Wilson v. Meagan M. CA4/2

• Court: California Court of Appeal
• Decided: November 6, 2020
• Docket: E073681
• Status: Unpublished

Opinion

Filed 11/6/20 Wilson v. Meagan M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

RYAN WILSON,

Appellant, E073681

v. (Super.Ct.No. FLHE1900923)

MEAGAN M., OPINION

Respondent.

APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge.

Affirmed.

Ryan Wilson, in pro. per., for Appellant.

Westover Law Group and Andrew L. Westover for Respondent.

I. INTRODUCTION

On February 13, 2019, Ryan Wilson (father) filed a petition in the

Riverside County Superior Court seeking a modification of prior custody and visitation

1 orders regarding his son, T.M.1 Before resolution of this petition, father filed a second

petition on July 9, 2019, requesting an order allowing immediate supervised visitation

with T.M. On July 16, 2019, the trial court denied both petitions, and father filed a notice

of appeal from “the judgment” shortly thereafter. We conclude that father has forfeited

any claim of error by failing to provide an adequate record for review, and that the

limited record before us does not evidence an abuse of discretion warranting reversal,

even if we were to consider the merits of father’s appeal. We, therefore, affirm the trial

court’s orders.

II. FACTS AND PROCEDURAL HISTORY

T.M. was born in 2004 and is the child of father and Meagan M. (mother). Father

and mother have been litigating the issue of child custody over T.M. for years in the State

of Illinois. On November 19, 2012, following an evidentiary hearing regarding

allegations that father molested T.M., an Illinois circuit court issued an order barring

father from any visitation, parenting time, or contact with T.M.

On August 14, 2013, mother filed a petition in the Illinois circuit court for

1Father’s petition was presented on a standard court form, on which he also checked boxes for child support, domestic violence, and attorney fees and costs.

2 permission to remove T.M. to California.2 While the circuit court initially denied the

petition, that decision was reversed on appeal on May 6, 2015.

On February 13, 2019, father filed a petition in the Riverside County Superior

Court requesting an order to modify the custody and visitation orders pertaining to T.M.

The petition in the record before us contains no supporting attachments or declarations

and does not include a copy of the underlying custody or visitation orders in effect at the

time.3

On April 19, 2019, mother filed a responsive declaration opposing father’s request

for change of custody and visitation. In her declaration, mother noted that father had not

had any contact with T.M. since 2012. Mother attached a copy of a November 19, 2012

2 On April 8, 2020, mother filed a request for judicial notice of four items: (1) an unpublished opinion by the Appellate Court of Illinois regarding a petition by mother to remove T.M. to California; (2) an unpublished opinion by the Appellate Court of Illinois upholding a 2012 trial court order barring father from any contact, visitation, or parenting involving T.M.; (3) Illinois Supreme Court Rules, rule 23, permitting citation to unpublished decisions under the doctrine of law of the case; and (4) a copy of father’s request for order filed February 13, 2019, with the Riverside County Superior Court. By order dated April 24, 2020, we reserved the ruling on the first three items to be considered with this appeal; deemed the request for judicial notice of the fourth item as a motion to augment the record; and granted the request as to that item. We now grant the request for judicial notice of the remaining items pursuant to Evidence Code section 452, subdivisions (d) and (e), including the truth of any results reached by the prior appellate opinions; but we do not take judicial notice of the truth of any hearsay facts recited within those opinions. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (Lockley).)

3We note that father did not include his petition when designating the record on appeal, despite the fact that his appeal is presumably taken from the order denying that petition. The only copy of the petition in the record is the version attached to mother’s request for judicial notice, which does not include any accompanying attachments or declarations.

3 order from the Illinois circuit court barring father from visitation, parenting time, or

contact with T.M. on the ground that T.M. would be seriously endangered by such

contact. Mother also attached a 2018 report by one of T.M.’s treating psychiatrists, in

which the psychiatrist expressed the opinion that contact between father and T.M. would

adversely impact T.M.’s ongoing mental health treatment, and that such contact should

continue to be barred while T.M. remains a minor.

