Fanger v. Lopez

Dondero, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. AF12644833)

Appellant Gary Fanger, proceeding in propria persona, appeals from orders entered following an evidentiary hearing on visitation, child custody, and child support matters relating to two of his children. He raises various arguments, many of which concern the trial court's decision to allow the children the right to abstain from participating in their parents' religious activities. Because the older child will have turned 18 years of age by the time this case is remanded to the trial court, this order, as a practical matter, is moot as to her. As to the younger child, we reverse in part, and direct the lower court to strike the provision that prohibits the parties from forcing the child "to participate in any activities, including religious activities." As to appellant's remaining attacks on the lower court's rulings, he has failed to provide us with an adequate record to conduct a meaningful appellate review. Accordingly, we must affirm the balance of the order.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The parties have two minor children, a daughter born in May 2000 and a son born in April 2006.

On March 29, 2016, respondent Emma Lopez, the children's mother, filed a motion/request pertaining to child custody and visitation, as well as to modification of child support.

On March 13, 2017, the trial court filed its order after hearing. The court awarded both parties joint legal and physical custody. A timeshare was set forth for the children. As to the daughter, however, the court provided that she could elect to reside solely with respondent. The court gave her discretion to decide when to spend time with appellant, and specified that she shall not attend religious seminary. The order provides that the parents "shall not force the minors to participate in any activities including religious activities." As to base child support, appellant was ordered to pay a total of $557 per month. He was ordered to pay $1,806 per month from March 29, 2016, through December 31, 2016, pursuant to a "Smith/Ostler Table."

The court was referring to the type of order approved in In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33 (Ostler & Smith), in which the husband, who paid child and spousal support, earned bonus income in addition to a base salary. Noting that " '[n]o future bonus is guaranteed' " (id. at p. 41) and that " '[i]t would therefore not be appropriate to base a support order on Husband's bonus income and then require him to file motions to modify at such times as the bonus is reduced' " (ibid.), the trial court in Smith & Ostler decided " '[i]t would be more fair to all parties to base the support order on Husband's income from salary and dividends, and to allocate a portion of the future bonus income to the children and to Wife by way of a percentage interest so that future litigation will not be necessary as the bonus income changes.' " (Id. at pp. 41-42.)

DISCUSSION

We begin by addressing the record on appeal, because the deficiencies of this record necessarily limit the scope of our review.

It is fundamental that "in the absence of evidence to the contrary, ' "[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." ' " (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1013, italics omitted.)

In pursuing an appeal, " '[i]t is the duty of an appellant to provide an adequate record to the court establishing error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.' " (Hotels Nevada v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 (Hotels Nevada).) A proper record should contain the following: (1) a record of the oral proceedings in the trial court; (2) a record of the documents filed or lodged in the trial court; and (3) the original exhibits received in evidence or rejected by the trial court. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 4:11, p. 4-5.) In the present case, the record contains three reporter's transcripts. However, it does not include any written documents. The only document presented to us is a copy of the order from which appellant appeals.

Under the California Rules of Court, appellant was permitted to use any of five methods to provide us with an appropriate record of the documents filed in the superior court, the most common of which is the clerk's transcript. (Cal. Rules of Court, rules 8.120 [clerk's transcript], 8.124 [appendix], 8.128 [superior court file], 8.134 [agreed statement], & 8.137 [settled statement].) Appellant filed a notice designating the record on appeal on May 22, 2017, and elected to proceed with an appendix and reporter's transcripts. For reasons that are unclear to us, an appendix was never filed with this court. He also did not submit any equivalent documentation.

Appellant has thus failed to present us with the relevant documents from the court below that are necessary to adequately address his challenge to the order in this appeal, including the moving, opposition, and reply papers relative to respondent's custody and support modification requests. We have no information as to the written arguments, declarations, or documentary evidence presented by him or by respondent. For example, the reporter's transcript reflects that a custody and/or visitation report was prepared by family court services. The report was discussed in open court, but is not before us. Exhibits were introduced during the hearing, but they also are not in the record.

