Opinion
D050782
4-18-2008
ROBERT F. KIBBLE, Plaintiff and Respondent, v. SHARON MORK, Defendant and Appellant.
NOT TO BE PUBLISHED
Robert F. Kibble (Kibble) and Sharon Mork (Mork) have a son, R. (the child), who is a minor. Under a prior court order, Kibble had custody of the child 80 percent of the time, and Mork had custody 20 percent of the time. In December 2006, the court conducted an evidentiary hearing that involved issues concerning child custody, child visitation, Kibbles request for possession of the childs passport, and Morks request to lift restrictions that limited her ability to drive with the child. Under the courts judgment, "[t]he present court orders as to child custody/visitation are to remain in effect except as modified herein"; the parties shall share joint legal custody of the child, who is to primarily reside with Kibble; and although Mork shall be able to provide input to Kibble as to the childs health, education and welfare, Kibble "shall have the final decision-making capability[.]" The court found that Morks "ability to meet the everyday needs of the . . . childs health, education, and welfare" is "compromised for a variety of reasons." The court also found "there is competent evidence of [Morks] conduct and erratic behavior, her substance abuse issues as evidenced by her change of plea to driving under the influence/child endangerment, and her parenting capabilities, as evidenced by the incident as to the . . . child wandering the street and being found by a stranger." The court found accurate Dr. Yanon Volcanis expert assessment that Kibble is an excellent parent.
Representing herself, Mork appeals from the judgment, contending the court erred by (1) failing to allow her to put on and examine additional material witnesses in violation of her due process rights; (2) allowing Dr. John Kachorek to testify when his "duplicitous" testimony was sealed in a prior case; (3) failing to properly object to Dr. Kachoreks testimony because there was a conflict of interest; (4) failing to provide her an award of attorney fees; (5) allowing doctor records and testimony to be heard and submitted without her consent in accordance with patient/doctor confidentiality law; (6) not allowing the recommendations of the appointed evaluator, Dr. Volcani, and the mediator, Dr. Hirschberg, that the parties be granted a "50/50 timeshare with shared custody of our son"; (7) "misunderstanding Dr. Volcani as Dr. Sparta was never court ordered to be seen as a facilitator," with the result that Dr. Sparta told her he could not see her or Kibble; (8) not demanding that Kibble produce "income and expense and production of documents and things"; (9) allowing her and Dr. Volcani to be deposed a second time, and ignoring her motion to quash both of those depositions; and (10) "relating any psychology involvement with me to be too much and not to acknowledge Kibble and the amount of psychologists hes been involved with as uneven grounds to mention as its also Dr.[/]patient confidential rule."
DISCUSSION
We have reviewed the courts 20-page statement of decision. The court therein described the history of this case: "[T]here have been approximately 20 ex parte hearings, the filing of 11 Order to Show Cause Hearings including those requesting Domestic Violence Restraining Orders, the involvement of at least five (5) mental health professionals including the completion of a full psychological evaluation, the retention of at least five (5) attorneys, and a modification motion filed by [Kibble] . . . ."
Because a trial courts decision is presumed to be correct, it is the appellants burden on appeal to show the court prejudicially erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) California Rules of Court, rule 8.204 provides that each appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Rule 8.204(a)(1)(C).) The rule requires that an appellants opening brief must "[s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from[,]" and it must "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(A), (C).) Statements of fact not part of, or supported by, citations to the record on appeal are improper and cannot be considered on appeal. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625; rule 8.204(a)(2)(C).) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14, 1247; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) We are not required to search the record to determine whether it contains support for Morks contentions. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
Here, with three exceptions, Morks opening brief does not contain citations to the appellate record to support her assertions of fact, procedure and law. At page 1 of her opening brief, Mork cites to "CT.,VI.,pg,0023-0030m" in support of her assertion that Kibble and Tony Mork, who appears to be Morks former husband, became friends. At page 4, she cites to "Transcripts pgs. 28,371-2-3-4-5, 22,23,24,25,26,245,246,83,84,115" in support of her assertion that "[i]nstead of agreeing, Kibble continued to litigate and request unlawful second depositions and cause more stress to our son . . . ." At page 7, she cites to "Pg. 173-4-5" in support of her assertion that "the Caldwell test Dr[.] Vo[l]cani gave [her] was for employment purposes not parenting skills and should not have been discussed as Sh[a]ron had objected to."
Because Morks opening brief contains virtually no citations to the appellate record to support her assertions of fact, procedure and law, we conclude that her contentions on appeal are forfeited. (Nwosu, supra, 122 Cal.App.4th at p. 1247; City of Lincoln, supra, 102 Cal.App.4th at p. 1239; Duarte, supra, 72 Cal.App.4th at p. 856; Guthrey, supra, 63 Cal.App.4th at p. 1115.) Accordingly, we also conclude that Mork has failed to meet her burden on appeal of showing the court prejudicially erred. (Winograd, supra, 68 Cal.App.4th at pp. 631-632.)
In reaching our conclusion, we are mindful that Mork represents herself on appeal. However, her status as a party appearing in propria persona does not provide a basis for preferential consideration. "A party proceeding in propria persona is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys. [Citation.] Indeed, "the in propria persona litigant is held to the same restrictive rules of procedure as an attorney." [Citation.]" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; see also Nwosu, supra, 122 Cal.App.4th at pp. 1246-1247.)
DISPOSITION
The judgment is affirmed. Kibble shall recover his costs on appeal.
We concur:
McDONALD, J.
AARON, J. --------------- Notes: All further rule references are to the California Rules of Court.