Opinion
G062023
04-19-2024
In re Marriage of NANCY and ANTHONY VASEK. v. ANTHONY GABRIEL VASEK, Appellant. NANCY WAHAMAKI VASEK, Respondent,
Anthony Gabriel Vasek, in pro. per., for Appellant. Law Office of Michael L. Fell, Shyneisha Rous'e and Rita Liu; Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Barbero for Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 22D003831, Yolanda V. Torres, Judge. Affirmed.
Anthony Gabriel Vasek, in pro. per., for Appellant.
Law Office of Michael L. Fell, Shyneisha Rous'e and Rita Liu; Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Barbero for Respondent.
OPINION
MOORE, J.
Anthony Gabriel Vasek (Anthony) appeals the issuance of a domestic violence restraining order (DVRO) as to his spouse, Nancy Wahamaki Vasek (Nancy) in this ongoing family law case. He argues both legal errors and a lack of evidence, but the record demonstrates that none of his contentions have merit. We therefore affirm the trial court's order issuing the DVRO.
Due to their common surname, we refer to the parties by their first names for the ease of the reader. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
I
FACTS
Anthony does not, despite the California Rules of Court, "provide a summary of the significant facts limited to matters in the record," supported by references to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C), (a)(2)(C).) We draw the facts from the record, but if we omit any fact that might benefit Anthony, he has waived inclusion of that fact by failing provide a compliant statement of facts with record citations.
Subsequent references to rules are to the California Rules of Court.
Anthony and Nancy married in July 2017. On June 1, 2022, Nancy served Anthony with a Petition for Dissolution and Request for Domestic Violence Restraining Order. The copy of the petition served on Anthony was missing exhibit A, a compendium of e-mails.
A proof of personal service of the petition was filed on June 28, stating that Anthony had been served with the petition and DVRO request on June 7.
According to the petition, on March 4, 2022, Anthony woke Nancy up "in a fit of rage," blaming her for closing a window in their room. She tried to leave the room, but he continued to yell and call her names, and squeezed her body against the wall. "He was on my right and I put up my arm to protect myself to not be squeezed against the wall. I asked him to stop yelling, however, that only made him rage even more. [Anthony] then pushed me extremely hard and slammed the door shut of the room I fell into." While Nancy alleged Anthony had previously been verbally and emotionally abusive, this was the first time the abuse had been physical. When she told him the next morning that his behavior "'was horrific,'" Anthony was not remorseful, blaming her for closing the window and telling him not to yell. Nancy alleged that Anthony said, "'You think it was horrific for you? What about me? I knew as I was pushing you last night, that I could have really, really hurt you.'"
Despite these events, they attempted marriage counseling. Nancy slept in a spare room with the door locked. At some point, she spent three days at her brother's home. When she returned, she asked for the privacy of the spare bedroom starting at 6:00 p.m., which Anthony resisted, stating that he would come in anytime he wanted and that she was not allowed to dictate rules to him. She locked herself in the bedroom repeatedly to avoid Anthony.
Nancy eventually left on April 13 after an argument about Anthony's request to remove his name from the title of the car she drove. "He started to rage about that, and calling me names, and saying I was always 'resistant.'" After she left, Anthony's behavior became what Nancy called "very suspicious. He began to make threats and attempted to gaslight me into returning home to him." He made changes to their finances, including withdrawing money from joint accounts, canceling credit cards, and canceling her car insurance. He removed her access to shared accounts and moved a pension direct deposit from a joint account to a personal one, and locked her out of the marital home. He refused to allow her access to pick up vital documents, such as a passport and birth certificate, as well as other personal documents, including her writings and artwork.
On May 28, Nancy received several messages from friends who were concerned about her. She learned that Anthony had sent an e-mail message to eight friends and family members asking them to "intervene." Nancy's declaration, attached to the petition, stated Anthony's e-mail and the documents he had distributed were attached to the declaration as exhibit A, but it does not appear that they were, or if they were, they do not appear in the record. According to the declaration, the e-mails contained personal writings and an audio recording of Anthony speaking to Dr. Anthony Fiore, a marriage counselor who had treated Nancy. The e-mails were sent to Fiore, another of Nancy's therapists, and numerous other individuals, including friends and family members. This compendium of documents comprises the missing "Exhibit A."
