Filed 8/26/26 Marriage of Conte and Bailey CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re the Marriage of BARBARA CONTE H053037
and MICHAEL BAILEY. (Santa Clara County
Super. Ct. No. 2011-6-CP-000794)
BARBARA CONTE,
Respondent,
v.
MICHAEL BAILEY,
Appellant.
Former spouses Michael Bailey and Barbara Conte are engaged in a long-running
family law dispute over child custody and child support. Bailey appeals from the trial
court’s order denying his motion to modify a prior order. Because Bailey has neither
furnished an adequate appellate record nor affirmatively demonstrated that the trial
court’s ruling was erroneous, we affirm the trial court’s order denying his motion.
I. BACKGROUND
Even a sparse record makes clear that Bailey and Conte have been litigating
visitation and child support for their two children for more than a decade. The register of
actions alone comprises 111 pages of the 175-page clerk’s transcript. The subject of this
appeal is the trial court’s December 2024 denial of a motion filed by Bailey. In his
opening brief, Bailey represents that the motion he filed was a motion to modify child
support. Yet Bailey excluded from the record on appeal both his motion and the
operative child support order that he purportedly sought to modify.
The record does include a transcript of the December 2024 hearing on the motion.
At the hearing, the trial court observed that “numerous judicial officers” had already
“ruled on this issue”; thus, the trial court believed that the doctrine of “[r]es judicata”
applied. The trial court noted that one judge had relied on Schubert v. Superior Court
(1930) 109 Cal.App. 633 (Schubert) in making her ruling, and this ruling was in turn
“affirmed” by two other judges. The trial court thereafter declined to disturb any prior
orders and denied Bailey’s request for a long cause hearing and a statement of decision.1
After the trial court denied his motion, Bailey protested that the original child
support order had been based on “fraud” because Conte had for several years refused to
provide a tax return “and when she did, it showed that she’d … committed a fraud.”
Bailey also argued that the amount of child support ordered was “based on a business
that’s been defunct for 10 years.” Bailey explained that he had requested a long cause
hearing to further litigate these issues. Following Bailey’s arguments, the trial court
declined to reconsider its decision, stating that it too was following the “Schubert …
precedent.”
Shortly after the December 2024 hearing, Bailey filed a motion for reconsideration
and attested in a declaration that he had learned only after the hearing that legal doctrines
relied on by the trial court “are not codified in either federal or state law, and are not even
properly defined by the California Supreme [C]ourt.” Bailey represented in his motion
that both parties had undergone unspecified “substantial financial changes” in the six
1
Family Code section 3654 requires a statement of decision at the request of a
party if the court issues an “order modifying, terminating, or setting aside a support
order.” The provision’s plain terms do not extend to denials of motions to modify
support.
2
years since he filed what he represented was his last motion to modify support.2 Thus he
argued that res judicata should have been inapplicable to his case, and the trial court
should have declined to apply the Schubert precedent.
In March 2025, the trial court “dismissed” Bailey’s motion for reconsideration and
issued a separate written order reflecting its December 2024 denial of Bailey’s earlier
motion. The findings and order reiterated that the prior decisions were res judicata and
denied Bailey’s request for a statement of decision.3
II. DISCUSSION
On appeal, Bailey challenges the denial of his motion to modify child support,
asserting that the trial court abused its discretion by denying his request for a long cause
hearing and by concluding that res judicata precluded relief. But the appellate record that
Bailey has furnished is not adequate to support his claims, nor has he sufficiently
supported certain of his arguments with citations to the existing record and legal analysis.
“It is a fundamental principle of appellate procedure that a trial court judgment is
ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the
basis of the record presented to the appellate court, that the trial court committed an error
that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–
609 (Jameson).) Thus, “ ‘[the appellant] has the burden of providing an adequate record.
[Citation.] Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].’ ” (Id. at p. 609.) Here, the sparse record of what was
before the trial court dooms Bailey’s claims of error.
2
Bailey in his supporting declaration referred to “[r]es judicata” potentially being
inapplicable due to “circumstances [he] will present upon completion of discovery.”
