Filed 8/30/13 Marriage of Ewing and Wignall-Ewing CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


In re the Marriage of EDWARD EWING
and CHARLEEN WIGNALL-EWING.


EDWARD EWING,
                                                                     A130732, A131665
         Respondent,
v.                                                                   (Napa County
                                                                     Super. Ct. No. 26-01959)
CHARLEEN WIGNALL-EWING,
         Appellant.


         In this family law matter, Charleen Wignall-Ewing (Charleen), mother to 16-year-
old Edward (Eddie) and 14-year-old Charles, appeals from orders awarding greater
timeshare to the children‟s father, Edward Ewing (Edward), denying her request for need-
based attorney fees and a statement of decision, and granting Edward‟s request for
attorney fees as sanctions.1 She contends the trial court: (1) applied the incorrect legal
standard in modifying custody and visitation; (2) denied her due process rights to a full
and fair hearing; (3) erred in summarily denying her request for need-based attorney fees;
and (4) erred in failing to provide a requested statement of decision. We reject the
contentions and affirm.

1
  Both parties are representing themselves on appeal. As is customary in family law
cases, we will refer to the parties and their children by their first names for convenience
and clarity, intending no disrespect. (See In re Marriage of Green (1992) 6 Cal.App.4th
584, 588, fn. 1.)

                                                             1
                       FACTUAL AND PROCEDURAL BACKGROUND
       In 2001, after trial on the issue of custody and visitation, the trial court awarded
physical custody of the parties‟ children to Charleen, with joint legal custody and
visitation rights to Edward. In doing so, the court noted there was a lot of anger between
the parties that was impacting their ability to parent, and that Charleen was “the primary
culprit in that regard.” It also noted that while both parents loved their children, they
were not “model parents” and that both parents, especially Charleen, had “engaged in
some degree of parental alienation as to the other.” The court also indicated Edward was
the parent better able to provide the children with structure, as Charleen was “somewhat
more laissez faire as far as [her] approach toward parenting, [which] . . . may put the
children in some jeopardy from time to time.” The court stated, however, that the age of
the children was “a very real and substantial factor” because “very small children, one a
little over two, and one about four and a half, . . . need a mother more than a father.” The
court stated, “So in weighing all of the factors, and particularly the age of the children at
this point, I‟m going to grant physical custody to [Charleen], with rights of visitation to
[Edward].” The court further ordered that the children‟s visitation schedule with Edward
would be alternating weekends, alternating major holidays, and three weeks during the
summer.
       In 2002, Edward filed a request to modify custody and visitation. He declared he
had obtained a permanent restraining order against Charleen, who yelled profanities at
him during custody exchanges and made harassing telephone calls and false police
reports, among other things. He stated Charleen had “a severe anger management
problem” and had been criminally charged with vandalism after losing her temper during
a custody exchange and causing damage to her sister‟s vehicle in front of the children.
Edward also noted that while the court relied heavily on the children‟s young ages in
granting physical custody to Charleen in 2001, the children were a year older and Edward
was now a kindergartener. In September 2003, the parties entered into a Stipulation and
Order increasing Edward‟s visitation to alternating weekends, a weekday overnight, four
weeks during the summer, and alternating holidays each year.


                                              2
       Almost seven years later, on July 19, 2010, Edward filed an order to show cause in
which he sought to modify custody and visitation on the ground that the children were
now 13 and 11 years old and had stated a “strong preference that they reside with [their
father] at least 50% of the time.” Edward declared he had “significant concerns . . .
regarding complaints of volatility, chaos and turbulence in [Charleen‟s] home along with
complaints of abuse directed at [the] children from both [Charleen] and her twin sister,
. . . who has bi-polar disorder.” He learned “exactly what ha[d] been going on” after
obtaining police reports for incidents that had occurred in Charleen‟s home “over the last
several years.” There was one incident in which Charleen was warned she was going to
be placed on a child abuse central index registry for “dragging [the parties‟] older son . . .
by the ankles on his back across the carpet and a stone hallway,” causing him to suffer
burns on his back and shoulder blades. Charleen was also on probation for a conviction
by way of plea to a charge of animal neglect after her dog “was found [on] the street with
numerous wounds and abscesses stemming from long-term neglect and was blind in at
least one of his eyes.” In June 2009, a neighbor reported to Child Protective Services that
Charleen “drinks and drives, . . . will get into her car and start taking off when the boys
are getting into the truck, or just forget them all together. . . . She . . . lets [the kids] drink
beer and [lets] the boys decide when they go to school. She also does not take care of the
children and . . . lets her bi-polar twin sister take care of the children and the sister can go
off [any time].” In February 2010, Eddie called the police and reported that “ „his bipolar
aunt‟ had stabbed him with a knife.” When Edward learned of this incident from Eddie
and contacted Charleen, she blamed Eddie and downplayed the incident.
       Edward also discovered that Charleen had received a letter from Eddie‟s school
principal stating Eddie had been tardy 20 times out of 60 days during the first trimester
and tardy 18 days and absent 10 days with eight days remaining in the second trimester.
The school principal told Edward that Charleen had asked the school not to provide
Edward with information regarding the children. Charles was also having problems at
school and had served six days of detention for not turning in approximately 31
homework assignments between February and April 2009. His progress report showed