Nancy's petition described herself as an artist, and stated her writings and artwork are her craft, yet Anthony distributed her writings, which dated back to 1988, attempting to "psychoanalyze my well[-]being" in an effort to harass her. She was both embarrassed and distraught by this incident.
With respect to the temporary DVRO order, on June 1, the court granted in part and denied in part Nancy's request and set a hearing for June 30. Nancy did not give notice of the ex parte request for the temporary order, stating she "is fearful of what [Anthony] may do next based on a physical assault and subsequent harassment to her, family, and friends." The partially granted order was issued on the DV-110 form and restrained Anthony, until the June 30 hearing, from harassing, disturbing the peace, or exercising coercive control with respect to Nancy. It also included a no-contact and stay-away order. In all respects, this was a typical form temporary restraining order (TRO).
At the hearing on June 30, the parties agreed to a continuance until September 15. The TRO was extended to that date. By this hearing, Anthony's then-counsel stated they had received the missing exhibit A. Nancy's counsel had not learned that exhibit A was missing from the served copy of the petition, and she immediately emailed it to Anthony once he so informed her of the error on August 30. Counsel also refiled exhibit A with the court in the event the document was also missing from the court's copy.
At the continued hearing on September 15, Anthony claimed he filed an ex parte motion for a nunc pro tunc order to rehear the question of the TRO. He asserted that the ex parte motion had been filed two days prior, but the court did not have the document in its file. (The file-stamped copy of Anthony's ex parte motion was dated September 15, the same date as the hearing.) Essentially, the ex parte motion requested the court to "reconvene the hearing on [Nancy's] original request for a [TRO] so as to afford [Anthony] his constitutional right to be heard on the question of whether a [TRO] . . . should have been issued in the first place." He claimed the missing exhibit A did not support Nancy's claim of abusive conduct, but demonstrated his "deep affection and love for his wife" and "concern[] about her immediate as well as long-term well[-]being." He claimed the missing exhibit rendered service of the entire petition defective and his "exclusion" from the TRO decision violated his due process rights.
Nancy's counsel e-mailed these documents, which were not available in the court's system, to the court and Anthony. The court wished to review Anthony's declaration and exhibits submitted with the nunc pro tunc motion and continued the matter to September 20.
On September 20, after numerous arguments and interruptions from Anthony that he only wished to have his nunc pro tunc motion heard, rather than the restraining order, the court clarified it was not going to make a ruling on that motion because it was not properly before the court. The court proceeded with the hearing, and the parties and two other witnesses testified - Dr. Anthony Fiore, a psychologist and marriage therapist, and Stewart Gandolf, Jr., Nancy's brother.
In addition to the incidents described in her declaration, Nancy testified as to an incident in January 2021. They were preparing to sell a house, and upon Anthony's return home, she asked him how an appraisal had gone. Anthony began to yell and threaten the relationship was over, leaving Nancy devastated. Anthony engaged in what she described as "yelling and yelling and yelling" and refused to speak to her. The next morning, he said that he loved her and would never hurt her or divorce her. Nancy described herself as "naive" but felt relieved that the relationship was not over. She said this type of incident repeated itself over and over. It was the pushing incident in March 2022 that led her to believe the relationship was not salvageable because she did not feel safe anymore.
At the conclusion of the hearing, the court admitted Nancy's petition and request for a restraining order, Anthony's response and his September 15 declaration. The court determined that Nancy's testimony about her fear of Anthony after the March 2022 incident was credible. The court also found that Anthony's dissemination of Nancy's personal writings disturbed her mental health and calm and peace. The court found that if Anthony, as he claimed, was truly concerned about Nancy's mental status, he would have reached out to her psychiatrist and/or counselor, not the other individuals Anthony contacted. His contact with her friends and family caused her embarrassment, humiliation, and disturbed her mental calm and was intended to do so. The court granted a one-year restraining order.
