gno.law

Ebbing v. Connors CA4/1

California Court of Appeal · D080537 · 2024-01-25 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. 21FL004748C21FDV01613C
Trial judge
Paula S. Rosenstein
Outcome
affirmed — Affirmed.
Area
family
Panel
Joan K. Irion (author), O'Rourke, Buchanan

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:47Z · confidence high

The trial court awarded joint legal custody of the parties' two minor children to the father, with primary physical residence in Massachusetts, after denying the mother's request for a domestic violence restraining order. The Court of Appeal affirmed the order, finding that the appellant failed to provide an adequate record to demonstrate prejudicial error regarding the application of Family Code section 3044, alleged record tampering, or opposing counsel's misconduct.

Ruling reviewedStandardThe courtThe model
Application of Family Code section 3044 (rebuttable presumption against custody for domestic violence perpetrators)
“For these reasons, Andrea has failed to establish that section 3044 applies, and no error has been shown on this ground.”
abuse of discretionnot reachedagree with court
The court held that the appellant failed to establish that section 3044 applied because the record lacked a copy of the temporary restraining order and a transcript to show the trial court addressed the issue. The court reasoned that a temporary restraining order is issued on a facial review of allegations without findings of fact, and since the trial court later denied the permanent restraining order, it did not find domestic violence occurred. This reasoning is legally sound; section 3044 requires a 'finding' of domestic violence, which is distinct from the issuance of an ex parte temporary order based on probable cause or facial sufficiency. The court correctly applied the burden of proof to the appellant to show the trial court made such a finding or that the presumption was triggered and not rebutted.
Allegation of record alteration and forgery
“Andrea has therefore failed to show the alleged record alteration occurred.”
unclearnot reachedagree with court
The court affirmed on the ground that the appellant failed to raise the issue in the trial court and failed to provide record citations to support the claim. The court also noted its independent review of the available record did not reveal alterations. This is a procedural dismissal based on the appellant's failure to meet the burden of proof and preserve the issue, which is standard appellate practice. The court did not need to reach the merits of the forgery claim because the appellant did not substantiate it with the record.
Alleged misconduct by opposing counsel
“Based on the foregoing, Andrea has failed to show reversable error based on Mr. Embry’s conduct.”
abuse of discretionnot reachedagree with court
The court held that even assuming misconduct, the appellant failed to show prejudice (that she would have achieved a more favorable result without it). The court noted most alleged misconduct occurred prior to the evidentiary hearings and that the appellant failed to connect specific instances of misconduct during the hearings to the outcome. This applies the correct standard for reviewing claims of attorney misconduct in the context of a custody appeal, which requires a showing of prejudice to the outcome. The court correctly placed the burden on the appellant to demonstrate this causal link.
Allegation that the order was based on lies
“Accordingly, the “alleged lies” do not warrant reversal.”
abuse of discretionnot reachedagree with court
The court affirmed because it does not reweigh credibility on appeal and because there was no indication the trial court relied on the specific filings alleged to contain lies during the evidentiary hearings. This is a correct application of the principle that appellate courts do not make credibility determinations and that the trial court's findings are presumed correct. The appellant failed to show that the trial court actually relied on the disputed evidence, which is necessary to establish error.

Authorities

  • relied: In re Marriage of LaMusga (2004) 32 Cal.4th 1072 — The trial court has the widest discretion to choose a parenting plan that is in the best interest of the child in an initial custody order.
  • relied: Johnston-Rossi v. Rossi (2023) 88 Cal.App.5th 1081 — Review of an initial custody order is governed by the deferential abuse of discretion test, and the order will be upheld when the trial court could have reasonably concluded that the order advanced the best interest of the child.
  • relied: Jameson v. Desta (2018) 5 Cal.5th 594 — A trial court judgment is presumed correct, and the burden is on the appellant to demonstrate error on the basis of the record presented; failure to provide an adequate record requires the issue to be resolved against the appellant.
  • relied: In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220 — A temporary domestic violence restraining order may be issued on an ex parte basis without notice.
  • relied: Nakamura v. Parker (2007) 156 Cal.App.4th 327 — A jurisdictionally adequate request for a temporary domestic violence restraining order may only be summarily denied if the facts alleged fail to constitute abuse, implying a facial review standard rather than a full evidentiary hearing.
  • relied: Jackson v. Park (2021) 66 Cal.App.5th 1196 — Misconduct by opposing counsel does not warrant reversal unless the appellant shows that they would have achieved a more favorable result in the absence of that misconduct.
  • relied: Bruno v. Hopkins (2022) 79 Cal.App.5th 801 — Appellate courts do not reweigh credibility on appeal.

