Roy v. Roy CA1/2 ( 2024 )

Filed 10/18/24 Roy v. Roy CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
NEVENA ROY,
Plaintiff and Respondent,
A166932
v.
JOYANTO ROY, (San Mateo County
Super. Ct. No. 17-FAM-03270)
Defendant and Appellant.
Joyanto Roy (Father) appeals from a December 2022 custody and
visitation order that was designated by the family court as permanent and
final. Father argues that the family court erred when it issued temporary
custody and visitation orders the year before, in December 2021, allowing
Nevena Roy (Mother) to move from San Mateo County to San Diego with
their daughter N.R. (Minor) who was then four years old, and granting
Mother sole physical custody of Minor.1 He also argues that the family court
abused its discretion when it issued the December 2022 permanent order,
which maintained Mother’s sole physical custody and provided for visitation
1 The family court’s December 2021 order was not directly appealable
because it was a temporary custody order (Lester v. Lennane (2000) 84
Cal.App.4th 536, 558); we review Father’s claims of error as to that order as
part of our review of the final custody order, which incorporates provisions of
the temporary order. (Code Civ. Proc., § 906.)
1
between Father and Minor every other weekend and every other Wednesday.
We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Proceedings from December 2017 to June 2021
In December 2017, Mother petitioned for dissolution of her marriage to
Father. Minor was then less than one year old. Disputes between the
parents concerning custody and visitation arose early in the proceedings, as
reflected in the transcript of a July 2018 hearing.
In April 2019, the family court issued a stipulated custody and
visitation order giving Mother and Father joint legal and physical custody of
Minor, with a parenting schedule described as “a 2-2-3 plan with evenly
shared custodial time.” Nothing in the stipulated order states that it was or
was intended to be a final determination of custody and visitation.
A “Judgment for Dissolution—Status Only” was entered in September
2020. The effective date of termination of marital status was September 2,
2020. A judgment was entered in August 2021 resolving various financial
matters.
B. Mother’s Proposed Relocation to San Diego
In June 2021, when Minor was four years old, Mother filed a request
for an order modifying custody and visitation that would allow Minor to move
with Mother from San Mateo County to San Diego and award Mother
primary physical custody. A two-day evidentiary hearing on the request was
held in November 2021. Father, who had been represented by counsel
throughout the proceedings, was represented by his attorney on the first day
of the hearing, November 9, 2021. Father’s attorney filed a substitution of
attorney in advance of the second day of the hearing, and Father represented
himself on the second day. Over the course of the hearing, the court heard
2
testimony from four witnesses and admitted numerous documents into
evidence. After hearing argument, the court announced its findings and
conclusions from the bench and granted Mother’s request.
As reflected in the court’s statement of decision, entered in December
2021, the family court presumed that Mother would move to San Diego, and
therefore the question before it was “what custody and visitation orders are
in the best interest of [Minor].” The court found that there was no “final
permanent custody order in th[e] case” and that the then-existing custody
and visitation orders were temporary orders. The court found that Minor had
spent equal time with each parent since December 2020.2 The court found
detriment to Minor from the proposed relocation in that she would have
decreased time with Father, but determined based on the totality of the
evidence that it was in Minor’s best interest to authorize the relocation and
change in physical custody.
The court stated that it had considered the parents’ past conduct in
determining whether the move-away request was in Minor’s best interest,
and noted that during the past two years the parties had been before the
court “with substantial litigation” and Father had “repeatedly demonstrated
his inability to put [Minor’s] interest before his own, his inability to co-parent
2 Although Mother and Father stipulated to an equal timeshare in
April 2019, the actual timeshare had been different for part of the time
between then and December 2020. The court found that Father had extended
periods of “absence from, or limited involvement in, [Minor’s] life,” including
a period preceding February 2020 during which he had about a 15 percent
timeshare and a period from March 2020 to October 2020 when he had
“virtually no contact with” Minor.
