Opinion
D071554
08-18-2017
In re the Marriage of S.G. and F.R. F. R., Plaintiff and Appellant, v. S. G., Defendant and Respondent.
Dennis Temko for Plaintiff and Appellant. S. G., in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. D548030 and DV38618) APPEAL from an order of the Superior Court of San Diego County, Cindy D. Davis, Judge. Affirmed. Dennis Temko for Plaintiff and Appellant. S. G., in pro. per., for Defendant and Respondent.
F.R. (Wife) appeals from an order denying her petition to renew a domestic violence restraining order (DVRO) against her former husband S.G. (Husband). (Fam. Code, § 6345, subd. (a).) Wife contends the court abused its discretion in denying the renewal petition. We reject Wife's contentions and affirm the order.
All unspecified statutory references are to the Family Code.
FACTUAL AND PROCEDURAL SUMMARY
In Wife's appellate briefs, her counsel discusses only the evidence supporting her case, violating established appellate rules. "[An] appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant." (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 674, fn. 3.) Contrary to counsel's assertions, the fact the court granted the initial restraining order does not mean the court credited all the evidence at that hearing or found credible Wife's evidence pertaining to events after the initial DVRO order.
Despite this serious rule violation, we decline to hold Wife has forfeited her appellate arguments. We expect compliance with appellate rules in all future briefs.
Initial DVRO
In early 2014, Wife petitioned for a DVRO against Husband. At the time, Wife and Husband were married, but were considering filing for a dissolution. They had two children, Son (about seven years old) and Daughter (almost two).
At the March 2014 hearing on the petition, Wife was represented by counsel, and Husband represented himself. Wife presented evidence that six years earlier, in 2008, Husband "head-butted" her during an argument after Son's first birthday party. Wife also presented evidence that in 2009 while they were living in San Jose, Husband slapped her during an argument about financial issues, and Wife called the police. Wife additionally testified that Husband had engaged in verbal abuse against her, and the couple had many heated arguments that upset the children.
Husband denied he committed any physical or verbal abuse, and blamed Wife for the couple's inability to get along.
At the conclusion of the hearing, the court (Superior Court Judge Cindy Davis) granted Wife's petition and issued a two-year restraining order. The court said it was difficult to discern exactly what occurred between the couple, but "the parties do need time away from each other and they do need protection from each other." The court said: "I do think there is sufficient evidence to keep the two of you apart from each other. I think . . . if we can create space for . . . two years . . . [it will allow you] to figure out where you want to go and what you want to do."
The court declined to include the children in the protective order, finding the evidence did not show they were at risk. The court issued custody and visitation orders, noting the evidence showed "both parents love their children," and "both need to be in the children's life." The court said it was "just filling a teeny little gap of time. Because you're going to get over to divorce court and be assigned to a divorce judge, and they're going to make interim orders. . . . [¶] . . . [¶] . . . I'm just trying to slap a band-aid . . . to get us through that little period of time. I'm issuing the restraining order but I want [Husband] to be able to see [the children] . . . until you can get to family court services and figure out a schedule that makes sense."
Renewal Proceedings
Two years later, Wife petitioned to permanently renew the DVRO. At the time, the parties were living apart and were in dissolution proceedings before Judge David Oberholtzer, who had awarded the parents' joint custody of the children (except that Wife had the authority to decide on therapy for the children).
A hearing on the renewal petition was held before Judge Davis. Both parties were represented by counsel at this hearing.
Wife's Case
In support of her renewal request, Wife testified that in May 2014 (about six weeks after the initial restraining order was issued) Husband violated the DVRO when he came to her garage to pick up certain items he had left at the home. Wife acknowledged she had given Husband permission to pick up the items (this consent was documented in emails), but claimed Husband improperly confronted her in the garage and intimidated her.
Wife also claimed (through her testimony and statements in her declaration) Husband had violated various family court custody and visitation orders, making it difficult for her to plan her own vacations and schedules. She stated Husband's communications regarding coparenting issues were "emotionally abusive, harassing, and disturbing to my peace." She said that Husband has continued to make negative comments about her to the children, in violation of the family court's orders. She said these comments were "having an adverse affect on the children's relationship with me because they are constantly being told that the divorce is my fault . . . ." Wife claimed Husband was intimidating the children and using them to harass her, and that Husband's treatment of the children "brought back . . . memories about my being intimidated by" Husband.
