 8.100, subd. (a);  see also, Rule 8.405, subd. (a).)  An appellate court's review is limited in scope to the judgment or order specified in the notice of appeal.  (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073 (Soldate );  Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46–47 (Norman ).)

However, an appeal will be dismissed as “moot” when subsequent events render it impossible for an appellate court to grant effective relief.  (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog Foundation );  Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77–78;  In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)   The policy underlying this general rule is that an appellate court will only decide an “actual controversy” and will not render an “advisory opinion.”   (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178–1179;  Vernon v. State of California (2004) 116 Cal.App.4th 114, 120.)   An appellate court retains discretion to decide the merits of an otherwise moot appeal when (a) issues of broad public interest that are likely to recur are involved (In re William M. (1970) 3 Cal.3d 16, 23;  Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 868–869);  (b) the same controversy between the same parties involved is likely to recur (Grier v. Alameda–Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 330);  or (c) a material question still remains (Eye Dog Foundation, supra, 67 Cal.2d at p. 541;  Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205 (Viejo Bancorp ).)

Although Holland's opening brief and his supplemental brief both contain contentions relating to the orders from July 20, 2010, July 27, 2010 and September 10, 2010, his notice of appeal filed on June 21, 2010 specifies only that the order entered on June 8, 2010 is being appealed.   As a result, under Soldate and Norman, we shall only review Holland's contentions that stem from the June 8, 2010 order.

Additionally, as we have determined that Holland's contentions regarding physical custody, visitation and child/spousal support and related arrearages are made moot by the subsequent orders dated July 20, 2010, July 27, 2010 and September 10, 2010, under Eye Dog Foundation and Viejo Bancorp, we shall only review the merits of those issues involving material questions that remain despite such subsequent orders.⁴

2. Standard of Review

The interpretation of a marital settlement agreement is a matter of law, and thus, “[u]nless the interpretation ․ turns on the credibility of extrinsic evidence, an appellate court must independently arrive at its own interpretation and may not uphold a judgment based on an inconsistent interpretation of the trial court merely because the construction made by the trial court was reasonable.”  (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 372.)

Our review of a family court's child custody order is subject to an abuse of discretion standard, however.  (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255;  In re Marriage of Williams (2001) 88 Cal.App.4th 808, 812.)   Under this standard, the family court's ruling will be upheld if it is correct on any basis, regardless of whether such court actually invoked such basis.  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)  “The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” ⁵  (Ibid.) In other words, the family court's order will be overturned only if, considering all evidence viewed most favorably in support of the order, no judge could reasonably make the order.  (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)

3. The Terms of the MSA Grant Both Holland and Jones Joint

Legal Custody of the Children and Retain Jurisdiction in the

Family Court to Enforce the MSA

The specific provision of the MSA at issue, found in Article IX, section A, states:  “The existing order is [Holland] now has the children 65% and [Jones] has children 35%.   Once [Jones] has a safe and suitable residence, [Holland] is considering a 50%/50% physical and legal custody with [Jones], whereas the children will live with [Jones] 50% of the time and [Holland] 50% of the time.”   Holland contends that because of this provision, he has primary legal and physical custody and that he, not the court, has the power to determine whether both legal and physical custody will be shared jointly with Jones.   This assertion is without merit.

First, the remaining language of the MSA is clear and the inclusion of the words “legal and physical custody” in the second sentence of Article IX, section A, is an obvious typographical error that does not strip Jones of her already joint legal and physical custody of the children per the remaining provisions in the MSA and stipulated order.   The first page of the MSA states that Holland and Jones “shall jointly share the legal and physical custody and care of the minor children.”   Further, the attachment to the May 6, 2009 judgment of dissolution includes identical language.   Finally, the conciliation court agreement and stipulated order regarding custody and the parties' parenting plan, filed on February 14, 2007, defines “legal custody” as:  “A. Legal custody shall be held by both parents as Joint legal custody. [¶] 1. Both parents shall share information, the right and the responsibility to make major decisions regarding the health, education and welfare of the children. [¶] 2. Neither parent shall change the state of residence of the children without the written consent of the other parent or further order of the court. [¶] 3. Parents shall confer and neither parent shall make unilateral decisions without consulting the other parent regarding:  [¶] Major non-emergency medical treatment[.]  [¶] Major decisions regarding education[.]  ․ “ Thus, under the terms of the MSA, it is clear the parties intended to jointly share legal and physical custody of the children and that Holland does not have primary custody despite the interpretation of Article IX, section A, that he urges we adopt.   It is our view that, despite the visitation arrangement under which Holland cared for the children Monday through Friday and Jones Friday through Monday, both parents expressly agreed to joint legal and physical custody of the children.

