Marriage of D. CA4/1 ( 2023 )

Filed 9/21/23 Marriage of D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
In re Marriage of JOYCE D. and
SCOTT D.
D080760
JOYCE D.,
Appellant,
v.
SCOTT D., (Super. Ct. No. DN174297)
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
William Y. Wood, Judge. Affirmed.
Joyce D., in pro. per., for Appellant.
No appearance for Respondent.
Joyce D. appeals a visitation and custody order. On appeal, she
contends there was insufficient evidence to support the trial court’s findings
that granting her custody, visitation, and conjoint therapy with her minor
children would not be in their best interest. Because we presume the order is
correct and because Joyce has not provided us with an adequate appellate
record to show the trial court erred, we affirm.
FACTUAL AND PROCEDURAL SUMMARY1
Joyce D. and her ex-husband, Scott D., have three children, two of
whom are minors.2 On July 7, 2022, the trial court held an evidentiary
hearing regarding Joyce and Scott’s custody and visitation dispute. Both
parties represented themselves, and no court reporter was present.
Joyce, Scott, and five other witnesses testified at the hearing.3 The
court admitted many of Joyce’s exhibits into evidence, including her two
minor children’s report cards, photographs of her home and children, proof of
one child’s COVID test, proofs of Joyce’s completion of substance abuse
programs and various parenting and therapy classes, and Joyce’s resume
indicating her background as an attorney. The court did not admit into
evidence Joyce’s other exhibits, which included letters about her character
from various individuals and treating professionals, text messages, and a
police report.
1 The appellate record supplied by Joyce is insufficient to support a
proper factual and procedural summary. For context, however, we provide
the following summary based on the trial court’s minute order summarizing
the evidentiary hearing and Dr. Clark Clipson’s psychological evaluation. Dr.
Clipson’s June 16, 2022 report was designated by Joyce, but it appears that it
was inadvertently omitted from the record on appeal. We augment this
document on the court’s own motion. (Cal. Rules of Court, rule
8.155(a)(1)(A).)
2 At the time of the July 7, 2022 evidentiary hearing, two of the three
children were minors, but the court observed that one of the minors would
“soon” turn the age of majority. Because more than a year has passed since
the hearing, it is probable that one of the two children is no longer a minor.
However, we are unable to make this determination on the incomplete record
before us.
3 The minute order and limited record before us do not elucidate any
information about Joyce’s or the other witnesses’ testimony.
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The court also admitted into evidence Dr. Clark Clipson’s April 2022
psychological evaluation of Joyce. In that report, Dr. Clipson noted Joyce’s
ongoing history of abusing alcohol until May 2018, prior posttraumatic stress
disorder, chronic history of anxiety, and history of domestic violence in her
relationship with Scott. Dr. Clipson noted that the validity of his
psychological evaluation was “limited” because of Joyce’s “defensive”
approach to it. He observed that Joyce did not seem to understand the
impact of her behavior on others and that her tendency to “act out in an
impulsive . . . manner when she is frustrated . . . is worse when she is
intoxicated.” Dr. Clipson recommended that Joyce and her children try again
to participate in conjoint psychotherapy, that Joyce continue to abstain from
the use of alcohol, and that she continue to participate in Alcoholics
Anonymous. Dr. Clipson concluded that “[o]ther than the risk of being over-
protective and/or intrusive in her children’s lives, [Joyce] [wa]s unlikely to
have any other difficulties safely and effectively parenting her children.”
According to the hearing’s minute order, the trial court “highlight[ed]”
unspecified portions of Dr. Clipson’s report and the portions of Family Court
Services reports that identified concerns about Joyce’s behavior,
recommended she have no contact with the minors, and identified a lack of
improvement of her mental health and behavior. The court noted the
unusually large volume of filings in the case and that there was “a Criminal
Protective Order component, and incarceration due to violations of the
Criminal Protective Order.” The court further pointed to Joyce’s repeated
violations of court orders, her unusual affect and behavior in court during the
hearing, her “minimizing of her alcohol disorder,” and her “irrational
obsession with requesting change to the custody and visitation orders in this
case” as evidenced by her 16 ex parte hearing requests filed over the previous
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three years. The court expressed it did not believe there had been any
“revelation or clarity in [Joyce’s] thought processes” and that it was
“inconceivable that [it] would bestow any parenting time to [Joyce]
considering the evidence provided.” The court ultimately found it was not in
the minor children’s best interest to order visitation, custody, or conjoint
therapy with Joyce, and it subsequently entered a Findings and Order After
Hearing reiterating those findings. Joyce appeals.