II
DISCUSSION
Requests to Augment the Record
Anthony submitted two requests regarding the record. The first, dated June 3, 2023, was in the form of a letter. He sought to "1) reconstitute the Clerk's Transcript (CT) by replenishing pages that were omitted as a result of two duplication errors by the staff of the Clerk of the Orange County Superior Court; 2) augment the record on appeal to recoup Appellant's exhibits that were lost by the trial court; and 3) augment the record on appeal to add items critical to Appellant's case." It is not clear that these items were filed or lodged in the trial court, as required by rule 8.155 (a)(1)(A), as they do not include court markings. Anthony's letter/motion did not include a statement under penalty of perjury that all of the documents sought to be augmented had been part of the trial court's record, and it is apparent that at least some of the documents are dated after the order Anthony appeals from. Accordingly, the motion to augment cannot be granted.
The second request to augment, received on October 16, 2023, includes nine documents, each of which is dated after the order appealed from. Therefore, they were not before the trial court at the time it made its ruling and not appropriate for augmenting this record. This second request to augment the record is denied.
Briefing Requirements
Despite Anthony's status as a self-represented litigant, he is nonetheless required to follow the rules of procedure. "It is the appellant's affirmative duty to show error by an adequate record." (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; rule 8.204(a)(1)(B)), and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error (rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115). "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Statutory Framework
The Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) "'was created to protect people . . . who have legitimate fears of physical harm from a domestic partner.'" (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852.)
"'Violence,' as that word is commonly defined, is not a prerequisite for obtaining a restraining order under the DVPA. The dictionary definition of 'violence' is 'the exertion of any physical force so as to injure or abuse.' (Webster's 3d New Internat. Dict. (1981) p. 2554.) The DVPA, however, defines 'domestic violence' as 'abuse.' (§ 6211.) 'Abuse is not limited to the actual infliction of physical injury or assault.' (§ 6203, subd. (b).) For purposes of the DVPA, 'abuse' means, [among other things], '[t]o engage in any behavior that has been or could be enjoined pursuant to Section 6320.' (§ 6203, subd. (a)(4).) Section 6320, subdivision (a) permits the court to enjoin a party from 'harassing . . . or disturbing the peace of the other party....'" (Ibid.) "[I]t is well established that the DVPA should 'be broadly construed in order to accomplish [its] purpose.'" (Rivera v. Hillard (2023) 89 Cal.App.5th 964, 977.)
Standard of Review
"'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)
In short, that means Anthony has the burden of demonstrating the trial court made a mistake - and not just any mistake, but one that would warrant reversal. To warrant reversal, an error must meet the standard we refer to as "prejudicial." That means the error "'has resulted in a miscarriage of justice.'" (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Not all errors meet this standard.
"We review the trial court's grant or denial of a DVPA restraining order request for an abuse of discretion." (In re Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106, 115.) Under the abuse of discretion standard of review, "The appropriate test . . . is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) To demonstrate an abuse of discretion, the appellant bears the heavy burden of showing the court had no reasonable basis for its action. (Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 522.)
To the extent we review the trial court's factual findings, we apply the substantial evidence test. (In re Marriage of F.M. &M.M., supra, 65 Cal.App.5th at p. 116.) "When reviewing a trial court's factual findings for substantial evidence we accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment. [Citation.] 'Under the substantial evidence test, the pertinent inquiry is whether substantial evidence supports the court's finding-not whether a contrary finding might have been made.' [Citation.] 'The testimony of one witness, even that of a party, may constitute substantial evidence.'" (In re Marriage of Ankola (2020) 53 Cal.App.5th 369, 380.)
