IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 7, 2013
C. M., RESPONDENT,
J. L. , APPELLANT.
(Super. Ct. No. 12FL00265)
The opinion of the court was delivered by: Robie , Acting P. J.
C.M. v. J.L.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant J. L. (father) appeals from a court order permitting respondent C. M. (mother) to relocate to Lenexa, Kansas, with the parties' minor child (two years old at the time of trial). Father raises numerous claims of error in his appeal, none of which are supported by the record and many of which he fails to support with any meaningful analysis. Accordingly, we 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 establishes that in January 2012, mother filed a petition to establish the parental relationship between father and the minor child. Along with that petition, mother sought an order from the court allowing her to move from California to Kansas with the minor child.
In April 2012, the parties entered into a stipulation and order,*fn1 agreeing to share legal and physical custody of the child "pending trial." They also agreed, among other things, that father would undergo a substance abuse evaluation with Colleen Moore, and both father and mother would submit to random drug and alcohol testing. The issue of mother relocating with the child was set for trial.
A mandatory settlement conference was scheduled for May 15, 2012; father failed to appear and a trial date was confirmed for June 15, 2012.
The parties appeared for trial on June 15, 2012. Mother was represented by counsel, father represented himself. Mother filed a motion in limine, asking the court to "preclude the admission of the family court services mediation report," on the basis that the report was inadmissible hearsay. The court granted mother's motion, witnesses were called, and evidence was taken; the court then took the matter under submission.
Several days later, the trial court issued a written decision, granting mother permission to relocate the child to Kansas. In a detailed decision, the court described the relevant evidence admitted at trial. The court noted that, according to the expert opinion of Colleen Moore, father was "marijuana and alcohol dependent." The court was "troubl[ed]" that father did not see his dependency as a serious issue but rather, saw treatment for his dependency as "hoops" he had to "jump through" to have custody of the child.
In reaching its decision, the court found mother did not resolve to move away with the child in order to lessen the child's contact with father, but so that she could work full time, attend school, and have the support of her family. The court noted mother would live with her parents and the child would attend a preschool program "that will allow him to learn and expend his high energy." The court further found mother, as well as her parents, were committed to the child having frequent and continuing contact with father.
The court also considered the alternative to allowing mother to relocate with the child: leaving the child with father. "The Court believes that [father] is thoroughly committed to his child and loves him very much. The Court is convinced he would not intentionally allow any harm to come to the minor child and would protect him with his life. However, the Court further believes that [father] is in denial about his substance dependence issues and the reality of the steps he needs to take to address these issues. The Court does not believe it is in the best interests of the child to have [father] as the primary custodial parent at this time . . . ." Thus, the court concluded that when mother moved to Kansas, it was in the child's best interest to move with mother, not to stay in California with father.
The trial court set out a detailed parenting schedule for father, including daily contact through Skype. The court ordered father's parenting time to be "alcohol and drug free," and required father to submit to a regimen of drug and alcohol testing before, during, and after his parenting time. The court also ordered father either to enroll in and attend an inpatient drug treatment program, or "secure a sponsor" and attend 90 consecutive days of AA or NA meetings.
Father appealed the court's order. Shortly thereafter, father filed a motion for reconsideration with the trial court, asking the trial court to reconsider its order. The record on appeal does not contain the court's ruling on that motion.
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.)
I Drug And Alcohol Evaluation
A Colleen Moore's Qualifications
Father contends "[mother]'s attorney appointed a non-licensed drug counselor to conduct an unfair report against [father] excluding [mother] from the same requirements." Father's contention fails.
Father failed to include any citations to the record in support of his contention. Father's briefs are thus "in dramatic noncompliance with appellate procedures" and his claim is forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1246, fn. 14 [the failure to present argument with references to the record results in forfeiture]; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [same]; Cal. Rules of Court, rule 8.204(a)(1)(C).)
Even if the claim were not forfeited, it lacks merit. In its written decision, the trial court referred to Moore as an expert and relied on her expert opinion regarding father's marijuana and alcohol dependency in reaching its decision. Without a reporter's transcript of the trial, we presume the court found a proper foundation was laid for Moore to testify as an expert witness on the issue of drug and alcohol dependency before qualifying her as an expert and relying on her opinion. (See Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) Accordingly, on this record, we find no error.
B Drug And Alcohol Evaluation And Testing
Father also contends it was error to require him to submit to a drug and alcohol evaluation without requiring mother to submit to the same. Even if mother were not "required" to submit to a drug and alcohol evaluation, the record indicates mother did submit to such an evaluation: "Mother was also evaluated and Ms. Moore found alcohol abuse but in full remission." Notably, this also refutes father's claim that "there was no mention of [mother] having any past, present, or future problems" with alcohol. Accordingly, there was no error.
