IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
Filed 12 Mar 2003
Number B157977
(Super. Ct. No. BD 343702)
CERTIFIED FOR PUBLICATION
106 Cal.App.4th 129
In re the Marriage of: |
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AHARON ABARGIL and MICHAL |
ULTMAN ABARGIL. |
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AHARON ABARGIL, |
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Appellant, |
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v. |
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MICHAL ULTMAN ABARGIL, |
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Respondent. |
APPEAL from a judgment of the Superior Court of Los Angeles
County. John H. Sandoz, Judge. Remanded.
Leslie Ellen Shear for Appellant.
Honey Kessler Amado for Respondent.
Appellant Aharon Abargil appeals from the judgment allowing
Michal Ultman Abargil to move to Israel with their five year
old son, Yuval. After review, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
001 Aharon Abargil and his former wife, Michal Abargil,
are Israeli citizens. Aharon moved to the United States in
the 1980’s and Michal arrived in 1992. Both came to this
country on tourist visas, which each of them violated by
overstaying. Aharon has two applications for permanent
residency pending with the federal government and may remain
in this country while they are pending; we shall discuss
the implications of Michal’s visa violation shortly.
002 Aharon and Michal married in 1994. In November 1997,
their son, Yuval, was born. For the first few months after
Yuval’s birth, Michal took care of him with her mother’s
help while continuing to run her ceramics business.
Eventually finding it too hard, however, to balance caring
for Yuval and owning her business, she closed the shop when
Yuval was about one year old and became a stay-at-home mom.
003 In her role as Yuval’s primary caretaker, Michal was
a sensitive and engaging mother. She also assumed primary
responsibility for tending to his medical needs, of which he
had more than is usual because he suffered an esophageal
reflux condition that eventually required surgery to
correct. Aharon, who worked full time as a self-employed
electrician, was on the other hand less involved in Yuval’s
care, although it is undisputed he loves his son very much.
Aharon’s time with Yuval was limited to evenings and
weekends and when not otherwise working, as for example,
when he occasionally took him to school.
004 When Yuval was about two-and-a-half years old, Michal
returned to work as a freelance graphic designer. She
continued, however, to shoulder primary responsibility for
Yuval’s care. For example, only she visited his prospective
day care and preschools, and only she volunteered her time
at his preschool.
005 Aharon and Michal separated in March 2000. Yuval
thereafter spent most of his time with Michal, but stayed
with Aharon one or two nights a week and every other
weekend. When Yuval was three, Michal took him to Israel
with Aharon’s consent to nurse Michal’s dying mother. In
April 2001, while Michal and Yuval were in Israel, Aharon
filed for divorce. When Michal attempted to return to the
United States after her mother’s death, American immigration
officials denied her a reentry visa because of her earlier
tourist visa violation. Moreover, as an additional
sanction, officials barred her from reentering the United
States for 10 years, a sanction they temporarily stayed,
however, solely to permit her to return to California to
litigate custody of Yuval.
006 Following Michal’s temporary return to the United
States, a five-day custody trial ensued in which Aharon
sought to prevent Yuval’s relocation to Israel with Michal.
At the end of the trial, the court found Yuval’s remaining
with his mother served his best interests for several
reasons. First, she had been his primary caretaker his
entire life. Second, she was more likely than Aharon to
facilitate contact between Aharon and their son than if the
roles were reversed and Aharon had custody and Michal had
only visitation rights. The court therefore issued a
relocation order on March 18, 2002, permitting Michal to
take Yuval to Israel.
087 Michal and Yuval did not immediately leave for
Israel, however, and on April 10, 2002, Aharon moved to
reopen the custody proceedings. He argued conditions in
Israel had deteriorated since the court’s March 18 order to
the point of constituting a change in circumstances. He
pointed to the escalation of violence in Israel, marked by
suicide bombers spilling from the West Bank and Gaza into
Israel proper to target Israeli civilians. He also cited
the issuance of travel advisories by the United States
government warning Americans to defer travel to Israel and
cautioning those Americans remaining there to exercise
special care, particularly by avoiding crowded public areas.
As further evidence of the danger of living in Israel, he
noted that the University of California had recalled all of
its students studying there.
008 The court denied Aharon’s motion to reopen to receive
evidence of recent events in Israel. It observed that the
parties had explored during their trial the unrest and
violence in Israel and Aharon’s new evidence did not require
any change in the analysis of those matters.
009 Aharon appealed from the relocation order permitting
Michal to take Yuval to Israel and from the denial of his
motion to reopen to receive new evidence. We stayed the
relocation order pending the trial court’s filing of its
statement of decision, the entry of final judgment, and our
disposition of the appeal. On August 7, 2002, the trial
court filed its statement of decision and entered its final
judgment.
