T.W. v. M.S.

1

T.W., Plaintiff and Respondent, v. M.S., Defendant and Appellant.

D079500

California Court of Appeals, Fourth District, First Division

April 21, 2023

NOT TO BE PUBLISHED

APPEAL from the Judgment of the Superior Court of San Diego County Super. Ct. No. DN188889, Margo Lewis Hoy, Judge.

M.S in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

In 2016, plaintiff/mother T.W. and defendant/father M.S. had a son, C. Shortly after C.'s birth, the parties became embroiled in litigation that has now spanned more than six years, leading to four separate appeals that are currently pending before this court.^[1]

In this particular appeal, M.S., who is appearing in propria persona as he has throughout the trial court proceedings, seeks review of the June 4, 2021 judgment (Judgment) concerning among other subject matters T.W.'s move-away request and child custody of C., which is supported by a 24-page final statement of decision and ruling issued by the trial court on March 30, 2021 (SOD).^[2] M.S. claims the Judgment is "inconsistent with, and [is] a clear violation of California's public policy" as provided in the Family Code; and that the court erred in not awarding him physical custody of C., or at a minimum, joint custody.^[3]

As we explain, we reject M.S.'s claims of error and affirm the Judgment.^[4]

I. RULES GOVERNING APPELLATE REVIEW

As a preliminary matter, we address the rules of procedure that govern this appeal.

Although M.S. is representing himself, self-representation does not excuse a party's obligation to furnish a satisfactory record. An appellant who chooses to self-represent must follow the same rules that apply to lawyers. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu).)

It is axiomatic that a trial court's judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956.) Accordingly, the appellant has the burden of showing error. To do so, the appellant must present this court with an adequate record for review (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575), regardless of whether that record is prepared by counsel or, as in the instant case, by a party (id. at p. 575; Nwosu, supra, 122 Cal.App.4th at p. 1246).

California Rules of Court, rule 8.122(b)^[5] sets out the required contents of a clerk's transcript, M.S.'s choice of record. In addition to other requirements, a clerk's transcript "must" include "[a]ny . . . document filed or lodged in the case in superior court" pertaining to the issue(s) on appeal (rule 8.122(b)(3)(A)) and "[a]ny exhibit admitted in evidence, refused, or lodged" (id., (b)(3)(B)).

In the instant appeal, the clerk's transcript does not contain documents identified in both the Judgment and the register of actions that appear to be highly relevant, if not critical, in deciding this appeal, including, by way of example only, T.W.'s September 24, 2019 request for order on which the Judgment is based. (See Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 ["To the extent the trial court relied on documents not before us, our review is hampered. We cannot presume error from an incomplete record."].)

In addition, M.S. lodged more than 500 pages from 36 "exhibits" for our consideration not only in connection with the instant appeal but also in the related appeals between the parties. However, M.S. did not identify which, if any, of these "exhibits" were "admitted in evidence, refused, or lodged" during the four-day trial that resulted in the SOD and Judgment.^[6] (See rule 8.122(b)(3)(B).)

M.S. also violated rules relating to appellate briefs. Rule 8.204(a)(2)(C) requires an appellant to "[p]rovide a summary of the significant facts limited to matters in the record." Here, M.S.'s summary of the facts is decidedly onesided, contains a considerable amount of argument, and is not "limited to matters in the record." (See Nwosu, supra, 122 Cal.App.4th at p. 1246 [appellants who challenge the decision of a trial court based upon the evidence"' "are required to set forth in their brief all the material evidence on the point and not merely their own evidence"' "].)

Despite the insufficiency of the record, M.S.'s failure in his brief to summarize all "significant facts limited to matters in the record," and his confusing briefing that tends to lack coherent legal argument, we nonetheless will do our best to address his claims of error in this appeal. In so doing, we will rely on the clerk's transcript in the instant appeal; the reporter's transcript, which includes only one of the four-days of trial;^[7] and the settled statement of the trial court filed on December 9, 2021, addressing M.S.'s motion for reconsideration of the Judgment.^[8]

II. FACTUAL AND PROCEDURAL BACKGROUND

Briefly, the trial court issued its SOD after a four-day trial that commenced on February 1, 2021. This factual and procedural background is derived primarily from the SOD.

