Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 99FL04615
SCOTLAND, P.J.
Ruben M. Robles appeals from a family court judgment dissolving his marriage to Carla Robles, dividing the parties’ assets and debts, and awarding custody of their two children to Carla.
For simplicity and to avoid confusion, we shall refer to the parties by their first names.
For the reasons that follow, we shall affirm the judgment.
BACKGROUND
Ruben has elected to proceed on a clerk’s transcript (Cal. Rules of Court, rule 8.120); thus, the appellate record does not include a reporter’s transcript of the trial in this contested dissolution matter, or of any other hearing. This is referred to as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)
The limited record we have establishes that Ruben and Carla were married in 1993 and have two children born in 1993 and 1996, respectively. They separated in 1999 and Ruben initiated this dissolution proceeding.
Following mediation in 2001, a temporary order in 2002 awarded custody of the children to Carla, with visitation to Ruben. Ruben was ordered to pay $1,100 per month in child support.
The trial of the matter was set for February 16, 2006 (further dates refer to events occurring in 2006). In anticipation of that proceeding, Carla filed and served a pretrial statement.
The minute order of February 16 shows the trial date was “dropped” and the matter was referred to Family Court Services, with a “return from FCS” scheduled for April 12, 1:30 p.m., in Department 122. On March 21, Carla filed a second pretrial statement. Its reference to a settlement conference and a trial date are blank; instead, it refers to the April 12 hearing in Department 122. Otherwise, it does not differ in any material way from her January pretrial statement. The proof of service for the second pretrial statement (together with a “court mediation form, final divorce, declaration of income and attachments”) shows it was served on Ruben at 714 P Street in Sacramento.
The mediator’s report recommended that the parties share legal custody (with Carla having decision-making authority over the children’s major medical and educational needs if she and Ruben could not agree) and share physical custody, with Ruben having the children on alternating weekends and every other Wednesday evening.
When Carla and Ruben appeared on April 12, the court adopted the mediator’s recommendation regarding custody and visitation, set the matter for trial on June 9, and ordered Carla to serve Ruben with the notice of settlement conference and trial.
On April 20, the court entered against Ruben a three-year domestic violence prevention restraining order, directing him to stay away from Carla. Ruben was present at the hearing, but the record on appeal does not include Carla’s application for the restraining order or a reporter’s transcript of the hearing.
On May 6, Carla served Ruben with the notice of settlement conference and trial, together with her pretrial statement and income and expense declaration. The proof of service states the documents were mailed to Ruben at “Capitol Towers, 1500 7th St., 7th St. Sac, CA 95814.”
Trial commenced on June 9. Ruben did not appear, and Carla waived his failure to file declarations of disclosure. The court issued a judgment of dissolution, awarding legal and physical custody of their children to Carla, with visitation “per parties[’] current arrangement”; ordering Ruben to pay $936 per month in child support; and dividing the couple’s assets and debts. Carla was awarded the family residence and ordered to pay to Ruben $35,000 as an equalizing payment for his share of the equity in the family home. From the equalizing payment, the court deducted the $50,220 that Ruben owed to Carla in child support arrearages accrued between 2002 and 2006--leaving a net of $15,220 in child support arrearages owed by Ruben.
Ruben claims he sought to set aside the judgment pursuant to Code of Civil Procedure section 473, but he failed to include in the appellate record any court documents relating to such a motion.
DISCUSSION
I
On appeal, we must presume the trial court’s judgment is correct (see Denham v. Superior Court (1970) 2 Cal.3d 557, 564) and therefore 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 error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must present an analysis of the facts and legal authority on each point made, and also must support the arguments with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Although Ruben is representing himself on appeal, he is held to the “same ‘restrictive procedural rules as an attorney.’” (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)
Because Ruben has chosen to appeal only “on the judgment roll” (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we “‘must conclusively presume that the evidence is ample to sustain the [trial court’s] findings.’” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) 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.)
II
This matter was scheduled for trial on February 16; however, the trial date was “dropped” and the matter referred for further mediation.
