Opinion
F076793
10-25-2019
In re the Marriage of DANIEL and IRENE ROYAL. DANIEL ROYAL, Appellant, v. IRENE ROYAL, Respondent.
Mugridge Moran, Amanda K. Moran and Janay D. Kinder, for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 03CEFL05162)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge. Mugridge Moran, Amanda K. Moran and Janay D. Kinder, for Appellant. No appearance for Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant Daniel Royal challenges an order renewing a protective and stay-away order under Family Code section 6345. Daniel contends the trial court did not apply the "reasonable apprehension of future abuse" standard in accordance with the principles adopted in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie). He contends the trial court failed to consider the factors relevant to renewing a contested, nonviolent protective order, including the significant changes in circumstances since the initial restraining order was issued and the burdens the restraining order imposed on him. Daniel also contends the trial court abused its discretion by allowing him only a one-day continuance to prepare for the renewal hearing.
All unlabeled statutory references are to the Family Code.
On the procedural issue, we conclude the trial court did not abuse its discretion when it granted a one-day continuance after Daniel stated, "I'd rather just get this over with sooner rather than later, if that's possible." Also, the trial court's statements at the end of the hearing establish the court applied the appropriate standard of reasonableness to respondent Irene Royal's fear of future "abuse"—a term that includes harassment and sending annoying text messages and photographs. The record contains substantial evidence supporting the court's finding that Irene experienced a reasonable apprehension of this type of future abuse. Furthermore, the record does not show the court failed to consider relevant factors, such as the changes in circumstances and the burdens placed on Daniel, when it decided to renew the restraining order.
We therefore affirm the order renewing the restraining order.
FACTS AND PROCEEDINGS
Daniel and Irene were married in the 1990's and had three children. In September 2003, Daniel filed a petition for dissolution of marriage. In July 2007, a judgment of dissolution of marriage was filed.
In May 2014, Daniel requested a domestic violence restraining order against Irene. In June 2014, the court issued a temporary restraining order. At the first hearing on the matter, Irene requested and obtained a continuance and the temporary restraining order remained in effect. At the July 2014 hearing, criminal charges were pending against Irene and she requested another continuance. After further continuances and Irene filing her own request for a restraining order against Daniel, the parties appeared at a hearing on October 29, 2014. They informed the court they had reached an agreement and withdrew their requests for restraining orders. As a result, the trial court terminated the temporary restraining order against Irene.
In 2016, Irene initiated a separate lawsuit and sought a restraining order against Daniel. The lawsuit was assigned case No. 16CEFL03606 by the Fresno County Superior Court. The restraining order was issued on November 17, 2016, and had a duration of one year. The court consolidated case No. 16CEFL03606 with the present family court matter.
The initial restraining order and any findings made by the trial court to support its issuance are not part of the appellate record. The California Appellate Courts Self-Help Resource Center divides the appeal process into 12 steps. Step 3, designating the record, "is one of the most important steps in the appeal process." (<https://selfhelp.appellate.courts.ca.gov/appeals-timeline/designating-the-record/>)
Prior to the expiration date of the restraining order, Irene filed an application for its renewal. Based on the register of action, it appears the request to renew the restraining order was filed on October 18, 2017. At the time, Daniel's order to show cause relating to the modification of child support and visitations was pending and he was represented by an attorney in that matter.
The application and supporting papers were not designated to be part of the appellate record.
On November 7, 2017, a hearing was held on Irene's application to renew the restraining order. Irene and Daniel were present at the hearing and neither was represented by an attorney. A copy of Irene's application and supporting papers were handed to Daniel at the hearing and the matter was continued for one day. Further details about the hearing are set forth in part II.A of this opinion.
