Marriage of Andrea M. and Gary M. CA1/5

Filed 4/21/22 Marriage of Andrea M. and Gary M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of Andrea M. and Gary M.

ANDREA M., Respondent, A163665 v. (Contra Costa County GARY M., Super Ct. No. MSD18-03631) Appellant.

After Gary M. and Andrea M. divorced, the family court ordered that their son should attend an elementary school in Moraga, near Andrea’s home. Gary appeals from that order, contending that the court violated his rights by failing to take live testimony, relying exclusively on declarations, and denying his request to hold a trial. In addition, he argues that the court’s order was not supported by sufficient evidence. We conclude that his contentions lack merit and therefore affirm.

BACKGROUND Subsequent to their divorce, Gary and Andrea shared joint custody of their son, S., who resided with each of them on an alternating basis. Gary resided at their former marital residence in Martinez, while Andrea moved out and eventually settled in Moraga. In Moraga, Andrea lived with her fiancé, who had a daughter who attended elementary school there.

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Gary and Andrea were unable to agree on the elementary school S. should attend beginning his kindergarten year. The trial court appointed a private recommending mediator to assist the parties in resolving ongoing parenting disputes, including the school question. Gary preferred a school located in Pleasant Hill, but Andrea wanted to enroll S. at the school in Moraga that her fiancé’s daughter was attending. The mediator recommended that S. be enrolled in the Pleasant Hill school. We grant Andrea’s unopposed request to augment the record with the mediator’s confidential recommendation. (See Cal. Rules of Court, rules 8.155(a)(1)(A), 8.45(d)(2).) Because Andrea disagreed with the mediator’s recommendation, she requested an order from the court that S. attend the Moraga school. In two declarations filed with the court, Andrea asserted that the Moraga school was a better choice because S. would be able to attend school with her fiancé’s daughter as well as the child she was expecting with her fiancé (who would be S.’s half-sibling). In addition, she contended that the Moraga school was more highly rated than the Pleasant Hill school. In his own declaration, Gary asserted that the Pleasant Hill school was preferable because, as a result of its location between the parties’ respective residences, S. would spend less time in the car. He also contended that the Pleasant Hill school had a strong reputation and S. would attend school there with other children from his community. Andrea’s declarations also presented evidence of allegedly abusive communications she had received from Gary. One exhibit she submitted contained text messages that he allegedly sent to her and the mediator that were laced with obscenities and, among other things, appeared to refer to Andrea as a “mentally ill[,] racist abuser.” Andrea asserted that Gary’s conduct demonstrated that he was motivated by anger and a desire for control rather than their son’s best interests.