                                                 3
he had three Fs and two Ds. Edward declared it had been “extremely difficult to co-
parent” with Charleen, who refused to discuss any concerns he had about the children and
made unilateral decisions regarding their school and outside activities. Edward began
taking Eddie to school pursuant to Charleen‟s request and also tried to monitor the boys‟
school attendance and progress more closely, but just weeks later, Charleen left a
message on Edward‟s answering machine stating he could no longer pick up Eddie or
help him with school because she was “ „sick of seeing [Edward‟s] face.‟ ”
       Charleen opposed the change in custody and visitation on the ground that there
had been no significant change of circumstance. She stated, however, that “it is not
unreasonable for [Edward] to have additional time with [the boys], if the boys desire it.”
She proposed that the court consider input from the children about additional time with
their father, and that a child custody evaluator be appointed. She further stated that
“[m]any of the allegations in [Edward‟s] moving papers are unsubstantiated accusations
from years ago” and that some are “either blatantly untrue or are mere innuendo.” She
stated she was “very involved in [the children‟s] education” and had made efforts to
ensure their “attendance, punctuality and homework.” She stated, “It is true that there
was a problem when the school changed from starting at 8:35 [a.m.] to 8:30 [a.m.], and
Edward is not an early riser. I have had to call [Edward] to have him help me with this
problem.” She denied dragging Eddie and said she “tried to carry him to his room . . . but
he resisted and he did get hurt.” She stated that her bi-polar sister was not living in her
home and that the sister had not intentionally hurt Eddie with a knife. She was concerned
that the boys were “abusive” towards her and displayed “anger towards women in
general” after extended visits with their father. She said that Eddie drank alcohol with
Edward‟s permission while in Edward‟s care. She denied making it difficult for Edward
to co-parent and claimed that rather, she had “attempted to work with him on [their]
parenting responsibilities.”
       In an order after hearing filed September 1, 2010, the court appointed an attorney
for the children. After hearing from the parties at a hearing on September 23, 2010, the
court issued interim orders for joint legal and physical custody with a visitation schedule


                                              4
that would allow Eddie to live primarily with his father and visit his mother on
alternating weekends, and would allow Charles to alternate from week to week with each
parent. The court declined to order a custody evaluation as requested by Charleen and
continued the matter to November 29, 2010 “for review of these temporary orders and to
enable [minor‟s counsel] to prepare a full report.”
       Several weeks before the review hearing, Charleen filed a motion requesting:
(1) a stay on the interim orders until a full evidentiary hearing took place; (2) a child
custody evaluation; (3) separate counsel for each of the two children; and (4) attorney
fees. On November 30, 2010, Charleen filed a written request for a statement of
decision.
       At a December 1, 2010 review hearing, counsel for Edward requested sanctions
for having to respond twice to Charleen‟s requests for a custody evaluation, attorney fees,
and separate attorneys for the minors, despite the fact that minors‟ counsel had stated he
did not believe a separate attorney for Charles or a custody evaluation was necessary.
Counsel argued the children had made their preferences “very clear,” and that they
wanted the litigation to end. She noted that Charleen had submitted 1,400 documents
which “basically supplement and repeat and again regurgitate, the arguments in front of
[the court] on September 23rd, 2010.” Minors‟ counsel concurred that “it‟s like a second
bite of the apple or change of opinion or change of mind by [Charleen].” Minors‟
counsel also noted that Charleen “sometimes” abused the power that she mistakenly
believed she had as the “sole” physical custodial parent because under family law, the
label “ „sole physical custody‟ has far less meaning . . . than legal custody does” and is
essentially “meaningless when there is substantial time with both parents.” Minors‟
counsel stated, “The kids see nothing but constant fighting. And from what I can tell
with dealing with the file, it‟s coming primarily from [Charleen‟s] side of the equation.
[¶] And so I think the joint legal and joint physical custody is a way of defusing the
possibility of that abuse, of that term and concept.” The court dismissed Charleen‟s
motion as premature and adopted minors‟ counsel‟s recommendations regarding custody.
After the court issued its order, Charleen stated, “I will ask the Court for a statement of


