Filed 7/22/21 Marriage of Sloan CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of SCOTT and 

JENNIFER SLOAN.

2d Civ. No. B309309

(Super. Ct. No. 1469098)

(Santa Barbara County)

SCOTT J. SLOAN,

 Appellant,

v.

JENNIFER BUBALO SLOAN,

 Respondent.

Father appeals an order denying his motion for a change in 

custody and visitation with his daughter. We affirm.

FACTS

Scott and Jennifer Sloan were married for seven years 

before separating and ultimately dissolving their marriage. A 

daughter of the marriage, B., was born in February 2014. 
2.

Jennifer moved to Pasadena and Scott remained in Santa 

Barbara after the dissolution.1

In September 2017, the parties stipulated to a judgment

that includes custody provisions. The parties agreed that

Jennifer would have “primary physical custody” of B. and Scott 

would have “secondary physical custody” pursuant to the “timesharing plan” set forth in the stipulated judgment. 

In addition to certain holidays, the time-sharing plan gives 

Scott custody every other weekend and weekly midweek

overnight visits with B.

The time-sharing plan recognized that the midweek 

overnight visits would not be practical once B. enters 

kindergarten. The plan provides: “The Parties acknowledge that 

when [B.] begins kindergarten, it will not be possible for [Scott] to 

exercise the mid-week visits set forth in hereinabove, assuming 

[Scott] is residing in Santa Barbara and/or he is residing more 

than 50 miles from [B.’s] school. Therefore, at least sixty (60) 

days prior to [B.] commencing kindergarten, the Parties shall 

meet and confer, with a mutually agreeable therapist/mediator if 

necessary solely with regard to establishing appropriate custodial 

time for [Scott] and [B.] in replacement of his midweek visit.” 

Scott used a second home he owned in Pasadena for the 

midweek visits. Santa Barbara remained his principal residence.

In March 2019, the parties entered into a stipulation

modifying child custody. The stipulation did not end the 

midweek visits. Instead, it adjusted the pick-up and drop-off 

times and changed the summer schedule to alternate the 

midweek visits between Pasadena and Santa Barbara. For 

1 For the sake of clarity, we refer to the parties by their 

first names. No disrespect is intended.
3.

unexplained reasons, the stipulation was not signed and filed 

until August 2019.

In April 2020, California issued stay-at-home orders in 

response to the COVID-19 pandemic. Scott notified Jennifer that 

it was no longer safe to continue the midweek visits and that it 

was in B.’s best interest that they be discontinued. The visits 

every other weekend, however, continued.

Scott wanted an adjustment in his visitation to compensate 

for the loss of his midweek visits. But, despite mediation, the 

parties could not agree.

In August 2020, Scott filed the instant motion to modify 

custody to replace the midweek visits with more weekend and 

summer visitation. Among other modifications, Scott requested 

the first, third, and fifth weekend of each month instead of every 

other weekend, and every other week during the summer instead 

of every other weekend. Scott also wanted additional custody 

weekends where Jennifer’s holiday or vacation custody would 

supplant Scott’s regular visitation.

Jennifer opposed Scott’s motion. Jennifer proposed that

Scott have visitation every other weekend during the school year 

from Friday to Sunday and during the summer every other 

weekend from Thursday to Sunday. B. spends two weeks with 

each parent during the summer. Scott has B. for one-half of the 

holidays.

Neither Scott nor Jennifer proposed reinstating the 

midweek visits.

Ruling

The trial court stated that it is very familiar with the case; 

it has been heavily litigated for years. The court found that the 

paramount need for continuity and stability in custody 
4.

arrangements and the harm that may result from disruption of

the established patterns of care weigh heavily in favor of 

maintaining ongoing custody arrangements. (Citing In re

Marriage of Burgess (1996) 13 Cal.4th 25, 33.) The court found 

that continuity and stability are in the best interest of the child. 

The court ruled that “Scott has not met his burden of proof to 

establish that upending [B.’s] schedule is in her best interest.” 

The trial court ordered the custody schedule proposed by 

Jennifer.

Scott made a motion to clarify the trial court’s order. The 

court treated it as a motion for reconsideration and denied the 

motion.

DISCUSSION

I

Legal Standard

Scott contends that the trial court applied the wrong legal 

standard.

Scott concedes that the standard of review of a custody 

order is abuse of discretion. (In re Marriage of Richardson (2002) 

102 Cal.App.4th 941, 948.) He claims, however, that the trial 

court abused its discretion by applying the wrong legal standard 

in requiring him to show a change of circumstances. Scott relies 

on the court’s finding that “[he] has not met his burden of proof to 

establish that upending [B.s] schedule is in her best interest.” 

Scott argues that because the original judgment did not 

contain a final custody order, the legal standard is best interest of 

the child, and that he need not show a change of circumstances. 

(Citing In re Marriage of Richardson, supra 102 Cal.App.4th at 

p. 952.) In addition, Scott points out that the best interest of the 

child standard, and not the changed circumstances rule, applies 
5.

where, as here, a parent requests only a change in parenting or 

visitation arrangement, not amounting to a change from joint to

sole custody or vice versa. (In re Marriage of Lucio (2008) 161 

Cal.App.4th 1068, 1072.)