The appellate opinion: sound — The opinion is sound because it correctly applies the high burden of proof required of an appellant to demonstrate prejudicial error, particularly in the context of a custody appeal where the trial court's discretion is broad. It properly identifies that the lack of a complete record (transcripts and exhibits) prevents the court from reviewing the merits of the specific factual claims, thereby resolving those issues against the appellant as a matter of law.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

After a multi-day evidentiary hearing, the San Diego Superior Court entered a June 1, 2022 initial custody order giving the parents joint legal custody, placing the children primarily with the father in Massachusetts, and setting a visitation schedule for the mother. On the mother's pro per appeal, the Court of Appeal affirmed, holding that the limited record (no reporter's transcript, settled statement, or exhibits) and the appellant's failure to carry her burden defeated her claims that Family Code section 3044 was misapplied, that the record was altered, that opposing counsel committed misconduct, and that the order rested on lies.

Ruling reviewedStandardThe courtThe model
Initial custody order awarding joint legal custody with primary residence with father in Massachusetts and a visitation schedule for mother
“At the conclusion of those hearings, the court ordered Andrea and James shall share joint legal custody, the children shall primarily reside with James in Plymouth County, Massachusetts, and Andrea may visit the children on a specified schedule.”
abuse of discretioncorrectagree with court
The court correctly identified the deferential abuse of discretion standard for initial custody determinations under LaMusga and Johnston-Rossi, and correctly applied Jameson v. Desta: without a reporter's transcript, settled statement, or the admitted exhibits, the appellant cannot show the trial court could not reasonably have found the order served the children's best interest, so the presumption of correctness controls.
Trial court's failure to apply the section 3044 presumption against the father based on the April 2021 temporary restraining order
“When the court ultimately ruled on the issue on July 1, 2021, it denied Andrea’s request, showing that the court did not find James perpetrated domestic violence.”
unclearcorrectagree with court
Section 3044(a) is triggered only by a court finding that a party perpetrated domestic violence. An ex parte TRO under sections 6320.5 and 6326 is issued on a facial review of the allegations without findings (Nakamura; Davila & Mejia), and the later denial of the permanent DVRO on July 1, 2021 shows no such finding was made. The opinion's reading of the statute and the TRO procedure is sound; the appellant also could not show from the record whether or how section 3044 was raised below.
Rejection of claim that the trial court record was altered, mutilated, or forged
“Andrea has therefore failed to show the alleged record alteration occurred.”
unclearcorrectagree with court
The claim was not raised below, was unsupported by record citations, and the appellate court's own review of the registers of actions and clerk's transcript revealed no alteration. Under Rybolt and Hewlett-Packard, unsupported and forfeited factual assertions are properly disregarded.
Rejection of claim that opposing counsel's misconduct requires reversal of the custody order
“Even if we assume misconduct, it would not warrant reversal unless Andrea shows that she would have achieved a more favorable result in the absence of that misconduct.”
unclearcorrectagree with court
The court properly applied the constitutional requirement of prejudice (as stated in Jackson v. Park) and noted the issue was not raised below and lacked record support. Most alleged conduct predated the evidentiary hearings, and nothing in the available record tied any misrepresentation to the hearings that produced the challenged order.
Rejection of claim that the custody order rested on lies in the father's May 25, 2021 filings
“Additionally, there is no indication that the court considered James’s filings from May 25, 2021, at the evidentiary hearings that resulted in the June 1, 2022 order.”
substantial evidencecorrectagree with court
Appellate courts do not reweigh credibility (Bruno v. Hopkins), and the appellant did not show the May 2021 ex parte papers were even considered at the later evidentiary hearings. Without a transcript or exhibits, the claim cannot be evaluated and is resolved against the appellant.

