Filed 11/25/14 Z.A. v. Super. Ct. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

Z.A.,                                                                  G050820

     Petitioner,                                                       (Super. Ct. No. 10D009899)

         v.                                                            OPINION

THE SUPERIOR COURT OF ORANGE
COUNTY,

     Respondent;

M.B.A.,

     Real Party in Interest.


                   Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, David L. Belz, Judge. Petition granted.
                   William J. Kopeny & Associates and William J. Kopeny for Petitioner.
                   No appearance for Respondent.
                   Mauriello Law Firm and Thomas D. Mauriello for Real Party in Interest.
                                                   *         *         *
THE COURT:*
                We issue a peremptory writ because respondent court erroneously
determined that a family law court order, based upon a poorly drafted and contradictory
stipulation, amounted to a final judicial custody determination, thereby giving real party a
presumptive right to move away with the minor child from California to Texas.
                Because there is yet no final judicial custody determination, respondent
court should hold a new hearing in which both parties have the opportunity to be
meaningfully heard and to present evidence bearing on the “best interest” of the minor
child based on all the circumstances.
                                               I
                Petitioner Z.A. (Father) and real party M.B.A. (Mother) were married in
1992 and separated in 2010. They had three children, an adult daughter, a teenage son
(nearly 18), and a daughter S.A. (Daughter), born in June 2007.
                In November 2012, Mother moved to Texas “for employment opportunities
and to take care of my mother.” Father remained at the family home in Irvine, California
with the three children, including Daughter. According to Father, “I took on the role as
the primary parent in all our children’s lives.”
                Father and Mother finalized their divorce in March 2013 by agreeing to a
stipulation for judgment. Mother was represented by counsel, but Father was in propria
persona. The parties signed a document entitled “Stipulation for Judgment,” with the
name, address and telephone number of Mother’s counsel listed on the heading of the
document. The stipulation for judgment was signed by the family law judge (Judge Clay
M. Smith) and filed with the court.
                The stipulated judgment, in section 9(a), provides that “[b]oth parties shall
have joint legal custody of the minor children and shall share the right and responsibility


       *
           Before O’Leary, P. J., Bedsworth, J., and Thompson, J.

                                               2
to make decisions relating to the health, education and welfare of the minor children.”
The stipulated judgment, in section 9(b), further provides that “[b]oth parents shall have
joint physical custody of the minor children,” with California as the home state “for all
purposes.”
              The stipulated judgment, however, has an unusual provision regarding
Daughter, which is included under the heading, “Both Parties’ Share Time Schedule.”
Section 9(c)(1) provides, in pertinent part:
              “When [Daughter] reaches the age of seven (7) years, if Mother is still
residing in Texas, [Daughter] shall then relocate with Mother to Texas and shall live with
Mother there, or any other location Mother should be living at. Mother shall then have
primary physical custody of [Daughter]. However, [Daughter] shall have the ability to
give her input as to where she wants to reside. Both parties shall take that into
consideration when that time comes. [¶] . . . . If the parties are unable to agree to
[Daughter] moving to Texas, the parties shall agree then to seeking the services of a
private mediator (e.g. Judicate West or JAMS) or alternatively the parties may schedule a
mediation appointment at the family law mediation services provided by the Orange
County Superior Court . . . .”
              In June 2014, Daughter turned seven years old. Until that time, Daughter
had been living in California in petitioner’s home with Daughter’s siblings and going to
school in California.
              In August 2014, Mother filed an ex parte application for an emergency
order that Daughter be returned to her in Texas pursuant to the stipulated judgment.
              Father (who had since retained an attorney) filed his own motion to modify
the stipulated judgment to permit Daughter to remain enrolled at her current school in
Irvine, where she was due to enter the second grade. Father’s motion was set for a
hearing on September 8, 2014, but respondent court advanced the hearing on the motion



                                               3
to August 28, 2014, the day after Father’s trial counsel returned from a long-scheduled
vacation.
                  At the hearing, respondent court directly questioned Father and Mother, and
read their declarations. There was no opportunity for counsel to conduct direct or cross-
examination, or to call independent witnesses. Ruling from the bench, respondent court
determined the stipulated judgment “unambiguously” stated that Daughter “shall” live
with Mother in Texas once Daughter reached the age of seven. “[T]he language in
paragraph 1 [of section 9(c)] is unambiguous. It says ‘shall.’ It’s very clear that that’s
what the order was.” Based on this language, respondent court held the stipulated
judgment shifted the burden of proof to petitioner to prove that the move was not in
Daughter’s best interests, but Father failed to meet this burden of proof. “I don’t see any
material change of circumstances that’s been pled in the response or in the request. I
don’t see it.” “[T]he burden shifts back over to him. It shifted back to him on the best
interest . . .”
                  On September 15, 2014, respondent court issued its formal findings and
order, reiterating its finding “that the judgment language indicating that [Daughter] shall
be moving to Texas shifted the burden of proof in this case from [Mother] to [Father].”
Respondent court disregarded the other provisions in the stipulated judgment as
“inconsistent with the clear language [in section 9(c)(1)] contemplating the move to
Texas.”
                  Father’s writ petition prays that we direct respondent court to conduct a
new custody trial. Father further requests that we order an evidentiary hearing before a
different judicial officer, at which hearing Father would have the right to present his own
direct testimony, cross-examine Mother and present testimony through other witnesses,
including Daughter’s older siblings, and utilize an Evidence Code section 730 child
custody evaluator.



