Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF05-2245
BUTZ, J.Appellant, Andrew B. Smith, Jr., brings this judgment roll appeal from a trial court order following a contested hearing that awarded physical custody of his two young daughters to their mother, respondent Sabine K. Goetz. He contends the court erred in awarding Goetz physical custody of the girls without considering whether the award was warranted by “changed circumstances”; without considering the girls’ need for continuity and stability; and without considering the “relevant facts” of Goetz’s alleged efforts to undermine his visitation. He also contends the court order effectively penalized him for bringing motions in family court. We shall affirm the judgment (order of November 3, 2006).
Goetz filed no respondent’s brief. Consequently, California Rules of Court, rule 8.220(a)(2) (former rule 17(a)(2)) states this court “will decide the appeal on the record, the opening brief, and any oral argument by the appellant.” In applying this rule, we “examine the record on the basis of appellant’s brief and . . . reverse only if prejudicial error is found.” (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3.)
BACKGROUND
Because of the sparseness of the record on appeal, we can provide only an abbreviated background.
The parties, who never married, had two daughters. Goetz initiated this action to establish Smith’s paternity when the girls were one and two years old, respectively. Goetz also sought sole physical and joint legal custody of the children, and child support.
Although Smith initially responded by seeking to quash service, and to strike portions of the petition, he eventually admitted in open court that he is the girls’ father, and the court entered a judgment establishing paternity.
At the outset, Smith obtained a fee waiver, based on his declaration that he was not employed.
Thereafter, Smith sought joint physical and legal custody by, among other things, filing a demurrer to Goetz’s petition for sole physical custody.
Goetz then obtained an order to show cause why she should not be awarded sole physical custody of the children, and reside alone with the girls in the family home until further order, with Smith to have visitation on agreed-upon dates and times. In her supporting declaration, Goetz asked for “an ex parte order granting me sole physical custody of the children pending a calendared hearing, and providing that any parenting time to [Smith] be only on my agreement as to days, time and locations pending the hearing . . . . [¶] [Smith] has informed me several times that he will not leave this house without the children. He stated that he will move out on 7/28/2006, but many other such dates have come and gone. I am concerned that he will take the children. I am therefore asking the Court to make a temporary order ex parte, that grants me sole physical custody and provides that neither party can take the children out of Yolo or Sacramento Counties pending the hearing.”
The matter was referred to mediation: The mediator recommended joint physical and legal custody. On August 4, 2006, an order for custody and visitation was entered, granting the parties joint physical and legal custody, with Smith’s parenting time limited to weekends and one weekday per month. The August 4 order also states both parties shall give the other 30 days’ notice of any vacation travel plans. Although the form order indicates it represents a stipulation by the parties and the minute order of the proceedings indicates a “[s]tipulation [was] reached in mediation,” Goetz did not sign the stipulation and the minute order states Goetz “does not agree w[ith] the mediator recommendation, but declines [a] [hearing].”
Not long thereafter, Smith sought an order to show cause seeking sole physical and legal custody, and told police of his belief that Goetz planned to abduct the children because she failed to give sufficient advance notice of her intention to travel with the children to Seattle. He asked the court to (among other things) require Goetz to “produce” the girls, provide a “complete and detail[ed]” itinerary for any overnight or out-of-town trips, and produce her work schedule a week in advance.
Goetz agreed to give Smith “basic information” about her travel plans with the girls. Noting that Smith “simply doesn’t have enough to do, because he doesn’t work, so he keeps filing these motions,” she also complained that Smith kept a set of keys to their former joint residence, entered the house without her permission after the court ordered him to move out, and has “threatened to destroy” her.
Smith and Goetz each represented himself or herself throughout these proceedings.
The hearing on Smith’s motion for sole custody was continued and later vacated at Smith’s request and then taken off calendar.
Smith then brought a motion to modify the August 4 custody order. He sought to extend his weekly parenting time from Saturday to Tuesday because (he alleged) (1) Goetz “continued to disregard the best interest of the children including emotional, health, and mental” because she once refused to bring one of the girls to a doctor’s appointment he had scheduled when he believed her to be ill; and (2) she refused to take the girls to preschool or to pay half of its cost. He also sought to compel Goetz to produce financial disclosure documents.
Smith submitted a copy of an e-mail exchange showing that when Smith demanded Goetz seek “treatment” for one daughter’s runny nose, Goetz told him the girl was teething and “a runny nose is a normal occurrence with that.”
In response, Goetz sought sole legal and primary physical custody of the girls. In her supporting declaration, Goetz said:
“It should be first noted that [Smith] has stated point[-]blank to me that he ‘will make it [his] life’s mission to destroy my life.’ He is using this case to try to do that.
“[Smith] is a former law student. He has filed various motions to strike, to compel, demurrers, etc., all in an apparent effort to harass me.
