Below are summaries of cases from May 2021 to April 2022 affecting child custody issues in California. AFCC California and the Insights staff are very grateful to Dawn for her hard work gathering this vital information for our membership.
A.M. v. Superior Court
A.M. v. Superior Court (2021) 63 Cal.App.5th 343: In this case, the Fourth District granted M’s petition for a writ of mandate compelling the San Diego County Superior Court to vacate its order refusing to dismiss grandparents’ visitation petition and “directing the court to vacate its October 22, 2020 order and enter a new order dismissing the petition for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (1997) (UCCJEA; Fam. Code, §§ 3400, et seq.).”
Amelia’s husband, Tyler Mosser, died in October of 2018.
On January 15, 2019, Tyler’s parents, Rus and Elizabeth Mosser, filed a petition requesting visitation with then three-year old Scarlett under section 3103. Concurrently with the petition, the Mossers filed a jurisdictional declaration in accordance with the UCCJEA stating Scarlett had lived in San Diego since her birth in November 2015.
Before any action on the petition, on January 31, 2019, Mother filed an ex parte application for an order allowing her and Scarlett to move from San Diego to Washington state to be near Mother’s parents and other close family members. The family court denied the application on the ground it was “not an emergency.”
A family court services mediation took place on February 13, 2019 and Mother, who was by then living in Washington with her daughter, participated by phone.
After the court made various orders,
(n)o further proceedings occurred until June 24, 2020, when the Mossers filed an ex parte request that the court set the matter for a two-day trial to determine visitation. Mother opposed the request, and on June 25, 2020 filed her own application for an order terminating the court’s jurisdiction under the UCCJEA. Mother’s accompanying declaration stated she had participated in reunification therapy but that it had failed because of the Mossers’ unwillingness to join. Mother also asserted that San Diego was not the proper venue for the case and that she could not afford to travel here for the proceedings.
Mother’s memorandum of points and authorities in support of her request argued the court did not have continuing jurisdiction under the UCCJEA because she and her daughter no longer resided in California, and alternatively, if the court did find jurisdiction it should decline to exercise it on the grounds of inconvenient forum after an evidentiary hearing on the issue. The court denied Amelia’s application without prejudice and set an evidentiary hearing for September 1, 2020.
On June 26, 2020, Mother filed a request for order, repeating her assertion that the court did not have continuing jurisdiction over the matter under the UCCJEA and that San Diego was not the proper venue for the case. The Mossers opposed the request. A hearing on Mother’s request for order took place on September 23, 2020. After argument, the court denied the request. The court stated that it continued to have jurisdiction because “there [are] still significant connections to the state, at least the child potentially has that as well” and the Mossers “still reside here and they are the ones seeking and bringing the petition.”
The court also noted Mother had conceded jurisdiction at the time the petition was initially filed, that Mother had not raised the jurisdictional issue at the time the case was originally set for trial, and that she had previously entered stipulated proposed orders without challenging the court’s jurisdiction.
Ultimately, the court denied Amelia’s challenge to jurisdiction under the UCCJEA. On Amelia’s petition for a writ of mandate, the Fourth District issued the writ.
Mother agrees the family court had jurisdiction under the UCCJEA at the time the Mossers filed their petition for visitation. She argues, however, that after the court’s initial custody decision on April 22, 2019 declining to rule on the Mossers’ request for visitation, the court was required to make new jurisdictional findings before entering each stipulated order. Mother asserts that the court’s failure to do so renders those orders void.
Alternatively, she contends the court erred by denying her subsequent motion to terminate its jurisdiction under section 3422, subdivision (a)(2). The Mossers respond that because jurisdiction under the UCCJEA is not fundamental, Mother forfeited her jurisdictional challenge by not challenging the court’s initial jurisdiction and agreeing to the stipulated orders.
Noting that “it is an unsettled question of law whether the jurisdiction created by the UCCJEA is fundamental and therefore unable to be forfeited,” the panel said that
the family court erred in finding it had continuing jurisdiction to adjudicate the Mossers’ petition for visitation once Mother objected and sought a judicial determination. As set forth above, the family court had jurisdiction under section 3421 until the requirements of section 3422 were satisfied. Under subdivision (a)(2) of section 3422, the family court’s jurisdiction would terminate once a “court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.” Mother objected to the court’s continuing jurisdiction in June 2020, arguing its jurisdiction was no longer viable under section 3422, subdivision (a)(2). The court rejected Mother’s argument, finding Mother had forfeited the issue by failing to object to the court’s jurisdiction earlier in the proceeding and that there were still “significant connections to the state” because the Mossers live here.
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Given the facts before this court, we follow Kent to conclude that Mother did not forfeit her right to seek adjudication of her jurisdictional challenge under section 3422. Further, on this record, it is clear the court erred by denying Mother’s request for order and concluding it had continuing jurisdiction under section 3422. As discussed, under that statute, once the court has taken initial jurisdiction under section 3421, it has continuing jurisdiction until one of two things occur: “A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” or “[a] court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.” (§ 3422, subd. (a), italics added.)
The family court disregarded this second clause of section 3422 and looked only to the first, finding that “there are significant connections to the State of California as the [Mossers] continue to reside in California and they are the party bringing the petition.” As the court’s FOAH stated, Mother and Scarlett “moved to the state of Washington on February 13, 2019” and it was undisputed that Mother and Scarlet “do not presently reside in this state.” (§ 3422, subd. (a)(2).) In light of this fact, the Mossers’ residence here alone is insufficient to support the court’s continued jurisdiction. (See National Conference of Commissioners on Uniform State Laws, UCCJEA, Official Comments to § 202, p. 28 [“[A] remaining grandparent or other third party who claims a right to visitation, should not suffice to confer exclusive, continuing jurisdiction on the State that made the original custody determination after the departure of the child, the parents and any person acting as a parent.”].) In sum, the court’s jurisdictional order was not supported by the evidence before it and the court’s failure to consider the undisputed fact that Mother and Scarlett no longer reside in California warrants reversal.
