Opinion
A151114
06-26-2018
In re the Marriage of ANGELICA and FRANCISCO PARTIDA. ANGELICA PARTIDA, Appellant, v. FRANCISCO PARTIDA, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSD12-00310)
Angelica Partida appeals in propria persona from an order awarding sole legal and physical custody of her youngest son (Minor) to his father, Francisco Partida, and allowing her professionally supervised visitation with Minor for up to six hours per week. She claims that the trial court abused its discretion because there is insufficient evidence in the record that the custody order is in Minor's best interests; because the trial court failed to consider Minor's wishes; and because the trial court disregarded alleged domestic violence by Francisco. However, because Angelica has not provided us with a reporter's transcript of the court trial that resulted in the challenged order, she has not supplied a record sufficient to meet her burden to show error. Accordingly, we affirm the order.
As is customary, we refer to the parties by their first names. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married on April 13, 1991, and separated on December 28, 2011. They have four children, one of whom, Minor (born in 2005), is the subject of the instant appeal. Angelica filed a dissolution petition on January 9, 2012. On June 6, 2014, the court entered its judgment of dissolution as of April 9, 2014.
The docket of the parties' dissolution proceeding before the superior court fills nearly 50 pages, and reflects that over more than five years, the trial court held numerous evidentiary and other hearings and issued multiple orders on a wide range of matters. On March 4, 2013, the court adopted the February 21, 2013 recommendation of a court-appointed mediator that the parties share joint legal custody of the children "upon a finding by the court that Father has not perpetrated domestic violence against Mother or against the children or the children's siblings within the previous five years." It also adopted the mediator's recommendation that the parents share physical custody of Minor in accordance with a specified school and holiday schedule.
On February 19, 2014, the parties appeared for a court trial on the custody and visitation issues, which the court had set at Angelica's request. According to the court's minute order, which is the only record of that proceeding we have been provided, Angelica testified regarding why she had withheld Minor from his father, and the court ordered her to divulge Minor's location. The court then ordered that sole legal and physical custody of Minor be awarded to Francisco, with Angelica to have supervised visitation two times per week, for up to two hours for each visit. At the suggestion of the child custody recommending counselor, it also ordered Angelica to obtain a psychological evaluation by a licensed psychologist or psychiatrist. Finally, it entered a child abduction prevention order, finding there was a risk that Angelica would take Minor without permission because she had violated or threatened to violate a custody or visitation order in the past, and had a history of not cooperating with the other parent in parenting.
Nearly all of the hearings before the trial court were unreported. The record reflects that the parties were informed in writing that as of January 2, 2013, the civil courts in Contra Costa County would no longer provide court reporting services, and that parties wishing to have their matters reported would have to comply with the court's protocol for the use of privately retained court reporters.
Angelica thereafter applied on numerous occasions to modify the custody and visitation orders. The court modified the visitation schedule and conditions in certain respects, including changing the supervisor, but sole legal and physical custody of Minor remained with his father.
On January 18, 2017, after the parties failed to reach agreement in mediation on the custody and visitation issues, the parties appeared for a court trial. The court found that Angelica had not complied with the court's pretrial orders requiring the parties to exchange exhibits and disclose expert and other witnesses, and therefore would not be permitted to present any exhibits or witnesses. Angelica testified and was cross-examined. The parties agreed that the court could consider certain expert recommendations and reports (which are not in the record on appeal). Following closing arguments by both parties, the court found that Angelica "has not met her burden of proof to change visitation from supervised to unsupervised." Its written order, filed on February 14, 2017, stated that Francisco shall have sole legal and physical custody of Minor, and contained detailed conditions governing Angelica's supervised visitation and the parties' parenting plan. The court specifically found "this order has been made after a contested evidentiary hearing set at Mother's request. It is, therefore, a 'final custody order' within the meaning of Montenegro v. Diaz (2001) 26 Cal.4th 249 and related cases because it is a final judicial custody determination rendered after a contested adversarial hearing at which both parents were present. In the future, this order may be modified as it relates to custody only upon a showing of a substantial change in circumstances that would make it necessary or expedient to order a new custodial arrangement. However, the terms of Mother's visitation may be modified using the 'best interest' standard." This timely appeal followed.
