Filed 9/28/18 Danny R. v. Priscilla R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Salvador Sarmiento, Judge. Affirmed.

Law Offices of Zulu Ali, Zulu Ali and Kyle Ritchie for Plaintiff and Appellant.

Hulsy & Hulsy and William M. Hulsy for Defendant and Respondent.

* * *

Plaintiff Danny R. appeals from a domestic violence restraining order that (1) requires him to stay away from his ex-girlfriend, defendant Priscilla R., for a period of five years and (2) dictates the terms under which Danny may visit their minor child.[1] Finding no error, we affirm the order.

I

FACTS AND PROCEDURAL HISTORY

A. Priscilla’s Testimony

The parties have failed to provide this court with a complete record, so our recitation of the facts is rather limited. The following factual summary is based solely on Priscilla’s testimony from September 8, 2016, and not on the testimony of the various other witnesses who were called to testify, including Danny.

According to Priscilla, she and Danny were in a relationship, and she got pregnant. In March 2015, while pregnant, Priscilla was injured in a car accident, and the right side of her body became temporarily paralyzed. For months after the accident, Priscilla required physical assistance to engage in basic life activities, such as walking, getting in and out of bed, using the restroom, eating, and bathing. Priscilla could have moved in with her family after the accident, but Danny did not want her to do that because she was holding his “property” — that is, his unborn baby. Priscilla therefore moved in with Danny at his parents’ house, where she lived for the next nine months until December 2015. Their baby was born in September 2015 while she was still living there.

Danny and his mother generally helped Priscilla get around and care for herself. There were a number of instances, however, when Danny became upset with Priscilla and refused to assist her. For example, on one occasion, after an argument, Danny refused to take Priscilla to the restroom, despite her repeated requests. On another occasion, when he was helping her shower, he got upset at something she said and let go of her, allowing her to fall; Priscilla hit her head on the tub, passed out, and woke up in the hospital.[2] On a third occasion, Danny became upset that Priscilla had gone to dinner with her mother, so he refused to help Priscilla enter the house or use the restroom.

Danny also restricted Priscilla’s movement and her interactions with others. For example, he once locked her in their bedroom without her wheelchair for a couple of hours. On a different occasion, he left her in their bedroom and told her, “‘Good luck getting out,’” which made her afraid. He became upset if she communicated with her family, and he took her phone away for hours at a time to prevent her from talking to her sisters. After the baby was born, Danny took the baby away from Priscilla if she tried to communicate with or visit her family members. At times he also took her phone and deleted her e-mails, impersonated her and sent messages to her contacts, and e-mailed screenshots of the phone’s contents to himself using her e-mail account.

The situation came to a head in December 2015 when Danny refused to let Priscilla or their baby attend her family’s Posada (a Christmas event) in December 2015. Priscilla attempted to go anyway, but Danny instructed his family members to remove her from the car. After being put in the car and then being removed from the car several times by various people at the scene, Priscilla eventually was able to leave. She moved out of Danny’s parents’ house that same day.

Her relationship with Danny did not improve after that. On one occasion, when they saw each other in court, Danny knelt down to Priscilla (who was in her wheelchair), pointed his finger in her face, and told her, “‘[y]ou will be sorry,’” which intimidated and frightened her.

B. Procedural History

Priscilla sought a domestic violence restraining order against Danny. Pending the hearing, the trial court ordered that Priscilla would have temporary custody of the child and that Danny may have supervised visitation with the child on Tuesdays, Thursdays, and Saturdays from 10:00 a.m. to 1:00 p.m., with his parents serving as the supervisors.

Between June and October 2016, the trial court heard the testimony of multiple witnesses (including Priscilla, Danny, the parties’ family members, and their friends) over the course of multiple days. The trial court ultimately concluded that Danny had committed acts of domestic violence against Priscilla, and it issued a domestic violence restraining order that directed Danny not to harass, attack, strike, threaten, assault, hit, follow, stalk, molest, impersonate, contact, or attempt to locate Priscilla for a period of five years. The trial court also ordered Danny to attend a 12-week anger management program. The court continued its previous child custody and visitation order, stating that until the next court order, Danny shall have supervised visitation on Tuesdays, Thursdays, and Saturdays from 10:00 a.m. to 1:00 p.m., with his parents serving as the supervisors. At the hearing, the trial court advised Danny that he may request a modification of the custody and visitation order after he completes the anger management classes.

Danny appealed the order, asserting that the trial court abused its discretion by (1) issuing the restraining order without adequate evidence of abuse and (2) by issuing the child custody and visitation order without considering the best interest of the child. For the reasons set forth below, we affirm.