J.H. v. G.H.
J.H. v. G.H. (2021) 63 Cal.App.5th 633: In this partially-published case, “Appellant G.H. appeals from an order granting her a two-year domestic violence restraining order (DVRO) against respondent J.H. In the published portion of our opinion, we conclude the trial court did not err in excluding the parties’ children as protected parties in the DVRO. In the unpublished portion, we conclude the court did not err in precluding their 12-year-old daughter from testifying at the contested hearing or in denying G.H.’s request for a five-year DVRO. The order is affirmed.”
In re Marriage of Emilie D.L.M. & Carlos C.
In re Marriage of Emilie D.L.M. & Carlos C. (2021) 64 Cal.App.5th 876: In this case, filed on April 29, 2021, but ordered published on May 28, 2021, the Second District affirmed a San Luis Obispo County family court order denying Carlos’s petition filed pursuant to the Hague Convention. It held that he “did not bear his burden of establishing th existence of ameliorative measures to ensure his children’s safety” from himself.
Emilie and Carlos met while students at UC Davis Law School. Carlos is a native of Chile and is a permanent U.S. resident. The parties married in 2006 and had two children.
Emilie D.L.M. soon realized that Carlos C. frequently drank alcohol and became verbally abusive to her when he was intoxicated. In 2006, and again in 2011, he was arrested and subsequently convicted of driving under the influence of alcohol.
In September 2016, the parties and children relocated to Carlos C.’s hometown of La Serena, Chile. Carlos C.’s mother and his large extended family lived nearby.
In Chile, Carlos C. established a law practice and also worked as a law professor. Emilie D.L.M. worked remotely as an independent contractor for a California law firm. The couple paid income taxes in the United States and Chile. Their children were bilingual and held dual American-Chilean citizenships. The children enrolled in schools, played with paternal cousins, and participated in music, sports, and social activities in La Serena.
In 2019, the family took a vacation to Hawaii and then to Lake Tahoe, California. During the vacation, Carlos C. consumed excessive alcohol and became verbally and physically abusive to Emilie D.L.M.
Following the 2019 California vacation, Carlos C. sent a text to Emilie D.L.M. stating, “There is nothing left for us after the past two weeks. Don’t bother coming back to Chile. We’ll make arrangements later on regarding your belongings.” Although Emilie D.L.M. and the children had return airline tickets to Chile, they remained in California. Several weeks later, Emilie D.L.M. filed a petition to dissolve her marriage to Carlos C. and later requested a temporary restraining order against him.
Carlos C., who had returned to Chile in the meantime, returned to California. He visited unsupervised with the children for three days. Emilie D.L.M.’s mother required Carlos C. to sign an agreement that promised he would not consume alcohol while visiting the children. Carlos C. testified that he signed the agreement without reading it and under pressure from his mother-in-law. He violated the agreement by consuming alcohol during the three days of visitation with his children.
Carlos C. then returned to Chile where he filed a family law action and a Hague Convention petition seeking repatriation of the children. In December 2019, the San Luis Obispo County family law court heard the petition and Emilie D.L.M.’s request for a temporary restraining order.
At the hearing, Emilie described various incidents of domestic violence. However, “Carlos C. testified and denied that he consumed alcohol excessively or that he committed any acts of domestic violence.”
The court expressly found that Carlos C. was not credible regarding the extent of his alcohol consumption, his denial of the domestic violence incidents, and his denial of his emotional abuse of Emilie D.L.M. in the children’s presence.
The family law court then concluded that Emilie D.L.M. established by clear and convincing evidence that return of the children to Carlos C.’s custody in Chile presents a grave risk to their physical and psychological well-being. Citing the Chilean Independence Day incident, the court concluded that Carlos C. “did not seem to be able to control his behavior in front of the children, particularly when drinking.” The court also pointed out that Carlos C. denied that he drank alcohol excessively and it inferred that he would continue to drink excessively and expose the children to a grave risk of harm: “If the children are returned to [Carlos C.] at this time, there is no effective way to monitor [his] actions with the children or enforce the orders. For all of these reasons, the court cannot find that ameliorative measures will eliminate the grave risk to the children.”
On Carlos’s appeal, the Second District affirmed. Carlos argued “that the family law court did not consider ‘the full panoply of arrangements’ that would safeguard the children in his care in Chile.” Disagreeing, the panel said that
(a)s ameliorative measures, Carlos C. provided evidence at trial that Chilean laws punish acts of domestic violence and that Chilean courts protect domestic violence victims through protective orders. The family law court properly found, however, that these ameliorative measures would be ineffective here because Carlos C. refuses to acknowledge his excessive drinking or domestic violence. In the context of a dependency action, the court in In re Gabriel K. (2012) 203 Cal.App.4th 188, 197, observed that “[o]ne cannot correct a problem one fails to acknowledge.” Even following his written promise to forbear from alcohol consumption during visitation with his children, Carlos C. could not keep his promise. Given Carlos C.’s failure to acknowledge his excessive drinking and acts of domestic violence, as well as his repeated acts of driving while intoxicated, there are no ameliorative measures that will mitigate the grave risk of harm to his children. (Simcox v. Simcox, supra, 511 F.3d 594, 606 [collecting decisions where courts have been skeptical of ameliorative measures in cases involving spousal abuse].) It is a reasonable inference from the evidence that Carlos C. will continue to drink to excess and drive while intoxicated, thus exposing his children to a grave risk of harm. Carlos C. has not borne his burden of establishing other ameliorative measures that would protect the children from his excessive drinking and abusive behavior.
