Collins v. Imbriani CA2/3

Filed 6/14/23 Collins v. Imbriani CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LLOYD J. COLLINS, B308038
Appellant, Los Angeles County
Super. Ct. No.
v. 17STPT00636
KARA L. IMBRIANI,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael J. Convey, Judge. Affirmed.
Lloyd J. Collins, in pro. per; The Appellate Law Firm,
Aaron Myers, and Mark Kuntze for Appellant.
Quinn & Dworakowski and David Dworakowski for
Respondent.
_______________________________________
INTRODUCTION
Lloyd J. Collins (father) filed a petition to establish
parentage of the two children born during his relationship with
Kara L. Imbriani (mother). The parties entered into a stipulated
judgment concerning the children. Less than a year later,
however, both mother and father sought to modify aspects of the
stipulated judgment. The court conducted a four-day trial and
entered a postjudgment order which father challenges on appeal.
We conclude father, as the appellant, fails to carry his burden to
establish prejudicial error. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
These proceedings began in August 2017, when father filed
a petition to establish parentage of the children. The court
entered a stipulated judgment on the petition in January 2018.
The judgment provided that father and mother shared joint legal
and physical custody of the children, set a custody-sharing plan,
and resolved other issues relating to the children. Both parties
waived child support.
In October 2018, mother filed a request for order seeking to
set aside the judgment, change the child custody arrangement,
provide for child support, and allow her to move out of state with
the children. Mother alleged that father forced her to sign the
stipulated judgment under duress and that she had been
unaware father filed the stipulated judgment until recently.
Further, mother represented that until early August 2018, she
had sole physical custody of the children and father visited with
them only occasionally, the judgment’s provision for joint custody
notwithstanding. In his responsive declaration, father requested
sole legal and physical custody of the children and child support
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from mother. He also opposed mother’s request for a move-away
order.
In late February 2019, father filed a request for a domestic
violence restraining order against mother to protect both himself
and the children. Father alleged that mother had been using
tracking devices, including one in his car, to monitor his location.
He expressed concern for his safety. He also alleged that mother
had engaged in acts of domestic violence against him in the past,
was unstable and suicidal, and had threatened to take the
children out of state without his consent. In addition to the
request for a restraining order, father sought to modify the
custody arrangement set forth in the stipulated judgment. After
several continuances, the court set a hearing on both the request
for order filed by mother and the request for a domestic violence
restraining order filed by father, to be held in September 2019.
The court later set the matter for trial.
The court conducted a trial over four days in
February 2020. The court issued a permanent three-year
restraining order protecting father from mother. The order
barred mother from contacting or coming within 100 feet of
father and required her to disclose all tracking devices so that
father could remove them. With respect to mother’s request for
order, the court found that each parent had committed acts of
domestic violence against the other, triggering Family Code1
section 3044.2 Father had coerced mother into signing a notarized
1 All undesignated statutory references are to the Family Code.
2Section 3044 contains a rebuttable presumption that parental
custody is detrimental to a child’s best interest if that parent has
committed an act of domestic violence against the other parent or a
child. (§ 3044, subd. (a).) The presumption may be rebutted by a
3
declaration and the stipulated judgment, had entered mother’s
apartment and removed almost all of the furniture, had visited
mother’s place of work after she obtained an emergency
restraining order prohibiting him from doing so, had spirited the
children from the family residence to San Diego in the custody of
an unrelated adult without mother’s knowledge or consent, had
changed the locks on the parties’ joint residence, and had
continually used money in a coercive and controlling manner. For
her part, mother had used a tracking device in father’s car and
additional computer software to track father’s movements from
July 2018 to April 2019.3 In addition, in August 2017, mother had
thrown a cellphone at father. The phone hit father on the right
side of his face and left a knot near his right eyebrow. The court,
however, rejected father’s allegation that mother planned to
abduct the children and remove them from California.
After evaluating the relevant statutory factors, the court
found that both parents successfully rebutted the section 3044
presumption. The court also noted that both parents had
“promoted the other parent’s role as a co-parent in an exemplary
fashion” and had “promoted the decision-making of the other
parent.” The court further found that “[b]oth parents have shown
convincingly beyond all doubt that it is in the children’s best
interest that they continue to share joint legal and joint physical
custody” of the children.
preponderance of the evidence and the statute lists relevant factors the
court should consider. (Id., subds. (a), (b).)
3These factual findings also formed the basis for the court’s issuance of
the permanent restraining order.
