Filed 11/18/19 Gray v. Hill CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THOMAS GRAY,

Appellant,

v.

JESSICA L. HILL,

Respondent.

F077913

(Super. Ct. No. 13FL0602)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kings County. Julienne L. Rynda, Commissioner.

Thomas Gray, in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

In this family law case, Thomas Gray (Thomas), an inmate at the California state prison located in Corcoran, California, filed a motion in the Kings County Superior Court (the trial court) to require visitation with his six-year-old daughter whom he had seen only once, when she was a baby. The child’s mother, Jessica L. Hill (Jessica), who has sole legal and physical custody of the child, opposed the motion. The trial court denied Thomas’s motion, stating that “to order that a six-year-old child be taken to a State prison facility to visit someone that she does not know as her father, let alone really in any other capacity, does not appear to be in the child’s best interest.” Thomas appeals from the order denying his motion. The sole contention made in his brief on appeal is that the child’s mother, Jessica, made a statement during oral argument that Thomas contends was untruthful. We conclude that Thomas has failed to meet his burden, as appellant, of affirmatively establishing the trial court abused its discretion. Accordingly, the order of the trial court is hereby affirmed.

FACTS AND PROCEDURAL HISTORY

Thomas and Jessica are unmarried parents of a minor child, a daughter, who was born in June 2012. The original custody orders arose out of proceedings in the juvenile court. A 2013 custody order by the juvenile court awarded legal and physical custody to Jessica. In that same order, Thomas was allowed supervised visitation arranged by the parents. Three years later, however, a 2016 custody order by the juvenile court restated that Jessica has legal and physical custody but did not provide any visitation for Thomas. The 2016 custody order advised that any future requests (e.g., for modification of the order) should be filed in a “Family Law proceeding.”

Thomas filed his motion to modify visitation on March 19, 2018. After service was made on Jessica, she filed her responsive declaration in opposition to the motion on June 13, 2018. The record on appeal does not include the actual moving and opposing papers. Our information as to filing dates is based on the case docket in the trial court’s register of actions.

The hearing on Thomas’s motion to modify visitation was held on June 27, 2018. Thomas appeared telephonically, and Jessica appeared in person. Neither were represented by an attorney. Thomas argued first. In his statement to the court, some of which was reading a letter he had written, he called Jessica a liar, and told the court that he loves his daughter and wants to be involved in her life. He mentioned that his family would be happy to bring his daughter on future occasions when they come to prison for a visit. He admitted he had only seen his daughter when she was a baby, prior to his incarceration.

In her comments to the court, Jessica asserted that the reason Thomas did not see his daughter in the past was that he was on the run from the law, was in jail, and eventually was sent to prison. None of that was her doing; it was “because of the actions that he did.” She said Thomas only saw their daughter one time, which occurred due to Jessica’s effort when their daughter was only an infant. Jessica stated she is afraid of Thomas and wants nothing to do with him due to his violent tendencies. For the same reasons, she did not want her daughter around him. Although she would sometimes take their daughter to see Thomas’s family members, she said that was all due to her own initiative and effort and they never came out for a visit on their own or offered to help her in any way. The trial court asked Jessica whether she was one of the victims of the crimes for which Thomas was incarcerated. She said “[n]o,” but “he basically threatened me to go up and testify for him.” After she got clean and sober, she told Thomas’s attorney that if she did testify she would “tell … the truth of what I know.” After that, Thomas’s attorney told her that her testimony would not be needed after all. Jessica added that she believed the events he had wanted her to testify about took place before they were in a relationship or before she was “even in the picture.”

At the hearing, the trial court stated its ruling from the bench that it was denying Thomas’s motion to modify visitation. The trial court noted, “the minor child has had, it appears, one contact with the father as an infant and is now six years of age.” The trial court then explained its ruling as follows: “When there is a gap of time with a child and a parent without contact, the Court is cautious with regard to allowing reestablishment of a bond and the procedures that are involved to assist the minor child with that. Generally, there is therapeutic services that are offered with regard to the process so that possible reunification might be conducted, and that would be aside from the issues of the reason for the incarceration. [¶] In this situation, for the Court to order that a six-year-old child be taken to a State prison facility to visit someone that she does not know as her father, let alone really in any other capacity, does not appear to be in the child’s best interest. [¶] The Court is going to deny the request, Mr. Gray, for the visitation of the minor child with you based on all of the circumstances and information provided.… [¶] It appears that you have some serious offenses that have resulted in a very lengthy prison sentence, and that this child and the child’s mother did not—were not the cause of that incarceration. The Court is not going to order contact in that environment for the minor child.”

Thomas reacted to the ruling by asking, “[s]o that’s it, huh?” The trial court stated: “At this time, that is the order of the Court: That the sole legal, sole physical custody, and primary residence [continue with Jessica], the prior orders that exist in this case, and have existed for years, will continue and be restated today that there would be no visitation ordered for the child with Mr. Gray.”

On June 27, 2018, the trial court issued a written order after hearing. The order found that “there has been 1 visitation between the minor and the petitioner (Father) years ago when child was a baby,” and “[t]here is no relationship between child and Father.” As stated in the order, the trial court concluded it was “not in the best interest of the child to be taken to the prison for visitation,” and accordingly, Thomas’s motion for modification of visitation was denied.