Holland next argues that the inclusion of the word “considering” in the second sentence of Article IX, section A, means that he, and not the family court, has the power to determine whether both legal and physical custody will be shared jointly with Jones.   This argument is entirely without merit.   Even subsequent to the entry of a judgment, the family court retains jurisdiction over the parties to enforce the terms of a marital settlement agreement pursuant to Code of Civil Procedure section 664.6 ⁶ provided that the parties requested such continuing jurisdiction orally before the court or in a signed writing.  (Code Civ. Proc. § 664.6;  Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1010–1011;  Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439–440.)   The MSA contains just such a request for the retention of jurisdiction.   It is signed not only by Jones, but also by Holland.   The MSA provides in Article III, “PARENTING PLAN:  ․ [¶] C. Both Parties agree that this Court has jurisdiction to make child custody orders in this case pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3 of the California Family Code commencing with Section 3400)․  “ Additionally, Article XI provides, “RESERVATION OF JURISDICTION:  The parties agree that the court shall have jurisdiction to make whatever orders may be necessary or desirable to carry out this agreement and to divide equally between the parties any community assets or liabilities omitted from division under this agreement.”   The family court clearly acted within its jurisdiction.

Based on the foregoing, we interpret the MSA provision to have given the parties joint legal and physical custody of the children and to have properly requested the retention of jurisdiction to modify the parties' custody arrangements by the family court.

4. The Family Court's Order Requiring the Receiving Parent to

Provide Transportation for the Children Is Not an Abuse of Discretion

Holland argues that the family court's order that the receiving parent provide transportation for the children is error because it is based on the family court's incorrect finding that he committed a “move-away” in violation of the MSA. He asserts that he moved to Palmdale and transferred the children to Barrel Springs Elementary School out of necessity relating to his new employment circumstances and that, under In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga ), as the primary custodian of the children, he was allowed to do so.   He also argues that “[t]he move caused no detriment to the welfare of the children, and in no way affected the child's [sic ] relationship with the other parent ․ [¶] The stability and continuity of the child's environment was not disrupted in any shape or fashion after Appellant's move.”

LaMusga held that when a custodial parent proposes to relocate the children, “the noncustodial parent has the burden of showing that the planned move will cause detriment to the child[ren] in order for the court to reevaluate an existing custody order.”  (LaMusga, supra, 32 Cal.4th at p. 1096.)  “ ‘In a “move-away” case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it “ ‘essential or expedient for the welfare of the child that there be a change.’   “ [Citation.]'  [Citation.]”  (Id., at pp. 1088–1089.)  “The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances.   We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child.”  (Id., at p. 1097.)

“Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following:  the children's interest in stability and continuity in the custodial arrangement;  the distance of the move;  the age of the children;  the children's relationship with both parents;  the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;  the wishes of the children if they are mature enough for such an inquiry to be appropriate;  the reasons for the proposed move;  and the extent to which the parents currently are sharing custody.”  (LaMusga, supra, 32 Cal.4th at p. 1101.)

Jones properly applied for modification of the physical custody order based on substantial changes of current circumstances arguing that Holland's move resulted in detriment to the children.   The family court found, based on the evidence presented during the January 14, 2010 hearing, that Jones had satisfied the requirements enumerated in the MSA in order that the visitation schedule be split jointly rather than remain at 65%/35% because she has attained financial stability and acquired suitable housing sufficiently close to Holland's former residence in Hollywood;  that Holland violated the MSA by unilaterally moving the children to Palmdale and transferring them to Barrel Springs Elementary School without conferring with Jones and without permission of the court;  and that Holland's approximately 50–mile move-away prevented a workable joint timeshare from being implemented between the parties, which is detrimental to the children.   On the basis of these findings, the family court ordered that Holland and Jones equally split the transportation expenses of the children between visits where previously Jones had covered such expense entirely.   We find that the family court was well within its discretion to make such an order as it is reasonable to conclude such a change is necessary in light of the changed circumstances.  (See Wilson v. Shea (2001) 87 Cal.App.4th 887, 895–898;  In re Marriage of Condon (1998) 62 Cal.App.4th 533, 553–554;  In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 711;  LaMusga, supra, 32 Cal.4th at p. 1097.)

DISPOSITION

The order of the trial court is hereby affirmed.   Jones shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We Concur:

FOOTNOTES

FN1. The factual and procedural background is drawn from the record, which includes a two-volume Clerk's Transcript (CT), a two-volume Reporter's Transcript (RT), a one-volume index Reporter's Transcript (Index) and a one-volume augmentation to the Reporter's Transcript (Aug. RT)..  FN1. The factual and procedural background is drawn from the record, which includes a two-volume Clerk's Transcript (CT), a two-volume Reporter's Transcript (RT), a one-volume index Reporter's Transcript (Index) and a one-volume augmentation to the Reporter's Transcript (Aug. RT).

