Filed 9/13/17 Marriage of Caballero & Dearcia

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Enrique Camarena, Judge. Affirmed.

Law Office of Thomas A Lappin and Thomas A. Lappin, for Plaintiff and Appellant.

Garcia Law Firm and Dulce M. Garcia for Defendant and Respondent.

Sergio Caballero appeals from the family court's judgment on reserved issues in the dissolution of Caballero's marriage to Maria Del Carmen Dearcia, in which Caballero was found to be the father of a child born in 2005 during the parties' marriage (the Child). Caballero contends (1) the paternity finding is not supported by substantial evidence; and (2) his right to due process was infringed because the hearing on reserved issues was not reported by a court reporter and the family court's order containing the paternity finding lacked detail.

We conclude that Caballero's contentions lack merit, and we accordingly affirm the judgment on reserved issues.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The clerk's transcript provides only limited documents from the dissolution proceeding, namely the judgment of dissolution and the judgment on reserved issues. Those two documents indicate that Caballero and Dearcia were married in 1993 and separated in 2010. Further, as relevant here, the Child was born in 2005. The family court filed a judgment of dissolution on October 18, 2016.

Also on October 18, 2016, the family court filed a judgment on reserved issues, which indicated that a contested hearing had been held on August 23, 2016, during which both parties were present but were not represented by counsel. The judgment on reserved issues attaches a child custody and visitation order, in which the following findings are set forth, among others:

"c. [Dearcia] is in agreement [the Child] is not [Caballero]'s biological minor child, but [Caballero] holds himself out to be [the Child]'s father and he is the only father [the Child] has known.

"d. [Caballero]'s name is on the Birth Certificate and he was present at the birth.

"e. The court finds that Family Code section 7540 applies regarding the parentage of the minor child, and the parties were cohabitating. The court finds [Caballero] to be the father of [the Child]."

In addition to making the paternity finding, the family court ordered Caballero to pay child support for the Child.

Caballero retained an attorney and filed a notice of appeal from the judgment.

On October 31, 2016, counsel for Caballero filed a notice designating the record on appeal, in which he designated reporter's transcripts from hearings held on April 25, 2016, and August 23, 2016. On December 7, 2016, the superior court issued a notice informing the parties that the April 25, 2016 and August 23, 2016 hearings were not reported. The notice stated that an agreed statement or a settled statement could be used in lieu of a reporter's transcript. As described in the notice, the parties could file either (1) an agreed statement; (2) a stipulation stating that the parties are attempting to agree on a statement; or (3) a motion to use a settled statement. (See Cal. Rules of Court, rules 8.130(h), 8.134.) The notice also stated that if one of the three documents were not filed within 10 days of the mailing of the notice, the "appeal will proceed without a record of the designated oral proceedings that were not reported." There is no indication in the record that Caballero or his attorney took any steps to obtain an agreed statement or to file a motion to use a settled statement.

II.

DISCUSSION

Caballero seeks a reversal of the paternity finding and the corresponding child support order.[1]

As indicated in the judgment on reserved issues, the paternity finding was made pursuant to Family Code section 7540,[2] which states that "[e]xcept as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." (§ 7540.)[3] In section 7540, "the words 'wife cohabiting with her husband' have been judicially construed to mean cohabiting at the time of conception, not cohabiting at the time of birth." (Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1203.) In support of its paternity determination under this provision, the family court made the finding that "the parties were cohabitating."

Caballero contends that substantial evidence does not support the family court's finding that he was cohabitating with Dearcia at the time of conception. However, Caballero also recognizes that there is no record of what evidence was presented at the hearing on reserved issues. Because the record contains no indication of what evidence was presented, Caballero contends that we should either conclude that the finding of cohabitation is not supported by the evidence in the record or, alternatively, we should remand this matter to the family court for a new hearing to make an adequate record.

We reject Caballero's argument because it misapprehends his burden on appeal as the party challenging the judgment. It is the appellant's burden to provide an adequate record for appellate review of his claims. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Here, in the absence of a reporter's transcript, an agreed statement or settled statement indicating what evidence was presented on the issue of cohabitation, we presume that the evidence presented at the hearing supports the family court's finding that the parties were cohabitating at the time of the Child's conception.

Recognizing that the lack of a reporter's transcript makes it difficult for him to pursue his appeal, Caballero contends that his right to due process has been infringed due to "a lack of any reporting of the hearing and lack of detail in the Trial Court's Judgment." As we will explain, the argument lacks merit.

Caballero was not deprived of the right to have the hearing reported. The local rules of the San Diego County Superior Court state that official court reporters will not be provided in family law matters (with certain exceptions), but indicate that the parties "may arrange with a private provider for the appointment of an official court reporter pro tempore, in accordance with the court's mandatory procedures, for hearings at which the court does not provide an official court reporter." (Super. Ct. San Diego County, Local Rules, rule 5.1.8D.) Further, as Dearcia points out, the website for the San Diego County Superior Court provides extensive information about how to obtain a court reporter. In light of these procedures and resources, Caballero was not prevented from having a court reporter present at the hearing. Moreover, the right of a party to obtain appellate review, even in the absence of reporter's transcript, is protected by provisions in the California Rules of Court, which allow a party to obtain an agreed statement or a settled statement. (Cal. Rules of Court, rule 8.134.) Caballero was notified by the superior court that he could seek to obtain an agreed statement or a settled statement, but Caballero did not take advantage of those procedures. Thus, there is no basis for Caballero to contend that he was effectively deprived of the right to seek appellate review based on the absence of a reporter's transcript.

Caballero also has not established that, as he claims, the "lack of detail" in the family court's order deprived him of the ability to seek review on appeal. The family court's order provides all of the information necessary for an appellate review as to its legal and factual basis, as it properly identifies section 7540 as the legal authority for the paternity finding and expressly states the court's factual finding that the parties were cohabitating.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.