Opinion
NOT TO BE PUBLISHED
Super. Ct. No. FL342006
DAVIS, J.
In this marital dissolution appeal that focuses on child custody, the father claims that three related orders in the trial court’s judgment--that neither parent take the minor child out of the United States, that neither parent obtain a passport for the child or add the child to their passport, and that the child’s United States and Persian passports be lodged with the court--were not properly made under Family Code section 3048 and are unconstitutional.
We conclude that, because this matter was tried without a reporter’s transcript (a judgment roll appeal), the judgment must be affirmed.
Background
In light of the procedural posture of this matter, a lengthy recitation of the facts is neither possible nor necessary.
Akbar Fathali (Father), an American citizen of Iranian birth, married Iranian-born Rozita Dayani (Mother) in 1998 and helped her obtain American citizenship. In 2001 Father and Mother had a child, Anahita (Daughter).
In declarations, Father stated that in February 2005, he, Mother, and Daughter went to Iran to visit the parents’ families. While Mother and Daughter were visiting Mother’s family, Mother informed Father that she and Daughter would remain there and not return to the United States. Mother’s behavior prompted the present marital dissolution proceeding (which began as a petition for legal separation and an order to show cause for child custody) as well as Iranian legal proceedings. Mother and Daughter returned to the United States, and Mother and Father attempted to reconcile.
In counter-declarations, Mother stated that Father took her and Daughter to Iran in February 2005 under the pretext of visiting relatives. Mother later learned that Father’s true purpose for the visit was to take her and Daughter’s passports and then flee Iran while leaving Mother and Daughter behind. This was done so Father could liquidate the community property and report Mother as abducting Daughter and refusing to return to the United States. For eight months, Mother and Daughter remained stranded in Iran without their passports.
The marital dissolution matter, including the property, custody and visitation issues, was tried on October 23, 2006, without a reporter’s transcript. “After considering the oral and documentary evidence presented,” the trial court ordered as pertinent: (1) “The parties shall have joint legal custody with physical custody to the Father. The Mother shall have the minor child each year from June 15th to August 15th”; (2) “Neither party shall take the minor child out of the United States”; (3) “Neither party shall obtain a passport for the minor child or add the minor child to their passport”; and (4) “The child’s U.S. passport and Persian passports shall be lodge[d] with this court.”
Discussion
On appeal, Father claims that orders (2), (3) and (4) quoted immediately above are wrong in two respects: (i) they were not made in compliance with Family Code section 3048 (hereafter, section 3048), and (ii) they are unconstitutional.
(i) Section 3048
The provisions of section 3048 pertinent here are found in its subdivision (b). They specify:
“(b)(1) In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent. To make that determination, the court shall consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted. To determine whether there is a risk of abduction, the court shall consider the following factors: [these factors include a party’s history and geographic ties].
“(2) If the court makes a finding that there is a need for preventative measures after considering the factors listed in paragraph (1), the court shall consider taking one or more of the following measures to prevent the abduction of the child: [¶] . . . [¶]
(C) Restricting the right of the custodial or noncustodial parent to remove the child from the county, the state, or the country. [¶] . . . [¶]
“(E) Requiring the surrender of passports and other travel documents.
“(F) Prohibiting a parent from applying for a new or replacement passport for the child. [¶] . . . [¶]
“(3) If the court imposes any or all of the conditions listed in paragraph (2), those conditions shall be specifically noted on the minute order of the court proceedings.”
As stated, the trial court ordered that neither parent take Daughter out of the United States, that neither parent obtain a passport for Daughter or add Daughter to their passport, and that Daughter’s U.S. and Persian passports be lodged with the court.
