Opinion
F087263
10-22-2024
In re the Marriage of DARREN and TIFFANY FOX. v. TIFFANY FOX, Respondent. DARREN FOX, Appellant,
Law Office of Leah R. Alvarez and Leah Richelle Alvarez for Appellant. Central California Legal Services, Inc., and Cheri-Lynn Wortham for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 21CEFL04394 Steven M. Crass, Commissioner.
Law Office of Leah R. Alvarez and Leah Richelle Alvarez for Appellant.
Central California Legal Services, Inc., and Cheri-Lynn Wortham for Respondent.
OPINION
DE SANTOS, J.
After a two-day hearing, the trial court granted Tiffany Fox's (mother) request for a domestic violence restraining order against her former husband, Darren Fox (father), pursuant to the Domestic Violence Prevention Act (DVPA, Fam. Code, § 6200 et seq.). The trial court also granted mother's request for sole legal and physical custody of their daughter, O.F. (daughter).
Father appeals, contending the trial court erred when it denied his request to be provided with police reports, admitted certain evidence over his objections, and issued the restraining order for a period of five years. Father's claims of error, however, require us to consider and evaluate the evidence introduced and admitted at trial, including the testimony given. We are unable to do so in the absence of father providing a reporter's transcript, settled statement, or agreed statement of the oral trial proceedings. Because father failed to carry his burden to affirmatively demonstrate error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father separated in July 2021 after a 10-and-a-half-year marriage. A judgment of dissolution was entered in April 2022. In August 2022, a stipulated custody and visitation order was filed which granted the parents joint legal and physical custody of their daughter, who was then six years old.
In July 2022, mother filed her first request for a domestic violence restraining order. The matter initially was set for hearing in August 2022, but apparently it was continued to April 2023. The case appears to have been dismissed as mother "dropped the upcoming trial" because the hearing date conflicted with her nursing school schedule and she could not get a continuance.
In April 2023, father filed a request for order seeking sole legal and physical custody of daughter. Father asserted he was concerned mother was not complying with a provision of the custody order which prohibited her from allowing daughter to have contact with a certain individual. He admitted hiring an independent detective agency to conduct surveillance to determine if daughter was having contact with the individual. Father also asked the court to enforce an existing order requiring the parties to participate in conjoint counseling.
Further references to dates are to dates in the year 2023 unless otherwise stated.
Mother filed a second request for a domestic violence restraining order in May. She requested no contact and stay away orders to protect herself and daughter and asked to be given sole legal and physical custody of daughter.
Mother described the abusive acts she and daughter were subjected to as follows: (1) father sent mother harassing messages through the Talking Parents app; (2) three days after father served her with the papers to change their custody agreement, mother discovered suspected drugs planted underneath her car in a black magnetic box, which a police officer believed was crystal meth; (3) when she took her car to Clovis Volkswagen so they could check under the car, they discovered trackers had been placed on her car; (4) mother reviewed camera footage from her apartment complex and car cameras, which showed two young men driving into the complex and one of them holding a black box; (5) father hired people to follow mother and take pictures of her; and (6) mother found trackers in daughter's stuffed animal and on her and her boyfriends' cars in October and November 2022.
Mother also declared that in May 2023, daughter told her that father had a gun and a knife, and daughter overheard father saying in a phone call that he was going to use the gun on mother's boyfriend. Mother reported the matter to the police and a case was opened. Daughter also believed people were following she and mother. Mother claimed father constantly drilled daughter on where mother was and what she was doing, and daughter suffered anxiety because she thought she would never see mother again. Mother attached the following as exhibits to the request: the Talking Parents app messages; purported photographs of the trackers; purported photographs of the container that possessed the drugs; and purported photographs of men following and watching her.
On May 30, the trial court issued a temporary restraining order that named mother and daughter as protected parties. Mother also was granted sole legal and physical custody of daughter pending the hearing.
The hearing on mother's request was continued several times and ultimately held on October 9. On September 29, mother filed a witness list that included the names of the witnesses, their contact information, and a summary of their testimonies. The witnesses listed included mother and the following individuals: (1) three police officers who investigated mother's claims; (2) police detectives Cocilova and Inabnit, who also investigated mother's claims; (3) Tom Chavez, who would testify that father hired him to follow mother and place trackers on her vehicle; (4) Jazim Aviles, who was from Clovis Volkswagen and would testify about finding trackers on mother's vehicle and turning them into the police; (5) Joe Mendoza, who would testify about finding trackers on mother's vehicle and turning them into the police; and (6) Erik Seoane, who would testify about father threatening to kill mother and other aspects of his abuse of mother. Mother's counsel also filed an exhibit list with the exhibits attached, which included text messages between the parties, pictures, and text messages between father and Seoane.
