Melville v. Melville

122 Cal. App. 4th 601, 18 Cal. Rptr. 3d 685
CourtCalifornia Court of Appeal
DecidedAugust 26, 2004
DocketNo. A105577
StatusPublished
Cited by25 cases

This text of 122 Cal. App. 4th 601 (Melville v. Melville) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melville v. Melville, 122 Cal. App. 4th 601, 18 Cal. Rptr. 3d 685 (Cal. Ct. App. 2004).

Opinion

Opinion

KAY, P. J.

Appeal from a custody order in a marital dissolution. We affirm.

BACKGROUND

The parties herein, the former wife and husband, refer to themselves in their briefs as Cheri and Keith, respectively. They also refer to their two sons by their first names, Devin and Patrick. We too will use these designations, intending no lack of respect to anyone.

The parties were married in 1981 and separated in 1994. At the time of separation, the family’s residence was in San Mateo, although for most of the marriage they lived in San Diego. Following the separation, Keith moved to San Diego and subsequently remarried. Cheri, who continued living in San Mateo, had primary physical custody of both children after 1995. Patrick generally stayed with Keith during the summer.

In late 2001, Keith requested that he be given full custody of Patrick, who has Down’s syndrome and a heart condition. Pursuant to court order, a [604]*604custody evaluation of Patrick was performed by psychologist Matthew Sullivan. In May of 2002, the parties accepted Dr. Sullivan’s recommendations, which were embodied in a detailed order specifying physical custody and visitation. Keith and Cheri would share legal custody of Patrick. The order also provided: “The parent who Patrick resides with during the designated period below shall have the decision-making authority about Patrick’s educational needs and day-to-day routine health care while he is in their physical custody. That parent shall share [and] discuss in a timely fashion with the other parent prior to making any such decisions for Patrick.”

In December of 2002, Cheri was laid off from her job at America Online (AOL). The next day she told Keith that she planned to relocate and take Patrick to Klamath Falls, Oregon, where she had bought a house in 2000, and begin work as a mortgage broker. Keith obtained an order barring any change of Patrick’s residence pending a court hearing for a modification of Patrick’s custody due to this change of circumstance. Cheri violated that order by taking Patrick to Oregon. The court made a second order giving Keith “immediate, temporary custody” of Patrick pending further evaluation by Dr. Sullivan and the hearing. This court summarily denied Cheri’s petition to have these orders set aside. (Melville v. Superior Court (Apr. 10, 2003, A102041) [summary denial by order].) Following our denial, the trial court made another order that “Patrick will reside primarily with Father subject to Mother’s visitation.”

At the time of the full hearing, Cheri had sold the home in San Mateo and to all intents and purposes lived in Klamath Falls. The hearing required two days; the court heard testimony from Keith, Dr. Sullivan, another psychologist, a physician, and Cheri. The court issued a comprehensive 25-page statement of decision that formed the basis for an order filed on December 30, 2003. Although a number of issues were addressed by the trial court, the only one at issue here is the matter of Patrick’s custody. The court determined that Cheri and Keith would share legal custody, and that Keith would continue to have the majority of physical custody; Cheri would have custody during the summer, with regular visitation during the rest of the year. Cheri filed a timely notice of appeal from the order.

REVIEW

I

We do not summarize the testimony and evidence received by the trial court because Cheri does not attack the court’s findings except upon grounds of bias and misapplication of law. We therefore take those findings as supported .by substantial evidence. (E.g., In re Marriage of Fink (1979) 25 [605]*605Cal.3d 877, 887 [160 Cal.Rptr. 516, 603 P.2d 881].) Before proceeding to examine the alleged legal deficiencies as identified by Cheri, we believe it useful to examine the trial court’s detailed findings, using the trial court’s headings.

“Which parent is Patrick primarily bonded with? [][] Patrick has substantial parental bonds with both his parents. However, as stated by Dr. Sullivan’s first report of May 2002, Patrick’s primary bond has been with Cheri. Of further significance, Dr. Sullivan noted that Patrick is also very attached to his older brother, Devin, now 19, and from testimony at trial, Patrick is also attached to his two younger step-sisters who reside in Keith’s home.”

“Which parent is best prepared to protect Patrick’s health, safety and welfare, in light of the child’s Down[’s] Syndrome condition and his long-term needs?” The court found that Cheri previously had a superior knowledge of Patrick’s “educational, medical and services needs,” but since Keith had primary custody he had competently provided for his son’s special needs. The court concluded that “both parents are prepared to meet those needs.”

“What weight should the Court assign to Patrick’s stated preference for the custodial arrangement?” Although Patrick had repeatedly stated a preference for living with Cheri, the court decided to give this “little weight” because “Patrick, as a thirteen year old with a disability may be capable of stating his preference but is found not to have the capability to make an informed decision like this, weighing all of the factors and considerations involved.”

“Did Cheri reasonably facilitate Keith’s visitation with Patrick during the nine years from separation to the January 10, 2003 ex parte order? [][]... Cheri claims that there were only two incidents identified by Keith alleging ‘inappropriate denial of visitation’, October 2001 and September 2002. The Court disagrees with Cheri’s position.” The court apparently accepted “allegations made by Keith pointing to how difficult it has been at times throughout the years to keep the visitation going.” After examining “difficulties” advanced by Cheri and finding them unpersuasive, the court concluded that “Cheri’s own testimony gave the Court the sense that Cheri is only willing to allow court ordered visitation that she absolutely must and was not and is not willing to facilitate anymore than that. This type of conduct is not reasonable and not in Patrick’s best interest.”

“Did either parent interfere with the other parent’s visitation rights during the months since the January 20, 2003 ex parte order?” Although [606]*606chiding both parents for their “suspicion and conflict,” only Cheri was found to have “failed to facilitate appropriate contact between Keith and Patrick during the time Patrick was returned to her custody.”

“Was Cheri’s move to Oregon made in good faith? [j[] . . . [f] Cheri wants the Court to find that her move to Oregon ‘was made in good faith for bona fide legitimate reasons’. The Court cannot make such findings based on the reasons she gave. There is no doubt that her reasons included the fact that she already had a home in Klamath Falls, and that she has an affection for that community and that there is a lower cost of living. However, the reasons behind the move, a job offer and Cheri’s desire to have less work so she could spend more time with Patrick, are suspect.” The court found “not credible” Cheri’s claim that she only began thinking of moving after she was terminated from her position as vice-president at AOL. “[S]ometime during the prior school year she apparently contacted the school in Klamath Fall[s] and left the school officials with the impression that she had every intention of moving up to Oregon soon .... ffl ...

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Cite This Page — Counsel Stack

Bluebook (online)
122 Cal. App. 4th 601, 18 Cal. Rptr. 3d 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melville-v-melville-calctapp-2004.