In re Marriage of F.M. & M.M.
In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106: In this case, filed on May 28 but ordered published on June 3, the First District reversed an Alameda County trial court’s denial of W’s request for a DVRO. “Mother alleges that the trial court erroneously refused to consider evidence of abuse committed following the filing of her application, failed to properly evaluate the evidence of domestic violence that the court did agree to hear, and improperly found that physical separation alone could substitute for the legal protections afforded by a restraining order. We agree the court erred in all of these respects, and reverse.”
The parties married in June of 2002 and separated in June of 2017. They had six children. Wife was a stay-at-home parent. The parties continued to live together in the family residence while the divorce was proceeding. Wife filed a petition for a DVRO on August 15, 2019, and the court issued a TRO.
Father was ordered not to abuse mother and to stay at least five yards away from her. The court denied mother’s other requests pending a September 2019 hearing, including her requests to add the children as protected parties, to require father to move out of their shared residence, and to prevent father from traveling with the children. In denying these requests, the court explained that mother had not described the alleged abuse in sufficient detail and had failed to provide a legal basis for a move-out order. The court also noted that parenting orders would be issued after the parties met with family court services.
Before the scheduled hearing, father filed a response to mother’s DVRO application. He stated that he was financially supporting the family without any contribution from mother. He reported that mother was verbally abusive towards him and the children, and that she would threaten to call the police whenever he asked her for help in paying household expenses. According to father, their oldest daughter was so upset at mother’s treatment of her that she had asked to move out. He denied committing any acts of violence, claiming that when mother harassed him he would not respond and would try to avoid her.
Various hearings were held on Wife’s request.
Before the first hearing, mother and father met with a child custody counselor who recommended that mother be given sole legal and physical custody of the parties’ children. The counselor’s report noted that mother and father had argued during the entire meeting and were unable to make good use of mediation. The report also detailed father’s unilateral decision to send their eldest daughter to live in Elk Grove with the mother of his other child. Mother said she had not seen her daughter for almost a month and that father would not disclose their daughter’s exact location. The counselor opined that father’s decision to relocate the child was “peculiar” and “unusually controlling.”
At a hearing on September 5, 2019, the trial court adopted the counselor’s recommendations but said
that it wanted to set a date certain for mother’s move-out, saying the court was “not as much concerned with this request for this restraining order because I think the allegations you’ve made in this request have to do with the fact that the two of you are living together.” Mother said she would move out by the end of the month.
The trial court asked mother whether she thought a restraining order would still be necessary once the parties had separate residences. Mother expressed concern about father being around her and the children because “[h]is behavior, it’s not good.” … Even though father had not filed a request for a DVRO, the court ordered mother to move out of the parties’ home by the end of the month. The court granted mother’s request to reissue the TRO. Father was denied visitation.
At a further hearing on Wife’s DVRO request,
father admitted he had been arrested and jailed but denied having pushed mother and said that no criminal charges were filed against him. Mother responded that father had beaten her, leaving a bruise on her hand, and that she intended to press charges. The court again continued the hearing and encouraged mother to contact the district attorney’s office no later than November 15, 2019. The TRO was reissued.
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Ahead of the final hearing, mother filed a declaration asking the trial court to order father to move out of their former shared residence so she could return with their children. She explained that she had not found an apartment and was living out of her car with the children.
At the final hearing, the trial court refused to consider any evidence of Husband’s conduct after issuance of the TRO.
The court refused to consider this evidence because the incident had occurred the previous Friday, stating: “You need to support this request with what took place before you filed this request. What happened Friday is not relevant to this request.” (Italics added.)
Mother then explained that father was refusing to give her their children. The trial court also rejected this evidence because it related to the parenting order, not domestic violence. The court then asked her, “You are living separately and apart, correct? [¶] . . . [¶] . . . So, you don’t have the conflict with living with each other. [¶] . . . [¶] . . . So what is the basis for your continued request for the restraining order?” Mother responded by referring to threats father had made in November and December 2019. The court cut her off, repeating that she could not rely on events that occurred after she filed her DVRO request.
Mother then explained that in August 2019 father would beat her and call her “bitch” and “motherfucker” in front of the children. She said the abuse started in 2017, when father went to Nigeria “to get married to a new wife.” Father told her he did not want her and threatened to kill her if she did not leave their house. When mother referred to the incident leading to father’s recent arrest, the court interrupted and said that the arrest came after mother filed her request for the restraining order. The court asked father for his response, cutting him off as well when he began relating events that happened after August 2019. Father then denied that he had abused mother and accused her of repeatedly coming to his house and causing him distress.
The trial court asked mother if she had any additional evidence, and she replied she wanted her daughters back because they were not doing well in school and because father was a “party man.” The court interrupted her again, telling her that the issue was irrelevant to the DVRO request. Mother then said her additional evidence was “[j]ust the beating he has been giving me.” She also said that she had tried to press criminal charges against father but had not yet received a response from the authorities.
The trial court denied the TRO, holding that Wife had failed to corroborate her evidence and “all I have is your say so if that’s what happened, and I have [father’s] testimony that that didn’t happen. You have the burden of proof, not him; you do.” It also found that her allegations of abuse were “too general.”
On W’s appeal, filed with the assistance of the Family Violence Appellate Project, the First District reversed. It first held that the trial court’s refusal to consider evidence of post-filing abuse was reversible error.
Mother correctly observes that the DVPA does not “provide that the ‘past act or acts of abuse’ must have occurred only before the petitioner filed the request, or that a court is barred from considering any abuse occurring thereafter.”