Presumably the witness and exhibit lists were served on father's counsel, but the proofs of service, which the register of actions shows were filed, are not in the appellate record.
On October 4, father filed a trial brief which only mentioned mother's July 2022 request for a domestic violence restraining order. Father stated the issues were: (1) "everything that is addressed lacks any foundation and there are multiple levels of hearsay"; (2) mother's brief cited "multiple police reports," but no reports were attached; (3) mother's exhibits mainly consisted of father's replies and omitted the initial contact, which were misleading without proper context; and (4) while "the messages are distasteful" they do not support a domestic violence restraining order. Father asked the court to "assess the evidentiary issues being proferred by [mother] as the evidence presented in [mother]'s trial brief goes against the rules of the California Evidence Code." Father did not cite any legal authority or make specific objections to mother's proposed evidence.
There is no trial brief from mother in the appellate record. The register of actions shows only one trial brief was filed, which apparently was father's trial brief. Mother asserts on appeal that she never filed a trial brief.
The hearing on mother's request was not reported and father did not obtain an agreed or settled statement of the proceedings; instead, he elected to proceed with only the clerk's transcript. The minute order of the October 9 hearing shows that the parties' attorneys stated their objections at the outset of the hearing, and the trial court noted father's attorney's objection in which she asked to exclude all witnesses and police reports because they were not included in discovery. Seoane testified on mother's behalf. After his direct-examination, mother's attorney requested that exhibits 1 through 14 be entered into evidence. Father's attorney objected, but the court overruled the objection and received exhibits 2, 3, 5, and 8 into evidence. Father's attorney cross-examined Seoane, followed by redirect- and recross-examinations.
Detective Inabnit then testified on mother's behalf. Father's attorney stated there were "multiple objections" regarding the detective's testimony, but the trial court overruled the objections. The parties completed direct-, cross-, redirect-, and recrossexaminations of the detective. Jose Mendoza, an employee of Clovis Volkswagen, also testified on mother's behalf, and the parties completed their direct-, cross-, redirect-, and recross-examinations of him. The trial court received exhibits 1 through 16 into evidence and adjourned the hearing for the day.
On October 17, mother filed a supplemental brief in response to the trial court's request for authority on whether threats made against mother to a third party constitute domestic violence, in which she argued they did. The brief stated that Seoane testified that father threatened to kill mother at least a dozen times, had a ghost gun and ammunition, and planned to kidnap mother, take her to a warehouse, and "beat her until she drinks from a straw." Based on these threats, mother requested a five-year restraining order.
The second day of the hearing was held on November 1. The minute order of the hearing shows that mother testified, and father's counsel cross-examined her. All exhibits were entered into evidence except exhibit 21 "on the agreement of both Counsel." After father testified, both sides rested and gave their closing arguments. Following a recess, the trial court issued its ruling. The trial court found there had been at least one act of domestic violence and mother met her burden of proof pursuant to Family Code section 6320. The trial court ordered the issuance of a five-year restraining order and granted mother sole legal and physical custody of daughter, with father receiving supervised visits at an agency. A restraining order after hearing and an order regarding child custody and parenting time was filed on November 1, 2023.
DISCUSSION
The purpose of the DVPA "is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (Fam. Code, § 6220.) The DVPA "provides for the issuance of restraining or 'protective' orders, ... that enjoin ... acts of abuse." (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) We review the grant of a request for a domestic violence restraining order for abuse of discretion. (In re Marriage of Davila &Mejia (2018) 29 Cal.App.5th 220, 226.)
Father contends the trial court's finding that there was at least one act of domestic violence was based on unreliable and inadmissible evidence. Specifically, he contends the trial court erred when it: (1) proceeded with the hearing despite his objection that he was not provided with the police reports that were cited in mother's trial brief and failed to order the reports be provided to him; (2) "disregarded a multitude of California Evidence Code objections" when father asked the trial court in his trial brief to assess the evidentiary issues mother presented in her trial brief; (3) overruled his objections to Inabnit's testimony and admitted photos of trackers into evidence without an expert to authenticate them; (4) allowed Mendoza to testify to matters that were beyond the scope of his personal knowledge; (5) entered text messages into evidence without a complete dialogue; and (6) issued a restraining order for five years when there was no evidence mother was injured.
The record, however, is inadequate to assess father's claims of error. Our review is governed by a fundamental principle of appellate procedure, namely, that" '[a] judgment or order of the lower court is presumed correct,'" and thus," 'error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [it is appellant's burden "to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment"].)" 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."' [Citation.]' "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, at p. 609.)
