Candy People v. Tyron H. CA4/1 (2016) · DecisionDepot
Candy People v. Tyron H. CA4/1
California Court of Appeal Jan 25, 2016 No. D068463Unpublished
Filed 1/25/16 Candy P. v. Tyron H. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CANDY P., D068463
Defendant and Appellant,
v. (Super. Ct. No. ED92287)
TYRON H.,
Plaintiff and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Darlene
White, Commissioner. Affirmed.
Candy P., in pro. per., for Defendant and Appellant.
Vera Livingstone for Plaintiff and Respondent.
Defendant Candy P. appeals from an order modifying a child custody order. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
In May 2014, following a contested child custody hearing between Candy, mother
of then-two-year-old Dominic H., and Tyron H., Dominic's father, the court issued an
order in which the court (1) awarded joint legal custody to both parents and physical
custody to Candy, (2) allowed Candy to move with Dominic to Arizona, and (3)
authorized child visitation with Tyron in San Diego on alternate weekends and holidays.
In the order, the court expressed concerns Candy's behavior was "borderline harmful" and
noted that Candy had room for improvement with respect to cooperating and
communicating with Tyron. The court emphasized that if Candy's performance did not
improve, it would consider a change of custody to Tyron. The court stated that its ruling
did not constitute "a Montenegro order."1
In October 2014, Tyron brought a motion to modify custody and visitation,
contending Candy had been secretive and misleading about her contact information, and
had failed to apprise Tyron of Dominic's medical and educational information. After
holding a contested hearing, including taking extensive testimony from both parents, the
court determined in its May 2015 order that Candy was not communicating or
cooperating with Tyron, had not enrolled Dominic in organized day care or preschool,
and lacked stability in her residency and employment. The court found Candy's
testimony regarding her living and working situations "contradictory, confusing and
untruthful." In contrast, the court noted that Tyron had exercised visitation regularly, had
1 Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro). 2
the ability to meet Dominic's needs, and had a good relationship with him. The court also
stated that Tyron had stable employment, a residence, and family in San Diego.
Citing Family Code sections 3011, 3020-3021 and 3040,2 the court considered the
child's best interest, including which parent is better able to meet the child's health, safety
and welfare, whether the parents are able to share the child and whether either parent
frustrates the child's relationship with the other parent. The court noted that no
significant change in circumstances was required to alter custody under Montenegro.
The court decided it would be in Dominic's best interest to make "changes in the
custodial arrangement, but not to make full changes in custody." The court determined
that Candy should not retain sole physical custody and determined an equal parenting
arrangement was appropriate, with each parent having custody during alternating weeks.
The court considered the travel required and noted that the amount of travel and the
number of exchanges would remain unchanged. The court acknowledged that this new
order would necessitate Dominic's longer absences from Candy and his attendance at two
separate preschools. The court also recognized the need to modify the custody
arrangement in a few years when Dominic enters kindergarten. The court stated that this
ruling also did not constitute "a Montenegro order."
2 These sections of the Family Code require the court to ascertain the best interest of the child. (See also Montenegro, supra, 26 Cal.4th at p. 256.) 3
DISCUSSION
A. Jurisdiction
In response to Candy's appeal, Tyron contends that this temporary child custody
order is not appealable. Although there is some authority supporting this proposition (see
Lester v. Lennane (2000) 84 Cal.App.4th 536, 559), we chose to follow this court's
decision in Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378 (Enrique M.)
holding that a contested child custody order is appealable. Here, the original order after
the contested hearing determined the issues and provided the parties notice of their rights
and responsibilities. On appeal we address a request to modify the previous custody
order, which, as in Enrique M., has met the necessary requisites for review at this time.
(Ibid.) (See also Montenegro, supra, 26 Cal.4th at p. 259 [providing review from an
appeal in a fluid child custody dispute following an adversarial hearing where the custody
order at issue would require reevaluation in a few years when the child entered
kindergarten].)
We conclude that this court has jurisdiction to review this disputed child custody
order on appeal.
B. Standard for Review of the Order Changing Physical Custody
Candy contends changing custody of Dominic from her sole physical custody to
shared physical custody with Tyron should have required a significant change in
circumstances. We disagree.
" 'The standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test.' [Citation.] Under this test, we must uphold the trial
4
court 'ruling if it is correct on any basis, regardless of whether such basis was actually
invoked.' " (Montenegro, supra, 26 Cal 4th at p. 255.)