Father also believes the trial court erred by not requiring mother to submit to the same drug testing to which he was required to submit. Father's belief in the inequity of the court's order is irrelevant. He cites no legal authority requiring that both parents must submit to drug and alcohol testing if either parent is ordered to test. Moreover, he fails to cite to anything in the record to support his claim on appeal that mother should be tested. Accordingly, the claim is forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); see Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 [appellant is required to present legal authority in support of each issue raised, along with citations to the record, otherwise the issue is forfeited]; see also Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [it is appellant's burden to support claims of error with citation to legal authority].)
II Mother's Motion In Limine
Father contends mother failed to timely serve him with her motion in limine to exclude the family court services' mediation report from evidence at trial. It appears from the record that mother filed her motion in limine on the day of trial and that her motion was granted. Even if we were to assume such a filing violated the California Rules of Court, on this record, there is no evidence father objected to the "late" filing in the trial court. He cannot raise that objection for the first time on appeal. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 ["It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal. [Citations]"].)
Moreover, without a reporter's transcript, we must assume that even if an objection was raised to the timeliness of mother's motion, the trial court properly resolved that objection in favor of granting the motion. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
III The Child's Best Interest
Father claims the trial court "did not use the standard for the best interest of the child according to the law in determining the move away." In support of his claim, father argues: (1) his parenting time "went from 100 percent time with the minor child since birth to 2 percent per year"; and (2) the court ordered father's parenting time "take place in the state of Kansas," rendering it nearly impossible for father to exercise his parenting time. Father's claims lack merit.
The trial court expressly and repeatedly considered the child's best interest in reaching its decision. As evidenced by the court's written decision, the court was keenly aware of father's love for the child and the child's relationship with father. The court nevertheless found it was not "in the best interests of the child to have [father] as the primary custodial parent at this time . . . ."
The court also found that mother's decision to move to Kansas was not motivated by a desire to minimize the child's contact with father. Rather, mother was moving so she could work full time and go to school with the support of her parents. The court further found that mother, as well as her parents, would continue to encourage and foster the relationship between father and the child. Without a reporter's transcript, we must accept that these findings were supported by the evidence presented. (See Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)
Father's claim that his parenting time is, in essence, a farce because he cannot afford to travel to Kansas also fails. Again, father fails to support his argument with any citation to the record or relevant legal authority.*fn2 The claim is thus forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1245-1246, fn. 14; see Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 655-656; see also Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 113.)
In any event, the claim is not supported by the record. Indeed, the court's order included two weeks of parenting time for father in California as well as daily Skype contact. Father's parenting time is, therefore, not limited to father traveling to Kansas.
IV Father's Decision To Represent Himself In The Trial Court
Throughout his appeal, father asks this court to reverse the trial court's decision because he represented himself in the trial court and was unaware of his legal rights. Father claims he did not know he could object to Moore's appointment, refuse to sign the April 2, 2012, stipulation, or refuse the drug and alcohol evaluation. He also claims he did not know he could challenge the results of a drug test.
Father further claims there were "numerous" inaccuracies in Ms. Moore's report that he did not know he could bring to the court's attention, nor did he know that the mediation report and witness statements he gave to the mediator were never given to the court. Father also claims he did not know he could bring witnesses to court to testify on his behalf. Each of these claims is forfeited because none of them are supported by any meaningful argument or citations to relevant legal authority. (People v. Hardy (1992) 2 Cal.4th 86, 150 [a reviewing court need not address any issue purportedly raised without argument or citation to relevant authority]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [merely setting forth general legal principles without specifically demonstrating how they establish error is insufficient to raise a cognizable issue on appeal].)
These claims fail in any event because "[p]ro. per. litigants are held to the same standards as attorneys. [Citations.]" (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543. Indeed, as noted by the Supreme Court: "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
V Mother's Motion To Seal The Record
Mother moved this court to seal the record on appeal and to designate the parties' by their first names or initials on the docket and in this opinion. Father did not oppose the motion.
This is an action brought under the Uniform Parentage Act (UPA). (Fam. Code, §§ 7600 et seq. ) Actions brought under the UPA are confidential and "all papers and records, other than the final judgment, pertaining to the action or proceeding, whether part of the permanent record of the court or of a file in a public agency or elsewhere, are subject to inspection and copying only in exceptional cases upon an order of the court for good cause shown." (Fam. Code, § 7643, subd. (a).) Accordingly, we shall order the record in this matter sealed and the docket to refer to the parties only by their initials.
The order of the trial court is affirmed. The record in this court shall be sealed and the docket will refer to the parties by their initials. Costs are awarded to mother. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: MAURO , J. DUARTE , J.