3
cooperatively, and his inability to communicate civilly.”3 The court set forth
several “concrete examples of [Father’s] inability to put [Minor’s] interest
before his own,” including that Father had at one time sought ex parte relief
to prevent Mother from traveling to Serbia with Minor, but had also proposed
that Mother and Minor move to Serbia while objecting to the proposed
relocation to San Diego; that Father demanded Mother’s compliance with an
order concerning the time of exchanges in time share, even though Father
refused to comply with the order and admitted that the parties had not
followed the order for years; that Father claimed that the relocation to San
Diego would be a financial burden on him, but had recently bought a car for
which he was paying $1,000 per month; and that Father asked the court to
deny Mother’s requested relocation “because she has ‘access to parenthood’
with her significant other’s children.”
The court found that Mother’s proposed move “is motivated by the best
interest of [Minor], including, but not limited to, stability—in housing,
parenting and other areas, and the presence of her biological family and
extended Serbian community, which is half of [Minor’s] ethnicity/heritage.
On the other hand, [Father] currently lives in a shared living situation with
6-8 other people, where he intends to live forever, and stated his position that
having permanent housing (i.e., living in an owned home) would provide no
benefit to [Minor.] Further, [Father] testified that there was no benefit to
[Minor] to have access to her biological family, specifically [Mother’s] brother,
who is also relocating to San Diego.” The court further found that Mother
was the parent more likely to encourage an ongoing relationship with the
3 The exhibits admitted into evidence, which are not included in the
record on appeal, include emails and text messages between Mother and
Father.
4
other parent, based on evidence that Mother allowed Father to take Minor to
extracurricular activities that he scheduled during Mother’s custodial time
and that Mother encouraged communication between Minor and Father
during vacations and holidays. Father, on the other hand, refused to allow
Mother to communicate with Minor during vacations and holidays and
refused to even respond to Mother’s requests. The court found that Mother’s
requested relocation would not unduly burden Father’s frequent and
continuing contact with Minor, and that Mother was “the parent more likely
to foster that contact.”
The court awarded Mother and Father joint legal custody of Minor,
awarded Mother sole physical custody, and established a detailed schedule
for “Timeshare/School Breaks/Vacations,” with instructions as to the
arrangement of exchanges. Father’s time with Minor included at least one
full weekend per month, with Father traveling to San Diego or Mother
traveling with Minor to the Bay Area. The parents were to communicate in
advance as to where each visit would take place and their travel
arrangements, and Father was permitted to spend additional time with
Minor if he was in San Diego for visits. Father’s time with Minor also
included one week per month in the Bay Area during Minor’s three-month-
long summer vacation, to be increased to two weeks per month starting in
2023; and one week during each of Minor’s winter, spring, and fall breaks
from school. If Father spent custodial time with Minor in San Diego, he was
to ensure that she attended all her scheduled extracurricular activities and
lessons. The order also provided for at least one half-hour-long telephone or
video call per day between Minor and whichever parent did not have
custodial time.
5
C. Proceedings After the December 2021 Statement of Decision
Father represents, and the register of actions reflects, that in the year
after the statement of decision was issued, he filed several requests for
orders. Father has not included any of those requests in the record on
appeal, nor has he included any requests or declarations concerning custody
and visitation that were filed by Mother.
It appears that in early 2022, after Mother moved to San Diego with
Minor, Father (who had testified in November 2021 that he intended to live
in San Mateo County for the rest of his life) also moved to San Diego. In
January 2022, once again represented by counsel, Father filed a request to
transfer venue to San Diego county.4 The family court set the matter for
hearing in April.
1. February 2022 Temporary Emergency Orders
In February Mother filed an ex parte request for an order modifying
custody and/or visitation, to which Father filed a response, neither of which
are included in the record. On February 22, the family court issued
temporary emergency orders modifying the visitation schedule such that
Father’s visitation with Minor was limited to overnights every other
weekend, and a visit every other Wednesday evening, with visitation to take
place within a 20 mile radius of a specific location in San Diego. The orders
set forth in the December 2021 statement of decision were to remain in effect
to the extent they did not conflict with the new visitation schedule.