While a trial court should, of course, hear and evaluate the evidence relating to incidents set forth in a petitioner’s request, evidence of postfiling abuse is also relevant, particularly when that abuse occurs after a temporary restraining order has been issued, as was the case here. The purpose of a domestic violence restraining order is not to punish past conduct, but to “prevent acts of domestic violence [and] abuse” from occurring in the future. (§6220.) Evidence of recent abuse or violation of a TRO is plainly relevant to whether a petitioner should be granted a protective order. Evidence Code section 210 defines “relevant evidence,” in part, as “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 351 provides: “Except as otherwise provided by statute, all relevant evidence is admissible.”
Postfiling abusive conduct is clearly relevant in cases in which a TRO has been granted pending a hearing on a permanent restraining order. As noted above, section 6320 allows a court to enjoin, among other things, attacking, striking, threatening, harassing, contacting directly or indirectly, or disturbing the peace of the protected party. (§ 6320, subd. (a).) Section 6203, subdivision (a)(4) specifically provides that engaging in behavior that “has been . . . enjoined pursuant to Section 6320” constitutes abuse for purposes of the DVPA. (See N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602–603 [violation of TRO was itself an act of abuse].) The probative value of postfiling evidence is even more apparent in cases such as this one where the trial court’s final ruling was delayed by several months.
In this case, the August 2019 TRO forbade father from attacking or threatening mother, disturbing mother’s peace, or contacting her directly or indirectly apart from “peaceful contact” required for visitation with the children. Mother offered admissible evidence that father violated these prohibitions after she obtained the TRO.
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The trial court’s categorical refusal to consider postfiling evidence of father’s alleged abuse and violation of the TRO, based solely on the ground that the conduct had occurred after mother filed her DVRO application, was legal error and therefore constituted an abuse of the court’s discretion. The court’s evidentiary cut-off violated the DVPA’s mandate that a court “shall” consider the “totality of the circumstances” in determining whether to issue a restraining order.
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It also appears that the trial court selectively applied this blanket rejection of evidence. While the court refused to consider evidence of father’s postfiling conduct, it considered mother’s own postfiling conduct when it declared that mother had not exhibited “good judgment” by retrieving her personal belongings from father’s home without a civil standby, and indicated it would use that as a “factor” against her DVRO petition.
Next, the panel held that Wife had provided sufficient evidence to justify issuance of the DVRO.
We agree with mother that the DVPA does not impose a heightened standard for specificity, nor does it contain any corroboration requirement. Instead, it provides that a court may issue a DVRO “if an affidavit or testimony and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300, subd. (a), italics added.) The DVPA also expressly provides that a court may issue a restraining order “based solely on the affidavit or testimony of the person requesting the restraining order.” (§ 6300, subd. (a), italics added.)
Our review of the evidence does not reveal a fatal lack of specificity in mother’s evidence. Mother’s request for a restraining order documented specific acts of domestic violence and described father’s ongoing abusive behavior. For example, she alleged that father had threatened her life and had specifically threatened to kill her if she called the police for help. He had allegedly called her father in Nigeria and made the same threats. She alleged that father repeatedly called her a “motherfucker,” “bitch,” and “prostitute” in front of their children. In her DVRO request, mother referenced four specific dates on which these incidents occurred, and she also testified that these kinds of acts occurred with regularity. Mother also alleged that father had beaten her and hit her with his hands, and had taken her phone away from her. Threats on a person’s life, demeaning a person in front of their children with vulgar and degrading language, physically beating a person, and seeking to exercise control over a person by taking away their phone, are all actionable forms of abuse under the DVPA. (See §§ 6203, 6320, subds. (a) & (c).)
Of course, “[a] trier of fact is free to disbelieve a witness . . . if there is any rational ground for doing so.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Here, the trial court did not indicate on the record that mother lacked credibility as a witness, and indeed, the court must have credited her testimony because it issued and reissued the TRO several times. Instead, the court found mother failed to meet her burden of proof because she did not offer corroborating evidence. In many domestic violence cases, however, the sole evidence of abuse will be the survivor’s own testimony which, standing alone, can be sufficient to establish a fact: “The testimony of one witness, even that of a party, may constitute substantial evidence.” (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703.) On remand, the trial court is directed to weigh this evidence without a corroboration or heightened specificity requirement.
Finally, the panel held that the court erred in holding that physical separation was sufficient to deter the alleged DV.
Mother correctly argues that the trial court erred insofar as it relied on the fact that she no longer lives with father as a basis for denying her DVRO request. Section 6301, subdivision (b) expressly provides, in relevant part: “The right to petition for relief shall not be denied because the petitioner has vacated the household to avoid abuse . . . .” As mother states: “In light of the recognized seriousness of domestic abuse, domestic violence survivors must not be denied critical protection under the DVPA merely [because] they have succeeded in extracting themselves from the immediate risks posed by living with their abuser.”
Here, the trial court repeatedly stated on the record that mother’s protection from abuse could be accomplished simply by having her and the parties’ six children move out of the house. … At the same time, the court repeatedly stated that the parties needed to stay away from each other, which the court presumably believed they could do without a court order in place. This was error.
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The trial court’s use of residential separation as a substitute for a DVRO was inappropriate given that the parties still have to coparent. Because the parties have six children together, further interactions between the two are unavoidable. The record shows that even with separate residences, continuing interaction between the parties has resulted in ongoing conflict. On remand, the trial court may not deny mother’s petition for a restraining order on the basis that she no longer lives in the same residence with father.
M.M. v. D.V.
M.M. v. D.V. (2021) 66 Cal.App.5th 733: In this case, the Fourth District affirmed an Imperial County JO’s judgment denying F’s petition to establish a parental relationship with his biological son.
M.M. filed the petition after he learned, when Child was two years old, that he was Child’s biological father. M.M. alleged that he was entitled to status as a presumed father under the principles of due process and equal protection set forth in Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) for unwed fathers who are prevented by the mother or by a third party from establishing presumed father status. M.M. does not dispute the parental status of T.M., who is married to Child’s mother (Mother), is listed on Child’s birth certificate as the father, and signed a Voluntary Declaration of Parentage at the Child’s birth. However, M.M. contends that he should be accorded status as Child’s third parent pursuant to Family Code section 7612, subdivision (c).
