Wagner v. Wagner CA3

Filed 4/25/23 Wagner v. Wagner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

JENNIFER WAGNER,

Plaintiff and Appellant, C096753

v. (Super. Ct. No. 189454)

KEVIN WAGNER,

Defendant and Respondent.

Jennifer Wagner (mother) appeals from a family court order increasing the parenting time for Kevin Wagner (father) with the minor children. The increase in parenting time amounted to a change in physical custody, giving mother and father joint physical custody where mother previously had sole physical custody. Mother contends the family court modified a final custody order without finding changed circumstances, and changed physical custody of the children without notice. Finding no error, we will affirm the family court order.

1

BACKGROUND In November 2018, the family court issued an order that, among other things, awarded mother sole physical custody and the parties joint legal custody of their children. Among other things, the family court ordered father to complete parenting classes and an anger management course before filing a motion for modification. The family court enjoined both parents from inflicting physical discipline on the children. After father completed the required courses, he filed a motion to modify the custody order. On October 1, 2019, the family court found father demonstrated a significant change in circumstances and increased his parenting time pursuant to the best interests of the children. Mother’s counsel prepared an order after hearing and filed it on December 3, 2019. On December 23, 2019, after one of the children reported that father spanked her, the family court issued a temporary order suspending father’s overnights. The family court set the matter for further hearing on January 17, 2020. A subsequent June 11, 2020 judgment of dissolution awarded mother sole physical custody of the children, with joint legal custody to father and mother. The judgment provided that the operative custody order and parenting schedule was a January 17, 2020 interim order that was subject to modification after further hearing. On December 1, 2020, Dr. Robert L. Suiter, Ph.D., Psy.D., issued his Evidence Code section 730 report and custody evaluation (the custody evaluation), following a psychological assessment of the parties and their children. On February 8, 2021, the parties appeared before the family court on mother’s motion to modify custody and visitation. After the hearing, mother continued to have sole physical custody of the children and the parties continued to share joint legal custody. The family court outlined a parenting schedule for father and permitted father to have assistance from family members during his parenting time. There continued to be