A. Overview

M.S. and T.W. met in 2015, dated, but never married. They had a child together, C., born in August 2016. On the day of C.'s birth, M.S. signed a declaration confirming paternity. T.W. nonetheless filed a petition to establish relationship in September 2016. M.S. responded by again admitting paternity. In March 2017, M.S. requested genetic testing and, pending those results, the family court ordered there be no visitation between M.S. and C. In July 2017, the court reviewed the test results and M.S. signed an advisement and waiver of rights re: establishment of parental relationship of C. The court ordered M.S. unsupervised visitation with C. four days per week, from 1:00 p.m. to 5:00 p.m.

Since July 2017, the "issues [between the parties] regarding custody and visitation have been contentious and extensive," leading to the appointment of Dr. Stephen Doyne to perform a psychological evaluation of the parties to assist the trial court. During the evaluation, M.S. withdrew his consent and refused to continue. At T.W.'s request, the court allowed Dr. Doyne to finish the evaluation without M.S.'s participation, which resulted in a report dated September 4, 2019.^[9] The court noted M.S.'s lack of judgment led him to be declared a vexatious litigant, and to the issuance of both the DVRO and a civil restraining order protecting T.W.'s counsel and his staff, after what the court described as M.S.'s "horrendous and threatening" conduct against them.

The trial court also found T.W. lacked judgment by adopting a narrative about how M.S. came to have custody of his daughter L., suggesting it was through "nefarious means, possibly even kidnapping." The court found there was no credible evidence to support this narrative; that T.W. adopted it to support her claim C. allegedly was "not safe" around M.S.; that she even went so far as to hire a private investigator to investigate M.S. and his custodial arrangement with L., who in turn used an alias to contact L.'s mother I. in Africa and suggest L. was in" 'harm's way'" while in M.S.'s care; that T.W. knew of these tactics and at trial admitted they were "threatening and would be disturbing to M[.S.] and I[.]"; and that from birth, T.W. had "limited intentions of sharing C[.] with M[.S.,] and certainly not on a 50/50 basis."

B. Move-Away

After discussing the factors identified in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) among other authorities (discussed post), the trial court granted T.W.'s move-away request, finding: (1) it was in C.'s best interests to remain in the primary physical custody of T.W.; (2) M.S., in his effort to obtain physical custody of C., had overcome the presumption under Family Code section 3044^[10] that it would be detrimental to the best interests of C. for M.S. to have custody of the child due to the June 2018 DVRO; and (3) the move to New York would not occur until August 23, 2021, allowing C. to start kindergarten while also giving M.S. the opportunity to reestablish his relationship with the child after a long no-contact period.

C. Custody and Visitation

Although the trial court ordered T.W. to have sole legal custody of C., it reserved jurisdiction to reconsider this decision once M.S. became "more involved in the parenting of C[.]," which would put M.S. in a better position to "assist in making joint decisions regarding [C.'s] health, education and welfare." The court also considered the DVRO in making this custody determination, while noting it was set to expire in June 2021.

The trial court included a detailed visitation schedule both before and after C.'s move. Before the move, the visitation schedule was designed to allow C. to slowly reestablish his relationship with M.S., with an increase in parenting time predicated on eight weeks of compliance with the previous step in the step-up visitation schedule. These visits were unsupervised and once established, included overnights and weekends. After the move to New York, the court set visitation for holidays and summer vacation, including beyond summer 2028.

In making the visitation order, the trial court noted it was not a "final order," as it was "dependent on the future actions and behaviors of T[.W.] and M[.S.]"; and that it would reserve jurisdiction to continue to make orders to carry out C.'s best interests.

III. DISCUSSION

A. Standard of Review

"The standard of appellate review of custody . . . orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis,...