Appellate ruling gives custody dispute guidance

On its face, the 2nd District Court of Appeal's opinion in the case of In re Marriage of Furie, 2017 DJDAR 10419 (Nov. 1, 2017), purports on the face of it to be a run-of-the-mill family law decision involving a request, to reduce child support. In fact the decision provides guidance concerning whether written, as opposed to oral, statements of decision are required in bench trials. It also reaffirms the notion that changes in visitation are decided on a "best interests of the children" basis, and not on whether circumstances have changed materially enough to warrant a new order. Custody requests, in contrast, are decided on whether a material change in circumstances has occurred.

The case involves a tortuous post-judgment history with a prior appellate decision. In this most recent chapter, Mother filed a request to modify its child custody and visitation orders based on Father's refusal to co-parent on orthodontic issues and for an order reimbursing her for half of the expenses she incurred for the two minor children's orthodontic care. Father requested an order reducing his child support obligations.

At a hearing in November 2015, the trial court issued an oral statement of decision. A written order followed in December. Father contended the trial court erred by not issuing a written statement of decision. Mother explained that Code of Civil Procedure Section 632 expressly allows the trial court to issue an oral statement of decision. Father argued that Family Code Section 3654 requires the trial court to issue one in writing. That section states, "At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision." The Court of Appeal agreed with Mother.

Father's contentions raised questions of statutory interpretation, which the Court reviewed de novo. See Fry v. City of Los Angeles, 245 Cal. App. 4th 539, 549 (2016).

Father relied on Family Code Section 3654 and In re Marriage of Sellers, 110 Cal. App. 4th 1007 (2003), to support his argument that the trial court was required to issue a written statement of decision.

In Sellers, the trial court (a) invoked Family Code Section 3654 by modifying spousal support, and (b) did not issue any statement of decision even though a party requested one. In Furie, the trial court gave an oral statement of decision on the record in the parties' presence and expressly declined to either modify, terminate, or set aside a support order.

The appellate court held that it did not need to decide whether Section 3654 requires a written statement of decision for orders that fall within its scope because the order at issue did not. Code of Civil Procedure Section 632 required the trial court to do no more than it did.

As to Mother's request for shared orthodontic expenses, the trial court's order for reimbursement was viewed for as an abuse of discretion. A trial court's order modifying child custody 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. This change circumstance rule does not apply where, as in Furie, the trial court considered merely a request to change the parenting or visitation arrangement under the best of the child's standard (citing In re Marriage of Lucio, 161 Cal. App. 4th 1068, 1072 (2008)). Although "legal custody" under Family Code Sections 3003 and 3006 encompasses the right and responsibility to make decisions regarding the health, education and welfare of the child, including obviously orthodontic care, the trial court's order did not amount to a change of legal custody of Father with Mother. The appellate court found no reason to apply a change circumstances test when a modification amounts to something less than a change of legal custody.