On November 8, 2017, the trial court heard evidence relating to Irene's application to renew the restraining order. Both Daniel and Irene testified at the hearing. In addition, a friend of Irene, Melia Jackson, testified on Irene's behalf. Irene testified about how she felt Daniel was abusing court processes and had sent her a text stating "I will stall it as long as I can, and I believe that your work will not like that." She referred to court proceedings on an issue lasting over a year and stated, "It was just done on 9/8/2017."
Later in her testimony, Irene stated that text "was probably before the restraining order."
Irene also testified about attending two water polo matches to watch her sons and how Daniel was present and did not comply with the stay-away distance in their custody agreement. Irene also described text messages and photographs Daniel has sent to her. In response to a question by the court about the texts and photograph she had described, Irene confirmed she had received them since the restraining order was in place. Irene acknowledged that Daniel had stopped calling her work after the restraining order was issued. In a summary of her testimony, Irene stated: "He will stalk me. He will manipulate. He will do anything he can to belittle me, to keep me down, just to harass and stalk and hurt me." Irene's witness, Jackson, testified about a variety things Daniel had done, including some of the text messages and photographs she had seen when Irene forwarded them to her.
At the close of the hearing, the trial court informed the parties of its decision by stating: "The Court finds that [Irene] has carried her burden of proving that she still suffers reasonable fear. The Court grants the application, renews the restraining order that issued on November 17, 2016, making it a permanent order of the Court. Same terms and conditions. You'll get paperwork shortly and then off you go. Thank you."
The trial court then completed and filed the one-page, mandatory Judicial Council form DV-730, Order to Renew Domestic Violence Restraining Order. The order named Irene as the protected person and Daniel as the restrained person. It stated Irene's request to renew the restraining order issued on November 17, 2016, was granted and the order would remain in effect permanently.
The trial court also completed and filed mandatory Judicial Council form DV-130, Restraining Order After Hearing, setting forth the terms of the personal conduct orders and the stay-away order. The court checked all three boxes in item 6.a of the form, requiring Daniel (1) not to harass, threaten, assault, stalk, keep under surveillance, impersonate, or block the movements of Irene; (2) not to contact Irene, either directly or indirectly, by any means, including by telephone, email or other electronic means; and (3) not to take any action to obtain her location. The order required Daniel to stay at least 100 yards away from Irene. The form's standard firearms limitation also was imposed. Daniel timely appealed.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
A. Overview of the Statute
The Domestic Violence Prevention Act is set forth in Division 10 of the Family Code. (§§ 6200-6460; see § 6200 [short title].) Its purpose "is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) Part 3 of the Domestic Violence Prevention Act (§§ 6240-6275) authorizes emergency protective orders, which may be issued ex parte. (See § 6250 [grounds for issuance].) Part 4 (§§ 6300-6390) provides for the issuance of domestic violence restraining orders (which is the subject of this appeal) and other types of protective and prevention orders.
The Domestic Violence Prevention Act defines "abuse" to include any behavior that could be enjoined pursuant to section 6320. (§ 6203, subd. (a)(4).) Section 6320, subdivision (a) authorizes the issuance of orders enjoining, among other things, harassing, telephoning, contacting (either directly or indirectly) by mail or otherwise, or disturbing the peace of the other party. This definition of abuse is not limited to acts of physical abuse or threats of physical abuse. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.) "Annoying and harassing an individual is protected the same way as physical abuse." (Ibid.) Section 6320's reference to "disturbing the peace of the other party" has been interpreted to mean "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)
The duration and renewal of a domestic violence restraining order is addressed by section 6345. When initially issued, the order "may have a duration of not more than five years" and is subject to termination or modification by order of the court based on the parties' stipulation or a motion of a party. (§ 6345, subd. (a).) The domestic violence restraining order "may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party." (Ibid., italics added.)
The practical effect of making a restraining order "permanent" is the shifting of the burden from the protected party to the restrained party. A protected party is not required to seek additional renewals and present evidence to justify renewal. Instead, the restrained party must obtain a written stipulation from the protected party or file a motion. (§ 6345, subd. (a).) A restrained party who files a motion has the burden of showing "by a preponderance of the evidence that one of the circumstances set forth in Code of Civil Procedure section 533 is present and justifies a termination of the restraining order." (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505 (Loeffler) [the three independent grounds are a material change in facts, change in the law, or the ends of justice].)
