Filed 5/19/16 Marriage of J. & O. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re the Marriage of DENISE J. and A.O.                           B263999
__________________________________
                                                                   (Los Angeles County
DENISE J.,                                                         Super. Ct. No. BD578499)

         Plaintiff and Respondent,

         v.

A.O.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County. Patrick A.
Cathcart, Judge. Affirmed.
         A.O., in pro per., for Defendant and Appellant.
         PROTOTYPES and Amanda Jancu for Plaintiff and Respondent.




                                ___________________________________
       A.O. (Father) appeals from an order granting Denise J. (Mother) sole legal and
joint physical custody of their children, M.J. (Daughter), now age 7, and M.J. (Son), now
age 5 (collectively Children), and a domestic violence restraining order in favor of
Mother against Father. Father argues, in part, that substantial evidence did not support
the orders, but his failure to provide a reporter’s transcript or a settled statement on
appeal defeats these claims. We affirm.
                                      BACKGROUND
       Mother and Father married in October 2008 but separated shortly thereafter in
March 2009. Daughter was born a month after their separation in April 2009. Son was
born in October 2010. Mother filed for divorce in 2013.
       In February 2013, the court granted Mother a temporary restraining order (TRO)
against Father, but less than a month later dissolved it and denied her request for a more
permanent one. In May 2013, after Mother and Father attended conciliation court, the
court modified its custody order, granting Mother and Father joint legal custody and
approving a new visitation schedule.1 In the months that followed, Father accused
Mother of failing to comply with the visitation agreement by arriving late to, or not at all
for, numerous visits. In June 2014, after both parents filed for modification of the
visitation and custody orders, the court granted Mother more visitation. In August 2014,
although Father had again accused Mother of failing to comply with the orders and
threatening him, the court denied Father’s ex parte request for further modification.
       On February 27, 2015, the court issued Mother and Children another TRO against
Father, temporarily granted Mother sole legal and physical custody, and ordered
mediation. That same day, Mother again filed for a more permanent restraining order. In
March 2015, Father filed for sole custody and more visitation. On March 19, 2015, the
court held a hearing during which both Mother and Father testified and each called an
additional witness; the court also admitted several exhibits into evidence. The court


       1 “Conciliation   court” is now referred to as the Family Court Services Department.

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dissolved the TRO, issued a five-year restraining order in favor of Mother against Father
based on his domestic violence against her, and modified the existing custody
arrangement by granting Mother sole legal and primary physical custody. In its order, the
court noted that Father had not rebutted the Family Code section 30442 presumption that,
in a custody dispute, it is not in the best interest of children to award sole or joint physical
or legal custody to a party who has perpetrated domestic violence against the other party
seeking custody.3 (§ 3044, subd. (a).) In April 2015, the court denied Father’s request to
modify the order. Father appealed, but did not submit a reporter’s transcript or settled
statement on appeal.4
                                        DISCUSSION
       Father argues the trial court erred in granting Mother custody because (1) Father is
in a better position to care for Children, (2) Mother is an unfit parent, and (3) Mother,
admittedly, has failed to abide by the custody and visitation orders. He also argues the
court erred because (4) Mother perjured herself, (5) Father was not shown Mother’s
evidence until just before the hearing, and the court did not admit some of his proffered
evidence, and (6) the court did not instruct him on the section 3044 presumption.
       We review custody and visitation orders for abuse of discretion. (Chalmers v.
Hirschkop (2013) 213 Cal.App.4th 289, 299 (Chalmers).) To demonstrate an abuse of
discretion, it “ ‘ “is wholly insufficient” ’ ” to simply present “ ‘ “a state of facts, a
consideration of which, for the purpose of judicial action, merely affords an opportunity
for a difference of opinion. An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge. To be entitled to relief on
appeal from the result of an alleged abuse of discretion it must clearly appear that the


       2 Weassume the court’s reference to section “3034” in its order was in error
because such a section does not exist, and infer that the referred to section was section
3044.
       3 Undesignated   code references are to the Family Code.
       4 Fatherrequested to prepare a settled statement on appeal, but we denied his
request because it was untimely.

