Filed 11/6/26 Marenco v. Gonzalez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
WALLESKA MARENCO,
F090639
Plaintiff and Respondent,
(Super. Ct. No. 20CEFL02502)
v.
IVAN GONZALEZ, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. Pahoua Lor,
Judge.
Ivan Gonzalez, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and DeSantos, J.
INTRODUCTION
Representing himself, defendant and appellant Ivan Gonzalez (father) challenges
the final custody and visitation order granting plaintiff and respondent Walleska Marenco
(mother) full legal custody of their minor son (minor). Father argues that the trial court
erred when it issued the order because it failed to properly consider the evidence,
including an incident report, videos, and photographs. He also argues the court made
inconsistent accusations against him.
The appellate record is inadequate for review. We have no reporter’s transcript of
the hearings regarding child custody and visitation, where the minute order reflects the
trial court heard testimony from the parties and received evidence. Because no transcript
of these proceedings exists, nor was the totality of the evidence introduced at the hearings
provided in the appellate record, our ability to review the proceedings below is limited.
From what is of the record, there is ample evidence supporting the court’s order.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2021, the trial court ordered joint legal and physical custody of the parties’
minor child. On May 30, 2025, father filed a request for a temporary emergency order
modifying child custody. He specifically requested full legal custody and educational
rights of the parties’ six-year-old son. Father alleged that mother failed to inform law
enforcement of suspected child abuse of minor at public school and requested that minor
be homeschooled. Father also requested a full refund of spousal support.
In support of his claim, father included photographs of scratches on minor’s arm
and messages from school personnel regarding the incident. School personnel claimed
minor obtained the scratches while he was playing on the playground. Father’s request
was accompanied by an affidavit setting forth the reasons why he believed homeschool
was appropriate for minor. The affidavit also alleged neglect, alcoholism, and abuse on
behalf of mother.
2.
Father’s request was further supported by a transcript of a verbal exchange on
March 21, 2022, between father and mother wherein mother stated she was “drunk” when
she dropped off minor to father. An undated transcript of a verbal exchange between
minor and father stated minor told father that a teacher was mad and scratched his arm.
Father failed to include any requests, declarations, or documents concerning
custody and visitation filed by mother on this issue. 1
On October 9 and 21, 2025, a trial was held at which both parties appeared,
offered testimony, and introduced evidence. 2 There is no indication in the record that
either party requested an official court reporter. A copy of the reporter’s transcript from
the trial is not part of the appellate record. The minute order further shows that several
videos and statements were introduced as evidence, which are also not part of the
appellate record.
At the conclusion of the trial, the trial court found that there was a material change
in circumstance regarding the parties’ ability to co-parent and communicate and found it
necessary to have one parent have sole decision-making responsibility. The court
concluded that mother is the parent more willing to co-parent, communicate, and inform
father of what is going on with minor. Thus, the court modified the current custody order
and granted mother sole legal custody, providing mother with the right and responsibility
to make decisions in matters relating to the health, education, and welfare of minor and
the ability to select all schools, health care providers, childcare providers, and
counselors. 3
1 The minutes of hearing indicate mother filed a declaration and admitted several
documents, however, none of mother’s filed documents, nor any documents mother
introduced at the trial were provided to us on appeal.
2 Over father’s objection, the trial date was continued because the court ran out of
time at the first hearing on October 9, 2025, to hear the entirety of the evidence.
3 While the trial court modified the current custody order and granted mother with
sole legal custody, the court provided both father and mother with joint physical custody
3.
Father appealed the October 2025 order. Mother did not file a respondent’s brief
in this appeal. The clerk of this court advised mother in writing of her failure to file a
respondent’s brief and notified her that “if respondent’s brief is not on file or good cause
for relief shown within 15 days after the date of [the] notice, the appeal may be submitted
for decision upon the record and the appellant[’s] opening brief.” No such brief having
been filed and no good cause for relief having been shown, we now decide the appeal on
the record, the opening brief, and any oral argument by father. 4 (Cal. Rules of Court, rule
8.220(a)(2).) 5
DISCUSSION
Father contends the trial court erred in granting sole legal custody to mother,
allowing her to have the right and responsibility to make decisions in matters relating to
the health, education, and welfare of minor, because it failed to properly consider the
evidence. We conclude the record is inadequate for appellate review of this issue, but
even on the limited record presented, the trial court did not err. (See Keim v. Roether
(1939) 32 Cal.App.2d 70, 73 [on an appeal from the judgment roll, the clerk’s transcript
alone, findings are conclusively presumed to be supported by the evidence and the
judgment will not be reversed except for some fatal error appearing on the face of the
record].)
of minor with a detailed visitation schedule. On the court’s own motion, the court
changed the exchange location to the police department and ordered father to undergo
individual counseling. The court denied father’s request to modify spousal support.
