Ballard v. Tuimavave

Filed 6/26/08 Ballard v. Tuimavave CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Jonathan Ballard (Father) appeals from a family law judgment ordering him to pay $91 per month in child support through the Department of Child Support Services (DCSS) to Danguole Tuimavave (Mother) for their minor child.^[1] For the reasons that follow, we shall affirm.

Father has elected to proceed on a clerks transcript. (Cal. Rules of Court, former rule 8.120, now rule 8.121.) Thus, the appellate record does not include a reporters transcript of the trial in this matter, or of any other hearing. This is referred to as a judgment roll appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The limited record we have establishes the following:

On April 12, 2004, Father filed a Petition to Establish Parental Rights seeking to his establish his parental rights as to a child not yet born.

On August 8, 2004, that child was born and on August 24 Father filed an Order to Show Cause, seeking to establish his parental rights, change the childs name, and to include his name on the childs birth certificate. Fathers request was dropped from the courts calendar.

Nearly two years later, on March 20, 2006, Father filed another Order to Show Cause. This time, Father sought custody of and visitation with the minor child. He also requested reimbursement for his attorney fees. Father again asked the court to change the minor childs name.

Eight days later, Father filed another Order to Show Cause, again seeking an order for custody and visitation. Included in this request, however, was a request for numerous temporary orders regarding the custody of the minor child. The court denied Fathers request for temporary orders and set the matter for a hearing.

On May 8, 2006, the court heard fathers request for custody and issued an order adopting the mediators recommended parenting plan, pursuant to which Mother was awarded temporary legal and physical custody of the minor child. Father was granted visitation but his visitation was limited to supervised visits. He was also ordered to submit to a psychological evaluation.

The issue of custody went to trial in July 2006. After hearing testimony from witnesses and considering the evidence submitted by both parties, the court again adopted the mediators recommended parenting plan. At Fathers request, the court also ordered paternity testing. The matter was continued on the issues of paternity and Fathers psychological evaluation.

In October 2006, the parties returned to court. At the conclusion of that hearing, the court modified its order for custody permitting Father to have his visits with the minor child supervised by a mutually agreed upon third party agency.

Paternity was then established in November 2006, when the parties again appeared before the court. At that hearing the court adopted Dr. Nelsons report without modification.^[2] The court also modified its prior order for custody, now requiring that all of Fathers visits with the minor child be supervised by a third party agency.

Then, on February 6, 2007, a Judgment Regarding Parental Obligations (Governmental) was filed in the trial court. Pursuant to that judgment, Father was obligated to pay to Mother, through the DCSS, $91 per month as child support. The issue of Fathers arrears was reserved for a future hearing.^[3] It is from this judgment that Father appeals.

DISCUSSION

On appeal, we must presume the trial courts judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must present an analysis of the facts and legal authority on each point made, and must support the analysis with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

When an appeal is on the judgment roll (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the courts findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)

These restrictive rules of appellate procedure apply to Father even though he is representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelsonv.Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

On the record in this appeal, we find no error.

Father claims the trial court erred in denying him custody of the parties minor child and in denying Fathers request to change the minor childs name. The judgment from which Father appeals, however, does not address either of these issues. Accordingly, the issues are not properly before this court and we cannot consider them.

Father also asks this court to reverse any action by the lower court that may appear to have taken any right away from me. Father misunderstands the role of this court. It is not the province of an appellate court to act as counsel for either party to an appeal by prosecuting a search of the record for the purpose of discovering errors not pointed out in the briefs. (County Nat. Bank & Trust Co. v. Sheppard (1955) 136 Cal.App.2d 205, 223.) His request that we do so must therefore be rejected.

DISPOSITION

The trial court judgment is affirmed. Father shall

reimburse Mother for her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

SIMS , Acting P.J.

We concur:

DAVIS , J.

RAYE , J.

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^[1]Father failed to name DCSS, a real party in interest, in this appeal.

^[2]Dr. Nelsons report is not part of the record on appeal. It appears from Fathers subsequent motion to disqualify Judge Winn, which is part of the record, that Dr. Nelson is the psychologist who conducted Fathers psychological evaluation. Presumably the report adopted by the court in November 2006 is the written report of the psychological evaluation conducted by Dr. Nelson.

^[3]On March 8, 2007, the trial court ruled that Father owed $10,448 in child support arrears, payable through the DCSS.