3
Bailey initially appealed from the minute order denying his motion in December
2024. The trial court in ruling from the bench did not direct any party to prepare a
written order. The earlier minute order was thus appealable. (In re Marriage of Padilla
(1995) 38 Cal.App.4th 1212, 1216 [order denying motion to modify child support is
appealable].)
3
For example, in its ruling in December 2024, the trial court determined that
Bailey’s motion to modify child support was barred by res judicata. On appeal, Bailey
argues that res judicata is inapplicable to child support issues because a material change
in the parties’ circumstances may require modification of prior child support orders.
(See, e.g., In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357 [“courts will not
modify child or spousal support unless there has been a material change of circumstances
following the previous determination”]; Fam. Code, § 3651, subd. (a) [“a support order
may be modified or terminated at any time as the court determines to be necessary”
subject to exceptions].) Res judicata, or claim preclusion, bars “relitigation of the same
cause of action in a second suit between the same parties” (Mycogen Corp. v. Monsanto
Co. (2002) 28 Cal.4th 888, 896); issue preclusion, or collateral estoppel, “prevents
‘relitigation of previously decided issues,’ rather than causes of action as a whole”
(Samara v. Matar (2018) 5 Cal.5th 322, 327 (Samara)); and the two are at times
conflated (see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 826). We generally
agree with Bailey that material changes in the parties’ circumstances may warrant
modification of child support orders. We do not, however, discern in the limited record
Bailey has supplied any showing of a change of circumstances that would make
erroneous the trial court’s reliance on either issue or claim preclusion at the December
2024 hearing.
All that the record reflects is that the trial court obliquely stated that “the issue”
raised by Bailey had already been decided. But without Bailey’s motion, the order
targeted by that motion, and the guideline calculation on which it was based, we cannot
discern whether the trial court misapplied the preclusion doctrines. Assuming the trial
court applied issue preclusion to Bailey’s request to modify the support order, Bailey has
not shown that he proffered the “ ‘admissible evidence of changed circumstances’ ” that
are “ ‘a necessary predicate for modification’ ” of the support order. (In re Marriage of
Leonard (2004) 119 Cal.App.4th 546, 556.) Nor has he shown that the materials he
4
presented (if any) differed from those presented in earlier proceedings—if he proffered
no new evidence, the changed circumstances may indeed have already been litigated and
decided. (See Samara, supra, 5 Cal.5th at p. 327.) In fact, Bailey in his declaration
supporting his unadjudicated motion for reconsideration claimed that there would be
“circumstances [he would] present upon completion of discovery” to rebut the
application of “[r]es judicata,” which suggests he even then lacked evidence to support
his motion to modify.4 It is incumbent on Bailey to provide an adequate record for us to
assess error, and having failed to do so, we must presume that the trial court’s rulings
were correct. (Jameson, supra, 5 Cal.5th at pp. 608–609.)
The record likewise prevents us from assessing Bailey’s claim that the trial court
(either in December 2024 or in prior orders) erred in its application or reliance on
Schubert. In Schubert, the Second District held that a trial court could properly deny the
petitioner husband permission to examine his wife or introduce evidence on his motion to
modify an interlocutory divorce decree, when the petitioner had previously been
adjudged in contempt of interim child support orders in the same decree that he sought to
modify. (Schubert, supra, 109 Cal.App. at pp. 634–635; see also Stover v. Bruntz (2017)
12 Cal.App.5th 19, 32–33 [acknowledging that “a court may refuse assistance” in
modifying child support order for a party in “flagrant contempt of a court order”]; In re
Marriage of Cohen (2023) 89 Cal.App.5th 574, 580 (Cohen) [“ ‘[a] party to an action
4
As we have explained, Bailey’s omission of his motion to modify prevents us
from determining what evidence, if any, was properly before the trial court when it
denied the motion in December 2024. Generally, “an appellate court will consider only
matters that were part of the record at the time the judgment was entered.” (Arnett v. Dal
Cielo (1996) 14 Cal.4th 4, 29, fn. 15.) But even accounting for Bailey’s reconsideration
motion, the record would show no entitlement to relief. Bailey’s motion for
reconsideration supplies legal arguments, including his attempts to justify his prior
litigation decisions, but we cannot assess whether these issues were already litigated (and
decided) in prior motions or whether his arguments had already been raised and impliedly
rejected in the trial court in December 2024.