                                                 4
              We issued a Palma notice where we temporarily stayed the move-away
order, and requested opposition from Mother, asking her also to address the advisability
of issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 179 (Palma).) Mother filed a timely opposition.
                                              II
              The judicial standards for move-away cases largely depend upon whether
there has been a final judicial custody determination awarding one parent physical
custody of the child. Where there has been a final custody determination awarding one
parent legal and physical custody of a child, the family court already has made a judicial
determination regarding the child’s best interests. As a result, the custodial parent has a
presumptive right to change the child’s residence, even to another state, and need not
show any necessity for the move. (Fam. Code, § 7501, subd. (a); Montenegro v. Diaz
(2001) 26 Cal.4th 249, 256 (Montenegro).) Instead, the burden of proof rests upon the
noncustodial parent to establish that “the proposed relocation of the children’s residence
would cause detriment to the children, requiring a reevaluation of the children’s custody.”
(In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1078.)
              On the other hand, if there is not a final judicial custody determination, or if
the custody order calls for the parents to share joint physical custody, the trial court
should make findings concerning custody based on the “best interests” of the child.
(Fam. Code, § 3040.) Absent an existing judicial custody determination, the rebuttable
presumption in favor of the custodial parent does not apply. (F.T. v. L.J. (2011) 194
Cal.App. 4th 1, 19.)
              Here, Mother contends the stipulated judgment constitutes the final judicial
custody determination, thereby triggering her presumptive right to change Daughter’s
residence from California to Texas because section 9(c)(1) of the stipulated judgment
provides that Daughter, upon reaching the age of 7, “shall then relocate with Mother to
Texas and shall live with Mother there, or any other location Mother should be living at.

                                              5
Mother shall then have primary physical custody of [Daughter].” (Italics added.) Mother
calls the move-away provision “unambiguous” and “mandatory.”
              In order for a stipulated judgment to be interpreted as a final judicial
custody determination for purposes of the changed circumstance rule, California law
requires a “clear, affirmative indication the parties intended such a result.” (Montenegro,
supra, 26 Cal.4th at p. 258.) In Montenegro, the California Supreme Court reversed the
Court of Appeal’s determination that a stipulated judgment giving a mother primary
physical custody over the couple’s son was a final judgment as to custody even though it
did not provide for any further judicial review, and even though it was captioned “for
judgment,” and boxes labeled “pendente lite” and “temporary order pending the trial of
this action or further order of the Court” were not checked.
              The Montenegro court emphasized the need for care in construing
stipulated judgments. “Because many parties would not enter into a stipulated custody
order if a court might later treat that order as a final judicial custody determination, we
must be careful in construing such orders. Otherwise, we may discourage these parties
from entering into such stipulations.” (Montenegro, supra, 26 Cal.4th at p. 258.) The
fact that the order included detailed visitation schedules and other provisions regarding
custody, and did not provide for further hearings on those issues, is not a sufficient basis
to conclude the parties intended the order to be the final judicial determination. (Id. at
p. 259.)
              Montenegro further recognized “the reality that many family court litigants
do not have attorneys and may not be fully aware of the legal ramifications of their
stipulations,” which routinely are “rubber stamped” by family law judges. (Id. at p. 258.)
Here too, the stipulated judgment was drafted by Mother’s then counsel at a time when
Father was unrepresented.
              In like fashion, in F.T. v. L.J., supra, 194 Cal.App. 4th 1, the appellate
court determined that the parties’ stipulated judgment, incorporated by court order, did

