Opinion
B224050
08-19-2011
ALBERT A., Plaintiff and Appellant, v. MILLIE T., Defendant and Respondent; A. A. et al., Respondents.
Albert A., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent Millie T.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GF001550)
APPEAL from an order of the Superior Court of Los Angeles County, Nori A. Walla, Judge. Affirmed.
Albert A., in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent Millie T.
Leslie Ellen Shear for Respondents A. A. et al.
Appellant Albert A. (father) appeals from the denial of his postjudgment custody and visitation modification request. We affirm.
PROCEDURAL HISTORY
On July 2, 2007, the trial court issued a memorandum of decision after trial on issues of custody and visitation of father and mother Millie TVs (mother) three minor children: A. A., S. A., and M. A. (the children). During that trial, father and mother were represented by counsel and the children were separately represented. Pursuant to the memorandum of decision and subsequent order after hearing, filed August 31, 2007, mother was granted sole legal and physical custody of the children and was allowed to move with them to Montana. Father was granted monitored visitation.
The present appeal arises out of an order to show cause (OSC) filed ex parte by father on October 8, 2008. In the OSC, father sought modification of custody and visitation based on an alleged change in circumstances. The hearing on the OSC took place over 13 days: December 10, 2008; January 13, 2009; March 2, 2009; April 1, 2009; May 4, 2009; June 18, 2009; July 14, 17, and 30, 2009; September 17, 2009; October 1 and 20, 2009; and November 3, 2009. Both parents represented themselves during the hearing, and the children (then ages 11, 10, and 9 years) were represented by counsel. Mother, father, and five other witnesses testified during the hearing.
On February 1, 2010, the court issued a 26-page memorandum of decision. In it, the court discussed the evidence presented during the hearing and concluded that it did "not find a substantial change in circumstances such that it would be in the best interests of the children to change custody from [mother] to [father]." It thus continued the previous orders in full force and effect, with the following modifications: (1) the order for web cam visits between father and the children was vacated; (2) father was granted telephonic visits with the children three times per week; and (3) mother was ordered to attend at least two Alcoholics Anonymous meetings per week.
On March 12, 2010, the court entered "Findings and Order After Hearing." It stated that the court's custody and visitation orders were "[a]s attached," and it attached the February 1, 2010 memorandum of decision.
On April 14, 2010, father filed a notice of appeal from the "order entered in the above-named Superior Court on 02/01/2010."
DISCUSSION
I. Appealability
The children, through their attorney, contend that father appealed from a nonappealable order. They urge that although a postjudgment custody modification order ordinarily is appealable, the February 1, 2010 memorandum of decision from which father purported to appeal was not appealable because it expressly directed preparation of an order "incorporating all of the findings made by this court in this Memorandum." Further, they urge that we should not exercise our discretion to "save" father's appeal by construing it as an appeal from the March 12 order.
Assuming without deciding that the February 1 memorandum of decision is not an appealable order, we exercise our discretion to construe the notice of appeal as from the March "Findings and Order After Hearing." (Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 391, fn. 1 [construing appeal from "Order After Hearing" as from the subsequently rendered final judgment]; Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288 [construing appeal from order granting summary judgment as appeal from the judgment].) "„"[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." [Citations.]' (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1249.)" (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1194, fn. 4.) Clearly, father's appeal is substantively from the trial court's order denying his request to modify the custody and visitation orders. The children are neither prejudiced nor misled by our liberal construction of the notice of appeal to embrace the March 12 order.
II. Father's Claims of Abuse of Discretion Are Without Merit
Father contends that the trial court abused its discretion by (1) failing to consider all documents and transcripts regarding the alleged influence of a member of the Monrovia Police Department on minors' counsel; (2) awarding mother custody notwithstanding testimony that she allowed an ex-convict and mentally ill person to babysit the children; (3) failing to consider police reports and other evidence that the children were advised by their mother to use a gun and were nearly killed when an intoxicated relative drove a truck in which the children were passengers into a river; (4) disregarding evidence that mother abuses alcohol and was cited in 2008 for driving under the influence; (5) failing to consider evidence of mother's violations of court orders; (6) failing to evaluate a potential conflict of interest; and (7) failing to find that changed circumstances warranted a modification of the custody and visitation order. Father also contends that the trial court should not have permitted mother to move with the children to Montana and that he should be awarded custody because he is the more stable parent.
Father has failed to procure a sufficient record to permit us to review his contentions. "The judgment and orders of the trial court are presumed on appeal to be correct, '". . . and all intendments and presumptions are indulged . . ."' in their favor. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718, quoting In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Appellants have the burden of overcoming this presumption by presenting a record that demonstrates error. Where the appellant fails to provide a reporter's transcript, 'it is presumed that the unreported trial testimony would demonstrate the absence of error.' (Estate of Fain (1999) 75 Cal.App.4th 973, 992; Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639, 646-647.) 'Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].' (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)" (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)
Here, the trial court held a hearing on father's OSC over 13 court days. Father provided this court with the reporter's transcript of only one of those 13 days. Because father failed to provide this court with an adequate appellate record, we cannot review the merits of his claims and are required by the authorities cited above to assume that the record would demonstrate the absence of error.
Father also provided the reporter's transcripts of proceedings on October 1, 5, and 16, 2007, and November 6, 2007, but these do not embrace testimony rendered in connection with the order now on appeal.
Father also did not provide a complete record of earlier custody and visitation proceedings. We therefore cannot determine whether father met his burden of proof to show changed circumstances. (See, e.g., In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303 ["A modification proceeding by definition presumes a change in an already-determined status quo. As is almost the case throughout the law, the moving party in a modification proceeding bears the burden of proof of showing changed circumstances that justify a new court order."].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
WILLHITE, Acting P.J.
MANELLA, J.