Wife acknowledged she was not claiming that Husband abused the children and was not seeking a protective order regarding the children, but she also testified that Husband had left a bruise on Son's arm and that when she complained about this bruise to child protective services (CPS), the social workers did not conduct an adequate, timely investigation. Wife said the incident caused her to feel "fear all the time. Fear for safety of my child, anxious for him, not being able to help him." Wife also testified that during a vacation before the issuance of the 2014 DVRO, Husband twisted Son's ear after Son was "jumping up and down" on a bunk bed.
Wife also testified at length about the 2008 "head-butting" incident and the 2009 slapping incident. With respect to the 2009 incident, she produced police photographs showing redness on one side of her face, and said the police officers issued an emergency protective order. Wife said that Husband continues to deny that he physically abused her, despite that she successfully obtained this emergency order and obtained a temporary restraining after the "head-butting" incident.
Wife said she remains "afraid" of Husband and "will remain so until the day I die." When asked to explain this fear, she said: "It's just the fear from the relationship I had with him or it's just . . . I'm just still fearful. He hasn't called me anything. But on a phone call or something, he—the only time that I was fearful and he was close—got close to me was during the time that he came to the garage and wanted to pick up some bucket that was supposed to be very close to the door. That was the only time that I got very fearful." Wife acknowledged that after the initial DVRO was issued, Husband did not follow her, call her, harass her, or interfere with her property, and that he was never arrested for any of the claimed abuse.
Husband's Case
In response to Wife's claims, Husband asserted (through his testimony and declaration) that Wife's allegations were "untruthful" and that Wife is "trying to use [the renewal petition] to again gain an advantage related to ongoing issues with custody and visitation of our children." Husband denied he engaged in any actions "to cause [Wife] to believe in any way that she is at risk for any sort of abuse." Regarding the May 2014 garage incident, Husband said that Wife had given him permission to retrieve certain personal property from the garage, and that "when [he] was there [he] did not do anything to cause [Wife] to fear for her safety."
Husband testified that Judge Oberholtzer has rejected Wife's arguments regarding his claimed abuse of the children, and that Wife has repeatedly triggered CPS investigations that have resulted in inconclusive or unfounded findings. He presented a minute order in the parties' dissolution case reflecting Wife's statement she would not be requesting a custody modification based on her DVRO renewal petition. Husband also presented emails showing that Wife asked him to spend additional time with the children to accommodate her work schedule and that Wife recently permitted him to take Son out of town to a work-sponsored family event.
Husband said that all of his interactions with Wife have been related to coparenting and scheduling issues, and denied that he has acted in any manner that would cause Wife to fear him. In his declaration, he said: "Raising children is stressful. Judge Oberholtzer acknowledged this to [Wife] during our trial and even commented to her that it appeared she was attributing child raising stress to me. He told her that I was not the cause of her stress but that raising 2 children is the cause of her stress."
Husband also testified that the DVRO negatively impacts his ability to parent his children, including to volunteer in their classrooms and register them for activities. He said he is now unemployed, and that the DVRO interferes with his employment opportunities because of employer background checks, and also impacts his international travel, causing him to be routinely placed in secondary screening status.
Court's Ruling
After considering the parties' declarations, testimony, and documentary evidence, the court denied Wife's renewal motion. The court found Wife did not meet her burden to show her fear was reasonable, explaining:
"The petitioner bears the burden of proof by a preponderance of the evidence that she has a . . . reasonable apprehension of future abuse. . . . [¶] . . . I don't have the dissolution file, but based on all the evidence presented in this proceeding, that this was or is a high conflict dissolution, that the parties have significant co-parenting problems. That when I read [Wife's] declaration . . . , many, many of the paragraphs relate to co-parenting issues. That is how I would describe it. Kind of the types of things that we see in high conflict dissolution cases.
"[I]t seems like the push and pull of control over the children is on both sides, but it does appear that [Wife] has significant control issues. She has unilaterally pulled the children from various camps. She alleges that [Husband] is using the children to harass her. It does appear that the use of the restraining order is a form of control for [Wife] over [Husband].
