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Marriage of Leitke - McKeon

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					                                                                  Page 1
                   2001 Cal. App. Unpub. LEXIS 459, *




        In re Marriage of MARLENE and THOMAS LEITKE. MARLENE
        PELLEGRINO, Appellant, v. THOMAS LEITKE, Respondent.

                                G027471

          COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE
                      DISTRICT, DIVISION THREE

                  2001 Cal. App. Unpub. LEXIS 459


                        December 24, 2001, Filed

NOTICE:       [*1]      NOT TO BE    OPINION
PUBLISHED. CALIFORNIA RULES OF          Some cases have no satisfactory
COURT, RULE 977(a), PROHIBITS        resolution. Here, the superior
COURTS AND PARTIES FROM CITING OR    court granted a father sole
RELYING ON OPINIONS NOT CERTIFIED    physical custody of the couple's
FOR PUBLICATION OR ORDERED PUB-      three children and permitted him
LISHED, EXCEPT AS SPECIFIED BY       to relocate to Michigan, even
RULE 977(B). THIS OPINION HAS NOT    after he had told the child
BEEN CERTIFIED FOR PUBLICATION OR    custody evaluator that, "I'll
ORDERED PUBLISHED FOR PURPOSES OF    tell the court I'll do what it
RULE 977.                            wants regarding the children, but
                                     when I am in Michigan . . . I'll
PRIOR HISTORY:     Appeal from a
                                     do what I want! Let them come after
judgment of the Superior Court of    me. . . . I'll be in Michigan . .
Orange County, Daniel T. Brice,      . my family will protect me."
Judge. Super. Ct. Nos. 96D005821
& 96D006435.                            Because the only reasonable
                                     reading of the record establishes
DISPOSITION:       Affirmed in       the [*2] father has frustrated,
part, and reversed in part and       and will continue to discourage,
remanded.                            his former wife's relationship
                                     with the children, we reverse the
COUNSEL: Merritt L. McKeon for       award of custody of the couple's
Appellant.                           daughter to the father should he
                                     move away (no effective relief can
No appearance for Respondent.        be   provided     concerning    the
                                     couple's sons, whose relationship
JUDGES: BEDSWORTH, J. WE CONCUR:     with their mother was too strained
RYLAARSDAM, ACTING P.J., O'LEARY,    at the time of trial). In all other
J.                                   respects, the judgment is af-
                                     firmed.
OPINION BY: BEDSWORTH                     I
                                                                  Page 2
                    2001 Cal. App. Unpub. LEXIS 459, *



   The children's mother, ap-            The burden of supplying an
pellant    Marlene     Pellegrino,    adequate record is on the ap-
designated certain items from the     pellant. ( Rossiter v. Benoit
superior court file to be included    (1979) 88 Cal. App. 3d 706, 712,
in the clerk's transcript. A          152 Cal. Rptr. 65; 9 Witkin, Cal.
transcript was prepared at no cost    Procedure (4th ed. 1996) Appeal,
to her based on her declaration of    § 518, p. 562.) Ordinarily, the
indigence.      We    subsequently    failure to provide a complete
granted her motion to augment the     reporter's transcript would doom
record with a partial reporter's      a fact-intensive appellate claim.
transcript she obtained directly         However, the children's fa-
from the reporter. The transcript
                                      ther, Thomas Leitke, has failed to
includes the apparently complete      file a respondent's brief. Pur-
testimony    of    court-appointed    suant to California Rules of
evaluator Dr. Donald Smith, of        Court, rule [*4]      17(b), this
therapist Dr. Marjorie Mitchell,      court "may accept as true the
of therapist Mr. Thomas Bell, as      statement of facts in the ap-
well as a record of proceedings       pellant's opening brief and,
from December 16, 1999, where the     unless the appellant requests
custody orders were made, and from    oral argument, may submit the case
April 13, 2000, where the court       for decision on the record and on
declined to reconsider its ruling     the appellant's opening brief."
and signed the judgment. Pelle-       Leitke has also failed to de-
grino has also supplied a partial     signate or augment with any ad-
transcript of the testimony [*3]      ditional record.
of Dr. Gerri Olin, the special
master who managed parenting             Under these unusual circums-
issues for portions of 1998. 1        tances, the facts are sufficient
Also, while it appears both           to support Pellegrino's primary
parties testified, we have no         thesis. Thus, the absence of a
reporter's transcript of their        more complete record is not fatal
testimony, nor that of any other      to her appeal.
non-professional witness.                II
    1   This apparently violates         Pellegrino complains the court
    at least the spirit of the        disregarded overwhelming evi-
    rule that "if any portion of      dence that her husband actively
    the testimony of a witness is     worked to turn the couple's sons,
    designated by either party        Thomas (born in May 1985) and
    for inclusion in the re-          Henry (July 1989), against her.
    porter's   transcript,    the     There is no question the boys
    whole of his or her testimony     detest and want nothing to do with
    shall be included unless the      their mother. She had virtually no
    parties   otherwise    stipu-     contact with them after the
    late." (Cal. Rules of Court,      parents separated and filed to
    rule 4(b).)                       dissolve their marriage in June of
                                      1996. Reunification therapy (with
                                                                    Page 3
                     2001 Cal. App. Unpub. LEXIS 459, *



