Can't Prove a Negative on Appeal Without a Reporter's Transcript

Elena S. v. Kroutik, No. D068831 (D4d1 May 18, 2016)

Like last year’s Michaels case, this case involves a superior court policy of having commissioners resolve family court restraining orders. Respondent objects to the reference and claims he didn’t consent. But unlike in Michaels, there’s no record of the oral proceedings in the trial court, even though the proceedings were, in fact, reported. Respondent apparently decided to proceed without a reporter’s transcript.

That creates a problem because anything during the oral proceedings that might support an affirmance is simply presumed to have occurred. Including an on-the-record oral stipulation to proceed before the commissioner. 

The Court also half-heartedly suggests it would affirm on an implied waiver ground as well. By participating in the hearing, says the court, the defendant implicitly consented to proceeding before the commissioner. The court notes that that theory doesn’t entirely make sense, but feels like it is bound by a 1991 Supreme Court decision that relied on that logic.

Affirmed.