Opinion
D076523
02-17-2021
D.E., Respondent, v. A.L., Appellant.
A.L., in pro. per., for Appellant. D.E., in pro. per., for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19FL000703N) APPEAL from an order of the Superior Court of San Diego County, Pamela M. Parker, Judge. Affirmed. A.L., in pro. per., for Appellant. D.E., in pro. per., for Respondent.
A.L. (Mother), the mother of J. (Child), appeals from findings and an order after a hearing in which the family court established child custody and visitation/parenting time orders (FOAH). The FOAH followed proceedings initiated by D.E. (Father), Child's father, who filed a request for such orders (RFO). The record on appeal consists only of a clerk's transcript, and the clerk's transcript contains only three documents from the family court proceedings: Father's RFO, minutes from the court hearing on the RFO, and the court's FOAH.
As we explain, by not providing an adequate record from which we can determine the evidence that was presented or what was said at the hearing that resulted in the FOAH, Mother has not met her burden of establishing reversible error. Accordingly, we will affirm the FOAH.
I. BURDENS ON APPEAL
" '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; accord, Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) As the appellant, Mother has the burden of establishing reversible error. (Jameson, at p. 609; Denham, at p. 566; Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078 [child custody appeal].)
"It is well settled, of course, that a party challenging a judgment [or order] has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) " ' "A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." ' " (Jameson, supra, 5 Cal.5th at p. 609.) As particularly applicable in the present appeal, Estate of Fain (1999) 75 Cal.App.4th 973 (Fain) instructs: "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment [or order] must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported . . . testimony would demonstrate the absence of error." (Id. at p. 992, italics omitted & added.) Very simply, " '[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' " (Jameson, at p. 609.)
Father and Mother represented themselves at the hearing in the family court and are representing themselves in this appeal. In both courts, the procedural rules apply the same to self-represented parties as to parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 383 [family court parentage action: "party appearing in propria persona 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys' "].) The fact that a party is representing herself is not a basis for special treatment that would be unfair to the other litigant(s). (Rappleyea, at pp. 984-985; McClain v. Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8).)
II. STATEMENT OF THE CASE
We base this recitation on what is contained in the one-volume clerk's transcript, disregarding statements in both parties' briefs that do not find support in the limited record on appeal. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) --------
In January 2019, Father filed the RFO. As background, it indicates that, in this action, both Father and Mother are subject to "[o]ne or more domestic violence restraining/protective orders" from the family court. The RFO then requests orders for child custody and visitation/parenting time for Child, who was four years old at the time of its filing. In support of the RFO, Father included a declaration and attached seven completed Judicial Council forms.
Mother did not file any written opposition to Father's RFO.
The family court presided over an "evidentiary hearing" on the RFO in June 2019. Representing themselves, Father and Mother were both present; and both were "sworn and examined," according to the court's minutes. The minutes also contain one page of single-spaced typewritten findings.
In late July 2019, consistent with the minutes from the hearing, the court filed the FOAH, ruling in part as follows:
• "[T]here was no bad faith on [Mother's] part in attempting to keep [Child] away from [Father] when she moved away";
• "[M]other failed to respond/follow Court orders and communicate with [Father] regarding [M]other's intent to move away to Virginia Beach, Virginia";
• "The Court takes into account that San Diego County is [Child's] community; the way in which [Mother's] move was handled and [In re Marriage of ]LaMusga[ (2004) 32 Cal.4th 1072] factors";
• The family court adopted the Family Court Service's attached four-page, single-spaced typewritten recommendations and report, dated April 1, 2019, as modified, ruling in part:
In addition to other standard provisions, the FOAH also contains a detailed schedule for visitation/parenting time with Child.? "[Father and Mother] shall share joint legal custody. If there are any disputes regarding a decision, [F]ather shall [have] the final decision";
? "Father shall have primary physical custody";
? "Mother shall have unsupervised visitation, but is warned by the Court that if [Child] is taken/moved away again without a Court Order or [she] fails to return [Child] after visitation, [Mother] may lose unsupervised visitation with [Child]."
Mother timely appealed from the FOAH.
III. DISCUSSION
" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' " (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, quoting In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) " A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child[, or] . . . if it applies improper criteria or makes incorrect legal assumptions.' " (S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 333, italics omitted.) " 'An abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we disagree with the trial court's determination, we uphold the determination so long as it is reasonable.' " (Ibid.) " 'We do not reverse [an exercise of discretion in establishing child custody and visitation] unless a trial court's determination is arbitrary, capricious, or patently absurd.' " (Id. at p. 334.)
In determining whether the family court abused its discretion in issuing the FOAH here, we must consider all of the evidence that was before the court at the time it ruled. In this case, the evidence consists entirely of Father's sworn testimony in the RFO and the unreported proceedings at the hearing on the RFO. Notably, during these unreported proceedings, Father and Mother were "sworn and examined." As we explained ante, without a reporter's transcript, we "presume[ ] that the unreported . . . testimony would demonstrate the absence of error" (Fain, supra, 75 Cal.App.4th at p. 992, italics added)—which, in this case, is substantial evidence to support each of the findings in the FOAH. Accordingly, since the record presented by Mother is " ' "inadequate for meaningful review," ' " she did not meet her burden of establishing reversible error, " ' "and the decision of the trial court should be affirmed." ' " (Jameson, supra, 5 Cal.5th at p. 609.)
We recognize and appreciate that Mother's underlying entitlement to custody and visitation/parenting time is serious and important—not only to her, but also to Child. However, so too is the FOAH and the protection it affords—to Father, Mother, and Child. As an appellate court, we have not seen the witnesses, heard the testimony, or reviewed the exhibits (if any) that were presented to the trial court—i.e., the evidence upon which the FOAH is based. By not providing this information to us, Mother has precluded meaningful appellate review of the FOAH.
III. DISPOSITION
The July 25, 2019 FOAH is affirmed. Father is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.