Authorities

  • relied: Jameson v. Desta (2018) 5 Cal.5th 594 — A judgment is presumed correct and the appellant bears the burden of providing an adequate record; failure to do so requires the issue to be resolved against the appellant.
  • relied: In re Marriage of LaMusga (2004) 32 Cal.4th 1072 — In an initial custody determination the trial court has the widest discretion to choose a parenting plan in the child's best interest.
  • relied: Johnston-Rossi v. Rossi (2023) 88 Cal.App.5th 1081 — Custody orders are reviewed for abuse of discretion and upheld if the court could reasonably have concluded the order advanced the child's best interest.
  • relied: Nakamura v. Parker (2007) 156 Cal.App.4th 327 — A jurisdictionally adequate request for a temporary DVRO may be summarily denied only if the facts alleged fail to constitute abuse; the court conducts a facial review of the allegations.
  • relied: In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220 — A temporary domestic violence restraining order may be issued ex parte without notice, unlike a restraining order after hearing.
  • relied: Jackson v. Park (2021) 66 Cal.App.5th 1196 — Attorney misconduct does not warrant reversal absent a showing that a more favorable result would have been reached without it.
  • relied: Bruno v. Hopkins (2022) 79 Cal.App.5th 801 — Appellate courts do not judge credibility.
  • relied: Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640 — Where exhibits are missing from the record, the reviewing court will not presume they would undermine the judgment.
  • relied: Rybolt v. Riley (2018) 20 Cal.App.5th 864 — Factual assertions unsupported by proper record citations are disregarded on appeal.
  • relied: Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506 — Theories not raised in the trial court generally cannot be asserted for the first time on appeal.
  • relied: Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212 — Appellate jurisdiction is limited to the orders identified in the notice of appeal.
  • relied: K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875 — The time to appeal is jurisdictional; untimely challenges to earlier appealable orders cannot be reviewed.

The appellate opinion: sound — The opinion correctly frames the appellant's burden under Jameson v. Desta and the abuse of discretion standard for custody orders, and its section 3044 analysis accurately distinguishes an ex parte TRO issued on a facial review from the statutory 'finding' of domestic violence required to trigger the presumption, a conclusion reinforced by the later denial of the permanent DVRO. The remaining claims were properly rejected as forfeited, unsupported by record citations, or barred by the no-credibility-review rule, and each conclusion is tied to apposite authority.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 1/25/24 Ebbing v. Connors 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

ANDREA EBBING, D080537

Appellant, v. (Super. Ct. Nos. 21FL004748C & 21FDV01613C) JAMES CONNORS, Respondent.

APPEAL from an order of the Superior Court of San Diego County, Paula S. Rosenstein, Judge. Affirmed. Andrea Ebbing, in pro. per., for Appellant. James Connors, in pro. per., for Respondent.

Andrea Ebbing (Andrea) appeals a June 1, 2022 custody order, awarding the parties joint custody of their two minor children and determining that the children shall primarily reside with their father in Massachusetts. She challenges the court’s application of Family Code section 3044,1 the validity of the record, opposing counsel’s conduct, and the evidentiary basis for the custody ruling. Based largely on the limited record and the appellant’s burden on appeal to show prejudicial error, we affirm.2 I. FACTUAL AND PROCEDURAL BACKGROUND Andrea and James Connors (James) have two minor children. The couple previously lived together with their children in San Diego, but in January 2021 James and the children moved to Middleboro, Massachusetts. In February 2021 James filed a complaint, in Massachusetts court, for custody, support, and parenting time. The court granted temporary custody orders on an emergency basis. On April 6, 2021, Andrea initiated a case in San Diego, seeking a domestic violence restraining order against James and custody of the children. Complete copies of any temporary orders issued in response to this 1 All further statutory references are to the Family Code unless otherwise specified.

2 Andrea filed five requests for judicial notice. Judicial notice may be taken of the matters specified in Evidence Code sections 451 and 452. However, only relevant material is subject to judicial notice. (State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442.) We also do not take judicial notice of matters that were not presented to the trial court absent exceptional circumstances. (Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 625.) Nor do we take judicial notice of matters that are already in the record, as that is unnecessary. (Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 674.) None of Andrea’s requests comply with these rules. She seeks judicial notice of matters that are within the clerk’s transcript, not subject to judicial notice, or irrelevant. She also seeks judicial notice of matters that were not presented to the trial court without demonstrating exceptional circumstances for their consideration. We therefore deny all five requests for judicial notice.

