C.R. v. R.F. CA4/1

California Court of Appeal · D063732 · 2014-02-05 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. DS46436
Trial judge: Roderick W. Shelton
Outcome: affirmed — Affirmed.
Area: family
Panel: Cynthia Aaron (author), O'Rourke, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:56Z · confidence low

The trial court awarded the mother sole legal and primary physical custody of the child, granting the father supervised visitation and ordering conjoint therapy. The Court of Appeal affirmed the order, finding that the father failed to demonstrate insufficient evidence or abuse of discretion regarding the custody determination.

Ruling reviewed	Standard	The court	The model
Award of sole legal and primary physical custody to the mother (C.R.) and denial of unsupervised visitation to the father (R.F.). “We conclude that R.F. has failed to demonstrate that there is insufficient evidence to support the trial court's factual determinations, or that the trial court otherwise erred or abused its discretion with respect to its custody order.”	substantial evidence	correct	agree with court agree with court

Authorities

relied: In re Michael D. (2002) 100 Cal.App.4th 115 — Appellate courts do not make different findings of facts or second-guess the trier of fact; they determine if substantial evidence supports the conclusion.
relied: People v. Lashley (1991) 1 Cal.App.4th 938 — It is not the place of an appellate court to weigh the credibility of witnesses or make new factual determinations.
relied: City and County of San Francisco v. Funches (1999) 75 Cal.App.4th 243 — The appellant bears the burden of affirmatively showing prejudicial error.
relied: In re Marriage of Smith (1990) 225 Cal.App.3d 469 — There is a presumption that the court performed its duties in a regular and correct manner absent a clear showing to the contrary.

The appellate opinion: sound — The opinion correctly applies the substantial evidence standard to review the trial court's custody determination, noting that the appellate court cannot re-weigh witness credibility. It properly places the burden on the appellant to demonstrate error, which the appellant failed to do given the limited record.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The San Diego Superior Court awarded mother C.R. sole legal and primary physical custody of the parties' son E.F., denied father R.F. unsupervised visitation, granted him supervised visits on alternating Sundays, and ordered conjoint therapy. On R.F.'s pro per appeal arguing the court should have found C.R. intentionally harmed the infant when he fell off a bed, the Court of Appeal held R.F. had not shown insufficient evidence or abuse of discretion and affirmed.

Ruling reviewed	Standard	The court	The model
Award of sole legal and primary physical custody of E.F. to C.R., with supervised visitation and conjoint therapy for R.F. “R.F. has identified no legal error or abuse of discretion that would justify reversing the trial court's custody order.”	mixed	correct	agree with court The appellate court reviewed the factual underpinnings for substantial evidence and the custody order for abuse of discretion, placing the burden on the appellant to show prejudicial error. With no transcript of the March 19, 2013 hearing and uncontradicted evidence that C.R. had been the primary caretaker since birth without any record of abuse, the presumption of correctness controls and the result follows from the authorities cited. The court did not cite family-law custody authority (e.g., Montenegro v. Diaz) for the abuse of discretion standard, but the omission does not affect the result.
Implied factual finding crediting C.R.'s account that E.F.'s fall from the bed was accidental and rejecting R.F.'s claim that she purposely harmed the child “The trial court was free to find C.R.'s version of what occurred to be credible, including her denial that she purposely pushed her son off of the bed.”	substantial evidence	correct	agree with court R.F.'s argument asked the appellate court to reweigh conflicting testimony about a single incident. The trial court heard both parties and the child's counsel; a credibility determination resolved against the appellant cannot be disturbed on a cold record under settled substantial evidence principles. The court correctly declined to reweigh credibility.

Authorities

relied: In re Michael D. (2002) 100 Cal.App.4th 115 — An appellate court does not make different findings of fact or second-guess the trier of fact; it determines only whether substantial evidence supports the trier of fact's conclusion.
relied: People v. Lashley (1991) 1 Cal.App.4th 938 — A reviewing court reading a cold record may not substitute its judgment on credibility for that of the trier of fact who saw and heard the live witnesses.
relied: City and County of San Francisco v. Funches (1999) 75 Cal.App.4th 243 — The appellant bears the burden of affirmatively demonstrating prejudicial error.
relied: In re Marriage of Smith (1990) 225 Cal.App.3d 469 — A trial court is presumed to have performed its duties in a regular and correct manner absent a clear showing to the contrary.
missed: Montenegro v. Diaz (2001) 26 Cal.4th 249 — Child custody and visitation orders are reviewed for abuse of discretion under the best-interest-of-the-child standard; the controlling family-law statement of the standard of review the court applied without citing it.
missed: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment or order is presumed correct, all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown; the leading authority on the consequence of an incomplete record.

The appellate opinion: sound with gaps — The opinion correctly treats R.F.'s sole contention as a request to reweigh credibility and disposes of it under substantial evidence and presumption-of-correctness principles, which is the right answer on this record. It leaves gaps by borrowing standard-of-review authority from dependency and criminal cases rather than citing the Supreme Court's family-law custody standard (Montenegro v. Diaz) and by not expressly invoking the rule that an appellant who fails to provide a transcript of the challenged hearing cannot establish error.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 2/5/14 C.R. v. R.F. CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

C.R., D063732 Respondent, v. (Super. Ct. No. DS46436)

R.F., Appellant.

APPEAL from an order of the Superior Court of San Diego County, Roderick W.

Shelton, Judge. Affirmed.

R.F., in pro. per., for Appellant, R.F.

C.R., in pro. per., for Respondent, C.R.

INTRODUCTION

R.F., appearing in propria persona, appeals from a final order of the trial court awarding sole legal and primary physical custody of his son E.F to the child's mother, respondent C.R.1 The court's order grants R.F. supervised visits with E.F. on alternating Sunday afternoons, and orders him to participate in conjoint therapy with the child.