"It does appear that [Wife] is fearful and anxious, but that is not enough. That fear must be based on a reasonable apprehension of future abuse.
"I reread my transcript from the original restraining order two year ago, and . . . at that hearing [I] relied in part on her apparent fear. She appeared fearful in 2014. The trial issues were muddled. The facts were disputed. And this court attempted to create safety for the [Wife], and more importantly a space between the parties to allow the dissolution process to proceed.
"If you read [the] transcript, that was my impetus for my issuance of the two-year restraining order. Rightly, wrongly, it is what I thought was right in 2014, because I did perceive that she had real fear.
"We are now in 2016. . . . [¶] . . . [¶] [T]he process has been winding its way through the [family] court, and I think we're in a different place. And I am mindful of the evidence presented by the petitioner regarding the 2008 incident . . . , but I'm also mindful that that is 2008 and we are sitting here in 2016.
"And I think she has fear, but I think—I really think it has more to do with who she is as a human being as opposed to reasonableness. And when I look at the totality of the circumstances, this snapshot at this point in time where we find ourselves today, I don't find that there is a reasonable apprehension of future abuse."
DISCUSSION
I. Legal Principles Governing DVRO
"A court may issue a DVRO to prevent a recurrence of domestic violence and to ensure a period of separation for the persons who are involved, provided an applicant shows 'to the satisfaction of the court' that there has been 'a past act or acts of abuse' (§ 6300)." (In re Marriage of G. (2017) 11 Cal.App.5th 773, 779.) "[The] requisite abuse need not be actual infliction of physical injury or assault." (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.) The definition of " 'abuse' " includes nonviolent conduct, such as unwanted telephone or email communications that "disturb[ ] the peace of the other party . . . ." (§§ 6320, subd. (a), 6203, subds. (a)(4), (b); see Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1297-1299 (Ritchie).)
A party may petition to renew a DVRO "either for five years or permanently." (§ 6345, subd. (a).) To prevail on a renewal motion, the protected party has the burden to show by a preponderance of the evidence that a reasonable person would have a " 'reasonable apprehension' of future abuse." (Ritchie, supra, 115 Cal.App.4th at p. 1290.) "[S]ubjective fear" is not enough. (Id. at p. 1288.) Rather, "an objective test must be satisfied." (Id. at p. 1290.) But a protected party may have a reasonable apprehension of future abuse even if no abuse has occurred after the initial protective order. (Id. at p. 1284.) The absence of post-order abuse may be the result of the effectiveness of the prior order, and this effectiveness "is a good reason for seeking its renewal." (Ibid.)
"In assessing the risk of future abuse, the trial court 'ordinarily should consider the evidence and findings on which [the] initial order was based.' [Citation.] The existence of the order and its underlying findings and facts 'often will be enough in themselves to provide the necessary proof to satisfy that test.' [Citation.] In addition, the trial court should consider any significant change in circumstances such as whether the parties have moved on with their lives. [Citation.] The trial court should also consider whether the circumstances have enhanced the opportunity and possibility of future abuse." (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463 (Eneaji); accord, Lister v. Bowen (2013) 215 Cal.App.4th 319, 333 (Lister).) Courts should also be mindful that DVRO's " 'often must issue quickly and in highly charged situations' but should not be 'misuse[d] . . . for tactical reasons.' " (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1056.)
A trial court has broad discretion in ruling on a DVRO renewal petition. (§ 6345, subd. (a); Eneaji, supra, 229 Cal.App.4th at p. 1463.) A reviewing court must affirm the order unless the trial court exceeded the "bounds of reason." (Eneaji, at p. 1463; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) Under this review standard, we examine the trial court's factual findings under a substantial evidence test. (In re Marriage of G., supra, 11 Cal.App.5th at p. 780.) " ' "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." ' " (Lister, supra, 215 Cal.App.4th at p. 333.) We view the evidence in the light most favorable to the prevailing party, and do not reweigh the evidence or second-guess credibility findings. (Ibid.; see In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)
II. Analysis
Viewing the factual record in the light most favorable to Husband, the court acted within its discretion in denying the renewal petition. According to Husband's evidence, the circumstances have materially changed since the initial DVRO. The couple is no longer living together and they have joint custody of the children, supervised by a family court. Husband has full joint custody rights, and the evidence supports that he did not present any form of danger to his children. Husband's contact with Wife for the prior two years was through emails discussing coparenting issues, such as when the children would be picked up from school or camp, or adjustments to schedules based on parent work issues. On our review of these emails, we concur with the trial court's assessment that the communications do not show Husband's contacts were inappropriate or presented safety concerns.
