Opinion
E065346
10-20-2017
V.S., Plaintiff and Appellant, v. A.C., Defendant and Respondent.
V.S., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FAMSS1407013) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge. Affirmed. V.S., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
In his briefing in this family law matter, plaintiff and appellant V.S. (father) describes himself as "an indigent and incarcerated pro per litigant." He appeals from a minute order, dated November 18, 2015, awarding sole physical and legal custody of his son A.S. (child) (born August 2004) to the child's mother, defendant and respondent A.C. (mother), and providing that father is to have "visitation/contact with the minor child at the minor child's discretion." Father contends that the trial court erred in a number of respects, including: (1) failing to appoint counsel to represent him; (2) denying his motion pursuant to Family Code section 7605, to require mother to pay for an attorney for father; (3) denying his request for a continuance; (4) proceeding to consider the matter in his absence; (5) finding him to be a natural father, but not a presumed father, of the child; (6) depriving him joint legal custody without making a finding of detriment; and (7) delegating discretion regarding visitation to the child.
Further undesignated statutory references are to the Family Code. --------
Having reviewed the incomplete record provided by father, we conclude that he has failed to demonstrate any error. We therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 4, 2014, father initiated this matter by filing a pro se "Petition to Establish Parental Relationship" regarding the child. The petition requests the court to order that mother and father share joint legal custody over the child, with mother to have sole physical custody, and that father have "reasonable visitation." Father also requested that the court appoint an attorney to represent him. Subsequently, father requested an order pursuant to section 7605 requiring mother to pay $5,000 so that he could retain an attorney.
Father asserts in the petition that he and mother "were in a romantic and sexual relationship when together they intentionally conceived the child." Nevertheless, father was not identified as the father on the child's birth certificate.
According to the petition, father, mother, and child lived together as a family in the period immediately after the child's birth, together with the maternal grandmother. Father asserts that he "has always and continues to hold out the child as his natural child." He also asserts he is a presumed parent of the child, because he "receive[d] the child into his . . . home and openly holds out the child as his . . . natural child." (§ 7611, subd. (d).)
In 2005, however, father was "convicted by a jury trial"—our record includes no information regarding the conviction offenses—and he has been incarcerated ever since. Nevertheless, father has "had some communication with his child over the years by telephone and by mail," and he "has also sent his child gifts when he was able to do so." According to father, the child "understands and recognizes [father] is his father," and also "has a developed relationship with [father's] family, specifically his mother and sister.
The petition asserts that in the "last couple years" mother "has distanced herself and the child from [father] and his family." Father therefore brought his petition "in the best interest of the child and in the interest of preserving and protecting the developed parent-child relationship."
According to the register of actions, mother filed a response to father's petition on January 27, 2015. Her response was not, however, included among the documents father designated to be included in the clerk's transcript.
On August 20, 2015, the trial court held a hearing, at which father appeared telephonically, and mother was not present, but was represented by counsel. No record of the oral proceedings at this hearing is included in the record on appeal. The register of actions indicates that a family court services report was filed; however, no copy of this document appears in our record. The register notes that father had "failed to appear at Family Court Services." The trial court found that father is the natural father of the child and, pending a further hearing, temporarily ordered sole physical and legal custody of the child to mother. It reserved ruling on the issue of visitation.
On September 23, 2015, father filed a document entitled "Pleadings on Oral Argument in Support of Request for Joint Legal Custody," as well as a separate document entitled "Pleadings on Oral Argument in Support of Request for Visitation and Proposed Visitation Plan."
On September 29, 2015, the trial court held a hearing, at which father appeared telephonically, and mother was present, represented by counsel. No record of the oral proceedings is included in our record. A family court services report was filed; no copy of this document appears in our record. The register of actions indicates that the trial court ordered the matter re-referred to Family Court Services, with father to appear telephonically. The court indicated that it would "research the issue of appointing counsel for [father]." The hearing was continued to November 18, 2015.
On November 18, 2015, mother was present for the hearing, represented by counsel, but father was not present, even telephonically. No record of the oral proceedings is included in our record. A written report from a child custody recommending counselor, and a family court services report were filed; neither report appears in our record. The trial court found that it had jurisdiction to make orders regarding child custody, and that the parties had been given notice and opportunity to be heard. It ordered mother to have sole physical and legal custody of the child, with father "to have visitation/contact with the minor child at the minor child's discretion."