On April 23, 2019, the trial court held a hearing on father’s petition. However,

instead of addressing the merits of the petition, the trial court ordered the parties to

participate in a child custody mediation and continued the hearing on the petition to

July 16, 2019.

Father proceeded to file at least eight separate declarations. Attached to the

declarations were the following documents: a June 2014 report by the guardian ad litem

appointed to represent T.M. in the Illinois proceedings;4 a November 2010 findings and

order by the Illinois circuit court regarding competing motions to restrict and modify

visitation; a November 2017 updated psychological evaluation of father conducted by

order of the Illinois circuit court; a June 2014 deposition transcript of a clinical

psychologist who was treating T.M. at that time; a copy of an April 2013 individualized

education program evaluation and plan for T.M. conducted by his elementary school; a

copy of T.M.’s school disciplinary record for the 2013 school year; a June 2014

deposition transcript of a child psychiatrist who was treating T.M. at the

4 This report also attached reports issued by a therapist and psychologist that the guardian ad litem reviewed at the time.

4 time; and a transcript of November 2009 proceedings before the Illinois circuit court.

On July 9, 2019, father filed a second petition requesting an order allowing for

immediate supervised visitation with T.M.

On July 16, 2019, the trial court held a hearing on both of father’s

petitions. The trial court denied the petitions, stating it did not believe father had shown

any change in circumstances warranting review of any prior custody or visitation orders.

While the trial court expressed that it did not see a substantial basis or change in

circumstances that would warrant revisiting a prior visitation order, it also expressed the

view that, based upon the information provided to it, any visitation with father would be

psychologically damaging to T.M.

III. DISCUSSION

A. Scope of Father’s Appeal

“Generally, we must liberally construe a notice of appeal in favor of its

sufficiency. [Citation.] A notice of appeal shall be ‘ “liberally construed so as to protect

the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from,

and where the respondent could not possibly have been misled or prejudiced.” ’ ” (In re

J.F. (2019) 39 Cal.App.5th 70, 75.)

Here, father’s notice of appeal represents that he is appealing from a judgment and

does not identify any specific orders from which his appeal is taken. The record on

appeal does not include a judgment. Nevertheless, the register of actions indicates the

trial court heard and denied only two requests for orders at the time father filed his notice

of appeal, both of which were denied at the same hearing. On appeal, respondent also

5 appears to have addressed the substantive issues raised by both of father’s requests.

Accordingly, we will deem father’s appeal as an appeal from the trial court’s denial of his

requests for orders filed on February 13, 2019, and July 9, 2019.

Further, father’s February 13, 2019 request for order was submitted on a standard

court form, bearing marked boxes next to each of the following categories: child

custody, child support, visitation, domestic violence order, and attorney fees and costs.

Nevertheless, the body of the petition did not include any information or substantive

request related to child support, a domestic violence order, or attorney fees and costs.

Thus, in substance, father’s February 13, 2019 petition appears to be a request for

modification of prior child custody and visitation orders, and we will treat the petition as

such on appeal.

B. Applicable Legal Principles and Standard of Review

“Under the changed circumstance rule, after the trial court has entered a final or

permanent custody order reflecting that a particular custodial arrangement is in the best

interest of the child, custody modification is appropriate only if the parent seeking

modification demonstrates ‘a significant change of circumstances’ indicating that a

different custody arrangement would be in the child’s best interest.’ [Citation.] But the

changed circumstance rule does not apply when a parent requests only a change in the

parenting or visitation arrangement not amounting to a change from joint custody to sole

custody, or vice versa. Instead, the trial court considers a request to change the parenting

or visitation arrangement under the best interests of the child standard.” (In re Marriage

of Lucio (2008) 161 Cal.App.4th 1068, 1072.)