Mitchell   and   later   with   Bell)   severe cases of alienation she had
failed.                                 even seen. Other evidence in the
                                        record, in the form [*6]        of
  The court's judgment does not
                                        shockingly  3
                                                      inappropriate let-
provide for any visitation be-
                                        ters/notes by Leitke to the boys,
tween the boys and their mother.
                                        statements Leitke made in his own
Pellegrino suggests this portion
                                        declarations, his comments to the
of the ruling was error, but we
                                        psychologists and others, the
cannot fault the trial court's
                                        boys' statements concerning their
conclusion that visitation, at
                                        mother, and results of psycho-
least at the time of trial, would
                                        logical testing, supports Pel-
[*5] have been detrimental. The
                                        legrino's contention that her
boys could not stand to be in the
                                        former husband has vilified and
same room with her. They had run
                                        denigrated her in front of the
away once and threatened to do so
                                        children. The boys' unbridled
again if required to see her; the
                                        animosity is far out of balance
experts agreed forced contact
                                        with    Pellegrino's     reported
with Pellegrino would be futile
                                        failings. They have made fan-
and potentially dangerous.
                                        tastic allegations, including
   Also, because various types of       claims of witchcraft and satanic
counseling and therapy had been         worship. An inference their fa-
tried for three years to no avail,      ther has influenced these boys to
we cannot say the court abused its      despise their mother is simply
discretion by failing to order          irresistible. 4
additional counseling for the
boys or Leitke, even had such been          2   The confidential custody
timely requested. Moreover, apart           evaluations were admitted as
from their rabid disdain for their          exhibits and we have reviewed
mother, the boys were apparently            them in the superior court
doing well in other facets of               file. (Cal. Rules of Court,
their lives, e.g., academics and            rule 10(d).)
extra-curricular activities.
  But the custody of Rachael                3   This is a word we rarely
(born in June 1992) is another              have occasion to use. We
matter.   Both   court-appointed            employ it here in lieu of
evaluators (Dr. Donald Smith, and           listing the truly horrific
his predecessor Dr. Alan Liber-             things Leitke said.
man) opined Leitke was primarily
responsible for the boys' unna-             4   Although Leitke has amply
tural hostility regarding their             fertilized them, Pellegrino
mother and had adopted his at-              undoubtedly sowed the seeds
titudes concerning her. 2 The               of her sons' hatred. The boys
reunification therapist who later           were apparently the first to
became   Rachael's     individual           discover   evidence   of   an
therapist, Marjorie Mitchell,               extramarital affair, and she
felt this was one of the most               ultimately moved in with
                                            Jerry Parker. She grew and
                                                                  Page 4
                    2001 Cal. App. Unpub. LEXIS 459, *