4 Subsequent dates are in 2022 unless otherwise stated.
6
2. Father’s Request to Reinstate 2-2-3 Schedule; April 2022 Hearing
On February 28, Father filed a request for an order reinstating the 2-2-
3 parenting time schedule that was in place before Mother moved to San
Diego.
In March, Father’s attorney filed a motion to be relieved as counsel,
which the court granted. Father represented himself at the April 2022
hearing on his request to transfer venue and his request to reinstate the 2-2-
3 schedule. At that hearing, the court also considered a responsive request
from Mother that the court order therapeutic visitation between Minor and
Father in light of the fact that by the time of the hearing, Father had not
spoken to or seen Minor in four months. The court stated it had reviewed the
declarations that had been submitted by the parties. After hearing from the
parties, the family court observed that Father had not seen Minor “for many,
many months”; denied Father’s request to reinstate the equal timeshare
schedule; reinstated the visitation schedule established in its February 2022
orders; and put the matter over for review to July 2022 “to see how those
visits are going.” The court denied Mother’s request for therapeutic
visitation, stating that it would consider at the review hearing whether
therapeutic visitation was necessary. The court also denied Father’s request
to transfer venue to San Diego County, based on its conclusion that a transfer
of venue would not be in the best interest of Minor in light of the ongoing
issues concerning visitation.
3. July 2022 Review Hearing
At the July hearing, Father provided an oral response to a declaration
Mother had filed the week before updating the court on custody and
visitation. The court stated that based on what it had heard from the parties
at the hearing, as well as Mother’s filed declaration (which is not included in
7
the record on appeal), it concluded that it was not in Minor’s best interest to
make any changes to the existing orders. The court ruled that the previous
orders would remain in full force and effect and continued the matter to
October 25 “for a last review to see if anything changes.”
4. October 2022 Review Hearing
A week before the scheduled review hearing, Mother filed a declaration
updating the court about custody and visitation, which, the family court
reviewed. Like Mother’s July update, however, it is not included in the
record on appeal. Father did not file a declaration, but presented testimony
at the hearing. Father testified that he had abided by the court’s temporary
orders and that he did not want them to become permanent. He stated that
under the temporary orders, his only time with Minor was on weekends, and
that Mother wanted him to take Minor to various activities on weekends
which “take away from our experience as parents.” He asked the court to
restore the shared time schedule and shared custody that had been in place
when both parties lived in San Mateo County. Under that arrangement,
“[Mother’s] time was her time; my time was my time. And we respected those
. . . boundaries.”
Mother’s counsel argued that Father had not abided by the temporary
orders, as evidenced by his refusal to spend any time with Minor in the first
months after the move to San Diego. She also argued that Father refused to
put Minor’s needs first, as evidenced by the fact that although Minor enjoyed
her Serbian class and soccer league, and those activities were good for her,
Father regarded them as infringing on his time. Mother wanted the current
orders to become permanent and wanted the court to confirm that Father was
required to take Minor to the activities in which she was enrolled.
8
After the matter was submitted, the family court opened its discussion
of the custody and visitation issues by expressing concern about Father’s
failure to “get[ ] better at . . . coparenting.” The court noted that it had made
custody and visitation orders based on evidence that included Father’s
representation that he was going to stay in the Bay Area, and that Father
then moved and “create[d] a bunch of conflict and trauma and drama.” The
court observed that when Minor was younger, there were not a lot of
extracurricular activities: “So were there a lot of extracurricular activities for
a three-year-old? No. Are there now as a five-year-old? Yes. Two years is a
big difference in that age, and it’s only going to get worse, meaning it’s not
about your time. It’s about doing things with your daughter that she enjoys
doing. And if it means that it lands on, quote, ‘your weekend,’ I don’t know
what to tell you about that. It’s about what she wants to do and that you are
going to support that.”