                                              6
not meet the Montenegro requirements for a final judicial custody determination. The
F.T. court reached this conclusion because the parties’ stipulation ambiguously recited
that it should be adopted as a court order “without prejudice to either party.” (Id. at
p. 19.) As a result, the appellate court could not say that the custody order was a final
judicial custody determination.
              Here, as in Montenegro and F.T., the stipulated judgment does not contain a
clear, affirmative indication that the parties intended it to be a final judicial custody
determination. To the contrary, it is replete with ambiguities, and even respondent court
characterized it at the hearing as a “badly written judgment.” While the stipulated
judgment professes in section 7 (“Purpose of Stipulated Judgment”) to make “a final and
complete settlement and adjudication of all rights and obligations between the parties,” it
qualifies this assertion with the proviso “[e]xcept as otherwise provided in this Stipulated
Judgment.”1
              The stipulated judgment begins in section 9(a) and section 9(b) by
providing that both parents shall have joint physical and legal custody of the minor
children, with California as the home state “for all purposes.”
              And while a provision in section 9(c)(1) appears to give Mother the
unilateral custodial right to move away with the seven-year-old Daughter, the sentences
which immediately follow qualify and contradict this. Why, if Mother has the unilateral
right to make custodial decisions, does section 9(c)(1)(A) talk about going to mediation
“[i]f the parties are unable to agree”? And why does the stipulated judgment provide in
section 9(c)(1) that “[b]oth parties” “shall” take Daughter’s “input” “into consideration”



       1
        Section 7 of the stipulated judgment provides, in full: “Except as otherwise
provided in this Stipulated Judgment, its purpose is to make a final and complete
settlement and adjudication of all rights and obligations between the parties, including all
property rights, custody and visitation rights, and all rights and obligations concerning
child and spousal support.” (Italics added.)

                                               7
about “where she wants to reside” when Daughter reaches the age of seven? (Italics
added.)
              Mother makes much of the inclusion in the stipulated judgment of a clause
providing the agreement should be interpreted as if drafted by both parties. In section
17(b), the stipulated judgment recites that “[b]oth parties have thoroughly read each and
every provision of this Stipulation and understand the terms and legal effects of same.”
Section 22(d) (the “Miscellaneous” section) further declares that “[n]either party or
counsel shall be considered the drafter of this stipulated judgment. This stipulated
judgment and all of its terms and conditions were the joint work product of Husband and
Wife.”
              Given the cautionary note in Montenegro regarding the legal naiveté of
unrepresented litigants, we are disinclined to give much weight to the above-quoted
boilerplate in construing ambiguous provisions in an attorney-drafted agreement. “[T]he
doctrine of contra proferentum (construing ambiguous agreements against the drafter)
applies with even greater force when the person who prepared the writing is a lawyer.”
(Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1370; see also Civ. Code § 1654.)
This requirement promotes clarity in stipulated judgments, and provides additional
protection for the nondrafter by making the drafter spell out the parties’ respective rights
and duties. The doctrine would offer little protection if it can be wiped away by still
more oblique boilerplate.
              That section 17(b) and section 22(d) are mere boilerplate is bolstered by the
fact that section 17(b) itself falsely recites that both sides were represented by counsel
and took advantage of the opportunity to “thoroughly review” the terms, provisions and
statements contained in the stipulated judgment.2 This provision is so plainly at odds

         2
         The relevant language in section 17(b) reads: “Both parties acknowledge that
their own respective counsel has thoroughly read and reviewed the provisions with their
clients and by each party’s initials on each page and signatures below that each

                                              8
with the acknowledged facts as to lead us to discount the related representations in the
stipulated agreement regarding the parties’ “joint work product.”
              Construing the stipulated judgment as a whole, we cannot conclude that it
provided a clear and affirmative representation to the parties, particularly to the
unrepresented Father, that Mother had a unilateral right to move-away to Texas with
Daughter, and that this right amounted to a final judicial custody determination. We
cannot ignore the impact upon a nondrafter like Father of the accompanying language
calling for mediation if the parties are unable to agree, and about considering Daughter’s
“input.” To do otherwise would provide powerful incentives to an attorney-drafter to
strategically include imprecise and ambiguous provisions to trap an unrepresented
spouse.
              Where there has not been a final judicial determination as to custody, a
request for a change in custody is to be determined pursuant to the “best interest”
standard, with neither parent benefitting from a presumption of custody. (Montenegro,
supra, 26 Cal.4th at p. 252; see also In re Marriage of Burgess (1996) 13 Cal.4th 25, 34.)
The child’s welfare is paramount and the “overarching concern.” (Montenegro, supra, 26
Cal.4th at p. 255.) “Bright line” rules are not necessarily appropriate; instead, “each case
must be evaluated on its own unique facts.” (In re Marriage of LaMusga, supra, 32 Cal.
4th at p. 1089.)
              Because respondent court improperly construed Father to bear the burden
of proof, we must remand to provide the court an opportunity to decide the motion under
the proper standard. Where, as here, respondent court applied the wrong legal test, we
cannot engage, as Mother urges, in a “highly deferential” standard of review. “[I]f a trial


understands and agrees to the aforementioned terms, provisions and statements made
herein.” (Italics added.) As we have noted, this representation is actually a
misrepresentation; Father had no lawyer to read and explain the stipulated judgment to
him.

