Filed 9/9/16 Marriage of Daniel P. and Sandra L. CA1/4
Received for posting 9/12/16
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


In re the Marriage of DANIEL P. and
SANDRA L.


DANIEL P.,
                                                                     A143622
         Appellant,
v.                                                                   (Contra Costa County
                                                                     Super. Ct. No. MSD08-00085)
SANDRA L.,
         Respondent.


         Appellant Daniel P. (Father) and respondent Sandra L. (Mother) are the parents of
a son (Son) who was born in 2007. Father initiated marital dissolution proceedings in
2008, and the trial court entered a judgment of dissolution of Father’s and Mother’s
marriage in March 2013. In October 2009, the trial court, after a bifurcated trial on the
issue of child custody and visitation, entered an order and statement of decision (the 2009
order) stating Father and Mother have joint legal and physical custody of Son, and
establishing a detailed schedule governing when Son will reside with each parent.
Pursuant to the 2009 order, Son resides primarily with Mother in Sacramento and attends
school there.
         Father, who lives in Concord, filed a motion in 2014 to modify the parenting
schedule and to be declared Son’s school parent. The trial court denied the motion,
finding Father had not shown that the proposed modification was justified by a change of


                                                             1
circumstances, or that the proposed modification was in Son’s best interest. On appeal,
Father, proceeding in propria persona, contends the court did not apply the correct legal
standards, abused its discretion, and erred by failing to hold a “long cause” hearing on the
motion. We affirm.
                                     I. BACKGROUND
A.     The 2009 Order
       The 2009 order states Father and Mother have joint legal and physical custody of
Son, and specifies when Son will reside with each parent. Specifically, the 2009 order
states Son will reside with Father at specified times, and will reside with Mother at all
other times. The 2009 order states Mother may enroll Son in a preschool near her home
on or after his third birthday and specifies accompanying revisions to the schedule. The
2009 order also specifies a revised schedule that would become applicable upon Son’s
entry into kindergarten (which occurred in fall 2013). Pursuant to that schedule, Son
spends the first, third and fifth weekends of the month with Father, as well as four hours
on Wednesday afternoons. Finally, in addition to allocating Son’s time during ordinary
weeks, the 2009 order provides each parent may take a one-week summer vacation with
Son, and specifies which parent will spend each major holiday with Son (in some
instances alternating between even- and odd-numbered years).
B.     Father’s 2012 Motion to Modify the 2009 Order
       In 2012, Father filed a motion to change Son’s school situation. The motion
apparently sought to change the location of Son’s schooling from Sacramento to Walnut
Creek or Concord, based in part on alleged delays in Son’s educational progress. After a
trial, the trial court denied the motion.
       In its order after trial, entered in February 2013 (the 2013 custody order), the court
stated that the 2009 order “was a final custody order requiring a significant change in
circumstances to modify,” and the court found no such change had been established. In
the 2013 custody order, the court found, based on the evidence presented, that Father’s
motion was “not one about school choice, because if it had been, there are schools where
[Mother] lives in Sacramento that could have been considered but were not.” The court


                                             2
concluded Father’s request to change schools “was in fact a thinly disguised attempt to
change the entire custody order, which the court deem[s] inappropriate under the facts of
this case.” The court found that Son’s “possible slight [learning] delay speaks in favor of
maintaining the current custody arrangement so as to maintain consistency . . . .”
       In addition to finding no change of circumstances justifying a change in the
custodial arrangement, the court found in the 2013 custody order that such a change
would be detrimental to Son’s best interest, and that Father’s request therefore failed
“even under a best interest analysis as opposed to a significant change in circumstance
standard . . . .” Based on its findings, the court ordered that Mother “is confirmed as the
person who has the authority to make school choices for” Son. The court ordered that the
“[c]urrent custody order and schooling [i.e., the 2009 order] shall remain in place,” and
that Son “is to attend school in [Mother’s] district, not [Father’s].”
       In a subsequent order entered in March 2013 (the 2013 sanctions order), the court
imposed $25,000 in sanctions on Father in connection with his filing of the 2012 motion
to change schools. In the portion of that sanctions order that is included in the appellate
record, the court stated Father’s 2012 motion “was not brought in good faith and was
merely an attempt to change custody” based on his ongoing objections to the “detailed,
thorough custody decision” set forth in the 2009 order. The court found Father was not
reasonable and did not attempt to compromise on schools in Sacramento, but “went
straight to litigation” because he was determined to have Son attend school in Concord.1



       1
         In January 2015, while the instant appeal was pending, the trial court found
Father guilty of contempt for failing to comply with the 2013 sanctions order. Father
appealed the contempt order in March 2015 (No. A144501). This court dismissed that
appeal, noting contempt orders and judgments are not appealable. In November 2015,
Father filed a writ petition challenging the contempt order (No. A146722); this court
denied the petition.
        In another appeal arising from the trial court proceedings in this matter, Father
filed a notice of appeal in 2011, challenging a child support order entered by the trial
court (No. A132269). That appeal was dismissed after Father failed to file an opening
brief.