But the trial court applied the proper legal standard of the 

best interest of the child. The court stated in its ruling, “When 

determining the best interest of the child, stability and continuity 

are paramount.” Accordingly, the order for custody and visitation 

is very close to what B. had already been experiencing.

The trial court’s finding that Scott failed to meet his

burden, to show that changing B.’s schedule is in her best 

interest, did not require Scott to show a change of circumstances. 

All Scott had to show is that it is in B.s best interest to adopt his 

proposed custody schedule. Scott failed to show that.

Nowhere in the trial court’s ruling does it mention changed 

circumstances or any similar term. There is simply no basis for 

claiming the court applied the wrong legal standard.

For the first time in his reply brief, Scott contends that

reversal is required even assuming the trial court applied the 

best interest of the child standard. Scott cites no reason why he 

could not have raised this contention in his opening brief. The 

court’s ruling is unequivocally based on the best interest of the 

child standard. Points raised for the first time in the reply brief 

will not be considered. (9 Witkin, Cal. Procedure (5th ed. 2008) 

Appeal, § 723, p. 790.)

Terms of Original Judgment

Scott contends the trial court abused its discretion in 

failing to consider the terms of the original judgment.

Scott points out that under the terms of the original 

stipulated judgment, once B. starts kindergarten, the parties 
6.

shall meet and confer for the purpose of “establishing appropriate 

custodial time for [Scott] and [B.] in replacement of his midweek 

visit.” (Italics added.) Scott argues the trial court’s order did not 

replace his lost midweek custodial time; instead the order 

diminished it.

Scott points to nothing in the record to show that the trial 

court did not consider the original judgment. The court’s order 

did increase Scott’s biweekly custodial time during the summer 

by adding a Thursday to the weekend visits. Nothing in the 

judgment requires that the replacement be one-for-one, or that

adjustments cannot be made that have the effect of diminishing 

Scott’s total visitation time.

In any event, although the parents’ stipulations may be 

helpful, the trial court is not bound by them. (Stewart v. Stewart

(1955) 130 Cal.App.2d 186, 193.) Instead the trial court is tasked 

with making an independent determination of the best interest of 

the child. (Ibid.) That is what the trial court did here.

Framework and Approach

Scott contends the trial court, across the board, applied the 

wrong framework and approach.

The trial court is highly experienced and is very familiar 

with this case. The case has been heavily litigated for years. 

Scott’s most recent request to modify custody prior to this one 

was heard less than a year prior. The court is very familiar with 

the parties, the original stipulated judgment, and with B.’s needs. 

The court applied the correct best interest of the child standard.

The trial court considered Scott’s claim that the custody 

order creates significant gaps in his custody and rejected it. Scott 

points to no evidence whatsoever that the custody order as it 

stands will have a negative effect on B. or his relationship with 
7.

her. The trial court could reasonably conclude that the order 

fulfills the policy of ensuring that B. has frequent and continuing 

contact with both parents. (Fam. Code, § 3020, subd. (b).)

Scott believes that what he views as an adverse outcome is 

a result of Jennifer misleading the trial court as to the legal 

standard and her ad hominem attacks against him. But the 

court’s ruling shows that the court applied the correct legal 

standard, and it was based on B.’s need for continuity and 

stability, not on Jennifer’s personal attack against Scott.

Factual Assumptions

Scott contends the trial court’s order was made on the 

erroneous factual assumptions that he sought to increase his 

custody, and that the order gave B. contact with him consistent 

with or similar to the stipulated judgment.

Scott claims that, in fact, under his proposal, his total time 

with B. would be reduced considering the loss of his midweek 

visits. In addition, he claims the order was neither consistent 

with nor similar to what is required under the stipulated 

judgment.

Scott misrepresents the trial court’s ruling. The court did 

not find or assume that Scott sought to increase the total amount 

of his custody time or that the court’s order was consistent with 

the judgment. The court was simply summarizing the position of 

the parties.

The trial court stated: “[Scott] seeks to expand his 

custodial time to the first, third and fifth weekends of the month. 

He seeks to change the exchange location. He seeks 

modifications in the holiday schedule and the summer schedule, 

including a two-week consecutive block of vacation time for each 

party. [¶] Jennifer has opposed Scott’s requests. She contends 
8.

he is seeking to increase his custodial time beyond the

agreements the parties already reached in the Judgment and 

subsequent orders and in a manner that is contrary to the status 

quo and not in the child’s best interest.” 

First, the trial court accurately stated that “[Scott] seeks to 

expand his custodial time to the first, third and fifth weekends of 

the month.” Scott had only every other weekend.

Second, simply because the trial court ruled generally in 

Jennifer’s favor does not mean it adopted all her contentions. 

The court’s ruling was based solely on consistency and stability of 

custody arrangements being in B.’s best interest.

The judgment (order) is affirmed. Costs are awarded to 

respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
9.

Donna D. Geck, Judge

Superior Court County of Santa Barbara

______________________________

Wasser, Cooperman & Mandles, Melanie D. Mandles, Jennifer R. Mora; 

Misho Law Group, Jacqueline Misho; Greines, Martin, Stein & Richland,

Robert A. Olson and Edward L. Xanders for Plaintiff and Appellant. 

Kirker|Wright Law Group, Vanessa Kirker Wright; Drury 

Pullen and Susanna V. Pullen for Defendant and Respondent.