Filed 9/9/19 Marriage of Eastman and Nylander CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of CHRISTIANA FRANCES EASTMAN AND JUSTIN ANTHONY NYLANDER.

CHRISTIANA FRANCES EASTMAN,

Respondent,

v.

JUSTIN ANTHONY NYLANDER,

Appellant.

E070134

(Super.Ct.No. SWD1401226)

OPINION

APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

D.M. Tessier-Gluzerman and David P. Berschauer for Appellant.

Law Offices of John S. Cowhig and John S. Cowhig for Respondent.

Justin Anthony Nylander and Christiana Frances Eastman share joint legal and joint physical custody of their twin minor daughters. Nylander lives in Florida, and Eastman lives in Montana with the children. Nylander appeals from a postjudgment order denying his requests: (1) to modify the custody and visitation order to move the children to Florida during the school year, and (2) to reallocate the cost of transportation for visits. We affirm the denial.

BACKGROUND

Eastman and Nylander married in 1990. In 2012, their twin daughters were born. Eastman petitioned for dissolution of the marriage in May 2014, and the trial court entered judgment of dissolution in July 2014. The trial court awarded Eastman sole legal and sole physical custody of the children but awarded Nylander a reasonable right of visitation.

In July 2014, Nylander moved to Boston, Massachusetts, and then relocated to Florida sometime after October 2014. The children remained in California with Eastman. In December 2015, while Nylander was still residing in Florida, Nylander requested that custody be modified to joint legal and joint physical custody. He claimed that Eastman refused to allow him to see the children after he left California and had changed her phone number to prevent him from talking to them. Eastman objected to allowing Nylander to have any contact with the children.

In April 2016, Nylander informed Eastman and the court that he was moving back to California in May 2016. Eastman then notified Nylander that she was in the process of selling her house and that she and her husband planned to move out of California with the children once the house was sold. Nylander opposed the relocation.

In order to facilitate reintroduction of Nylander to the children, in May 2016 the court ordered therapeutic visits between Nylander and the children for the purpose of reunifying them.

After conducting a two-day evidentiary hearing in August 2016 at which the parties and others testified, the court ordered that Eastman was permitted to move the children to Montana. The court stayed the order for 30 days and ordered Nylander and Eastman to participate in mediation to resolve child custody and visitation among themselves. At the next hearing in September 2016, the court adopted the parties’ agreement with slight revisions and modified custody to joint physical and joint legal custody with the children’s primary residence in Montana with Eastman.

Eastman asked to be awarded sole physical custody. In declining the request and awarding joint physical custody instead, the court recognized that Nylander would have twenty to thirty percent physical custody if the visitation schedule operated optimally. Despite the disparity in parenting time under the visitation schedule, the court refused to award sole physical custody to Eastman out of concern for how the order of sole physical custody would be construed in Montana. Specifically, the court was wary of “creat[ing] any kind of a challenge up there where some nonjudicial organization, whether that be a school or whatever it is, is looking at a custody order saying mom has physical custody and, because of that, allowing mom to make decisions the court hasn’t authorized.” The court indicated that “in California law, basically it’s not the designation of who has physical custody. It’s the reality of what time you share with the child.”

The court set a detailed visitation plan with visits scheduled in both Montana and California. For the California visits, the parents were to drive the children to a midway point in Utah to exchange the children unless both parents agreed to split the cost of airfare. Nylander was fully responsible for the cost of visiting the children in Montana. During the school year, Nylander was required to visit with the children in Montana.

In November 2016, Nylander sought modification of the visitation order because he alleged that he needed to move back to Florida. He requested that all visits starting in January 2017 occur in Florida until the children started kindergarten. Nylander also asked the court to reallocate travel costs between him and Eastman. He suggested that they should each be responsible for the one-way cost of the children’s airfare between Montana and Florida. Eastman opposed both requests. She requested that the monthly visits occur in Montana only.

In December 2016, after conducting a hearing, the court ordered the existing visitation schedule to continue with the January 2017 visit to occur in Florida. The parties were ordered to meet and confer about travel and visitation schedules. Eastman was ordered to pay Nylander $600 each time the children travelled to Florida. The court ordered a review hearing to occur in March 2017. Nylander moved to Florida in January 2017.

