Opinion
F061097 Super. Ct. No. VFL226730
08-31-2011
RONALD E. PIERCE, Plaintiff and Appellant, v. NADIRA M. ARREOLA, Defendant and Respondent.
Ronald E. Pierce, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Melinda M. Reed, Judge.
Ronald E. Pierce, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
In this family law case, Ronald E. Pierce appeals from the trial court's order entered on September 3, 2010, which, among other things, (1) denied his petition for writ of habeas corpus, (2) denied his motion for protective order regarding alleged harassment and cyber stalking, and (3) denied his request for appointment of an attorney. We affirm the order of the trial court.
FACTS AND PROCEDURAL HISTORY
A. Procedural History and Background
Pierce has failed to provide an adequate summary of the procedural history of this case. In the interest of filling in the contextual background, we take judicial notice of, and reiterate below, relevant portions of our synopsis of the factual and procedural history of this case that we set forth in our recent nonpublished opinion in Pierce v. Arreola (May 20, 2011, F060724). This will be an abbreviated summary only.
Pierce and Arreola were married in 1992 and, during their 15-year marriage, they had three children. On January 30, 2008, Pierce filed a petition for dissolution of the marriage. Arreola filed a response to the petition on February 28, 2008, agreeing that the marriage should be dissolved. A status-only judgment of dissolution was entered by the trial court on September 4, 2008, with all other issues reserved.
Temporary Restraining Order
On February 29, 2008, Arreola filed a motion for temporary protective orders against Pierce to prevent domestic violence, including a request for a stay away order and an order to prevent acts of harassment and other personal contact. Arreola's motion included a request that she receive sole physical custody of the children and that Pierce be allowed reasonable visitation. In support of her request for such orders, Arreola's declaration stated that Pierce is violent and unable to control his anger, and she provided several examples of Pierce's angry tirades that included yelling, throwing objects and breaking property items. On March 3, 2008, the requested relief was issued by the trial court as a temporary restraining order, effective pending the outcome of a contested hearing or trial of custody issues.
We sometimes refer to the protective orders as restraining order(s) herein.
Prior to the contested custody hearing, a number of continuances occurred because issues arose that required further evaluation by the trial court, including evidence that Pierce struggled with severe depression, thoughts of suicide (for a time) and had posted comments on Internet Web sites such as the statement that he would like to go on a "killing spree of ... global proportions." Pierce did not deny making that statement, but explained he was merely expressing his thoughts in the context of a vampire game where he "waxed artistic about [his] despair."
Contested Hearing on Child Custody and Visitation
The contested hearing on the issue of child custody was finally held on December 8, 2009. After considering a custody evaluation submitted by a mental health professional, the trial court ordered that, pending further hearing, Arreola would have sole legal and physical custody of the minor children. Pierce was granted visitation every Saturday at the home of the paternal grandmother from 12:00 p.m. until 6:00 p.m. A further review hearing would occur on April 9, 2010, at which time an expanded parenting plan would be considered. In regard to the factor of alleged domestic violence, the trial court held that Arreola's allegations "do not rise to the level of domestic violence pursuant to Family Code section 3044." Further, the trial court also held that "the restraining order against [Pierce] that is currently in effect shall expire on April 9, 2010, unless there are ongoing issues that warrant extension of the orders." (Italics added.)
Hearing and Order of April 9, 2010, Regarding Restraining Order
As noted above, the trial court's December 8, 2009, order provided that the restraining order would "expire" on April 9, 2010, unless it was shown there were "ongoing" issues that warranted an extension thereof.
On April 1, 2010, Arreola filed a declaration requesting that the trial court extend the duration of the restraining order. Arreola's declaration began by reiterating past matters of which the trial court was previously informed, including Pierce's alleged out-of-control anger that led Arreola to originally seek the restraining order, a subsequent domestic violence assessment, and Pierce's online Internet postings in which he admitted to being suicidal, severely depressed and also stated (apparently in a game setting) that he would like to go on a "killing spree of ... global proportions." As new and further information in support of her request to extend the restraining order, Arreola's declaration asserted that Pierce was continuing to engage in acts of emotional intimidation and harassment against her, as demonstrated in certain online Internet postings and frivolous legal filings.
