Filed 8/25/26 Melvin v. Fogg CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
JOHNNYE MELVIN, Plaintiff and Respondent, A173846
v. (Lake County STEVE FOGG Super. Ct. No. FL216154)
Defendant and Appellant.
Plaintiff and respondent Johnnye Melvin (Mother) and defendant and appellant Steve Fogg (Father) had a joint child custody order in place when Father petitioned for: (1) sole legal and physical custody of their minor child with daytime visitation rights for Mother; and (2) an order prohibiting Mother from moving with their child out of Lake County. Following a shortcause hearing, the trial court modified the child custody order, maintaining joint legal custody but granting Mother primary physical custody and allowing her to move with the child to Butte County. Father was given custody of the child three weekends per month and for stretches of time during the summer, winter, and spring school holidays. Father appeals the modification order. Finding no error, we affirm.
I. BACKGROUND
In 2021, the trial court entered an order granting the parties joint legal and physical custody of their child. Mother had physical custody from
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Sunday evening until Thursday evening of each week; Father had physical custody for the remaining time.
In 2024, Father filed a petition for temporary emergency orders and to modify the 2021 custody order. In the petition, Father asked the trial court to award him sole legal and physical custody of the child with Mother having only daytime visitation rights on Saturdays. Father also asked for an order that “neither party can remove the child’s residence out of Lake County.” In support, Father alleged that Mother intended to move from Lake County to the Chico area in Butte County, that Mother assaulted Father twice and assaulted a former boyfriend once in 2024, that Father was “fearful” Mother was using controlled substances even though he admitted that he had “never witnessed her use,” and that Mother was not adequately caring for the child.
Mother filed a response in which she denied Father’s allegations and asked the trial court to award her sole legal and physical custody with Father having visitation rights every weekend from Friday evening until Sunday evening.
The trial court held a hearing on Father’s petition and Mother’s request. At the hearing, the court also considered whether Mother could move the child out of Lake County. Father was represented by counsel; Mother was self-represented. At the outset of the hearing, the court acknowledged that there was an existing joint legal and physical custody arrangement in place. Mother denied Father’s allegations of violence, substance use, or inadequate caring of the child. Mother explained that she wished to move with the child to Magalia, California in Butte County, near Chico. Mother believed the move was in the child’s best interests because the schools were better and because Mother could attend California State University, Chico to get a degree in Child Education. Mother submitted
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evidence that schools in Magalia allow more one-on-one time with students compared to schools in Clearlake. Mother admitted that her classes would be “mainly online” but she would still have to “go attend classes” once or twice a week. Mother would also have better job opportunities in Butte County because she was offered a promotion and a raise to manage a Dollar General store in a town near Chico. Finally, Mother had been approved to rent a condo in Magalia.
Father admitted Mother had a negative drug test after he insisted that she take one. Nonetheless, he believed Mother was using controlled substances based on statements from Mother’s sister and friends. Father conceded he was pulled over by the police on the road for riding a dirt bike with the child two years earlier. Father also admitted that he did not take the child to the hospital when she fell off a trampoline at Father’s house and broke her arm because Father did not suspect the break. He had concerns about Mother’s lifestyle, her romantic partners, and her inability to maintain a stable residence. He further claimed that Mother was not adequately caring for the child based on incidents involving lice and bug bites. Father also believed that the child was coming to him sick and missing school more often than she should. Some custody drop offs were hostile. On one occasion, Mother shoved him, spat on him, and hit him in the chest. During another drop off, Father saw one of Mother’s boyfriends smoking marijuana in the car. Father was concerned about Mother’s desire to move to the Chico area because Mother had no family other than a sister in that area, whereas she had a larger support system in Lake County. Father described the home he maintained, the church he attended, and the relatives and neighbors the child regularly interacted with when he had physical custody.
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Father called five witnesses in support of his petition. Father’s girlfriend testified about the strong relationship Father had with the child, the couple’s home, the relatives and friends who regularly visited their home, and their weekly church attendance with the child. She had noticed the child’s bug bites and that the child was “consistently” sick. The nursery director at Father’s church testified about the relationship she witnessed between Father and the child at the church.
