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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    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).
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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.)
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                                       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

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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.
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                                     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.
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