    smoked marijuana, but denied      looked forward to vaccinations so
    she had a problem until De-       that she could cry about her
    cember 1997, when she was         mother without her father know-
    forced to admit to the drug       ing. There was also evidence that
    use. Leitke was apparently        the boys, especially Thomas,
    more   involved    in   child     vilified their mom in front of
    rearing before the split than     Rachel. Rachael did not want to
    she was. She may have ag-         move. This evidence was unchal-
    gravated the boys after the       lenged (as noted, Leitke has not
    split by, among other things,     filed a brief, which allows us to
    withholding their posses-         accept as true facts stated in
    sions in an attempt to secure     Pellegrino's brief). Even though
    their attention if not their      she loved [*8] her brothers, a
    affections. Henry complained      small child should not be forced
    she had dropped something on      to live in such a bizarre,
    his foot and dragged him          stifling and emotionally un-
    across a parking lot. He said     healthy environment.
    he could not trust her. Bell         Although there was no evidence
    spoke of a "power struggle"       Rachael had been alienated from
    between Henry and his mother.     her mother as of December 1999,
    [*7]    Drs. Smith and Mit-       unlike the boys she had lived with
chell both opined Pellegrino          her mother until December 1997,
should have custody of Rachael.       when Pellegrino confessed mari-
These experts believed that Ra-       juana use. She had also been
chael was at risk of emotional        having weekly visitation. That,
damage akin to what had happened      of course, would end once Leitke
to her brothers.                      moved to Michigan.
  The    trial   court   and   the       Bell's and Olin's testimony
children's lawyer relied on the       does not persuade us that the
fact of a close sibling bond in       court    properly     disregarded
support of granting custody to        Smith's recommendation concern-
Leitke. Although it is generally      ing Rachael. Olin only saw the
in the best interest of siblings      parents four times, the boys but
to remain together ( In re Mar-       once, and never witnessed any of
riage of Williams (2001) 88           the children with their mother.
Cal.App.4th 808), circumstances       She admittedly did not enforce an
compelled a different result          order requiring Leitke to attend
here. Rachael reported that her       certain parenting classes (Kids
father hated her mother and did       First).
not want her to see Pellegrino. He       Bell, a marriage and family
wanted to get away from the           counselor appointed by Olin, had
courts. He said Pellegrino was a      no opinion concerning Rachael's
witch. Rachael was afraid to even     best interests. His only re-
mention her mother's name in his      sponsibility was to facilitate a
house. He tore up pictures that       relationship between Pellegrino
included    Pellegrino.    Rachael
                                                                   Page 5
                     2001 Cal. App. Unpub. LEXIS 459, *



and Henry. He had met with Henry          As noted in In re Marriage of
only four times. He had minimal        Burgess, supra, 13 Cal.4th 25,
contact with Rachael. He admitted      "the 'necessity' of relocating
he had not evaluated either parent     frequently has little, if any,
and had no personal knowledge          substantive bearing on the sui-
whether either parent was "in-         tability of a parent to retain the
nocent." While he felt Henry [*9]      role of a custodial parent. A
had his "own feelings and beliefs      parent who has been the primary
independently of his father" by        caretaker for minor children is
the time of the trial, that did not    ordinarily no less capable of
answer    the   question   whether     maintaining the responsibilities
Leitke had influenced Henry at an      and obligations of parenting
earlier point in time. Signifi-        simply by virtue of a reasonable
cantly, while Bell did not think       decision to change his or her
Leitke had engaged in a "syste-        geographical location." ( Id. at
matic campaign of denigration" of      p. 36, fn. omitted.) However, "an
Pellegrino, he candidly agreed         obvious exception is a custodial
that Leitke had probably con-          parent's decision to relocate
tributed to Henry's feelings           simply to frustrate the noncus-
about his mother, i.e., that based     todial parent's contact with the
on remarks "Leitke had made to         minor children. 'Conduct by a
[Bell], I can't imagine that the       custodial parent designed to
kids haven't heard them from time      frustrate visitation and commu-
to time. [P] He's a fairly out-        nication may be grounds for
spoken man and, umm, I'm certain       changing custody.' [Citations.]
that the kids have heard it."          Even if the custodial parent is
                                       otherwise 'fit,' such bad faith
   The trial court has wide
                                       conduct may be relevant to a
discretion to choose a parenting
                                       determination of what permanent
plan. ( In re Marriage of Burgess
                                       custody arrangement is in the
(1996) 13 Cal.4th 25, 31, 913 P.2d
                                       minor children's best interest.
473.) But the court abuses its
                                       [Citation.]" ( Id. at p. 36, fn.
discretion where the order in
                                       6.)
question does not reasonably
advance the best interest of the          In the absence of trial court
child. ( Id. at p. 32; see also In     findings to the contrary (the
re Executive Life Ins. Co. (1995)      court [*11] essentially avoided
32 Cal.App.4th 344, 358 [appel-        credibility calls in its state-
late court, under abuse of dis-        ment of decision and in other oral
cretion     standard,      employs     pronouncements),    we   have   no
"equivalent of the substantial         trouble concluding that Leitke
evidence test by accepting the         was moving to Michigan to distance
trial   court's   resolution    of     himself and the children from
credibility    and    conflicting      Pellegrino.    Even    under   the
substantial [*10] evidence, and        watchful eyes of others, Leitke
its choice of possible reasonable      had either frustrated or grud-
inferences"].)                         gingly participated in reunifi-
                                                                   Page 6
                     2001 Cal. App. Unpub. LEXIS 459, *