Additionally, although the claimed physical violence in 2008 and 2009 is concerning, the court had a reasonable basis to conclude that those incidents were specific responses to circumstances that no longer exist—the couple had been living together in an acrimonious marriage and had not filed for dissolution. Additionally, as those incidents had allegedly occurred more than seven or eight years earlier with no repetitive conduct, the court could fairly conclude there was no reasonable possibility they would be repeated in the future. Judge Davis—who had issued the initial DVRO—also observed that the "underlying facts" in the 2014 hearing "were unclear and muddled," and explained that the court's primary motivation in issuing the initial order was to separate the parties until they had the opportunity to file for dissolution and work out the custody, support, and property division issues. Contrary to Wife's arguments, the fact the initial DVRO order was issued does not mean the court made factual findings as to precisely what occurred during the 2008 and 2009 incidents.
On this record, the court did not abuse its discretion in finding Wife did not meet her burden to show a reasonable apprehension of future abuse by Husband. The record supports the court understood the scope of its discretion, evaluated the relevant factors (including the claimed prior violent acts), and acted within its discretion in concluding that Wife's continued fear of Husband was not reasonable because the evidence showed circumstances had materially changed and the evidence did not support that Husband was likely to engage in any abusive conduct.
Wife raises numerous challenges to the court's factual findings. These arguments are without merit because they are based on Wife's evidence and ignore the evidence favorable to Husband. For example, Wife argues that Husband "violated the restraining order when . . . he went to [her] garage" and this conduct shows he continues to "dominate[ ]" and "manipulate[ ]" her. However, Husband testified and presented evidence that Wife agreed to allow him to pick up his property from the garage, and that he did nothing to cause Wife to be fearful or concerned. Based on the applicable review standard, we are required to presume the trial court credited this evidence and found Wife's contrary testimony not to be credible. (See In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1426-1427.) Thus, the court did not abuse its discretion in finding the incident would not cause a reasonable person to fear future abuse.
We similarly reject Wife's argument that the court failed to consider Husband "inflicted [abuse] upon the children." The evidence supports Husband had not physically or emotionally abused the children. In her appellate briefs, Wife discusses her testimony that her children repeat the Husband's negative statements about her, including she is "cuckoo" and "crazy"; she was improperly taking support payments; and the children could not trust her. Wife characterizes this conduct as "weaponiz[ing] the children as instruments of harassment against her," and thus argues that Husband continues to pose a threat to her.
This argument does not show the court abused its discretion. First, the court had a reasonable basis to decline to credit Wife's hearsay testimony about the children's statements, and/or to conclude that these statements would not cause a reasonable person to have a reasonable apprehension of future abuse. Additionally, even if Husband was communicating with the children in an inappropriate way, a renewal of the restraining order (keeping the parties physically apart) would not necessarily prevent this conduct. To prevent a parent from making disparaging remarks, the other parent should bring the issue to the attention of the court presiding over the dissolution and custody proceedings.
In challenging the court's factual findings, Wife relies on Lister, supra, 215 Cal.App.4th 319. In Lister, the court found the trial court did not abuse its discretion in renewing the restraining order because the evidence supported the court's finding that the man continued to engage in conduct that would cause a reasonable person to fear continued abuse, including that after the initial protective order, the man violated the order "multiple times," retained private investigators to follow the plaintiff and her friends, and made misrepresentations about the plaintiff. (Id. at pp. 324-328, 331-336.) There was no comparable evidence in this case showing a basis for an objective fear that Husband would engage in abuse. Moreover, in Lister, the reviewing court upheld the court's exercise of discretion based on the trial court's specific factual findings. (Id. at p. 336.) We do the same in this case.