                                              3
C.     Father’s 2014 Motion to Modify the 2009 Order
       1.     Father’s Motion
       In June 2014, Father, proceeding in propria persona, filed a motion seeking
modification of the visitation schedule set forth in the 2009 order and asking to be
designated Son’s school parent. In his motion, Father asked the court to order Mother to
show cause why it is not in Son’s best interest to “spend more parenting time” with
Father. Father proposed that the parties continue to have joint legal and physical custody,
and that Mother have visitation with Son two afternoons per week, as well as the first,
third and fifth weekends of each month, and one-half of Son’s “school holiday[s] and
summer vacations.” In a brief and declaration submitted in support of his request, Father
argued Son has unmet academic needs and would fare better at Father’s chosen school in
Concord. Father also contended (1) Mother has a “history of unacceptable violent
physical contact” with Father in Son’s presence, and (2) Father will facilitate frequent
contact between Son and Mother, while Mother has resisted Father’s efforts to spend
more time with Son.
       In addition to his own declaration, Father submitted a declaration from Nina
Casella, the director of education at Sylvan Learning Center (Sylvan) in Walnut Creek.
According to Father’s and Casella’s declarations, Father first took Son to Sylvan in
November 2012 (when he was five years old) for an assessment of his language skills, in
part to determine whether he would be ready to begin kindergarten in the fall of 2013.
Based on that assessment, Casella concluded Son was “significantly trailing the national
average in phonics (the ability to hear and manipulate sounds) and recognizing letters on
sight.” Casella did not recommend holding Son back from starting kindergarten, but
recommended that he participate in four hours of tutoring per week at Sylvan or a
reasonable substitute to help him catch up on his language skills.
       Father and Casella stated in their declarations that, beginning in February 2013,
Father took Son to Sylvan for tutoring approximately every other weekend, for about
three hours. Son was again assessed at Sylvan in April and May 2014 (when he was six
and one-half years old), after about 15 months of tutoring. Based on this assessment,


                                             4
Casella concluded Son had made much progress but was still significantly behind in
certain of his language skills. Specifically, Casella concluded Son trailed the national
average in phonics (which affected his overall reading comprehension), recognizing
irregular “sight words,” and “overall independent story reading abilities.” Casella
recommended additional tutoring during the summer of 2014 and during first grade.
Casella did not recommend holding Son back from starting first grade in the fall of 2014
provided he received the recommended summer tutoring. Casella believed that, without
the recommended tutoring, Son could fall further behind, ultimately making it possible
that he would have to be held back a year of school at some point in the future. Father
stated that, if he were designated Son’s school parent, he would enroll Son in a school in
Concord that is close to Father’s home and has a better student-to-teacher ratio than the
school Son attends in Sacramento.
       Finally, Father submitted a declaration from Michelle Wishart, a private
investigator whom Father engaged to conduct a “surveillance investigation” of Mother.
Father argues Wishart’s reported observations show that Mother has employed a nanny to
help care for Son, and that Mother also relies on her sister and other mothers for
assistance.
       2.     Opposition and Reply
       In July 2014, Mother filed (1) a request to “dismiss” Father’s motion on the
ground it was barred by the court’s prior rulings on custody, visitation and schooling
issues, and (2) an opposition to Father’s motion. Mother requested that the court deny
Father’s motion, order Father not to conduct any further educational assessments of Son,
and require Father to pay Mother’s attorney fees and costs incurred in responding to
Father’s motion. Mother argued Son’s school in Sacramento is excellent and is meeting
his needs. Mother stated Son’s teachers for his kindergarten year concluded his
performance was “satisfactory plus” and recommended his promotion to first grade.
Mother disputed Father’s allegation she had engaged in violent behavior.