DISCUSSION
Angelica's challenges to the trial court's order suffer from a common defect: she has failed to provide us with an adequate record on appeal sufficient to show error. In particular, she has not provided us with a reporter's transcript of the trial, or an alternative to a transcript, such as an agreed or settled statement. (See Cal. Rules of Court, rule 8.120(b) [alternatives for providing a record of oral proceedings].) Nor did she request the trial court to prepare a statement of decision explaining the factual and legal basis for its decision. (Fam. Code, § 3022.3.) "It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. [Citation.]" (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) "Because [Angelica] provides us only the original trial court file, and fails to provide any reporter's transcript of the trial preceding the judgment from which [s]he appeals, we must treat this as an appeal 'on the judgment roll.' [Citations.] Therefore, . . . we ' "must conclusively presume that the evidence is ample to sustain the [trial court's] findings." ' [Citation.] Our review is limited to determining whether any error 'appears on the face of the record.' [Citations.]" (Id. at pp. 324-325.) We have carefully reviewed the limited record provided to us, and find no error. We briefly address each of Angelica's arguments in turn.
All statutory references are to the Family Code unless otherwise indicated.
Angelica's brief also fails to comply with rule 8.204(a)(1)(B) of the California Rules of Court, which requires that each point in a brief be supported by argument and, if possible, by citation of authority.
First, Angelica contends that the trial court abused its discretion in granting sole legal and physical custody of Minor to his father, Francisco. She claims that there is insufficient evidence that order is in Minor's best interests. "Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child. The court and the family have 'the widest discretion to choose a parenting plan that is in the best interest of the child.' (Fam. Code, § 3040, subd. (b).) When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (§ 3011.)" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, fn. omitted.) In reviewing a trial court's custody and visitation order, a reviewing court applies " ' the deferential abuse of discretion test.' 'The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child.' [Citation.]" (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.) Under that standard, the weight to be accorded to various factors, such as the children's relationship with a parent, generally is left to the trial court's discretion, and an appellate court errs in substituting its judgment for that of the superior court. (Id. at p. 1093; cf. Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 906-908 [trial court abused its discretion in granting father primary physical custody without weighing relevant factors].) The problem here, however, is that we lack any record of the evidence presented at trial, the factors the trial court considered, the findings it made, or its reasoning in issuing its order. Without such a record, Angelica cannot meet her burden to establish an abuse of discretion.
Second, Angelica contends that the trial court abused its discretion because it "did not allow [Minor's] voice to be heard." A court must "consider" and give "due weight" to the wishes of children who are "of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation." (§ 3042, subd. (a).) Only a child 14 years of age or older, however, must be permitted to address the court regarding custody or visitation, unless the court determines that doing so is not in the child's best interests. (§ 3042, subd. (c).) A younger child may be permitted to address the court regarding custody and visitation, if the court determines that is appropriate pursuant to the child's best interests. (§ 3042, subd. (d).) "To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor's counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party's attorney may also indicate to the judge that the child wishes to address the court or judge." (§ 3042, subd. (f).) However, the court has no mandatory duty to follow the child's wishes. (See In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 655-656 [despite the child's wish to relocate with her mother, court did not abuse its discretion in not following her wishes and instead awarding physical custody to father, where evidence showed greatest risk to child was losing relationship with father].) Further, if it determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding. (§ 3150, subd. (a); Cal. Rules of Court, rule 5.240.)
At the time of the court trial, Minor was 11 years old.