The core of Wife's appellate arguments is her disagreement with the court's evaluation of her evidence and her request that we reweigh the evidence and reach different factual conclusions than did the trial court. This we cannot do. "We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] 'Issues of fact and credibility are questions for the trial court.' [Citations.] It is not an appellate court's function . . . to redetermine the facts." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) We " 'must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.' " (In re S.A., supra, 182 Cal.App.4th at p. 1140.)
Wife alternatively contends that even if the evidence supports that her fear was not objectively reasonable, unreasonable fear is a sufficient basis to grant a renewal under the statute. The argument is legally unmeritorious. It is settled that a subjective fear alone is insufficient to support a renewal order. (Lister, supra, 215 Cal.App.4th at p. 332; Ritchie, supra, 115 Cal.App.4th at p. 1290.) In asking that we adopt a contrary rule, Wife relies on judicial interpretations of a criminal rape statute (Pen. Code, § 261, subd. (a)(2)). (See People v. Barnes (1986) 42 Cal.3d 284, 304-305; People v. Bermudez (1984) 157 Cal.App.3d 619, 624-625.) Wife argues that under those decisions, a woman's unreasonable fear may support a rape-by-force conviction if the perpetrator took advantage of that fear.
Even assuming this statutory interpretation would apply to the DVRO renewal statute and Wife had raised this issue below, the court had ample basis to find Husband did not take advantage of Wife's claimed fear. Wife's argument is based on her testimony about the garage incident. However, under the applicable review standard, we presume the court found this testimony not credible and we are bound by that finding.
Wife next contends the order must be reversed because the court did not understand the applicable law or the scope of its discretion. (See F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16 [court abuses discretion if it applies improper factors or misunderstands scope of discretion].) In support, Wife discusses several isolated remarks by the court during the DVRO-renewal hearing. The argument is unavailing. A court is presumed to understand and properly apply the law. (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653-654.) Wife has not met her burden to rebut this presumption in this case.
For example, Wife argues the court improperly discounted her evidence about the children's behavior when they returned from Husband's custody time (such as the "cuckoo" remark; conversations about child support; and the fact the fact that the children appeared to be "super angry" at her). She relies on the court's statement in response to this testimony that "I don't know what trial you're in, but I'm here on a restraining order renewal. [¶] . . . [¶] . . . I'm not in a custody and visitation trial." Wife argues this comment shows the court did not understand that a party may threaten a former spouse through indirect means. However, as discussed above, the court's observation was correct that alleged improper conversations between the children and Husband would be more appropriately addressed in the family court proceedings. Additionally, after the court's challenged comment, the court permitted Wife to continue testifying at length on this subject, including Wife's statements that the children's comments left her with "no peace," and created "the same fear that I had when I was talking to [Husband] during the marriage . . . ." The record shows the court considered this testimony, but rejected it as a basis to show an objective fear of future abuse. The court acted within its discretion in doing so.
Wife also focuses on the court's statement that her allegations against Husband reflect many of the typical issues seen "in high conflict dissolution cases." Based on this statement, Wife argues the court improperly "discounted" her evidence merely because "co-parenting" issues were involved. This argument mischaracterizes the record. Viewing the court's statement in context, the court understood high-conflict relationships can cause substantial friction and opportunity for abusive conduct. But a court is not required to issue a restraining order merely because a former married couple is having trouble coparenting their children. The court specifically found Wife bore some responsibility for the conflict, and agreed that Wife appeared to be using the order to gain an advantage in the family court proceedings. The evidence supports these findings. The fact that Wife and Husband continue to have trouble getting along, and needed the family court's assistance, does not mean that Wife has a reasonable fear of abuse from Husband.
We likewise find unhelpful Wife's reliance on various publications containing studies that she says support her view that a spouse's motivation to abuse his wife increases after separation and that a " 'majority of [abuse] allegations are substantiated.' " Because these studies were not presented in the trial court, they are not properly before this court. Additionally, the general statements contained in these publications do not establish an abuse of discretion in this particular case. Regardless of the events occurring in other cases, the trial court's task was to determine whether a reasonable person in Wife's circumstances would have a reasonable apprehension that abuse would occur unless the court renews the protective order. Viewing all of the evidence, the court found a reasonable person would not have this reasonable apprehension. The evidence supports this factual finding.
DISPOSITION
Order affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
DATO, J.