For the family law practitioner, these cases illustrate the importance of creating and “protecting” the record in the course of a trial or other evidentiary hearing. And on a close issue, more evidence is generally better than less.
By Thomas Georgianna, Managing Senior Trial Attorney
In the course of 2016, our firm handled two family law appeals whose outcome hinged on the appellate records themselves as opposed to a particular point of law or ruling. The first case involved a trial under the Domestic Violence Prevention Act with a record so damning as to render an appeal all but pointless. The second involved a divorce trial with a record so incomplete that the appeal was pointless. Both cases provide an object lesson in the importance of the appellate record.
A Tale of Two Family Law Appeals: Appeal 1
The first case involved a family law appeal after a three-day trial. The appeal was based on a number of issues, including:
- the alleged insufficiency of the predicate act that supported the domestic violence finding; and
- erroneous evidentiary rulings.
In its recitation of the facts on appeal, the appellate court recounted the testimony from the protected party’s psychologist, social worker, educators, parent, and multiple neighbors. The court went on to recount video footage from the appellant’s cell phone, which was elicited on cross-examination and entered into evidence. The court’s analysis of the appeal was replete with references to the record; in its conclusory remarks, the court held:
“We examine the trial court’s granting of the protective order for abuse of discretion, with attention to the particular law being applied by the court. (S.M. v. E.P., supra, 184 Cal.App.4th 1249, 1264-1265; Gonzalez, supra, 156 Cal.App.4th at pp. 420- 421.) From the reporter’s transcript, it is evident that the judicial officer who heard the case examined the merits of the petition and opposition, and conscientiously gave both sides a chance to be heard. The record fully supports [appellee]’s request for injunctive relief…”
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“Absent an indication to the contrary, we are required to presume the trial court applied the correct legal standards in making its discretionary determinations. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137; Gonzales, supra, 156 Cal.App.4th at pp. 420-421.) There is no basis in the record to show the court abused its discretion in evaluating the evidence and arriving at its order.”
Of particular interest to the practitioner is that for every issue that the appellant identified, there were several more evidentiary bases on which the appeal could stand. The result was an appeal like the mythical Hydra; for each head lopped off, two more took its place.
A Tale of Two Family Law Appeals: Appeal 2
The second family law appeal was basically the inverse of the first. In the second case, the appellant submitted so little of the record in a lengthy and complicated case, that the appellate court ended up ruling on the dearth of a record rather than the actual merits of the case:
DISCUSSION
1. The incomplete record is fatal to [appellant]’s appeal.
It is well settled that ‘[a]ppealed judgments and orders are presumed correct, and error must be affirmatively shown.’ (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As the party challenging the court’s presumably correct findings and rules, [appellant] is required ‘to provide an adequate record to assess error.’ (Maria P. v. Riles/i> (1987) 43 Cal.3d 1281, 1295.) ‘In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided.'” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186.)
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“A fatal problem with this appeal is that [appellant] failed to provide us with the reporter’s trial transcript for [three dates].”
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“‘…To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error.” (Estate of Fain(1999) 75 Cal.App.4th 973, 992.)”
The issues present in the second case are fairly obvious. Absent a record that would allow the appellate court to review the rulings at issue, the appellate court would simply presume that the ruling of the trial court was correct.
For the family law practitioner, these cases illustrate the importance of creating and “protecting” the record in the course of a trial or other evidentiary hearing. Competent evidence should be entered into the record. Appropriate objections should be made, and rulings on those objections should be obtained. On a close issue, more evidence is generally better than less. If a decision must be appealed, it may be possible to flesh out the appellate issue in argument over the decision. Conversely, an attempt to flesh out an issue may result in educating the opposition and generate appropriate corrective action.
While such maxims are always subject to exceptions and the vicissitudes of your particular case, they do serve to highlight important issues with which we should all be familiar. Knowing how these issues are likely to play out in your case is something you should have a working knowledge of before stepping into the courtroom.
Thomas Georgianna is Managing Senior Trial Attorney of the Civil Litigation Division and Chapter 11 Bankruptcy Division at Boyd Law, APC. www.boydlawapc.com
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