Stallworth v. Orr CA1/4

Filed 12/17/20 Stallworth v. Orr CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JOSEPH STALLWORTH, Plaintiff and Appellant, A158353 v. AMANDA ORR, (Alameda County Super. Ct. No. AF14740400) Defendant and Respondent.

Amanda Orr and Joseph Stallworth, who were never married, had a daughter in August 2014. Shortly after the child was born, Stallworth petitioned to establish a parental relationship with her. In August 2015, the trial court entered a judgment on the petition finding Stallworth and Orr were the girl’s parents and awarding each parent joint legal and physical custody over her. Following years of custody disputes and related litigation, the trial court entered a post-judgment custody award giving Orr and Stallworth joint legal custody and giving Stallworth physical custody for three weekends per month and additional time around holidays. With some modifications, the trial court’s order adopted the recommendations of a child custody recommending counselor at Family Court Services, Dr. Gene Mabrey, who served as a mediator and interviewed the child. Stallworth appeals, contending the trial court prevented him from submitting evidence at the hearing in September 2019 that would show Orr

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had interfered with his relationship with his daughter.1 In support of his argument, Stallworth cites a variety of incidents and allegations dating back to the beginning of the litigation.2 The record before us constrains our consideration of Stallworth’s arguments. In his notice designating the record on appeal, Stallworth indicated that he intended to use a settled statement instead of reporter’s transcripts. But he failed to file in the trial court a proposed summary of the oral proceedings there, which is required to proceed by settled statement. (See Cal. Rules of Court, rule 8.137(c)(1) [after appellant notifies respondent of appellant’s intent to proceed by settled statement and respondent does not elect to provide reporter’s transcripts, “the appellant must serve and file a proposed statement in superior court within 30 days after filing its notice” of intent to proceed by settled statement].) Stallworth confirmed to court staff that he was not requesting a settled statement or looking for any other documents before proceeding. As a result, the record on appeal consists of a clerk’s transcript but no record of the oral proceedings in the trial court. The failure to provide a record of the oral proceedings in the trial court that shows what transpired presents a “fatal problem” with Stallworth’s appeal. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,