Marriage of G.S. and A.S. CA4/1 ( 2022 )

Filed 5/19/22 Marriage of G.S. and A.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of G.S. and A.S.
D077754
G.S.,
Respondent, (Super. Ct. No. DN165349)
v.
A.S.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kelly C. Mok and William Y. Wood, Judges. Affirmed.
A.S., in pro. per., for Appellant.
G.S., in pro. per., for Respondent.
A.S. appeals a postjudgment order denying her request for modification
of an order that granted G.S. legal and physical custody of their minor
children and granted her limited visitation. A.S. claims no substantial
evidence supports the decision to deny her custody. Because she has not met
her burden to show prejudicial error, we affirm the challenged order.
BACKGROUND
A.S. and G.S. married in 1995 and had three children before they
separated in 2011. Upon petition by G.S., the family court entered a
judgment dissolving the marriage in 2012. The court initially granted the
parties joint custody of the children, granted G.S. physical custody, and
granted A.S. visitation on weekends. Due to A.S.’s erratic behavior and
noncompliance with psychiatric treatment, the court in 2014 modified the
custody and visitation order to grant G.S. sole legal custody of the children, to
reduce A.S.’s visitation to eight hours on Saturdays, and to require the
visitation be supervised.
A.S. repeatedly and unsuccessfully sought more time alone with the
children by filing requests for orders modifying the custody and visitation
arrangement. On July 19, 2019, A.S. requested sole legal and physical
custody of the two children who were still minors. In a declaration included
with the request and in others filed before the hearing on the request, A.S.
stated G.S. lied in court; his car did not run well and stank; he did not
provide adequate food, clothing, and health care for the children; her car ran
well and did not stink; she worked with children and was training to be a
dental assistant; the children wanted to spend more time with her; and she
wanted to spend more time with them and without supervision. On
December 30, 2019, the family court held an unreported hearing at which
both parties testified, and on February 28, 2020, issued an order denying the
modifications A.S. had requested.1 Her motion for clarification of the order
was denied.
1 Judge Mok held the hearing and on January 25, 2020, the case was
reassigned to Judge Wood, who signed the order.
2
DISCUSSION
A.S. contends “[c]ustody should be returned to [her] because it was
wrongfully taken away and there is no just reason to keep it away.” In the
section of her opening brief on appealability, she says the February 28, 2020
order is appealable because “the attached Family Court Services
report/recommendations have false and misleading ac[c]usations about [her].”
In the argument section, A.S. claims no substantial evidence supports the
family court’s order “because there was never a Child Custody Investigation
[and] Evaluation,” Family Court Services made recommendations “based on
he[ar]say and with prejudice,” and there was “No Evidence of Wrongful
Parenting.” In the rest of her opening briefing, A.S. insists she has complied
with the recommendations of her psychiatrist and all court orders, extols her
own parenting skills, accuses G.S. of lying about her, disparages his
parenting skills, and complains Family Court Services made custody and
visitation recommendations based on G.S.’s false accusations rather than on
an independent investigation and input from her psychiatrist or psychologist.
G.S. filed a respondent’s brief asserting, without elaboration, that the family
court correctly denied A.S.’s motion for clarification and the custody and
visitation arrangement should remain as is. He also filed a motion to
augment the record with prior custody and visitation orders, declarations,
and other documents filed in the case.2 In her reply brief, A.S. narrates more
2 The documents include the minutes of the hearing on A.S.’s motion for
clarification of the February 28, 2020 order; the February 28, 2020 order and
orders on two previous requests by A.S. for modification of custody and
visitation; an ex parte order modifying custody and visitation; a declaration
from A.S.’s sister, who described A.S.’s mental problems and several incidents
in which those problems have negatively affected the family; a safety plan
put in place while Child Welfare Services conducted an investigation in 2013;
and a declaration from A.S.’s “supervisor,” who stated A.S. has put the
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“facts” to show she is a good parent, the court’s concerns about her mental
illness are unfounded, G.S. is a bad parent, and her sister and supervisor lied
about her in their declarations. As we explain below, A.S.’s appeal founders
on fundamental principles of appellate review.
“ ‘A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. This is not
only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ ” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; accord, In re Marriage of Walker (2006) 138
Cal.App.4th 1408, 1418.) “Appellants fail to carry the burden of affirmatively
demonstrating error if they, among other things, do not provide an adequate
record on appeal or do not comply with certain briefing requirements in
California Rules of Court, rule 8.204.” (Herrera v. Doctors Medical Center of
Modesto, Inc. (2021) 67 Cal.App.5th 538, 546 (Herrera).)
A.S. has not complied with briefing requirements. Her factual
assertions are unaccompanied by the required citations to the specific pages
of the record where evidentiary support for the assertions can be found. (Cal.