The statute governing the award of attorney fees does not favor the protected party or the restrained party. (§ 6344.) Instead, "the prevailing party" is authorized to recover attorney fees and costs. (§ 6344, subd. (a).) Such an award requires "notice and a hearing" and is committed to the trial court's discretion. (§ 6344, subd. (a); Loeffler, supra, 174 Cal.App.4th at p. 1509.)
B. Judicial Interpretation of Renewal Provision
In Ritchie, supra, 115 Cal.App.4th 1275, the Second District resolved an issue of first impression by interpreting section 6345 to mean the renewal of a domestic violence restraining order requires a finding that there is a reasonable apprehension of future abuse if the initial order expires. (Ritchie, supra, at p. 1283.) In explaining the "reasonable apprehension of future abuse" test, the court concluded it was not enough that the protected party requested a renewal and desired the protective order to continue. (Id. at p. 1284.) The court also concluded it was not enough for the protected party to "entertain a subjective fear the party to be restrained will commit abusive acts in the future." (Id. at p. 1288.) Instead, the court adopted an objective reasonableness standard and concluded the trial "court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is a male) in the same circumstances would have a 'reasonable apprehension' such abuse will occur unless the court [renews the] protective order." (Id. at p. 1288.)
Under this standard, a renewal of a domestic violence restraining order is appropriate "if, and only if, [the trial court] finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Ritchie, supra, 115 Cal.App.4th at p. 1290.) Thus, the trial court must determine whether "the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (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." (Ibid.; see fn. 2, ante.) In addition, the trial court should consider any significant change in circumstances such as whether the parties have moved on with their lives. (Ibid.) The trial court should also consider whether the circumstances have enhanced the opportunity and possibility of future abuse. (Ibid.) The burdens imposed on the restrained party "may or may not be a relevant factor in the trial court's consideration of a contested request for renewal of a protective order." (Id. at p. 1291.) Those social and economic burdens do not "justify denial of a renewed protective order where the 'reasonable apprehension' is of future acts of physical violence." (Ibid.) However, where the existing order focuses on the threat of lesser forms of abuse, such as unwanted phone calls and mail, "the court may have to weigh the seriousness as well as the degree of risk against the significance of the burdens the restrained party will experience if subjected to a continuing protective order." (Id. at p. 1292.)
C. Standard of Review
Appellate courts review a trial court's ruling on a request to renew a domestic violence restraining order for an abuse of discretion. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463 (Eneaji).) "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.) For example, a trial court's findings of fact are reviewed under the substantial evidence standard. (Ibid.; Loeffler, supra, (2009) 174 Cal.App.4th at p. 1505 [findings relating to protective order].) The trial court's determinations of legal questions are reviewed de novo. (Haraguchi, supra, at p. 711.) "[W]hen the challenged determination involves the trial court's weighing of the interrelated factors, the result of that weighing process generally will be upheld on appeal so long as the trial court did not exceed the bounds of reason or contravene the uncontradicted evidence." (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316 [abuse of discretion standard applied to ruling on application for preliminary injunction].)
In applying that standard, "[i]t is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) --------
" 'All exercises of discretion must be guided by applicable legal principles, however, which are derived from the statute under which discretion is conferred. [Citations.] If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]' " (Eneaji, supra, 229 Cal.App.4th at p. 1463.) Whether a trial court applied the correct legal standard "in exercising its discretion is a question of law" subject to de novo review. (Ibid.)