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As to the remaining issues, the court denied mother’s
request to set aside the stipulated judgment but found that a
material change in circumstances justified certain modifications
of that judgment. The court continued the existing joint custody
arrangement but slightly modified the weekly and weekend
custody schedule to equalize custody time. In addition, the court
found that father owed mother $20 per month in child support
according to the applicable guidelines. But the court departed
from the guidelines and awarded mother no child support
because father was obligated, under the terms of the stipulated
judgment, to pay for the children’s private school tuition and
extracurricular activities. Finally, and as pertinent here, the
court stated that mother could claim the children as dependents
on her tax return because she provided them with health
insurance.
The court filed its postjudgment order after hearing on
July 22, 2020. Father timely appeals.
DISCUSSION
Father challenges the court’s postjudgment order on
multiple grounds. As we explain, however, father fails to carry
his burden to establish prejudicial error as to any of the asserted
grounds.
1. The Appellant’s Burden on Appeal
The most fundamental rule of appellate review is that the
judgment or order challenged on appeal is presumed to be correct,
and “it is the appellant’s burden to affirmatively demonstrate
error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“ ‘All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
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affirmatively shown.’ ” (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.) When an opening brief fails to make appropriate
references to the record in connection with points urged on
appeal, the appellate court may treat those points as waived or
forfeited. (See, e.g., Lonely Maiden Productions, LLC v.
GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368,
384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771,
779–801 (Dietz) [several contentions on appeal “forfeited” because
appellant failed to provide a single record citation demonstrating
it raised those contentions at trial].) Further, “an appellant must
present argument and authorities on each point to which error is
asserted or else the issue is waived.” (Kurinij v. Hanna & Morton
(1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or
that lack adequate legal discussion will be deemed forfeited.
(Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)
An appellant has the burden not only to show error but
prejudice from that error. (Cal. Const., art. VI, § 13.) If an
appellant fails to satisfy that burden, the argument will be
rejected on appeal. (Century Surety Co. v. Polisso (2006) 139
Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will
not reverse the judgment in the absence of an affirmative
showing there was a miscarriage of justice. [Citations.] Nor will
this court act as counsel for appellant by furnishing a legal
argument as to how the trial court’s ruling was prejudicial.
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[Citations.]” (Ibid.) In short, an appellant must demonstrate
prejudicial error based on sufficient legal argument supported by
citation to an adequate record. (Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)
2. Standard of Review
“Trial courts have great discretion in fashioning child
custody and visitation orders. We therefore review those orders
for an abuse of discretion. (In re Marriage of Fajota (2014) 230
Cal.App.4th 1487, 1497 (Fajota).) ‘A court abuses its discretion in
making a child custody order if there is no reasonable basis on
which it could conclude that its decision advanced the best
interests of the child. [Citation.]’ ” (S.Y. v. Superior Court (2018)
29 Cal.App.5th 324, 333 (S.Y.).) “ ‘An abuse of discretion occurs
when the trial court exceeds the bounds of reason; even if we
disagree with the trial court’s determination, we uphold the
determination so long as it is reasonable. [Citation.] We do not
reverse unless a trial court’s determination is arbitrary,
capricious, or patently absurd.’ [Citation.] The trial court’s
factual findings are reviewed for substantial evidence, in the
light most favorable to the judgment. [Citations.] ‘ “ ‘The trial
judge, having heard the evidence, observed the witnesses, their
demeanor, attitude, candor or lack of candor, is best qualified to
pass upon and determine the factual issues presented by their
testimony.’ ” [Citation.]’ [Citation.]” (Id. at pp. 333–334.)
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3. Father fails to carry his burden to establish prejudicial
error.
Father attacks the court’s postjudgment order on multiple
grounds.4 We address his arguments in turn and conclude he has
failed to demonstrate any prejudicial error.
3.1. Section 3044 Presumption
Section 3044, subdivision (a) provides, as pertinent here:
“ ‘Upon a finding by the court that a party seeking custody of a
child has perpetrated domestic violence against the other party
seeking custody … within the previous five years, there is a
rebuttable presumption that an award of sole or joint physical or
legal custody of a child to a person who has perpetrated domestic
violence is detrimental to the best interest of the child, pursuant
to Section 3011. This presumption may only be rebutted by a
preponderance of the evidence.’ ” (Fajota, supra, 230 Cal.App.4th
at p. 1497.) The presumption shifts to the perpetrator the burden
of persuasion that an award of custody to him or her would not be
detrimental to the best interests of the child.
The determination of custody is not to reward or punish the
parents for their past conduct, but to determine what is currently
in the best interests of the child. (In re Marriage of LaMusga
(2004) 32 Cal.4th 1072, 1094; S.Y., supra, 29 Cal.App.5th at
p. 336 [noting the paramount factor for custody of the child is the
4 It is more accurate to say that father attacks certain comments made
by the trial court from the bench, as father cites to the reporter’s
transcript rather than the postjudgment order in his legal argument
section. We focus our analysis on the postjudgment order and
disregard father’s arguments relating to stray comments not
incorporated into that order.