The register of actions indicates that on November 20, 2015, the trial court returned a "request for continuance/fcs report/pos" to father without filing it, informing him that "the hearing you wanted to continue has already been heard," and "you cannot serve your own documents."
II. DISCUSSION
In large part, father's claims of error fail because he has provided an inadequate record, triggering strong presumptions in favor of the judgment. To the extent the record is sufficient to consider the issues he raises, his arguments fail on the merits. We therefore affirm the judgment.
"The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286 (City of Santa Maria).)
"The appellant has the burden of furnishing an appellate court with a record sufficient to consider the issues on appeal. [Citation.] An appellate court's review is limited to consideration of the matters contained in the appellate record." (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) In the absence of an adequate record to support the appellant's claim of error, "we presume the judgment is correct." (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)
California Rules of Court, rule 8.120, provides that "[i]f an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings . . . ." (Cal. Rules of Court, rule 8.120(b).) Most commonly, a reporter's transcript serves as such a record, but the rule also provides for other options, such as an agreed statement under rule 8.134, or a settled statement under rule 8.137. (Cal. Rules of Court, rule 8.120(b).)
The record father has provided in this appeal is incomplete. The clerk's transcript prepared in accordance with father's notice designating the record on appeal includes at least some of the documents he submitted in the trial court, but it excludes any opposition papers from mother, though there is a docket notation indicating that mother did file such papers. The record on appeal also lacks various other documents filed with the court, including family services reports, and the report of a child custody recommending counselor. No record of any oral proceedings in the trial court has been provided. To the extent the record we have does not reveal adequate support for the judgment, we generally must presume such support would be found in the missing documents or oral proceedings. (See City of Santa Maria, supra, 211 Cal.App.4th at p. 286; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 (Buckhart) ["'"[If] 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."'"].)
Furthermore, many of father's arguments are based on authority from the dependency context, which is not applicable in this custody and visitation matter, which is in the Family Court. For example, unlike parents in dependency proceedings, where potential termination of parental rights may be at issue, parents have no right to appointed counsel in domestic relations custody/visitation proceedings under the Family Code, regardless of their financial circumstances. (In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1087.) Similarly, father's reliance on authority regarding whether the juvenile court has an appropriate basis to exercise dependency jurisdiction over a child is misplaced in the context of the present case.
A combination of the applicable presumptions in favor of the judgment, father's reliance on inapplicable legal authority, and the adverse facts affirmatively demonstrated even by the incomplete record, is fatal to each of father's claims of error. We address each of them briefly below.
First, as noted, father had no right to appointed counsel in this proceeding, which is a custody and visitation matter under the Family Code, not a dependency proceeding. (In re Marriage of Laursen & Fogarty, supra, 197 Cal.App.3d at p. 1087.) The trial court was not required to provide appointed counsel for father, so father's claim of error based on the failure to do so is without merit.
Second, father has demonstrated no abuse of discretion in the trial court's refusal to order mother to pay for father to retain an attorney, pursuant to section 7605. Father contends that the trial court "failed to afford" his request any "meaningful consideration," by "failing even to make any income and needs assessment [and] instead stating it would rather the county cover the payment." Nothing in the record, however, supports this assertion, and the applicable presumptions, discussed above, require the opposite conclusion. Moreover, although mother was represented by counsel during some portions of these proceedings, there is nothing in the record demonstrating that she could reasonably afford to pay any money, let alone thousands of dollars, to assist father in obtaining representation.
Third, father has not demonstrated any error with respect to the return of his request for continuance and family court services report. Although he contends that he mailed the document prior to the hearing, there is nothing in the present record that demonstrates that to be true. Additionally, father has not contested on appeal the trial court's notation that service of the request was made improperly. Moreover, "[t]rial courts generally have broad discretion in deciding whether to grant a request for a continuance." (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) There are a myriad of reasons that could have justified the trial court's refusal to continue the hearing, even assuming father had timely filed and served a request for a continuance. Given the state of the record, we must presume that adequate support for the trial court's decision would be found in the missing portion of the record, to the extent it cannot be gleaned from the present, incomplete record. (See City of Santa Maria, supra, 211 Cal.App.4th at p. 286; Buckhart, supra, 197 Cal.App.3d at p. 1036.)
