Marriage of Chilton CA2/6

Filed 1/29/14 Marriage of Chilton CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re the Marriage of SHELLEY and 2d Civil No. B245836 MICHAEL CHILTON. (Super. Ct. No. SD 031359) (Ventura County)

SHELLEY CHILTON,

Appellant,

v.

MICHAEL CHILTON,

Respondent.

After eight years of "incessant, unending" child custody litigation, the trial court awarded Shelley Chilton (Mother) primary physical custody of the parties' oldest child and allowed Michael Chilton (Father) to move to Florida with the younger child. Mother contends the court abused its discretion by refusing to hold an evidentiary hearing under Family Code section 217.1 We conclude that the court established good cause to deny the hearing, and that even if it did not, Mother has failed to demonstrate a reasonable probability that an evidentiary hearing would have changed the result. We affirm.

1 All statutory references are to the Family Code unless otherwise stated.

FACTS AND PROCEDURAL BACKGROUND The parties were married in 1994. They separated 10 years later, when their sons, W. and A., were ages 7 and 4, respectively. In 2009, following a six-day trial, the court awarded the parties joint legal and physical custody of both children. The order was modified several times, primarily because the children "ignored the [c]ourt's orders for custody and visitation, notwithstanding the best efforts of their therapists and their attorneys." Shortly after the original custody order was entered, A. ran away from Mother and began living with Father. A. has since refused to communicate with Mother. In 2010, W. stopped communicating with Father, and Mother was awarded sole physical custody of W. A year later, W. ran away from Mother's home, refused to communicate with her, and began living with Father. The court subsequently appointed counsel for each child. It also appointed therapists to provide reunification services. W. resumed contact with Mother in May 2012. Two months later, Father filed notice of his intent to relocate to Florida with both children, who were then 15 and 12. Mother sought an order enjoining the move. She also opposed Father's suggestion that W. be given the option of moving, arguing it would be detrimental to separate the siblings. Over the next several months, the parties exchanged numerous briefs, declarations and evidentiary objections. No evidentiary hearing was requested. The child custody mediator, Rachel Curtis, recommended a new custody evaluation. Pending that evaluation, she proposed that the children remain in Ventura County. She also suggested alternative custody schemes (including reunification therapy for A.), depending upon whether Father moved to Florida or stayed in California. The parties, including minor's counsel, agreed that a custody re-evaluation was unnecessary. After considering the mediator's recommendations, the trial court announced its tentative decision to separate the children. Mother requested an evidentiary hearing under section 217. The court inquired: "[W]hat information about this case would you expect me to learn at an evidentiary hearing that I don't already know?" Mother's counsel said it would be helpful to hear evidence from the mediator,