Opinion
E079675
12-15-2023
In re the Marriage of R.B. and J.L.B. v. J.L.B., Respondent. R.B., Appellant,
R.B., in pro. per., for Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. FLRI1801067, John W. Vineyard, Judge. Affirmed.
MOTION TO AUGMENT. Denied.
R.B., in pro. per., for Appellant.
No appearance for Respondent.
OPINION
RAMIREZ, P. J.
In this divorce proceeding, R.B. (mother) sought sole legal and physical custody of her son by J.L.B. (father). After a series of evidentiary hearings, at which both parents were in propria persona, the trial court ordered joint legal custody, although it granted the mother sole physical custody.
The mother appeals, still in propria persona. She contends that the trial court erred by awarding the father joint legal custody because he had committed domestic violence against her as well as child abuse against the child. The father has not appeared.
Unfortunately, the mother has not given us an adequate record. She has given us some of her evidence, but almost none of the father's evidence. We do not have a reporter's transcript; we do not have any of the 25 exhibits that were introduced at a relevant hearing. In her brief and at oral argument, the mother powerfully and eloquently asserted facts which, if true, would mean that the father cruelly abused both her and the child. Unfortunately, however, we do not have any proof of those facts; we also do not have the father's side of the story. Therefore, we are forced to affirm.
I
STATEMENT OF THE CASE
In September 2018, the mother filed a petition for dissolution of marriage. The parents had one child together - a son born in 2012.
Also in September 2018, the mother filed a request for a domestic violence restraining order. The trial court denied the request, finding insufficient evidence of domestic abuse.
In October 2020, the mother filed a new request for a domestic violence restraining order. Once again, the trial court denied the request, finding insufficient evidence of domestic abuse.
In February 2022, the mother filed a request for sole legal and physical custody, asserting that the father had committed domestic abuse against her and against the child, and that the child was suffering from depression and anxiety as a result. The father filed a responsive declaration (which is not in the record).
The trial court ordered the Department of Social Services (DSS) to conduct a child abuse investigation. (See Fam. Code, § 3027.) It also ordered the parties to participate in mediation through child custody recommending counseling (CCRC).
In May 2022, the trial court entered a status-only judgment of dissolution.
In June 2022, the DSS report was filed. According to the report, "[T]here is a lack of sufficient evidence to support the allegations of abuse or neglect." "[T]he child . . . can be safely maintained in the care of the mother . . . and the father ...."
The trial court held three successive hearings on the mother's custody request; at each hearing, it took testimony. Meanwhile, it held a trial on a pending move-away request by the mother. From the list of the 25 exhibits introduced, it appears that the trial was also relevant to the custody request. The mother has not provided us with a reporter's transcript of any of these hearings and has not had the trial exhibits transmitted to us.
In August 2022, the trial court adopted the CCRC mediator's recommendations. Thus, it granted joint legal custody. It granted the mother sole physical custody; the father was to have video or telephone visits twice a week and "parenting time in a therapeutic setting with the child(ren) as determined by the child(ren)'s therapist ...."
II
DISCUSSION
The mother contends that the trial court erred by granting joint legal custody.
"Determinations about the custody of children are to be made based on a determination of the child's best interests. [Citation.]" (Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1020.) "'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.]" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) "A court abuses its discretion only when '"'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.]" (In re Caden C. (2021) 11 Cal.5th 614, 641.)
Certain principles specific to appeals also come into play here. First, "'"[a] judgment . . . 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."'" (Wilson v. Sunshine Meat &Liquor Co. (1983) 34 Cal.3d 554, 563.) Second, as a corollary of the first principle, "'[the appellant] has the burden of providing an adequate record. [Citation.] . . . Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' [Citation.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 609, fn. omitted.)
These principles apply fully to parties in propria persona. "A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys. [Citation.]" (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.)
The mother has not given us an adequate record. We do not have the father's responsive declaration. We do not have any reporter's transcript. We do not have the exhibits that were introduced at trial. This makes it impossible for us to tell whether the trial court's order was correct or incorrect.
The mother relies on Family Code section 3044, which creates "a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence" against specified victims in the preceding five years. (Fam. Code, § 3044, subd. (a).)
Here, we know that the mother accused the father of domestic violence. However, much of the evidence she offered was inadmissible hearsay or, if admissible, fell short of showing domestic abuse. Most important, we do not know what evidence the father offered to rebut those accusations. We do know that the trial court denied two applications by the mother for a domestic violence restraining order. We also know that the social worker, after an investigation, found "a lack of sufficient evidence to support the allegations of abuse or neglect," and further found that "the child . . . can be safely maintained in the care of the mother . . . and the father ...."
Significantly, the Family Code section 3044 presumption is rebuttable. We do not know what evidence the father offered to rebut the presumption.
Two months after receiving our tentative opinion, and one week before oral argument, the mother filed a motion to augment the record with certain specified documents. As to some of the documents, there was no showing that they were ever filed in the trial court or this court. In any event, the motion to augment was severely untimely. For these reasons, the motion is hereby denied. Even if we were to grant the motion to augment, it would not change the result. The motion included the father's responsive declaration; in it, he generally denied the mother's allegations. The motion did not include the reporter's transcript, nor, as far as we can tell, any of the trial exhibits.
The mother also cites Family Code section 3011. It provides that, if it has been alleged that a parent has a history of domestic violence, and if the trial court awards that parent sole or joint custody, "the court shall state its reasons in writing or on the record." (Fam. Code, § 3011, subd. (a)(5)(A), italics added.) Here, the trial court may well have stated its reasons on the record. Without a reporter's transcript, we simply have no way of knowing.
Actually, the mother cites "Senate Bill 654." Senate Bill No. 654 (2021-2022 Reg Sess.) amended Family Code section 3011. (Stats. 2021, ch. 768, § 1.) However, the particular provision on which she relies predates Senate Bill No. 654. (Former Fam. Code, § 3011, subd. (e)(1), Stats. 1997, ch. 849, § 2.)
Finally, it is significant that the trial court awarded the mother sole physical custody; it allowed the father visitation only by video or telephone or in the presence of a therapist. One of the factors it could take into account was that it would be almost impossible for the father to physically abuse the child under these conditions. Verbal abuse was not impossible; however, the trial court ordered both parents not to make negative comments about the other, not to try to alienate the child's affection, and not to "do[] anything . . . that would be detrimental to the health, safety, morals or welfare of the child[]." On this scanty record, we cannot say it was an abuse of discretion to conclude that this was adequate to protect the child's best interests.
III
DISPOSITION
The order appealed from is affirmed. Because the father has not appeared, we do not award costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: McKINSTER, J., CODRINGTON, J.