                                             5
       Father filed a reply memorandum and a supporting declaration. With his
declaration, Father submitted audio and video recordings of interactions between himself
and Son, and between himself and Mother.
       3.     The Trial Court’s Ruling
       At the August 7, 2014 hearing on Father’s motion, the trial court placed Father and
Mother under oath. Father stated his position that Son needed additional educational
assistance and that Father’s chosen school in Concord could better provide such
assistance. Father also stated that, if he were Son’s school parent, he would be available
before and after school to help Son with his homework, and would continue to have Son
participate in tutoring at Sylvan.
       At the conclusion of the hearing, the court denied Father’s motion; on September
16, 2014, the court entered a written order denying the motion. The court concluded
Father’s request to become Son’s school parent (and to move Son from a Sacramento
school to a Concord school) was in substance a request to change the existing custodial
arrangement. The court stated that, even if it credited the evidence submitted by Father,
that evidence did not establish a change in circumstances justifying a change in the
custodial arrangement. The court further concluded that, even if it applied a “best
interest” standard and credited Father’s evidence, that evidence did not show the
proposed change would be in Son’s best interest. The court stated the evidence submitted
by Father about academic difficulties did not support changing Son’s school or primary
residence. The court stated: “What [that evidence] suggests, if anything, is that [Son]
may need some additional help in the school that he’s at. There[’s] nothing that’s been
put forward to suggest that it can’t be done at the school that he’s at.” The court stated,
“since I’m making those findings even crediting [Father’s] evidence, there’s no reason to
have a long cause hearing.” The court denied requests by Mother for sanctions, for an
order prohibiting Father from conducting surveillance of Mother, and for an order
prohibiting Father from recording Son. Finally, the court directed the parties to
participate in mediation about scheduling for holidays and summer vacations.



                                              6
       Father appealed the court’s September 16, 2014 order. The appeal is proper as an
appeal from an order made after a final judgment. (Code Civ. Proc., § 904.1,
subd. (a)(2); Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377–1378.)
                                      II. DISCUSSION
       “ ‘The standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test.’ [Citation.] Under this test, we must uphold the trial
court ‘ruling if it is correct on any basis, regardless of whether such basis was actually
invoked.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) “ ‘ “The burden is on the
party complaining to establish an abuse of discretion, and unless a clear case of abuse is
shown and unless there has been a miscarriage of justice a reviewing court will not
substitute its opinion and thereby divest the trial court of its discretionary power.” ’ ”
(Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.)
       Father’s principal contention on appeal is that he was not required to demonstrate
changed circumstances to obtain a modification of the parenting schedule and designation
as Son’s school parent, and instead the applicable inquiry was whether such a change
would be in Son’s best interest. This argument provides no basis for reversal.
       A family law court generally retains jurisdiction to make or modify custody orders
throughout a child’s minority, even after the court enters a judgment of marital
dissolution. (Fam. Code, § 3022;2 In re Marriage of Kreiss (2004) 122 Cal.App.4th
1082, 1085.) “In making an initial custody determination, the court must make an award
that is in accordance with the best interests of the child.” (In re Marriage of Loyd (2003)
106 Cal.App.4th 754, 758; § 3040, subd. (c).) “When determining the best interest of the
child, relevant factors include the health, safety and welfare of the child, any history of
abuse by one parent against the child or the other parent, and the nature and amount of
contact with the parents. (§ 3011.)” (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.)
       Once a final judicial custody determination is in place, a party seeking to modify
the custody order must demonstrate “a significant change of circumstances justifying a

       2
           All statutory references are to the Family Code unless otherwise stated.


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modification.” (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) The “changed-
circumstance rule” is not a separate test, but is “an adjunct to the best-interest test.”
(Burchard v. Garay (1986) 42 Cal.3d 531, 535.) The changed-circumstance rule does not
apply, however, when a parent seeks only to change the parenting schedule or a child’s
school situation, but does not request modification of the existing custody arrangement.
(Enrique M. v. Angelina V., supra, 121 Cal.App.4th at pp. 1379–1380, 1382; see In re
Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077.) In that circumstance, the court
is to apply the best interest test. (Enrique M. v. Angelina V., supra, 121 Cal.App.4th at
p. 1382.)
       Here, the 2009 order specifies Mother and Father have joint legal and physical
custody of Son. Father has not expressly requested a change in the custodial
arrangement. In the Request for Order (on Judicial Council Form FL-300) that Father
submitted in connection with his June 2014 motion, he checked boxes stating he sought
to modify visitation and to be designated Son’s school parent; he did not check the box
indicating a desire to change custody. (See Enrique M. v. Angelina V., supra, 121
Cal.App.4th at p. 1382.)
       Mother argues the changed-circumstance rule nonetheless should apply here.
Mother contends that, under the “de facto custody arrangement” in this case, the parties
do not have joint physical custody; instead, Mother has sole physical custody and Father
has visitation. Mother contends moving Son to a Concord school as requested by Father
would change the existing custodial arrangement, because Son would need to stay with
Father in Concord most of the time. (See In re Marriage of Biallas (1998) 65
Cal.App.4th 755, 759–760, 762 [in the context of a custodial parent’s proposed
relocation, the appropriate standard for determining custody “depends on whether the
parent seeking to relocate has sole or joint physical custody”; when the parent seeking to
relocate “had what was effectively sole physical custody,” the other parent had to show
changed circumstances to modify custody].)
       We need not determine whether Father had to show changed circumstances. The
trial court found that, even applying the best interest standard and even crediting Father’s