Ruben insists that the dropped trial date undermined the viability of the dissolution proceeding because, in his view, the order dropping the trial date effectively “dropp[ed] dissolution proceedings.” Asserting that the trial court, at the hearing on February 16, “instructed [the] parties to re-file [the] dissolution motion dropping the trial proceedings,” Ruben argues that because Carla failed to file a new dissolution petition, the trial court lacked the authority to enter a judgment dissolving the marriage. He is mistaken.
“Dropping” a trial date merely removes the scheduled trial date from the court calendar and requires the trial court to reset the matter for trial at a later date. Ordinarily, a dropped trial date has no effect on the action for dissolution. The parties are not required to refile the action; the trial date must merely be rescheduled. (See, e.g., In re Gehring (1943) 22 Cal.2d 708, 711 [matter dropped from the trial calendar must be “reset” on request by a party].)
Moreover, contrary to Ruben’s claim, the court’s minute order did not instruct either party to refile the dissolution action. And as the respondent in this action brought by Ruben, Carla was not required to file a new “motion of dissolution” before a trial could be held and a judgment rendered.
III
Ruben also claims the court had no power to enter a judgment of dissolution (or, alternatively, abused its discretion in doing so) because, while the proceeding was pending, “[t]he marriage had reconciled approximately 4 years, the parties held themselves out as husband and wife, refinanced their community home, and purchased a second home, engaged in sexual relationships while sharing responsibility for raising their two children.”
Ruben cites as authority two cases, People v. Howard (1984) 36 Cal.3d 852 and In re Marriage of Modnick (1983) 33 Cal.3d 897. Both of those cases considered the effect of reconciliation that occurred during the period--created by pre-1983 law--between the entry of an interlocutory judgment and entry of the final judgment procedure. They do not apply here because the Legislature has eliminated the interlocutory judgment procedure. (See 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 109, p. 164, § 114, p. 169.)
In any event, the record on appeal does not establish that Ruben and Carla ever reconciled within the meaning of family law. “The burden of proof in the trial court rests with the party asserting the fact of reconciliation. [Citations.] That party must establish by ‘clear and cogent proof’ that the spouses mutually intended to resume their marital status and to live together on a permanent basis. [Citations.] [¶] The intention to reunite must be unconditional and contemplate a complete restoration of all marital rights. [Citations.] These rights ‘include not only cohabitation in the sexual sense, but also those rights pertinent to the companionate aspects of marriage and those pertaining to marital property.’ [Citation.] [¶] Mere cohabitation after entry of the interlocutory decree, even for a long period of time, does not establish that the parties have reconciled as a matter of law. [Citations.] ‘Length of cohabitation while significant as a matter of evidence of reconciliation is not conclusive.’ [Citation.] ‘The controlling question is the actual finding of an intent to reconcile.’ [Citation.]” (In re Marriage of Modnick, supra, 33 Cal.3d at pp. 911-912, fn. omitted.) No such evidence is present in this case. Apart from some indication that Ruben and Carla lived together during some or all of the period between 2002 and 2006, there is no evidence they intended to reconcile.
Even if they had reconciled, that fact would not deprive the court of the power to enter a dissolution decree.
IV
Ruben contends that he had no notice of the trial; therefore the court erred in permitting the trial to proceed in his absence. He points to the proof of service for the notice of settlement conference and trial date, which shows the documents were served on him at “Capitol Towers, 1500 7th St., 7th St. Sac, CA 95814,” when his actual home address was then 1500 7th Street, #8G.
Ruben also claims “fraudulent proof of service,” i.e., service on the incorrect address, in connection with service of Carla’s March 21 pretrial statement, which referred to the April 12 hearing. The proof of service for that document states it was served on Ruben at 714 P Street; on appeal, he states he worked at 744 P Street, and 714 P Street is “a vacant state building.” However, Ruben neither shows by reference to the record that the address was incorrect, nor does he claim he did not receive the documents listed on the proof of service. In fact, he appeared at the next hearing noted on those documents. Because Ruben has failed to show that the address was incorrect, or that he was prejudiced by the error, his argument provides no basis for any relief.
