S.A. v. A.W. CA4/1

Filed 4/25/16 S.A. v. A.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

S.A., D068394

Appellant,

v. (Super. Ct. No. D541936)

A.W.,

Respondent.

APPEAL from an order of the Superior Court of San Diego County,

Paula S. Rosenstein, Judge. Affirmed.

S.A., in pro. per., for Appellant.

A.W., in pro. per., for Respondent.

INTRODUCTION

S.A. (father) appeals an order modifying the custody and visitation schedule for

his minor child. He contends the court erred in increasing his custody and visitation

schedule from 25 percent to 34 percent, rather than to 50 percent. He also contends the
court erred in ordering him to attend a six-week parenting course, which he states he has

now completed. However, father's brief makes factual statements without citation to the

record. Father chose to proceed on this appeal with a minimal clerk's transcript and

without either a reporter's transcript or a settled statement. The failure to provide an

adequate record precludes appellate review and requires us to affirm the order. (Estrada

v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)

FACTUAL AND PROCEDURAL BACKGROUND

Father petitioned the court in March 2013 for joint legal custody of his minor

child. The minor's primary residence was to be with A.W. (mother), but father was to

have visitation every weekend, Friday to Sunday.1

Two years later, in June 2015 the court modified the child custody and visitation

award upon father's request. Father and mother were awarded joint legal custody with

primary residence to mother. The court adopted the Family Court Services report, as

modified. The court ordered visitation with father every Monday and every other Friday

from 4:00 p.m. until 8:00 p.m., every Wednesday from 4:00 p.m. until Thursday at 4:00

p.m., and every other weekend from 4:00 p.m. on Friday until 8:00 p.m. on Sunday. The

court ordered the child to be in the care of mother at all other times.

In addition to ordering the parents to complete a coparenting course, the court

ordered father to attend a six-week parenting class. The court also ordered the parents to

cooperate and sign necessary papers to obtain a passport for the child. Mother was

1 The record on appeal does not contain the order awarding custody and visitation.

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ordered to hold the passport and make it available for use by father when needed. He was

to return the passport to mother afterward.

Father filed a notice of appeal of the court's modification order indicating it is an

order after judgment, appealable pursuant to Code of Civil Procedure section 904.1,

subdivision (a)(2). (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-

1378.) He designated a clerk's transcript as the record on appeal, but did not identify any

documents for inclusion in the clerk's transcript other than those listed on the designation

form. He also chose to proceed without a record of the oral proceedings.2

DISCUSSION

"Under California's statutory scheme governing child custody and visitation

determinations, the overarching concern is the best interest of the child. The court and

the family have 'the widest discretion to choose a parenting plan that is in the best interest

of the child.' (Fam. Code, § 3040, subd. (b).)3 When determining the best interest of the

child, relevant factors include the health, safety and welfare of the child, any history of

abuse by one parent against the child or the other parent, and the nature and amount of

2 We deny A.W.'s request to augment the record. It does not appear these
documents were filed or lodged with the trial court and they are not proper for
augmentation. (Cal. Rules of Court, rule 8.155(a).) We also deny S.A.'s "Motion to
Introduce Judicial Evidence for Notice." The text messages, photographs and letter were
not provided to the trial court and are not matters of which we may properly take judicial
notice. (Evid. Code, §§ 451-453.)

3 All further undesignated statutory references are to the Family Code.
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contact with the parents. (§ 3011.)" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255

(Montenegro).)

We review the trial court's ruling on a request to modify the parties' parenting

schedule for an abuse of discretion. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 365.)

" 'The precise measure is whether the trial court could have reasonably concluded that the

order in question advanced the "best interest" of the child.' " (Ibid., quoting In re

Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess); accord In re Marriage of

Condon (1998) 62 Cal.App.4th 533, 549 ["[g]reat deference must be given to the trial

court's adjudication of the facts" in reviewing custody and visitation orders].) "Under this

test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of

whether such basis was actually invoked.' " (Montenegro, supra, 26 Cal.4th at p. 255.)

Although father is representing himself in this appeal, the rules of civil procedure

apply equally to him. A litigant "appearing in propria persona, … is entitled to the same,

but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981)

125 Cal.App.3d 623, 638; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

It is the appellant's burden to provide an adequate record on appeal. (Ballard v.

Uribe (1986) 41 Cal.3d 564, 574 ["a party challenging a judgment has the burden of

showing reversible error by an adequate record"]; Kashmiri v. Regents of University of

California (2007) 156 Cal.App.4th 809, 849 [the appealing party must provide an

adequate record demonstrating error].) "We cannot presume error from an incomplete

record." (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.) We are not permitted

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to speculate as to the contents of the missing portions of the record or the issues that may

have raised below. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) The failure to

provide an adequate record on appeal "precludes an adequate review and results in

affirmance of the trial court's determination." (Estrada v. Ramirez, supra, 71

Cal.App.4th at p. 620, fn. 1.)

In addition, father failed to provide either citations to the record in support of the

factual and procedural assertions in his opening brief or legal analysis supported by

citation to authority. Therefore, we may deem his contentions waived. (Regents of

University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1, citing Kim v.

Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 and Trinkle v. California State Lottery

(2003) 105 Cal.App.4th 1401, 1413; see Nwosu v. Uba, supra, 122 Cal.App.4th at

p. 1246 [statements in appellate briefs not supported by citations to the record are

improper and cannot be considered].)

The court's order indicates it heard sworn testimony from both father and mother

before it adopted and modified the Family Court Services' recommendation, which was

prepared after the parties participated in a Family Court Services conference. Based upon

the sparse record provided and father's failure to provide arguments supported by

appropriate citation to the record or legal authority, we are compelled to presume the trial

court properly exercised its wide discretion to modify the custody and visitation order

and to order father's attendance of a parenting class to serve the best interests of the child.

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DISPOSITION

The order is affirmed. Respondent shall recover its costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

AARON, J.