D. Scope of the Appellate Record
1. Facts
Daniel's opening appellant's brief includes attachments designated as Exhibits A through H. The first two exhibits are copies of the reporter's transcript from the two hearings in November 2017. Exhibit C is pages 1, 3 and 5 from a declaration of Daniel dated March 6, 2018. Exhibit D is a declaration from the parties' oldest son dated February 27, 2018. Exhibit E is a Clovis Police Department arrest record from May 2014. Exhibits F and G contain correspondence to Daniel relating to jobs as a police officer. Exhibit H is a Clovis Police Department incident report of events from January 18, 2016.
2. Applicable Law
The attachment of exhibits to appellate briefs is addressed by California Rules of Court, rule 8.204(d), which provides in part: "A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible." (Italics added.) Thus, it is improper to include new evidence that was not presented during the trial court proceedings as an attachment to an appellate brief.
Appellate courts review the correctness of a trial court's order or judgment and usually consider only matters that were part of the trial court's record when the order or judgment was entered. (In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1300, fn. 3.) For example, in Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, the appellate court refused to consider parts of the appellant's opening brief supported solely by citations to exhibits outside the appellate record and not judicially noticed. (Id. at pp. 193-195.) We reach the same conclusion as to Exhibits C through H to Daniel's opening appellant's brief and the parts of his brief that rely on those documents. This court has not considered those arguments and documents in this appeal.
Similarly, we have not considered the changes in circumstance described in Daniel's October 16, 2019, letter to this court. Accordingly, this opinion should not be interpreted as expressing a view, one way or the other, on whether those changes are sufficient to justify a modification or termination of the restraining order under section 6345, subdivision (a) and Code of Civil Procedure section 533. II. ONE-DAY CONTINUANCE OF HEARING
A. Background
Daniel was told of the November 7, 2017, hearing on Irene's application to renew the restraining order by his attorney. Daniel attended the hearing and was asked by the trial court if he had gotten Irene's papers at least five days earlier. Daniel responded that he had not received anything. A copy of the application and supporting papers were handed to Daniel by the courtroom deputy and the court stated on the record that Daniel had been served.
The court informed Daniel of Irene's request to make the domestic violence restraining order permanent and said, "I'm happy with setting this hearing out to a different day if that's your preference." Daniel stated he needed time to review the papers and suggested approximately 30 days. The restraining order was scheduled to expire on November 17th and Daniel asked what would happen if a 30-day extension of the hearing was granted. The court informed him that the restraining order would be extended to the new hearing date. Daniel then stated: "Okay. How soon—I'd rather just get this over with sooner rather than later, if that's possible. I'm getting married Saturday and I'm going to be out of the country for a while on honeymoon." The court asked: "How much time do you think you need? I can set it over just a day or two." Daniel replied: "If we could do tomorrow, if the Court has any availability tomorrow." Daniel also suggested the possibility of Thursday morning—a two-day extension. The court asked whether the following morning at 9:00 a.m. would work for the parties. Irene also agreed. As a result, the court continued the hearing to the next day.
B. Claim of Error
On appeal, Daniel contends the trial court abused its discretion by allowing him only one day to prepare for the continued hearing. Daniel contends he "was confused as to the nature of the continuance and as to what would be required of him the following day." Daniel asserts he "did not prepare a defense because he believed he was merely responding to [Irene's] paperwork which was delivered to him that very day." Daniel further asserts he did not understand the court actually was asking "how much time [he] believed he needed to prepare for a trial determination of the request."
As an alternative to imposing a longer continuance, Daniel argues the trial court "should have further inquired as to whether [he] fully understood the nature of the proceedings moving forward." Daniel asserts "[i]t became evident that [he] did not understand the instructions being told to him because a person in the legal community would take more time to prepare a defense against a permanent restraining order request."
