C.C. v. M.R. CA4/1 ( 2015 )

Filed 7/21/15 C.C. v. M.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
C.C., D066645
Respondent,
v. (Super. Ct. No. DN133101)
M.R.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kelly C.
Dowlan, Commissioner. Affirmed.
William J. Brown III for Appellant.
No appearance for Respondent.
M.R. (Father) appeals an order denying his application to modify a custody order
involving his child, Enrique. Father argues it was an abuse of discretion to deny the
request for modification because the court did not consider the best interests of Enrique
when it denied Father's application, and also argues the court applied improper criteria or
made incorrect legal assumptions when it denied his application.
I
FACTUAL AND PROCEDURAL BACKGROUND1
In 2008, a court ordered that Father and C.C. (Mother) have joint legal custody of
their child, Enrique, and provided Father with a visitation schedule. The court also
ordered that neither parent move the residence of Enrique out of San Diego County
absent permission or a court order. However, in 2010, Mother moved to Mexico and
took Enrique with her in violation of that order, and in 2011 Father obtained a Protective
Custody Order ordering return of Enrique to San Diego County through the San Diego
County District Attorney's Child Abduction Unit.
Father also apparently commenced a proceeding in Mexico under the Hague
Convention on the Civil Aspects of International Child Abduction (the Hague
Convention)2 seeking an order to return Enrique to the United States, but the court in
1 Father has filed a request for judicial notice asking that we judicially notice nine
items, the first six of which are pleadings filed in the underlying superior court action and
the last three of which are partial transcripts of testimony from a federal court action.
Although we grant Father's request for judicial notice of items one through six as
pleadings filed in the present matter (Evid. Code, § 452, subd. (d)), we deny his request
for judicial notice of items seven through nine (the partial trial transcripts) because Father
cites nothing permitting us to judicially notice the truth of the testimony contained in
those transcripts, and the law is to the contrary. (See, e.g., Bach v. McNelis (1989) 207
Cal.App.3d 852, 864-865.) Accordingly, our factual recitation must disregard the
purported "facts" contained in those transcripts.
2 See the Hague Convention, text and legal analysis, 51 Fed. Reg. 10494 (Mar. 26,
1986); 22 USCA § 9001 et seq.
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Mexico ruled against Father.3 While his appeal of that ruling was still pending in
Mexico, Father filed the instant request seeking to modify the prior custody order and to
obtain a new order granting him sole legal and physical custody of Enrique. The court
denied the request, and instead confirmed all existing orders would remain in effect.
When Father sought ex parte reconsideration of that ruling, the court denied the request,
stating "Hague involved matter on appeal. Court questions jurisdiction." Father appeals
the denial of his application for modification of the custody order, arguing it was an
abuse of discretion to deny the request for modification.
II
ANALYSIS
A. Applicable Legal Standards
Custody Determinations
In a custody determination, the trial court has wide discretion to choose a
parenting plan that is in the best interests of the child (In re Marriage of Burgess (1996)
13 Cal.4th 25, 32), and examines all the circumstances bearing on the best interests of the
child. (Burchard v. Garay (1986) 42 Cal.3d 531, 534.) The standard of appellate review
of custody and visitation orders is the deferential abuse of discretion test, and we are
required to uphold the ruling if it is correct on any basis, regardless of the basis actually
invoked. (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.)
3 Father has not asked that we take judicial notice of the ruling in the Mexico
proceeding. However, Father's declaration filed below concedes the court in Mexico
conducted a lengthy trial and ruled against Father after determining Enrique had lived in
Mexico for three years and was "old enough to decide where he wanted to live."
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Appellate Review
"[T]he cardinal rule of appellate review [is] that a judgment or order of the trial
court is presumed correct and prejudicial error must be affirmatively shown." (Foust v.
San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) Accordingly, "[i]n
the absence of a contrary showing in the record, all presumptions in favor of the trial
court's action will be made by the appellate court. '[I]f any matters could have been
presented to the court below which would have authorized the order complained of, it
will be presumed that such matters were presented.' " (Bennett v. McCall (1993) 19
Cal.App.4th 122, 127.) " 'A necessary corollary to this rule is that if the record is
inadequate for meaningful review, the appellant defaults and the decision of the trial
court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416.) "Consequently, [appellant] has the burden of providing an
adequate record. [Citation.] Failure to provide an adequate record on an issue requires
that the issue be resolved against [appellant]." (Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502.)
Because "[a] ruling by a trial court is presumed correct" (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 631), "[t]he burden of demonstrating error
rests on the appellant." (Id. at p. 632.) That burden includes the obligation to present
argument and pertinent legal authorities demonstrating error: " 'Appellate briefs must
provide argument and legal authority for the positions taken. "When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived." ' [Quoting Nelson v. Avondale Homeowners
4
Assn. (2009) 172 Cal.App.4th 857, 862.] 'We are not bound to develop appellants'
arguments for them. [Citation.] The absence of cogent legal argument or citation to
authority allows this court to treat the contention[s] as waived.' [Quoting In re Marriage
of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.]" (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956.) An appellant is not relieved of these
burdens merely because, as here, the respondent has not filed a brief. (Kriegler v. Eichler
Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227.)
