Winternitz v. Winternitz CA4/1
185 Cal. Rptr. 3d 458
Cal. Ct. App.2015Background
- Mother moves Jamison to Chico; Father opposes and custody is at issue.
- Custody evaluator Dr. Simon recommended denying the move; court denied the move and changed custody to Father.
- Mother challenged Dr. Simon's report for Rule 5.220 deficiencies but the court declined to strike it.
- Court applied LaMusga factors and balanced deterrents to relocation with Jamison's interests; the move was found to be detrimental to Jamison’s relationship with Father.
- Jamison’s custodial preference was considered under §3042; court found meaningful consideration but did not follow the preference.
- Attorney-fee disputes followed; court denied Mother’s fee requests; both parties financially strained; disposition affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Simon’s report should have been struck under Rule 5.220. | Winternitz argues the report fails Rule 5.220 defects. | Winternitz contends the report is admissible and weighs credibility. | No reversible error; objections went to weight, not admissibility. |
| Whether the court properly applied the move-away standard (7501, LaMusga, 3042). | Mother asserts error in not applying presumptive move-right, LaMusga factors, and Jamison’s wishes. | Court applied LaMusga factors and considered Jamison’s wishes within discretion. | Court properly applied standard and weighed relevant factors. |
| Whether Jamison’s custodial preference was meaningfully considered under §3042. | Mother argues the child's preference was not given meaningful weight. | Court acknowledged Jamison’s expressed wish and weighed stability and best interests. | Court considered Jamison’s wishes but retained discretion to determine best interests. |
| Whether denial of need-based attorney fees was an abuse of discretion. | Mother asserts Father’s financials and tactics justify fees. | Court found both parties unable to afford counsel and exercised discretion. | No abuse; substantial evidence supported denial. |
Key Cases Cited
- In re Marriage of LaMusga, 32 Cal.4th 1072 (Cal. 2004) (LaMusga factors guiding move-away custody decisions; stability and best interests)
- In re Marriage Burgess, 13 Cal.4th 25 (Cal. 1996) (stability and best interests considerations in custody changes)
- F.T. v. L.J., 194 Cal.App.4th 1 (Cal. App. 2011) (distinguishing proper standards in move-away rulings)
- Adams & Jack A., 209 Cal.App.4th 1543 (Cal. App. 2012) (bias/removal evaluation standards; deference to credibility findings)
- Leslie O. v. Superior Court, 231 Cal.App.4th 1191 (Cal. App. 2014) (evaluator conduct and potential reevaluation; limits on appellate micromanagement)