5
cannot, with right or reason, ask the aid and assistance of a court in hearing his demands
while he stands in an attitude of contempt to legal orders and processes of the courts of
this state’ ”]; but see Ramirez v. Superior Court (1977) 72 Cal.App.3d 351, 354–355
[trial court should consider evidence of a party’s inability to comply with court orders
because party’s inability to comply would render him or her not in contempt of court
order].)
We infer from the trial court’s reference to Schubert, supra, 109 Cal.App. 633 that
Bailey may have been found in contempt of the order that he sought to modify and was
then precluded by the trial court under Schubert from introducing certain evidence at the
December 2024 hearing.5 Bailey notes that Schubert predates the current statutory child
support scheme and disputes the propriety of broadly applying Schubert to disentitle any
contemnor—even one who makes a proper showing of materially changed circumstances
affecting the calculation of guideline support—from moving to modify a statutory child
support order. (See Code Civ. Proc., § 1218, subd. (b).) But Bailey has supplied none of
the relevant prior court rulings, the findings on which they were based, nor any record
that his motion to modify was based on materially changed circumstances and not
relitigation of the same ultimate facts underlying prior orders.6 Our duty is to “ ‘ “decide
actual controversies by a judgment which can be carried into effect, and not to give
5
In his opening brief, Bailey himself references “disputed allegations associated
with prior contempt proceedings.” The register of actions reflects that each party
prosecuted contempt allegations against the other and that in February 2019 at least one
party was found in contempt. But neither the operative orders to show cause on contempt
nor the judgment of contempt are part of the appellate record.
6
Nor has Bailey substantiated his claim that the trial court’s reference to Schubert
meant it failed to apply “best-interests and child-centered standards.” (Some
capitalization omitted.) If we gather from Bailey’s briefing and argument that his request
to modify child support was aimed at reducing his “first and principal obligation … to
support” the parties’ children financially, he does not otherwise explain how his
children’s interests would be served by his motion. (Fam. Code, § 4053, subd. (a).)
6
opinions … or to declare principles or rules of law which cannot affect the matter in the
issue in the case before it.” ’ ” (Association of Irritated Residents v. Department of
Conservation (2017) 11 Cal.App.5th 1202, 1223.) We cannot presume that the trial
court’s reliance on Schubert (or what Bailey suggests was the “unclean hands” doctrine)
was erroneous when we lack any basis to assess how the trial court applied the case to the
facts before it.7 We must therefore again presume the trial court’s application of
Schubert conformed to the law. (Jameson, supra, 5 Cal.5th at pp. 608–609.)
Nor has Bailey affirmatively shown that the court erred in denying his request for
a long cause hearing or for an evidentiary hearing. A long cause hearing is generally
defined “as a hearing on a request for order that extends more than a single court day.”
(Cal. Rules of Court, rule 5.393(a)(2).) But nothing in the record supports Bailey’s
request for a long cause hearing—because we do not have the motion requesting
modification of the child support order before us, it is unclear on what grounds Bailey
estimated a need for a hearing that extended for longer than a day.
Bailey argued at the December 2024 hearing that he wanted to litigate Conte’s
alleged 2014 fraud or the now-defunct business that was supposedly the basis of the prior
child support order. If Bailey showed that these matters had not already been
conclusively decided in prior proceedings, Family Code section 217 would require the
trial court to “receive any live, competent testimony that is relevant and within the scope
of the hearing and the court may ask question of the parties.” (Id., subd. (a).) But aside
from asserting his need for a longer hearing, Bailey neither asked to testify or examine
7
Bailey in his opening brief suggests that the trial court relied on the contempt
adjudication “to supplant the Legislature’s child-centered custody scheme” (italics
added)—not to foreclose modification of child support. Given the habitual intertwining
of the parties’ child custody and child support litigation that is reflected in the register of
actions and in the parties’ settlement discussions, we cannot rule out that the trial court’s
reference to Schubert at the December 2024 hearing related to some aspect of Bailey’s
omitted motion that may have related to custody.