Pierce has admitted being diagnosed with "Severe Depressive Disorder."
With regard to new Internet postings, Arreola's declaration and exhibits attached thereto showed that Pierce made an Internet blog entry in December 2009 stating that he would like to see "'the death chamber'" for those involved in the judicial proceedings or "'court-run corruption scheme'" that had brought him such misery. Arreola asserted that she continued to live in fear of Pierce, based in part on this "ongoing pattern of threatening statements on the [I]nternet ...." Arreola's declaration also presented evidence that, in 2009, Pierce posted an interview on Youtube that he conducted with the parties' autistic child about why the child purportedly wanted to stay with Pierce and did not want to live with Arreola. The public posting of such a sensitive matter was presented to the trial court as further evidence of Pierce's emotional intimidation and harassment.
On April 6, 2010, Pierce filed a declaration in opposition to the requested extension of the restraining order. Pierce decried the fact that Arreola was again "vomiting forth the same tired and perjurious allegations," and, consequently, it was with "a sigh of weariness over [Arreola's] continued maliciousness" that he presented his response. He asserted that he was no longer suicidal, not a threat to anyone's safety, and never committed or threatened domestic violence or abuse of any kind whatsoever. He claimed that, contrary to Arreola's "'scary'" portrayal of him, he was in reality a most "benevolent" family man. As to the Internet postings, Pierce pointed out that he had a right to state his own opinions and political views, including the opinion that Tulare County Superior Court's "sneeringly aloof family law judges," the "greedy" Tulare County Family Services mental health professionals, and the "twisted" lawyers involved in such proceedings, had been extremely corrupt and evil in how they treated him. He stated he had learned firsthand how "lives have been uprooted and destroyed by malicious spouses, judicial retaliation, and court racketeering that has nothing to do with the best interests of children ...." He stated that if he was persuaded that some of those "monsters" should "suffer the death sentence," and if he presented that viewpoint on the Internet, he was simply exercising his right to free speech. He did not deny that he filed the several lawsuits and threatened filing another, as referred to by Arreola, but contended such measures were legally justified in light of all the circumstances and the way he had been treated.
The hearing was held on April 9, 2010. At that time, the trial court issued the following order: "The court grants [Arreola's] request for continuance of the current restraining order against [Pierce]. The court finds good cause for the issuance based upon the evidence presented. The restraining order issued March 28, 2008, shall expire on March 28, 2013. The restraining order shall be subject to existing custody orders and future orders the court may make regarding custodial or visitation plan." Pierce appealed from the April 9, 2010 order. We affirmed that order of the trial court in our nonpublished opinion in Pierce v. Arreola (Feb. 17, 2011, F060078). Visitation Expanded in June of 2010.
In the trial court's order of June 25, 2010, Pierce's visitation was expanded. With respect to visitation, the trial court ruled in relevant part as follows: "[Pierce's] visitation is immediately modified as follows: [¶] a. [Pierce] shall have visitation with the children on the 1st, 3rd, and 5th weekends of every month, from Saturday at 9:00 a.m. to Sunday at 6:00 p.m. ... [¶] b. Visitation exchanges shall continue to take place at the Dinuba Police Department. [¶] c. [Pierce's] visits are no longer confined to the residence of [Pierce's mother]. [¶] d. [Pierce] is ordered to administer ... medication ... as directed by [the child's] prescription(s) during his visitation and [Pierce's mother] shall ensure that the medications are properly administered. [¶] e. [Pierce's] weekly telephone calls to the children are no longer ordered. The children are allowed to call and speak with [Pierce] by telephone whenever they would like to do so." Pierce appealed from the June 25, 2010 order, which order was affirmed by us in our nonpublished opinion in Pierce v. Arreola, supra, F060724.
