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Laura K. Hernandez v. Adam M. Clark

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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