7
witnesses at the December 2024 hearing nor made any offer of proof. (In re Marriage of
Binette (2018) 24 Cal.App.5th 1119, 1127 [right to live testimony under Fam. Code,
§ 217 can be forfeited].) And there is no record that Bailey filed a witness list. (See
Fam. Code, § 217, subd. (c) [party seeking to present live testimony of nonparties must
file and serve witness list with description of anticipated testimony].)
And even if we construe Bailey’s request for a long cause hearing as either a
request to testify himself or a request to examine other live witnesses, the trial court’s
denial of an evidentiary hearing implies that the court found good cause to refuse the
testimony. (Cohen, supra, 89 Cal.App.5th at p. 582; Fam. Code, § 217, subd. (b) [trial
court may make finding of good cause to refuse live testimony].)8 Absent a record of
what testimony Bailey sought to elicit (and what relief Bailey precisely sought in his
motion), we cannot determine whether the trial court’s implicit good cause finding was
erroneous, as “[a] trial court has the inherent authority and responsibility to fairly and
efficiently administer the judicial proceedings before it.” (California Crane School, Inc.
v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22.)
We do not reach the merits of Bailey’s remaining arguments, as they lack support
from either the record or reasoned legal analysis. For example, Bailey argues that the
existence of a bench warrant in this case and his physical absence from the country
should not prohibit him from seeking modification of the child support order. He also
argues that his invocation of the Fifth Amendment in response to inquiries about an
alleged inheritance cannot be treated as substantive proof of income, and he should not be
8
Factors relevant to deciding whether there is good cause to refuse live testimony
under Family Code section 217 include “[w]hether material facts are in controversy”
(Cal. Rules of Court, rule 5.113(b)(2)), “[w]hether live testimony is necessary for the
court to assess the credibility of the parties or other witnesses” (id., rule 5.113(b)(3),
“whether a party offering testimony from a non-party has complied with Family Code
section 217[, subdivision ](c)” (id., rule 5.113(b)(5)), and “[a]ny other factor that is just
and equitable” (id., rule 5.113(b)(6)).
8
penalized for any silence. Bailey also argues that the fugitive disentitlement doctrine
should not apply and that his remote participation in court hearings did not impair the
trial court’s ability to adjudicate “child-centered” issues like support. But Bailey cites
nothing in the record suggesting the court invoked the fugitive disentitlement doctrine or
faulted him for his remote appearances.9 (See Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246 (Nwosu) [factual references must be supported by citations to the record].)
Nor has he adequately explained how the trial court’s purported misapplication of these
legal principles would entitle him to relief. (Siskiyou Hospital, Inc. v. County of Siskiyou
(2025) 109 Cal.App.5th 14, 43 [failure to cite authority or provide reasoned legal analysis
forfeits claim on appeal].)
We recognize that Bailey is representing himself on appeal, but a party acting in
propria persona “ ‘is to be treated like any other party and is entitled to the same, but no
greater consideration than other litigants and attorneys.’ ” (Nwosu, supra,
122 Cal.App.4th at pp. 1246–1247.) And Bailey has not met his burden to demonstrate
the trial court erred in its ruling. (Jameson, supra, 5 Cal.5th at pp. 608–609.) An
inadequate record “will frequently be fatal to a litigant’s ability to have his or her claims
of trial court error resolved on the merits by an appellate court.” (Id. at p. 608.) As
Bailey has not presented an adequate record for us to assess error, he has not overcome
the presumption that the trial court’s rulings are correct.
9
The fugitive disentitlement doctrine is distinct from the principle announced in
Schubert. As its name implies, fugitive disentitlement “ ‘disentitles [a fugitive] defendant
to call upon the resources of the Court for determination of his claims.’ ” (Polanski v.
Superior Court (2009) 180 Cal.App.4th 507, 531.) It “is not an automatic rule but a
discretionary tool of the courts that may only be applied when the balance of all equitable
concerns leads the court to conclude that it is a proper sanction for a party’s flight.” (Id.
at p. 533; id. at pp. 537–550 [affirming trial court’s application of fugitive disentitlement
to defendant’s request to dismiss action under Pen. Code, § 1385].)
9
III. DISPOSITION
The order is affirmed. Respondent is entitled to her costs on appeal.
10
LIE, J.
WE CONCUR:
DANNER, Acting P. J.
CHUNG, J.
Conte v. Bailey
H053037
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.