Fourth, father was not deprived of a meaningful opportunity to be heard, even though he was not present for the November 18, 2015, hearing. In California, an inmate has a statutory right to initiate a civil action. (Pen. Code, § 2601, subd. (d).) He does not, however, ordinarily have the right to be present in court. (Payne v. Superior Court (1976) 17 Cal.3d 908, 920.) Courts should devise alternative means to ensure prisoners "'meaningful'" access to the courts. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642 (Hoversten); see Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792 (Wantuch).)
In both Hoversten and Wantuch, the inmate lost the case because he did not appear in court. (Hoversten, supra, 74 Cal.App.4th at p. 639; Wantuch, supra, 32 Cal.App.4th at p. 791.) That is not the situation in the present case. Father had the opportunity to present his arguments and evidence in written form, and he took that opportunity, at some length. Nothing in the record supports the notion that the trial court's rulings were based in any way on father's failure to appear at the November 18, 2015, hearing; after all, father was present telephonically when it made its temporary custody order on August 20, 2015, which similarly awarded sole legal and physical custody to mother.
Fifth, father complains that the trial court found him to be the natural father of the child, but did not grant him presumed father status. We note that the present record does not in fact reflect that the trial court denied father the status of presumed father. Rather, the trial court's minutes reflect that father was found to be the natural father of the child, but lack indication of any ruling on the issue of presumed fatherhood. In any case, assuming the trial court in fact rejected father's claim of presumed fatherhood, the presumptions discussed above are fatal to father's claim of error. Regardless of the information he presented in his moving papers, we must presume anything necessary to support the trial court's ruling that could have been presented was in fact presented, either orally during the hearing or in mother's papers. (See City of Santa Maria, supra, 211 Cal.App.4th at p. 286; Buckhart, supra, 197 Cal.App.3d at p. 1036.)
Sixth, father fails to demonstrate any abuse of discretion in the trial court's decision to award mother sole physical and legal custody of the child. The "overarching" consideration in adjudicating contested custody matters is the child's "best interest." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; §§ 3011, 3020, 3040, 3041.) The trial court is vested with the "widest discretion" to choose a parenting plan that is in the child's best interest, and the trial court's decision will be upheld on appeal so long as it reasonably can be concluded that the order advances the child's best interest, consistent with the policy directives articulated in sections 3011 and 3020. (§ 3040, subd. (c); In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.)
A parent is not necessarily precluded from exercising legal custody over a child while incarcerated. (E.g., In re S.D. (2002) 99 Cal.App.4th 1068, 1077.) Nevertheless, it was reasonable for the trial court to find it to be in the best interest of the child to award sole legal and physical custody to his mother, who had cared for him on a day-to-day basis for more than a decade, rather than require her to share legal custody with father, who had been absent due to incarceration since the child was an infant, and who had only limited contact with the child since then. In these circumstances, we will not disturb the trial court's exercise of discretion.
Finally, we reject father's argument that the trial court's order that he "have visitation/contact with the minor child at the minor child's discretion" amounts to an inappropriate delegation of the trial court's judicial power. The authority on which father relies, arising in the context of ongoing dependency proceedings where visitation must be ordered unless it is found to be detrimental to the child, is inapposite. (See Welf. & Instit. Code, § 366.21, subd. (h).) In the family law context, trial courts generally have broad discretion in defining a parent's reasonable visitation rights and establishing a visitation schedule; subject to a few statutory limitations, the sole guideline is the child's best interest. (§ 3100, subd. (a); In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1028.) It was reasonable for the trial court to find, under the circumstances of this case, that forced contact with father would not be beneficial. In essence, the trial court ordered visitation "under the one circumstance that would offer the best possibility that such visitation would be beneficial—when the child desired such contact." (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238-1239.) We find no error in the trial court's order regarding visitation.
III. DISPOSITION
The judgment is affirmed. In the interest of justice, the parties shall each bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.