Opinion
C084381
05-01-2018
GREG E. POOLE, Plaintiff and Appellant, v. JULIE E. DEMBREK, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SDR43816)
Greg E. Poole (father) appeals from a postjudgment order denying his requests to modify a permanent custody order and grant him a new trial, and ordering him to pay Julie E. Dembrek's (mother's) attorney fees as sanctions. Father asks this court to reverse the trial court's decision. We affirm.
DISCUSSION
The postjudgment order from which father appeals, issued following a contested hearing in the trial court. The appellate record, however, does not include a reporter's transcript from that hearing, and no reporter is noted in the minute order. Therefore, we treat this as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083 (Allen); Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)
The limited record we have establishes that the parties were married in October 2006 and their marriage was dissolved in May 2014. Together, they have one child, born in April 2007.
In August 2014, the parties agreed to a temporary custody order allowing mother to move to Florida with the parties' child. The stipulated order gave the parties joint legal custody and included a detailed parenting plan that allowed father parenting time in both Florida and California.
Following a trial in September 2015, the court issued a new custody order based on the assumption that both parties would be living in Florida. Pursuant to the new order, the parties would continue to share legal custody of the child and mother would continue to have primary physical custody. The parenting plan, however, was modified to reflect the parties living in close proximity to one another. This order was deemed a final custody order pursuant to Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro).
On March 17, 2016, father filed a motion to modify child custody and support.
On May 21, 2016, the court modified the parenting plan because father did not relocate to Florida but continued to live in California. This also was deemed a final custody order under Montenegro, supra, 26 Cal.4th 249.
In June 2016, father filed another request to modify child custody; he also requested a Family Code section 730 evaluation. The court denied father's requests.
On October 4, 2016, father filed a "notice of intention to move for a new trial." He also filed another motion to change custody, asking the court to return the parties' child to California and "negotiate a new child custody agreement," and to remove "Dr. Sydney Nelson 730 report from [the] record." Father then filed 12 supplemental briefs in support of his motion. Mother opposed father's motions, and asked the court to sanction father under Family Code section 271.
On February 28, 2017, the trial court heard father's motions and mother's request for sanctions. The court denied father's motions at the hearing. The court took the issues of child support and sanctions under submission.
The following day, the court issued a written decision ordering father to pay $893 per month in child support and granting mother's request for sanctions in the amount of $5,000. Father appeals from this order.
On appeal, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is "on the judgment roll" (Allen, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler)). Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)
These restrictive rules of appellate procedure apply to father even though he is representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
Father asks this court to reverse the trial court's orders. To reverse the trial court's orders, father must demonstrate the court abused its discretion. (See Montenegro, supra, 26 Cal.4th at p. 255 [child custody and visitation orders reviewed for abuse of discretion]; In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 [sanctions order under Fam. Code, § 271 is reviewed for abuse of discretion]; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194, 197 [denial of motion for a new trial reviewed for abuse of discretion].) Absent a reporter's transcript, however, we presume official duties have been performed. (Evid. Code, § 664.) This presumption applies to the actions of trial judges. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461-1462, fn. 5; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 ["If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done"].) Accordingly, we presume on this record the trial court properly exercised its discretion by correctly applying the law and giving due consideration to the evidence before it, including both the written submissions by the parties and the testimony given at the hearing. (See Olivia, at p. 9.) We further presume the evidence was sufficient to support the orders. (Ehrler, supra, 126 Cal.App.3d at p. 154.)
DISPOSITION
The trial court's orders are affirmed.
HULL, Acting P. J. We concur: MURRAY, J. DUARTE, J.