Opinion
F074707
08-23-2018
In re the Marriage of DONTE L. and LISA BARNES. LISA BARNES, Respondent, v. DONTE L. BARNES, Appellant.
Donte L. Barnes, in pro. per., for Appellant. Lisa Barnes, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DFL-16-000211)
OPINION
APPEAL from an order of the Superior Court of Kern County. Robert S. Tafoya, Judge. Donte L. Barnes, in pro. per., for Appellant. Lisa Barnes, in pro. per., for Respondent.
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Appellant Donte Barnes (Donte) appeals from a protective child-custody order granted in favor of respondent Lisa Barnes (Lisa). Although Lisa and the minor children had only been in California a short time, the trial court granted sole physical custody of the children to Lisa and issued a restraining order against Donte pursuant to the court's temporary emergency jurisdiction under Family Code section 3424. Section 3424, subdivision (a), provides that "[a] court of this state has temporary emergency jurisdiction if ... necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." In his appeal, Donte claims the trial court erred in exercising emergency jurisdiction because, allegedly, there was insufficient evidence to show that Lisa or the children were ever abused, threatened or mistreated by him. However, Donte has not provided an adequate record on appeal to permit meaningful review of his claims and has therefore failed to meet his burden as appellant of affirmatively demonstrating error. Accordingly, the order of the trial court is affirmed.
We use first names for convenience only; no disrespect is intended.
All further statutory references are to the Family Code.
FACTS AND PROCEDURAL HISTORY
The record on appeal is sparse. Our summary below of the background facts is largely gleaned from the parties' briefs and the Kern County Superior Court register of actions.
At the time of the relevant events herein, Lisa and Donte were married and had two minor children, a daughter and a son. The parties had lived in York, Pennsylvania. In July 2016, Lisa traveled to California with the children to stay with her relatives in Kern County for the summer. According to Donte, when he came home on July 22, 2016, Lisa and the children were gone, and there was a note from Lisa on the kitchen table stating that she and the children were visiting family "for [the] rest of summer" and that child protective services "is already aware that we have left." The note also informed Donte that "the kids will call [or] text you when we arrive." Donte asserts that sometime later, Lisa called to inform him that she and the children would not be returning.
All further references to dates are to dates in 2016.
Lisa filed a request for a domestic violence restraining order in the Kern County Superior Court on August 17. According to Lisa, the incident which precipitated the request was Donte's statement made by telephone to the parties' daughter that he was "coming for her," which allegedly made the daughter feel "scared for her life" due to his loud angry tone and verbal abuse. In support of Lisa's request for protective relief, she enumerated a series of prior occurrences of threats, violence or mistreatment allegedly perpetrated by Donte against Lisa and the children.
A mediation appointment was scheduled by the trial court for August 30, but Donte, who at that time was residing in Baltimore, Maryland, did not attend.
On September 6, Donte filed his written response opposing Lisa's request for a domestic violence restraining order. The response stated that Donte was or would be represented by a California attorney, Justin Eiser. The response included Donte's declaration asserting, among other things, that he has not committed any type of violence or abuse nor made any threats toward any member of his family and that Lisa was simply trying to manipulate the court system to gain custody of the children and bypass normal procedures.
On September 8, after hearing testimony and considering all the papers and evidence on file, the trial court held that "Pursuant to Family Code 3424 this court has emergency jurisdiction." Further, the trial court held there was good cause to issue the temporary restraining order, with Lisa to have sole physical custody of the children, pending a full hearing on the merits to be held on October 28.
On October 28, the hearing was held on the merits of what the trial court's minute order described as an "order to show cause in re: domestic violence." Lisa was duly sworn and testified. Neither Donte nor his attorney appeared at the hearing. The trial court held that the "Restraining Orders and Stay Away Orders" requested by Lisa were granted as prayed. The trial court stated the order was "good for three years." The trial court awarded sole physical custody to Lisa, with the right of reasonable visitation awarded to Donte as mutually agreed upon by the parties. The trial court further directed that the issues of child custody and visitation were to be "bifurcated and filed separately."
Donte filed a notice of appeal on November 10.