Rules of Court, rule 8.204(a)(1)(C).) “Because ‘[t]here is no duty on this court
to search the record for evidence,’ ” we “may disregard any factual contention
not supported by a proper citation to the record.” (Grant-Burton v. Covenant
Care, Inc. (2002) 99 Cal.App.4th 1361, 1379, italics omitted.) A.S.’s opening
brief does not include the required “summary of the significant facts limited
children in danger and described a harrowing car ride during which the
supervisor had to awaken A.S. after she fell asleep at the wheel. Because the
documents were filed in the case, we grant the motion to augment and deem
the documents part of the record on appeal. (Cal. Rules of Court, rule
8.155(a)(1)(A), (2); In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 12 &
fn. 5.)
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to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C).) She did
not summarize the testimony or other evidence presented at the December
30, 2019 hearing that resulted in the order she is challenging; and she made
many factual assertions, especially in her reply brief, that are not supported
by evidence in the record. We “may disregard factual contentions that . . . are
based on information that is outside the record.” (Tanguilig v. Valdez (2019)
36 Cal.App.5th 514, 520 (Tanguilig).) A.S. has not supported her claim of
error with the required legal argument and citation of authority. (Cal. Rules
of Court, rule 8.204(a)(1)(B).) She claims there is no substantial evidence to
support the family court’s order and cites a case describing the substantial
evidence standard of review, Williams v. Wraxall (1995) 33 Cal.App.4th 120,
132. A.S., however, does not go on to apply that standard to the evidence
introduced at the December 30, 2019 hearing and to explain why it does not
support the resulting order. The only other legal authorities she cites are
statutes concerning visitation rights of former legal guardians (Fam. Code,
§ 3105) and court-ordered child custody evaluations (id., §§ 3110, 3110.5,
3111), but she does not explain how these statutes support her claim the
evidence is insufficient to support the February 28, 2020 order. “This
conclusory presentation, without pertinent argument or an attempt to apply
the law to the circumstances of this case, is inadequate.” (Benach v. County
of Los Angeles (2007) 149 Cal.App.4th 836, 852.) We may, and do, treat A.S.’s
factually and legally unsupported contentions as waived or abandoned. (In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; Benach, at
p. 852.)
Another problem with A.S.’s briefing is its one-sided presentation of the
facts. An appellant asserting a lack of substantial evidence must overcome
the presumption that sufficient evidence supports the challenged order by
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affirmatively showing no substantial evidence supports it. (Ashby v. Ashby
(2021) 68 Cal.App.5th 491, 512; Adoption of A.B. (2016) 2 Cal.App.5th 912,
922-923.) To do so, the appellant must fairly summarize all the evidence, not
just that favorable to her. (In re Marriage of Marshall (2018) 23 Cal.App.5th
477, 487.) By challenging the family court’s order for insufficiency of the
evidence and stating only evidence favorable to her, A.S. has forfeited the
challenge. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; In re Marriage
of Dalgleish & Selvaggio (2017) 17 Cal.App.5th 1172, 1183.)
A.S. also has not supplied this court with an adequate record. She
included in the clerk’s transcript the declaration she submitted with her July
19, 2019 request for order and seven others she filed both before and after the
hearing on the request. But she did not include any of the declarations
submitted by G.S. that are listed in the register of actions. A.S. also did not
arrange for a court reporter at the hearing on her request for order so that
she could supply us with a transcript of the testimony given at the hearing.
She did submit a request for a settled statement to the family court (Cal.
Rules of Court, rule 8.137), but she did not include in the proposed statement
a summary of the testimony or other evidence presented at the hearing and
did not make the changes ordered by the family court. A.S.’s failure to
provide either a reporter’s transcript or a settled statement makes it
impossible for us to review her claim the evidence was insufficient to support
the family court’s order and requires us to resolve the claim against her.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609; Herrera, supra, 67 Cal.App.5th
at p. 547; Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
In closing, we note A.S. is representing herself in this appeal, and for a
person untrained in the law that may be a difficult task. Nevertheless, “as a
party appearing in propria persona, [she] ‘is entitled to the same, but no
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greater, consideration than other litigants and attorneys.’ ” (Tanguilig,
supra, 36 Cal.App.5th at p. 520.) “ ‘Thus, as is the case with attorneys, pro.
per. litigants must follow correct rules of procedure.’ ” (Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31.) “Clearly, [A.S.] has failed to comply with
appellate rules of procedure. [Her] claims of insufficiency of the evidence are
supported by no citation to the reporter’s transcript, and [her] recitation of
facts fails to discuss all evidence material to [her] contentions. We therefore
find that [A.S.] has waived such challenges on appeal.” (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1247.)
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
AARON, Acting P. J.
DATO, J.
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