Again, however, Angelica has not met her burden to show error. The record does not present any basis for concluding that the trial court refused to consider Minor's views or abused its discretion in refusing to appoint counsel to represent him (if that is, in fact, what it did). We have not been directed to any portion of the record indicating, nor does Angelica assert, that the trial judge was ever informed that Minor wished to address the court on the subject of custody and visitation. The record does reflect that in August 2016, Angelica brought Minor's views on custody and visitation (in a handwritten letter that she transcribed) to the court's attention. While it appears that Angelica filed a request that the court appoint counsel to represent Minor's interests, she has not explained the grounds for that request, nor has she provided us with the record of any proceedings or rulings on that request. Finally, Angelica complains that Francisco failed to bring Minor to a scheduled hearing on her request for a contempt order against Francisco for purportedly failing to comply with the court's visitation order. The trial docket reveals that the court ordered the parties to have their son present at the next hearing on that request, unless the issues were resolved. At a continued hearing on that matter held on January 29, 2016, both parties appeared with counsel, but Minor was not present, and the court discharged the order to show cause regarding contempt. However, Angelica does not make clear why the court ordered Minor to be present at that hearing, nor has she supplied a transcript of either hearing.
In that letter, Minor wrote, "MY DREAM - I want to live with my mom on Wednesdays and Thursdays with Andre supervisor. Then I would get picked up by my Dad or by my sisters on Friday. Also on Tuesdays my mom would pick me up from school. Then on holidays my dad would keep me [Minor] for the winter break. Then my mom would take me for spring break. Then for the summer it would go every other week I would go with my mom and dad. Signed by me, [Minor]."
Third, Angelica contends that the court erred because it disregarded domestic violence by Francisco. That contention is relevant because there is a rebuttable presumption against a sole or joint custody award to a contestant who has perpetrated domestic violence against the other party, the child or the child's siblings within the previous five years. (§ 3044, subd. (a).) For purposes of this section, a person has " 'perpetrated domestic violence' " when he is "found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another . . . ." (§3044, subd. (c).) The presumption is triggered by issuance of a Domestic Violence Prevention Act restraining order, which requires a finding that the party being restrained committed one or more acts of domestic abuse. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1266-1267.)
Here, Angelica contends that Francisco engaged in domestic violence against Minor in 2012 or 2013 that resulted in the issuance of two restraining orders. The record before us, however, does not contain any such order, nor does it support Angelica's contention. In January 2013, early in the dissolution proceeding, Angelica sought a domestic violence temporary restraining order against Francisco, claiming he "constantly shakes" Minor. However, according to Angelica's signed declaration, that application was denied pending hearing, and Angelica then dropped the request after failing to appear at the hearing. On March 4, 2013, as noted above, the court made a finding that "Father has not perpetrated domestic violence against Mother or against the children or the children's siblings within the previous five years." The trial court's docket reflects that on June 26, 2014, it held a trial on Angelica's domestic violence claim at which Angelica, Francisco, and a third party witness, Maria Avalos (who is apparently Angelica's sister) testified, and that at the conclusion of the trial, the court denied her request for a restraining order. In short, there is no indication in the record that any court ever found that Francisco engaged in domestic violence against Minor or Angelica, nor has Angelica supplied us with any order containing such a finding.
A cryptic docket entry and minute order of February 11, 2013 reads, "The court orders the temp. domestic violence rest[raining] order shall be reissued, reflecting no temp orders issues." Whatever that may mean, it does not reflect any finding that Francisco committed domestic violence.
Angelica evidently made police reports against Francisco on several occasions. On one such occasion, on August 30, 2013, Angelica reported that Francisco had committed a battery against Minor several months earlier, then asked the police "if there was a way she could get immediate full custody of her son." In a September 25, 2013 minute order following a hearing, the court ordered that "neither party shall shake the youngest child." There is no indication in the record before us that Francisco was ever arrested or charged with domestic violence, much less that a court ever made a finding that he committed such an offense.
DISPOSITION
The Findings and Order After Hearing filed February 14, 2017 is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P. J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------