Thunder v. McKelvy
Filed 3/2/12
Thunder v. McKelvy 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(San
Joaquin)
----
SOMARI THUNDER,
Respondent,
v.
MARLO L. McKELVY,
Appellant.
C065753
(Super.
Ct. No. FL343773)
Following a bench
trial of Marlo L. McKelvy’s application to obtain
daughter from the girl’s father, Somari Thunder, the court found the child “is
doing well in the primary care of her Father” and declined to modify a 2008
order to grant physical custody to McKelvy.
In this pro se
judgment roll appeal, McKelvy contends, among other things, that the trial
court failed to consider “pertinent information,” based its decision on
“erroneous information” provided by mediators, and committed reversible error
in refusing to “return” her daughter. We
find no error and shall affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
McKelvy has
elected to proceed on a clerk’s transcript (Cal. Rules of Court, rule 8.122;
further rule references are to the Cal. Rules of Court), and without a record
of the oral proceedings in the trial court.
Accordingly, the
facts we glean from the record on appeal are limited.
McKelvy is the
mother of two children: a 12-year-old
son by another father, and an eight-year-old daughter from her marriage to
Thunder.
In 2008 both
children were living with McKelvy.
McKelvy was then arrested for causing corporal injury to her son; he was
placed in foster care while McKelvy underwent counseling and parenting
education.
After McKelvy lost
custody of her son, her daughter was also removed from her custody; physical
custody was awarded to Thunder, with McKelvy having supervised visitation.
When McKelvy’s son
was returned to her custody, she initiated the instant proceedings to modify
the existing custody order to eliminate the supervised
visitation requirement and transfer sole legal and physical custody of her
daughter to her. McKelvy asserted
Thunder had “willfully and intentionally thwarted [her] right to have [their]
daughter returned to [her]” and interfered with visitation. The court issued an order to show cause, and
the matter was set for hearing.
Thunder opposed
McKelvy’s request. He denied opposing
McKelvy’s visits, although he expressed concern about her rages, her failure to
complete the child abuse curriculum as well as the therapy required by the case
plan imposed after she lost custody of her son, and her refusal to take
responsibility for the behavior which also led to her losing custody of her
daughter. Thunder also averred that his
daughter is happy, well-adjusted, and an excellent student while living with
him.
A hearing was held
at which both parties appeared and were represented by counsel, the transcript
of which is not in the record on appeal.
The trial court found the parties’ daughter “is doing well in the
primary care of her Father. He has
provided a stable environment as was reflected by her school performance. [¶]
The Court adopts the Mediator’s recommendation with additional time
allotted to the Mother[.]” The court
issued an order granting McKelvy joint legal custody, joint physical custody
“with Primary to the Father,” and unsupervised visitation.
McKelvy’s motion
for reconsideration was unavailing.
DISCUSSION
I. Standard of Review
On appeal, a
judgment or order of the trial court is presumed to be correct, and all
intendments and presumptions are indulged to support it on matters as to which
the record is silent. Thus, an appellant
has the burden to affirmatively demonstrate reversible error. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.)
Because McKelvy
has provided only a clerk’s transcript of the proceedings, we treat this as an
appeal “on the judgment roll.” (
1079, 1082; Krueger v. Bank of America
(1983) 145 Cal.App.3d 204, 207.) When an
appeal is on the judgment roll, we must conclusively presume evidence was
presented that is sufficient to support the court’s findings. (Ehrler
v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler).) 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; rule
8.163.)
II. McKelvy has Not Shown Reversible
Error
McKelvy insists on
appeal that her daughter “belongs home with her mother” and “there was no legal
reason not to return her to my care at the same time as my son was
returned.” She argues on appeal that the
court failed to consider some relevant evidence and based its decision on
“erroneous information.”
Given the state of
the record on appeal, we cannot entertain these arguments. It is the burden of the party challenging a
judgment on appeal to provide an adequate record to assess error. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1140–1141.) Thus, an appellant must not only present an
analysis of the facts and legal authority on each point made, but must also
support arguments with appropriate citations to the material facts in the
record. If she fails to do so, the
argument is forfeited. (
(1999) 72 Cal.App.4th 849, 856.)
Because McKelvy
fails to provide any record of the trial preceding the order from which she
appeals, she cannot direct our attention to the evidence she contends should
have been considered, or the information she contends was erroneous. As a result, we cannot assess her challenges
to evidence the trial court considered.
Instead, as we explained, we “‘must conclusively presume that the
evidence is ample to sustain the [trial court’s] findings . . . .’ [Citations.]”
(Ehrler, supra, 126 Cal.App.3d at p. 154.)
Indeed, nothing on
the face of the record suggests the trial court erred. Family Code section 3020, subdivision (a)
declares that “the health, safety, and welfare of children shall be the court’s
primary concern in determining the best interest of children when making any
orders regarding the physical or legal custody or visitation of children.” The trial court’s order suggests the court
had this standard in mind when it declined to grant McKelvy primary or sole
physical custody.
McKelvy suggests
the court made two other “reversible” errors; neither assertion has merit.
First, she asserts
the trial court mis-set the date of the hearing for December 24, 2009. But the hearing on the order to show cause
was apparently continued and actually occurred on May 21, 2010; McKelvy
does not show she suffered any prejudice from the originally scheduled date.
Next, she argues
the court failed to determine issues in its statement of decision. The record contains no statement of decision,
and no suggestion the trial court prepared one.
Nor does McKelvy cite any authority to support her suggestion it was
obliged to do so. A court trying a
question of fact must issue a statement of decision explaining the factual and
legal bases for its decision on the principal controverted issues at trial if
any party appearing at trial makes a timely request. (Code Civ. Proc., § 632.) Such a statement of decision must be in
writing, unless the parties appearing at trial agree otherwise or the trial is
concluded in less than one calendar day or less than eight hours over more than
one day, in which case the statement of decision may be made orally on the
record in the presence of the parties. (
The trial here apparently lasted one day or less, and the lack of a
reporter’s transcript prevents McKelvy from establishing that a statement of
decision was requested.
In sum, we
conclude McKelvy failed in this appeal to demonstrate error “on the face of the
record” sufficient to warrant reversing the order. (Cf. rule 8.163.)
DISPOSITION
The order is
affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
BUTZ , J.