                                              5
decision.” The court stated, “I don‟t think that you actually made a timely request since
this hearing started on September 23rd.” Charleen stated she had filed a request for a
statement of decision “yesterday” and that the law was that a request is timely as long as
it is made “[b]efore it‟s submitted.”
       At a January 11, 2011 hearing on Edward‟s request for attorney fees and
sanctions, the court stated, “Before we continue with the hearing . . . I want to clarify a
couple of things with regard to my ruling on December 1st. [¶] One is the standard that I
applied was not the change in circumstances standard because I concluded that both
parties had significant periods of physical custody . . . . Therefore the standard that
applies is the best interests of the children. [¶] Secondly, while I denied a request for
statement of decision as untimely, in giving it some thought I realize that the type of
motion that we had here is not the type of motion that requires a statement of decision,
and so no statement of decision was required.” The court denied Edward‟s request for
attorney fees as sanctions but noted that Charleen had engaged in conduct that “has been
frustrating to the efficient resolution of pending issues and that her overzealouness has,
on several occasions, delayed the resolution of support and custody issues.”
       On February 9, 2011, the court issued an Order After Hearing in which it stated in
part: “The Court finds that the best interest standard applies in this matter as both parents
had significant periods of physical custody within the meaning of [section 3004].” The
court found that the recommendations of minors‟ counsel “contained in his November 24,
2010 report are in the best interests of the minor children.” The court “adopt[ed] the
recommendations of [minors‟] counsel . . . for permanent orders on custody and visitation
as defined in [the report]” and set forth the new custodial arrangement in its order. The
court further ordered that Charleen‟s motion be dismissed as “premature” and that her
request for a statement of decision be denied.




                                              6
                                         DISCUSSION
                                    Custody and visitation
         Custody and visitation orders are generally modifiable if modification is in the
child‟s best interests. (Fam. Code, § 3022.2) Once a permanent custody order is in place,
however, it may be modified only if there has been a “significant change of
circumstances justifying a modification.” (Montenegro v. Diaz (2001) 26 Cal.4th 249,
256.) “ „[The changed circumstance rule] provides, in essence, that once it has been
established that a particular custodial arrangement is in the best interests of the child, the
court need not reexamine that question. Instead, it should preserve the established mode
of custody unless some significant change in circumstances indicates that a different
arrangement would be in the child‟s best interest. The rule thus fosters the dual goals of
judicial economy and protecting stable custody arrangements.‟ [Citation.]” (Ibid.) The
changed circumstance rule, however, does not apply even after a final custody order is in
place if “a parent requests only a change in the parenting or visitation arrangement not
amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial
court considers a request to change the parenting or visitation arrangement under the best
interests of the child standard.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068,
1072.)
         Charleen contends the trial court erred in applying the best interests standard
because Edward was seeking to modify physical custody from sole custody to joint
custody. Edward responds the court used the correct test because he and Charleen
already shared custody at the time he filed his motion, and he was simply requesting a
change in the visitation schedule “to make his timeshare consistent with the boys‟
preferences.” We need not—and therefore do not—decide which test should have been
applied, because there is sufficient evidence in the record to support the court‟s order
under either standard.



