Candy People v. Tyron H. CA4/1

California Court of Appeal · D068463 · 2016-01-25 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. ED92287
Trial judge: Darlene White (commissioner)
Outcome: affirmed — Affirmed.
Area: family
Panel: Patricia D. Benke (author), Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:54Z · confidence high

The trial court modified a child custody order from sole physical custody to shared physical custody, applying the best interest standard rather than the significant change in circumstances standard. The Court of Appeal affirmed, holding that the trial court did not abuse its discretion because the prior order was not final, and the appellant failed to provide a transcript to demonstrate error.

Ruling reviewed	Standard	The court	The model
Jurisdiction to review the temporary child custody order “We conclude that this court has jurisdiction to review this disputed child custody order on appeal.”	unclear	correct	agree with court The court resolved a conflict between Lester v. Lennane and Enrique M. v. Angelina V. in favor of the latter, citing Montenegro v. Diaz to support review of fluid custody disputes following adversarial hearings. This aligns with the principle that orders requiring future reevaluation are not final for appeal purposes.
Application of the best interest standard versus the significant change in circumstances standard “we therefore conclude the trial court did not abuse its discretion when it applied the best interest of the child standard.”	abuse of discretion	correct	agree with court The court relied on Montenegro v. Diaz to determine that because the prior order was not final (expressly reserved for modification and noted as not a 'Montenegro order'), the significant change in circumstances standard did not apply. The court correctly noted that the appellant failed to provide a transcript, shifting the burden to the judgment roll where the presumption of correctness applies.
Exchange location, time zone selection, and elimination of the no drinking order “we must assume the trial court's reasoning was correct and therefore affirm its order.”	abuse of discretion	correct	agree with court The court affirmed these specific determinations based on the presumption of correctness due to the absence of a reporter's transcript. Under the judgment roll standard, the appellant failed to affirmatively show error, so the trial court's rulings stand.

Authorities

relied: Montenegro v. Diaz (2001) 26 Cal.4th 249 — The significant change in circumstances standard applies only after a final judicial custody order; in fluid custody disputes, the best interest standard applies.
relied: Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371 — A contested child custody order is appealable even if temporary, provided it meets certain requisites.
relied: In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 — A judgment or order is presumed correct on appeal.
relied: Ketchum v. Moses (2001) 24 Cal.4th 1122 — It is the burden of a party challenging a judgment on appeal to provide an adequate record to assess error.
relied: Allen v. Toten (1985) 172 Cal.App.3d 1079 — In the absence of a reporter's transcript, the appeal is treated on the judgment roll.
relied: Ford v. State of California (1981) 116 Cal.App.3d 507 — On the judgment roll, error must be affirmatively shown, and all presumptions support the judgment.
relied: Nwusu v. Uba (2004) 122 Cal.App.4th 1229 — A self-represented party is entitled to the same, but no greater, consideration than other litigants.
relied: Lester v. Lennane (2000) 84 Cal.App.4th 536 — Some authority supports the proposition that temporary child custody orders are not appealable.

The appellate opinion: sound — The opinion is sound because it correctly applies the Montenegro v. Diaz framework to distinguish between final and non-final custody orders, thereby justifying the use of the best interest standard. It also properly applies the judgment roll presumption of correctness due to the appellant's failure to provide a transcript.

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 trial court modified a May 2014 custody order, under which Candy P. had sole physical custody of her son in Arizona, to an alternating-week equal parenting arrangement with Tyron H., applying the best interest standard after finding the prior order was not a final "Montenegro" order; it also set exchange locations, applied California time for exchanges, and eliminated a no-drinking order. The Court of Appeal held the order appealable under Enrique M., treated the appeal as on the judgment roll because Candy supplied no reporter's transcript, found no abuse of discretion in applying the best interest standard rather than the changed circumstances rule, and affirmed.

Ruling reviewed	Standard	The court	The model
Threshold question whether the order modifying a custody order after a contested hearing is appealable “We conclude that this court has jurisdiction to review this disputed child custody order on appeal.”	de novo	correct	agree with court Appealability is a question of law. The court acknowledged contrary authority (Lester v. Lennane) but followed its own precedent in Enrique M. holding that a custody order following a contested hearing is appealable, and Montenegro itself reviewed a non-final, fluid custody order. The reasoning and authorities support the conclusion.
Modification of physical custody from sole custody in Candy to alternating-week equal custody using the best interest standard rather than requiring a significant change in circumstances “Based on the judgment roll record in this case, we therefore conclude the trial court did not abuse its discretion when it applied the best interest of the child standard.”	abuse of discretion	correct	agree with court Montenegro holds the changed circumstance rule applies only after a final judicial custody determination, and the trial court expressly stated in both orders that they were not final ("not a Montenegro order"), reserved the right to alter custody, and anticipated a further change at kindergarten. On a judgment-roll record every intendment favors the order. The result is defensible, though the court did not address Burchard v. Garay's rule that a prior judicial custody determination (as opposed to a stipulation) ordinarily triggers the changed circumstance rule, nor the alternative ground in Enrique M. that a change in timeshare percentage is not a change of custody requiring changed circumstances. Choice of legal standard is arguably reviewed de novo, but the outcome would be the same.
Setting exchange locations, applying California time for exchanges, and eliminating the no-drinking order “In the absence of any record regarding the evidence before the court on these issues, we must assume the trial court's reasoning was correct and therefore affirm its order.”	abuse of discretion	correct	agree with court Without a reporter's transcript or any record of the evidence, the presumption of correctness under Arceneaux and the judgment-roll rules of Ford v. State of California compel affirmance; Candy carried the burden to supply a record showing error and did not.

