Filed 1/2/03 Modified and certified for publication 1/28/03 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) In re the Marriage of MICHELLE and JOSEPH ABRAMS. C040855 MICHELLE ABRAMS, (Super. Ct. No. Respondent, 97FL05222) v. JOSEPH ABRAMS, Appellant. Joseph Abrams appeals from the trial court’s postjudgment custody order permitting Michelle Abrams to move their children from Elk Grove to San Ramon. For simplicity and to avoid confusion, we will refer to Joseph Abrams as “father” and to Michelle Abrams as “mother.” Father contends the court misallocated the burden of proof and erred in awarding mother $5,000 in attorney fees pursuant to Family Code section 271. (Further section references are to the Family Code unless otherwise specified.) Mother disagrees and argues she is entitled to attorney fees on appeal. For reasons that follow, we will affirm the postjudgment custody order, reverse the trial court’s award of attorney fees, 1 deny mother’s request for appellate attorney fees, and remand the matter to the trial court for further proceedings. FACTS AND PROCEDURAL BACKGROUND The parties’ marriage was terminated by a judgment of dissolution on December 30, 1999. The trial court awarded them joint legal custody of their three children, with primary physical custody to mother and specified visitation to father. Thereafter, they reached a mediated stipulation modifying the custody arrangement, the terms of which were adopted by the trial court on March 7, 2001. The order reflects that mother retained physical custody of the children, with substantial visitation by father. The stipulated agreement contains a move-away restriction as follows: “Neither parent shall remove the children from the County of Sacramento, or the State of California, for the purpose of changing the children’s residence, without the written consent of both parties or until further order of the Court.” On June 7, 2001, mother filed a petition for modification of visitation. She wanted to move to San Ramon for job-related reasons and because both her fiancé and her dad, whose health was declining, lived in the San Francisco Bay area. Mother filed the petition because, due to the move-away provision, she needed a court order enabling her to relocate with the children. The matter was referred for mediation. After interviewing the parents and the children, the mediator issued a report stating that the children’s strong preference for staying in the Sacramento area should be considered by the court because they were of sufficient 2 maturity and capacity to reason. The mediator opined that it would be detrimental to the children’s best interests to be uprooted from their familiar environment, loved ones and friends, and that primary custody should be given to father if mother were to relocate. At a hearing in July 2001, mother’s attorney stated that mother no longer planned to move to San Ramon due to the mediator’s recommendation, but that mother had listed her house for sale since it was too big for her to maintain physically and financially. Mother wanted to move to Roseville where she had an opportunity for a job promotion. This would mean the children would have to move out of their present school district in Elk Grove. The trial court ordered further mediation regarding whether this would be in the children’s best interests and whether the custody arrangement should be altered. Mother was ordered to not change the children’s schools in the interim. The mediator’s report disclosed that the children preferred to stay in their current school district but that, if mother was unable to find a place to live in the district, the children would prefer to continue living primarily with mother in another part of Elk Grove or in the Sacramento area, even if they had to change schools. Stating that the children were doing well under the primary care of mother and that it was in their best interests for her to continue as the primary caregiver, the mediator recommended that mother be able to change the children’s schools as long as she continued to reside in the Sacramento area. At a hearing in August, the court was informed that mother had found another house in Elk Grove, but in a different school 3 district. Based on the mediator’s report, she had enrolled the children in school because they already had missed a week of class time. Mother renewed her request to move to San Ramon, but indicated she would not do so if it meant she would lose custody. The court noted that the mediator’s recommendation meant mother would have an “uphill battle” if she wished to move out of the Sacramento area. At mother’s request, the matter was set for an evidentiary hearing. Pending the hearing, the court adopted the mediator’s recommendations from both of the prior reports, including the recommendation that primary physical custody be given to father if mother moved to San Ramon. The evidentiary hearing was held before another judge in January 2002. Father argued that, as a result of the move-away restriction in the custody order, there existed a presumption that it was in the children’s best interests not to have their residence changed from Sacramento and that mother had the burden to prove otherwise. The court disagreed, stating nothing in the move-away provision altered the burden of proof set forth in In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess). The court ruled that mother only had the burden to show her decision to move was made in good faith and was not designed to frustrate father’s parenting time with the children, and that father bore the burden to show a change of custody was in the children’s best interest if mother moved to San Ramon. After hearing the parties’ evidence, the court found that mother’s decision to move was made for good faith reasons in that 4 her job required her to relocate, her fiancé lived in the Bay area, and she desired to assist her ailing father, who also lived in the Bay area. The court found father had not shown that his visitation rights would be affected adversely or that it would be detrimental to the children to relocate to San Ramon. The court concluded that the children’s preference to stay in the Sacramento area “should not be given great weight” because it was based on their concerns about staying in the same school with their friends but that, subsequent to their interview with the mediator, they had changed to a different school in Elk Grove, had adapted well, and had made new friends. The court further found that, even if it gave the children’s preference great weight, their desire was outweighed by the close bond they had with their mother and by the fact it was in their best interest to maintain the continuity of care that she provided. In reaching this conclusion, the court considered the children’s health, safety, and welfare, and noted that mother had shouldered almost the entire burden of parenting the children with regard to their schooling, medical treatments, transportation and counseling. Accordingly, the court held it was in the children’s best interest to move with their mother to San Ramon. The court granted mother’s request for attorney fees as a sanction and ordered father to pay $5,000 to mother’s attorney because father’s “conduct prior to trial frustrated the policy of the law to promote