IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
November 29, 2010
HEMAL TRIVEDI, PLAINTIFF AND APPELLANT,
JODY LYNN NICKOLOPOULOS, DEFENDANT AND RESPONDENT.
The opinion of the court was delivered by: Jones, P.J.
Trivedi v. Nickolopoulos CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Hemal Trivedi appeals from an order that places his son Andrew in custody of his maternal grandfather and his wife. Appellant contends the trial court committed several legal errors and that some of the court's factual findings are not supported by substantial evidence. We conclude the trial court did not commit any prejudicial error and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Jody Lynn Nickolopoulos married in September 2003. In February 2005, Jody gave birth to a son, Andrew. Appellant, who is a citizen of India, was living in India at the time, and Jody and Andrew lived with Jody's mother for several months until appellant returned. Eventually, appellant, Jody, and Andrew moved into a home of their own.
Appellant and Jody had a difficult relationship and they separated in October 2007. Jody had ongoing mental health problems and in January 2009, the court awarded appellant sole physical and legal custody of Andrew.
Appellant lost his job and he began to search for a new one. On May 15, 2009, appellant left Andrew with his grandfather and step grandmother without saying where he was going or when he would return. Three days later, when the grandparents still had not heard from appellant, they filed a missing person report with the police. The police also could not locate appellant. Finally, on May 19, 2009, appellant contacted the grandparents to tell them he was in India and that he would be filing a motion to bring Andrew to India.
Appellant's counsel filed a motion asking that Andrew be allowed to move to India immediately. Counsel for Andrew filed a counter motion asking that the grandparents be granted temporary custody pending a hearing on appellant's request. On May 27, 2009, the court granted Andrew's request and denied appellant's request, ruling the grandparents would be granted temporary custody of Andrew pending a hearing on appellant's request to relocate. On June 15, 2009, the court confirmed its earlier decision ruling that the grandparents would be granted temporary custody of Andrew pending a hearing on appellant's motion to relocate.
A trial to determine where Andrew should live was conducted on December 14, 2009, and January 29, 2010. Appellant, who was representing himself by that point, appeared by telephone from India. He provided a narrative explanation of why Andrew should be permitted to live with him in India. The primary opposition was provided by counsel for Andrew who presented testimony from a clinical psychologist, Dr. Deborah Roberto, who had been treating Andrew. Dr. Roberto testified that appellant's abandonment of Andrew without saying where he was going had been traumatic for Andrew. He became inconsolable, had nightmares, and became clingy and anxious. However, the grandparents, by providing constant care and clear limits, had allowed Andrew to recover. According to Dr. Roberto, the best situation for Andrew was for him to stay right where he was with his grandparents.
The trial court considering this conflicting evidence stated that appellant's "abrupt departure last year to India, without prior notice to anyone, raises . . . concerns that [appellant] is insensitive to Andrew's emotional needs and stability. Andrew was initially traumatized by [appellant's] departure to India. To remove him from the only family with whom he has been able to develop significant attachments would be extremely detrimental to him, even apart from the difficulties he would necessarily face if [he] were required to move halfway around the world." Accordingly, the court denied appellant's request to move Andrew to India stating, "Andrew must not be subjected to further emotional trauma which would likely occur if his residence is changed at this time in his life."
Having denied appellant's request to relocate Andrew, the court turned to the issue of where Andrew should live. Appellant had not indicated he was willing to return and Andrew's counsel recommended that he be placed with his grandparents. The trial court agreed, stating: "The Court finds that [the grandparents] have provided Andrew with a stable home, fulfilling both his physical and psychological needs . . . . They have been his de facto parents for the past 9 months." [¶] . . . [I]t is in Andrew's best interest to give custody of Andrew to [his grandparents.]"
Appellant then challenged the court's ruling by filing this appeal.
We begin by setting forth some fundamental principles of appellate practice.
(1) "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]" (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
(2) As a general rule, an appellant may only challenge a judgment on grounds that were raised in the court below. (Junkin v. Golden West Foreclosure Service, Inc. (2010) 180 Cal.App.4th 1150, 1158.) Other grounds are forfeited for purposes of appeal. (Ibid.)
(3) "It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party's position." (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.)
(4) An appellant must support each argument he makes by citation to appropriate authority. If he fails to do so, the issue is forfeited for purposes of appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
(5) A party who contends that a particular finding is not supported by substantial evidence is obligated to set forth in his brief all the material evidence on the point and not merely his own evidence. If this is not done, the error is deemed to be waived. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
(6) An appellant has the burden not only to show error, but prejudice from that error. If an appellant fails to satisfy that burden, his argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
With these principles in mind, we turn to the arguments that have been advanced.
Appellant contends the trial court committed various legal errors. The vast majority of arguments appellant makes on this point are not supported by any legal authority.*fn1 They are forfeited for purposes of appeal. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
Turning to the arguments that are supported, appellant seems to argue the court's January 2009 order awarding him custody of Andrew was final and could not be changed subsequently. This is clearly incorrect. Custody orders are subject to modification based on changed circumstances. (Fam. Code, §§ 3022, 7501, subd. (a).) That is precisely what occurred here.
Next, appellant argues that insufficient evidence was produced to reject his request to move Andrew to India. In a related argument, appellant argues the "best interests of the child standard was violated." We reject both arguments. In a move away case, a change of custody is not justified simply because the custodial parent has chosen to reside in a different location. Rather, a change is appropriate only if, as a result of the relocation with that parent, the child will suffer detriment rendering it essential or expedient for the welfare of the child that there be a change. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 960.) The trial court enjoys "'wide discretion'" to order a custody change based on a showing of detriment if such a change is in the best interest of the child. (Id. at p. 961.) Here, there was ample evidence to support a custody change. Dr. Roberto testified specifically that Andrew would suffer detriment if he were moved to India and that it was in his best interest to remain in the custody of his grandparents. Clearly, the court's ruling on this point was supported by substantial evidence.
Appellant also argues the court erred because he did not receive a written copy of opposing counsel's final argument or a document that she submitted to the court until a day before the final day of trial. According to appellant, counsel's untimely filings violated the applicable local rules. We reject this argument on procedural grounds. Appellant did not raise this argument in the court below. He has forfeited the right to raise it on appeal. (Junkin v. Golden West Foreclosure Service, Inc., supra, 180 Cal.App.4th at p. 1158.)
Appellant also contends the trial court committed what he characterizes as numerous "errors of fact." He sets forth a series of specific findings that he contends were not supported by the evidence presented below.
We reject all of appellant's arguments on this point for three reasons. First, appellant has not cited any authority to support his arguments on this point. He has forfeited the right to raise them on appeal. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.) Second, in raising these arguments, appellant has cited only to the evidence that supports his position. He has ignored all evidence that might support a different conclusion. By failing to set forth all material evidence, including evidence damaging to his position, appellant has forfeited the right to assert these alleged factual errors. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) Third and importantly, appellant has not even attempted to demonstrate how the errors he alleges resulted in prejudicial error. Absent such a showing, we must reject his argument on appeal. (Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at p. 963.)
In sum, appellant has failed to demonstrate that the trial court committed any prejudicial errors.
The custody order is affirmed.
We concur: Simons, J. Needham, J.