DISCUSSION
Joyce challenges the trial court’s findings that allowing her visitation,
custody, and conjoint therapy with her minor children would not be in their
best interest. We review this challenge for substantial evidence. (In re
Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) As we will explain,
however, the appellate record is insufficient to show the trial court’s findings
are not supported by substantial evidence.
An appeal is not a second hearing or a trial. Rather, an appellate
court’s role is to determine whether any error occurred, and if so, whether
that error was prejudicial to the appellant. In doing so, we defer to the trial
court’s credibility determinations and do not reweigh evidence. (In re
Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 [“[t]he Court of Appeal
is not a second trier of fact”].)
It is an appellant’s burden to provide an adequate record establishing
error. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) Generally, an
appellant must include in the record either a reporter’s transcript or a settled
statement. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 187 (Foust).) An incomplete record of the oral proceedings bars an
appellant from claiming that the evidence was insufficient to support the
order in question. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
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121, 132 [if defendants “elected not to provide a reporter’s transcript of the
trial proceedings,” they “have no basis upon which to argue that the evidence
adduced at trial was insufficient to support the trial court’s finding”];
Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 977 [“Without a complete
record, we are unable to determine whether substantial evidence supported
the implied findings underlying the trial court’s order.”]; Foust, at p. 187
[“ ‘Failure to provide an adequate record on an issue requires that the issue
be resolved against [appellant].’ ”].) These rules of appellate procedure apply
regardless of whether an appellant is represented by counsel or is self-
represented. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
Here, the trial court made express findings regarding the minor
children’s best interest based on its evaluation of the evidence and the
witnesses’ testimony at the hearing. The appellate record before us, however,
is insufficient to establish that those findings are unsupported by substantial
evidence. Specifically, the record consists only of Joyce’s declarations4 and
exhibits, Dr. Clipson’s report, a reporter’s transcript of a different hearing,
the court’s July 7, 2022 minute order, and the July 29, 2022 Findings and
Order After Hearing. It does not include a reporter’s transcript or a settled
statement for the order at issue. Thus, on this limited and insufficient
record, we are unable to conduct a meaningful review of Joyce’s substantial
evidence challenge and must instead “presume the trial court acted
4 Three days before oral argument in this appeal, Joyce filed a “motion to
correct” the record by augmenting it with her June 21, 2022 declaration,
which she claimed was incorrectly omitted from the Clerk’s Transcript. We
agreed to consider Joyce’s motion with the appeal and now grant it.
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properly.”5 (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 576 [affirming
domestic violence restraining order where appellant failed to provide
transcript of oral proceedings].)
DISPOSITION
The order is affirmed. Joyce is to bear her own costs.
CASTILLO, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
5 We further observe that an appellant is bound by additional rules of
appellate procedure designed to facilitate our review of claims of reversible
error. For example, “[a]ppellate 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.’ ” (Nelson v. Avondale Homeowners
Assn. (2009) 172 Cal.App.4th 857, 862; see Dabney v. Dabney (2002) 104
Cal.App.4th 379, 384 [court disregards argument for which no authority is
furnished].) Here, Joyce’s appellate briefing does not comply with those
requirements. Thus, we need not consider the numerous specific complaints
she lists in her opening brief, which appear to include various disagreements
about the court’s evidentiary rulings and the weight given to particular
evidence, Judge Wood’s alleged “bias” at the hearing, and specific factual
contentions—all of which lack reasoned argument and citations to authority.
Moreover, as discussed previously, without a sufficient record to evaluate
these arguments, we are unable do so.
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