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In re Mariage of Johnson

California Court of Appeals, First District, First Division
Apr 29, 2009
No. A121661 (Cal. Ct. App. Apr. 29, 2009)

Opinion


In re the Marriage of MICHAEL R. JOHNSON and MARIA N. HOSU. MICHAEL R. JOHNSON, Appellant, v. MARIA N. HOSU, Respondent. A121661 California Court of Appeal, First District, First Division April 29, 2009

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. FD1-07-765931

Margulies, J.

Michael R. Johnson, in propria persona, appeals from a restraining order entered against him May 7, 2008, that also resulted in an order giving Johnson’s wife, Maria Hosu, temporary sole legal and physical custody of their daughter, and provided that exchanges for visitation be monitored. Johnson contends that the restraining order and related orders regarding custody and visitation must be reversed because (1) he was not properly served, (2) a judge rather than a commissioner should have presided, (3) the orders are not supported by sufficient evidence, and (4) his request for a copy of a police report was denied. We conclude that Johnson has failed to demonstrate any error, and affirm.

I. FACTS

Johnson and Hosu were married on June 1, 2006. They separated on December 6, 2007, when Johnson filed a petition for dissolution of marriage. The petition requested that the parties have joint legal and physical custody of their daughter Vanessa, who was born on September 18, 2005. The parties signed and filed a stipulation agreeing that a commissioner of the superior court could preside as a judge pro tempore, and on April 15, 2008, they stipulated to temporary joint legal custody pending a hearing set for June.

The parties continued to live together. In late April they had an argument that led to each party seeking a restraining order against the other. On April 25, 2008, Johnson sought a restraining order against Hosu. He alleged that he was afraid of Hosu because she had called the police and filed a false report alleging that Johnson had hit her. Hosu’s report resulted in his arrest, and Johnson spent three days in jail.

Hosu filed her request for a domestic violence restraining order against Johnson on April 30, 2008. In her supporting declaration she described two incidents. The first occurred on April 21, 2008. She declared that Johnson became angry about a list of bills and debts she had prepared, and “started screaming and throwing things.” Hosu was afraid and locked herself in the bathroom with her daughter until Johnson left the apartment. The second incident occurred on April 23. That evening Johnson got into bed with Hosu even though they normally slept in separate beds. She did not object until he began looking at her cell phone, which was charging near the bed. Hosu took the phone from Johnson, and went to sleep in her daughter’s room. Johnson followed, and demanded to see the phone. He eventually grabbed it, and when she tried to grab it back, he twisted her arm and pushed her onto the bed. He stated he was going to take the phone to the police to show that she was going through his things. Hosu was frightened and used her emergency phone to call 911. When Johnson tried to take that phone too, she screamed at him to stay away. He left the apartment with her nonemergency phone. When the police arrived she filed a police report. About 45 minutes later the police informed her that Johnson had been arrested and advised her to use the time he was in jail to move out, which she did. Over the next few days Hosu received messages from Johnson in which he sounded “drunk or high.” She had seen him use crack cocaine three or four times since 2004, and feared that his recent behavior might be the result of drug abuse. For all of these reasons, she was concerned for her own and Vanessa’s safety. On May 6, 2008, a deputy sheriff filed a declaration of due diligence of attempted service of Hosu’s moving papers.

Both parties appeared at the hearing on May 7, 2008. The court denied Johnson’s request for a restraining order against Hosu. Instead it issued a restraining order against Johnson, requiring him not to harass, threaten, or contact Hosu and Vanessa, and to stay at least 100 yards away except for the purpose of visitation. The court gave Hosu temporary sole legal and physical custody of Vanessa, specified that visitation days would be determined in accordance with the prior stipulation, and that the exchanges would be monitored by Rally Family Visitation Services (Rally). These orders were to remain in effect until the scheduled hearing on August 12, 2008, to review issues including support, custody, and visitation.

The appeal is arguably moot because the restraining order, and the related provision awarding Hosu temporary custody and requiring monitoring of exchanges at Rally, were set to expire on August 12, 2008. We, however, decline to dismiss it on those grounds because the order was premised upon allegations of domestic violence and drug use, and therefore could have an impact on subsequent decisions regarding custody and visitation. (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 208 [court exercised its discretion not to dismiss appeal of expired restraining order as moot where underlying issues could have an effect in pending dependency proceedings].)

II. ANALYSIS

“[I]t is settled that ‘[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.) It is also the appellant’s burden to provide an adequate record on appeal for meaningful review (see, e.g., Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 (Gee); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 (Maria P.)), a statement of appealability (Cal. Rules of Court, rule 8.204(a)(2)(B)), a summary of all the evidence with citation to the record (Cal. Rules of Court, rule 8.204(a)(1)(c)); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881), and argument in support of any claim of error supported by citation to legal authority. These rules apply equally to litigants who choose to represent themselves, and the failure to comply with any one of them may result in the waiver of a claim of error, or a determination that the appellant has failed to meet the burden to demonstrate error on appeal. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1244–1247; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Johnson’s brief does not include a statement of appealability, fails to provide a summary of the procedural facts or of the evidence submitted by both parties at the May 7, 2008 hearing, and does not provide any citation to the record or citation to legal authority. He also did not include a reporter’s transcript on appeal. These defects, combined with the presumptions in favor of the judgment or appealable order, lead us to conclude that Johnson has failed to meet his burden of demonstrating error, and we therefore affirm.