The court declined to make any changes to the current orders but
stated it would “add and clarify that both parties must ensure that [Minor]
attends her extracurricular activities during their parenting time.” The court
stated that it was making the existing orders permanent, and directed
Mother’s counsel to prepare the written order, which was filed on December
1, 2022. The order provided that Mother and Father shared legal custody of
Minor; Mother had sole physical custody of Minor; Father’s visitation with
Minor was limited to every other weekend, from Friday evening to Sunday
evening, and every other Wednesday evening, and was to take place within a
prescribed geographical area; and both parties were to ensure that Minor
attends all activities and lessons in which she was enrolled, including
specifically Serbian class, soccer, and swimming lessons. The order stated
9
that it was intended by the court to be a “permanent and final order pursuant
to Montenegro v. Diaz (2001) 26 Cal.4th 24[9] [(Montenegro)].”
Father timely appealed from the December 2022 order. Mother did not
file a respondent’s brief, and oral argument has been waived.5 Therefore, we
decide the appeal on the record and Father’s opening brief. (Cal. Rules of
Court, rule 8.220(a)(2).)6
DISCUSSION
A. Principles of Appellate Practice
Before turning to Father’s arguments we summarize standards that
apply to appeals. These same standards apply where parties represent
themselves, as Father does here, and to appeals where parties are
represented by counsel. (Barton v. New United Motor Manufacturing, Inc.
(1996) 43 Cal.App.4th 1200, 1210 [self-represented litigant is “treated like
any other party and is entitled to the same, but no greater consideration than
other litigants and attorneys”].)
Orders challenged on appeal are presumed to be correct, and it is the
appellant’s burden to affirmatively show that the trial court erred. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) It is also the appellant’s burden
to show prejudice from any error. (Century Surety Co. v. Polisso (2006) 139
Cal.App.4th 922, 963 (Century Surety).) The California Constitution permits
reversal only if “the error complained of has resulted in a miscarriage of
5 The record on appeal was not filed until January 2024 due in part to a
default caused by Father’s failure to deposit fees for the reporter’s transcript.
The default was cured by mid-December 2023. Father filed his opening brief
in April 2024, after receiving a 60-day extension. Mother received a 60-day
extension to file her brief, but then decided not to file one. The case was
designated fully briefed in July 2024.
6 Subsequent citations to rules are to the California Rules of Court.
10
justice.” (Cal. Const., art. VI, § 13.) The Code of Civil Procedure provides
that appealed judgments and orders may be reversed only if the record shows
that an error was “prejudicial”; the error caused appellant “substantial
injury”; and absent the error, “a different result would have been probable.”
(Code. Civ. Proc., § 475.)
An appellant must “support claims of error with meaningful argument
and citation to authority. [Citations.] When legal argument with citation to
authority is not furnished on a particular point, we may treat the point as
forfeited and pass it without consideration.” (Allen v. City of Sacramento
(2015) 234 Cal.App.4th 41, 52 (Allen).) In addition, an appellant must
support the arguments in his brief by appropriate reference to the record.
(Air Couriers International v. Employment Development Dept. (2007) 150
Cal.App.4th 923, 928; see rule 8.204(a)(1)(C) & (a)(2)(C) [appellant’s opening
brief must include a summary of significant facts limited to matters in the
record, with any reference to a matter in the record supported by a citation to
the volume and page number of the record].) Failure to provide an adequate
record requires that the issue be resolved against the appellant. (Oliveira v.
Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
B. Applicable Law and Standard of Review
Under the California statutes that govern child custody and visitation,
“the overarching concern is the best interest of the child.” (Montenegro,
supra, 26 Cal.4th at p. 255.) The factors to be considered in determining a
child’s best interest “include the health, safety and welfare of the child, any
history of abuse by one parent against the child or the other parent, and the
nature and amount of contact with the parents.” (Ibid., citing Fam. Code,
11
§ 3011.7) Once a final judicial custody determination has been made,
whether that determination is reflected in an order made by a court after an
adversarial proceeding or in a stipulated custody order, a “variation on the
best interest standard” applies: the “changed circumstance” rule, under
which “a party seeking to modify a permanent custody order can do so only if
he or she demonstrates a significant change of circumstances justifying a
modification.” (Montenegro at p. 256.) A stipulated custody order constitutes
a final judicial custody determination “only if there is a clear, affirmative
indication the parties intended such a result.” (Id. at p. 258.)