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


                                               7
       When the initial custody order was established in 2001, the children were only two
and four years old, and the court relied heavily on their ages in granting physical custody
to Charleen with visitation to Edward.3 By the time Edward sought modification in 2010,
circumstances had changed significantly, as the children were 11 and 13 years old. They
were able to state their preferences and made it clear, through counsel, that they wished
to spend more time with their father. (See § 3042, subd. (a) [“If a child is of sufficient
age and capacity to reason so as to form an intelligent preference as to custody or
visitation, the court shall consider, and give due weight to, the wishes of the child in
making an order granting or modifying custody or visitation”].) In addition, as Edward
set forth in his moving papers, serious concerns had arisen in recent years about how the
children were doing while in Charleen‟s care. According to Edward, it had also become
“extremely difficult to co-parent” with Charleen, who refused to discuss these issues and
made unilateral decisions regarding the children‟s school and outside activities. Charleen
declared the “accusations” were “either blatantly untrue or are mere innuendo,” but any
credibility determinations were for the trial court to make. (See In re Marriage of
Nichols (1994) 27 Cal.App.4th 661, 670 [“All issues of credibility are for the trier of fact,
and all conflicts in the evidence must be resolved in support of the judgment”].) There
was ample evidence from which the trial court could find that there had been a significant
change of circumstances that justified the change in custody and that modification of
custody and visitation was in the children‟s best interests.
                                        Due process
       Charleen contends the trial court denied her due process rights to a full and fair
hearing. We reject the contention.
       Charleen relies on the legislative policy behind section 217, subdivision (b), that
“[a]ccess to justice requires that parties be able to appropriately address the court and
3
  We note that in granting sole physical custody to Charleen in 2001, the court stated that
“very small children . . . need a mother more than a father.” However, the law requires
that custody determinations be made without regard to the parent‟s gender. (§ 3040,
subd. (a)(1) [in determining custody issues, the court “shall not prefer a parent as
custodian because of that parent‟s sex”].)


                                              8
present their cases.”4 (Assem. Bill No. 939 (2009-2010 Reg. Sess.) § 1(b).) The record
shows, however, that both parties submitted declarations on the issue of whether custody
and visitation should be modified. Charleen also testified at length regarding the issue
and detailed why she believed custody should not be modified as recommended by
minors‟ counsel. She also acknowledged she had submitted “about 15 declarations” from
various witnesses, and Edward‟s attorney represented to the court that Charleen had
submitted “1,400 documents . . . supplement[ing] . . . the arguments [she made] in front
of [the court].” To the extent Charleen complains she was not allowed to call her
witnesses to the stand, the record supports the trial court‟s decision to disallow testimony
on the ground that Charleen was unable to make an adequate offer of proof as to the
relevancy of those witnesses‟s testimony.5 There was no denial of due process.
                                        Attorney fees
       Section 2030, subdivision (a)(1), provides: “In a proceeding for dissolution of
marriage, . . . the court shall ensure that each party has access to legal representation,
including access early in the proceedings, to preserve each party‟s rights by ordering, if
necessary based on the income and needs assessments, one party, . . . to pay to the other
party, or to the other party‟s attorney, whatever amount is reasonably necessary for
attorney‟s fees and for the cost of maintaining or defending the proceeding during the
pendency of the proceeding.” In making its determination as to whether attorney fees
and costs should be awarded, the trial court considers the respective needs and incomes
of the parties. (In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 525.) The trial
court is not restricted in its assessment of ability to pay to a consideration of salary alone,

4
  Section 217, subdivision (a), provides, “At a hearing on any order to show cause or
notice of motion brought pursuant to this code, absent a stipulation of the parties or a
finding of good cause . . . the court shall receive any live, competent testimony that is
relevant and within the scope of the hearing and the court may ask questions of the
parties.”
5
  She stated, for example, that a director at Sylvan learning center would testify that
“[s]upplements and nutritional support is important, swimming is important,” or that
another witness would testify that the children were intelligent and qualified for “double
scholarships.”


                                               9
but may consider all the evidence concerning the parties‟ income, assets and abilities.
(Meagher v. Meagher (1961) 190 Cal.App.2d 62, 64.)
       A motion for attorney fees and costs in a dissolution proceeding is left to the
sound discretion of the trial court. (In re Marriage of Cueva (1978) 86 Cal.App.3d 290,
296.) In the absence of a clear showing of abuse, its determination will not be disturbed
on appeal. (Ibid.) “[T]he trial court‟s order will be overturned only if, considering all the
evidence viewed most favorably in support of its order, no judge could reasonably make
the order made. [Citations.]” (Ibid.)
       Charleen contends the trial court erred in summarily denying her request for
“need-based attorney fees” under section 2030. Relying on the holding of In re Marriage
of Tharp (2010) 188 Cal.App.4th 1295, 1313, that a trial court‟s decision denying a
request for attorney fees “must reflect an exercise of discretion and a consideration of the
appropriate factors,” she asserts that the order dismissing her motion as “premature”
shows the court “affirmatively refus[ed] and fail[ed] to exercise its discretion” as
required. We reject the contention.
       Here, the record shows that the only “evidence” Charleen presented in support of
her request for attorney fees was her conclusory statement that Edward‟s “financial
resources are significantly greater than [hers].” On December 1, 2010, when her motion
was scheduled to be heard, there was no mention of her request for attorney fees, and she
presented no evidence or argument in support of her request. Further, there is nothing in
the record indicating she filed a “current Judicial Council Income and Expense
Declaration” as required by the Local Rules for the Superior Court of the State of
California, County of Napa, rule 7.17. Thus, the court had no current financial
information from which it could exercise its discretion regarding the parties‟ financial
circumstances and grant or deny the motion on its merits. Notably, on appeal, Charleen
fails to point to any evidence regarding even her own financial situation from which the




