T.W. v. M.S.
| Decision Date | 21 April 2023 |
| Docket Number | D080174 |
| Parties | T.W., Plaintiff and Respondent, v. M.S., Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No DN188889, James A. Mangione, Cynthia Freeland, Margo Lewis Hoy, and Victor M. Torres, Judges. Affirmed.
M.S in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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 over six years, leading to four separate appeals currently pending before this court.[1]
In this particular appeal, M.S., who is appearing in propria persona as he did throughout the trial court proceedings, seeks reversal of the August 11, 2021 order denying his petition for a domestic violence restraining order (DVRO) against T.W (Petition) under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).[2] M.S. claims the trial court applied the wrong legal standard and acted unreasonably when it refused to grant the Petition. He also claims a violation of his due process rights.[3]
As we explain, we disagree with M.S.'s claims of error and affirm the August 11 order.[4]
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 to be 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, an 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, noticeably absent from the clerk's transcript is M.S.'s Petition, including any supporting paperwork such as declaration(s) and/or the exhibits he lodged in support thereof.[6] (See Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 [ ].) Without these documents, it is nearly impossible for us to assess whether the court erred in denying the Petition.
M.S.'s failure to comply with the rules pertaining to preparation of the clerk's transcript has also led to rule violations relating to his appellate brief. Rule 8.204(a)(1)(C) requires a party filing a brief to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Here, M.S.'s brief includes myriad facts without citation to the record; and, to the extent such citations do exist, many of them refer to portions of the 36 "exhibits" M.S. lodged in support of the instant appeal and the appeals in the related cases.
Moreover, M.S. also has failed to comply with rule 8.204(a)(2)(C), which requires an appellant to "[p]rovide a summary of the significant facts limited to matters in the record." Here, M.S. essentially concedes his summary of "significant facts" is one-sided and in violation of this rule, as he recounts what he considers to be the "tru[e]" facts, as opposed to setting forth all material facts, both favorable and unfavorable to his position. (See Nwosu, supra, 122 Cal.App.4th at p. 1246 [].)
Despite the insufficiency of the record, M.S.'s failure in his brief to summarize all material facts with proper citations to the record, and his confusing brief that at times lacks coherent legal argument, in the interest of justice we will do our best to address his claims of error in this appeal, relying on the clerk's transcript he provided in this particular appeal[7] and the reporter's 14-page transcript from the August 11, 2021 hearing, in which the trial court denied the Petition for a permanent DVRO.[8]
During their short relationship, M.S. and T.W. had a child, C., born in August 2016. Litigation between the parties began shortly after C.'s birth. In June 2018, T.W., on behalf of herself and C., obtained a DVRO against M.S. for a three-year term, which included no visitation between M.S. and C. After a four-day bench trial in February 2021, the trial court on March 30 issued a final statement of decision and ruling (SOD), which was subsequently incorporated into the Judgment.
M.S. filed his petition on July 20, 2021. The trial court denied M.S.'s request for a temporary restraining order, and set a hearing for August 11 on his request for a more permanent restraining order.
At the outset of the August 11 hearing, M.S. moved to admit four unidentified exhibits and a transcript from the June 20, 2018 hearing in which the trial court had issued the DVRO in favor of T.W. and C. When the trial court inquired of the relevancy of the June 20 transcript, M.S. responded, "[I]t's all part and parcel of a long history of parental alienation of lies, deceit, [and] perjury" by T.W. The court admitted the four exhibits into evidence but sustained T.W.'s objection to admission of the June 20 transcript.
M.S. then reviewed the history of the parties' litigation, including findings made by the trial court in connection with the June 2018 DVRO in favor of T.W. and C., and those allegedly[9] made in the SOD and resulting Judgment.
With regard to the latter, M.S. argued the trial court had found T.W. showed a "lack of judgment" by involving M.S.'s older child L. in the parties' custody dispute over C.; that T.W. had hired a private investigator who in turn contacted L.'s mother in Africa through a social media account, offering to "help" L.'s mother obtain custody of L.; that in finding these posts "disturbing," the court concluded T.W. was "not credible" when she claimed to have been unaware of the existence of them; and that it found "strong evidence" T.W. would never support a relationship between M.S. and C.
In further support of his Petition, M.S. argued that T.W. had lied to medical professionals about C.'s condition after the child had suffered a seizure, putting C.'s "safety in jeopardy"; and that T.W. had acted improperly in seeking to suspend M.S.'s visitation with C. over a "dog-bite issue" that the child allegedly suffered while in M.S.'s care, which injury M.S. instead claimed had been caused by a "palm frond." Based on this history, M.S. argued T.W. was doing everything possible to alienate him from C., thus supporting issuance of a DVRO against T.W.
Ruling from the bench, the trial court denied M.S.'s Petition. In so doing, it found that M.S.'s Petition was merely a "continuation of the ongoing custody dispute" between the parties; that, because there was no "physical contact" by T.W. against M.S., it was required to consider "whether or not there's been a destruction of [M.S.'s] peace of mind"; and that the evidence proffered by M.S. was insufficient to make this showing. The court memorialized its decision in an August 11, 2021 minute order.
Under this statutory scheme, (Curcio v. Pels (2020) 47 Cal.App.5th 1, 11 (Curcio).)
In August 2021 when the trial court denied M.S.'s Petition subdivision (c) of former section 6320[10] defined "disturbing the peace of the other party," as provided in subdivision (a) of this statute, in part to mean ...
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