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California Family Law Report


Case of the Month Archive

September 2016

Justices won’t tie the hands of successor trial judge . . .


In affirmance, First District holds that trial court did not err in finding lack of changed circumstances defeated Mom’s request for custody mod; prior judge’s comments as to what could constitute changed circumstances are not binding on judge who presides over request for mod of permanent custody order


Anne H. v. Michael B.

(June 15, 2016; ordered modified and partially published July 12, 2016)

California Court of Appeal 1 Civil A146610 (Div 1) 1 Cal.App.5 th 488, 204 Cal.Rptr.3d 495, 2016 FA 1748, per Margulies, (Humes, PJ, and Dondero, J, concurring). San Mateo County: Greenberg, J, affirmed. For appellant: Robert Roth, CALS (415) 957-1800. For respondent: Leslie Ellen Shear, CALS, CFLS, (818) 501-3691. CFLP §G.133.10.


Anne H. and Michael B. were both in the armed services when Anne gave birth to Michael’s child, L., in 2009. Less than a year later, Michael left the armed services, but Anne stayed in. He moved in with Anne, who was going to law school, and began attending grad school. When he finished school, he got a job in the Bay Area. Meanwhile, both Anne and Michael had sole care of L. for brief periods, while the other was away. During those times, Anne’s parents and sister helped to care for L. Anne completed law school in 2012 and in August 2012, she was posted to Georgia as a JAG officer. Anne and Michael then agreed that L. would stay with him until they could agree on a custody plan.


In February, 2013, Michael filed a petition in the Santa Clara County trial court for full custody of L. Soon, Anne filed a paternity action in a San Mateo County trial court and Michael dismissed his petition. After a short trial, the San Mateo County trial judge, Richard DuBois, issued a lengthy statement of decision, in which it awarded Anne and Michael joint custody of L., and for timeshare, ordered L. to spend the school year with Michael and summer vacations with Anne. Judge DuBois based his custody determination on Anne’s ability to stay with her parents and other family while visiting L., the benefit to L. of continued stability in her custody situation, and the likelihood that Anne would be posted to various locations. The trial court stated that the presence of Anne’s family members in the Bay Area was “the ‘most significant factor’ ” and commented that her family members moving from the Bay Area would “ ‘constitute a change of circumstances requiring a new analysis of the ongoing custodial timeshare between the parties.’ ”


In May 2015, Anne filed a request for a custody modification, seeking custody of L. during the school year, citing her new posting in Washington D.C., which was to last for 5-6 years, and claiming that her parents’ move to a home near hers in Virginia constituted a change of circumstances under the existing custody order. Anne attached a copy of a grant deed showing that her parents and brother had bought a Virginia property, but her parents did not file declarations. She also alleged that Michael failed to permit her parents to have access to L. In opposition, Michael stated his belief that the grandparents had retained ownership of their Bay Area house and continued to live there. He denied failing to cooperate with the grandparents’ requests for visitation and asserted that Anne’s job gave her greater flexibility to visit L. in the Bay Area than his did for visiting L. in Virginia. He said that Anne had “substantial banked leave time” and “had been able to spend two four-day weekends per month visiting L.” Michael sought sanctions under Fam C §271 of $15,000 to cover the attorney’s fees he incurred in responding to Anne’s five ex parte applications for custody between 2013 and 2014 and detailed their procedural history. He claimed that she could afford sanctions of that amount because of her earnings. In response, Anne said that she no longer had relatives with whom she could stay in the Bay Area and denied that her financial picture was that rosy. After a hearing by Judge Greenberg, the jurist found that Anne failed to show significant changed circumstances and denied her request for a custody change. Judge Greenberg also imposed Fam C §271 sanctions of $5,000 on Anne.


Anne appealed, but the First District affirmed.