DISCUSSION
I. Overview of Jurisdictional Provisions
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; § 3400 et seq.), a California court has jurisdiction to make a child custody determination only if certain statutory conditions are met. (§ 3421, subd. (a).) For example, jurisdiction exists where California is the child's home state on the date the proceeding commenced, or was the child's home state within six months before the proceeding commenced and the child is absent from California but a parent, or a person acting as a parent, continues to live in California. (§ 3421, subd. (a)(1).) Under section 3402, subdivision (g), "home state" is defined as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding." In addition to the "home state" basis for jurisdiction under subdivision (a)(1) of section 3421, three other nonemergency grounds for exercising jurisdiction are set forth in section 3421. (See § 3421, subd. (a)(2), (3) & (4).) Except as otherwise provided in section 3424, section 3421 sets forth the exclusive jurisdictional grounds for making a child custody determination in this state. (§ 3421, subds. (a), (b).)
Section 3424 creates an exception to the exclusive grounds for exercising jurisdiction to make a child custody determination. (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1097 (Cristian I.) It provides that a California court may exercise "temporary emergency jurisdiction" when a "child is present in this state and ... it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." (§ 3424, subd. (a).) An emergency exists when there is an immediate risk of danger to the child if he or she is returned to a parent. (Cristian I., supra, 224 Cal.App.4th at p. 1097.) When a trial court considers whether it has jurisdiction under section 3424, the finding of an emergency should not be made in a rush to judgment but rather after a full and fair evidentiary hearing. (In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1042.) Unsubstantiated allegations are insufficient to invoke emergency jurisdiction. (In re C.T. (2002) 100 Cal.App.4th 101, 107.) Although emergency jurisdiction is ordinarily intended to be short term, a court may continue to exercise its authority as long as the risk of harm creating the emergency remains. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1139.) Also, temporary emergency jurisdiction may ripen into permanent jurisdiction where California has become the child's home state. (Id. at p. 1140.)
As noted, in the present case the trial court found that jurisdiction existed under section 3424. In his appeal, Donte claims there was insufficient evidence presented to support that jurisdictional finding.
II. Standard of Review
In cases where there was no conflict in the evidence or no factual dispute before the trial court, we review the undisputed facts independently to assess the validity of the trial court's finding of subject matter jurisdiction under the UCCJEA. (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286, fn. 5 (Schneer); Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701.) On the other hand, where the evidence relevant to the question of subject matter jurisdiction was in conflict, several recent appellate decisions have held that the proper standard of review is the deferential substantial evidence test. (In re Aiden L. (2017) 16 Cal.App.5th 508, 519-520 (Aiden L.); In re A.C. (2017) 13 Cal.App.5th 661, 669-670; Schneer, supra, 242 Cal.App.4th at pp. 1286-1287.) These recent decisions have created a split of authority, because many appellate courts (including this court) had reiterated a standard of review from earlier precedent which reflected that, in a factual challenge to the trial court's exercise of jurisdiction under the UCCJEA, the reviewing court is not bound by the trial court's factual findings but "independently reweighs the jurisdictional facts." (See, e.g., In re S.W. (2007) 148 Cal.App.4th 1501, 1508; In re A.C. (2005) 130 Cal.App.4th 854, 860; see also Schneer, supra, 242 Cal.App.4th at p. 1284, fn. 2 [cases listed].) However, according to the analysis set forth in Schneer. supra, as followed in Aiden L., supra, and In re A.C., supra, 13 Cal.App.5th 661, that was an incorrect standard of review because "the notion an appellate court may independently reweigh the trial court's findings of jurisdictional facts runs counter to the fundamental principle that appellate courts do not reweigh facts and generally must defer to the trial court's resolution of credibility and conflicts in the evidence." (Schneer, supra, 242 Cal.App.4th at p. 1285.)
Here, we need not resolve the split of authority because, as we explain below, Donte, as appellant, has failed to provide an adequate evidentiary record or to meet his burden of demonstrating error, and therefore his appeal fails under either standard of review.