settlement and to reduce the cost of litigation . . . .” In support of this order, the court cited “[1] Father’s unreasonable pursuit of an unmeritorious legal position, [2] [his] 5 overreaching demand for settlement and [3] [his] admission at trial that the [real] purpose of opposing [mother’s relocation with the children] was a concern for his own parenting [needs] and not a concern for the children’s best interest . . . .” DISCUSSION I Father argues the trial court erroneously relied on Burgess to place the burden of proof on him at the custody hearing. Burgess addressed the burden of proof where a parent, who is the primary custodial caretaker, seeks to move away from the geographical area in which the child’s noncustodial parent resides. (Burgess, supra, 13 Cal.4th at pp. 28-29.) Burgess treated the noncustodial parent’s opposition to the move-away request as a demand for change of custody and put the burden on the noncustodial parent, as the party seeking a change in custody status, to prove that relocation would cause detriment to the minor. (Id. at pp. 37-38.) The custodial parent does not need to show that the move is necessary, only that the parent has sound good faith reasons for moving which are not based upon a desire to frustrate the noncustodial parent’s contact with the children. (Id. at pp. 36, fn. 5, & 38.) Accordingly, Burgess held that “the same allocation of the burden of persuasion applies in the case of a custodial parent’s relocation as in any other proceeding to alter existing custody arrangements: ‘[I]n view of the child’s interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of 6 compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change [in custody] is in the child’s best interests.’ [Citation.]” (Burgess, supra, 13 Cal.4th at p. 37.) “‘[O]nce it has been established [under a judicial custody decision] that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.’ [Citation.] [¶] The showing required is substantial. . . . [A] child should not be removed from prior custody of one parent and given to the other ‘“unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.”’ [Citation.] In a ‘move-away’ case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it ‘“essential or expedient for the welfare of the child that there be a change.”’ [Citation.]” (Burgess, supra, 13 Cal.4th at p. 38.) Burgess noted its holding is consistent with section 7501, which gives a parent entitled to custody a presumptive “right to change the residence of [his or her minor] child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” (§ 7501; Burgess, supra, 7 13 Cal.4th at p. 38.) “The dispositive issue is, accordingly, not whether relocating is itself ‘essential or expedient’ either for the welfare of the custodial parent or the child, but whether a change in custody is ‘“essential or expedient for the welfare of the child.”’ [Citations.]” (Burgess, supra, 13 Cal.4th at p. 38; orig. italics.) Burgess emphasized that “each case must be evaluated on its own unique facts. Although the interests of a minor child in the continuity and permanency of custodial placement with the primary caretaker will most often prevail, the trial court, in assessing ‘prejudice’ to the child’s welfare as a result of relocating . . . may take into consideration the nature of the child’s existing contact with both parents[,] . . . the child’s age, community ties, and health and educational needs. Where appropriate, it must also take into account the preferences of the child [pursuant to section 3042, subdivision (a)].” (Burgess, supra, 13 Cal.4th at p. 39.)1 However, it is not enough to show the child has a meaningful relationship with the noncustodial parent and will be “negatively impacted” by the custodial parent’s good faith decision to move. If this were sufficient to support denial of a move-away order, no primary custodial parent would ever be able to secure such an order. (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 1 Section 3042, subdivision (a) states: “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.” 8 717; In re Marriage of Edlund & Hales (1998) 66 Cal.App.4th 1454, 1472.) Father contends the holding in Burgess regarding the burden of proof is inapplicable because it is premised upon a custodial parent’s presumptive right to relocate under section 7501. Father argues this presumption does not apply here due to the move-away restriction in the court’s custody order of March 2001. He asserts that this order reflects a preexisting exercise of “the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” (§ 7501.) Father posits that, because mother was the party seeking relief from this restraint in the custody order, and since the existing custody order is presumed to be in the best interest of the children, mother had the burden to show that relocation of the children would not be detrimental to them and that it would be in their best interest to move to San Ramon. Consequently, he argues, the trial court applied the wrong burden of proof, and we must remand the matter for the court to reconsider mother’s request to relocate using the correct burden of proof. We are not persuaded. Father misinterprets the effect of the prior custody order by placing too much emphasis on the place of custody, rather than the person to whom custody was given. Had the order granted physical custody of the children to mother but directed that custody would switch to father if mother left the Sacramento area, this would reflect a judicial determination that staying in the Sacramento area was in the children’s best interests. But the order did not do this. It specifically gave primary physical custody to mother, 9 only requiring her to obtain father’s consent or a court order before she moved with the children. Accordingly, in view of the children’s interest in stable custodial and emotional ties, it is presumed to be in their best interest to continue residing with mother, even if she moves. Thus, it is father, as the person seeking a change in custody, who must show a substantial change of circumstances so affecting the children’s well-being that modification is essential to their welfare. Nothing in the move-away provision expressly or implicitly affects the holding in Burgess. It does not state mother has the burden to show that it is in the children’s best interest to move, only that she must either get father’s consent or a court order before relocating with the children outside of Sacramento County. Under the circumstances, all applicable laws that were in existence when the parties’ stipulated agreement was made became a part of the agreement as fully as if incorporated by reference. (Miracle Auto Center v. Superior Court (1998) 68 Cal.App.4th 818, 821 [“As a general rule of construction, the parties are presumed to know and to have had in mind all applicable laws extant when an agreement is made. These existing laws are considered part of the contract just as if they were expressly referred to and incorporated”]; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 692, p. 625.) Consequently, the move-away provision must be construed as mandating that, if father did not consent to the relocation, mother had the affirmative burden, pursuant to Burgess, to show that she had a good faith reason for moving and was not doing so to 10