B. Analysis
Applying these applicable standards, Father has not affirmatively demonstrated the
order declining to modify the existing custody order was erroneous. First, Father has not
provided any reporter's transcript of the proceedings, and therefore cannot demonstrate
what evidence was actually admitted at the hearing, much less that the evidence
affirmatively demonstrates maintaining the existing custody order exceeded the bounds
of reason. When an appellant challenges a ruling and alleges, as Father does here, that
the ruling must be reversed for an abuse of discretion, the absence of an adequate record
of the evidence submitted below is fatal to the argument on appeal. (See Wagner v.
Wagner (2008) 162 Cal.App.4th 249, 259 [challenge alleging ruling was abuse of
discretion "has been thwarted by [appellant's] failure to provide us with a transcript of the
hearing on the motion . . . . The absence of a record concerning what actually occurred at
the hearing precludes a determination that the court abused its discretion."]; accord, Vo v.
Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 ["The absence of a
record concerning what actually occurred at the trial precludes a determination that the
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trial court abused its discretion."]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136-
137.) "As the party challenging a discretionary ruling, [Father] had an affirmative
obligation to provide an adequate record so that we could assess whether the court abused
its discretion. [Citations.] Accordingly, [Father] has forfeited this argument on appeal."
(Wagner v. Wagner, at p. 259.)
Even assuming Father had presented an adequate record of the proceedings below,
he has not affirmatively shown the ruling was erroneous. It appears at least one ground
relied on by the trial court for declining to disturb the existing custody and visitation
orders was the ruling in the Mexico proceedings under the Hague Convention, and the
pending appeal of that ruling, which required the trial court to abstain from granting the
requested relief. Because we presume correct a ruling by a trial court, placing on Father
the burden of demonstrating error (Winograd v. American Broadcasting Co., supra, 68
Cal.App.4th at pp. 631-632), Father must present argument and pertinent legal
authorities demonstrating this conclusion to be erroneous. (Cahill v. San Diego Gas &
Elec. Co., supra, 194 Cal.App.4th at p. 956.) Father's brief is entirely silent on his
apparent claim that a California court, when faced with knowledge that there are pending
Hague Convention proceedings not yet completed in another country, may nevertheless
enter orders altering existing custody orders. Because appellate briefs must provide
argument and legal authority for the positions taken, an appellant's failure either to raise a
point or to support an essential argument with reasoned argument and citations to
authority permits this court to treat the argument as waived. (Ibid.) Father has cited no
authority showing the trial court below was empowered to enter an order altering existing
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custody orders despite the pending Hague Convention proceedings in Mexico, and we
therefore may treat the argument as waived.
Moreover, we are aware of no authority that, after a foreign court (operating under
the Hague Convention's provisions for children abducted in violation of a California joint
custody order) concludes the child need not be returned to California, a California court
may simply disregard that ruling. To the contrary, the law appears to be that the ruling of
the Mexican court operating under the Hague Convention must be accorded
"considerable deference," under the doctrine of comity. (Diorinou v. Mezitis (2d Cir.
2001) 237 F.3d 133, 142; see Miller v. Miller (4th Cir. 2001) 240 F.3d 392, 400
[" 'comity is at the heart of the Hague Convention' "].) The absence of a record here
precludes Father from showing that he demonstrated below any basis sufficient for the
trial court to withhold comity in this case. That is particularly so because it was Father
who initiated the proceedings under the Hague Convention and now refuses to be bound
by that result, and the record before us does not show the jurisdiction of the Mexican
court was invalid, or that the specific procedures outlined by the Hague Convention were
not followed with respect to his application, or that the apparent ground for the Mexican
court ruling exceeded the limitations of the Hague Convention.4 Although Father may
4 The court in Mexico apparently ruled against Father because Enrique had lived in
Mexico for three years and was "old enough to decide where he wanted to live." (See fn.
3, ante.) Both of those considerations are apparently proper grounds for determining the
child should not be returned under the Hague Convention. (See Wojcik v. Wojcik (E.D.
Mich. 1997) 959 F.Supp. 413, 420-421 [where more than one year had elapsed since
abduction and children well settled in new country, court may properly refuse return,
citing Hague Convention, article 12]; Gaudin v. Remis (9th Cir. 2005) 415 F.3d 1028,
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believe his rights were somehow violated by the Mexican court order, something more
than the adverse ruling itself must be shown before a California court may disregard a
foreign order otherwise validly rendered under the Hague Convention. (See Diorinou v.
Mezitis, supra, 237 F.3d at p. 146.)
DISPOSITION
The order is affirmed. Father shall bear his own costs on appeal.
McDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
1037 [court "may properly refuse to order the return of the children . . . if it 'finds that the
child[ren] object[ ] to being returned and ha[ve] attained an age and degree of maturity at
which it is appropriate to take account of [their] views,' " citing Hague Convention,
article 13, section 2]; accord, Escobar v. Flores (2010) 183 Cal.App.4th 737, 747-748.)
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