Filed 4/21/20 Giehl v. Giehl 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JERAMIAH GIEHL,

Petitioner and Appellant,

v.

SONDRA GIEHL,

Defendant and Respondent.

D076030

(Super. Ct. No. 19FL002871C)

APPEAL from an order of the Superior Court of San Diego County, Rachel Cano, Judge. Affirmed.

Jeramiah Giehl, in pro. per., for Petitioner and Appellant.

Law Office of Sami Haddad; Sami Haddad for Defendant and Respondent.

Jeramiah Giehl unsuccessfully petitioned for primary physical custody of his

12-year-old son and five-year-old daughter after his wife, Sondra Giehl, moved with the children to Texas. Appearing in propria persona, Jeramiah appeals claiming a number of errors, including that the court erred by: (1) awarding primary physical custody to Sondra, and (2) discriminated against him and expressed judicial bias. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The record on appeal is limited to the clerk’s transcript. As a result, the factual and procedural background will necessarily be brief.

Jeramiah and Sondra married in 2007. In early 2019, the couple separated. Sondra moved with the children to Texas, without Jeramiah’s knowledge, and is living with the maternal grandmother and maternal uncle. Sondra works full time from home. Jeramiah suffers from posttraumatic stress disorder and anxiety. Jeramiah receives social security disability insurance benefits and works part-time teaching martial arts.

Jeramiah petitioned for custody of the children. He claimed to be the children’s primary caretaker, stating that while Sondra worked, he cared for their daughter all day, got their son ready for school, took him and picked him up from school, helped with homework, and took the children to medical appointments and extracurricular activities. Sondra acknowledged that Jeramiah stayed home with their daughter but claimed that he spent the day on social media and did not cook, clean, or do laundry.

The family court ordered that Jeramiah have “virtual visitation” with the children every other day, phone calls with the children on other days if the children wanted to talk by phone, and four hours of personal visitation each day if Jeramiah was in the children’s community. The couple met with a Family Court Services (FCS) counselor who noted that the matter involved allegations of domestic violence and mental illness. The FCS recommended that Jeramiah have primary physical custody of the children, reasoning that Jeramiah was the children’s primary caregiver because he did not work out of the home, and Sondra worked outside the home.

The court held an evidentiary hearing, without a court reporter, where both parties appeared with counsel. The court considered testimony from the parties, numerous exhibits, and the arguments of counsel. The court conducted a best interest analysis and considered factors including, but not limited to, the age of the children, the relationship between the children and parents, duration of the current living arrangements, maintaining continuity and stability, and the best interest of the children in the best proposed living arrangement. The court found Sondra “would be the more-able parent to adequately provide for the children physically, emotionally and financially, finding stability with [Sondra].” Although the court recognized that Jeramiah stayed with the children during the day, the court did not believe him to be the primary caregiver and found Sondra to be the primary parent. The court awarded the parents joint legal custody and primary physical custody to Sondra. The court denied Jeramiah’s requests to return the children to California and involve the District Attorney’s Child Abduction Unit. After inquiry by Sondra’s counsel, the court indicated that its orders were not pursuant to Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro).)

Jeramiah timely appealed. He did not provide an agreed or settled statement containing a summary of the trial court proceedings at the hearing. (Cal. Rules of Court, rules 8.134 & 8.137.) We granted calendar preference and expedited this appeal.

DISCUSSION

I. General Legal Principles

In the absence of a reporter’s transcript and an agreed or settled statement, we must 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] [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, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d 176, 178.)

II. Analysis

Jeramiah challenges the family court’s decision to award Sondra primary physical custody of the children. He claims that he was the children’s primary caregiver and the family court abused its discretion by awarding Sondra primary physical custody of the children because substantial evidence did not support the order.

“In an initial custody determination, the trial court has ‘the widest discretion to choose a parenting plan that is in the best interest of the child.’ [Citation.] It must look to all the circumstances bearing on the best interest of the minor child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess).) In making the “best interests” determination, the court must consider the health, safety, and welfare of the child and any other relevant factors. (Fam. Code, § 3011.) “A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child.” (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) “A court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions” (ibid., italics deleted), or makes a decision that does not have substantial support in the evidence. (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1447.)

Jeramiah’s contention that the family court abused its discretion by awarding Sondra primary physical custody of the children cannot be evaluated on the merits because of an inadequate record. The court made its custody decision after considering the testimony of the parties. The absence of a reporter’s transcript, or an agreed or settled statement showing what testimony was given during the evidentiary hearing prevents us from knowing what testimony was presented and requires us to presume that what occurred at the hearing supports the family court’s custody order. (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8-9; Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

Nevertheless, we note that Jeramiah’s argument focuses on the assertion that he previously acted as the children’s primary caretaker, citing evidence that he was involved with the children’s school and extracurricular activities. The court acknowledged in its order that Jeramiah stayed with the children during the day. After considering the circumstances of the parties, however, the court rejected Jeramiah’s contention that he was the children’s primary caregiver, finding Sondra to be the primary parent.

In making this initial custody determination, the family court was required to consider “all the circumstances bearing on the best interest of the minor child[ren]”

(Burgess, supra, 13 Cal.4th at pp. 31-32), and had ” ‘the widest discretion to choose a parenting plan that is in the best interest of the child[ren].’ ” (Id. at p. 31.) Here, the family court, “having heard the evidence, observed the witnesses, their demeanor, attitude, candor or lack of candor, is best qualified to pass upon and determine the factual issues presented by their testimony. This is especially true where the custody of minor children is involved. [We are] not authorized to retry the issue of custody, nor to substitute [our] judgment for that of the trier of facts.” (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.)

We conclude that Jeramiah has not met his burden on appeal to establish that the family court’s custody order should be reversed.

The absence of a reporter’s transcript is also dispositive of Jeramiah’s (1) general claims that the court considered inadmissible hearsay and that Sondra perjured herself and (2) specific claims that his trial counsel made a mistake that adversely affected his case and, that the family court: (a) discriminated against him based on his disability and income; (b) expressed judicial bias; and (c) allowed inappropriate conduct in the courtroom. Jeramiah’s specific claims regarding discrimination, bias, and courtroom conduct are particularly serious. However, without a reporter’s transcript, we are unable to determine any of the circumstances in the courtroom on the day of the evidentiary hearing. Thus, we conclude there is no basis for Jeramiah’s claims.

On the face of this record, we find no error and affirm the family court’s decision.

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.