Filed 9/11/19 Francis v. Hoyos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

OWEN FRANCIS,

Appellant,

v.

ANNA HOYOS,

Respondent.

E070496

(Super.Ct.No. RID1700715)

OPINION

APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge. Dismissed in part and affirmed in part.

Holstrom, Block & Parke and Ronald B. Funk for Appellant.

Anna M. Hoyos, in pro. per, for Respondent.

I. INTRODUCTION

Appellant, Owen Francis, appeals from a domestic violence restraining order issued against respondent, Anna Hoyos, pursuant to the Domestic Violence Prevention Act. (Fam. Code, § 6200 et seq.) After hearing, the trial court issued a third amended restraining order which provided, in part, that appellant and respondent would share joint legal and joint physical custody of their child. The trial court also issued an order changing the name of their child such that the minor child would bear the first name given by respondent, a middle name requested by appellant, and two last names reflecting the surnames of both appellant and respondent.

On appeal, appellant contends (1) the trial court erred or abused its discretion in awarding joint custody by improperly applying the statutory presumption against awarding custody to a perpetrator of domestic violence set forth in Family Code section 3044, and (2) the trial court’s decision with respect to his child’s name change should be remanded for reconsideration in light of a potential change of custodial status on remand.

Because the record establishes that the custody order at issue has since been modified to award appellant sole legal and sole physical custody of his child, we dismiss this portion of his appeal as moot. Additionally, because appellant failed to provide an adequate record for review, we affirm the trial court’s order changing the name of appellant’s child.

II. FACTS AND PROCEDURAL BACKGROUND

On December 14, 2016, appellant obtained a temporary restraining order against respondent pursuant to the Domestic Violence Prevention Act. (Fam. Code, § 6200 et seq.) The matter was set for hearing on January 4, 2017. Respondent did not appear and the court issued a restraining order after hearing in favor of appellant against respondent.

On January 13, 2017, respondent gave birth to a child. Thereafter, on February 24, 2017, appellant filed a petition to establish parental relationship.

On March 1, 2018, trial commenced to determine the issue of parentage, permanent custody, and a request to change the name of respondent’s child. The parties did not dispute the issue of parentage and appellant was adjudicated to be the father of respondent’s child. The court proceeded to issue a third amended restraining order awarding appellant and respondent joint legal and joint physical custody of their child. The court then set the matter for a further hearing with respect to the requested name change.

On April 2, 2018, after further hearing, the trial court ordered that the name of the child be changed to reflect a first name as given by respondent at birth, a middle name chosen by appellant, and two last names reflecting both respondent’s and appellant’s respective surnames. A formal order regarding the name change was filed on July 16, 2018.

Appellant appealed from the third amended restraining order filed on March 12, 2018, and from the order of April 2, 2018, providing for his child’s name change.

On January 10, 2019, while appellant’s appeal was pending, the trial court issued a fourth amended restraining order after hearing awarding appellant sole legal and sole physical custody of his child.

III. DISCUSSION

A. Appellant’s Challenge to the Custody Order Is Moot

Appellant contends the trial court erred or abused its discretion when it issued the third amended restraining order awarding appellant and respondent joint legal and joint physical custody of their child. Specifically, appellant argues that the trial court failed to properly apply Family Code section 3044, which provides a rebuttable presumption that awarding custody of a child to a person found to have perpetrated domestic violence is not in the best interests of the child. (Fam. Code, § 3044, subd. (a).) We need not reach this question, as the issue is now moot.

“‘As a general rule, an appellate court only decides actual controversies. . . . “A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.”’ [Citation.]” (People v. Gregerson (2011) 202 Cal.App.4th 306, 321, citing People v. Rish (2008) 163 Cal.App.4th 1370, 1380.)

The pendency of an appeal does not prevent the trial court from making subsequent changes or modifications to orders pertaining to the custody of a minor child. (Code Civ. Proc., § 917.7.) This statutory exception to the automatic stay provisions in the Code of Civil Procedure “may render one or more appeals taken from custody orders moot before they are heard . . . .” (Mancini v. Superior Court of Los Angeles County (1964) 230 Cal.App.2d 547, 555 [interpreting the predecessor to Code Civ. Proc., § 917.7]; see also In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317 [mother’s appeal from denial of petition to return child to her custody rendered moot by trial court’s subsequent order terminating parental rights].)

Appellant filed this appeal challenging the third amended restraining order with respect to its joint custody provisions. However, the trial court issued a fourth amended restraining order awarding appellant sole legal and sole physical custody of his child during the pendency of this appeal. In fact, the reply brief concedes that the trial court’s amended order “seems to have corrected the ultimate error of the court by giving sole legal and physical custody of the minor child to Appellant.” Since the order which appellant challenges is no longer in effect, appellant’s appeal from that order is moot and must be dismissed.

B. The Name Change Order Is Affirmed for Lack of an Adequate Record

Appellant also challenges the trial court’s order changing the name of his child. The exact nature of appellant’s objection to this order is unclear from the briefing. The trial court’s order changed the name of appellant’s child such that the minor child would bear the first name given by respondent, a middle name requested by appellant, and two last names reflecting the surnames of both appellant and respondent. From the record, it appears that the use of four names was a compromise proposed by appellant. Moreover, both appellant and respondent represented to the trial court that they had no objection to giving the child two last names reflecting their respective surnames. Thus, appellant’s objection appears directed to the trial court’s decision to retain the child’s first name as given by respondent. We deem this argument forfeited for failure to designate an adequate record.

“[T]he sole consideration when parents contest a surname should be the child’s best interest.” (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 647.) The court’s determination that a name change is in the best interest of a minor child is reviewed under the substantial evidence test. (In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 609-610; see also In re Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1055.)

However, “[w]here the appellant challenges the sufficiency of the evidence, the reviewing court starts with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s affirmative burden to demonstrate otherwise. [Citations.] . . . If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is forfeited.” (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 951; see also Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.)

In rejecting appellant’s request to change his child’s first name, the trial court cited to video evidence apparently showing that his child had become accustomed to being called by the first name given by respondent at birth. The record confirms that videos were presented to the trial court in conjunction with appellant’s testimony and that the trial court notified the parties that it reviewed these videos in reaching its decisions. Despite this, appellant did not designate the video evidence as part of the record on appeal. “‘Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.’” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) We therefore deem appellant’s argument forfeited and affirm the order of the trial court.

IV. DISPOSITION

Appellant’s appeal of the third amended restraining order dated March 12, 2018, awarding appellant and respondent joint custody of their child is dismissed. The trial court’s order filed on July 16, 2018, changing the name of appellant’s child is affirmed. Each party to bear its own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.