cation efforts. It was not enough         The opposite is true here, of
that Leitke should have been, as       course. Leitke has oozed hos-
Bell testified, not "opposed to        tility for his former wife from
the kids visiting their mother and     every pore, as have the boys, who
that he would leave the decision       mimic his "toxic" anger. The court
up to them and support that de-        did not expressly reject this
cision." He should have actively       evidence. We have reviewed the
encouraged contact and discou-         record in light of Leitke's
raged their irrational beliefs.        failure to respond to the appeal
There is virtually no evidence he      and conclude that while he is free
did so.                                to relocate, he should not be
                                       allowed to use relocation to
   Of course, the final nail in the
                                       frustrate    Pellegrino's    rela-
coffin as far as we are concerned
                                       tionship with her daughter.
was Leitke's statement to Smith
that, "I'll tell the court I'll do        It is the public policy of this
what it wants regarding the            state "to assure that children
children, but when I am in             have frequent and continuing
Michigan . . . I'll do what I want!    contact with both parents after
Let them come after me. . . . I'll     the parents have separated or
be in Michigan . . . my family will    [*13] dissolved their marriage,
protect me." Even if the comment       or ended their relationship, and
could have been explained or           to encourage parents to share the
minimized (again, the parties'         rights and responsibilities of
testimony has not been provided to     child rearing in order to effect
us), it aptly summarizes Leitke's      this policy, except where the
approach to custody issues and his     contact would not be in the best
utter contempt for the rule of         interest of the child, as provided
law.     [*12]    His failure to       in Section 3011." (Fam. Code, §
participate in this appeal is at       3020, subd. (b); see also § 3011
least some indication he meant         ["In making a determination of the
what he said.                          best interest of the child . . .
                                       the court shall, among any other
  In In re Marriage of Whealon
                                       factors it finds relevant, con-
(1997) 53 Cal.App.4th 132, a panel
                                       sider all of the following: [P]
of this court refused to rely on
                                       (a) The health, safety, and
"bits and pieces of evidence" that
                                       welfare of the child."].) The
arguably showed the mother was
                                       Family Law Act also declares that
inclined to frustrate a father's
                                       when weighing how parental cus-
relationship with his son. But
                                       tody should be arranged in the
there, the trial court "squarely
                                       child's "best interest," the
rejected" the father's argument,
                                       court must consider "which parent
and found the mother had "'avoided
                                       is more likely to allow the child
allowing her feelings [of hos-
                                       frequent and continuing contact
tility toward (the father)] to
negatively affect the minor's          with the noncustodial parent . .
                                       . ." (Fam. Code, § 3040, subd.
relationship with [his father].'"
                                       (a)(1).)
( Id. at p. 143.)
                                                                  Page 7
                    2001 Cal. App. Unpub. LEXIS 459, *



   Leitke did not believe his              cumstances in determining
children needed their mother and           Rachael's best interests.
he demonstrated he was unlikely to         [*15]   III
facilitate a healthy relationship
between   Pellegrino     and   her       Pellegrino asserts the court
children. These compelling cir-       should have ordered Leitke to
cumstances dictate Rachael should     promote contact between her and
not have been placed in the           her sons "by assuring that the
primary physical custody of her       gifts and letters [she] sends . .
father if he relocated [*14] to       . will be given to them." We
Michigan. It was too likely that      decline to interfere as there was
once her mother was out of sight,     no specific showing that Leitke
Rachael would succumb to the          had waylaid these items. Pelle-
influence of her father and           grino    apparently     mistakenly
brothers.                             thought she was prevented by the
                                      December 1999 order from con-
   Unfortunately, Pellegrino did      tacting the boys. The court made
not seek writ relief to stay the      it clear that no order prevents
trial court's order, and Leitke       Pellegrino from attempting to
and the children presumably moved     visit or otherwise contact her
in the winter or spring of 2000.      sons. Leitke should assist in
We thus do not order that custody     facilitating     a    relationship
of    Rachael    be   immediately     however, and should it appear on
transferred to Pellegrino. Ra-        remand that he has subsequently
ther, the custody order as to
                                      interfered    with    Pellegrino's
Rachael will be reversed and the      attempts to bridge the gap with
matter remanded for reconside-        her sons, the court should respond
ration in light of any new cir-       appropriately.
cumstances that may have arisen.
If Leitke chooses to remain in           IV
Michigan, the trial court may            The children's lawyer, Boo
place Rachael in his primary          Giuffre, was awarded $ 25,000 in
physical custody only on a showing    attorney fees, $ 20,000 from
of new or different facts that        Leitke and $ 5,000 from Pellegrino
support that placement, and the       (at $ 100 a month). Because the
court must articulate such cir-       parties indicated they might be
cumstances in a manner that           filing   for    bankruptcy,    the
permits    meaningful   appellate     children's lawyer requested that
review. 5                             her fees be deemed as "additional
                                      child support" under Family Code
    5    If the facts are sig-        section 4062, which provides "the
    nificantly different than         court shall order the following as
    those presented in the brief      additional child support: [P]
    or limited record provided on     [*16] (1) Child care costs re-
    appeal, we do not intend to       lated to employment or to rea-
    foreclose the court's con-        sonably necessary education or
    sideration of these cir-          training for employment skills.
                                                                   Page 8
                     2001 Cal. App. Unpub. LEXIS 459, *