It is father's burden as the appellant not only to show error, but also to show prejudice from that error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963; see Cal. Const., art. VI, § 13 ["No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"].) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice." (Century Surety Co., at p. 963.) Reversal is only required where the appellant demonstrates prejudicial error based on sufficient legal argument supported by citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.)
Here, although the hearings were not reported or recorded, father could have obtained an agreed or settled statement of the oral proceedings. (Cal. Rules of Court, rules 8.120(b)(2) &(3), 8.134, 8.137.) By electing to proceed without a record of the oral proceedings "[w]e must treat this as an appeal 'on the judgment roll,' to which the following rules apply:' "Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment [or order] on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation] .. and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it...." '" (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574-575.) Moreover, we presume that official duties have been regularly performed, which includes the trial judge's actions. (Id. at p. 575.)
We apply these principles to father's claims of error. Father contends he was entitled to discovery of the police reports because they were referenced in mother's trial brief, but it does not appear mother filed a trial brief and there is not one in the record. He complains that without the police reports, he did not know what Detective Inabnit's testimony would be, but mother filed a witness list a week and a half before the hearing which listed the detective's contact information and a summary of her testimony. Father argues the trial court failed to determine the importance, relevance, and need for the information he requested, but without a record of the oral proceedings, we cannot determine whether the trial court erred in exercising its discretion to deny his discovery request.
In addition to being unable to assess trial court error, we cannot tell whether any purported error was prejudicial. A party challenging a trial court's discovery errors must show the error was prejudicial, i.e., that" 'it is reasonably probable the ultimate outcome would have been more favorable to the [appellant] had the trial court not erred in the discovery rulings.'" (Property Reserve, Inc. v. Superior Court (2016) 6 Cal.App.5th 1007, 1020.) Father, however, has failed to demonstrate it is reasonably probable the hearing's outcome would have been more favorable to him had the trial court ordered the police reports be provided to him. Father claims he was unable to competently question mother's witnesses, but we cannot assess this claim without a record of the witness testimony.
Father next asserts the trial court erred in disregarding his multitude of evidentiary objections, including objections to (1) Inabnit's testimony, (2) exhibits that purportedly showed photos of trackers; (3) Mendoza's testimony as to matters beyond the scope of his personal knowledge; and (4) incomplete text message threads. If a party desires to raise the erroneous admission of evidence as an issue on appeal, the party must object at the trial, specifically stating the grounds of the objection, and direct the objection to the evidence the party seeks to exclude. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260; Evid. Code, § 353.) Failure to object waives any defect in the evidence. (Platzer, at pp. 1260-1261.)
In his trial brief, father generally objected to mother's evidence as lacking foundation and consisting of hearsay, and that the text messages included in her exhibits were incomplete. The minute order shows father objected to exhibits 1 through 14 being entered into evidence and asserted "multiple objections" concerning Inabnit's testimony. The clerk's transcript, however, does not reveal the grounds for his objections, and does not show that he objected to Mendoza's testimony. Without a record of the oral proceedings, we cannot determine whether the trial court erred in admitting the objectionable evidence, as we have no idea of the grounds for father's objections, what testimony was proferred, and the purpose of the testimony. The record simply is inadequate to affirmatively show error. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at p. 1261.)
Moreover, to reverse the judgment we must be of the opinion the evidence father claims was erroneously admitted resulted in a miscarriage of justice. (Evid. Code, § 353.) But a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (O'Hearn v. Hillcrest Gym &Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.) The lack of a record of the oral proceedings precludes this court from examining the entire cause and meaningfully assessing whether, assuming an evidentiary error occurred, it is reasonably probable father would have achieved a more favorable result.
Finally, father asserts the trial court abused its discretion in issuing the restraining order for a period of five years because there was no evidence that mother was injured. The trial court has discretion to determine the duration of the restraining order which cannot exceed five years. (Fam. Code, § 6345, subd. (a).) We cannot assess whether the trial court abused its discretion without a record of the oral proceedings, as we cannot tell the basis of its decision or whether father objected to mother's request for a five-year restraining order.
In sum, without an adequate record for review, namely, the oral proceedings that include the witness testimony and father's specific objections, the issues father raises on appeal must be resolved against him. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
DISPOSITION
The restraining order after hearing and order regarding child custody and parenting time filed on November 1, 2023, are affirmed. Costs on appeal are awarded to respondent. (Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR: FRANSON, Acting P. J. SNAUFFER, J.