STANDARD OF REVIEW
010 We review for abuse of discretion relocation orders
that permit a custodial parent to move away with a child.
(_M_o_n_t_e_n_e_g_r_o_ _v_._ _D_i_a_z (2001) 26 Cal.4th 249, 255; _I_n_ _r_e
_L_a_s_i_c_h (2002) 99 Cal.App.4th 702, 714.) As Yuval’s
custodial parent, Michal has the presumptive right to move
and take Yuval with her. (_I_n_ _r_e_ _M_a_r_r_i_a_g_e_ _o_f_ _B_u_r_g_e_s_s (1996)
13 Cal.4th 25, 32.) As the non-custodial parent with
visitation rights, Aharon carries the burden of proving
Michal’s decision to move is not in Yuval’s best interests;
the burden is not on Michal to prove the contrary. (_I_n_ _r_e
_M_a_r_r_i_a_g_e_ _o_f_ _L_a_s_i_c_h, supra, 99 Cal.App.4th at p. 711.)
DISCUSSION
Yuval’s Best Interests
011 Aharon contends moving to Israel is not in Yuval’s
best interests. In support he cites _I_n_ _r_e_ _M_a_r_r_i_a_g_e_ _o_f
_C_o_n_d_o_n (1998) 62 Cal.App.4th 533 (_C_o_n_d_o_n), which analyzed a
child’s best interests when a parent takes a child from the
United States. In cases involving international relocation,
the child’s best interests at a minimum require, first,
continuing contact between the child and the parent
remaining in this country, and, second, guaranteed
enforceability of the California custody order in the
foreign nation. (Id. at p. 547.) Aharon contends the move
away order here fails _C_o_n_d_o_n_’_s minimal requirements, and
thus is not in Yuval’s best interests.
012 We disagree because there was substantial evidence to
the contrary. The court found Michal respected Yuval’s
relationship with Aharon and was likely to foster continuing
contact between them. As an example of her efforts to
nurture their father-son relationship, Michal helped Yuval
make artwork for Aharon. In addition, before they went to
Israel to care for Michal’s dying mother, Michal left a
cache of small gifts and photographs with Aharon for him to
mail to Yuval while they were away. Finally, Michal
permitted Aharon’s relatives to visit Yuval during their
stay in Israel.
013 Aharon, in contrast, did not respect Michal’s
parenting skills and disparaged her care of him. Aharon
testified, “She can take care of him, but . . . only if it
fits her needs. For her, it’s more of a need to have
Yuval, than for Yuval a need to have her. . . . Michal is a
very selfish person. She doesn’t care about Yuval . . . as
much as she cares about herself.” To support his
characterization of Michal as a lesser parent than he,
Aharon relies extensively on a report by a court-appointed
psychologist, Dr. Bruce Harshman, who concluded Aharon was
more likely than Michal to ensure contact between Yuval and
the other parent. The court gave little weight, however, to
Dr. Harshman’s findings, viewing them as one-sided because
he did not consider the evidence favoring Michal. As such,
Dr. Harshman’s findings are not dispositive, but merely
create a conflict in the evidence which by itself does not
undermine the court’s judgment. (See, e.g., _J_o_r_d_a_n_ _v_._ _C_i_t_y
_o_f_ _S_a_n_t_a_ _B_a_r_b_a_r_a (1996) 46 Cal.App.4th 1245, 1254-1255
[reviewing court may not resolve conflicts in the evidence
but must instead accept trial court’s findings when
supported by substantial evidence].)
014 Aharon contends the court also erred because Yuval’s
relocation to Israel will effectively end their
relationship. He notes that Michal’s visa violation means
she cannot bring Yuval to this country for ten years. At
the same time, he cannot leave the United States for any
extended time during the pendency of his application for
permanent residency without jeopardizing his right to
continue living here. He asserts in particular that he
cannot visit Israel because Israeli law authorizes his
indefinite detention if Michal were to seek to override the
California custody order by initiating custody proceedings
against him in Israeli courts.
015 The hurdles to meaningful contact that Aharon
identifies cut both ways because they exist whichever
direction one goes. For example, if Yuval remained in the
United States with Aharon, it would be equally, if not more,
difficult for Michal to see him because she cannot legally
enter this country. At the same time, Aharon’s uncertain
legal status in the United States would make it risky for
him to take Yuval to some place outside the United States to
visit Michal. Solomon of the Old Testament had it easy. By
threatening to cut a baby in half, he flushed out a child’s
true parent. Here, in contrast, we have two loving parents,
each of whom wants Yuval, but it may sadly be only one of
them who will see him with any certainty.
