Stallworth v. Orr CA1/4 ( 2020 )

Filed 12/17/20 Stallworth v. Orr CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JOSEPH STALLWORTH,
Plaintiff and Appellant,
A158353
v.
AMANDA ORR, (Alameda County
Super. Ct. No. AF14740400)
Defendant and Respondent.
Amanda Orr and Joseph Stallworth, who were never married, had a
daughter in August 2014. Shortly after the child was born, Stallworth
petitioned to establish a parental relationship with her. In August 2015, the
trial court entered a judgment on the petition finding Stallworth and Orr
were the girl’s parents and awarding each parent joint legal and physical
custody over her. Following years of custody disputes and related litigation,
the trial court entered a post-judgment custody award giving Orr and
Stallworth joint legal custody and giving Stallworth physical custody for
three weekends per month and additional time around holidays. With some
modifications, the trial court’s order adopted the recommendations of a child
custody recommending counselor at Family Court Services, Dr. Gene Mabrey,
who served as a mediator and interviewed the child.
Stallworth appeals, contending the trial court prevented him from
submitting evidence at the hearing in September 2019 that would show Orr
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had interfered with his relationship with his daughter.1 In support of his
argument, Stallworth cites a variety of incidents and allegations dating back
to the beginning of the litigation.2
The record before us constrains our consideration of Stallworth’s
arguments. In his notice designating the record on appeal, Stallworth
indicated that he intended to use a settled statement instead of reporter’s
transcripts. But he failed to file in the trial court a proposed summary of the
oral proceedings there, which is required to proceed by settled statement.
(See Cal. Rules of Court, rule 8.137(c)(1) [after appellant notifies respondent
of appellant’s intent to proceed by settled statement and respondent does not
elect to provide reporter’s transcripts, “the appellant must serve and file a
proposed statement in superior court within 30 days after filing its notice” of
intent to proceed by settled statement].) Stallworth confirmed to court staff
that he was not requesting a settled statement or looking for any other
documents before proceeding. As a result, the record on appeal consists of a
clerk’s transcript but no record of the oral proceedings in the trial court.
The failure to provide a record of the oral proceedings in the trial court
that shows what transpired presents a “fatal problem” with Stallworth’s
appeal. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,
1 Stallworth also contends the trial court erred in denying his
peremptory challenge under Code of Civil Procedure section 170.6. The trial
court denied Stallworth’s peremptory challenge and related request to
transfer the case to another judge on December 31, 2018. Stallworth filed his
notice of appeal on September 6, 2019, and that notice did not mention the
peremptory challenge. Stallworth’s appeal from that order is therefore
untimely. (See Cal. Rules of Court, rule 8.104(a)(1) [notice of appeal must be
filed at the latest within 180 days after entry of judgment].)
2 Although the parties appear to have a lengthy history of accusations
against each other, we recite only the facts necessary to resolve the issues on
appeal.
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186.) “In numerous situations, appellate courts have refused to reach the
merits of an appellant’s claims because no reporter’s transcript of a pertinent
proceeding or a suitable substitute was provided. [Citations.] [¶] The reason
for this follows from the cardinal rule of appellate review that a judgment or
order of the trial court is presumed correct and prejudicial error must be
affirmatively shown. [Citation.] ‘In 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.” ’ [Citation.] This general
principle of appellate practice is an aspect of the constitutional doctrine of
reversible error. [Citation.] ‘ “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.” ’ [Citation.] ‘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].’ ” (Id. at pp. 186–187.)
These principles require us to affirm the judgment. “Generally
speaking, ‘[t]he standard of appellate review of . . . visitation orders is the
deferential abuse of discretion test. [Citation.] The precise measure is
whether the trial court could have reasonably concluded that the order in
question advanced the “best interest” of the child. We are required to uphold
the ruling if it is correct on any basis, regardless of whether such basis was
actually invoked. [Citation.]’ [Citation.] [¶] ‘ “[E]valuating the factual basis
for an exercise of discretion is similar to analyzing the sufficiency of the
evidence for the ruling. . . . Broad deference must be shown to the trial judge.
The reviewing court should interfere only ‘ “if [it] find[s] that under all the
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evidence, viewed most favorably in support of the trial court’s action, no judge
could reasonably have made the order that he did.” ’ ” ’ ” (Rich v. Thatcher
(2011) 200 Cal.App.4th 1176, 1182.)
Stallworth cites a variety of materials from earlier stages in the case
that he contends show Orr violated the law, lied to the court, filed false
accusations of abuse, refused to use Stallworth’s last name for the child as
required by a court order, and interfered with his relationship with the child.
But without a record of the oral proceedings, we cannot assume that
Stallworth recited these events to the trial court. Moreover, the minute
orders of the proceedings that are in the record note that the court heard
from both parties on two different days of hearings. The court also reviewed
reports from Dr. Mabrey, the counselor who interviewed the child and
recommended the custody arrangement that the court ultimately modified
and adopted. In the absence of a record of the oral proceedings, we must
presume that Orr’s and Dr. Mabrey’s evidence supports the trial court’s
decision not to give Stallworth physical custody of the child, notwithstanding
Stallworth’s allegations. (Foust v. San Jose Construction Co., Inc., supra,
198 Cal.App.4th at p. 187.)
Moreover, the limited record that is available to us provides sufficient
support for the trial court’s order even without the presumption that arises
from the absence of a record of the oral proceedings. The trial court filings
indicate that Stallworth was involved in an incident of domestic violence and
had been investigated by Child Protective Services. Stallworth asserts that
the Child Protective Services investigation was closed as unfounded. We will
not discuss the matter in detail in this opinion because the evidence is
contained within a confidential portion of the record, but the record indicates
otherwise. Child Protective Services substantiated some concerning conduct
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and required Stallworth to meet certain requirements as a condition of
closing the investigation. At an adversarial custody hearing, “the court has
‘ “the widest discretion to choose a parenting plan that is in the best interest
of the child” ’ [citation], but ‘must look to all the circumstances bearing on the
best interest of the minor child.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249,
256, italics omitted.) In light of this discretion and Stallworth’s history, we
cannot say that the trial court abused its discretion in awarding Orr physical
custody and giving Stallworth visitation for three weekends per month and
additional time around holidays.
DISPOSITION
The trial court’s order is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
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