FN2. Jones included excerpts from Holland's book entitled, “Why Husbands Kill Their Wives & Boyfriends Beat Up Their Girlfriends,” which he disputes provides justification for violence against women.   This book includes photos of Jones throughout and one of her in her wedding dress on the cover.   Jones denies granting permission to Holland for the use of these images..  FN2. Jones included excerpts from Holland's book entitled, “Why Husbands Kill Their Wives & Boyfriends Beat Up Their Girlfriends,” which he disputes provides justification for violence against women.   This book includes photos of Jones throughout and one of her in her wedding dress on the cover.   Jones denies granting permission to Holland for the use of these images.

FN3. Holland contends that the family court erred in allowing Jones to introduce evidence of Holland's past history of domestic violence towards her at the January 14, 2010 hearing.   In general, we review a trial court's ruling on the admissibility of evidence for an abuse of discretion.   (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.)   Holland cites no authority for his contention, however, and therefore, we find there is no basis for concluding that such introduction was an abuse of discretion.Additionally, Holland alleges that the family court judge was biased against him.   In support he cites approximately 12 lines from the recorded hearings on November 19, 2009 and January 14, 2010.   However, the statements he cites do not rise to the level of showing that Judge Lopez–Giss was so tainted by judicial bias or unfairness that Holland was prevented from receiving a fair trial.  (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1008.)   In fact, Holland does not even allege that he did not receive a fair trial.   This contention is without merit..  FN3. Holland contends that the family court erred in allowing Jones to introduce evidence of Holland's past history of domestic violence towards her at the January 14, 2010 hearing.   In general, we review a trial court's ruling on the admissibility of evidence for an abuse of discretion.   (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.)   Holland cites no authority for his contention, however, and therefore, we find there is no basis for concluding that such introduction was an abuse of discretion.Additionally, Holland alleges that the family court judge was biased against him.   In support he cites approximately 12 lines from the recorded hearings on November 19, 2009 and January 14, 2010.   However, the statements he cites do not rise to the level of showing that Judge Lopez–Giss was so tainted by judicial bias or unfairness that Holland was prevented from receiving a fair trial.  (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1008.)   In fact, Holland does not even allege that he did not receive a fair trial.   This contention is without merit.

FN4. Holland asserts that his physical custody, visitation and child/spousal support and related arrearages contentions are not made moot by the subsequent orders filed on July 20, 2010, July 27, 2010 and September 10, 2010 because he “never had the opportunity to notice an appeal for the September 9, 10 [sic ] orders, as he has never received a final copy of the court's order which Mr. Patrick Barnitt (children's counsel) was directed to prepare in the final minutes of the September 10, 2010 hearing.   Despite numerous contacts with Mr. Barnitt's receptionist, [Holland] has not received the paper copy of the court's orders to date, nor has any proof of services of such ever been lodged with the trial court (case summary KD069104).”  However, Holland cites no authority supporting the contention that an appeal encompasses subsequent orders if such orders are not properly noticed but the appellant was present during the applicable hearing.   We decline to comment on whether Holland's allegations of such failure impacts the period during which the subsequent orders at issue can be appealed, as that question is not before us today..  FN4. Holland asserts that his physical custody, visitation and child/spousal support and related arrearages contentions are not made moot by the subsequent orders filed on July 20, 2010, July 27, 2010 and September 10, 2010 because he “never had the opportunity to notice an appeal for the September 9, 10 [sic ] orders, as he has never received a final copy of the court's order which Mr. Patrick Barnitt (children's counsel) was directed to prepare in the final minutes of the September 10, 2010 hearing.   Despite numerous contacts with Mr. Barnitt's receptionist, [Holland] has not received the paper copy of the court's orders to date, nor has any proof of services of such ever been lodged with the trial court (case summary KD069104).”  However, Holland cites no authority supporting the contention that an appeal encompasses subsequent orders if such orders are not properly noticed but the appellant was present during the applicable hearing.   We decline to comment on whether Holland's allegations of such failure impacts the period during which the subsequent orders at issue can be appealed, as that question is not before us today.

FN5. The standard enunciated in In re Marriage of Burgess is consistent with Family Code section 3040, subdivision (b), which vests the family court with the “widest discretion” in choosing a custody plan that appropriately safeguards the particular child's best interests.   It provides:  “This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”.  FN5. The standard enunciated in In re Marriage of Burgess is consistent with Family Code section 3040, subdivision (b), which vests the family court with the “widest discretion” in choosing a custody plan that appropriately safeguards the particular child's best interests.   It provides:  “This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”

FN6. Code of Civil Procedure section 664.6 provides:  “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.   If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”.  FN6. Code of Civil Procedure section 664.6 provides:  “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.   If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

KITCHING, J. ALDRICH, J.