III. Donte Failed to Meet His Burden as Appellant
" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a consequence, an appellant has the burden of demonstrating reversible error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 (Yield Dynamics).) When points are perfunctorily raised, without adequate analysis and authority, and without citation to an adequate record, we pass them over and treat them as abandoned. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Moreover, where an appellant fails to meet his or her burden of furnishing an adequate record, the challenged order will be upheld. (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 (Gee); Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) A. Summary of Parties' Appellate Briefs
According to Donte's brief in the present appeal, Lisa made false assertions at the September 8 hearing before the trial court that Donte had committed domestic abuse, mistreatment, violence, or threats. Donte contends the evidence presented at the hearing was insufficient to support these claims against him. Donte concedes that Lisa presented "verbal and written statements" to the court, but he argues that there should have been other corroboration such as police reports, testimony of pediatricians, or other exhibits. Donte also submitted a letter from the York, Pennsylvania child protective services indicating that an investigation had been closed since allegations of abuse were not validated. He argues that the closure of that investigation must mean there is no evidence of wrongdoing. Based on these and other arguments challenging the sufficiency of the evidence, Donte argues that the trial court erred in finding emergency jurisdiction under section 3424.
In Lisa's brief as respondent, she states that she "described several scenarios" to the trial judge relating to Donte's conduct, and when the judge heard her testimony, he found there was jurisdiction under section 3424. Her brief discusses some of the abusive conduct allegedly perpetrated by Donte, which appears to be some of the same conduct challenged by Donte in his brief, including (i) an incident in which Donte allegedly threw the kitchen table, chairs, and utensils (including a knife) at Lisa in the presence of their daughter; (ii) an incident in which Donte allegedly threw all of Lisa's belongings into the front yard with threatening words such that Lisa purportedly feared for her life and for the safety of her children; and (iii) an occasion where Donte allegedly held their crying autistic son "up high above his shoulders in [an] attempt to scare him" and "hit him on the buttocks" repeatedly and "forced" Lisa and their daughter to observe while he persisted in hitting the crying child. We are not suggesting that Lisa's mere discussion of alleged events in her appellate brief constitutes evidence. It does not. However, the record reflects that Lisa testified at both the September 8 and October 28 hearings. Her testimony, of course, did constitute evidence, and the trial court apparently found it to be convincing. Her testimony may have included some or all of the matters discussed by Lisa in her brief, and it may have included much more than that. We simply do not know the nature of that factual showing because a record of her testimonial evidence has not been provided to us. On this record, we cannot assess the sufficiency of the evidence. B. The Record on Appeal Furnished by Donte
The sparse record on appeal included Donte's opposition papers filed in the trial court, the trial court's minute orders, exhibits filed by Donte, and the superior court register of actions for this case. The record did not include Lisa's moving papers filed in the trial court, such as any declaration in support of her request for protective relief, and it did not include a reporter's transcript of the oral testimony at the hearings. C. On This Record, Donte's Appeal Fails
Although it appears that Donte initially requested a reporter's transcript, the superior court clerk's affidavit mailed to this court and to the parties concerning the record stated that Donte ultimately decided not to have a reporter's transcript prepared. Thus, only a clerk's transcript was prepared. Further, Donte was notified by this court that if he sought an addition to the record, a motion could be brought, but he failed to bring such a motion. --------
In essence, Donte contends the trial court erred when it found that the facts supported temporary emergency jurisdiction under section 3424. Donte claims that, contrary to Lisa's assertions, he did not engage in any violent or threatening conduct toward Lisa or the children. The difficulty we encounter at the threshold is that Donte has failed to provide this court with a transcript of the oral testimony in the trial court, including Lisa's testimony. Additionally, Donte has failed to include, as part of the record on appeal, Lisa's moving papers in support of her request for relief in the trial court. Lacking these material portions of the proceedings and evidence below, we do not have an adequate record before us. Consequently, Donte's appeal must be rejected. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [appellant's burden is to show reversible error by an adequate record]; Gee, supra, 99 Cal.App.4th at p. 1416 [where record inadequate for meaningful review, " 'the appellant defaults and the decision of the trial court should be affirmed' "]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [where no reporter's transcript provided, evidentiary support for the trial court's finding is presumed]; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [without adequate record demonstrating error, the contention is waived].) For these reasons, we conclude Donte failed to meet his burden as appellant of demonstrating error. (Yield Dynamics, supra, 154 Cal.App.4th at pp. 556-557.)
Because Donte failed to meet his burden of providing this court with an adequate record to assess the sufficiency of the evidence, the order of the trial court must be affirmed.
DISPOSITION
The order of the trial court is affirmed. Respondent is awarded her costs on appeal.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.