Daniel supports his claim the trial court abused its discretion by quoting statements from Gamet v. Blanchard (2001) 91 Cal.App.4th 1276 (Gamet) about the treatment of litigants proceeding without an attorney. "Judges should recognize that an in propria persona litigant may be prone to misunderstanding court requirements or orders—that happens enough with lawyers—and take at least some care to assure their orders are plain and understandable. Unfortunately, the careless use of jargon may have the effect, as in the case before us, of misleading an in propria persona litigant. The ultimate result is not only a miscarriage of justice, but the undermining of confidence in the judicial system." (Id. at p. 1285.) The court in Gamet also stated: "Trial judges must acknowledge that in propria persona litigants often do not have an attorney's level of knowledge about the legal system and are more prone to misunderstanding the court's requirements.... [W]hen an in propria persona litigant is involved, special care should be used to make sure that verbal instructions given in court and written notices are clear and understandable by a layperson. This is the essence of equal and fair treatment, and it is not only important to serve the ends of justice, but to maintain public confidence in the judicial system." (Id. at p. 1284.)
C. Analysis
1. Need for Further Inquiry by Court
We first consider Daniel's claim it was evident he did not understand what the trial court told him about the proceedings and, therefore, the trial court abused its discretion by failing to conduct a further inquiry into his understanding. Daniel argues his lack of understanding was evident "because a person in the legal community would take more time to prepare a defense." We reject this argument because it presumes the trial court knew or should have anticipated that Daniel's response to the application would be to contest the renewal of the restraining order and, moreover, his opposition would involve the presentation of evidence from witnesses other than himself. Based on our review of the reporter's transcript of the November 7, 2017, hearing and the other information in the record designated for appeal that was available to the trial court when it ordered the continuance, it was reasonable for the trial court to conclude Daniel understood what was being requested by Irene and the purpose of the hearing. The transcript does not show Daniel was confused or, like the plaintiff in Gamet, he "received information that was plainly inaccurate." (Gamet, supra, 91 Cal.App.4th at p. 1283.) Instead, Daniel stated he would "rather just get this over with sooner rather than later, if that's possible." He explained his preference by stating he was "getting married Saturday and [was] going to be out of the country for a while on honeymoon." Daniel's use of the phrase "just get this over with" implies he understood the continued hearing would result in a final decision on Irene's application and did not view it as an intermediate step.
Therefore, the trial court's decision to provide Daniel with no further explanation of the proceedings did not exceed the bounds of reason and constitute an abuse of discretion. (Eneaji, supra, 229 Cal.App.4th at p. 1463 [abuse of discretion occurs when ruling exceeds the bounds of reason].) Rather, the court impliedly weighed various factors and the result of that weighing process falls within the permissible range of options available under applicable law. (See County of Kern v. T.C.E.F., Inc., supra, 246 Cal.App.4th at p. 316.)
2. Longer Continuance
Daniel's contention that the trial court abused its discretion in granting a one-day continuance correctly identifies the applicable legal standard. Generally, a decision to grant or deny a continuance is committed to the trial court's discretion. (E.g., Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716 [hearing on motion for summary judgment may be continued for good cause—a determination within the trial court's discretion]; Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249 [refusal to continue trial date].) We conclude the abuse of discretion standard also applies to a trial court's decision relating to the continuance of a hearing on the renewal of a domestic violence restraining order under section 6345.
In the circumstances of this case, there is no suggestion the trial court chose the wrong legal standard when deciding how long to continue the hearing. Therefore, the trial court did not abuse its discretion by choosing the wrong legal standard. Instead, the trial court made its determination by weighing the evidence along with the statements and requests of the parties. This weighing process will be overturned on appeal only when the result exceeds the bounds of reason. (See County of Kern v. T.C.E.F., Inc., supra, 246 Cal.App.4th at p. 316.)
Here, Daniel argues the trial court should have granted a longer continuance. That argument asserts, in effect, that the only reasonable outcome was for the court to override Daniel's express desire to "just get this over with sooner rather than later" and continue the hearing until after Daniel returned from his honeymoon. We conclude the trial court's weighing of the circumstances did not exceed the bounds of reason because it was reasonable for the court to infer Daniel (1) understood the proceedings, (2) was capable of evaluating his own interests, and (3) actually had balanced those interests when he stated he wanted the matter resolved sooner rather than later.