“I am a single parent supporting our two daughters on my own, without help from [Smith]. I have to work to support the girls and cannot afford to continue to miss work for repeated hearings on [Smith’s] motions. He moved earlier this year, and was living in an apartment on El Camino Avenue in North Sacramento. Now he has indicated he is moving again, all the way out to Carmichael. The girls need stability, and I have always provided that. [Smith] is angry and will continue to file motions, at least until the Court reviews his fee waiver, or he begins full[-]time employment.
“[I] did not sign the recommendations of the mediator we saw briefly at court. I understand that the recommendations were adopted over my objection as a temporary order. However, as just one example of [Smith’s] use of these proceeding[s] to harass me, I attach his September 21st e-mail to me. In the e-mail, [Smith] claims the Thanksgiving and Christmas holidays this year, even though he doesn’t celebrate those holidays, or hasn’t in the past. I support the girls on my own without help from [Smith]. I believe that the pendente lite order for joint legal custody needs to be changed. I am requesting that the Court, after the parties have completed long[-]term mediation, modify the order, so that I am the decision maker regarding the girls’ health, education, religious upbringing, and welfare, with [Smith] being given the right of access to the girls’ educational and medical records. I believe that this case needs to be dealt with in long[-]term mediation, and would agree to pay one-half the costs. I request that the Court appoint Agnes Silva to mediate the legal and physical custody issues. I request that the Court set a review date 90 or 120 days from the date of the mediator’s appointment.
“[N]ote that [Smith] is also seeking to compel me to serve a Declaration of Disclosure. He fails to note that this is a paternity action, not a divorce. We were never married. There are no community assets or debts, and there is no requirement that I serve him with a Declaration of Disclosure. If I decide to ask for child support from him (I have no idea whether he is working or not), then I will file an Income and Expense Declaration. . . .”
Smith replied that awarding Goetz sole legal and/or physical custody is not in the children’s best interest.
Following a hearing on November 3, 2006, at which both parties appeared (and for which no reporter’s transcript appears in the record), the court indicated it was adopting the mediator’s recommendation and granted sole physical custody to Goetz, with both parties to share legal custody. It also set the matter for a further hearing on May 8, 2007, at Smith’s request.
No report by the mediator appears in the record.
DISCUSSION
Smith appeals from the trial court’s order of November 3, 2006, granting Goetz sole physical custody of their daughters.
On appeal, we must presume the trial court’s judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
Because Smith provides us with only a clerk’s transcript, we must treat this as an appeal “on the judgment roll.” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) “In a judgment roll appeal based on a clerk’s transcript, every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed. The sufficiency of the evidence is not open to review. The trial court’s findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record.” (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924; see also Cal. Rules of Court, rule 8.163.)
Even though he is representing himself on appeal, Smith is held to the “same ‘restrictive procedural rules as an attorney.’” (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)
Applying these well-established standards to Smith’s appeal, we cannot consider Smith’s complaints that the court failed to consider “relevant facts” related to Goetz’s behavior. We must presume the “relevant facts” support the court’s decision.
Nor can we entertain his claim the trial court failed to consider evidence concerning the girls’ need for “continuity and stability.” Without knowing what evidence on this issue was presented by the parties to the court at the hearing, we must presume the evidence was sufficient to support an implied finding that the girls’ need for continuity and stability is best served by their mother having sole physical custody.
However, to the extent that Smith purports to contend the trial court’s decision was error because it failed to apply the proper test in considering a change in custody, he is mistaken.
California’s statutory scheme governing child custody and visitation determinations is set forth in the Family Code. Under this scheme, “the overarching concern is the best interest of the child.” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).)
Undesignated statutory references are to the Family Code.
For purposes of an initial custody determination, section 3040, subdivision (b) affords the trial court and the family “‘the widest discretion to choose a parenting plan . . . in the best interest of the child.’” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31, quoting § 3040, subd. (b).) When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child’s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child’s contact with the parents. (§§ 3011, 3185, subd. (a); see Montenegro, supra, 26 Cal.4th at pp. 255–256.)
“Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining’ that custody arrangement. [Citation.] In recognition of this policy concern, [the California Supreme Court has] articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956, quoting In re Marriage of Burgess, supra, 13 Cal.4th at pp. 32–33 & citing Montenegro, supra, 26 Cal.4th at p. 256.) “Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy.” (In re Marriage of Brown & Yana, supra, at p. 956.)
Smith appears to assume that the trial court here was required to apply the “changed circumstances” test. It was not. The August 4, 2006 custody order that Goetz sought to modify was not a final or permanent custody order; it was an interim order only. Thus, no factor “‘weigh[ed] heavily in favor of maintaining’” the joint physical custody order (cf. In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956, quoting In re Marriage of Burgess, supra, 13 Cal.4th at pp. 32–33), and the court remained free to consider what physical custody arrangement was in the children’s best interests, without according particular deference to the August 4, 2006 order.
Moreover, as we have explained, we presume that there was ample evidence to support the court’s implicit conclusion that the children’s best interests are served by remaining in their mother’s physical custody.
Smith has failed to demonstrate error.
DISPOSITION
The judgment (order of November 3, 2006) is affirmed.
We concur: SIMS, Acting P. J., HULL, J.