Filed 4/9/21 S.B. v. W.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

S.B.,

Plaintiff and Appellant,

v.

W.B.,

Defendant and Respondent.

F080028

(Super. Ct. No. 07CEFS02501)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Robert 

Mangano, Judge.

S.B., in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOooIn this child custody dispute, the child’s mother, S.B., appeals from an order of the 

trial court granting sole legal and sole physical custody of the child to W.B., the child’s 

father. The order also granted to S.B. visitation and/or parenting time with her child on 

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
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two weekends per month. S.B. claims the trial court abused its discretion because there 

was no showing of changed circumstances to permit the court to modify the parties’ 

preexisting joint custody arrangement. However, fatal to S.B.’s appeal is the fact that she 

has failed to provide this court with an adequate record from which to meaningfully 

evaluate the merits of her claim of error. In view of this basic failure, S.B.’s burden as 

the appellant remains unmet and the presumption that the order of the trial court is correct 

prevails. Accordingly, while we provide some guidance to the parties with respect to 

future modification requests, the order of the trial court is hereby affirmed.

FACTS AND PROCEDURAL HISTORY

The parties are the mother and father of a minor daughter, born in 2006. In 2008, 

after W.B. stipulated he was the child’s biological father, the trial court ordered W.B. to 

pay child support. At that time, the trial court initially ordered joint legal and physical 

custody, “with mother having primary custody.” Although the record is far from clear, it 

appears this custody arrangement was ordered pursuant to stipulation of the parties. 

At various times, the trial court continued or confirmed this joint custody 

arrangement by subsequent orders, including an order issued on July 12, 2018. By the 

time of that order, W.B. had requested a contested hearing on the issue of child custody. 

The trial court granted the hearing request. However, the trial court postponed the 

contested hearing on child custody because the court decided it would be best to first 

have a resolution of the matter of whether S.B. was guilty of contempt for willful 

violation of the trial court’s existing custody and visitation order. 

On January 3, 2019, following a hearing on an order to show cause regarding 

contempt, S.B. was found to be guilty on several counts of contempt of court for willfully 

violating the trial court’s prior custody and visitation order. 

A contested hearing on child custody was held on May 30, 2019. Both parties 

appeared and testified. Additionally, the trial court and the parties received a report and 

recommendation prepared by the family court mediator. At the conclusion of the 
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hearing, the trial court stated it would follow the mediator’s recommendations. On May 

30, 2019, the trial court issued its order regarding child custody, visitation and parenting 

time. The May 30, 2019 order granted to W.B. sole legal and sole physical custody of 

the parties’ daughter, while S.B. was to have parenting time/visitation on the first and 

third weekends of each month. 

Following an unsuccessful motion for reconsideration,1 S.B. then filed the present 

appeal challenging the validity of the May 30, 2019 custody order. We note that no 

respondent’s brief has been filed herein; therefore, we shall proceed to decide the appeal 

on the existing record, the opening brief, and the argument presented by appellant. (See 

Cal. Rules of Court, rule 8.220(a)(2).) 

DISCUSSION

I. Standard of Review

A request for modification of child custody is ordinarily subject to the changed 

circumstances rule. As our Supreme Court has explained: “Once the trial court has 

entered a final or permanent custody order reflecting that a particular custodial 

arrangement is in the best interest of the child, ‘the paramount need for continuity and 

stability in custody arrangements—and the harm that may result from disruption of 

established patterns of care and emotional bonds with the primary caretaker—weigh 

heavily in favor of maintaining’ that custody arrangement. [Citation.] In recognition of 

this policy concern, we have articulated a variation on the best interest standard, known 

as the changed circumstance rule, that the trial court must apply when a parent seeks 

modification of a final judicial custody determination. [Citation.] Under the changed 

circumstance rule, custody modification is appropriate only if the parent seeking 

modification demonstrates ‘a significant change of circumstances’ indicating that a 

1 The motion for reconsideration was denied because there were no new facts, 

circumstances or law presented. That denial is not challenged in the present appeal.
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different custody arrangement would be in the child’s best interest. [Citation.] Not only 

does this serve to protect the weighty interest in stable custody arrangements, but it also 

fosters judicial economy. [Citation.]” (In re Marriage of Brown & Yana (2006) 37 

Cal.4th 947, 956.) 

However, the changed circumstances rule does not apply unless there has been a 

final or permanent custody order (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256), such 

as where a custody determination has been made after a contested evidentiary hearing on 

the merits. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1360.) Where there 

was only a temporary pretrial order, or where the order was a stipulated custody order 

that was not intended as a final or permanent custody determination, the rule is not 

triggered. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 258; see, e.g., In re Marriage of 

Lewin (1986) 186 Cal.App.3d 1482, 1487–1488.) 