Authorities

relied: Montenegro v. Diaz (2001) 26 Cal.4th 249 — Custody orders are reviewed for abuse of discretion; the changed circumstance rule applies only after a final judicial custody determination, and an order anticipating further change (e.g., at kindergarten) is not final; otherwise the best interest standard governs.
relied: Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371 — A child custody order following a contested hearing is appealable.
relied: Lester v. Lennane (2000) 84 Cal.App.4th 536 — Temporary custody orders are not appealable (acknowledged as contrary authority but not followed).
relied: In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 — A judgment or order is presumed correct on appeal.
relied: Ketchum v. Moses (2001) 24 Cal.4th 1122 — The appellant bears the burden of providing an adequate record to assess claimed error.
relied: Allen v. Toten (1985) 172 Cal.App.3d 1079 — Absent a reporter's transcript or other record of oral proceedings, the appeal is treated as on the judgment roll.
relied: Ford v. State of California (1981) 116 Cal.App.3d 507 — On a judgment-roll appeal error must appear on the face of the record, all intendments favor the judgment, and sufficiency of the evidence is not reviewable.
relied: Nwosu v. Uba (2004) 122 Cal.App.4th 1229 — A self-represented litigant is held to the same rules of appellate procedure as a party represented by counsel.
missed: Burchard v. Garay (1986) 42 Cal.3d 531 — The changed circumstance rule applies once there has been a judicial custody determination; the court should have addressed whether the May 2014 order after a contested hearing was such a determination notwithstanding the trial court's label that it was not a Montenegro order.

The appellate opinion: sound with gaps — The opinion correctly resolves appealability under its own precedent, applies the proper deferential standard and judgment-roll presumptions, and reasonably reads Montenegro to make the best interest standard applicable where the trial court expressly declined to make a final custody determination. It skips Burchard v. Garay's rule that a judicial (as opposed to stipulated) custody determination normally triggers the changed circumstance rule, and does not note the alternative ground that a timeshare adjustment short of a change of custody does not require changed circumstances, so it is defensible but incomplete.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 1/25/16 Candy P. v. Tyron H. 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

CANDY P., D068463 Defendant and Appellant, v. (Super. Ct. No. ED92287)

TYRON H., Plaintiff and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Darlene White, Commissioner. Affirmed.

Candy P., in pro. per., for Defendant and Appellant.

Vera Livingstone for Plaintiff and Respondent.

Defendant Candy P. appeals from an order modifying a child custody order. We affirm. FACTUAL AND PROCEDURAL HISTORY In May 2014, following a contested child custody hearing between Candy, mother of then-two-year-old Dominic H., and Tyron H., Dominic's father, the court issued an order in which the court (1) awarded joint legal custody to both parents and physical custody to Candy, (2) allowed Candy to move with Dominic to Arizona, and (3)

authorized child visitation with Tyron in San Diego on alternate weekends and holidays.

In the order, the court expressed concerns Candy's behavior was "borderline harmful" and noted that Candy had room for improvement with respect to cooperating and communicating with Tyron. The court emphasized that if Candy's performance did not improve, it would consider a change of custody to Tyron. The court stated that its ruling did not constitute "a Montenegro order."1 In October 2014, Tyron brought a motion to modify custody and visitation, contending Candy had been secretive and misleading about her contact information, and had failed to apprise Tyron of Dominic's medical and educational information. After holding a contested hearing, including taking extensive testimony from both parents, the court determined in its May 2015 order that Candy was not communicating or cooperating with Tyron, had not enrolled Dominic in organized day care or preschool, and lacked stability in her residency and employment. The court found Candy's testimony regarding her living and working situations "contradictory, confusing and untruthful." In contrast, the court noted that Tyron had exercised visitation regularly, had 1 Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro). 2 the ability to meet Dominic's needs, and had a good relationship with him. The court also stated that Tyron had stable employment, a residence, and family in San Diego.

Citing Family Code sections 3011, 3020-3021 and 3040,2 the court considered the child's best interest, including which parent is better able to meet the child's health, safety and welfare, whether the parents are able to share the child and whether either parent frustrates the child's relationship with the other parent. The court noted that no significant change in circumstances was required to alter custody under Montenegro.

The court decided it would be in Dominic's best interest to make "changes in the custodial arrangement, but not to make full changes in custody." The court determined that Candy should not retain sole physical custody and determined an equal parenting arrangement was appropriate, with each parent having custody during alternating weeks.