On August 6, 2018, Thomas filed his timely notice of appeal from the June 27, 2018 order denying his motion for modification of visitation. In designating the record on appeal, Thomas attempted to prepare a settled statement in lieu of having a reporter’s transcript of the hearing. The trial court, upon receiving a proposed settled statement from Thomas, ordered that a reporter’s transcript be prepared instead, rather than attempting to correct Thomas’s document.

Thomas filed his opening brief concerning the instant appeal on January 23, 2019. Thomas’s opening brief is the only brief submitted in connection with this appeal. Jessica did not file a respondent’s brief.

DISCUSSION

I. Standard of Review

The standard applied in the trial court on a request to modify visitation is that of the best interest of the child. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1080.) On appeal, an order denying a request to modify visitation is reviewed for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) An abuse of discretion occurs where, considering all the relevant circumstances, there was no reasonable basis on which the court could conclude that its decision advanced the best interest of the child. (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124; see also In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7 [abuse of discretion occurs if ruling exceeds the bounds of reason].)

II. Appellant’s Burden on Appeal

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because of the presumption of correctness, error must be affirmatively shown by the appellant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) Thus, an appellant must affirmatively demonstrate prejudicial error based on sufficient legal argument and citation to an adequate record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)

III. Thomas Failed to Meet His Burden as Appellant

The sole argument raised by Thomas in the present appeal is that during oral argument at the hearing of the motion to modify visitation, Jessica said something to the trial court that was allegedly a falsehood. Specifically, Thomas asserts that Jessica lied when she told the trial court that events regarding Thomas’s prior criminal conduct happened “a year before [they] met,” or “before [she] was even in the picture.”

In his attempt to “prove” that Jessica may have lied, Thomas improperly relies on matters not contained in or supported by the record. For example, Thomas makes bare assertions of purported facts in his appellate brief of when he first met or started dating Jessica, without any support of or reference to the record on appeal. He also attaches what he characterizes in his brief as “my Abstract of Judgment from this current incarceration,” and asserts that the crimes indicated therein were committed by him in July 2011. Since their daughter was born in June 2012, and after factoring in some of his assertions of fact that were not substantiated by the record, Thomas draws a conclusion that Jessica was in a relationship with him at the time his crimes were committed. “[T]herefore,” he concludes, he was denied “due process” since “the order of the Court … was made subsequent to her testimony.”

We conclude for several reasons that Thomas has failed to meet his burden of affirmatively showing the trial court abused its discretion. First, as already mentioned, his entire argument is improperly based on matters outside the record and/or on matters unsupported by citation to the record. “ ‘The appellate court is … confined in its review to the proceedings which took place in the court below and are brought up for review in a properly prepared record on appeal.’ [Citation.] ‘Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by this court on appeal. [Citations.]’ [Citations.]” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Moreover, we disregard assertions and arguments that lack references to the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) “If a party fails to support an argument with the necessary citations to the record, … the argument [will be] deemed to have been waived.” (Ibid.) That is the case here.

Second, Thomas’s argument on appeal fails because he provides no adequate legal discussion or citation to legal authority. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522; accord, Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628.) Where, as here, points are perfunctorily raised, without adequate analysis and authority, we pass over them and treat them as forfeited. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) This glaring lack of legal discussion and citation to authority results in forfeiture of Thomas’s issue.

Third, even assuming, hypothetically, that during oral argument at the hearing of the motion in the trial court, one of Jessica’s comments to the court was false or partly false, Thomas could have attempted to rebut her comment at that time, if he thought it was important. He plainly did not do so, even though he appeared telephonically at the hearing and so had an opportunity to object or raise the issue in the trial court. We conclude that Thomas’s failure to raise the issue in the trial court, on a matter intrinsic to the hearing he participated in, resulted in its forfeiture on appeal. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise issue in trial court waives the point on appeal].)

Fourth and finally, Thomas has failed to demonstrate any error by the trial court, much less a prejudicial error. That is, Thomas has failed to offer any reasoned logical connection between his claim that Jessica may have said something that was purportedly untruthful during oral argument and the existence of any actual error, much less a reversible error, on the part of the trial court. He has not explained how the purported falsehood concerning an apparently minor point in the oral argument may have resulted in the trial court abusing its discretion or failing to reasonably decide the matter in the child’s best interest. He has not attempted to show that the trial court’s order was outside the bounds of reason under all the circumstances before it. Finally, he has not shown that any error resulted in a miscarriage of justice. “ ‘ “The burden is on the appellant, not alone to show error, but to show injury from the error.” ’ [Citation.] ‘Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.’ [Citation.] ‘Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.’ [Citation.] A miscarriage of justice is not found ‘unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.’ [Citation.]” (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th 814, 822.)

For all of the above reasons, Thomas’s sole argument in his appellate brief is unpersuasive and fails to meet his fundamental burden as appellant. The order of the trial court is presumed to be correct on appeal, and Thomas has not demonstrated otherwise.

DISPOSITION

The order of the trial court is affirmed. As Jessica did not participate in the instant appeal, no costs on appeal are awarded.