We must first address the issue of appellate jurisdiction because Hosu suggests, to the extent that Johnson seeks review of the temporary custody and visitation orders, the appeal should be dismissed because temporary orders regarding custody and visitation are not appealable. Temporary custody orders are, by definition, interlocutory, and not separately appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559–560.) In this case, however, the order providing for a temporary change in custody, although not separately appealable, is nonetheless subject to review upon appeal from the restraining order, which is an appealable order. (Code Civ. Proc. § 904.1, subd. (a)(6); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 331 [grant or denial of a temporary protective order pursuant to Fam. Code, § 6200 et seq. is appealable pursuant to Code Civ. Proc., § 904.1, subd. (a)(6)].) The change in temporary custody was based upon the same evidence as the restraining order, and the validity of the change in temporary custody stands or falls with the restraining order. We therefore have appellate jurisdiction, and may review the change in temporary custody because it is inextricably related to and based upon the same evidence as the restraining order. We may therefore now address all of Johnson’s claims of error.

Johnson contends that the restraining order must be reversed because he was not served with Hosu’s moving papers. The record contains only a declaration of due diligence of attempted service upon Johnson. The record, however, also reflects that Johnson appeared at the hearing, which proceeded on the merits. Although he states in his opening brief that he intended only to go forward with his own request for a restraining order against Hosu, he provides no citation to the record demonstrating that he objected to the adequacy of notice or requested a continuance, and does not provide a transcript of the hearing. We therefore must presume that he made no objection, and the issue of adequacy of notice is waived. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288–1289; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.)

Johnson also contends that the restraining order and related temporary custody provisions must be vacated because a commissioner rather than a judge heard the matter. This contention is without merit, because the record includes Johnson’s written and signed stipulation to Commissioner Slabach sitting as a judge pro tempore.

Johnson devotes the majority of his brief to a recitation of facts in opposition to the facts asserted in Hosu’s supporting declaration submitted to the trial court. Based upon these factual assertions, he argues he did not commit any act of domestic violence, and that there was no other factual basis for granting Hosu’s request for a restraining order or the related provisions awarding Hosu temporary sole legal and physical custody, or requiring exchanges for visitation to be monitored. This argument is unavailing because Johnson’s assertions of fact are not supported by any citation to the record below, and he has not included a reporter’s transcript as part of the record on appeal. In the absence of an adequate record and citation to it, the claim of insufficiency of evidence is waived, and we presume the existence of substantial evidence to support the court’s restraining order and its related orders awarding temporary sole legal custody to Hosu and providing for monitored exchanges through Rally. (Maria P., supra, 43 Cal.3d at pp. 1295-1296.)

Finally, Johnson complains that he was never provided with a copy of a police report he requested. Although Johnson does not explicitly state why the failure of the police department to provide him with a copy of the report is grounds for reversal of the court’s May 7 restraining order, our best guess is that he reasons the report he requested could have constituted material evidence in his defense. The record, however, does not include a copy of the report, and the only citation he provides is to a copy of a request he submitted to the San Francisco Police Department dated May 8, 2008, the day after the hearing that resulted in issuance of the restraining order against him. The record is inadequate to review this contention because, without a copy of the report, we cannot assess whether the report would have been material to his defense, and Johnson fails to present any intelligible argument as to why it would have been. Moreover, the only document in the record that Johnson cites in support of this argument indicates that the request was not made until the day after the hearing. Since we do not have a reporter’s transcript of the hearing itself, we also cannot determine whether Johnson took any steps at the hearing to preserve his right to present this evidence, such as asking for a continuance to allow him time to obtain and submit material evidence in his defense. In the absence of an adequate record, we must assume that Johnson did not make a timely request for a copy of the police report, or that he did not ask for a continuance to allow him to obtain and submit it. “[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” (Gee, supra, 99 Cal.App.4th at p. 1416; see also Maria P., supra, 43 Cal.3d at pp. 1295-1296.)

III. CONCLUSION

The orders entered on May 7, 2008, are affirmed.

We concur: Marchiano, P.J., Graham, J.

Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re Mariage of Johnson

California Court of Appeals, First District, First Division
Apr 29, 2009
No. A121661 (Cal. Ct. App. Apr. 29, 2009)
Case details for

In re Mariage of Johnson

Case Details

Full title:In re the Marriage of MICHAEL R. JOHNSON and MARIA N. HOSU. MICHAEL R…

Court:California Court of Appeals, First District, First Division

Date published: Apr 29, 2009

Citations

No. A121661 (Cal. Ct. App. Apr. 29, 2009)