Father acknowledges that section 3048, subdivision (b), authorizes a trial court to make the orders the trial court made here. (§ 3048, subd. (b)(2)(C), (E), (F).) But Father argues in his opening brief that “[a]ny such order must be predicated on a specific finding of a ‘need for preventative measures’ after considering the statutory factors in section 3048(b)(1). [See § 3048, subd. (b)(2).] The court’s consideration of the statutory factors, its findings on those factors, and any restrictions imposed as a result of those findings must be stated in the court’s minute order. Fam. Code, § 3048(b)(2), (3).” (Italics added.) Father claims the trial court’s challenged orders here were “not supported by any of the findings required by . . . section 3048.”
Father is mistaken with respect to the italicized sentence quoted just above. Under the dictates of section 3048, only the abduction-preventative measures (restrictions) imposed pursuant to section 3048, subdivision (b)(2), need be “specifically noted” in the trial court’s order. (§ 3048, subd. (b)(3).) That is what the trial court did here. Section 3048 does not require that a trial court’s consideration of the statutory factors (concerning risk of abduction and preventative measures; see subd. (b)(1))--or its findings on those factors (see subd. (b)(2))--be stated in its order. (Compare § 3048, subd. (b)(1) & (b)(2) with (b)(3).)
And this distinction makes all the difference here. This is because this matter was tried, as Father notes, “without a court reporter present.” The record consists only of the clerk’s transcript and some exhibits; there is no reporter’s transcript. Consequently, this appeal must be treated as one on the judgment roll. (Crummer v. Zalk (1967) 248 Cal.App.2d 794, 796.) “‘[W]hen an appeal is based upon the judgment roll alone a reversal cannot be ordered except for a fatal error on the face of the judgment.’” (Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806.) As just explained, the error alleged with respect to section 3048--i.e., the lack of required findings--does not affirmatively appear on the face of the partial record here.
The Judicial Council’s Family Law Form 341(B)--entitled “Child Abduction Prevention Order Attachment”--does contain on the form the section 3048, subdivision (b)(2) finding, and subdivision (b)(1) factors, but the language of section 3048 does not require that this finding and these factors be made expressly on the face of an order. (See also § 3048, subd. (c) [stating in part, “The Judicial Council shall make the changes to its child custody order forms that are necessary for the implementation of subdivision (b)”].) The trial court did not use Form 341(B) for the orders challenged here.
This principle of judgment roll review follows from the basic principle of appellate review that “‘“[f]or an appeal to engage the consideration of an appellate court, it must be brought up on a record which . . . shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.” This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.’” (People v. Green (1979) 95 Cal.App.3d 991, 1001; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321.)
Under these principles, we must presume, in the absence of a record affirmatively showing otherwise, that the trial court made any findings required to impose the preventative measures it did. (§ 3048, subd. (b)(2)(C), (E), (F).) In its order, moreover, the trial court noted that it had imposed these measures “[a]fter considering the oral and documentary evidence presented.” (Italics added.)
(ii) Constitutional Claims
Father contends that the trial court’s passport and travel restrictions regarding Daughter unconstitutionally impinge on his right to travel and his right to direct Daughter’s upbringing.
Father concedes these rights are not absolute but may yield to superior state interests. Father argues, however, that the lack of findings on the trial court’s part to support these restrictions equates to a lack of such interests. For the reasons explained above, we may not presume the lack of such findings on this partial record. Furthermore, courts generally refrain from addressing constitutional questions unless resolving a case requires it be done. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)
Finally, it appears that both parents now believe that Daughter may be able to travel to Iran, at least under certain conditions. If that is the case, one or both of them may file in the trial court a postjudgment motion requesting a change in the existing orders and proceed from there.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., RAYE, J.
At oral argument, Father maintained that Form 341(B) constitutes an authoritative interpretation from the Judicial Council of what section 3048 requires in terms of findings, an interpretation that is to be equated with the statute itself. Assuming simply for the sake of argument that Father is correct, we still have no way of knowing, without a court reporter’s transcript, whether the trial court orally made the required section 3048, subdivision (b)(2) findings. Again, section 3048 does not require that these findings be stated in the trial court’s written minute order.