One of Mother’s ex-boyfriends who dated her for one-and-a-half to two months testified that Mother was verbally abusive toward the child. Specifically, he testified that Mother cussed at the child or flipped the child off. He, however, never saw Mother physically hurt the child or any bruises on the child. He stated that Mother had been physically violent toward him “a couple different times” but never around the child. He described Mother’s home at the time of their relationship as unclean. There was marijuana at the home Mother shared with her family and while he never saw Mother use it, marijuana was left out or used by others when the child was present. He stated that Mother would drink alcohol nightly and become violent. On cross-examination, he admitted bias “based [on his] past relationship [with Mother].”
One of Father’s neighbors testified that her children would frequently play with the child at Father’s house. She described Father as a “loving and caring” dad. She also witnessed “problems” when the child was exchanged between Mother and Father. During one exchange, Mother came to collect the child but the child did not want to leave and was “hysterical.” Mother became upset and shoved Father. Another time, her daughter told her that she witnessed Mother screaming at and hitting Father. Although the neighbor did not witness the incident herself, she “heard yelling.”
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The child’s paternal grandfather testified about the child’s relationship with Father and Father’s girlfriend, the cleanliness of Father’s house, and interactions between Father and Mother. One time when Mother brought the child to Father, the grandfather saw Mother spit and cuss at Father. The grandfather was concerned about the child moving to the Chico area because it would be hard for Father to be present if the child needed him.
At the end of the hearing, Father and Mother gave closing arguments.
Father argued that he provided “a good, strong environment for the child.” Father identified Mother cussing at the child, the bug bites, and Mother’s unstable housing arrangements as evidence that she provided a less stable environment for the child. Father also contended that “any move of the child is going to be very detrimental to the child.” In her closing, Mother again denied Father’s allegations. She argued that the move “offer[ed] a safer environment with lower crime rates and a strong sense of community essential for my child’s wellbeing. The chance to engage in various extracurricular activities and more nurturing atmosphere will foster my child’s growth and happiness.” Mother also stated she had an “unwavering commitment to ensuring that [the] child has a meaningful and ongoing relationship with her father.”
After taking the matter under submission, the trial court issued an interim order requiring that all exchanges take place at the Clearlake Police station, which had cameras, because “there were a lot of allegations brought here about things that happened but very little actual evidence showing that they happened.”
In its Findings and Order After Hearing (FOAH), the trial court modified the prior custody order, maintaining joint legal custody but awarding Mother sole physical custody. The court also gave Mother the
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power to make the final decision if she and Father disagreed. The court found that Father’s allegations of abuse and substance abuse against Mother were not “proven.” The court gave Father custody of the child during the first, second, and fourth weekends of every month. It also awarded Father custody for “2 full weeks during the summer, 1 week of winter break and 1 week of [s]pring break.” The court then permitted Mother “to move out of Lake County ([to] Chico) to pursue education and employment options” and the child “to move with [Mother] and will be enrolled in school in Chico.” Father timely appealed.
II. DISCUSSION
Father contends that the FOAH should be reversed for three reasons:
(1) the trial court failed to “ ‘determine de novo what arrangement for primary custody is in the best interest of the’ ” child because he and Mother had joint custody (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1089, fn. 3 (LaMusga)); (2) Father presented substantial evidence that it was in the child’s best interests for him to have sole physical custody; and (3) the court failed to sufficiently state its reasons for modifying the 2021 child custody order. None are persuasive.
A. The Applicable Law and Standard of Review Under Family Code section 3087,1 the trial court may modify a joint custody order “if it is shown that the best interest of the child requires” it. “If either parent opposes” modification, “the court shall state in its decision the reasons for” it. (§ 3087.)
In deciding whether to modify a joint custody order, the trial court must apply the “changed circumstance rule,” “ ‘an adjunct to the best-interest
1 All statutory references are to the Family Code unless otherwise
specified.
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test.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro), quoting Burchard v. Garay (1986) 42 Cal.3d 531, 535.) Under that rule, a party seeking to modify an existing custody order must show that a “ ‘significant change in circumstances indicates that a different arrangement would be in the child’s best interest.’ ” (Montenegro, at p. 256.)
“A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” (§ 7501, subd. (a).) If one parent has primary physical custody, “the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody . . . . If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.” (LaMusga, supra, 32 Cal.4th at p. 1078.) But “ ‘[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.’ [Citation.] In such cases, if it is shown that the best interests of the children require modification or termination of the order, the court ‘must determine de novo what arrangement for primary custody is in the best interest of the minor children.’ ” (Id. at p. 1089, fn. 3.)