B. The Order From Which Pierce Now Appeals
Several of Pierce's motions were set for hearing on the same date—i.e., September 3, 2010. One was a hearing on the issue of whether Arreola should be found in contempt of court for alleged violations of previous court orders and alleged perjury. Pierce's motion for contempt purported to describe the offending conduct. Arreola filed her response, contending that Pierce had not set forth adequate grounds for finding her to be in contempt. The trial court held the contempt allegations were "not true." It does not appear that Pierce is appealing from the ruling on his motion for contempt, which ruling in any event is conclusive and not appealable. (Code Civ. Proc., §§ 904.1, subd. (a)(1), 1222.)
A second matter that was set for hearing on September 3, 2010, was Pierce's petition for a writ of habeas corpus. In Pierce's writ petition, he asked the trial court to vacate the custody award, undo the restraining order, and place the children into his custody, because the trial court allegedly imposed such restraints and limitations upon his liberty without adequate evidence or due process.
The third motion heard on September 3, 2010, was Pierce's request for appointment of counsel, by which he claimed he was entitled to a lawyer in his ongoing family law litigation efforts, at no cost to him, paid for by the state.
Finally, the fourth motion heard on September 3, 2010, was Pierce's renewed request for protective orders regarding alleged harassment and cyber stalking by Arreola.
Pierce testified at the September 3, 2010, hearing and the trial court presumably heard oral argument from both parties regarding all the motions. After the hearing, the trial court denied all four motions. Pierce timely filed this appeal.
Pierce has not provided a transcript of the September 3, 2010, hearing.
DISCUSSION
I. Pierce's Burden As Appellant
"'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "'The burden of affirmatively demonstrating error is on the appellant.'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The judgment or order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. (Ibid.)The appellant has the burden of overcoming the presumption that a judgment is correct by providing an adequate record demonstrating error (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 123), and by presenting argument and legal authority, along with specific citations to the record, to support the particular claim of error (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557). These requirements apply equally to appellants acting without an attorney. (McComber v. Wells, supra, at p. 523.)
"'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.'" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
As a consequence of the appellant's affirmative burden of demonstrating reversible error based on adequate legal argument and citation to the record (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557), when points are perfunctorily raised, without adequate analysis and authority, or without citation to an adequate record, we pass them over and treat them as abandoned (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700).
Moreover, even if error is shown, the judgment will be upheld unless the error is shown to be prejudicial. (Cal. Const., art. VI, § 13 [no judgment may be reversed for procedural error unless it resulted in a miscarriage of justice]; Code Civ. Proc., § 475 [prejudicial error must be shown].) That being so, we do not reverse a judgment unless we conclude "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) "'The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.'" (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)
II. No Error or Abuse of Discretion Shown
The September 3, 2010, order actually encompasses several distinct rulings from which Pierce appeals. We now consider each of the challenged rulings.
First, Pierce claims the trial court erred when it denied his petition for a writ of habeas corpus by which he sought to have the children placed into Pierce's full-time custody and to undo the restraining order. Pierce's appeal similarly lacks in specific legal and factual support, failing to cite evidence in the record or any cogent legal authority to support his claims. Pierce has also failed to provide the transcript of the hearing below, which means we do not have an adequate record before us. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [appellant's burden is to show reversible error by an adequate record]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [where no reporter's transcript provided, evidentiary support for the finding is presumed]; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856 [without adequate record demonstrating error, the contention is waived].) For all of these reasons, we conclude Pierce failed to meet his burden as appellant of demonstrating error. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557.)
Moreover, the same unsupported arguments in Pierce's writ petition were made by him in his prior appeals from the trial court's custody orders and from the order extending the restraining order, all of which have been addressed by this court. (See, e.g., Pierce v. Arreola (Feb. 17, 2011, F059887) [nonpub. opn.]; Pierce v. Arreola, supra, F060078; Pierce v. Arreola, supra, F060724.) In those opinions, we upheld the trial court's determinations regarding custody, visitation and the restraining order. The trial court's denial of his writ petition is affirmed.