At the review hearing in March 2017, Nylander sought to modify visitation so that the children could spend 20 days per month with him and 10 days per month with Eastman—the reverse of the time share under the existing order. Nylander again sought to reallocate travel costs so that each parent would cover their own cost of travel and any associated travel expenses when bringing the children to or from Florida. Eastman countered by asking the court to grant her sole legal custody and asked the court to require Nylander to pay for all of the expenses of travel to Florida. The court denied all requests and ordered both parents to attend six coparenting therapy sessions that could be done via videoconference. The court clarified that Eastman’s $600 contribution was per trip to Florida and not monthly.

From January 2017 through August 2017, the children visited with Nylander in Florida. The children started kindergarten in Montana in September 2017. Nylander visited the children in Montana in September. He did not visit with the children at all in October or November.

In November 2017, Nylander again sought modification of the child custody and visitation order to have the children live with him in Florida during the school year and to attend school in Florida. Nylander claimed to be unable to withstand visits in Montana during the school year because of a physical disability (Polymyositis and Raynaud’s phenomenon) that negatively affects him in the cold weather. He claimed to have been diagnosed with those conditions in 1999. Nylander claimed that he missed the visits with the children in October and November because of the cold weather in Montana at the time. Nylander also asked the court to reallocate the cost of travel for visitation to require Eastman to pay more. He claimed to be paying more than his annual income for travel expenses and claimed that he paid much more than Eastman for those expenses. Nylander’s mother submitted a declaration stating that she and her husband had been loaning Nylander money to help him pay for the costs of visitation but could not afford to continue helping with travel expenses.

Eastman opposed the requested changes. She again asked the court to award her sole physical custody, and she asked the court to modify visitation so that Nylander did not have any visitation during the winter months.

In January 2018, the parents attended a mediation. The counselor indicated: “Aside [from] the continued acrimony between the parents, who were once childhood friends, no significant event(s) has been identified, which would seemingly warrant the reassignment of the children’s school parent.”

At a hearing in February 2018, the trial court denied the requested modifications.

DISCUSSION

A. Modification of the Custody and Visitation Order
B.
Nylander contends that the trial court erred by applying the changed circumstances test and not the best interest of the child test in evaluating his modification request and that this amounts to reversible error. Regardless of which test applies, we conclude that the trial court did not abuse its discretion by concluding that the requested modification was not in the children’s best interest.

The overarching concern in child custody and visitation determinations is the best interest of the child. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955 (Brown & Yana).) “For purposes of an initial custody determination, [Family Code] section 3040, subdivision (b), affords the trial court and the family ‘“the widest discretion to choose a parenting plan that is in the best interest of the child.”’” (Ibid.)

“Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement.” (Brown & Yana, supra, 37 Cal.4th at p. 956.) “Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (Ibid.)

“The changed circumstance rule does not apply to a modification request seeking a change in the parenting or visitation schedule.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077 (Lucio); Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1382 (Enrique).) Instead, the best interests of the child standard applies to modifying parental visitation. (Lucio, supra, at p. 1077; Enrique, supra, at p. 1382.) However, a request to modify visitation that amounts to a de facto change from joint physical custody to sole physical custody is subject to the changed circumstances rule. (Lucio, at p. 1080; see also In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759-760 [“[T]he trial court looks at the existing de facto arrangement between the parties to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent”].)

We review custody and visitation orders under the deferential abuse of discretion standard. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) We independently review whether the trial court applied the appropriate legal standard. (Enrique, supra, 121 Cal.App.4th at p. 1378.)

Regardless of which test applies here (and whether the resultant change would affect custody, visitation, or both), the trial court could grant the request only if it found that the changed living and visitation arrangement was in the children’s best interest. The trial court found that it was not. Despite not using that precise terminology, the trial court found: “[T]here is nothing that would warrant moving these children to Florida, placing them in new schools across the country, moving them from their primary custodial parent who has been there their entire life.” The only reasonable interpretation of this explanation is that the trial court found that it was not in the children’s best interest to move them to Florida to live with Nylander during the school year.