                                              9
court’s decision is influenced by an erroneous understanding of applicable law or reflects
an unawareness of the full scope of its discretion, it cannot be said the court has properly
exercised its discretion under the law.” (F.T. v. L.J., supra, 194 Cal.App.4th at p. 15.)
                                             III
               Father complains of the truncated and surreal nature of respondent court’s
hearing on Mother’s move-away request, where the court restricted the parties’
opportunity to call witnesses, present evidence and conduct questioning and cross-
examination through counsel. (Even Mother’s counsel concedes that the timing of the
August 28, 2014 hearing was not “optimal” and “not ideal for [Father’s] counsel under
the circumstances . . . .”)
               Where no final judicial custody determination has been made, the family
court must conduct a full evidentiary hearing in an adversarial proceeding before making
an award under the “best interest” analysis. (Keith R. v. Superior Court (2009)
174 Cal.App.4th 1047, 1053 (Keith R.).) Notwithstanding the heavy case load of
dissolution matters, parents involved in such contested family court proceedings must
have the opportunity “to present all relevant, competent evidence on material issues,
ordinarily through the oral testimony of witnesses testifying in the presence of the trier of
fact.” (Elkins v. Superior Court (2007) 41 Cal. 4th 1337, 1345; see also Fam. Code
§ 217.)
               This is particularly important in move-away cases, which are among the
most serious decisions a family court is called upon to make. Because an out-of-state
relocation will deprive one parent of the ability to have frequent and continuing conduct
with the children, the competing claims must be considered calmly and dispassionately,
and only after the parties have been afforded the opportunity to be “meaningfully heard.”
(In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119-1120
(Seagondollar).) In Seagondollar, we reversed a postjudgment move-away order because
the family court had deprived the other parent of an opportunity to be “meaningfully

                                             10
heard” by providing a “fair hearing in the first instance.” (Id. at p. 1120.) The family
court had shortened the time for the move-away hearing and deprived the other parent of
his opportunity to present a rebuttal witness and to receive and evaluate the Evidence
Code section 730 report.
              Mother complains that Father “seeks an unwarranted ‘do-over’ of issues
that were fully litigated and determined in 2013.” We disagree. Based on its
misapprehension of the stipulated judgment as a final judicial custody order, respondent
court deprived both parties of a full evidentiary hearing on custody based on the “best
interests” standard. This includes adequate procedural safeguards such as notice, time for
meaningful mediation, and, should mediation fail, a full evidentiary hearing. We decline
Father’s request to exercise our discretion to order that a different bench officer conduct
the proceedings upon remand.
              An additional word on mediation. The stipulated judgment calls for Mother
and Father to seek the services of a private mediator or to take advantage of the court-
provided family law mediation services “[i]f the parties are unable to agree to Daughter
moving to Texas.” (Stipulated Judgment, § 9(c)(1)(A).) (Indeed, as we discussed above,
this provision is one of the reasons why we construe the stipulated judgment to be an
interim, not a final custody determination). This emphasis upon mediation dovetails with
California statutory law and public policy for “resolving custody disputes outside the
courtroom through parental stipulations, on the apparent belief that cooperation is more
likely to produce a sound resolution than litigation.” (Montenegro, supra, 26 Cal.4th at
p. 257; see also Fam. Code §§ 3160-3164.) We encourage the parties to work out their
own arrangements to protect Daughter’s best interests.
                                              IV
              A peremptory writ is proper to resolve “this purely legal dispute in an area
where the issues of law are well-settled. . . . There is a particular need to accelerate the
writ process in child custody disputes where children grow up quickly and have

                                              11
immediate needs.” (Keith R., supra, at p. 1057; see also Code Civ. Proc., § 1088.) We
have solicited, received and considered Mother’s opposition on the merits of Father’s
writ petition and gave notice that if the circumstances so warranted, we might issue a
peremptory writ in the first instance. (Palma, supra, 36 Cal.3d at p. 180.) Because
respondent court deprived Father of the opportunity to be meaningfully heard on
Mother’s move-away request according to the correct legal standard, the matter requires
accelerated review and decision. (Code Civ. Proc., § 1088; see Lewis v. Superior Court
(1999) 19 Cal.4th 1232, 1259-1260.)
               Let a peremptory writ of mandate issue directing respondent court to vacate
its order of September 15, 2014, and any subsequent orders or judgments based on it,
granting Mother permission to move away to the state of Texas with the minor child.
Respondent court shall conduct further evidentiary proceedings in the initial custody
determination in accordance with this opinion. The temporary stay shall be lifted upon
the finality of this opinion.
               The parties shall bear their own costs in conjunction with this writ
proceeding.




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