4 The failure to file a respondent’s brief is not treated as an admission of error,
rather, we must examine the record, appellant’s brief, and any oral argument by appellant
to see if it supports any claims of error. (In re Marriage of Riddle (2005) 125
Cal.App.4th 1075, 1078, fn. 1; see In re Bryce C. (1995) 12 Cal.4th 226, 232–233.)
5 Undesignated rule references are to the California Rules of Court.
4.
A. Principles of Appellate Practice
We begin by summarizing the standards that apply to appeals. These standards
apply where the parties represent themselves, as father does here, and to appeals where
parties obtain counsel to represent them. (Barton v. New United Motor Manufacturing,
Inc. (1996) 43 Cal.App.4th 1200, 1210 [a party appearing in pro per is “treated like any
other party and is entitled to the same, but no greater consideration than other litigants
and attorneys”].)
Orders challenged on appeal are presumed to be correct, and it is the appellant’s
burden to affirmatively show that the trial court erred. (Denham v. Superior Court (1970)
2 Cal.3d 557, 564.) It is also the appellant’s burden to show prejudice (i.e., reversible)
error occurred. (Hogue v. Hogue (2017) 16 Cal.App.5th 833, 835, fn. 1.)
An appellant must “support claims of error with meaningful argument and citation
to authority.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) When an
appellant fails to raise a point or asserts it but fails to support it with reasoned argument
and citations to authority, the appellate court treats the point as waived. (Ibid.; see also
Potter v. Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 911; In re A.C. (2017) 13
Cal.App.5th 661, 672.) It is also the responsibility of the appellant to support arguments
in his brief with appropriate reference to the record. (Air Couriers Internat. v.
Employment Development Dept. (2007) 150 Cal.App.4th 923, 928 [the reviewing court
has “no duty to search the record for evidence and may disregard any factual contention
not supported by proper citations to the record”]; see also rule 8.204(a)(1)(B); (a)(2)(C)
[appellant’s opening brief must state each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible, by citation
of authority, and must include a summary of significant facts limited to matters in the
record].) Finally, the appellant must provide an adequate record for review, and failure to
do so requires that the issue be resolved against him. (Oliveira v. Kiesler (2012) 206
Cal.App.4th 1349, 1362.)
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B. Applicable Law and Standard of Review
Under California statutes governing child custody and visitation rulings, “the
overarching concern is the best interest of the child.” (Montenegro v. Diaz (2001) 26
Cal.4th 249, 255.) Once a final judicial custody determination is in place, a party who
desires to modify a permanent custody order can do so only if he shows a “significant
change of circumstances justifying a modification.” (Id. at p. 256.) The changed-
circumstance rule provides, “ ‘that once it has been established that a particular custodial
arrangement is in the best interests of the child, the court need not reexamine that
question. Instead, it should preserve the established mode of custody unless some
significant change in circumstances indicates that a different arrangement would be in the
child’s best interest. The rule thus fosters the dual goals of judicial economy and
protecting stable custody arrangements.’ ” (Ibid.)
An appellate court reviews a child custody order under the deferential abuse of
discretion test. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “Under this test,
we must uphold the trial court ‘ruling if it is correct on any basis, regardless of whether
such basis was actually invoked.’ ” (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.)
A challenge to the trial court’s factual findings is limited to whether there is any
substantial evidence, contradicted or uncontradicted, which supports the court’s ruling.
(Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 300.) We resolve evidentiary
conflicts in favor of the prevailing party and draw all reasonable inferences to support the
judgment rather than disturb it. (Ibid.) The appellant has the burden of setting forth all
relevant evidence, and not merely his own evidence; the failure to do so results in
forfeiture of the appellant’s claim. (Delta Stewardship Council Cases (2020) 48
Cal.App.5th 1014, 1072; Mountain Lion Coalition v. Fish & Game Com. (1989) 214
Cal.App.3d 1043, 1051, fn. 9.)
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C. Analysis
Father contends the trial court failed to properly consider the evidence when it
granted sole legal custody to mother. His only contention is that the court failed to
consider evidence of the Fresno Police Department incident report, indicating that mother
allegedly drove intoxicated with minor, dropped minor off at 1:00 a.m., and failed to
properly consider the videos, photographs, and “other evidence favorable” to him. Father
does not develop his argument beyond listing these assertions. He cites no legal authority
to support his argument or citation to the record.
Arguments in appellate briefs must be supported by argument and, if possible, by
citation of authority. (Rule 8.204(a)(1)(B).) It is not the appellate court’s role to
construct arguments that would undermine the judgment and defeat the presumption of
correctness. (See Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 565
[party improperly left the appellate court to decode what amounts to “little more than ‘ “a
bare assertion that the judgment, or part of it, is erroneous” ’ ” and so its argument cannot
prevail].) We will not furnish argument or search the record to ascertain whether there is
support for father’s contentions. (See Mansell v. Board of Administration (1994) 30
Cal.App.4th 539, 545–546; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922,
963.) On this basis alone, father’s claim should be rejected.
To the extent father argues substantial evidence does not support the trial court’s
order, he misapplies the applicable substantial evidence standard of review. An appellate
court begins with the presumption that the record contains evidence to sustain every
finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) A
presentation of only certain evidence is not the demonstration contemplated under the
rule. Father only cites evidence and inferences favorable to his position. He states
nothing about the evidence that mother had shown, nor did he include any requests or
declarations concerning custody and visitation that were filed by mother. Thus, his claim
is forfeited by his presentation of only his own argument and evidence, and his failure to
7.
provide a record that is adequate to show error. Father omitted information that the trial
court reviewed and considered—specifically statements and testimony from the parties
and filings made by mother pertaining to custody. (See Gonzalez v. Rebollo (2014) 226
Cal.App.4th 969, 977 [failure to provide adequate record prevents appellant from
prevailing on substantial evidence challenge].)
Moreover, in claiming that the trial court disregarded certain evidence, father asks
us to reweigh the evidence, a task which we will not do. The question before us is
whether there is substantial evidence to support the trial court’s order, not whether the
evidence might support a different result. (Schmidt v. Superior Court (2020) 44
Cal.App.5th 570, 581.)
No abuse of discretion appears on this record. Nothing in the trial court’s order
suggests that it failed to consider the evidence, including the Fresno Police Department
incident report, videos, photographs, and the other evidence presented by the parties. In
fact, the trial minutes show that the court considered all relevant evidence and testimony.
Based on the evidence before the court, which included evidence that father objected to
minor attending school despite inconclusive evidence showing minor obtained scratches
at school, the court concluded that there was a material change in circumstance
warranting mother have sole legal custody of minor. 6 The court found that father was not
cooperating in coparenting, and it was in minor’s best interest to have mother be the sole
decision-maker since mother was willing to coparent, communicate, and inform father of
minor’s well-being. Based on the record before us, we find no error in the court’s order.
As a final note, we appreciate the oral argument presented by father. We
emphasize, however, that as an appellate court our review is generally “confined … to the
proceedings which took place in the court below and are brought up for review in a
6 We again note that we are not privy to the parties’ arguments at trial, nor do we
have any of mother’s documents that were purportedly filed on this issue.
8.
properly prepared record on appeal.” (USLIFE Savings & Loan Assn. v. National Surety
Corp. (1981) 115 Cal.App.3d 336, 343.) “Allegations of fact relative to transactions at a
trial which are not in the record, but only in the briefs, cannot be considered by an
appellate court.” (Dryer v. Dryer (1964) 231 Cal.App.2d 441, 451.) Consequently,
without a record, we cannot determine what evidence was before the trial court, what
arguments were made, and whether error occurred, as father claims.
DISPOSITION
The October 21, 2025 custody order is affirmed.
9.