[P] . . . [P] (b)(2) Travel ex-        empowers the court, in a mod-
penses for visitation." Pelle-         ification proceeding such as this
grino objected "in that it was not     one, to award attorney fees to
child support, it was . . . for        'the prevailing party.' This
attorney's fees that were in-          appears to have been the intent of
curred . . . ." The court con-         the trial court before it learned
cluded, "it is necessary and           of Nears's bankruptcy at the
essential to the children . . . and    December hearing. Its subsequent
it is awarded as and for further       written   order,   converting    a
child support."                        common attorney fees award into
                                       'additional child support,' has
  In Boutte v. Nears (1996) 50
                                       no foundation in the Family Code
Cal.App.4th 162, the court held a
                                       and in fact contravenes it, both
trial court has no authority under
                                       in letter and spirit." ( Id. at p.
the Family Law Act to order at-
                                       166, fn. omitted.)
torney fees paid to a spouse's
lawyer as supplemental or addi-           Had these fees been awarded to
tional child support: "Section         either   parent,    Boutte   would
4062 specifies two types of ad-        control, and the award would have
ditional child support: mandatory      to be reversed. The distin-
('the court shall order') addi-        guishing feature of this case,
tional child support for em-           however, is that the fees were
ployment-related child care costs      awarded to     counsel for the
and reasonable uninsured health        children. Attorney fees to mi-
care costs (subd. (a)) and dis-        nor's counsel fall under the
cretionary ('the court may or-         rubric of costs "related to the .
der') additional child support         . . special needs of the children"
for the educational or special         [*18]     (Fam. Code, § 4062,
needs of a child or for travel         italics added) no less than other
expenses for visitation. [Cita-        professional    fees.    We   find
tion.] [P] Section 4062's pro-         nothing prohibiting fees to the
visions for additional child           children's counsel, and therefore
support are exclusive. The court       conclude the court's ruling was
has no discretion to fashion its       proper. Also, it appears the point
own 'add-ons' in the absence of        is not significant in any event as
statutory   [*17]       authority.     the federal courts would not treat
[Citation.] [P] Attorney fees are      this category of debt as dis-
nowhere mentioned in section 4062      chargeable. ( In re Chang (9th
as additional support, whether         Cir. 1998) 163 F.3d 1138 [com-
discretionary or mandatory. Had        pensation for guardian ad litem,
the Legislature intended attorney      neutral   experts,    and   mental
fees to be a form of additional        health professionals in consid-
child support, it could have           eration of child's best interests
easily included them in section        nondischargeable].)
4062. Instead attorney fees are
governed by an entirely different      V
statute, section 3652, which
                                                                   Page 9
                    2001 Cal. App. Unpub. LEXIS 459, *



  Pellegrino      asserts      the    trial court's attention, so we
children's lawyer did not ade-        cannot consider it a ground for
quately represent Rachael's in-       reversal.
terests: "[Rachael] should have          The judgment awarding sole
had her attorney voice her            physical custody of Rachael to her
heartfelt desire to remain with       father and permitting his relo-
her mother, rather than have that     cation with her to Michigan is
attorney stand in solidarity with     reversed, and the matter is re-
two older brothers who had been       manded for reconsideration in
alienated to a degree which is the    light of the views expressed
stuff of mental health case           above. If Leitke chooses to remain
books."
                                      in Michigan, the trial court may
  Family Code section 3150,           place Rachael in his custody only
subdivision (a) provides that "If     on a showing of new or different
the court determines that it would    facts that support that place-
be in the best interest of the        ment, and the court must arti-
minor child, the court may appoint    culate such circumstances in a
private counsel to represent the      manner that permits meaningful
interests of the child in a           appellate review. In all other
custody   or   visitation    [*19]    respects, the judgment is af-
proceeding." (Italics added; see      firmed.
also § 3151 [duties of counsel for       Appellant is entitled to her
child]. )                             costs.
  Rachael's interests may have           BEDSWORTH, J.
differed from those of her
brothers', who are so closely            WE CONCUR:
aligned with their father. But any       RYLAARSDAM, ACTING P.J.
real or potential conflict was
apparently not brought to the            O'LEARY, J.

				
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