“ ‘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, [absent] 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.’ ” ’ ” (LaMusga, supra, 32 Cal.4th at pp. 1088–1089.) “Among the factors that the court ordinarily should
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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.” (Id. at p. 1101.)
“We review a ruling on a request for modification of a custody order for abuse of discretion. [Citation.] ‘Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child.’ ” (Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 501 (Anne H.).) “[W]e start with the presumption that the judgment or order is correct, and if the record is silent we indulge all reasonable inferences in support of the judgment or order.” (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299.) Accordingly, we must uphold the court’s ruling “ ‘if it is correct on any basis, regardless of whether such basis was actually invoked.’ ” (Ibid., quoting Montenegro, supra, 26 Cal.4th at p. 255, emphasis added.)
Mother did not file a respondent’s brief. However, a “respondent’s failure to file does not require an automatic reversal” because “the appellant has the affirmative burden to show error.” (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854.) Thus, Father’s brief will guide our review, but we
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will “reverse only if prejudicial error is found.” (In re Marriage of Matthews (1980) 101 Cal.App.3d 811, 815.)
B. Analysis Father contends that the trial court “did not determine this matter de novo.” We agree that the court should have “ ‘determine[d] de novo what arrangement for primary custody is in the best interest of’ ” the child because he shared joint physical custody with Mother. (LaMusga, supra, 32 Cal.4th at p. 1089, fn. 3.) But Father has not shown that the court applied the wrong standard here. According to Father, “the limited comments in the” FOAH establish that the court wrongly assumed that Mother “had sole physical custody.” But Father points to nothing in the FOAH to support this contention, and we could find none. We also found nothing in the hearing transcript to support Father’s contention either. To the contrary, the court expressly acknowledged the “joint legal and joint physical custody” order in place at the time of the hearing. (Italics added.) We must therefore conclude that the court did, in fact, apply the correct standard here. (See Cueto v. Dozier (2015) 241 Cal.App.4th 550, 561 [“Absent any evidence to the contrary, we presume that the . . . court applied the correct legal standard”].)
Father next contends that the trial court erred because he “presented substantial evidence that the best interests of the child was for him to have physical custody.” (Block capitalization omitted.) According to Father, “[i]t was apparent from the [undisputed] testimony [that Mother] consumes controlled substances and alcohol,” “has a problem with violence,” and was verbally abusive to their child. But Mother did, in fact, dispute these allegations. More importantly, the court found that Father did not prove his allegations of substance abuse, violence, and verbal abuse. Because “[g]reat deference must be given to the . . . court’s adjudication of the facts” (In re
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Marriage of Condon (1998) 62 Cal.App.4th 533, 549), we cannot, as requested by Father, retry the factual disputes resolved by the court below.
In any event, Father appears to misunderstand the substantial evidence standard. The test is not whether substantial evidence supports Father’s claims. Rather, the test is whether substantial evidence supports the trial court’s FOAH. (Anne H., supra, 1 Cal.App.5th at p. 501.) And there is ample evidence in the record to support the court’s implied finding that allowing Mother to move with the child to the Chico area and giving Mother primary physical custody was in the best interest of the child. Indeed, the court reasonably concluded, based on Mother’s testimony alone, that the move would provide a better education and community for the child.
Finally, we reject Father’s contention that the FOAH failed to sufficiently state the trial court’s reasons for modifying the 2021 child custody order. Simply put, detailed findings are not required by section 3087. (See In re Marriage of Wood (1983) 141 Cal.App.3d 671, 680 [former Civil Code section 4600.5, subdivision (d)’s requirement for statement of reasons related to modification of existing joint custody order did not “require ‘findings’ whenever custody is modified”].) Nonetheless, the court did, in fact, state the reasons for its order. First, the FOAH explained that the court did not find Father’s “allegations proven.” Second, it explained that Mother could move with the child to the “Chico” area to “pursue education and employment options.” No more was needed.
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III. DISPOSITION
The FOAH filed on May 2, 2025 is affirmed. The parties shall bear their own costs on appeal.
CHOU, J.
WE CONCUR.
SIMONS, Acting P. J. BURNS, J.
A173846/ Melvin v. Fogg