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Laura K. Hernandez v. Adam M. Clark

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


October 12, 2011

LAURA K. HERNANDEZ, RESPONDENT,
v.
ADAM M. CLARK, APPELLANT.

(Super. Ct. No. FL357710)

The opinion of the court was delivered by: Hull , Acting P. J.

Hernandez v. Clark

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Adam M. Clark (father) appeals in propria persona from two trial court orders: (1) an order refusing to find Laura K. Hernandez (mother) in contempt; and (2) an order awarding mother primary physical custody of the parties' minor child. For the reasons stated below, we affirm the judgment.

Father has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of either hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The limited record we have establishes the following: Mother and father separated in 2008 and share custody of their five-year-old son. Prior to their separation, mother and father lived together in Clements, California. After their separation, mother moved to Lodi, California; father remained in Clements.

An initial custody order was issued in 2009, pursuant to which mother and father "split the weeks." Unable to agree on several co-parenting issues, mother and father returned to court shortly thereafter and in September 2009, the court issued orders regarding the minor child including allergy testing, dental care, and preschool. The court also ordered the parties to communicate with each other only by email. The court modified the parenting schedule but mother and father continued to share physical custody of their son during the week.

On December 3, 2009, father filed an order to show cause seeking sole legal and physical custody of the minor child.

On December 14, 2009, father filed an order to show cause asking for "[t]emporary orders so [the child] can also spend the same amount of time with his father during the holidays [as] his mother. [Mother] has five days for Christmas while I have two. What part of this is joint legal and physical custody when she also got more time for Christmas last year and his [birthday] this year?" Four days later, on December 18, 2009, father filed an order to show cause and affidavit for contempt, seeking to have mother held in contempt for failing to comply with the court's custody orders.

The contempt trial was held on March 25, 2010. Mother and father were both sworn in and both testified. The custody trial was held shortly thereafter. The court subsequently found that father failed to prove mother was in contempt: "Unfortunately for [father], he bears the burden of proof in this contempt action. He must prove beyond a reasonable doubt that [mother] has willfully disobeyed orders that she was able to comply with in each instance. If the evidence is evenly balanced, [father] has not proven his case. Here, [mother] has a reasonable explanation for each allegation of misconduct alleged by [father]. She either flatly contradicts [father's] version or has plausible reasons why she was unable to comply. Even with the emails and other documents submitted, including the history of this matter as outlined above, insufficient proof has been shown to find [mother] in contempt."

The court also issued a written ruling on father's motion for custody. The court ordered the parties to continue sharing legal custody; however, mother would make decisions regarding the child's allergy care. The court further ordered that, while the parents would share physical custody, mother would have primary physical custody "for school purposes." Father's parenting time would thus be limited during the school year.

Father appeals from both of the court's orders.

DISCUSSION

On appeal, we must presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must present an analysis of the facts and legal authority on each point made, and must support the analysis with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

When an appeal is "on the judgment roll" (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)

These restrictive rules of appellate procedure apply to father even though he is representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) On the record in this appeal, we find no error.

Father contends the trial court erred by not holding mother in contempt for failing to comply with the court's orders. Without a reporter's transcript, however, we "'must conclusively presume that the evidence is ample to sustain the [trial court's] findings.'" (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) That is, the law compels us to assume the evidence presented to the trial court supports its decision that mother did not willfully fail to comply with the court's orders.

Father further contends the trial court erred in awarding mother primary physical custody of the minor child. Again, without a reporter's transcript, we "'must conclusively presume that the evidence is ample to sustain the [trial court's] findings.'" (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) We must assume the evidence presented to the trial court supports its decision to award mother primary physical custody of the child for purposes of schooling, and granting mother the authority to make decisions regarding the child's allergy care.

Father raises numerous other complaints regarding mother and the trial court. He contends mother is guilty of perjury and "lying to [father]." In neither of the orders from which father appeals does the court make a specific finding that mother did or did not commit perjury. Thus, the issue of perjury is not properly before this court. To the extent father is arguing that mother's testimony was not credible, the trial court apparently disagreed. As an appellate court, we do not reweigh the evidence or second guess witness credibility. (People v. De Paula (1954) 43 Cal.2d 643, 649.)

Father also argues that the trial court made "false statements . . . with absolutely no evidence to support the findings . . . ." Father's claim cannot be supported on this record. Without a reporter's transcript we must presume there was substantial evidence to support the decisions made by the court. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) Father's claim is thus unavailing.

Father's claim that he was denied due process also is unavailing. Father argues that he was not given sufficient opportunity to respond to "the OSC." Father, however, bears the burden of establishing error. (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591.) This burden to establish error includes presentation of a record on appeal that is sufficient to support the claim of error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Father has the further duty to present arguments supported by record citations and legal authority--the appellate court is not required to discuss or consider points that are not adequately presented. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) "Pro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Father has not provided us with an adequate record or presented any coherent legal analysis of his claim that he was denied due process.

DISPOSITION

The orders of the court are affirmed. Father shall reimburse mother for her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: BUTZ , J. HOCH , J.

20111012

© 1992-2011 VersusLaw Inc.



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