We apply the deferential abuse of discretion test in reviewing custody
and visitation orders. (Montenegro, supra, 26 Cal.4th at p. 255.) “Under this
test, we must uphold the trial court ‘ruling if it is correct on any basis,
regardless of whether such basis was actually invoked.’ ” (Ibid.)
Our review of challenges to the family court’s findings of fact “is limited to
whether any substantial evidence, contradicted or uncontradicted, supports
the trial court’s ruling,” resolving all conflicts in the evidence in favor of the
prevailing party and drawing all reasonable inference to support the court’s
decision. (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 300
(Chalmers).) We “ ‘do not reweigh evidence or reassess the credibility of
witnesses.’ ” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)
In any substantial evidence challenge, the appellant has the burden to set
forth in his brief all the material evidence on the point, and not merely his
own evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881
(Foreman & Clark).) Failure to meet this burden results in the forfeiture of
the claim. (Ibid.)
7 All further statutory references are to the Family Code unless
otherwise stated.
12
C. Challenges to the December 2021 Order
Father’s appellate brief includes two headings that directly address the
family court’s December 2021 custody and visitation order: first, that the
court erred in finding that the April 2019 stipulated order was not final and
permanent, and second, that the court erred by not ruling “individually” on
Father’s objections to the proposed statement of decision. (See rule
8.204(a)(1)(B) [each appellate brief must “[s]tate each point under a separate
heading or subheading summarizing the point”].)
1. Status of the April 2019 Stipulated Order
As for the family court’s finding that as of December 2021 there was no
final and permanent custody order, Father does not even attempt to show
that the finding is not supported by substantial evidence, as he is required to
do. (Chalmers, supra, 213 Cal.App.4th at p. 300.) Instead, Father simply
asserts that “[i]t is clear” the stipulated custody and visitation order entered
in April 2019, which provided for shared physical custody, was intended by
the parties to be permanent. Father’s say-so is not enough. Father does not
cite anything in the record other than the three pages of the order itself to
support his claim of error. The order does not state that it is a permanent
order, and Father does not identify anything in the order that constitutes “a
clear, affirmative indication [that he and Mother] intended such a result.”
(Montenegro, supra, 26 Cal.4th at p. 258.) Father fails to show that the
family court’s finding was in error.
Under the same heading—which addresses only the family court’s
purported error in finding that there was no permanent custody order in the
case—Father raises other issues connected to the December 2021 statement
of decision in a discussion that is difficult to follow. We understand Father to
claim that in granting sole physical custody to Mother and allowing her to
13
move to San Diego with Minor, the court failed to consider all the
circumstances bearing on Minor’s best interest, in violation of section 3040,
In re Marriage of Burgess (1996) 13 Cal.4th 25 (Burgess), and In re Marriage
of LaMusga (2004) 32 Cal.4th 1072, (LaMusga).
In arguing that the court failed to consider all the circumstances,
Father contends that the court disregarded or underemphasized certain
evidence. This amounts to a request that we reweigh the evidence, which we
will not do. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581
(Schmidt).) The question before us is whether there is substantial evidence
to support the trial court’s order, not whether the evidence might support a
different result. (Id. at p. 582.) And to the extent Father would claim that
the court’s order is not supported by substantial evidence, his challenge must
fail because to the extent he discusses evidence at all, rather than simply
asserting his conclusions about what the evidence shows, he discusses only
the evidence that favors him. (Foreman & Clark, supra, 3 Cal.3d at p. 881.)
In particular, he says nothing about the evidence that Mother had shown she
was more likely than Father to encourage an ongoing relationship between
Minor and her other parent. This omission is important because it bears on
section 3040, an authority on which Father relies.
Section 3040 includes the following language: “In making an order
granting custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and continuing
contact with the noncustodial parent, consistent with Sections 3011 and
3020.”8 (§ 3040, subd. (a)(1).) Yet the discussion in Father’s brief concerning
8 The relevant provisions of section 3011 are summarized in
Montenegro, supra, 26 Cal.4th at page 255, as stated above. As relevant here,
section 3020 provides that “it is the public policy of this state to ensure that
children have frequent and continuing contact with both parents after the
14
the December 2021 statement of decision is silent as to this factor and the
evidence that bears on it. Section 3040 is of no help to Father here.