It is a fundamental proposition that a judgment or order is presumed correct on
appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) It is
the burden of a party challenging a judgment on appeal to provide an adequate record to
assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
Candy has not provided any reporter's transcript of the proceedings. In the
absence of a reporter's transcript or other record of the oral proceedings in the trial court,
the appeal is treated on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079,
1082-1083.) We therefore treat this as an appeal "on the judgment roll," to which the
following rules apply: "Error must be affirmatively shown by the record and will not be
presumed on appeal [citation]; the validity of the judgment on its face may be determined
by looking only to the matters constituting part of the judgment roll [citation]; where no
error appears on the face of a judgment roll record, all intendments and presumptions
must be in support of the judgment [citation]; the sufficiency of the evidence to support
the findings is not open to consideration by a reviewing court [citation]; and any
condition of facts consistent with the validity of the judgment will be presumed to have
existed rather than one which would defeat it [citation]." (Ford v. State of California
(1981) 116 Cal.App.3d 507, 514; Cal. Rules of Court, rule 8.163.) Although Candy is
representing herself in propria persona, she is not exempt from the rules governing
appeals. A self-represented party is to be treated like any other party and is entitled to the
5
same, but no greater consideration than other litigants having attorneys. (Nwusu v. Uba.
(2004) 122 Cal.App.4th 1229, 1246-1247.)
Based on this record, Candy has not demonstrated that the court was required to
apply the changed circumstances standard with respect to the challenged order. The
changed circumstances variation on the best interest standard only applies after the court
has previously made a final judicial custody order. (Montenegro, supra, 26 Cal.4th at
p. 256.) In Montenegro, a child custody case involving fluid circumstances similar to
those in this case, the Supreme Court ruled even where detailed visitation schedules had
been established by "final" stipulation of the parties, no significant change in
circumstance was required for a modification of a custody order, and best interest of the
child was the appropriate standard. The court also considered the need for another
change in the custody order in a few years when the child entered kindergarten to be a
factor showing the challenged custody order was not truly final. (Id. at p. 259.)
The record in this case demonstrates that the order Candy is challenging is
similarly not a final custody order. The trial court expressly stated when making both
orders that it reserved the right to alter the custody arrangement, and a further change
would be needed in a few years when Dominic entered kindergarten. In addition, the
court specifically stated its orders were not "Montenegro" orders, implying that the orders
were not to be considered final custody determinations under the authority of
6
Montenegro, supra, 26 Cal.4th at page 256.3 Under these circumstances, because no
final custody order had been made, Montenegro counsels that the best interest of the child
standard applies, not the significant changed circumstance standard.
Based on the judgment roll record in this case, we therefore conclude the trial
court did not abuse its discretion when it applied the best interest of the child standard.
C. Exchange Location, Time Zone Selection, and Elimination of the No Drinking Order
Candy requests this court alter exchange locations set by the trial court, reverse the
trial court's determination that California time should apply for the exchanges of the
child, and reinstate the no drinking order.
In the absence of any record regarding the evidence before the court on these
issues, we must assume the trial court's reasoning was correct and therefore affirm its
order. (See Arceneaux, supra, 51 Cal.3d at p. 1133.)
3 Based on our reading of Montenegro, we understand the trial court's reference to "not a Montenegro order" as meaning that the order at issue was not intended by the court to be a "final" or "permanent" judicial custody determination. For the benefit of the litigants (many of whom are self-represented), counsel, and even reviewing appellate courts, the trial court may want to consider using more explicit, readily understandable wording such as "final" or "permanent" when discussing the legal effect of its ruling. 7
DISPOSITION
The order is affirmed.
PRAGER, J.*
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8
AI Brief
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Holding. The court held that the trial court did not abuse its discretion in applying the best interest of the child standard rather than the changed circumstances standard because the prior custody order was not a final judicial determination.
Issues
Whether a contested child custody order is appealable.
Whether the trial court erred by applying the best interest of the child standard instead of the changed circumstances standard.
Whether the trial court's orders regarding exchange locations, time zones, and conduct were supported by the record.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The changed circumstances variation on the best interest standard only applies after the court has previously made a final judicial custody order.”
“Under these circumstances, because no final custody order had been made, Montenegro counsels that the best interest of the child standard applies, not the significant changed circumstance standard.”
“In the absence of any record regarding the evidence before the court on these issues, we must assume the trial court's reasoning was correct and therefore affirm its order.”