Filed 4/29/13 Smith v. Cheney CA1/4
`NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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`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 This opinion has not been certified for publication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.
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`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
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`FIRST APPELLATE DISTRICT
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`DIVISION FOUR
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` A135986
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` (Contra Costa County
` Super. Ct. No. MSF0701564)
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`LEA SMITH,
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`Plaintiff and Appellant,
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`v.
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`RICHARD CHARLES CHENEY, JR.,
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`Defendant and Respondent;
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`CONTRA COSTA DEPARTMENT OF
`CHILD SUPPORT SERVICES,
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`Real Party in Interest.
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`Lea Smith, in propria persona, appeals from a child custody and visitation order
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`regarding her son. She contends that she was denied a fair custody hearing, and that the
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`court ignored her claims that her son was abused. We affirm.
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`FACTUAL BACKGROUND
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`Smith has not provided a properly supported statement of facts in her opening
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`brief nor has she designated an adequate record. The California Rules of Court require
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`that litigants provide a summary of the significant facts supported by references to the
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`appellate record. (Cal. Rules of Court, rule 8.204 (a)(1)(C) & (2)(C); see Arbaugh v.
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`Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 503, fn. 1 [failure to comply with
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`the Rules of Court requiring summary of material facts supported by appropriate
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`reference to the record may constitute waiver of error].) Smith‟s status as a pro per
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`litigant does not excuse her from the duty to comply with the rules. An appellant in
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`propria persona is held to the same standard of conduct as that of an attorney on appeal.
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`(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.)
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`Smith elected not to provide us with any reporter‟s transcripts and proceeded
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`solely on a clerk‟s transcript. There is thus no record of the numerous hearings in this
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`custody dispute. As far as we can ascertain from the limited record before us, Smith filed
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`an order to show cause to modify an existing child custody and visitation order on
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`February 23, 2010. She alleged that she was the victim of domestic violence and that her
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`son had suffered physical abuse. The existing order provided primary custody with the
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`son‟s father, with Smith having visitation in alternate weeks. The court held a hearing on
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`June 29, 2010, during which it expressed concerns about mother‟s mental health. The
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`court set the matter for a long cause hearing.
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`The matter was heard on October 1, 2010. The court awarded legal and physical
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`custody of the son to father, with Smith having reasonable visitation on weekends. In
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`making its order, the court followed many of the recommendations of a mediator.
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`Smith filed another order to show cause to modify the custody and visitation order
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`on December 30, 2011. She requested child abduction prevention orders alleging that
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`father was always late for visitation exchanges. The court denied the motion on February
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`14, 2012.
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`Smith filed yet another order to show cause to modify the custody order on
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`February 15, 2012. She alleged that her son was living in fear and that she had noticed
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`changes in his behavior and appearance. The court held a hearing on June 19, 2012. The
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`court again awarded legal and physical of the son to father and adopted the mediator‟s
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`recommendations that Smith obtain a psychological evaluation and that she continue to
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`have weekend visitation with the exception of the third weekend of the month. Smith
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`thereafter filed this appeal.
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`DISCUSSION
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`Smith contends that she was denied a fair custody hearing. She, however, has
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`provided this court with no transcript of the hearing on her order to show cause to modify
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`the custody and visitation order.
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`It is well settled that a party challenging a judgment has the burden of showing
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`reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; 9
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`Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704.) “ „It is elementary and
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`fundamental that on a clerk‟s transcript appeal the appellate court must conclusively
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`presume that the evidence is ample to sustain the findings, and that the only questions
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`presented are as to the sufficiency of the pleadings and whether the findings support the
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`judgment.‟ [Citations.]” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154, see also,
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`Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if
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`record is inadequate for meaningful review, the appellant defaults and the trial court‟s
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`decision should be affirmed.) In the absence of an adequate record here, we must
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`presume that the court‟s judgment is correct. On the record before us, no error appears.
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`The order is affirmed.
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`DISPOSITION
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`_________________________
`Rivera, J.
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`We concur:
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`_________________________
`Ruvolo, P.J.
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`_________________________
`Humes, J.
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