The cases that Father cites do not help him either. In Burgess our
Supreme Court held that “in an initial judicial custody determination based
on the ‘best interest’ of minor children, a parent seeking to relocate does not
bear a burden of establishing that the move is ‘necessary’ as a condition of
custody.” (Burgess, supra, 13 Cal.4th at p. 28-29.) The case before us
concerned just such a determination. In such circumstances, the family court
has “broad discretion to determine, in light of all the circumstances, what
custody arrangement serves the ‘best interest’ of minor children.” (Id. at p.
34.) The court “may consider the extent to which the minor children’s contact
with their noncustodial parent will be impaired by relocating,” but the court
need not adopt any particular formula for visitation and need not make a
custody determination that preserves the status quo. (Id. at p. 36.) In
Burgess, as here, the family court satisfied the policy of section 3020 for
frequent and continuing contact with both parents by ordering “ ‘liberal
visitation’ ” between the children and the non-relocating parent. (Id. at p.
37.) Father fails to show that the family court here did anything that
contravenes the precepts set forth in Burgess.
In his brief, Father calls our attention to a passage in LaMusga, where
our Supreme Court reaffirmed its “statement in Burgess that ‘the paramount
need for continuity and stability in custody arrangements—and the harm
that may result from disruption of established patterns of care and emotional
parents have . . . dissolved their marriage . . ., and to encourage parents to
share the rights and responsibilities of child rearing in order to effect this
policy, except when the contact would not be in the best interests of the
child.” (§ 3020, subd. (b).)
15
bonds with the primary caretaker weigh heavily in favor of maintaining
ongoing custody relationships.” (LaMusga, supra, 32 Cal.4th at p. 1093.) Yet
Father says nothing about the Supreme Court’s conclusion about the force of
that statement, which is simply that the family court must “consider[ ] this
interest in stability.” (Ibid.) Nor does he acknowledge a passage in the next
paragraph of LaMusga where the Supreme Court explained that in any given
case the weight to be accorded to the detriment relocation may cause to a
child’s relationship with a parent “must be left to the court’s sound
discretion.” (Ibid.) The family court here did consider Minor’s interest in
stability, as reflected in its finding that there was “demonstrated detriment
to [Minor] from the proposed relocation” because she would have less time
with Father. The court concluded, however, that the detriment was
outweighed by other considerations such that the relocation and change in
custody was in Minor’s best interest. Father has not shown that the family
court abused its discretion in reaching its conclusion.
2. Failure to “Rule Individually” on Objections to Statement
of Decision
Under a separate heading, Father contends that the trial court erred
when it failed to provide an individual ruling on each of the eight objections
that he raised to the proposed statement of decision. He fails to show error or
prejudice.
a. Additional Background
As directed by the family court on the last day of the November 2021
hearing, Mother’s counsel prepared a proposed statement of decision, which
was submitted to the court and served on Father on December 16, 2021. The
court adopted the proposed statement four days later. Notice of the entry of
the statement of decision was served on Father on January 10, 2022. Two
days later, the attorney who had represented Father earlier in the
16
proceeding, but had substituted out before the second day of the hearing,
substituted back in as Father’s counsel.
On January 25, 2022, Father filed an objection to the entry of the
statement of decision on the grounds that it was entered by the court before
the deadline established by rule 3.1590(f) for him to file objections, and also
submitted eight individual objections to aspects of the statement of decision.
Mother argued in response that the objections were substantively unfounded
and in any event were untimely, because they were not filed within 15 days
after the proposed statement of decision was served on Father as required by
rule 3.1590(g).