Furthermore, the principles set forth in Gamet about the treatment of self-representing litigants primarily address a trial court's responsibility in framing its orders and instructions in language a layperson can understand, rather than relying on technical legal terms and legal jargon. (See Gamet, supra, 91 Cal.App.4th at pp. 1284-1285 [judgment dismissing complaint was confusing because it failed to address the cross-complaint, was inconsistent with the prior minute order, and continued to list a law firm as counsel even though it had been relieved of that role].) Those principles do not require a trial court to reject an explicit request by a self-representing litigant and impose an order that the trial court believes better serves that litigant's interests. III. MERITS OF THE PERMANENT RENEWAL
A. Failures to Consider Relevant Evidence
Daniel's opening appellant's brief contends the trial court erred because it (1) did not consider the burdens he would suffer as a result of a renewed, permanent restraining order and (2) did not consider the significant changes in circumstances since the issuance of the initial protective order.
First, we address what it means to "consider" evidence. In Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, an insured driver filed a petition to vacate an arbitration award of $9,000 under his uninsured motorist coverage by alleging the arbitrator substantially prejudiced his right by failing to consider the medical evidence presented. (Id. at p. 61.) The court distinguished between a failure to consider evidence and a refusal to hear evidence. Based on a dictionary definition, the court stated: "Consider is 'to view attentively ... to fix the mind on, with a view to careful examination; to think on with care; to ponder; to study; to meditate on; ...' " (Id. at p. 63.) The court further explained, "Legally speaking the admission of evidence is to hear it, and the weighing of it is to give it consideration." (Ibid.) We adopt this definition of "consider" and conclude it means the weighing of evidence. Therefore, we interpret Daniel's contentions as asserting the trial court did not weigh the evidence about (1) the burdens the restraining order would cause him to suffer or (2) the significant changes in circumstances.
Second, the failure to consider (i.e., weigh) relevant evidence has been held to be an abuse of discretion. For example, the "[f]ailure to consider and apply the statutory factors [relating to spousal support] constitutes an abuse of discretion." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305, superseded by statute on another ground, as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049.) In Ritchie, the court reversed the order renewing the restraining order and remanded for further review. (Ritchie, supra, 115 Cal.App.4th at p. 1282.) The court determined "the trial court erred when it issued the renewal order based solely on Ritchie's subjective desire the protective order be extended." (Ibid.) The court stated the trial court "should have considered evidence tendered by both sides and determined whether Ritchie's expressed fear of future abuse was genuine and also reasonable." (Ibid.) Consequently, we conclude the failure to consider the factors identified in Ritchie as being relevant to whether to renew a restraining order constitutes an abuse of discretion.
Third, we address how an appellant can establish the trial court failed to weigh specific evidence in reaching its decision on whether to renew a restraining order. "[I]t is a fundamental principle of appellate procedure that a trial court [order or] judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) In other words, all presumptions are indulged to support the trial court order or judgment "on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) The presumption of correctness and the allocation of the burden to the appellant is part of the constitutional doctrine of reversible error. (Ibid.; see Cal. Const., art. VI, § 13.)
In Ritchie, the appellant was able to affirmatively demonstrate the trial court did not consider the relevant evidence because of statements made by the trial court during the hearing. The trial court stated it read the statute to mean the requesting party was entitled to a renewal unless there was some reason blocking the renewal. (Ritchie, supra, 115 Cal.App.4th at p. 1281.) When counsel asked for a clarification about the sole basis for the extension, the trial court stated " 'I think they're entitled to it just upon request.' " (Ibid.) To summarize, in Ritchie, the appellant carried his burden of demonstrating a failure to consider relevant evidence based on explicit statements from the trial court.