016 In addition to finding Michal would keep Aharon and
Yuval in contact, the court took steps to ensure its
judgment would be enforceable in Israel, thus satisfying
_C_o_n_d_o_n_’_s second minimal requirement for an international
relocation order. For example, the court ordered Michal to
register the judgment there, directing that “Upon her return
to Israel, [Michal] shall register this California Judgment
. . . in the Israeli courts to give this California Judgment
the full force and effect of an Israeli judgment. Further,
[Michal] shall take whatever additional steps are necessary
to assure implementation of this California judgment re
custody in Israel.” It also ordered her to file with
Israeli courts her stipulation consenting to the judgment
and California’s continuing jurisdiction over her and Yuval.
(See _M_u_c_k_l_e_ _v_._ _S_u_p_e_r_i_o_r_ _C_o_u_r_t (2002) 102 Cal.App.4th 218,
226 [by consenting to personal jurisdiction, party submitted
to California’s long-arm jurisdiction].) Moreover, the
judgment had teeth to compel Michal’s adherence because it
required her to post a bond or other surety to ensure her
compliance. (Accord _C_o_n_d_o_n, supra, 62 Cal.App.4th at p. 562
[court may fashion creative mechanisms such as bond and cut
off of financial support to ensure overseas compliance].)
017 Aharon claims California’s custody orders are
nullities in foreign lands, making registration of the
judgment in Israel meaningless. Because he makes his claim
without citation to any authority, he has abandoned the
issue. (_P_e_o_p_l_e_ _e_x_ _r_e_l_._ _2_0_t_h_ _C_e_n_t_u_r_y_ _I_n_s_._ _C_o_._ _v_._ _B_u_i_l_d_i_n_g
_P_e_r_m_i_t_ _C_o_n_s_u_l_t_a_n_t_s_,_ _I_n_c_. (2000) 86 Cal.App.4th 280, 284.)
In any event, Michal’s expert on Israeli law suggested
otherwise. That expert noted Israeli law permits parties to
agree to be bound by a foreign judgment and then file their
agreement with an Israeli court as an Israeli judgment. By
winning Michal’s consent to California’s continuing
jurisdiction, Aharon has precisely such an agreement that
presumably an Israeli court would adopt as its judgment.
Statement of Decision
018 Aharon asserts that the court intended its March 18
order to be a final order. Because he had requested a
statement of decision, he argues the court was obligated to
issue its statement before issuing the order. As the order
issued without a statement, Aharon contends it was void,
requiring its automatic reversal. The court’s later
issuance of a statement in August, he adds, did not save the
order, a proposition he supports by quoting the following
language from _I_n_ _r_e_ _M_a_r_r_i_a_g_e_ _o_f_ _D_a_v_i_s (1983) 141 Cal.App.3d
71: ” `A judgment entered without findings where findings
are required is a nullity . . .’ [citation], and findings
signed and filed after entry of such a judgment cannot
resurrect it.” (Id. at p. 77.)
019 The factual predicate of Aharon’s argument fails him:
the March 18 order was not a final order. We so held when
we stayed the order after Aharon filed a notice of appeal
from it. In doing so, we noted the order was not appealable
and informed the parties we would await the trial court’s
entry of its statement of decision and final judgment, which
would be appealable. In August, the trial court honored our
directive by filing a statement of decision and entering its
final judgment, albeit on the same day without any
indication of which was filed first. Aharon does not show,
however, that if we were to vacate the judgment and remand
with directions that the trial court file its papers in the
sequence Aharon urges, that the trial court would change its
statement of decision or final judgment. He thus fails to
show reversible error.
Motion to Modify March 18 Order
020 Following a spate of suicide bombings in Israel in
the weeks after the court issued its March 18 order, Aharon
moved on April 10, 2002, to modify the order. (See _G_l_a_d_e_ _v_.
_G_l_a_d_e (1995) 38 Cal.App.4th 1441, 1457 [motion to reopen or
reconsider previous order requires new or different facts,
circumstances, or law that for good reason were previously
unavailable to party]; Code Civ. Proc., 657, subd. (4)
[newly discovered evidence entitling party to new trial must
have been unavailable even with the exercise of reasonable
diligence].) Citing the increased violence, appellant urged
the court to find Israel was too dangerous for it to be in
Yuval’s best interests to move there. The court granted
Aharon’s request that it hear the motion on shortened notice
and set the hearing for six days later on April 16, 2002.
The court gave Michal until April 15 to file her opposition.
021 At the hearing, the court denied the motion to modify
because it found nothing new in Aharon’s evidence of
escalating violence in Israel, stating “Everything that was
argued here was presented at the time of trial in one form
or another, the entire situation in Israel, the incursions
that were going on, the suicide bombings that were going on,
all of those issues were raised.” Moreover, the court found
the Israeli town of Ramat Gan, or its neighboring city
Givatayim, north of Tel Aviv where Michal intended to move
appeared to be relatively safe from terrorist attacks, as
the travel advisories-which did not ban travel outright but
merely warned against it-applied instead to Jerusalem, Gaza,
and the West Bank.