6 While the legal test with respect to determining whether a modification of a

change in custody differs from that used to determine the modification of a change in

visitation, the standard of appellate review for both orders is the same. “The standard of

appellate review of custody and visitation orders is the deferential abuse of discretion

test.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; see Montenegro v. Diaz

(2001) 26 Cal.4th 249, 255; S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 333.)

“The abuse of discretion standard is not a unified standard; the deference it calls for

varies according to the aspect of a trial court’s ruling under review. The trial court’s

findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed

de novo, and its application of the law to the facts is reversible only if arbitrary and

capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)

Further, even where an abuse of discretion has been shown, reversal is not

warranted absent prejudice. (In re Marriage of Slayton & Biggums-Slayton (2001)

86 Cal.App.4th 653, 658 [upholding the trial court’s ex parte custody order because

appellant suffered “no ultimate prejudice” after subsequent full hearing reached the same

result].)

C. Father Has Forfeited Any Claim of Error by Failing To Provide an Adequate Record

Here, father offers various criticism of the trial court’s denial of his requests for

order to modify child custody and child visitation orders. However, father has failed to

provide us with a record upon which these orders can be properly reviewed.

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is

ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the

7 basis of the record presented to the appellate court, that the trial court committed an error

that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-

609.) “ ‘ “[I]f the record is inadequate for meaningful review, the appellant defaults and

the decision of the trial court should be affirmed.” ’ ” (Id. at p. 609.) The appellant

“ ‘has the burden of providing an adequate record . . . [and] [f]ailure to provide an

adequate record on an issue requires that the issue be resolved against [the appellant].’ ”

(Ibid.)

Here, father challenges the trial court’s denial of his requests for orders seeking a

modification of prior child custody and visitation orders. However, father did not request

that either of his petitions be included in the record on appeal. While mother provided a

copy of father’s February 13, 2019 petition in her request for judicial notice, no exhibits

or supporting declarations were included in mother’s request. Father’s July 9, 2019

petition is referenced only in the register of actions and in the trial court’s oral comments

at the time of hearing.

More importantly, father failed to include in the record a copy of the underlying

custody and visitation orders that were in effect at the time he filed his petitions. The

record before us includes father’s February 13, 2019 petition referencing a custody and

visitation order from 2008; a copy of a 2010 order modifying custody and visitation; and

a 2012 custody and visitation order barring father from visitation, parenting time, and

contact with T.M. While mother’s declaration to the trial court implied the 2012 order

was the most recent court order in effect, the order itself stated that its provisions barring

father from visitation, parenting time, and contact would last only through

8 December 15, 2013. The register of actions indicates that mother subsequently submitted

a copy of an additional out of state custody order to the trial court on April 18, 2019, and

the transcript of oral proceedings indicates the trial court reviewed that order. However,

a copy of that order has not been made part of the record on appeal.5

Clearly, the record before this court is insufficient to allow for adequate review.

Absent the underlying order or orders that father sought to modify and absent the

petitions in which father, presumably, included in order to show support of any

modification request, we cannot adequately review any claim that the trial court abused

its discretion in denying father’s petitions. It was father’s burden to provide an adequate

record for review on appeal, and the failure to do so requires that any claim of error be

resolved against him.

5 For this reason, we need not address mother’s argument that orders issued by the Illinois courts are entitled to full faith and credit under the United States Constitution. We presume mother is urging us to give full faith and credit to whatever order currently governs the custody and visitation rights with T.M. However, that order does not appear to be included in the record on appeal. To the extent mother’s argument is intended to urge us to accept the truth of the factual findings set forth in the various orders or opinions issued by courts in Illinois, we decline to do so. The truth of such facts are not subject to judicial notice. (Lockley, supra, 91 Cal.App.4th at p. 885 [“An appellate court’s description of facts is merely the hearsay assertions of the justices who delivered the opinion.”]; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121 [“[T]aking judicial notice of the truth of a judge’s factual finding, even after a contested adversary hearing, is ‘tantamount to taking judicial notice that the judge’s factual finding must necessarily have been correct and that the judge is therefore infallible’ [and] a court may take judicial notice that a prior order was entered, but it may not take judicial notice of the truth of factual findings made therein.”].) Nor do we believe the truth of these facts is necessary to the resolution of the issue before us on appeal.