2 filing are not in the record, but James concedes a temporary restraining order was issued against him. After discussing the case with the court in Massachusetts on April 14, 2021, under the authority of the Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400, et seq.), the court in San Diego determined that it had home state jurisdiction. The court in Massachusetts then vacated all prior orders and dismissed its case on June 22, 2021. On May 21, 2021, Andrea initiated a second family law case in San Diego by filing a petition for custody. James filed an ex parte application for custody and consolidation of the two San Diego cases in response on May 25, 2021. The court granted the request for consolidation on May 26, 2021. James thereafter filed a request for an order regarding custody, visitation, and relocation of the children. On July 1, 2021, the court denied Andrea’s request for a restraining order. Andrea filed two subsequent requests for restraining orders on August 16, 2021, and January 13, 2022, but she ultimately decided to not pursue them. James also sought a restraining order against Andrea, which was partially granted on September 10, 2021, and expired after one year. On July 28, 2021, the court set the matters of custody, visitation, and relocation for an evidentiary hearing. Evidentiary hearings took place over several days between October 6, 2021, and June 1, 2022. At the conclusion of those hearings, the court ordered Andrea and James shall share joint legal custody, the children shall primarily reside with James in Plymouth County, Massachusetts, and Andrea may visit the children on a specified schedule.

3 Andrea argues the June 1, 2022 order3 should be reversed because: (1) the court did not properly apply section 3044; (2) the record has been altered; (3) opposing counsel committed misconduct; and (4) the foundation of the order is based on lies. The limited record before us does not support Andrea’s claims of error, thus we affirm. II. DISCUSSION A. Guiding Appellate Rules We begin with several principles of appellate law that guide our review.4 First, the parties must support their factual assertions with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Both parties disregard this rule. James’s brief does not contain any record citations.5 Andrea’s brief contains numerous factual assertions without citation, and when she does provide citations, they often do not support her 3 Andrea also appears to dispute two earlier orders entered on May 26, 2021, and July 1, 2021. We lack jurisdiction to consider these orders because Andrea’s notice of appeal identifies only the June 1, 2022 order as the order from which the appeal is taken. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) Additionally, deadline for appealing those orders had lapsed when the notice of appeal was filed. (California Rules of Court, rule 8.104; K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 881.)

4 As a self-represented litigant, Andrea is entitled to the same but no greater consideration than other litigants, and she must therefore follow the rules of appellate procedure. (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861.)

5 We note that Andrea did not file a reply to James’s brief.

4 factual assertions.6 We therefore disregard the asserted facts that are not supported by a proper citation. (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868.) Second, “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.) “ ‘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].’ ” (Id. at p. 609.) An appellant therefore has the burden of providing a reporter’s transcript, an agreed statement, or a settled statement if the appellant intends to raise an issue that requires consideration of the oral proceedings. (Cal. Rules of Court, rule 8.120(b).) Similarly, “ ‘[w]here exhibits are missing we will not presume they would undermine the judgment.’ ” (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 657.) At the evidentiary hearings that led to the challenged order, the court admitted witness testimony and various exhibits. The first two hearings were reported, while the final three were not. The record does not include a reporter’s transcript or an agreed or settled statement regarding any of the hearings, nor does it include any of the exhibits that were admitted. As 6 Andrea does not properly cite to the second volume of the clerk’s transcript. Instead of referring to the designated page numbers (pages 241 to 383), her citations appear to be based on pagination starting over at page one for volume two. For example, she cites to “2 CT 21” for a document located at the 21st page of volume two, which should have been cited as “2 CT 261.” We have interpreted these citations the best we can. 5 discussed below, this hampers our review of the claimed errors and requires that we resolve them against appellant. Third, “ ‘ “As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried.” ’ ” (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.) There is no indication that Andrea previously raised many of the issues she now complains of, preventing her from raising them on this appeal. Fourth, “ ‘[w]here a point is merely asserted by [appellant] without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ ” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418.) Andrea appears to assert additional grounds for challenging the June 1, 2022 order in the conclusion of her brief. She states Plymouth is too far away and has inadequate facilities for the children, her visitation rights are impossible to accommodate, and she and the children did not consent to the move. Andrea does not provide any argument or legal authority to support these grounds, so we do not consider them. Finally, in an initial custody order such as the one in this case, “the trial court has ‘the widest discretion to choose a parenting plan that is in the best interest of the child.’ ” (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.) Our review of such an order is governed by the deferential abuse of discretion test, and the order will be upheld when the trial court “ ‘could have reasonably concluded that the order in question advanced the “best interest” of the child.’ ” (Johnston-Rossi v. Rossi (2023) 88 Cal.App.5th 1081, 1087.)