In contrast to the appellant in Ritchie, Daniel has cited no explicit statements from the trial court as to what evidence it considered and did not consider. Accordingly, Daniel has not affirmatively demonstrated that the trial court did not consider relevant evidence. The record appears silent on what evidence the court weighed and did not weigh and, therefore, the presumption that the trial court followed the law has not been rebutted in this case.
Daniel argues and has established the trial court did not consider statements from his children. The children did not testify at the hearing. Also, the declaration of the oldest child was not presented to the trial court. That declaration was not prepared and signed until after the hearing and the trial court had issued its orders. However, Daniel has failed to establish the trial court erred because he has cited no authority explaining how a trial court can err by failing to weigh evidence never presented to it. (See pt. I.D., ante.)
B. Legal Standard Applied
Daniel argues the trial court committed reversible error because "the Court did not satisfy the appropriate objective test to renew a contested protective order." This argument could be interpreted as asserting the trial court applied the wrong legal standard when it decided to renew the restraining order. If such an argument is being made, we reject it. The trial court explicitly found Irene "carried her burden of proving that she still suffers reasonable fear." This statement demonstrates the court was aware of the applicable legal principles. In Ritchie, the court remanded for the trial court to determine "whether Ritchie's expressed fear of future abuse was genuine and also reasonable." (Ritchie, supra, 115 Cal.App.4th at p. 1282.) Here, the trial court's finding that Irene "suffers reasonable fear" adequately demonstrates the court required her fear to be genuine and objectively reasonable. Thus, Daniel has not demonstrated the trial court applied the wrong legal standard.
C. Substantial Evidence
Daniel contends the trial court abused its discretion in awarding the permanent restraining order because Irene did not meet her burden of proving she had a reasonable apprehension of future abuse. Daniel restated this argument by asserting Irene "offered no substantial evidence to indicate a reasonable apprehension of fear of future abuse."
When an appellant contends a trial court's finding of fact is not supported by the evidence, the appellant has the burden of demonstrating the record does not contain substantial evidence that supports the finding. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) This burden is a heavy one. (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487.) To carry it, an appellant must provide the appellate court with an adequate record of the lower court's proceedings (Ballard v. Uribe (1986) 41 Cal.3d 564, 574) and must "fairly summarize all of the facts in the light most favorable to the judgment" and show how and why it is insufficient. (Boeken, supra, at p. 1658; Marshall, supra, at p. 487.) A summary is "fair" when it describes both the favorable and unfavorable evidence. (Marshall, supra, at p. 487.)
Here, the appellate record does not contain Irene's application for renewal of the restraining order or the supporting documents. As a result, this court cannot determine whether those documents include declarations or documentary evidence that supports the trial court's findings. In addition, Daniel's opening appellant's brief does not present a summary of the facts that views the testimony presented at the November 8, 2017, hearing in the light most favorable to the trial court's order.
We conclude the testimony of Irene and the witness who testified on Irene's behalf, Melia Jackson, is sufficient to support a finding that Daniel sent Irene text messages and photographs after the initial restraining order was issued. (See Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 601, 614 [testimony of single witness, even a party, may constitute substantial evidence].) This behavior satisfied the definition of "abuse" adopted in the Domestic Violence Prevention Act. (§§ 6203, subd. (a)(4), 6320.) Section 6320, subdivision (a) authorizes the issuance of orders enjoining, among other things, harassing, telephoning, contacting (either directly or indirectly) by mail or otherwise, or disturbing the peace of the other party. (See Perez v. Torres-Hernandez, supra, 1 Cal.App.5th at p. 398 [little doubt restrained party's telephone calls and text messages constituted continuing abuse under the statute].) The evidence about the text messages and photographs and Daniel's other actions provided a sufficient basis for the trial court to infer Irene's apprehension of future "abuse" was objectively reasonable.
Accordingly, we reject Daniel's argument that the trial court findings are not supported by substantial evidence.
DISPOSITION
The November 2017 order renewing the restraining order judgment is affirmed.