On February 14, 2022, the family court issued an order stating as
follows: “[w]ithout addressing the question of the timeliness of the objections
ultimately filed by [Father], the court has now read and considered the
objections . . . and hereby affirms the Statement of Decision that was
executed and filed by the court on December 20, 2021.”
b. Analysis
The February 14, 2022 order reflects that the family court concluded
that Father’s objections lacked merit. Father cites no authority suggesting
that the court was required to provide an “individual” ruling on each of his
objections. Nor does he provide any legal argument to support his contention
that the family court erred in failing to do so. (Allen, supra, 234 Cal.App.4th
at p. 52 [claims of error not supported by meaningful argument and authority
are forfeited].) Further, Father does not argue that the family court
erroneously rejected his objections—he does not even tell us what the
objections were, and instead simply refers us to the pages of the record that
contain his objections. To the extent Father seeks to incorporate into his
appellate brief the trial court filing in which he stated his objections, we
17
disregard the purported incorporations. (See Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20 [“[i]t is well settled that the
Court of Appeal does not permit incorporation by reference of documents filed
in the trial court”].) In addition, Father fails to show that he was prejudiced
by the court’s failure to provide “individual” rulings or by the court’s rejection
of his objections. (Century Surety, supra, 139 Cal.App.4th at p. 963.)
D. Challenge to Final Custody Determination
Father contends that the family court abused its discretion in issuing
its December 2022 custody and visitation order, which the court designated
as a permanent and final order. He claims the order “was arbitrary and
capricious.” He cites no authority to support his argument, but asserts that
the family court disregarded certain evidence that he presented at the April,
July, and October 2022 hearings, and that the family court’s statements at
the October 2022 hearing show that the “court penalized [him] for putting his
daughter first, and moving to San Diego to be near her and to have more time
with her.” Father’s contentions lack merit.
In claiming that the family court disregarded evidence that he
presented, Father again asks us to reweigh evidence, which we will not do.
(Schmidt, supra, 44 Cal.App.5th at p. 581.) To the extent Father claims that
the family court’s orders are not based on substantial evidence, his claim is
foreclosed by his presentation of only his own arguments and evidence
(Foreman & Clark, supra, 3 Cal.3d at p. 881) and his failure to provide a
record that is adequate to show error. Father has omitted from the record
material information that the trial court reviewed and considered—
specifically the declarations that he and Mother filed in the family court
pertaining to custody and visitation. (See Gonzalez v. Rebollo (2014) 226
18
Cal.App.4th 969, 977 [failure to provide adequate record prevents appellant
from prevailing on substantial evidence challenge].)
But in any event, nothing in the limited record that Father has
provided shows that the family court’s determination constitutes an abuse of
discretion. In particular, nothing in the court’s statements suggests that
Father was penalized in any way for moving to San Diego. Based on the
evidence before it, which included evidence that Father had not visited with
Minor for four months in early 2022 after he moved to San Diego and that
Father objected to taking Minor to her scheduled extracurricular activities
during his custodial time, the court concluded that Father was not
cooperating in coparenting, and that it was in Minor’s best interest to
maintain the custody determination that had been made in December 2021
and the visitation orders that had been made in February 2022.
E. Failure to Engage Impartial Child Custody Evaluator
Father contends that the trial court erred by failing to order an
independent custody evaluation at any time during the case. Father fails to
show error by the family court in this respect because he does not cite any
authority, nor provide any legal argument, to support the proposition that
the court was required to order such an evaluation, or that the court abused
its discretion by not ordering one. (See § 3111, subd. (a) [authorizing the
court to appoint a child custody evaluator in a contested proceeding involving
child custody or visitation rights]; Evid. Code, § 730 [authorizing the court on
its own motion or on a motion by a party to appoint an expert to testify on a
“matter as to which the expert evidence is or may be required”]; Albaum et
al., Cal. Child Custody Litigation and Practice (Cont.Ed.Bar Apr. 2024
Update) § 9.14, p. 9-11 [statutes give family court “broad discretion” to
appoint a custody evaluator].) Further, Father fails to show prejudice,
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because he has not shown that the outcome of the case would have been any
different if an independent evaluation had been ordered. (Century Surety,
supra, 139 Cal.App.4th at p. 963.)
DISPOSITION
The December 1, 2022 final custody and visitation order is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Desautels, J.
A166932, Roy v. Roy
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