Code of Civil Procedure section 594 provides that when a party fails to appear for a trial involving contested issues of fact, trial may be held in that party’s absence if “proof shall first be made to the satisfaction of the court that the [absent] party has had 15 days’ notice of such trial . . . .” (Code Civ. Proc., § 594, subd. (a).)
Proof that the absent party received notice of the trial date from the court or the other party must be established by competent evidence before the trial may proceed in his or her absence. (Code Civ. Proc., § 594, subd. (b).) “[T]he overall evidentiary provision is mandatory, but the form of proof, be it either introduction into evidence of compliance with Code of Civil Procedure section 1013a, or other competent evidence, is at the discretion of the party attempting to proceed in the absence of its adversary.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 55.)
Because “‘[a] proceeding taken against [a party] in his absence is in the nature of a default[,] the purpose of [Code of Civil Procedure section 594, subdivision (a)] is to prevent the possibility of such default being taken against one who has, by reason of insufficient notice or no notice of the time of trial, been unable to appear.’ [Citations.]” (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.) Indeed, proceeding to judgment in the absence of a party is “an extraordinary and disfavored practice in Anglo-American jurisprudence: ‘[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’ [Citations.] Reflecting this principle, [Code of Civil Procedure section 594, subdivision (a)] expressly puts the burden on the party seeking to proceed with trial in the absence of the opposing party to prove that the absent party received the statutory 15-day notice.” (Au-Yang v. Barton, supra, 21 Cal.4th at p. 963; In re Marriage of Goddard, supra, 33 Cal.4th at p. 58.)
Ruben’s claim of error fails because our review of this judgment roll appeal is limited to error that appears on the face of the record. (See National Secretarial Service, Inc. v. Froehlich, supra, 210 Cal.App.3d at p. 521.) On the face of the record, a proof of service of the notice of trial date shows service of the relevant documents within the statutorily required period. Although the address on the proof omitted Ruben’s apartment number, it correctly identified the address of the apartment building and address where he was then living. We do not assume that an address with the party’s name, the address of the apartment building in which he lives, the city, and state, is necessarily inadequate. And without a reporter’s transcript, we presume the trial court properly found ample evidence that Ruben had notice of the trial proceedings. (Evid. Code, § 664; People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. 5; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 8-9 [“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”].) Consequently, we must infer from the court’s actions that it proceeded with the trial only after satisfying itself by competent evidence that Ruben had received notice of the trial date in compliance with Code of Civil Procedure section 594.
V
To escape application of the judgment roll appeal rules that limit our review to errors appearing on the face of the record, Ruben attempts to characterize virtually every remaining claim of error as one rendering the trial court’s actions “void on the face of the record.” However, Ruben’s contentions that the court erred in entering a restraining order which included the children as protected persons, or abused its discretion in entering a judgment that granted exclusive rights in the family residence to Carla and divided responsibility for the couple’s debts, are not supported (with one exception) by any citation to the record on appeal. Hence, those claims of error are waived. (See County of Solano v. Vallejo Redevelopment Agency, supra, 75 Cal.App.4th at p. 1274.)
The sole exception to his failure to provide any citation to the record is his challenge to the court’s award of custody. Ruben contends the judgment is “void on the face of the record” because it departs from the mediator’s recommendation of joint legal custody, with Carla having “tie-breaker” authority. However, on appeal from a contested proceeding with no reporter’s transcript, we must presume not only that the trial court made all necessary findings to support the judgment, but that those findings are supported by substantial evidence adduced at trial. Because we thus presume the trial court heard evidence at trial from which it properly determined that Carla should have sole legal custody of the children, Ruben’s claim that the court erred in its custody award fails. (Cf. Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)
DISSOLUTION
Because Carla has made no appearance in this court, she has incurred no costs in this court.
We concur: SIMS, J., MORRISON, J.