Marriage of Pittluck and Mimran CA2/1 ( 2014 )

Filed 5/22/14 Marriage of Pittluck and Mimran 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 Marriage of IAN JOSEPH B248057
PITTLUCK and RONI YAFIT MIMRAN.
(Los Angeles County
Super. Ct. No. SD029726)
RONI YAFIT MIMRAN,
Appellant,
v.
IAN JOSEPH PITTLUCK,
Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, David J.
Cowan, Commissioner. Affirmed.
Roni Yafit Mimran, in pro. per., for Respondent and Appellant.
Ian Joseph Pittluck, in pro. per., for Petitioner and Respondent.
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SUMMARY
Roni Yafit Mimran (Mimran) appeals from a postjudgment family law order
denying her request to modify a child custody order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
It is not possible to provide a thorough overview of the background of this action
given the scant appellate record. We have discerned the following facts from the 37-page
clerk’s transcript which, together with a few agreed-upon facts in the parties’ briefs, and
the reporter’s transcript,1 form the appellate record. Mimran and respondent Ian Joseph
Pittluck (Pittluck) were married in early 2010. Their son, Benjamin, was born in March
2011. The couple separated soon thereafter, and Pittluck filed this action for dissolution
on June 15, 2011.
March 6, 2012 hearing
When Pittluck decided to move from Los Angeles to Orange County because he
obtained a new, better job, he apparently sought a modification of the then existing
custodial order, and sought primary custody of Benjamin (approximately 70 per cent), as
recommended by Dr. Cohen’s evaluation. After a three-day hearing, and after
considering the evidence and argument by the parties’ counsel, the court appears to have
rejected many of Dr. Cohen’s recommendations.2 The court denied Pittluck’s request to
change Benjamin’s primary place of residence from Los Angeles. The trial court did
1 The Reporter’s Transcript contains: (1) the parties’ March 6, 2012 closing
arguments regarding recommendations in an evaluation performed by Dr. Renee Cohen,
apparently related to issues regarding child custody and support, and Pittluck’s “move
away” request due to his new job, in light of the parties’ shared joint physical custody
order; (2) a January 30, 2013 hearing on an ex parte application filed by Mimran; and
(3) the February 19, 2013 hearing on Mimran’s request for relief from custodial orders
and seeking a second evaluation.
2 Dr. Cohen’s evaluation is not part of the record. We can only glean its ostensible
purpose and her recommendations from statements made by counsel and the court at the
close of the three-day hearing. (Mimran and Pittluck were each represented by counsel at
the hearing.
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adopt at least two of Dr. Cohen’s recommendations: it ordered Mimran to undergo 50
sessions with a therapist, to assist her ability to parent and co-parent, help her with
“attunement,” and with relating to Pittluck and recognizing the role he played in
Benjamin’s life. The court also ordered the parents to attend coparenting classes. It
appears that the court also established a visitation schedule, and made orders regarding
the parents’ respective duties to transport Benjamin to and from one another’s homes.
The record lacks specifics on those points.
January 30, 2013 Ex Parte Hearing
Judgment was entered on August 28, 2012. The terms and conditions of the
judgment are not included in the appellate record. Whatever those terms, it is clear that
Mimran was unhappy with the trial court’s custodial orders, particularly as to the parents’
respective obligations to transport Benjamin. On January 18, 2013, she filed a request for
relief from the court’s order regarding transportation issues, and sought an order for a
second evaluation.
On January 24, 2013, Mimran filed an ex parte application requesting emergency
relief from the order requiring her to participate in transporting Benjamin to or from
exchanges with Pittluck. She claimed that as a result of a collision with an uninsured
motorist on January 22nd which ruined her car, she lacked a means—and thus should be
relieved of the obligation—to transport Benjamin to or from visits with his father.