For the purpose of our analysis, we assume without deciding that M.M. is entitled to presumed parent status as a Kelsey S. father, making him eligible to be adjudged a third parent to Child. However, even assuming that M.M. is entitled to presumed parent status, we conclude that the trial court properly determined that M.M. should not be adjudged a third parent due to his lack of an existing relationship with Child. Accordingly, we affirm the judgment.
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As M.M.’s attempt to be adjudged a third parent depends on a parentage claim arising under Kelsey S. supra, 1 Cal.4th 816, one part of Donovan’s discussion of the case law arising under the UPA deserves special attention. In reviewing the case law, Donovan stated that “although our Supreme Court has rejected the notion that an unwed biological father has a protected liberty interest in establishing a relationship with his child, the court has recognized a biological father’s liberty interest ‘in maintaining and preserving an existing parent-child relationship.’” (Donovan, supra, 244 Cal.App.4th at pp. 1091-1092.) However, as Donovan observed, “[a]n exception to this general principle can be found in Kelsey S., supra, 1 Cal.4th at pages 848-849, which recognized a liberty interest where a biological father is precluded from establishing a relationship with his child.” (Donovan, at p. 1092, fn. 16.) Donovan expressly declined to consider how the “policy motivations underlying Kelsey S.” impacted its analysis of section 7612, subdivision (c), because its assumption that the biological father was a presumed parent did not arise under Kelsey S. (Ibid.) Here, in contrast, we have assumed that M.M. is a presumed parent based on Kelsey S.
Although Donovan did not consider the significance of Kelsey S. in deciding how to interpret section 7612, subdivision (c), we find no basis to conclude that Donovan’s interpretation of section 7612, subdivision (c) is inapplicable when a presumed parent seeking to be adjudged a third parent is a Kelsey S. father. The constitutional rights to due process and equal protection accorded to a Kelsey S. father are honored by allowing a Kelsey S. father to participate, just like any other presumed parent, in a proceeding to be adjudged a third parent. However, as section 7612, subdivision (c) provides, the ultimate focus in such a proceeding must be on whether it would be detrimental to the child to have only two parents, not on whether it is in the putative parent’s interest to obtain third parent status. That inquiry is the same regardless of whether the person seeking to be adjudged a third parent is a Kelsey S. father or is a presumed parent based on one of the statutory grounds in section 7611.
Therefore, in assessing M.M.’s petition to be adjudged a third parent, we apply the approach set forth in Donovan, under which we determine whether there is an “existing, rather than potential, relationship between a putative third parent and the child, such that ‘recognizing only two parents would be detrimental to the child.’” (Donovan, supra, 244 Cal.App.4th at p. 1092; see also M.Z., supra, 5 Cal.App.5th at pp. 66-68 [the court properly found that § 7612, subd. (c), did not apply because the putative third parent did not have existing parent-child relationship with the children]; L.L., supra, 13 Cal.App.5th at p. 1317 [“Absent an existing relationship with [the child], there is no ground on which [the biological father] could be recognized as a third parent under section 7612, subdivision (c).”].) This inquiry is necessary because “[a] person who lacks an existing parent-child relationship is not a child’s ‘parent in every way.’ . . . Nor would separation from such a person cause ‘devastating psychological and emotional impact on the child.’” (Donavan, at pp. 1092-1093.) As subsequent case law emphasizes, the question is not whether it would be detrimental to the child if a third parent, was added, but rather whether it would be detrimental to the child to have only two parents. (L.L., at p. 1316.)
Here, the trial court found that “[Mother] and [T.M.] have been the only parents [Child] has known since birth,” and that although “[M.M.] has seen [Child] on several occasions for brief periods of time[,] . . . there have been no real visits nor was there evidence of any type of bonding between [M.M.] and [Child].” Expressly relying on Donovan, supra, 244 Cal.App.4th 1075, the trial court concluded that “it is not detrimental to [Child] to have only two parents.” The trial court explained that M.M.’s case was like Donovan in which “the parent in [M.M.’s] position did not have an existing relationship and thus there was no substantial evidence to support a detriment finding pursuant to . . . section 7612[, subdivision] (c).”
In re N.B.
In re N.B. (2021) 67 Cal.App.5th 1139: In this case, the First District affirmed a Napa County juvenile court’s order terminating a grandmother’s legal guardianship over her granddaughter.
The juvenile court observed that there was not “any doubt on anybody’s part that [Catherine] loves [N.B. and] that she is committed to [N.B.]” But the court was concerned that Catherine’s behavior was contributing to N.B.’s problems and that she lacked insight into how to help her granddaughter. The court found that Catherine was not capable of meeting N.B.’s emotional needs and could not keep her safe and concluded that terminating the guardianships would be in N.B.’s best interest. The juvenile court terminated the legal guardianships of Catherine and the maternal aunt.
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According to Catherine, the Agency was required to “follow the procedures and requirements of section 387” to terminate her guardianship. She claims the juvenile court should have held a dispositional hearing on the Agency’s supplemental section 387 petition before it proceeded to a section 388 hearing. In support she relies on In re Jessica C. (2007) 151 Cal.App.4th 474. There, as here, a grandparent had been appointed as a legal guardian after reunification efforts with a parent failed. (Id. at pp. 478–479.) After reports of the guardian’s inability to care for his grandchildren a few years later, the social services agency filed a section 388 petition seeking to terminate the guardianship, which the juvenile court granted. (Jessica C., at pp. 479–480.) The appellate court concluded that petitions to terminate guardianships must follow the “more detailed procedure” set forth in section 387. (Jessica C., at p. 480.) We agree with respondent that this conclusion lacks any authority and is inconsistent with the statutory scheme.