Nylander cites Enrique, supra, 121 Cal.App.4th 1371, to support his contention that it was reversible error for the trial court to apply the wrong standard. In Enrique, the Court of Appeal determined that the trial court had wrongly applied the changed circumstances test to a visitation modification request, and the matter was remanded for the trial court to apply the best interest test because the trial court had expressly stated that it would have reached a different result if it could. (Enrique, at pp. 314-315.) That is not what happened here. The trial court determined that the requested modification was not in the children’s best interest.

Because the trial court found that the modification was not in the children’s best interest, we can review that determination for an abuse of discretion without deciding which test applies (changed circumstances or best interests of the child) and the actual nature of the physical custody arrangement. We also do not address whether Nylander’s claimed inability to tolerate cold weather amounted to a material change of circumstances.

Nylander has failed to carry his burden of showing that the trial court abused its discretion. Nylander does not address any of the concerns raised by the trial court about how it would not be in the best interest of the children to disrupt their lives in Montana to live in another state during the school year. He also does not address how it would be in the children’s best interest to move so far away from Eastman, who has been their primary custodial parent since the dissolution in 2014 and who has lived with them since their birth. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32-33 [“[T]he paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements”].)

Nylander’s only argument in the trial court and on appeal concerning the children’s interest is that it is in the children’s best interest to maintain a relationship with both parents and that not allowing the children to relocate severely diminishes his relationship with them. Assuming for the sake of argument that Nylander cannot visit the children in Montana when it is cold and that he consequently will see the children less frequently as a result, we still conclude that his argument lacks merit. The argument fails to show that the trial court abused its discretion, because it was reasonable for the court to conclude that any detriment to the children from the presumed less frequent contact with Nylander does not outweigh the detriment that would result from disrupting the children’s lives so dramatically. In addition, Nylander can continue to visit the children in Montana pursuant to the existing custody order when the weather permits.

Nylander also contends that it was an abuse of discretion for the trial court not to accommodate his physical disability. The trial court is required to consider a parent’s disability when making custody and visitation orders (§ 3049), and the record reflects that the trial court did consider Nylander’s disability when denying his modification request. But Nylander cites no authority for the proposition that his desire to have his disability accommodated more fully trumps or overrides the children’s best interest, and we are aware of none. In any event, Nylander is not being prevented from visiting his daughters because of his disability. The children will continue to travel to Florida during the summer, and Nylander can visit them in Montana during the school year when the weather permits.

For all of these reasons, we conclude that the trial court did not abuse its discretion by refusing to modify the existing custody and visitation order.

C. Transportation Costs for Visitation
D.
Nylander also contends that the trial court abused its discretion by refusing to reallocate the visitation expenses. The record is not adequate for us to review this issue, so we affirm.

In refusing to reallocate travel costs, the trial court explained: “A lot of what has been raised in the documents are issues that we addressed already and rehashed. We’ve had many chambers conferences, many court hearings. We have made that ultimate order that is in place where mom’s contribution to the travel costs is $600 a month. And at this point, I can find no justification for making a change in the current order. [¶] I realize that maybe there’s some kind of financial support you’ve had from family that might be changing. I was aware that you probably were getting that previously. But that really isn’t a factor.”

The trial court originally ordered Eastman to pay $600 per visit in Florida in December 2016. Nylander has not provided us with a reporter’s transcript of that hearing. Without the hearing transcript, it is impossible for us to determine what evidence and analysis formed the basis for the court’s December 2016 order concerning travel costs. Because the court incorporated its prior reasoning in its grounds for denying Nylander’s modification request in February 2018, it is likewise impossible for us to evaluate those grounds. Nylander has therefore failed to carry his burden of showing that the trial court abused its discretion. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [“‘Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]’”].)

DISPOSITION

We affirm the February 13, 2018, order denying Nylander’s request for modification of child visitation and/or custody. Eastman shall recover her costs of appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

RAPHAEL

J.