Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-02-FL110620
Mihara, J.
Appellant Tsvetan S. Torbov and respondent Katerina Shikoff-Torbov have two minor children. After the dissolution of their marriage, Shikoff-Torbov was awarded sole physical and legal custody of the children pursuant to a marital settlement agreement. Torbov appeals from an order denying his motions to modify child support and to change custody. He contends: (1) the trial court abused its discretion in denying his request for a continuance; and (2) he met his burden of showing a substantial change of circumstances, which would have justified modification of child support and custody. We find no error and affirm.
I. Procedural and Factual Background
On December 30, 2003, the judgment of dissolution of marriage was filed. The parties’ marital settlement agreement stated that respondent had sole physical and legal custody, the children had discretion as to whether they wanted to visit appellant, and respondent would have “the unlimited right to travel and/or relocate the residence of the children within or outside the United States without prior court approval.” The agreement also provided that the relocation of the children would not constitute a change of circumstances for the purpose of modification of the agreement.
On February 15, 2008, a trial was held on the issue of changed circumstances. Appellant testified that he did not have visitation with his children, and respondent refused to participate in mediation. Appellant acknowledged that reunification through psychological therapy failed because his children refused to participate with him. He has neither seen nor spoken to his children since June 2004. The telephone numbers that respondent gave to him either were “practically not working all the time” or her personal telephone number. He knows that the children are presently in Japan, and will be there for five years. He is very concerned that the children might lose their United States citizenship because they have dual citizenship in the United States and Bulgaria. He objects to their “nomadic” lifestyle. Appellant has never been abusive to the children, but he acknowledged that he has never sent them postcards, e-mails, or presents.
The reporter’s transcript consists solely of the hearing on March 14, 2008. However, the trial court found that appellant failed to meet his burden of showing that there had been a change of circumstances at the hearing on February 15, 2008. Since that transcript has not been included in the record on appeal, this court will take judicial notice of the reporter’s transcript of the February 15, 2008 hearing, which was included in the related case of Marriage of Torbov and Shikoff-Torbov (H033029). (Evid. Code, § 452.)
Focusing on the language in the judgment that respondent had the unlimited right to relocate the children’s residence outside the United States, the trial court concluded that appellant failed to establish changed circumstances. Accordingly, the trial court denied appellant’s request to change custody.
On March 14, 2008, after the trial court denied appellant’s request for a continuance, a trial was held on the issues relating to the amount of child support as well as the amounts of attorney’s fees for the children’s counsel and respondent’s counsel. Respondent’s counsel summarized the information from the parties’ income and expense declarations. Though respondent was no longer employed, $9,300 per month, which was her previous income, was imputed as her income. During the trial, the court noted that it had found in a prior trial “a couple of weeks ago” that “there was no change of circumstances justifying a change in custody.”
Following trial, the court awarded child support arrears in the amount of $16,400 and ongoing child support in the amount of $2,386 per month. Appellant’s motion for fraud was denied. The trial court found that respondent was the prevailing party and awarded her $71,398.75 in attorney’s fees. Respondent was also awarded $1,748.50 for appellant’s portion of the children’s uninsured dental and medical bills. In addition, the children’s counsel was awarded her attorney’s fees.
II. Discussion
A. Request for Continuance
Appellant contends that the trial court abused its discretion in denying his request to continue the March 14, 2008 hearing.
Appellant filed an ex parte request for a continuance and a trial brief. At the hearing on March 14, 2008, he argued that he was entitled to an “updated” income and expense declaration. He explained that he had received one “this morning,” but sought a continuance to “verify the declaration and respond to the financial information.” Respondent opposed any continuance on the ground that she had flown from Japan for the hearing, and that appellant had sought a continuance at the previous hearing in June.
The request and trial brief are not included in the record on appeal.