Ashby v. Ashby
Ashby v. Ashby (2021) 68 Cal.App.5th 491: In this lengthy opinion, filed on August 5, 2021, but certified for publication on August 31, 2021, on the request of many organizations, including the Family Violence Appellate Project (which represented W), the Fourth District affirmed an Orange County JO’s order renewing a DVRO against H to protect W from him. It affirmed the trial court’s finding on substantial evidence. Also, “Jeff contends the trial court abused its discretion by renewing the DVRO because Michelle did not meet her burden of proving she had a reasonable apprehension of future abuse. We conclude Jeff forfeited this argument. … Jeff has made no effort to satisfy his significant burden on appeal. Throughout his briefing, Jeff improperly refutes the factual basis for the original DVRO.”
Domestic violence, not gun ownership, was the issue. Domestic violence (physical, financial, and emotional) ended the marriage and was the basis for the DVRO. Yet neither Jeff’s factual summary or legal discussion includes a description of the evidence supporting issuance of the DVRO, the stalking, or the financial starvation, which prompted Michelle to request a move away order. Jeff omits the reasons why Judge Melzer denied Jeff’s request to modify/terminate the restraining order. As stated in the Ritchie case, the facts supporting issuance of the DVRO “often will be enough in themselves to provide the necessary proof to satisfy [the] test.” (Ritchie, supra, 115 Cal.App.4th at p. 1291.)
Like his factual summary, Jeff’s legal analysis sets forth a one-sided narrative of events. With laser sharp focus, Jeff sticks to his story that he never violated the DVRO, and therefore, Michelle never had a reason to fear him. By concentrating only on current events, Jeff paints an idyllic picture of having a harmonious co-existence with Michelle, where they are successfully navigating joint custody of their children while peacefully living over 1,000 miles apart. He laments that if only Judge Vu had properly evaluated evidence relating to the parties’ current circumstances, he would have reached a different result. This argument turns our standard of review on its head. We do not review the evidence to see if there is substantial evidence to support the losing party’s version of events. Our power begins and ends with a determination if there was substantial evidence in the winning party’s favor. For this reason, Jeff was required to set forth, discuss, and analyze both the favorable and unfavorable evidence. “‘“Unless this is done the error is deemed to be waived.”’ [Citation.]” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.)
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Moreover, contrary to Jeff’s contention, his custodial and financial disputes were also relevant to the DVRO. Michelle aptly notes that support, restitution, child custody, and visitation orders can be made in domestic violence proceedings (§6321, 6324, 6325, 6340, 6341, 6342, & 6347). As was the case here, custody and financial disputes are often used by a restrained party as a pretext to continue harassing and controlling the protected party. Our record shows Jeff willfully violated multiple custody court orders and strategized to financially starve Michelle and pressure her into terminating the DVRO. Judge Melzer’s factual findings regarding Jeff’s spiteful litigation tactics, including Jeff’s appalling alliance with Michelle’s abusive father, demonstrated a high level of viciousness and malevolence towards Michelle. And although Jeff has had less contact with Michelle since she moved to Idaho, this change was not because they became cordial or resolved their differences. For example, Jeff refused to pay court ordered child and spousal support, need based attorney fees, and custody evaluation costs. He helped his mother confiscate the family car and supported their eviction from the family home. He stopped communicating on Talking Parents and ignored custody exchange protocols.
In summary, Jeff’s noncompliance with court orders further illustrates he has not moved on and the power and control dynamic of the abusive relationship is ongoing. Judge Vu reasonably believed Michelle’s claim she was afraid of future abuse because of Jeff’s hostility towards her remained unchanged.
Guardianship of S.H.R.
Guardianship of S.H.R., September 2, 2021, B308440: In this case, the Second District affirmed a Los Angeles Country trial court’s denial of a petition for “judicial findings that would enable him to petition the United States Citizenship and Immigration Services (USCIS) to classify him as a special immigrant juvenile (SIJ) under federal immigration law” and a petition for appointment of a guardian of his person.
As we explain below, S.H.R. had the burden of proving by a preponderance of the evidence the facts supporting SIJ status. Because the trial court found his evidence did not support the requested findings, S.H.R. has the burden on appeal of showing that he is entitled to the SIJ findings as a matter of law. For the reasons discussed below, he has not met his burden. We therefore affirm the order denying the SIJ petition. Because the denial of the SIJ petition rendered the guardianship petition moot, we also affirm the order denying that petition.
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S.H.R. and amicus rely on S.H.R.’s declaration evidence in arguing that his parents abandoned and neglected him because: (1) between the ages of 10 and 15, he was required to perform exhausting agricultural field work during the summers under difficult conditions; (2) gang members threatened him and his family and, because of these threats, his parents required that he discontinue his high school education and work at a car wash; and (3) his parents did not provide him with financial support.
We may quickly dispose of the argument that S.H.R.’s parents abandoned him. According to S.H.R., he lived with both of his parents from his birth until he left El Salvador in June 2018. Although he stated that his mother does not work and his father had “not been able to find work for a couple of years,” he does not state that his parents had ever left him without provision for his care or supervision. (See Fam. Code, § 3402, subd. (a).) Nor is there any evidence that either parent ever deserted or intended to abandon S.H.R. (Fam. Code, § 7822, subd. (b); see In re Guardianship of Rutherford (1961) 188 Cal.App.2d 202, 206 [abandonment requires “ ‘ “an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same” ’ ”].) Indeed, when S.H.R. raised the subject of leaving the country, his parents insisted that S.H.R. stay with them. Ultimately, S.H.R. disregarded his parents’ advice and left home “without telling them.” His separation from his parents was thus the fulfillment of his intention and action, not the result of abandonment by his parents.