                                             10
court could have even exercised its discretion.6 Under these circumstances, it was
reasonable for the court to not set forth its reasons for denying the request, other than to
state—as it did in its Order After Hearing—that Charleen‟s motion, which included her
request for attorney fees, was dismissed. There was no error.
                                   Statement of Decision
       Code of Civil Procedure section 632 provides that at the request of any party, a
court must issue a statement of decision that states “the factual and legal basis for its
decision as to each of the principal controverted issues at trial.” Charleen contends the
trial court erred in failing to provide a requested statement of decision. Edward responds
that a statement of decision was not required in this case because the court was ruling on
his motion for a change in custody after a hearing—not a trial—and “[t]he general rule is
that a trial court need not issue a statement of decision after a ruling on a motion.” (In re
Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1497, quoting Mechanical
Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 678.) Charleen
replies that a statement of decision is required in any proceeding to determine child
custody—not just trials—under a section 3022.3, which provides, “Upon the trial of a
question of fact in a proceeding to determine the custody of a minor child, the court shall,
upon the request of either party, issue a statement of the decision explaining the factual
and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure.”
We need not—and therefore do not—decide whether a statement of decision was
required in the instant case because we conclude that, despite denying Charleen‟s request
for a statement of decision, the trial court issued an Order After Hearing that essentially

6
  In addition to not having financial information from Charleen, it appears the court also
had minimal information regarding Edward‟s finances. The only information in the
record before the court regarding Edward‟s current financial situation is a statement his
attorney made at the January 11, 2011 hearing: “My client testifies at that
December 15th hearing and tells you he‟s a 65 year old man who has basically depleted
his 401-K. He has $30,000 to his name. He owns no home. And he has thousands and
thousands of dollars in credit card bills that he has to pay as a result of his ex-wife‟s
behavior throughout this litigation including the civil lawsuit that she filed against him
that she lost also.”


                                              11
served as a statement of decision by setting forth “the factual and legal basis” for the
court‟s decision as to custody and visitation matters. (See In re Exterstein’s Estate
(1934) 2 Cal.2d 13, 15 [“recitals” in a minute order were sufficient to satisfy the
requirement of a statement of decision].)
       Here, the trial court stated in its Order After Hearing that it was applying the best
interests standard as opposed to the change of circumstances standard in determining
custody because “both parents had significant periods of physical custody within the
meaning of [section 3004].” The court further found that awarding greater custodial time
to Edward was in the children‟s best interests. The court also referred to a report issued
by minors‟ counsel, found the report to be persuasive, and adopted counsel‟s
recommendations regarding timeshare and other custody-related issues. Thus, the court
sufficiently explained in its Order After Hearing “the factual and legal basis for its
decision as to each of the principal controverted issues at trial,” i.e., whether Edward‟s
custodial time with the children should be increased consistent with the children‟s
wishes.7 (See In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 [“ „In
rendering a statement of decision . . . a trial court is required only to state ultimate rather
than evidentiary facts,‟ ” and even an omission of findings on a material issue “ „is
harmless error unless the evidence is sufficient to sustain a finding in the complaining
party‟s favor‟ ”].) There was no error.
                                         DISPOSITION
       The judgment is affirmed. Respondent Edward Ewing shall recover his costs on
appeal.




7
  Charleen, who made only a general request for a statement of decision in which she did
not specify what questions she wished the court to answer, does not assert on appeal that
she had any additional questions she wished for the court to decide, or that the Order
After Hearing did not sufficiently explain the factual and legal basis for the court‟s
decision.

                                               12
                                 _________________________
                                 McGuiness, P. J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




                            13