The standard for appellate review of custody determinations is deferential abuse of 

discretion. (Montenegro v. Diaz, supra, 26 Cal.4th 249, 255; In re Marriage of Burgess

(1996) 13 Cal.4th 25, 32.) Accordingly, the trial court’s ruling will not be disturbed on 

appeal unless a clear abuse of discretion has been shown. (Messer v. Messer (1968) 259 

Cal.App.2d 507, 509.) We view the evidence and the reasonable inferences that may be 

drawn therefrom in the light most favorable to the prevailing party. (Ibid.) In general, 

the test for abuse of discretion is whether the trial court exceeded the bounds of reason, 

all the circumstances before it being considered. (In re Marriage of Connolly (1979) 23 

Cal.3d 590, 598.) Additionally, an abuse of discretion will be found if the trial court 

applied the wrong legal standard to the issue at hand. (Paterno v. State of California

(1999) 74 Cal.App.4th 68, 85.) 

II. S.B.’s Failure to Meet Fundamental Burden on Appeal

Here, S.B. argues the trial court was required to apply the changed circumstances 

rule but failed to do so when child custody was modified under the court’s May 30, 2019 

order. Additionally, there was allegedly no evidence presented at the May 30, 2019 
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hearing that was sufficient to constitute a substantial change of circumstances. For these 

reasons, S.B. argues the trial court abused its discretion. 

Preliminarily, we note that S.B. has provided no analysis or discussion on the 

threshold question of whether the former custody order— which had provided for joint 

legal and physical custody of the parties’ daughter—was intended to constitute a final or 

permanent determination on custody. The prior order as iterated in 2018, a copy of 

which is included in the appellate record, is not clear or explicit on that point. Arguably,

the considerable length of time during which the parties’ joint custody arrangement had 

been maintained (i.e., since 2008) would be a factor suggesting a final custody order was 

intended, rather than one that was temporary or provisional. (See Montenegro v. Diaz, 

supra, 26 Cal.4th at p. 259 [conduct of the parties may indicate whether prior order was 

intended as a final judgment as to custody]; Burchard v. Garay (1986) 42 Cal.3d 531, 

538 [“When custody continues over a significant period, the child’s need for continuity 

and stability assumes an increasingly important role.”].) 

In any event, assuming there was a final custody order in place, we are unable to 

evaluate the merits of S.B.’s claim of error due to the inadequacy of the record on appeal. 

For example, we do not know whether the trial court made findings as part of the record 

below. The May 30, 2019 custody order does not indicate whether the trial court applied 

the changed circumstances rule or not, nor does it state what the dispositive factual 

grounds were for that order or whether there were any changed circumstances justifying a 

modification of custody.2 The corresponding minute order is similarly unrevealing. It 

merely indicates the trial court decided to follow the report and recommendation of the 

2 S.B. could have, but apparently did not, request a statement of decision that would 

have required the trial court to explain the factual and legal basis for its decision. (See

Code Civ. Proc., § 632; Fam. Code, § 3022.3.) Although the trial court was not required 

to set forth the reasoning for its ruling in its written order, it would have been helpful on 

appeal given that we do not have the benefit of a reporter’s transcript.
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mediator, but it tells us nothing of the standard applied by the trial court or what 

particular facts or circumstances were found to exist that may have been dispositive. 

Since neither the May 30, 2019 custody order nor the corresponding minute order 

establish that the trial court failed to apply the changed circumstances rule, it is necessary 

to consider the remainder of the record on appeal. However, for several reasons, that 

record is incomplete and inadequate to demonstrate the error asserted by S.B. in her 

appeal. Importantly, the record on appeal does not include either a reporter’s transcript or 

a settled statement to provide this court with a record of the oral testimony and argument 

presented at the May 30, 2019 contested hearing. Without such information, this court 

cannot ascertain whether the trial court failed to apply the correct standard or whether any 

evidence of changed circumstances was presented at the hearing. In addition, we have 

not been provided other relevant documents, such as W.B.’s trial brief and exhibits 

submitted in connection with the May 30, 2019 contested hearing. 

By order augmenting the appellate record, this court recently obtained from the 

superior court clerk a copy of the confidential mediator’s report and recommendation 

submitted at the hearing. That document was transmitted to this court in a manner to 

preserve its confidentiality. As noted, according to the minute order of the contested 

hearing, the trial court adopted the mediator’s report and recommendation. 

Unfortunately, however, based on our careful review of that document, it does not shed 

light on or otherwise assist this court in ascertaining the standard applied by the trial 

court or the evidentiary basis or grounds for the trial court’s ruling.

We note that S.B.’s demeanor at oral argument reflected a mother who loves her 

minor child and cannot understand why the custody arrangement concerning her child, 

who primarily resided with S.B. since the child’s birth in 2006 under a joint custody 

arrangement, was dramatically altered. She asserts that the trial court did not adequately 

explain why it changed custody.
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This court is not unsympathetic to S.B.’s lament. However, as a reviewing court, 

our options are limited. On this record, we have no way of knowing the standard that 

was applied or the dispositive factual ground for the trial court’s ruling. According to the 

argument in S.B.’s opening brief on appeal, the trial court improperly modified custody 

based solely on fabricated information that her daughter’s grades in school were 

suffering, but we have no way of knowing from the record on appeal that the daughter’s 

grades were one of the grounds, much less the sole ground, for the trial court’s May 30, 

2019 custody order. In conclusion, the record on appeal is incomplete and materially 

inadequate as we have explained above, and as a result we are unable to meaningfully 

review (i) whether the trial court failed to apply the changed circumstances rule, or 

(ii) whether there was insufficient evidence presented at the hearing to show changed 

circumstances. As more fully explained below, this basic failure by S.B. to provide an 

adequate record to support her appeal requires that we affirm the order of the trial court. 