                                               8
evidence, there was no indication that moving Son to a Concord school (and thus
significantly changing the allocation of parenting time) would be in Son’s best interest.
Father has not shown the court abused its discretion in reaching this conclusion.
       Father states in his appellate brief that his “main reason for seeking to be [Son’s]
primary and school parent” is his concern about Son’s language skills. But the evidence
Father presented as to Son’s academic needs did not require the trial court to conclude
that moving to a school in Concord was in Son’s best interest. As noted, the evidence
presented by Father suggested that, when Son was assessed by Sylvan in April and May
2014, he had made much progress since his prior assessment (in November 2012), but
was still behind the national average in certain language skills. The trial court reasonably
concluded, however, that this evidence, while suggesting Son might need some additional
assistance at his current school, did not show that changing schools would be in his best
interest. As the court noted, there was no evidence showing that any extra assistance
needed by Son could not be obtained at his current school.
       In his appellate brief, Father also contends briefly that the trial court erred by not
scheduling his motion for a “ ‘long cause’ ” hearing, which Father contends would have
allowed him to “develop his case” or “present more detailed evidence.”3 But Father does
not develop this argument or cite any legal authority suggesting the trial court was
required to hold a long cause hearing in the circumstances of this case. Father thus has
forfeited this claim of error.4 (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99
[“Issues do not have a life of their own: if they are not raised or supported by argument or
citation to authority, we consider the issues waived.”]; Dills v. Redwoods Associates, Ltd.
(1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate court “will not develop the appellants’

       3
        A “long cause” hearing is one that is estimated to take longer than 20 minutes.
(See Super. Ct. Contra Costa County, Local Rules, rule 5.4(b)–(c); Hogoboom & King,
Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 5:487, p. 5-221.)
       4
         Father makes no claim that the court was required to hear live testimony pursuant
to section 217, and the record does not show Father submitted a list of nonparty witnesses
as required by that statute. (§ 217, subds. (a), (c); California Rules of Court,
rule 5.113(a), (e).)


                                              9
arguments for them”].) To the extent Father suggests the court summarily “dismiss[ed]”
his motion at Mother’s request, the record does not support his characterization. The
court heard and denied Father’s motion on the merits—after hearing from Father under
oath—ultimately concluding it did not need to hold a long cause hearing to resolve the
matter, and denying most of the relief requested by Mother. Any suggestion that Father’s
motion was addressed in a peremptory fashion is inaccurate.
       Father’s remaining appellate arguments are not persuasive. Father contends
briefly that (1) on three occasions between 2008 and 2013, Mother engaged in “violent”
or inappropriate physical contact with Father in Son’s presence, and (2) Mother has
demonstrated hostility toward Father’s relationship with Son. The evidence Father
submitted on this point—including audio and video recordings of certain interactions
between Father and Mother and between Father and Son—did not require the court to
conclude a change in Son’s school situation (and an accompanying major change in the
parenting schedule) would be in Son’s best interest.5
       Finally, Father suggests there is some inconsistency between the court’s denial of
his motion to become Son’s school parent and the court’s order directing the parties to
participate in mediation about possible changes to the parenting schedule during holidays
and school vacations. Father again cites no authority in support of this argument, and he
therefore has forfeited it. In any event, the court reasonably could conclude that,
although changing Son’s school situation was not in his best interest, adjustments to the




       5
          In the 2009 order, the trial court discussed the video recording of the 2008
incident between Father and Mother, and expressly found that Mother did not engage in
domestic violence. This court has reviewed that recording and the other ones submitted
to the trial court by Father in connection with his 2014 motion. Nothing on the
recordings persuades us that the trial court abused its discretion by denying Father’s
motion.


                                            10
holiday and vacation schedule might be appropriate. The court did not abuse its
discretion.6
                                  III. DISPOSITION
       The court’s September 16, 2014 order is affirmed. Mother shall recover her costs
on appeal.




                                                 _________________________
                                                 Streeter, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Rivera, J.




       6
         Because we affirm on the ground that the court did not abuse its discretion, we
do not address Mother’s arguments that Father’s request for relief is barred by res
judicata or by the disentitlement doctrine.


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