In response to the trial court’s inquiry as to whether additional discovery was necessary, appellant’s counsel asserted that “respondent moved four million dollars worth of properties in the local area due to the pendency of the action. There’s another action involving child support payments that have to do with her present husband in which another firm is saying she’s hiding the ball as well. We don’t even know what we’re going to find if we look for it because we’ve never had a single item of information with the exception of what was handed to me two minutes ago in court.” Respondent’s counsel disputed that appellant had not had the opportunity to conduct discovery, pointing out that the file showed that he had subpoenaed documents from the Internal Revenue Service and the State Department, and had also obtained discovery in a lawsuit that was filed against respondent in Bulgaria. Respondent’s counsel further stated that respondent was not working and had relocated to Japan, but that she was willing for the court to impute the amount of her monthly income that was listed in her prior income and expense declaration. The trial court denied the request for a continuance.
“The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c).) We review the trial court’s determination under the abuse of discretion standard. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.)
Prior to considering whether the trial court abused its discretion in denying the request for a continuance, we must address an underlying factual issue. As appellant correctly points out, both parties must file a current income and expense declaration when a party has requested attorney’s fees. (Super. Ct. Santa Clara County, Local Fam. Rules, former rule 4(A).) A party must also complete the assets section of the declaration. (Ibid.) “If an Income and Expense Declaration that was filed within the last three months is alleged to be current and relied on, a copy shall be attached to the moving or responding papers.” (Ibid.)
In his opening brief, appellant claims that respondent’s prior income and expense declaration was filed on March 26, 2007, and differed significantly from the declaration provided immediately prior to the March 14, 2008 hearing. According to respondent, however, the only difference between the declarations was that she no longer had an income because she was not working. Respondent was also willing to have the court impute her previous income in its calculations. The income and expense declarations have not been included in the record on appeal.
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) An appellant “has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Where the appellant has failed to provide an adequate record as to any issue the appellant has raised on appeal, the issue must be resolved against him or her. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Here, since appellant has failed to include both of respondent’s income and expense declarations in the record on appeal, we have no way of knowing when the first income and expense declaration was filed. With the exception of respondent’s income, we must also presume that the first income and expense declaration did not differ from the most current declaration.
Turning now to the request for a continuance, we conclude that appellant failed to demonstrate good cause. Appellant had adequate time to conduct any discovery of respondent’s assets, had obtained a previous continuance, and respondent’s prior income was imputed to her. (Cal. Rules of Court, rule 3.1332(c) & (d).) In addition, respondent would have been prejudiced by a continuance because she was currently living in Japan. (Cal. Rules of Court, rule 3.1332(d).) Accordingly, the trial court did not abuse its discretion in denying appellant’s request.
B. Change of Circumstances Finding
Appellant next contends that the trial court abused its discretion in finding that there had been no change in circumstances that would have justified modification of the child support and custody orders. He claims that he made an adequate showing by presenting evidence that the children had lost their United States identity because they have lived in Europe and Japan and have Bulgarian citizenship.
“[O]nce a final judicial custody determination is in place[,]... [u]nder the so-called changed circumstance rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification.” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro).) An appellate court reviews custody and visitation orders under the abuse of discretion test. (Montenegro, at p. 255.) We review the trial court’s factual findings under the substantial evidence test. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Here, the record supports the trial court’s finding that appellant failed to meet his burden of showing a significant change of circumstances to justify modification of custody. The parties’ 2003 marital settlement agreement provides that respondent has sole legal and physical custody of the children, she shall have “the unlimited right to travel and/or relocate the residence of the children within or outside the United States without prior court approval,” and any relocation would not constitute a change of circumstances for the purpose of modification of their custody agreement. Appellant’s claim that the children’s travel has resulted in loss of their identity has no merit since he has previously agreed to such travel and relocation of their residence. Nor has he established that dual citizenship prior to the age of 18 results in a similar loss. Accordingly, the trial court did not abuse its discretion in denying appellant’s motion to change custody.
III. Disposition
The order is affirmed.
WE CONCUR: Elia, Acting P. J.McAdams, J.