6 B. Section 3044 “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, . . . there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child . . . .” (§ 3044, subd. (a).) Andrea argues that section 3044 applies because she obtained a temporary domestic violence restraining order against James on April 6, 2021. The limited record in this case prevents adequate review of this issue because we do not have a copy of any temporary restraining order against James, and without a reporter’s transcript or an agreed or settled statement, we are unable to determine if section 3044 was addressed in the trial court. Nonetheless, as noted above, James concedes a temporary restraining order was issued against him, and we will address the effect of that order under section 3044. Unlike a regular domestic violence restraining order, a temporary domestic violence restraining order may be issued on an ex parte basis without notice. (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) The court must rule on a request for a temporary domestic violence restraining order the same day it is filed, or by the next business day if it is filed too late in the day to permit effective review. (§ 6326.) If the court denies the request, it must state its reasons (§ 6320.5, subd. (a)), but there is no corresponding requirement that reasons be given for granting the request. The court also cannot deny a jurisdictionally adequate request for a 7 temporary domestic violence restraining order unless it provides the petitioner a right to a noticed hearing. (§ 6320.5, subd. (b).) As can be seen, the granting of a temporary domestic violence restraining does not require findings. Instead, the court merely conducts a facial review of the allegations to determine if they would constitute abuse. (See Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [finding that that a jurisdictionally adequate request for a temporary domestic violence restraining order may only be summarily denied if the facts alleged fail to constitute abuse].)7 As such, the issuance of the temporary order meant that Andrea’s allegations, if true, were sufficient to constitute domestic violence, but there were no findings of domestic violence at that time. When the court ultimately ruled on the issue on July 1, 2021, it denied Andrea’s request, showing that the court did not find James perpetrated domestic violence. Further, although the record contains other allegations of domestic violence by James, Andrea has not identified any court findings on those allegations, and our independent review of the record does not disclose any. For these reasons, Andrea has failed to establish that section 3044 applies, and no error has been shown on this ground. C. Record Alteration Andrea alleges “The record in this case has been dramatically altered, mutilated, and seemingly forged. . . . This pattern of tampering was set to intentionally mislead and confuse the Presiding Family Court Judge.” There is no indication that Andrea raised this claim in the trial court, and she has failed to provide any record citations to support it. Additionally, our review 7 The opinion in Nakamura v. Parker led to the enactment of section 6320.5. (Sen. Com. on Judiciary, Analysis of Assem. Bill. No. 2553 (2007–2008 Reg. Sess.) as amended Apr. 29, 2008, p. 4.)

8 of the record, which includes two sets of the registers of actions for each of the consolidated cases and the clerk’s transcript designated by Andrea, does not reveal any alterations. Andrea has therefore failed to show the alleged record alteration occurred. D. Misconduct by Opposing Counsel Andrea claims the actions of James’s attorney, Ben Embry, “constitute legal malpractice, professional misconduct, and a violation of ethical rules.” Andrea alleges Mr. Embry filed false papers, improperly served documents, failed to coordinate service as agreed, refused communication, and facilitated James’s improper behavior. Again, there is no indication that Andrea raised this issue in the trial court, and most of her allegations are not supported by citations to the record. Even if we assume misconduct, it would not warrant reversal unless Andrea shows that she would have achieved a more favorable result in the absence of that misconduct. (Jackson v. Park (2021) 66 Cal.App.5th 1196, 1216.) Most of the alleged misconduct occurred prior to the evidentiary hearings that led to the challenged order, so it was unlikely to affect the outcome of those hearings and the record does not show otherwise. The only instances that conceivably occurred during the pertinent evidentiary hearings are the general allegations that Mr. Embry “knowingly and willfully misrepresent[ed] facts in both cases, to all judges,” and that he “continued manipulating Judge Rosenstein.” Andrea does not provide any record citations or explanation connecting these allegations to the relevant hearings, and our review of the record does not show any misrepresentation or manipulation at those hearings. Based on the foregoing, Andrea has failed to show reversable error based on Mr. Embry’s conduct.

9 E. Alleged Lies Andrea claims the foundation of the June 1, 2022 order is based on lies found in papers James filed on May 25, 2021. “ ‘We do not judge credibility on appeal.’ ” (Bruno v. Hopkins (2022) 79 Cal.App.5th 801, 824.) Additionally, there is no indication that the court considered James’s filings from May 25, 2021, at the evidentiary hearings that resulted in the June 1, 2022 order. Accordingly, the “alleged lies” do not warrant reversal. DISPOSITION The order is affirmed.

IRION, J.

WE CONCUR:

O’ROURKE, Acting P. J.

BUCHANAN, J.

Cites, in this corpus