This standard, too, creates a heavy burden for the appellant, because we do not reweigh the evidence, nor do we judge the credibility of witnesses. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622.) In our review for substantial evidence, we examine only the evidence the trial court relied upon in reaching its decision, and disregard all contrary evidence. If the evidence the trial court relied upon is sufficient to establish each relevant fact necessary under the DVPA, we will conclude substantial evidence supported the court's decision.
Due Process
Anthony claims his due process rights were violated because an exhibit to Nancy's declaration, exhibit A, was missing from the copy of the request for TRO and accompanying request for restraining order that was served. The exhibit consisted of an e-mail message Anthony sent to eight members of their friends and family. He states he "eventually received" a copy of the exhibit, but does not provide the date. According to the record, the date was the same date he brought the issue to opposing counsel's attention, August 30, several weeks before the September 20 hearing. Anthony asserts the contents of the exhibit were "mispresented" in Nancy's declaration and was missing accompanying attachments which were purportedly "essential" to understanding the contents of his e-mail.
Assuming that the exhibit was not served until sometime later, Anthony does not explain why he did not have a copy of the e-mail that he admits he sent. The declaration identifies the e-mail, the names of the persons to whom it was sent, and the date upon which Nancy began to receive queries from her friends and family as a result. Accordingly, Anthony's claims that he had no idea what the exhibit consisted of ring hollow. Second, there is no indication whatsoever that the trial court relied upon this email, much less placed undue reliance upon it, in its decision to issue the TRO. Third, Anthony cannot now contest the issuance of the TRO, which was a separately appealable order. (Rivera v. Hillard, supra, 89 Cal.App.5th at pp. 974-975.) We find no reversible error.
Ex Parte Process
Anthony claims his rights were violated with respect to the TRO because he was excluded from the ex parte process. He is incorrect. As we stated above, he cannot contest the issuance of the TRO at this point. (Rivera v. Hillard, supra, 89 Cal.App.5th at pp. 974-975.) Further, under the DVPA, a TRO may be issued without notice. (Fam. Code, § 6300.) Anthony's factual arguments about what might have been presented at a contested TRO hearing are simply beside the point. The court had the power to issue the TRO without a hearing, and doing so was not error.
"Defective Service"
Again returning to the missing exhibit A from the initial TRO application, Anthony claims there was "defective service of the summons packet" on June 7. Opposing counsel pointed out at the time that because he had filed a response to the petition, any issue of service was waived. Counsel was correct.
First, there is no separate "summons" issued with a request for a DVRO. Numerous court forms are involved, but none of them is a "summons." There is a summons issued with the divorce petition, which was served at the same time in this case according to Anthony's own narrative. There is no question that Anthony received both the divorce petition and the request for a DVRO. Accordingly, there is no issue with respect to service.
Anthony also complains about the court's response to his request to grant a motion, apparently to reconsider the TRO, nunc pro tunc. Apparently, according to the reporter's transcript, this related to the missing exhibit from the TRO request. When he tried to raise this at the hearing on the DVRO, the court said the request was not properly before it. For the same reasons discussed above, we find no reversible error.
Anthony's Exhibits
Anthony next argues that on two occasions, his exhibits were "mishandled" to the extent that they impacted his case. He claims the first instance was related to his nunc pro tunc motion, which had apparently been filed without enough time for them to appear in the trial court's system. Opposing counsel offered to e-mail exhibits the court could not locate. First, it is entirely Anthony's responsibility to ensure the court has the necessary documents. Opposing counsel had no duty to forward anything. Moreover, Anthony claims "opposing counsel has a propensity for lying," which is unsupported by the facts. We decline Anthony's demand that this court discount "everything opposing counsel has said, and will say . . . 100%." Second, this "motion" regarding an exhibit to the TRO request is not what this appeal is about today. Accordingly, it is irrelevant.
Anthony's next claim is that the trial court "mishandled" some of his exhibits. What he leaves out of this discussion is how, exactly, these documents were related to the appeal from the DVRO appeal before us, as the documents he complains were mishandled appear to be related to a motion for sanctions and/or other collateral matters. Anthony also appears to confuse documents appearing in a proof of service with documents being filed by the court. Even if there were some documents missing, Anthony's opening brief offers no legal argument whatsoever explaining how these documents are relevant, much less critical, to this appeal.