022 We conclude the court ruled correctly. The question
before the court was the danger, if any, to Yuval in moving
to Israel. We would be na‹ve to believe-and the trial court
did not conclude-there is no danger in living in Israel,
only that the benefits to Yuval of growing up there under
his mother’s care outweighed the risks. We need not be
drawn into the thicket of international diplomacy urged on
us by Aharon’s characterization of Israel as a war zone,
because one must bear in mind that few, if any places, in
the world are safe from all danger, be it political, ethnic,
religious, natural, or random. The proper inquiry is
whether Yuval’s new life in Ramat Gan or Givatayim will be
rich enough, loving enough, fulfilling enough, and secure
enough for it to be his best choice in a world often of no
perfect choices. The trial court found it was, and as
substantial evidence supported its ruling, we see no basis
for reversing it.
023 Aharon also moved to reopen the issue of
enforceability of California custody orders in Israel. In
support, he cited two experts in Israeli law. He makes no
showing, however, of why he could not have presented such
evidence at trial. Hence, his “new” expert evidence did not
support a motion for modification because such evidence must
have been previously unavailable even in the exercise of
reasonable diligence. (_G_l_a_d_e_ _v_._ _G_l_a_d_e, supra, 38
Cal.App.4th at p. 1457; Code Civ. Proc., 657, subd. (4).)
024 Finally, Aharon appears to contend the court’s
expeditious handling of his motion to modify the March 18
order gave short shrift to his and Yuval’s fundamental
interest in their parent-child relationship. According to
him a lengthier process was required because so much was at
stake. He particularly complains that the court overruled
all of his objections and motions to strike Michal’s
evidence and denied his requests that the court take
judicial notice of the travel advisories. FN01 He also
complains that the court did not read the reply he filed the
morning of the hearing.
025 Aharon’s complaint about the expedited proceedings
ignores that the court proceeded on shortened notice at his
request. In addition, he offers no argument supported by the
record and authorities showing that the expedited
proceedings were error. Instead, he cites authorities
discussing the importance and protected status of the
parent-child relationship, something no one disputes, but
which also fail to show the court improperly denied his
motion to modify the March 18 order.
Remand is Appropriate
026 Although Aharon has not shown error by the trial
court, we conclude the interests of justice require remand
to ensure Aharon’s relationship with Yuval receives the full
measure of _C_o_n_d_o_n_’_s protections. Upon remand, the trial
court shall modify its judgment to ensure the following:
027 First, it shall require Michal to post a substantial
financial bond in a specific amount sufficient to ensure her
compliance with the court’s judgment and orders. (_C_o_n_d_o_n,
supra, 62 Cal.App.4th at p. 548.)
028 Second, it shall prohibit Michal, who has consented
to California’s continuing jurisdiction over Yuval, from
attempting to modify the judgment except upon application to
a California state court. (Id. at pp. 535-536, 562.) Any
attempt by Michal to modify the judgment by application to
any non-California court may, in the trial court’s
discretion and absent a showing of good cause, be deemed a
violation of the court’s judgment and grounds for forfeiture
of the bond and other sanctions that the trial court may
deem appropriate. (Id. at p. 562.)
029 Finally, Michal must register the trial court’s
judgment with the proper Israeli authorities before she may
take Yuval to Israel. Until the judgment is registered, the
stay barring Yuval’s departure from California shall remain
in place. Upon entry of the judgment in Israel, and upon a
further finding by the trial court that Michal is in full
compliance with the court’s judgment, the stay shall lift
and she may take Yuval to Israel.
DISPOSITION
030 The matter is remanded for further proceedings as
described in this opinion’s section entitled “Remand is
Appropriate.” Each side to bear its own costs on appeal.
CERTIFIED FOR PUBLICATION
RUBIN, J.
We concur:
COOPER, P.J.
BOLAND, J.
Footnotes
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01 Aharon twice requested that the court take judicial
notice of travel advisories. The first time was when
he filed his motion to modify the March 18 order.
The court denied that request because Aharon did not
comply with the statutory requirements for requesting
judicial notice. The second request for judicial
notice came the morning of the hearing, when Aharon
submitted an updated State Department travel
advisory, but the court denied the request because it
was too late. Assuming for argument’s sake that the
court should have granted Aharon’s requests for
judicial notice, the court’s error was harmless. The
parties had litigated, and the court knew, the risks
of moving to Israel. The travel advisories added
little, if anything, to what anyone who followed the
court proceedings (and current events) already knew
about the unrest in Israel. In any event, as we have
noted, the advisories did not, as Aharon contends,
ban travel to Israel; instead, they simply cautioned
Americans against taking unnecessary trips to Israel
and warned that they pay special attention to their
afety while there.