Mimran also attempted again to address her concerns with the custody order and the
court’s approval of Pittluck’s move-away motion. The court refused to revisit the latter
rulings. Pittluck proposed, and the court adopted, a custodial schedule which was
essentially a 50/50 split, but which required only two transitions per week for Benjamin.
In addition, Pittluck agreed to provide all transportation for Benjamin for the next few
weeks while Mimran lacked a car, until the court issued its ruling on Mimran’s pending
motion to modify the transportation order.
February 19, 2013 hearing
Mimran’s request for relief from the court’s transportation order and for a second
evaluation was argued on February 19, 2013. The court again refused to order another
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evaluation. The court observed that the judgment was fewer than six months old, and
that Mimran had yet to comply with its order to obtain counseling. The court observed
that Mimran had engaged in “bringing frivolous proceedings before the court,” and it was
“not going to waste [its] time or the party’s time with another whole exercise when
there’s been an extensive contested hearing already in this case.” It refused to give
Mimran “a second bite at the apple when there’s been no change in the circumstances
warranting it.”
With regard to the transportation order, the court refused Mimran’s request to be
relieved of the obligation to transport Benjamin to or from his visits with Pittluck. It
noted that both parents had apparently now begun to experience car problems. Further,
given the fact that the child’s transitions between households had been reduced to two per
week, it was fair to require each parent to make one trip per week. The court rejected
Mimran’s argument that she could not afford to buy a safe car and was afraid to travel on
the 405 freeway. It was also not persuaded by Mimran’s argument that it was not in
Benjamin’s best interests to be transported by bus or on the Metro as it cut into the
amount of time his pediatrician recommended that he sleep, or that it was unsafe for
Mimran to travel to Pittluck’s Long Beach neighborhood to receive or drop off Benjamin.
The court modified the Friday evening drop-off schedule to accommodate Mimran’s
religious practices. In all other respects, the custodial order remained unchanged.
Mimran filed a notice of appeal on April 5, 2013.
DISCUSSION
It is virtually impossible to discern the substance of Mimran’s assertions of legal
error on appeal from her exceedingly lengthy and largely incoherent briefs. Her opening
and reply briefs fail to cite properly to the record. We would be justified in striking the
briefs or treating issues therein as waived.3
3 Duarte v. Chino Community Hospital (1999) 72 Cal. App. 4th 849, 856 [“If a
party fails to support an argument with the necessary citations to the record, that portion
of the brief may be stricken and the argument deemed to have been waived.”]; People v.
4
It is Mimran’s duty, as appellant, to affirmatively demonstrate error by citation to
the record and any supporting authority. “[R]eview is limited to issues which have been
adequately raised and briefed. [Citations.]” (Lewis v. County of Sacramento (2001) 93
Cal. App. 4th 107, 116.) “Appealed judgments and orders are presumed correct, and error
must be affirmatively shown. [Citation.]” (Hernandez v. California Hospital Medical
Center (2000) 78 Cal. App. 4th 498, 502.) As appellant, Mimran has the burden to
provide an adequate and accurate appellate record to demonstrate error. Without an
adequate record, “we cannot review the basis of the court’s decision.” (Ibid.)
The record presented by Mimran is wholly inadequate. It consists solely of the
register of actions, a minute order, notice of appeal and proof of service, notices
designating the appellate record and the reporter’s transcript. Mimran failed to provide
this court with the August 2012 judgment, any subsequent orders (apart from the
February 19, 2013 ruling), or any document filed by either side in connection with the
matters at issue. Without a proper record of the proceedings below, especially motions
and supporting evidence, we cannot conduct an adequate review. (Cal. Rules of Court,
rules 8.120–8.122; see Advanced Choices, Inc. v. State Dept. of Health Services (2010)
182 Cal. App. 4th 1661, 1670 [appellate court must ignore issues requiring review of
documents not provided by appellant]; cf., Estate of Fain (1999) 75 Cal. App. 4th 973, 987
[insufficient oral record].)4
Stanley (1995) 10 Cal. 4th 764, 793 [“‘[E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on a particular point, the
court may treat it as waived, and pass it without consideration.’” (Italics omitted.)].
