Marriage of Johns CA3 ( 2015 )

Filed 7/29/15 Marriage of Johns 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re the Marriage of JEREMY and MELISSA J. C074271
JOHNS.
JEREMY JOHNS, (Super. Ct. No. 11FL03116)
Respondent,
v.
MELISSA J. JOHNS,
Appellant.
Melissa J. Johns (mother), in propria persona, appeals from a postjudgment order
modifying custody of the minor children she shares with Jeremy Johns (father). Mother
contends the trial court abused its discretion in modifying the prior custody order without
a finding of changed circumstances, erred in admitting the mediator’s report and
recommendation, and failed to consider relevant evidence.
We affirm.
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DISCUSSION
The postjudgment order from which mother appeals, issued following a contested
hearing in the trial court. The appellate record, however, does not include a reporter’s
transcript from that hearing, and no reporter is noted in the minute order.1 Therefore, we
treat this as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal. App. 3d 1079,
1082-1083 (Allen); Krueger v. Bank of America (1983) 145 Cal. App. 3d 204, 207.)
The limited record we have establishes that a judgment dissolving the parties’
marriage was entered on December 14, 2011. Included in that judgment was a stipulated
custody order. Father moved to modify that stipulated custody order in January 2012,
and on March 14, 2012, the trial court granted father’s motion - adopting the family court
services recommended parenting plan.
On November 9, 2012, father filed a motion to modify the March 14, 2012,
custody order. Mother opposed the motion and the trial court presided over a contested
hearing on March 28, 2013. Following that hearing, the trial court granted father’s
motion. The court continued the order for joint custody but modified the parenting and
holiday schedules.
The court also ruled that this was “not a final custody determination. The court
desires to keep the best interests standard in play for possible modification. The court is
concerned by []/Mother’s obstruction and resistance to []/Father’s relationship with the
children and would entertain moving primary physical custody to []/Father if this keeps
up.” Mother appeals from this order.
1 In her designation of the record on appeal, mother indicated she was proceeding both
with and without a reporter’s transcript. In a later-filed declaration in support of her
motion to augment the record, however, mother acknowledges no court reporter was
present at the contested hearing.
2
On appeal, 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, 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 (Ehrler)). 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.)
These restrictive rules of appellate procedure apply to mother even though she is
representing herself on appeal. (Leslie v. Board of Medical Quality Assurance (1991)
234 Cal. App. 3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal. App. 3d 623, 638-639;
Wantuch v. Davis (1995) 32 Cal. App. 4th 786, 795.)
Mother contends the trial court abused its discretion in modifying the custody
order without finding changed circumstances. First, the March 14, 2012, custody order
does not, on its face, indicate that it is a final custody order. Unless the order was a final
one, the court was not required to find changed circumstances in order to modify the
order. Rather, the court was required only to determine what custody order was in the
children’s best interests. (See Montenegro v. Diaz (2001) 26 Cal. 4th 249, 256-257 [only
modification of a final/permanent custody order requires a showing of changed
circumstances, otherwise the standard is best interests of the children].)
Second, even if the court was required to find changed circumstances before
modifying the March 14, 2012, order, without a reporter’s transcript of the contested
hearing in this matter, we must presume the court made sufficient findings to support its
decision. (Ehrler, supra, 126 Cal.App.3d at p. 154.) Additionally, we must conclusively
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presume evidence was presented that is sufficient to support the court’s findings. (Ibid.)
On the face of the record, we find nothing to suggest otherwise.
Mother further claims the trial court committed various evidentiary errors.
Generally, we review a trial court’s evidentiary rulings for abuse of discretion. (People v.
Thompson (2010) 49 Cal. 4th 79, 128.) Without a transcript, however, we must
conclusively presume evidence was presented that is sufficient to support the court’s
findings. (Ehrler, supra, 126 Cal.App.3d at p. 154.) We must, therefore, assume the trial
court acted properly when it admitted evidence and/or ruled on evidentiary motions. We
must presume on appeal that official duties have been regularly performed (Evid. Code,
§ 664), and this presumption extends to the actions of trial judges. (People v. Duran
(2002) 97 Cal. App. 4th 1448, 1461, fn. 5; Olivia v. Suglio (1956) 139 Cal. App. 2d 7, 8-9
[“If the invalidity does not appear on the face of the record, it will be presumed that what
ought to have been done was not only done but rightly done.”].) In sum, on this record,
we presume the trial court correctly ruled on all evidentiary questions presented. Mother
has failed to establish otherwise.
DISPOSITION
The order of the trial court is affirmed. Costs on appeal are awarded to father.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
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