N.B.: Review of this case has been granted by the California Supreme Court.
Hudson v. Foster
Hudson v. Foster (2021) 68 Cal.App.5th 640: In this conservatorship case,
(a) conservatee filed a motion asking the probate court to exercise its inherent equitable authority to set aside an order approving his former conservator’s final account due to misrepresentations of material fact in the account. The probate court denied the motion after finding that the conservatee failed to show he was unaware of the defects in the account at the time it was approved, or failed to act with reasonable diligence to set aside the order in light of information that he should have known. On appeal, the conservatee contends the order denying the motion to vacate is appealable, because it is based on the probate court’s equitable power to set aside an order obtained through extrinsic fraud. The conservatee further contends that the order approving the account was not preclusive under Probate Code section 2103,1 because it was based on misrepresentations of material fact, and as a result, the trial court abused its discretion by refusing to set aside the order.
We agree that the order denying the motion to vacate for extrinsic fraud is appealable in this case. Misrepresentations of material fact in a conservator’s account are treated as extrinsic fraud. We hold that a conservatee has no duty to investigate representations of fact in the conservator’s account, unless the conservatee becomes aware of facts from which a reasonably prudent person would suspect wrongdoing. Therefore, to set aside an order approving the conservator’s account on the ground of extrinsic fraud, a conservatee is not required to establish that the misrepresentations of material fact in the account could not have been discovered prior to entry of the order approving the account. The probate court’s ruling relied on legal authority that we find unpersuasive because it placed a higher burden to investigate on the conservatee. The matter must be reversed and remanded for the probate court to exercise its discretion based on an accurate understanding of the applicable law.
People v. Barefield
People v. Barefield (2021) 68 Cal.App.5th 890: In this criminal case, the Third District affirmed a Sacramento County trial court’s convictions of corporal injury, assault with a deadly weapon and false imprisonment arising from his attack on a former girlfriend. H argued that the trial court erred in admitting his separated but not yet divorced wife’s testimonial evidence in violation of the marital privilege; the panel held that although the trial court erred, the error was harmless. The trial court held that the privilege no longer applied after separation, but the panel disagreed, holding that it applied until a marriage was terminated.
Defendant contends the trial court erred when it ruled that the marital testimony privilege did not apply to M.W. and ordered her to testify. The privilege is given to “married person[s],” and defendant and M.W., though separated, were still legally married. (Evid. Code, § 970.) Defendant argues that the trial court’s use of family law to hold that the marriage privilege did not apply because they were separated violated the clear and express terms of the statutory privilege and wrongfully created an exception to the privilege.
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The marital privilege is available until the marriage is dissolved by a final judgment of dissolution even though the marriage became nonviable years before. (Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 900 (Jurcoane).) The privilege is not available after the marital relationship is terminated by divorce. (People v. Dorsey (1975) 46 Cal.App.3d 706, 716-717.) But if a final decree of divorce has not been obtained, the testifying spouse may claim a privilege not to be a witness. (Id. at p. 717.)
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Jurcoane’s reasoning applies here. The evidence is undisputed that defendant’s marriage to M.W. is no longer viable. However, the marriage had yet to be terminated by a final judgment of dissolution. Because the statutory language of the marital privilege and its exceptions is clear, and because we have no authority to imply the existence of an additional exception to the privilege, we must hold that M.W.’s claim of marital privilege was lawful.
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The Attorney General further argues that the trial court’s reliance on California family law’s use of the date of separation was a reasonable basis to determine when the privilege will no longer further its legislative purpose. The trial court based its ruling that the privilege did not apply on the demarcation provided by the Family Code for determining a divorcing couple’s community and separate property. Family Code section 771 declares that the earnings and accumulations of a spouse after the “date of separation” are the separate property of that spouse. (Fam. Code, § 771, subd. (a).) Family Code section 70 defines the “date of separation” as “the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) The spouse has expressed to the other spouse the intent to end the marriage[; and] (2) The conduct of the spouse is consistent with the intent to end the marriage.” (Fam. Code, § 70, subd. (a).) The Attorney General argues the date of separation so defined is a reasonable basis for determining when the purposes of the marital privilege—promoting marital harmony—are no longer served.
K.L. v. R.H.
K.L. v. R.H. (2021) 70 Cal.App.5th 965: In this case, the Fourth District partially reversed an Orange County JO’s issuance of mutual restraining orders against the parties “without considering and following the relevant statutory authority.”
Because there was more than sufficient evidence supporting a DVPA order protecting R.H. and her child H.H. from K.L., that order shall be affirmed. We reverse the orders regarding child custody. If, after the trial court regains jurisdiction following the resolution of the dependency proceedings involving Z.L., either party files a request for order concerning custody, the trial court shall consider and apply the rebuttable presumption of Family Code section 3044 and the factors that overcome that presumption.
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Family Code section 6305 permits trial courts to issue mutual restraining order, but limits them to specific circumstances that are not present in the record before us. Indeed, the language of the statute makes clear that mutual restraining orders are the exception, and “shall not issue” unless the trial court makes specific findings, and that in making those findings the court “shall consider” both the intent of the law protecting domestic violence victims and the specific circumstances of the history of domestic violence in the case before it. (Fam. Code, § 6305; see Pen. Code, § 836, subd. (c)(3).) Specifically, the statute mandates that the court determine which of the parties is the “most significant” aggressor. (Pen. Code, § 836, subd. (c)(3).) Such a determination requires that the acts of the parties be weighed against each other. As a result, in deciding whether mutual restraining orders should issue, the trial court must consider the parties’ respective alleged acts of domestic violence in concert, and not separately, as the court did here. (Melissa G. v. Raymond M. (2018) 27 Cal.App.5th 360, 372 [“By separating out for analysis each party’s claim of abuse against the other, and issuing restraining orders against both parties as if incidents occurring at different times must be wholly unrelated, a court does not give full effect to the statutory directive that it ‘shall consider’ both ‘the history of domestic violence between the persons involved’ and ‘protect[ing] victims of domestic violence from continuing abuse’”].)
