Marriage of Schildroth CA4/2

Filed 11/10/26 Marriage of Schildroth CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO In re the Marriage of JOHN and JENNIFER SCHILDROTH. JOHN SCHILDROTH, E085137 Respondent, v. (Super.Ct.No. FAMSB2208963) JENNIFER SCHILDROTH, OPINION Appellant. APPEAL from the Superior Court of San Bernardino County. Aruna P. Rodrigo, Judge. Affirmed. Jennifer Schildroth, in pro. per., for Appellant. Cage & Miles and John T. Sylvester for Respondent. 1  I. INTRODUCTION AND BACKGROUND Appellant Jennifer Schildroth (Mother) and respondent John Schildroth (Father) share custody of two children subject to a July 2023 final custody order. The custody order was entered after a trial involving the testimony of multiple live witnesses, the presentation of numerous items of documentary evidence, and the trial court’s recitation of specific factual findings on the record. However, the transcript of this proceeding has not been made part of the record in this appeal. In 2024, Mother and Father filed competing requests to modify the existing custody order, and the trial court conducted an evidentiary hearing on the modification requests in October 2024. At the time of hearing, the parties stipulated to submit four declarations into evidence for consideration as direct testimony subject to the right to cross-examination.1 However, only two of these declarations have been included as part of the record on appeal. The trial court also admitted into evidence multiple exhibits related to electronic communications between Mother and Father, as well as the children’s academic performance. Only a portion of the exhibits admitted into evidence have been included as part of the record on appeal. Finally, the trial court took judicial notice of the prior custody order as well as the findings and orders after hearings previously issued in the case. But the record on appeal does not include the actual 1 Specifically, the parties agreed to (1) a February 15, 2024, declaration submitted with Father’s request for modification; (2) an April 4, 2024, supplemental declaration submitted by Father; (3) a June 18, 2024, further supplemental declaration submitted by Father; and (4) an April 2024 declaration submitted by Mother in support of her competing request for modification. 2 custody order2 or the referenced findings and orders. At the conclusion of the evidentiary hearing, the parties submitted the matter for the trial court’s consideration. On October 11, 2024, the trial court issued a written ruling on the submitted matter. The trial court (1) found Mother failed to show a change of circumstances in support of her request for modification, (2) found Father had met his burden to show a change of circumstances warranting modification, and (3) modified the existing custody order by granting Father the sole legal custody over nonemergency medical decisions. Mother appeals from the modification order. We conclude that Mother has not met her burden to establish prejudicial error warranting reversal, and we affirm the order. II. DISCUSSION A. General Legal Principles and Standard of Review “California’s statutory scheme governing child custody and visitation determinations is set forth in the Family Code .… [¶] For purposes of an initial custody determination, section 3040, subdivision (b), affords the trial court and the family ‘ “the widest discretion to choose a parenting plan that is in the best interest of the child.” ’ ” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955.) However, “[o]nce the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from 2 The record on appeal includes a minute order entered in July 2023 after trial. However, the minute order states that a formal order for joint legal custody is “attached and ordered incorporated into the minute order,” but the attachment has been omitted from the record in this appeal. 3 disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement.” (Ibid.) Thus, “[u]nder the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (Id. at p. 956.) “ ‘The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) However, “the abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711; Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1054.) Under this standard, “[t]he trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi, at pp. 711-712.) B. Mother Has Not Met Her Burden to Show Judicial Bias Warranting Reversal Instead of directly challenging the merits of the trial court’s modification order in this case, the primary argument asserted in Mother’s opening brief is that “judicial bias has prejudiced this case and denied her the rights afforded to her.” We conclude that Mother has not met her burden to show the existence of judicial bias warranting reversal. Generally, “[b]ias and prejudice are grounds for disqualification of trial judges,” and “there is a statutory procedure to litigate the issue.” (Moulton Niguel Water Dist. v. 4 Colombo (2003) 111 Cal.App.4th 1210, 1218; Code Civ. Proc., §§ 170.1, 170.3.) The “state statutory system for dealing with alleged judicial bias” requires “those concerned about judicial bias to file in the trial court and, if dissatisfied, to petition for writ of mandate, which is the exclusive means of review.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 588.) Absent such objection in the trial court, the “only avenue for [a] bias argument is the due process clause, which sets an exceptionally stringent standard.” (Id. at p. 589; Chi v. Department of Motor Vehicles (2026) 119 Cal.App.5th 473, 480 [“[T]he due process standard is more limited than statutes and ethical rules that are designed to prevent bias or the appearance of bias.”], review granted May 13, 2026, S296201.) “Establishing a violation of this right requires ‘an objective assessment of the circumstances in the particular case’ and ‘ “ ‘the probability of actual bias on the part of the judge … [that] is too high to be constitutionally tolerable.’ ” ’ ” (People v. Nieves (2021) 11 Cal.5th 404, 498.) “ ‘[I]t is the exceptional case presenting extreme facts where a due process violation will be found.’ ” (Ibid.; Schmidt, supra, 44 Cal.App.5th at p. 589 [“A constitutional finding of judicial … bias is appropriate only when ‘extreme facts’ demonstrate a probability of actual bias.”].) And “ ‘[t]he burden of proof is on appellant as the party claiming bias to establish facts supporting her position.’ ” (In re M.V. (2025) 109 Cal.App.5th 486, 517.) In this case, Mother has not identified past controversy between the judge and any party, pecuniary interest of the trial judge impacted by the case, or any basis to conclude that the trial judge held a predisposition to rule on any specific issue in this case. Nor has 5 Mother cited to any specific statements by the trial judge expressing a bias toward her or toward a group to which she belonged. Instead, Mother’s claim is premised exclusively on the argument that an impartial trial judge would not have ruled against her based upon the evidence in the record. This argument is simply not adequate to meet Mother’s burden to establish actual bias on appeal. (Schmidt, supra, 44 Cal.App.5th at p. 589 [“Numerous and continuous rulings against a party are not grounds for a finding of bias.”]; People v. Pearson (2013) 56 Cal.4th 393, 447 [“ ‘A trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias ….’ ”]; In re M.V., supra, 109 Cal.App.5th at p. 517 [“ ‘The mere fact that the trial court issue[s] rulings adverse to [a party] on several matters in this case, even assuming one or more of those rulings were erroneous, does not indicate an appearance of bias, much less demonstrate actual bias.’ ”].) Thus, we conclude that Mother has not met her burden to establish judicial bias warranting reversal, and we decline to reverse the custody modification order on this basis. C. Mother’s Additional Contentions Do Not Warrant Reversal Intertwined with her assertion that judicial bias is a ground for reversal in this case, Mother also identifies several specific issues she characterizes as “problem[s]” requiring correction. To the extent Mother intended to raise each of these issues as separate claims of error on appeal, we conclude that these claims have been forfeited and further conclude that, even in the absence of forfeiture, Mother has not presented an adequate record for this court to review the merits of her claims. 6  An appellant is required to present each contention of error under a separate heading, support each point with reasoned argument, and, if possible, provide citation to authority for each claim of error. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; Cal. Rules of Court, rule 8.204.) Failure to do so forfeits the claim of error on appeal. (Pizarro, at pp. 179-181; Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1065; In re Phoenix H. (2009) 47 Cal.4th 835, 845 [“ ‘ “Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned.” ’ ”].) Here, each of the “problem[s]” identified by Mother are not discussed as separate claims of error under a separate heading. Further, the opening brief does not actually present any argument identifying the nature of the error alleged or the standard of review related to any specific issue.3 Instead, Mother relies solely on assertions that the modification order imposes consequences that are difficult for her or her children. But the fact that a trial court’s order will have an adverse impact on the party who does not 3 Instead, Mother waited until her reply brief to significantly expand the scope of her arguments, in many cases identifying the applicable standard of review and identifying the specific claim of error for the first time. Notably, the accompanying certificates of word counts indicate that Mother’s reply is nearly twice the length of the opening brief. However, “ ‘ “[i]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party,” ’ ” and “courts will not consider such an argument ‘absent a showing why the argument could not have been made earlier.’ ” (Starr v. Mayhew (2022) 83 Cal.App.5th 842, 854.) Where, as here, the opening brief does not identify the nature and basis of the claimed errors or the applicable standards of review, a respondent is forced merely to guess at what issues should be discussed in the respondent’s brief. Mother has not presented any reason why she waited until the reply brief to identify the actual claims of error and standards of review in support of her claims. Thus, we decline to entertain them. 7 prevail in the case does not establish error or grounds for reversal.4 Absent separate and clearly identified claims of error accompanied by reasoned argument, we conclude that any claim Mother may be attempting to assert in this portion of her brief has been forfeited. Even in the absence of forfeiture, we would conclude that Mother has not met her burden to establish error warranting reversal on appeal. It is a fundamental rule of appellate jurisprudence that “ ‘ “if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ … ‘ “Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” ’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609; In re Domestic Partnership of Torres Campus & Munoz (2026) 118 Cal.App.5th 1112, 1126-1127; Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 610.) As we have already explained, a trial court’s order modifying custody is reviewed for abuse of discretion (Montenegro, supra, 26 Cal.4th at p. 255), requiring a reviewing court to consider whether factual findings in support of the trial court’s order are supported by substantial evidence (Haraguchi, supra, 43 Cal.4th at p. 711; Salmon, supra, 85 Cal.App.5th at p. 1054). Father correctly points out that Mother did not designate or include multiple items of evidence submitted for the trial court’s decision in this matter, and Mother concedes in reply that many items of evidence have not been 4 Presumably, in most contested civil proceedings, the party who does not prevail will experience consequences adverse to her interests as a result of the order or judgment issued against him or her. 8 properly included as part of the record in this appeal.5 Crucially, the trial court in this case was required to evaluate whether either party had submitted evidence to show a change of circumstances warranting modification of an existing child custody order. (In re Marriage of Brown & Yana, supra, 37 Cal.4th at p. 956.) Yet, Mother has not included any record of the findings that supported the order in existence at the time the parties submitted their modification requests. We cannot evaluate the propriety of the trial court’s determination regarding changed circumstances where the record is inadequate to disclose what facts were already in existence at the time the original order was issued. Thus, even if we were to overlook Mother’s forfeiture to reach the merits of Mother’s claims, we would determine that the appellate record is inadequate to establish error or prejudice warranting reversal. And in the absence of an adequate record, we are required to affirm the order. 5 The appellate docket suggests Mother attempted to belatedly address this deficiency by improperly attaching numerous exhibits to her reply brief that were not previously included as part of the appellate record. However, attachments to an appellate brief are limited to exhibits or other materials already in the appellate record. (Cal. Rules of Court, rule 8.204, subd. (d).) The California Rules of Court provide the means by which a party may seek to augment or correct the appellate record (rule 8.155) and Mother is clearly aware of these procedures given that she requested and we granted at least one prior request to augment the record prior to the filing of Mother’s opening brief. 9  IV. DISPOSITION The order is affirmed. Respondent to recover his costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS FIELDS J. We concur: MILLER Acting P. J. MENETREZ J. 10