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child’s health, safety, and welfare]; § 3020, subd. (a) [“[I]t is the
public policy of this state to ensure that the health, safety, and
welfare of children shall be the court’s primary concern in
determining the best interests of children when making any
orders regarding the physical or legal custody or visitation of
children.”].)
3.1.1. Application of the Section 3044 Presumption to
Father
Father’s primary argument is that the court erred in
finding he committed acts of domestic violence against mother,
thereby triggering the presumption contained in section 3044.
Subdivision (c) of section 3044 states that a person has
“ ‘perpetrated domestic violence’ ” within the meaning of
subdivision (a) when the person is found to have “intentionally or
recklessly caused or attempted to cause bodily injury, or sexual
assault, or to have placed a person in reasonable apprehension of
imminent serious bodily injury to that person or to another, or to
have engaged in behavior involving, but not limited to,
threatening, striking, harassing, destroying personal property, or
disturbing the peace of another, for which a court may issue an
ex parte order pursuant to Section 6320 to protect the other party
seeking custody of the child or to protect the child and the child’s
siblings.”
Father contends, for example, that the court erred in
crediting mother’s trial testimony in which she said that father
had forced her to sign a notarized declaration and the stipulated
judgment under duress. In addition, father offers various
justifications for his actions and contends the court should have
believed his version of events and concluded he had not
committed any acts of domestic violence. He also argues that the
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court erred in excluding certain evidence (several text messages)
which tended to corroborate his version of the events at issue.
We need not consider the merits of father’s arguments,
however. Father cannot establish that the court’s finding that he
committed acts of domestic violence was prejudicial which, as we
have said, is a necessary component of a successful argument on
appeal. (Cal. Const., art. VI, § 13 [“No judgment shall be set
aside … in any cause … unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice”].) Although he does not discuss prejudice explicitly, father
claims “it is apparent from the trial court’s decision that this
error dramatically influenced its ultimate rulings on custody,
visitation, and child support.” He does not elaborate, which is
reason enough to reject his argument. (Keyes v. Bowen, supra,
189 Cal.App.4th at pp. 655–656 [noting that matters not properly
raised or that lack adequate legal discussion will be deemed
forfeited].)
In any event, the flaws in father’s reasoning are evident in
the following passage from his opening brief: “Here, the court’s
improper application of the presumption in favor of [mother]
under § 3044 is pervasive throughout its reasoning and final
judgment. The presumption was essentially the starting point of
the court’s analysis and directly resulted in a judgment adverse
to [father.]” First, the section 3044 presumption is not applied in
favor of one parent and against the other. The focus of the
presumption is, as explained, ante, the child’s safety and best
interest. Second, although father correctly notes that the
section 3044 presumption played a part in the court’s analysis, he
is incorrect that the presumption “directly resulted” in a
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judgment adverse to him. The section 3044 presumption fell by
the wayside as soon as the court found that father rebutted it.
And the fact that the court left the existing joint custody
arrangement in place evidences the court’s conclusion that father
adequately rebutted the section 3044 presumption.
In sum, the application of the section 3044 presumption in
the first instance, even if erroneous, did not impact the court’s
custody decision because the court found the presumption to be
rebutted. Therefore, any error by the court was not prejudicial.
3.1.2. Application of the Section 3044 Presumption to
Mother
Father also contends the court abused its discretion in
finding that mother rebutted the section 3044 presumption.
Section 3044, subdivision (b) provides: “To overcome the
presumption set forth in subdivision (a), the court shall find that
paragraph (1) is satisfied and shall find that the factors in
paragraph (2), on balance, support the legislative findings in
Section 3020. [¶] (1) The perpetrator of domestic violence has
demonstrated that giving sole or joint physical or legal custody of
a child to the perpetrator is in the best interest of the child
pursuant to Sections 3011 and 3020. In determining the best
interest of the child, the preference for frequent and continuing
contact with both parents, as set forth in subdivision (b) of
Section 3020, or with the noncustodial parent, as set forth in
paragraph (1) of subdivision (a) of Section 3040, may not be used
to rebut the presumption, in whole or in part. [¶] (2) Additional
factors: [¶] (A) The perpetrator has successfully completed a
batterer’s treatment program that meets the criteria outlined in
subdivision (c) of Section 1203.097 of the Penal Code. [¶] (B) The
perpetrator has successfully completed a program of alcohol or
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drug abuse counseling, if the court determines that counseling is
appropriate. [¶] (C) The perpetrator has successfully completed a
parenting class, if the court determines the class to be
appropriate. [¶] (D) The perpetrator is on probation or parole,
and has or has not complied with the terms and conditions of
probation or parole. [¶] (E) The perpetrator is restrained by a
protective order or restraining order, and has or has not complied
with its terms and conditions. [¶] (F) The perpetrator of domestic
violence has committed further acts of domestic violence.” As
noted, ante, the court considered these factors and determined
that mother successfully rebutted the presumption.