The court considered the travel required and noted that the amount of travel and the number of exchanges would remain unchanged. The court acknowledged that this new order would necessitate Dominic's longer absences from Candy and his attendance at two separate preschools. The court also recognized the need to modify the custody arrangement in a few years when Dominic enters kindergarten. The court stated that this ruling also did not constitute "a Montenegro order."

2 These sections of the Family Code require the court to ascertain the best interest of the child. (See also Montenegro, supra, 26 Cal.4th at p. 256.) 3 DISCUSSION A. Jurisdiction In response to Candy's appeal, Tyron contends that this temporary child custody order is not appealable. Although there is some authority supporting this proposition (see Lester v. Lennane (2000) 84 Cal.App.4th 536, 559), we chose to follow this court's decision in Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378 (Enrique M.)

holding that a contested child custody order is appealable. Here, the original order after the contested hearing determined the issues and provided the parties notice of their rights and responsibilities. On appeal we address a request to modify the previous custody order, which, as in Enrique M., has met the necessary requisites for review at this time.

(Ibid.) (See also Montenegro, supra, 26 Cal.4th at p. 259 [providing review from an appeal in a fluid child custody dispute following an adversarial hearing where the custody order at issue would require reevaluation in a few years when the child entered kindergarten].)

We conclude that this court has jurisdiction to review this disputed child custody order on appeal.

B. Standard for Review of the Order Changing Physical Custody Candy contends changing custody of Dominic from her sole physical custody to shared physical custody with Tyron should have required a significant change in circumstances. We disagree.

" 'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.] Under this test, we must uphold the trial 4 court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " (Montenegro, supra, 26 Cal 4th at p. 255.)

It is a fundamental proposition that a judgment or order is presumed correct on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) It is the burden of a party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)

Candy has not provided any reporter's transcript of the proceedings. In the absence of a reporter's transcript or other record of the oral proceedings in the trial court, the appeal is treated on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) We therefore treat this as an appeal "on the judgment roll," to which the following rules apply: "Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation]." (Ford v. State of California (1981) 116 Cal.App.3d 507, 514; Cal. Rules of Court, rule 8.163.) Although Candy is representing herself in propria persona, she is not exempt from the rules governing appeals. A self-represented party is to be treated like any other party and is entitled to the 5 same, but no greater consideration than other litigants having attorneys. (Nwusu v. Uba.

(2004) 122 Cal.App.4th 1229, 1246-1247.)

Based on this record, Candy has not demonstrated that the court was required to apply the changed circumstances standard with respect to the challenged order. The changed circumstances variation on the best interest standard only applies after the court has previously made a final judicial custody order. (Montenegro, supra, 26 Cal.4th at p. 256.) In Montenegro, a child custody case involving fluid circumstances similar to those in this case, the Supreme Court ruled even where detailed visitation schedules had been established by "final" stipulation of the parties, no significant change in circumstance was required for a modification of a custody order, and best interest of the child was the appropriate standard. The court also considered the need for another change in the custody order in a few years when the child entered kindergarten to be a factor showing the challenged custody order was not truly final. (Id. at p. 259.)

The record in this case demonstrates that the order Candy is challenging is similarly not a final custody order. The trial court expressly stated when making both orders that it reserved the right to alter the custody arrangement, and a further change would be needed in a few years when Dominic entered kindergarten. In addition, the court specifically stated its orders were not "Montenegro" orders, implying that the orders were not to be considered final custody determinations under the authority of 6 Montenegro, supra, 26 Cal.4th at page 256.3 Under these circumstances, because no final custody order had been made, Montenegro counsels that the best interest of the child standard applies, not the significant changed circumstance standard.

Based on the judgment roll record in this case, we therefore conclude the trial court did not abuse its discretion when it applied the best interest of the child standard.

C. Exchange Location, Time Zone Selection, and Elimination of the No Drinking Order Candy requests this court alter exchange locations set by the trial court, reverse the trial court's determination that California time should apply for the exchanges of the child, and reinstate the no drinking order.

In the absence of any record regarding the evidence before the court on these issues, we must assume the trial court's reasoning was correct and therefore affirm its order. (See Arceneaux, supra, 51 Cal.3d at p. 1133.)

3 Based on our reading of Montenegro, we understand the trial court's reference to "not a Montenegro order" as meaning that the order at issue was not intended by the court to be a "final" or "permanent" judicial custody determination. For the benefit of the litigants (many of whom are self-represented), counsel, and even reviewing appellate courts, the trial court may want to consider using more explicit, readily understandable wording such as "final" or "permanent" when discussing the legal effect of its ruling. 7 DISPOSITION The order is affirmed.

PRAGER, J.* WE CONCUR:

BENKE, Acting P. J.

AARON, J.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8

Cites, in this corpus

Nwosu v. Uba No. H026182 · 2004-10-01
Enrique M. v. Angelina V. D041780 · 2004-08-31
Montenegro v. Diaz S090699 · 2001-07-30
Ketchum v. Moses S077350 · 2001-02-26
Lester v. Lennane C030662, C031941, C032406 · 2000-10-31
In Re Marriage of Arceneaux S010627 · 1990-12-13
Allen v. Toten Civ. 23398 · 1985-10-02
Ford v. State of California Civ. 5537 · 1981-03-04