4 That Mimran is self-represented does not exempt her from these procedural
requirements. “Under the law, a party may choose to act as his or her own attorney.
[Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and attorneys. [Citation.]’
[Citation.]” (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246–1247.) A self-
represented litigant is not entitled to lenient treatment. (Rappleyea v. Campbell (1994) 8
Cal. 4th 975, 984–985.)
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Even on the merits Mimran’s arguments, to the extent they can be discerned, lack
substance. First, only those matters in the February 2013 hearing from which Mimran
appealed may be considered. The time for appeal from the August 28, 2012 family law
judgment expired long before Mimran filed the April 5, 2013 notice of appeal. (See Cal.
Rules of Court, rule 8.104.)
The primary issue arising from the hearing on February 19, 2013, was the trial
court’s refusal to release Mimran from the obligation to participate equally in
transporting Benjamin to or from visits with his father. The general standard for
appellate review of custody and visitation orders is the deferential abuse of discretion
test. (In re Marriage of Burgess (1996) 13 Cal. 4th 25, 32 (Burgess); Montenegro v. Diaz
(2001) 26 Cal. 4th 249, 255.) A trial court abuses its discretion “if there is no reasonable
basis upon which the trial court could conclude that its decision advanced the best
interests of the child.” (In re Marriage of Melville (2004) 122 Cal. App. 4th 601, 611;
Burgess, at p. 32.) “The precise measure is whether the trial court could have reasonably
concluded that the order in question advanced the ‘best interest’ of the child.” (Burgess,
at p. 32.)
Mimran has shown no abuse of discretion with regard to the trial court’s refusal to
relieve her from the obligation to share the responsibility of transporting Benjamin.
Although Mimran claimed she could not afford to buy another car after hers was totaled,
she acknowledged that she was able to borrow friends’ cars on occasion. Moreover,
Mimran conceded that her insurance policy provided her $3,500 to cover the loss of her
car, but claimed that money was committed to another purpose and, in any event, was
insufficient to buy a car safe enough to travel Los Angeles freeways, on which she was
afraid to drive. The trial court rejected that argument, as it had before, observing that
“freeways . . . are a fact of life in Los Angeles.” Finally, the court noted that given that
both parents were apparently experiencing car problems, if Mimran chose not to buy
another car, it was not unreasonable to require her to borrow or rent a car, or to use public
transportation once each week in order to comply with her obligation to transport
Benjamin to or from his visits with his father. On this record, we find no reasonable
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basis on which to conclude that Mimran has shown the court’s decision failed to advance
the child’s best interests. (In re Marriage of Melville, supra, 122 Cal.App.4th at p. 611;
Burgess, supra, 13 Cal.4th at p. 32.)
Mimran also takes issue with the trial court’s refusal to order a second evaluation.
She was apparently dissatisfied with the evaluation performed by Dr. Cohen, an evaluator
chosen by her counsel. In response to Mimran’s request for a reevaluation of the
custodial arrangement, the court observed that it had already held a lengthy hearing
addressed to the evaluation. After the hearing, the court had agreed with Mimran on
several points, rejecting a number of Dr. Cohen’s recommendations. However, it found
that some of Dr. Cohen’s recommendations did advance Benjamin’s best interests. To
that end, it ordered Mimran to undergo counseling sessions and to take coparenting
classes. To date, Mimran had not yet fully complied with those orders and, apart from
the loss of her car, had shown no change of circumstances. Absent a showing of changed
circumstances, Mimran has failed to demonstrate that there was “no reasonable basis
upon which the court could conclude that its decision advanced the best interests of the
child.” (In re Marriage of Melville, supra, 122 Cal.App.4th at p. 611.) Mimran has
shown no abuse of discretion.
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DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, Acting P. J.
MILLER, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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