II

DISCUSSION

A. The Incomplete Record on Appeal Precludes a Finding of Error.

As a preliminary matter, Danny’s failure to provide a complete record to this court is fatal to his appeal. Before issuing the order in question, the trial court apparently heard the testimony of multiple witnesses (including Priscilla, Danny, the parties’ family members, and their friends) over the course of multiple days between June and October 2016. However, the only testimony included in the record on appeal is Priscilla’s testimony from September 8, 2016.[3]

An order of the lower court is presumed correct, and an appellant must affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An incomplete record of the oral proceedings bars an appellant from claiming the evidence was insufficient to support the order in question. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [if defendants “elected not to provide a reporter’s transcript of the trial proceedings,” they “have no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court’s finding that injunctive relief was necessary”]; Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 977 [“Without a complete record, we are unable to determine whether substantial evidence supported the implied findings underlying the trial court’s order”]; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178 [appellant “elected not to designate an adequate record for this court to evaluate his claim of error regarding the sufficiency of the evidence,” so “we presume the judgment . . . is correct”]; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [“‘Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]’”].)

Here, Danny included Priscilla’s testimony in the record on appeal, but he omitted his own testimony and that of the parties’ family members and friends. His opening brief at times cites to his own testimony, which is not part of the appellate record. [4] On this limited record, we cannot determine that the trial court committed an abuse of discretion and instead “must presume the trial court acted properly.” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 576 [affirming domestic violence restraining order where appellant failed to provide transcript of relevant oral proceedings in trial court].)

B. The Limited Record on Appeal Indicates the Trial Court Did Not Abuse Its Discretion By Issuing the Domestic Violence Restraining Order.

Even if we were to set aside the above defects and look to the merits of Danny’s appeal based on the limited record before us, the result would be the same. We review the trial court’s issuance of a domestic violence restraining order for abuse of discretion. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782.) In reviewing the evidence, we apply the substantial evidence standard of review, meaning we review whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, supporting the trial court’s finding. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) We must accept as true all evidence tending to establish the correctness of the trial court’s findings, resolving every conflict in favor of the judgment. (Ibid.) “[T]he pertinent inquiry is whether substantial evidence supports the court’s finding—not whether a contrary finding might have been made.” (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)

Looking at the evidence before us, we conclude that the trial court did not abuse its discretion in issuing the domestic violence restraining order. The Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.)[5] (the Act) authorizes the issuance of a domestic violence restraining order if testimony demonstrates to the court’s satisfaction “reasonable proof of a past act or acts of abuse.” (§ 6300.) “Abuse” under the Act includes not only physical abuse or injury, but also conduct that destroys the mental or emotional calm of the other party. (§ 6203; see, e.g., Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 822 [“acts of isolation, control, and threats were sufficient to demonstrate the destruction of [pregnant ex-girlfriend’s] mental and emotional calm” and constituted “abuse” within the meaning of the Act]; In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1419 [husband’s acts of downloading and disseminating wife’s text messages constituted “abuse” under the Act]; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496-1497 [accessing, reading, and publicly disclosing wife’s confidential e-mails amounted to “abuse” under the Act].) “Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under this statutory scheme.” (Marriage of Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 702.)

Priscilla’s testimony constituted the requisite substantial evidence that she had suffered abuse within the meaning of the Act. That abuse included not only acts that resulted in physical injury (e.g., when Danny allowed her to fall in the shower and hit her head), but also a slew of behavior that destroyed Priscilla’s mental and emotional calm (e.g., locking her in her bedroom when she was unable to move on her own, threatening her, refusing to assist her with basic needs, and accessing her phone’s contents without permission). The trial court therefore did not abuse its discretion in issuing the domestic violence restraining order against Danny.

C. We Find No Error in the Order’s Child Custody and Visitation Provisions.

Danny also appeals the order’s child custody and visitation provisions, but it is not clear that those provisions are appealable. Temporary custody and visitation orders are not appealable (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1089-1090; Lester v. Lennane (2000) 84 Cal.App.4th 536, 561-564), and here, it does not appear that the order’s custody and visitation provisions were final. The order specifies that the terms of visitation shall continue “[u]ntil the next court order.” Further, the minute order from the hearing states that “[u]pon completion of [the] Anger Management Program, father may request a modification of current orders.” Indeed, the trial court specifically told Danny at the hearing, “[W]hen and if you complete [the 12-week anger management] courses, you can come back to court and ask the court to modify the present custodial periods.” All this suggests that the custody and visitation provisions of the order were only temporary and thus not appealable.[6]

Even if the custody and visitation provisions of the order are appealable, however, we find no error. “The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) When determining the best interest of the child, relevant factors include the health, safety, and welfare of the child, and any history of abuse by one parent against the other parent, among other things. (§ 3011.) “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child . . . , there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.” (§ 3044, subd. (a).) Here, the trial court’s finding that Danny was the perpetrator of domestic violence supported the court’s custody and visitation order.

III

DISPOSITION

The order is affirmed. Priscilla shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.