9 D. The Limited Record Before Us Does Not Evidence an Abuse of Discretion

Finally, even if we were to consider the merits of father’s appeal on the limited

record before this court, we would find no abuse of discretion.

First, “[i]t is settled law that ordering a change in custody requires a persuasive

showing of changed circumstances affecting the child. [Citation.] Such a change must

be substantial. A trial court shall not remove a child from the prior custody of one parent

and give custody to the other unless there are material facts and circumstances occurring

after the prior custody order that ‘ “ ‘ “are of a kind to render it essential or expedient for

the welfare of the child that there be a change.” ’ ” ’ ” (In re Marriage of C.T. & R.B.

(2019) 33 Cal.App.5th 87, 102; see In re Marriage of Brown & Yana (2006)

37 Cal.4th 947, 960.) Generally, the trial court “ ‘should preserve the established mode

of custody unless some significant change in circumstances indicates that a different

arrangement would be in the child’s best interest.’ ” (In re Marriage of Burgess, supra,

13 Cal.4th at p. 38.)

Thus, in order to be entitled to a modification of any existing custody order, it was

father’s burden to show a significant change in circumstances. Yet, all of the documents

submitted by father to the trial court and made part of the record on appeal are documents

from the litigation process before the Illinois circuit court. It would have been reasonable

for the trial court to infer that any information generated as part of the custody litigation

before the Illinois court had already been considered in formulating any custody order

issued by that court. As such, the trial court could reasonably conclude that such

information did not represent a change in circumstances. Absent a showing of changed

10 circumstances, the trial court is not required to revisit prior custody orders, and we would

find no abuse of discretion in the trial court’s denial of father’s request for a modification

of custody orders on this basis.

Second, while a request to modify a visitation order does not require a showing of

changed circumstances, it does require a showing that any modification is in the best

interest of the child. (In re Marriage of Lucio, supra, 161 Cal.App.4th at p. 1072.)

“When determining the best interest of the child, relevant factors include the health,

safety and welfare of the child, any history of abuse by one parent against the child or the

other parent, and the nature and amount of contact with the parents.” (Montenegro v.

Diaz, supra, 26 Cal.4th at p. 255.)

Here, it was undisputed mother has exercised sole physical custody of T.M. since

at least 2012, and father has had no contact with T.M. since that time. Mother submitted

a 2018 report by one of T.M.’s treating psychiatrists, who concluded that T.M. should

have no visitation with father until T.M. reached the age of majority and that doing so

would be detrimental to T.M.’s ongoing mental health treatment. Almost all of father’s

evidentiary submissions—at least those that have been made part of the record on

11 appeal—significantly predate that psychiatrist’s mental health evaluation of T.M.6 The

only relatively recent document submitted by father was a psychological evaluation of

father in 2017, but the expert who prepared that report did not evaluate T.M.

Thus, the record before the trial court suggested that T.M. had no current

relationship with father, as well as an uncontradicted opinion by a mental health expert

that visitation between T.M. and father would be detrimental to T.M.’s mental health.

Based upon this evidence, the trial court could reasonably conclude that modification of

any visitation order would not be in the best interest of T.M. Even in the absence of

forfeiture, we would find no abuse of discretion in the trial court’s denial of father’s

request for modification of visitation orders based upon this record.

IV. DISPOSITION

The trial court’s orders denying father’s February 13, 2019 and July 9, 2019

petitions are affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

McKINSTER Acting P. J.

RAPHAEL J.

6 The report submitted by T.M.’s guardian ad litem in the proceedings before the Illinois circuit court is dated June 2014; the findings and order by the Illinois circuit court submitted by father is dated November 2010; the deposition transcripts of various medical professionals are from proceedings conducted in 2014; and the education records for T.M. were for the 2013 school year.