An unpublished opinion out of Sacramento County give us yet another example of the necessity of having a court reporter at a contested hearing, and the dramatic consequences that result when no reporter is present.
Vikas Sareen filed a request to modify his child support. A hearing was held, but no court reporter was present so the Court of Appeal had no transcript to review. This is referred to as a judgment roll appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)
The limited appellate record establishes that on August 30, 2011, father filed a motion to modify child support based on changed circumstances. Father asserted the following: he was required to leave his job with the New York Port Authority and relocate to India; he was “compelled to stay in India” while criminal charges were pending against him; his application for reinstatement with the Port Authority was rejected and he was no longer employed by the Port Authority; but he was able to obtain work as an associate professor of engineering in India, a job that paid less money. Father attached various documents to his reply declaration in support of his claims: a letter from Manav Rachna International University confirming his status as an associate professor, two pay stubs from the university, and e-mail correspondence with the Port Authority indicating there was no available position to offer him for reinstatement.
Following a hearing on November 17, 2011, father submitted additional e-mail correspondence with the Port Authority. In those e-mails, dated May 2011, father was told by a man named “Jim Steven” that a job was not currently available for father, but someone was retiring so a job would soon become available. Jim noted the job would need to be re-classified and some work would need to be done through “HR,” but they would work to resolve things quickly.
The trial court denied the request to modify. The appellate opinion then goes through a shotgun list denying Vikas’s appellate arguments – all driven by the lack of a court reporter’s transcript.
- It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is “on the judgment roll” (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court’s findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error “appears on the face of the record.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)
- The trial court found father “failed to make reasonable efforts to renew his employment with the Port Authority” with the “intent to avoid paying child support.” The trial court also noted father had been working in India, but “made no effort to pay any child support.” For those reasons, the trial court found no changed circumstances warranting a modification of child support. Without a reporter’s transcript, we must conclusively presume the evidence was sufficient to sustain those findings. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)
- Father’s due process claim is forfeited because he does not support the claim with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245–1246 & fn. 14 [the failure to present argument with references to the record results in a forfeiture of any assertion that could have been raised]; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [lack of adequate citation to the record forfeits the claim of error].)
I am comfortable opining that Vikas probably would have lost on appeal even with a reporter’s transcript; however, we just don’t know? This appellate court repeatedly support’s its decision by referencing the lack of a transcript. Yet again we have an appellate court sending the message that it really, really, really needed a transcript in this case. Unfortunately that also gets us back to the point that because of California’s budget problems many family law courts are doing without court reporters.
Even though privately retained court reporters are expensive (I would say that when you add in the cost of the transcript the court reporters hourly rate will match that of the attorneys), the best practice is to have that reporter in the courtroom.
Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.
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