Father complains that the court failed to give “proper
weight” to mother’s undisputed violations of the domestic
violence restraining order (§ 3044, subd. (b)(2)(E)) and the
commission of additional acts of domestic violence (id.,
subd. (b)(2)(F)). Specifically, father urges that “[i]t was an abuse
of discretion for the court to give [mother] a pass on what the
court found to be a violation of the restraining order.” Giving this
statement a generous reading, we presume father intended to
argue that a court may not find the section 3044 presumption has
been rebutted if the court has also found that the parent has
committed additional acts of domestic violence sufficient to
support the issuance of a domestic violence restraining order.
Father cites no authority for this proposition and has therefore
forfeited the argument. (Kurinij v. Hanna & Morton, supra, 55
Cal.App.4th at p. 867 [“[A]n appellant must present argument
and authorities on each point to which error is asserted or else
the issue is waived.”].) Moreover, father’s assertion is facially
inconsistent with the statute, which provides that such conduct is
but one factor to be evaluated along with the other factors to
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determine what is in the child’s best interest. In any case, father
is incorrect. (See Keith R. v. Superior Court (2009) 174
Cal.App.4th 1047, 1055 [noting that after “the section 3044
presumption has been rebutted, there is no statutory bar against
an award of joint or sole custody to a parent who was the subject
of the [domestic violence protective] order”].)
Father also claims the court erred in finding that mother is
not on probation, a factor listed in section 3044,
subdivision (b)(2)(D). No evidence supports his contention, as the
testimony relied upon by father reveals:
“Q [Father’s counsel]: Isn’t it correct that there’s still an
outstanding warrant for you in the state of Arizona?
“A [Mother]: I am paying them back.
“Q: For what?
“A: I had a DUI in 2007.
“Q: And you did not show up for a court appearance, and
there is a bench warrant for you, correct?
“A: No.
“Q: There was a bench warrant for you; correct?
“[Mother’s counsel]: Objection.·Relevance.
“[The Court]: Sustained.”
In sum, none of father’s arguments is supported by the law
or the record.
3.2. Custody
As noted, ante, the court left the joint physical and legal
custody arrangement from the stipulated judgment in place but
slightly modified the custody schedule to give the parents equal
custody time each week. Father urges that the court’s order is not
supported by substantial evidence and argues the court abused
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its discretion by reducing his parenting time by 30 hours per
month in order to equalize the parents’ custodial time.
As we noted, ante, a trial court has considerable discretion
to fashion a custody order that is in the best interest of the child
and stands in a unique position to do so where, as here, the court
hears the testimony of the parents. We will not disturb the
court’s order unless, after full consideration of all the evidence in
the record, we conclude that the order is arbitrary, capricious, or
absurd. But we will not develop father’s arguments for him, nor
will we comb the record to search for evidence that might support
those arguments. Because father fails to discuss the evidence
from the trial and further fails to present any coherent legal
argument regarding the court’s custody order, we conclude that
he has forfeited his challenge to the court’s custody order. (See
Dietz, supra, 177 Cal.App.4th at p. 799 [noting that if an
appellant fails to support a claim with reasoned argument and
citations to authority we may treat that claim as waived].) “We
may and do ‘disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt.’ (City of Santa Maria v. Adam [(2012) 211
Cal.App.4th 266,] 287.)” (Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277.)
3.3. Financial Issues
Finally, as noted, the court awarded no child support to
either party. Father claims, however, that the award does not
accurately reflect the financial situation of the parties. He cites
no evidence in the record to support his assertion and provides no
legal analysis on the issue of child support. Similarly, father
contends the court erred in awarding “head of household” tax
14
status to mother. But again, father provides no analysis and cites
no legal authority to support his argument. We decline to
consider these issues. (See Dietz, supra, 177 Cal.App.4th at
pp. 779–801 [several contentions on appeal “forfeited” because
appellant failed to provide a single record citation demonstrating
it raised those contentions at trial]; Landry v. Berryessa Union
School Dist. (1995) 39 Cal.App.4th 691, 699–700 [issue not
supported by pertinent or cognizable legal argument may be
deemed abandoned].)
DISPOSITION
The court’s order after hearing is affirmed. Respondent
Kara L. Imbriani shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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