The Nunc Pro Tunc Motion and "Repurposed" Declaration
Anthony contends the court did not rule on his nunc pro tunc motion. The court, in fact, expressly declined to rule on the motion itself, stating it was not properly before the court. The court reviewed the declaration and argument in it as part of Anthony's defense to the DVRO, which Anthony welcomed, stating those documents were part of his defense. Anthony now claims that the trial court improperly reviewed the declaration he submitted in connection with his nunc pro tunc motion and considered it in opposition to the request for a DVRO. This argument is without merit or legal support.
Contrary to Anthony's belief, the court did not relegate his nunc pro tunc motion to "limbo." The court stated: "The court is not going to make a ruling on that motion because it's not properly before the court." That is a ruling. It is not an appealable order, however, nor is it pertinent to the court's ultimate decision on the DVRO.
The September 20, 2022 Hearing
Anthony asserts the court "convert[ed]" this hearing into a trial on Nancy's DVRO request, allowing her "to have multiple bites at the apple before [Anthony] had even had his first."
Anthony appears to misunderstand the DVRO process. The moving party -in this case, Nancy - is entitled to rulings on both temporary and permanent orders as a matter of law. A responding party is entitled to respond to the moving party, but has no inherent right to file interim motions or applications. The court determined that the only issue properly before it was Nancy's request for the DVRO. Anthony has not established otherwise, citing no law whatsoever on these points. He has not met his burden to establish error.
Presenting His Case
Anthony also has complaints throughout his brief that, in sum, state the court did not allow him to present his case. We disagree. Although the court at times asked Anthony to move on, this appears to be a reasonable reaction to both Anthony's persistent demands to hear his nunc pro motion and to his approach to questioning witnesses, which appears to often stray to matters other than eliciting relevant, admissible evidence. The court was clear with Anthony that he would be held to the same standard as an attorney when questioning witnesses, and his questions were often the subject of sustained objections.
Overall, our review of the transcript demonstrates Anthony was allowed to question witnesses and elicit evidence to the best of his ability. We also note that Anthony mischaracterizes the trial proceedings, cherry picking statements he believes serve his purpose and ignoring the rest. To the extent Anthony accuses the trial court of bias or "subornation of perjury," his claim is rejected.
Anthony had been aware since June 30 that trial would proceed in September and had more than enough time to prepare to represent himself or to retain counsel. Nothing he raises constitutes reversible error.
Substantial Evidence to Support the Order
As stated above, we review the trial court's decision to issue a DVRO for abuse of discretion, with all factual determinations reviewed under the substantial evidence standard. (In re Marriage of F.M. &M.M., supra, 65 Cal.App.5th at pp. 115116.) Anthony's arguments about the facts underlying the restraining order are entitled "Perjuries at the Heart of Accusations," "Misjudged Credibilities," among others. (Boldfacing &capitalization omitted.) All of these contentions are about whether there was substantial evidence to support the order. Anthony essentially asks this court to reweigh the evidence, reconsider the court's credibility determinations, and decide whether, if the court had ruled the other way, there would have been substantial evidence to support such an order. But doing so would turn the standard of review on its head. Instead, we examine what evidence the court had to support the order and determine whether it was sufficient.
The declarations of both parties were admitted into evidence, as was testimony by various witnesses. Taken together, the evidence, as summarized above, supported the trial court's express and implied findings that a long pattern verbal abuse had led to the pushing incident, after which Nancy was in fear for her physical safety. Further, there was evidence to support that Anthony's distribution of Nancy's writings disturbed her mental health and calm and peace, and were intended to do so, rather than to seek help for her. Accordingly, there is substantial evidence in support of the order.
III
DISPOSITION
The court's order granting the DVRO is affirmed. Nancy is entitled to her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. SANCHEZ, J.