"[A] record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides . . . , but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed." (Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302.) Again, when an appellant "fail[s] to provide an adequate record, appellant cannot meet his burden to show error and we must resolve any challenge to the order against him." (Hotels Nevada, supra, 203 Cal.App.4th at p. 348.) Issues raised without the provision of an adequate appellate record for us to evaluate them are "deemed waived." (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003.) " '[I]if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

Compounding the problem caused by the inadequate record, appellant's failure to include citations to the reporter's transcripts in his appellate brief constitutes a violation of California Rules of Court, rule 8.204(a)(1)(C), which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited." (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [factual statements in briefs "not supported by references to the record may be disregarded" by the reviewing court].)

Appellant's opening brief is replete with statements of specific factual matters upon which he bases his claim that the trial court below erred. But he fails to include a single citation to the reporter's transcripts to identify where the specific facts were presented to the trial court. Moreover, his brief does not include a coherent summation regarding the history of the procedural matters that occurred below. While the record is not gigantic, it is comprised of a total of 300 pages of reporter's transcripts that cover several different witnesses' testimony. " 'We are a busy court which "cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record." ' " (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) We will therefore disregard appellant's factual contentions and any references to procedural matters below for which he has failed to provide citations to the record. (Yeboah, supra, 128 Cal.App.4th at p. 451.)

In light of the above, we will presume that any matters that could have been presented to support the trial court's order were in fact presented. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Because appellant has failed to provide an adequate record from which we may evaluate his claims that the court erred in rendering its custody and support determinations, we will resolve those claims against him. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

We acknowledge that appellant is representing himself in this appeal and has not had the formal legal training that would be beneficial in advocating his position. However, the rules of civil procedure apply with equal force to self-represented parties as they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Thus, "[w]hen a litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

Notwithstanding appellant's failure to comply with the above rules regarding presentation of the record on appeal, we will exercise our discretion to address one aspect of the trial court's order. We agree with appellant that the order is overly broad with respect to the restrictions it places on the parties' parental rights. We decline, however, to address this aspect of the order as it applies to the older daughter because it is essentially moot in that she will turn 18 years of age before this matter can be addressed by the court after remand.

The situation is different, however, with respect to the parties' son. The order itself is broadly worded. Again, it states, "Parents shall not force the minors to participate in any activities, including religious activities." (Italics added.) The order is overbroad in that it does not define the term "force," nor does it define "activities." Arguably, under the order, the parents can no longer compel their child to undertake household chores, attend school, or participate in family gatherings.

It has long been held in California that parents have a fundamental right to the care, custody, and control of their children. Our Supreme Court has explained that "the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights." (In re B. G. (1974) 11 Cal.3d 679, 688; see In re Carmaleta B. (1978) 21 Cal.3d 482, 489 ["Parenting is a fundamental right."].) It has also long been held, however, that "the rights of parenthood are not absolute, but subject to the superior right of the state to intervene and protect the child against abuse of parental authority." (Odell v. Lutz (1947) 78 Cal.App.2d 104, 106; see In re Angelia P. (1981) 28 Cal.3d 908, 916.)

The parties' older daughter testified that appellant's insistence that she participate in certain religious activities, including attending seminary, was detrimental to her as the activities were having a negative impact on her academic performance. The trial court was able to assess her maturity and credibility. Thus, perhaps the order is valid as to her, though we will make no conclusions as, again, the point is moot. However, the parties' younger son did not testify, and no evidence was offered during the hearing suggesting that he has any objection to participating in the activities that his parents direct him to undertake, or that he has experienced any detrimental effects from these activities. In sum, there does not appear to be any evidence supporting the order as to him, and we therefore conclude the matter must be remanded to the trial court so that it can modify its order by striking the offending provision. In all other respects, the order is affirmed.

Appellant conceded at oral argument that his daughter's testimony was credible and also agreed the matter is moot as to her.

At oral argument, respondent did not indicate that the boy has any issues with appellant's parenting at this time. According to her, the boy willingly participates in both of his parents' religious activities. While she expressed concerns that the boy may develop resistance in the future when his religious obligations at appellant's church are set to increase, her fear appears to be speculative at this time. --------

DISPOSITION

The order is reversed in part. The parties are to bear their own costs on appeal.

/s/_________

Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.