Anne H. v. Michael B. Summary
Opinion Published June 15, 2016
Mother and Father were in the armed services. They had one child, L. together. Mother’s family helped with L.’s care. In 2012, Mother was posted to Georgia. The parties agreed L. would remain with Father on a temporary basis while the parties worked out a permanent custody arrangement. Father filed a petition to gain full custody of L. in February 2013.
An August 2014 custody order awarded the parents joint custody over L. It also required L. to spend the academic year with Father and the summer months with Mother. Mother’s parents and sister lived near Father which provided Mother a place to stay during visits with L. The arrangement also allowed Mother’s family involvement in L.’s care. Moreover, Father knew no one in Georgia, and L. was already accustomed to where she lived. The court added, however, Father or Mother’s family’s move from the area would constitute a change of circumstances warranting custody reevaluation
Less than a year later in 2015, Mother brought an RFO for custody modification. As changed circumstances, Mother sought to take up residence in Washington D.C. and provided a grant deed to her parents supposed purchase of a house within 15 minutes of where she intended to move. Father countered the house was not for Mother’s parents and noted most of L.’s support system sill lived near father.
Trial Court’s Order
The court denied Mother’s request, stating only Mother did not meet her burden to show a chance of circumstances.
Decision on Appeal
The Court of Appeal first recounted where there was a permanent custody order, as was here, the changed circumstances rule existed in to the best interests rule. Wife argued the changed circumstances detailed by the court in the prior 2014 litigation were binding on the subsequent litigation in 2015 under the doctrine of Res Judicata. The Court of Appeal did not wholly agree. Res Judicata only applied to matters actually litigated. As applied to Mother,
“The only issue before [the court] in the original  hearing was current custody arrangements for L. Necessarily, the issue of the circumstances justifying a change in those arrangements was not before 2014 judge when he entered the custody order. On the contrary, modification of the custody order due to changed circumstances would not be before a court unless and until Mother or Father filed an appropriate motion to modify. Further, the issue of changed circumstances could not even arise until there had been sufficient time after entry of the custody order for circumstances to change. Accordingly, Judges comments in 2014 about a change in circumstances were unnecessary to his decision.”
The 2014 opinion did not have preclusive effect to what occurred in 2014. The court of appeal affirmed the trial court’s order.
FOR A CONSULTATION
(858) 274 3538
Dennis Temko, Esq.
Law Office of Stephen Temko
750 "B" Street Suite 2100
San Diego CA, 92101
Email me through this site by clicking HERE
Child Support Modification Appeal
Family Law Appeals
Permanent Spoual Support Appeal
Property Characterization Appeal
Temporary Spousal Support Appeal
Spousal Support Modification Apppeal
Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement. Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement . Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period. The articles on this website are not legal advice and should not be used in lieu of an attorney. The accuracy of articles and information on this site cannot be relied upon.