Issue or no issue . . .
The justices first noted that where, as here, the lower court was dealing with a permanent custody order, it may not modify the order without a showing of a significant change of circumstances by the moving party, leading to the conclusion that a custody change would be in the child’s best interests. Anne argued that Judge Greenberg erred by finding that no such change had occurred because that finding was inconsistent with Judge DuBois’s previous statements about what could constitute a change of circumstances. In Anne’s view, those statements should be binding on Judge Greenberg under the doctrines of res judicata and collateral estoppel. Not so, the justices said. Relying on In re Marriage or Rabkin (1986) 179 Cal.App.3d 1071, 225 Cal.Rptr.219, 1986 CFLR 3105, 1986 FA 217, the panel explained that res judicata applies only to “issues actually before the court and necessarily decided.” Here, the justices reasoned, the issue before Judge Greenberg was whether to modify the existing custody order. However, the issue before Judge DuBois was what custody order to make; his statements were simply dicta, and were speculative as to what might occur in the future, not what was currently before him. Similarly, the doctrine of collateral estoppel did not apply because Judge Greenberg was not relitigating a previously decided issue and Judge DuBois’s statements were not necessary to his decision as to what custody order to make. Summing up, the justices concluded that Judge DuBois’s comments regarding a potential change of circumstances if Anne’s family moved from the Bay Area were not binding on Judge Greenberg.


No binding ties . . .
Anne also argued that Judge Greenberg should not have been permitted to essentially reconsider and overrule a ruling of another judge. The justices acknowledged that general rule, but they did not believe that Judge DuBois’s comments were the “type of ‘ruling’ that cannot be altered by a subsequent trial judge.” They reasoned that only rulings that apply to issues necessary to the disposition of the case should be given preclusive effect, not incidental comments such as the dicta on which Anne wanted them to rely. Giving binding effect to those comments, they noted, would mean that a succeeding jurist could not consider current circumstances in deciding whether to order a custody modification. However, a judge who is deciding a request for a modification of an existing custody order must be able to base his or her decision on the circumstances existing at the time, circumstances that the prior judge could have no way of knowing when he or she made the incidental comments. Moreover, if, as Anne argued, the statement should remain binding, it would force Michael to appeal them simply to prevent their application in a future proceeding, if judicial review were even available.


They’re skeptical . . .
Anne also contended that the lower court erred by finding no changed circumstances. The justices didn’t agree. They pointed out that it was far from certain that Anne’s parents had actually relocated to Virginia, since they had not submitted declarations to that effect for themselves, they were apparently still living in the Bay Area, and at one time, Anne had listed their home as her home address on a school application. Moreover, making the custody change that Anne requested was not clearly in L.’s best interests, since it would not meet the child’s need for continuity and established patterns of care. In addition, many of Anne’s family members still lived in the Bay Area, offering her a place to stay and extended family for L. Summing up, the panel found that Judge Greenberg had not abused her discretion in finding insufficient evidence of a significant change in circumstances that would show that a custody change would be in L.’s best interests.


Non-pub . . .
In the unpublished part of the opinion, the justices noted that the sanctions request, which Anne was challenging, was based on a “background of other purportedly litigious conduct” by Anne. They concluded that the sanctions order was not an unreasonable financial burden on Anne and was justified on the basis that her conduct that frustrated settlement.





We’re sure that for many family law attorneys, discussions of the doctrines of res judicata and collateral estoppel bring back memories of law school, but don’t come up in actual practice that often. Those doctrines crop up here in Anne’s effort to persuade the justices that Judge DuBois’s comments should be treated as binding on Judge Greenberg. Similarly, family law attorneys aren’t often called upon to decide whether a prior judge’s statements are binding or dicta, as is the case here. The main lesson in this case is that the speculations of a trial judge as to what the legal effect might be of something that might happen in the future can’t be counted on as binding precedent for a successor judge.



That’s not to say that Anne had no chance of prevailing here. Her case could have been stronger if she had presented more of the evidence that she said she had, but never produced, such as the lease on the grandparent’s Bay Area home and some Virginia utility bills to bolster her claim that her parents had actually moved. She might also have provided proof that L.’s relationship with her grandparents was so close that their moving to Virginia would be detrimental to her well-being. In a footnote, the justices tell us that to support her claim of Michael’s lack of cooperation, Anne submitted an email chain between Michael and her mother in which he politely declines to allow visitation with L. the following weekend because he had made other plans, but asks for alternative dates when L. could visit. The grandmother reiterates her request, ignores Michael’s request, and insists on visitation when she asked for it. This, the justices say, shows a lack of cooperation on the part of the grandmother, not Michael. Here again, Anne’s evidence lacks persuasive value and needed to be strengthened.



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