Second, Pierce claims the trial court erred when it denied his motion for protective orders regarding alleged harassment and cyber stalking by Arreola. Pierce's appeal fails to show any legal warrant or factual necessity for such protective orders and, in addition, fails to demonstrate that the trial court abused its discretion in denying such relief. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495 [whether to grant restraining order rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case ]; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 [grant or denial of protective order reviewed for abuse of discretion].) Further, Pierce fails to provide a transcript of the hearing of the motion. Once again, Pierce has completely failed to meet his burden as the appealing party.
We note that Pierce has previously asked for, and the trial court has previously denied, the same protective order. In Pierce v. Arreola, supra, F060724, we considered Pierce's appeal from the trial court's order of June 25, 2010, denying such relief. We affirmed the trial court's order for the following two reasons: (1) Pierce failed to explain how, under any statute or law, the mere retrieval by Arreola of statements or articles that he had posted on a public website or blog amounted to illegally "stalking" him or why such activity entitled him to a protective order; and (2) even assuming for the sake of argument that a statutory basis for such a protective order existed, and even if hypothetically some evidence was in the record that would potentially support the discretionary issuance of a protective order, that would still not show an abuse of discretion. An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) "'[T]he showing on appeal is wholly insufficient if it presents a state of facts ... which ... merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' (Citation.)" (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Citation.)" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; see Pierce v. Arreola, supra, F060724 at pp. *20-*27.) For the same reasons, in the present appeal Pierce has failed to show that the trial court abused its discretion.
There is yet an additional reason we must deny Pierce's appeal from this order. The request for the protective order regarding alleged cyber stalking was essentially a motion for reconsideration of the trial court's previous (June 25, 2010) denial of that request. The denial of a motion for reconsideration is not an appealable order. (Tate v. Wilburn (2010) 184 Cal.App.4th 150, 158; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1632-1633.)
Third, Pierce claims the trial court erred when it denied his motion to appoint legal counsel. His motion stated that he is indigent and unable to afford counsel, and he requested that the trial court appoint an attorney to represent him. The trial court denied the request. Pierce appeals, arguing that just as in criminal and dependency cases, he is entitled to appointment of counsel at the public expense as a matter of due process. We disagree. Pierce is a civil litigant in a standard family law case involving issues of custody and visitation where the parties are the children's two parents. In that context, we know of no statute or constitutional provision entitling him, as a matter of right, to appointment of an attorney at the public's expense. (See County of Santa Clara v. Superior Court (1992) 2 Cal.App.4th 1686, 1694 [apart from statutory authority, court cannot order public entity to pay attorney fees].) Rather, the case comes within the general rule that civil litigants are not entitled to appointment of an attorney. (White v. Board of Medical Quality Assurance (1982) 128 Cal.App.3d 699, 707 [no due process right to appointed counsel in civil cases].) Accordingly, the trial court properly denied Pierce's request for appointment of counsel.
As to juvenile dependency cases, see Welfare and Institutions Code section 317, In re Ronald R. (1995) 37 Cal.App.4th 1186, 1192-1197, and Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31-32.
Pierce's appeal mentions Family Code section 2030 in passing. That section relates to a trial court's discretion to order one party in a dissolution proceeding to pay the other a sum for attorney fees when the requisite showing is made. The motion that was before the trial court and that is the subject of the present appeal was not under Family Code section 2030. It was instead a request for appointment of legal counsel. Family Code section 2030 is therefore inapplicable to this appeal. Further, we do not address matters raised for the first time on appeal. (People v. Catlin (2001) 26 Cal.4th 81, 122-123 [appellate court does not consider a point that was not raised in the trial court].)
DISPOSITION
The trial court's order is affirmed in its entirety.
Kane, J. WE CONCUR:
Gomes, Acting P.J.
Franson, J.