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injury resulting from such a wrong is sufficiently grave to amount to a manifest
miscarriage of justice.” ’ ” (Ibid.)
       On appeal, Father has the burden to demonstrate reversible error. (County of Los
Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945; Ballard v. Uribe (1986) 41
Cal.3d 564, 574.) In the absence of a reporter’s transcript or settled statement proving the
contrary, we presume every fact in favor of the judgment.5 (Denham v. Superior Court,
supra, 2 Cal.3d at p. 564.)
A.     Factual grounds
       Father has done nothing more than present “ ‘ “an opportunity for a difference of
opinion.” ’ ” (Chalmers, supra, 213 Cal.App.4th at p. 299.) The evidence relating to the
best interest analysis required by section 3044 was mixed, as Mother and Father each
have strengths and weaknesses, and could result in differing opinions. For example,
Father has a permanent residence with three bedrooms, whereas Mother is staying at a
domestic violence shelter. Mother, however, has an extended family she relies on to help
care for Children, although Father has alleged the family has assaulted and threatened
him in front of Children and possibly sexually abused Children. Mother has accused
Father of domestic violence, but Father has accused Mother of being unstable and
abandoning Children. Both have cared for Children. Both have been awarded and
denied custody at various points. Neither has a full-time job with steady income.
Because we do not reexamine evidence or make new credibility determinations when
reviewing for abuse of discretion, we affirm the trial court’s finding that Father did not
rebut the section 3044 presumption because there was evidence that it was in the best
interest of Children to award Mother custody. (Schneer v. Llaurado (2015) 242
Cal.App.4th 1276, 1285–1286 (Schneer).) Father also did not address in his brief any of


       5 Father does not appear to argue that the court erred in finding he perpetrated
domestic violence against Mother or in issuing the attendant restraining order. Even if he
had, we cannot test the factual basis for such an argument without a reporter’s transcript
or settled statement and presume the findings and order are correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.)

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the section 3044 factors, such as completion of a batterer’s treatment program, which
would have weighed in favor of rebutting the presumption. (§ 3044, subd. (b)(2).)
B.     Other grounds
       Father’s other arguments fail to establish reversible error. First, Father contends
Mother perjured herself and implies that the court should have consequently discredited
her arguments. A review of the record does not establish any significant discrepancies
between the accounts Mother gave of Father’s abuse in February 2013 and then in
February 2015 and, in any case, the trial court had the discretion to judge Mother’s
credibility and weigh her testimony accordingly. (Schneer, supra, 242 Cal.App.4th at
1285–1286.)
       Second, Father contends Mother did not give him her evidence until moments
before the hearing began. Even if this were true, Father has not demonstrated on appeal
the significance, if any, of the admitted evidence or how he was prejudiced by its
admission, nor has he argued the evidence was inadmissible. As to the court’s alleged
refusal to admit Father’s evidence, Father failed to explain on appeal what evidence he
offered, how the court erred in refusing to admit it, or how he was prejudiced. In absence
of Father substantively arguing error, we will not reverse on his evidentiary grounds.
(Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539.)
       Third, and finally, Father alleges he was not aware he needed to rebut the section
3044 presumption. Section 3044 requires a court to notify a party of the presumption
only prior to mediation, and here Mother and Father did not enter into mediation but
instead the court adjudicated their claims in a hearing. (Sabbah v. Sabbah (2007) 151
Cal.App.4th 818, 825.)




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                                     DISPOSITION
       The orders are affirmed. Denise J. is awarded her costs on appeal, if any, under
California Rules of Court, rule 8.278.
       NOT TO BE PUBLISHED.


                                                LUI, J.
We concur:


       ROTHSCHILD, P. J.


       JOHNSON, J.




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