A fundamental principle of appellate procedure is that a judgment or order of the 

trial court is presumed to be correct, and thus an appellant has the burden to demonstrate, 

on the basis of the record presented to the appellate court, that the trial court committed a

reversible error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; 9 Witkin, 

Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409.) “All intendments and presumptions 

are indulged to support [the order appealed from] on matters as to which the record is 

silent, and error must be affirmatively shown.” (Denham v. Superior Court, supra, at 

p. 564, italics added.) That is, “[i]n the absence of a contrary showing in the record, all 

presumptions in favor of the trial court’s action will be made by the appellate court. ‘[I]f 

any matters could have been presented to the court below which would have authorized 

the order complained of, it will be presumed that such matters were presented.’ ”

(Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) “This general principle of appellate 

practice is an aspect of the constitutional doctrine of reversible error.” (Foust v. San Jose 

Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) “ ‘A necessary corollary to 
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this rule is that if the record is inadequate for meaningful review, the appellant defaults 

and the decision of the trial court should be affirmed.’ ” (Gee v. American Realty & 

Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) “Consequently, [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].”

(Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) As 

recently summarized by our Supreme Court, where the order appealed from resulted from 

an evidentiary hearing or trial, the “lack of a verbatim record of such proceedings” such 

as a reporter’s transcript will ordinarily 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.” (Jameson v. 

Desta (2018) 5 Cal.5th 594, 608.) “This is so because 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.” (Id. at pp. 608–609, italics added.) 

Based on the foregoing authority, S.B.’s appeal cannot succeed. Her failure to 

provide an adequate record on appeal means that she failed to meet her fundamental 

burden as the appellant to affirmatively demonstrate reversible error, and accordingly, the 

presumption that the order of the trial court is correct prevails. Therefore, on this record, 

the order of the trial court must be affirmed.

Additionally, although unnecessary to our decision, we observe the record before 

us discloses a possible basis to support a change of circumstances. As previously noted, 

the trial court’s register of actions indicates that S.B. was found guilty of contempt of 

court for failing to abide by the terms of the prior custody and visitation order. In fact, 

the trial court postponed the contested hearing on custody to allow the contempt 

proceedings to be completed. It is recognized that deliberate interference with the 

visitation rights of the noncustodial parent may constitute a change of circumstances that 
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would justify a modification of custody. (In re Marriage of Wood (1983) 141 

Cal.App.3d 671, 682; Speelman v. Superior Court (1983) 152 Cal.App.3d 124, 132; See

Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 907; Moffat v. Moffat (1980) 27 

Cal.3d 645, 652.) We do not know if this was the basis for the court’s order.3 Even so, 

our disposition of this appeal is based on the failure to provide an adequate record.

III. Additional Proceedings Not Precluded

Because past custody orders entered in this matter, including the May 30, 2019 

order appealed from, failed to disclose the legal standard being applied by the trial court 

and also failed to indicate whether a permanent custody order was intended, it is possible 

the trial court’s May 30, 2019 order was not intended as a permanent custody order. If it 

was merely intended as a temporary expedient and not a permanent custody order—for 

example, to encourage S.B. to more consistently show up on time to the scheduled dropoff and pick-up times—then any future modifications might be sought by either party 

under the best interests of the child standard. (Montenegro v. Diaz, supra, 26 Cal.4th at 

pp. 256, 258 [change of circumstances rule only applicable if there is a final or permanent 

custody order].) Because of its significance to the rights of the parties, we believe that if 

any subsequent modification request is made by either party in the trial court concerning 

the custody order, the trial court should at its earliest opportunity clarify whether the May 

30, 2019 custody order was intended to constitute (i) a permanent custody order that 

cannot be changed unless a showing of changed circumstances were to be made, or (ii) a 

3 During oral argument, S.B. described circumstances pertaining to reasons she was 

tardy on several occasions in delivering their child to W.B. at precise times and having to 

contend with reports to law enforcement by W.B. when she was tardy. We do not know 

whether the court below relied upon breaches of its order as a primary reason for 

removing legal custody and limiting visitation.
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nonpermanent custody order that may be modified under the ordinary best interests of the 

child standard.

Regardless of whether the May 30, 2019 order was intended by the trial court to 

constitute a permanent custody order, we note that either party may seek modification of 

his or her parenting time and/or visitation time in the trial court under the best interests of 

the child standard without needing to show a change of circumstances. (In re Marriage 

of Lucio (2008) 161 Cal.App.4th 1068, 1072, 1077; Enrique M. v. Angelina V. (2004) 

121 Cal.App.4th 1371, 1378–1382; accord, In re Marriage of Birnbaum (1989) 211 

Cal.App.3d 1508, 1513.)

DISPOSITION

Because S.B. has failed to affirmatively demonstrate a reversible error based on an 

adequate record, the trial court’s custody order is affirmed. S.B. must bear her own costs 

on appeal.