Its Not Final Until It’s Final

Rose v. Richardson, (2002 DJDAR 11827)

In the Supreme Court case of Montenegro v. Diaz (2001), 26 Cal.4th 249; 109 Cal.Rpt.2d 575, the Court clearly stated that a custody stipulation entered into by the parties will not constitute a final judgment of custody unless there is a “clear, affirmative indication” (Page 581) that the parties intended it to constitute  a final judgment of custody. The practical effect of this finding is that if there is not a final adjudication of custody, any modification or changes in custody require only a showing of “best interest” and not a showing of the more difficult “a change of circumstances”. In custody litigation, this is a very significant difference. Often, a change in the custody/visitation schedule may be appropriate post judgment based upon the child’s age, multiple attachments, passage of time or other changing social and developmental needs that would impact upon a child’s “best interest”. However, parties are often unable to establish that the aforementioned happenings constitute result a “change of circumstances”. This increased post judgment burden is particularly important in “move away” cases where one party has “custody” and the other party  has only “visitation”.

What constitutes the parties intention to make a final judgment of custody?  In the case of Rose v. Richardson, (2002 DJDAR 11827) the Court for the first time applies the holding of Montenegro v. Diaz to a “move away” case and finds that the traditional and common mechanisms used by family law litigants in stipulations may not always create a final judgment of custody.

The facts of Rose v. Richardson are standard to most family law matters. The parties were married on September 18, 1993. The minor child was born on October 16, 1998. They separated in May 2000; a Judgment dissolving the parties’ marriage was entered into on March 14, 2001.

The language contained in the stipulation of March 2001 appeared to reflect the reality of the parties’ desire to resolve finally and completely all issues.

As the Judgment stated:

“The purpose of this Judgment is to effect a complete, final and permanent settlement and adjustment of all the parties’ respective property rights, spousal support claims and any other financial rights and obligations…. In addition, it is the intent of the parties to effect a reasonable and fair settlement of the issues of child support and child custody based on the best interest of their child.”

With regards to custody and visitation, the parties stipulated that they would have joint legal custody, and that primary physical custody of the minor would be awarded to the mother with “reasonable” visitation awarded to the father. In the event that any disputes arose, prior to filing any modification of custody and visitation, the parties had to first go to an agreed-upon therapist or counselor. There was no specificity as to what constituted “reasonable” visitation.

In essence, the Judgment contained standard and customary language that litigants and family law attorneys frequently use when resolving, by stipulation, dissolution matters. Often, the parties enter into a custody order where specific visitation is not laid out.

In October 2001, father filed a modification indicating that he and the mother had not been able to work out reasonable visitation. Concurrently, mother filed her own action requesting a “move away”.

The court determined that the father had approximately 15% time share pursuant to the judgment and, as such, having only visitation and not joint custody, was subject to a stricter evidentiary showing than “best interest” in order to defeat the presumptive right to move by a custodial parent. Further inquiry did not warrant a “de novo review” pursuant to In re Marriage of Burgess (1996) 13 Cal.4th 25. Burgess, holds  that when a parent, who has an existing order for joint custody and has carried out same, wants to contest a relocation by the other parent, the court must determine de novo what is in the child’s best interest. The Rose trial court found that mother already had custody pursuant to a judgment and with a presumptive right to move with the child, pursuant to Family Code §7501, the burden on the non-moving non custodial parent to oppose such a move was more than simply a best interest test. The court felt that the father in this case had not overcome his higher burden. As such, the trial court granted mother’s move-away request.

The appellate court reversed.

The appellate court found that the trial court should have granted a “de novo” review, treating the custody and visitation matter as not a modification from a final judgment, but rather from a temporary order, and thus entitled to a full and new review as to what was in the present best interest of the child.

The appellate court found that there was no indication in the stipulated judgment that the parties had truly meant that the custody and visitation matters would be finally adjudicated as per Montenegro. As the court states:

“On the contrary, the language of the Judgment to which the parties consented warrants the opposite conclusion–the parents disagreed and were to attempt to resolve the custody and visitation issue…. We conclude, therefore, that the March 14, 2001 Order was not intended by the parties to be a final judicial determination of custody. Because there was no clear, affirmative indication the parties intended the stipulation and resulting March 14, 2001 Judgment to be a final judicial determination of custody, the father was not required to show that a significant change of circumstances justified modifying the custody order…. Moreover, the trial court was required, exercising its wide discretion to make an initial custody and visitation determination after considering all the circumstances bearing on the best interest of the child.”  (Page 11830).

As can be seen from the appellate court in Rose v. Richardson, unless the parties make the requisite “clear, affirmative indication” by specific statement of intention in a stipulated judgment regarding custody it will be found that the existing judgment of custody and visitation is not a final custody visitation order.

Trial courts often feel restricted by the legal standard of “change of circumstance”. This is particularly true in move away cases. Justice Yeagan, in his dissent in In re Marriage of Bryant, 91 Cal.App.4th 789, 110 Cal Rptr. 2d 791,  was “hopeful that the California Supreme Court did not intend that Burgess be interpreted in a “straight jacket fashion” (Bryant at p.35). Rose v. Richardson is first post Montenegro case to revisit Burgess and begin to tailor this perceived restraint into a child-centered fit.

Many commentators have criticized the court in Montenegro v. Diaz for not totally scraping the “change of circumstances” rule. In fact, in the last paragraph of the Montenegro case the Supreme Court clearly skirts that issue and says “Accordingly, we leave any review of the changed circumstance rule for another day” (Page 582).

The issue of what is the appropriate test in move away cases is again before the Supreme court in Marriage of LaMusga, S107355. The adverse impact on a child in not revising a parenting plan which no longer meets the child’s needs, no matter what the procedural posture of the case, hopefully will be addressed. Until then, the Rose v. Richardson decision gives us a bit more guidance on this procedural posturing in the context of that is a final judgment in a move away case.

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