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In Re the Marriage of Devera and Colin Brown. v. Colin Brown

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


December 29, 2011

IN RE THE MARRIAGE OF DEVERA AND COLIN BROWN. DEVERA BROWN, RESPONDENT,
v.
COLIN BROWN, APPELLANT.

(Super. Ct. No. 10FL03924)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Colin Brown (father) appeals from a court order finding California has jurisdiction to modify a child custody and support order issued by the state of Arizona. For the reasons that follow, we shall affirm.

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 the 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 that in June 2002, the Superior Court of the State of Arizona, in and for the County of Cochise, entered a final judgment, dissolving Devera Brown (mother) and father's marriage. Included in that judgment was an order awarding mother sole legal custody of the parties' two minor children. Father was awarded parenting time with the children pursuant to a detailed parenting plan, also included in the judgment. Father further was ordered to pay to mother $700 each month for child support.

In May 2010, mother filed an order to show cause regarding modification of child support in the Superior Court of the State of California, in and for the County of Placer. The Placer County court denied mother's motion, finding California lacked jurisdiction to modify the Arizona judgment.

In June 2010, mother filed in the Superior Court of California, in and for the County of Sacramento, an order to show cause seeking to modify child support and father's parenting time. Mother also requested attorney's fees and costs, sought temporary orders, and asked that the motion be heard ex parte. The Sacramento court found there was no showing of an emergency and no need for temporary orders. The court then set the matter for further hearing to determine whether California had jurisdiction to modify the Arizona judgment and ordered the parties to attend Family Court Services mediation.

On September 1, 2010, the Sacramento court found "jurisdiction in California for all purposes." The court again referred mother and father to Family Court Services mediation and set the next hearing on mother's request to modify support and visitation for October 20, 2010. Father appeals from this order.

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.) 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.)

Father contends the trial court erred in finding California had jurisdiction to modify the Arizona judgment for child support as well as custody. Without a reporter's transcript of the hearing on jurisdiction, however, we must presume the court made sufficient findings to support its decision. That is, we must presume the trial court found the Arizona court either never had jurisdiction to issue an order for custody and support, or lost jurisdiction over the matter. Furthermore, we must conclusively presume the evidence was sufficient to sustain the court's findings. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) On the face of this record, we find no error; we must affirm the trial court's decision. Because we affirm the trial court's ruling on other grounds, we will not address mother's claim that the order from which father appeals is non-appealable.

DISPOSITION

The order of the trial court is affirmed. Costs are awarded to mother. (Cal. Rules of Court, rule 8.278(a)(5).)

We concur: BLEASE , Acting P. J. DUARTE , J.

20111229

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