R.F. asserts that in granting C.R. sole legal and primary physical custody, the trial court erred in rejecting R.F.'s contention that C.R. purposely harmed E.F. when the child fell off of a bed one night when he was approximately four months old.

We conclude that R.F. has failed to demonstrate that there is insufficient evidence to support the trial court's factual determinations, or that the trial court otherwise erred or abused its discretion with respect to its custody order. We therefore affirm the trial court's order.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The record on appeal is extremely limited. As a result, the factual and procedural background will necessarily be brief.

E.F. was born on February 3, 2011. When E.F. was approximately eight months old, C.R., appearing in propia persona in the trial court, filed a petition to establish a parental relationship between R.F. and E.F., and for orders regarding custody and visitation.

It appears that the trial court entered a temporary custody and visitation schedule at some point, because the record contains evidence that R.F. had approximately five 1 C.R. did not file a responsive brief in this appeal.

2 supervised visits with E.F. between March 2012 and August 1, 2012, the date on which the first of multiple hearings regarding permanent custody and visitation occurred.

The court held a hearing on August 1, 2012, at which time the court permitted each of the parties to testify, and allowed them to ask questions of each other. At that hearing, the trial court appointed counsel for E.F. and continued the hearing for a week to allow the child's attorney to meet with each of the parties and discuss the matter with the court. Although the record does not contain a transcript of the August 7 proceedings, it appears that on that date the court again continued the hearing, to August 28, 2012. On August 28, the court heard from the attorney appointed to represent E.F. E.F.'s attorney informed the court that she had concerns about granting R.F. unsupervised visits with E.F., at least until R.F. underwent a full psychological evaluation. The trial court heard from both parties again, as well. At the conclusion of the hearing, the court ordered both R.F. and C.R. to undergo psychological examinations and continued the hearing to a date in December 2012. The record does not contain a transcript or minute order arising out of the December 2012 hearing.

The record does contain a copy of a minute order pertaining to a March 19, 2013 hearing.2 In that order, the trial court marked a box indicating that the court was awarding C.R. "sole legal" custody of E.F., and marked another box indicating that it was also awarding C.R. "primary" physical custody of E.F. The minute order further indicates that the trial court denied R.F.'s request for unsupervised visitation with E.F., 2 The record does not contain a transcript of this proceeding. 3 but granted R.F. supervised visits on alternating Sundays between 1:00 p.m. and 6:00 p.m. The court also ordered "conjoint therapy" to occur, presumably for R.F. and E.F.3 R.F. filed a timely notice of appeal from the trial court's March 19, 2013 order.

III.

DISCUSSION

R.F. takes issue with the trial court's decision to award C.R. sole legal and primary physical custody of E.F. He contends that "some crucial factors that have already been discussed above [in his appellate brief] were overlooked during the judgment,"

apparently referring to an incident in which E.F. fell off of a bed and hit his head while he was in the bedroom with C.R., when he was approximately four months old. R.F.'s argument appears to be that the trial court erred in rejecting R.F.'s contention that C.R.

purposely harmed the child during that incident. He suggests that C.R. was being dishonest when she described the event to the trial court, and contends that the trial court should not have awarded C.R. sole legal and primary physical custody of E.F. because this incident establishes that she purposely harmed the child, and therefore, is guilty of child abuse.

In making this argument, R.F. essentially attempts to reargue on appeal the facts concerning what happened on the evening of the incident. However, "our role as an appellate court is not to make different findings of facts or second-guess the trier of fact,"

3 The court's minute order does not specify the parties to which the "conjoint therapy" order is to apply. However, the order also refers to the therapist deciding the "number of visits and whether or not the half sister can attend," indicating that the court was referring to conjoint therapy between R.F. and E.F. 4 which in this case was the trial court. (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) "We only determine whether there is substantial evidence supporting the conclusion of the trier of fact." (Id. at pp. 126-127.) The evidence in this case demonstrates that C.R. has had primary physical custody of E.F. since his birth, and the record is devoid of any evidence that she has engaged in physical or emotional abuse of the child during that time.

With respect to the specific incident to which R.F. refers in his briefing—i.e., the child's falling off of a bed one night when he was approximately four months old—the trial court heard R.F.'s arguments and evidence, and also heard from C.R. regarding that event. The trial court was free to find C.R.'s version of what occurred to be credible, including her denial that she purposely pushed her son off of the bed. Again, it is not the place of an appellate court to weigh the credibility of witnesses or to make new factual determinations. (See People v. Lashley (1991) 1 Cal.App.4th 938, 946.) "[I]t would distort the process if this court, reading a 'cold' record, substituted its judgment for that of the trier of fact who saw and heard the live witnesses. Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact finder." (Ibid.)

We conclude that the record provides ample evidence to support the trial court's factual conclusions with respect to its custody determination.

R.F. has identified no legal error or abuse of discretion that would justify reversing the trial court's custody order. (See City and County of San Francisco v. Funches (1999)

75 Cal.App.4th 243, 244-245 [appellant bears burden of affirmatively showing 5 prejudicial error]). " 'We therefore heed "the well admonished rule of appellate review which finds a presumption that the court performed its duties in a regular and correct manner absent a clear showing to the contrary." [Citation.]' " (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 494 .)

IV.

DISPOSITION

The March 19, 2013 order of the trial court is affirmed.

AARON, J.

WE CONCUR:

O'ROURKE, Acting P. J.

IRION, J.

Cites, in this corpus

People v. Michael D. C036107 · 2002-07-16
City and County of San Francisco v. Funches A083926 · 1999-09-27
People v. Lashley B051701 · 1991-12-16
In Re the Marriage of Smith A042136 · 1990-11-20