In this case, the trial court failed to properly apply the statutory factors to the evidence before it.
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In this case, calling K.L. a “dick” and failing to show up for custody exchanges is not sufficient to disturb anyone’s peace, especially if that person has been physically and emotionally abusing the other person for almost two years. Pursuant to Penal Code section 836, subdivision (c)(3)(A), (B), and (C), these words and actions do not justify a finding that R.H. was the dominant aggressor or that R.H. was not acting in self-defense. This conclusion does not condone or approve R.H.’s words or actions, but recognizes they simply do not rise to the level required by the law.
Finally, the trial court erred as a matter of law by relying on R.H.’s previous criminal convictions in ordering the issuance of a mutual restraining order. Family Code section 6306, which the trial court cited in explaining why it was considering R.H.’s convictions, provides, in relevant part: “(1) Prior to deciding whether to issue an order under this part or when determining appropriate temporary custody and visitation orders, the court shall consider the following . . . : any conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; any misdemeanor conviction involving domestic violence, weapons, or other violence; any outstanding warrant; parole or probation status; any prior restraining order; and any violation of a prior restraining order. [¶] (2) Information . . . that does not involve a conviction described in this subdivision shall not be considered by the court in making a determination regarding the issuance of an order pursuant to this part. That information shall be destroyed and shall not become part of the public file in this or any other civil proceeding.” (Fam. Code, § 6306, subd. (b).)
R.H.’s misdemeanor convictions for child endangerment and second degree burglary are neither felony convictions nor misdemeanors involving violence; nor are they within the categories specified in Family Code section 6306, subdivision (b)(2). Therefore, the court should not have considered them in deciding whether to issue mutual restraining orders, or in connection with the issue of custody.
Doe v. Damron
Doe v. Damron (2021) 70 Cal.App.5th 684: In this case, the First District reverses a Napa County superior court’s dismissal of W’s complaint against H for damages “for domestic violence (Civ. Code, §1708.6), sexual battery (id., §1708.5), and gender violence (id., §52.4).” It holds that H’s actions in assaulting W in California “easily satisfy the minimum contacts requirement” for personal jurisdiction over a nonresident defendant.
While plaintiff Jane Doe and defendant Scott Damron were married, the couple travelled together to California on two occasions. In Riverside, according to Doe, Damron forcibly groped her on a sidewalk, attempted to force her to perform oral sex on him in the street, and then raped, battered, and strangled her in their hotel room. Doe alleges she sought help from hotel staff, who called the police, and she received medical assistance. The police arrested Damron and he eventually pled guilty to willfully inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)).
The couple travelled to California a second time to attend a conference in Anaheim and to vacation in northern California. Doe alleges that, during this trip, Damron grabbed her, shoved her to the floor, strangled her, and bruised her neck.
The parties divorced in Georgia, and H did not deny the Riverside assault, although he denied the Anaheim event. The trial court granted his motion to quash for lack of personal jurisdiction. In the opinion, the panel said that “(v)isitors to a state should reasonably expect that, if they assault someone on their travels, they may have to answer for their conduct in the state’s courts. Indeed, Damron was criminally prosecuted in California for the same conduct.” It also said that
Damron argues that it would be unfair to adjudicate the case in California because it would be inconvenient and burdensome. Despite sufficient contacts with a forum state, a defendant may prevail by demonstrating that litigating the case in a foreign state would be “ ‘so gravely difficult and inconvenient’ ” that it would put him at a “ ‘severe disadvantage’ in comparison to his opponent.” (Burger King, supra, 471 U.S. at p. 478.) Damron submitted a declaration asserting, with scant details, that California is a “seriously inconvenient forum” and that “it will be an extreme financial burden” for him to have to defend suit here. The trial court noted that Damron has identified at least 20 individuals in Georgia that “are or may be” witnesses in the case. Damron says his witnesses in Georgia could testify to Doe’s “erratic behavior and her jealous rages.” His Georgia attorney declared, again with no specifics, that “all documents[] [and] any alleged medical records or therapist records are all in Georgia,” and it would be expensive to “procure certified copies, subpoena documents, etc.”
We are not persuaded. To be sure, both parties would suffer inconvenience, expense, and burdens. Both live in Georgia. Both have retained counsel in California. While Damron has identified witnesses and documents in Georgia, Doe has identified at least nine witnesses in California who allegedly have relevant information about the assault in Riverside, including hotel employees who called the police for her, a medical responder, a treating physician who examined her for sexual assault, and a police detective, investigator, and two officers. (See Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 592 [personal jurisdiction over non-resident was reasonable even though “proof of the claims alleged may require witnesses from both California and Germany”]; Rest.2d, Conf. of Laws, § 36, comment (c) [a state’s jurisdiction over a tort action is reasonable, in part, because there will usually be witnesses in that state].) Damron has not made a compelling case that a California forum is unreasonable.
There were many amici curiae on W’s behalf.
Colchester v. Lazaro
Colchester v. Lazaro, No. 21-35210 (9th Cir. 2021): In this 9th Circuit Hague Convention case, the panel reversed the District Court for the Western District of Washington.
The panel (1) vacated the district court’s order, after a bench trial, granting a petition for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction and (2) remanded for appointment of a psychologist and a new trial.
The child’s father sought the return of the child to Spain. The mother argued that returning the child to her father, who she alleged had abused both her and her baby, would present a grave risk of psychological or physical harm to the child, and a defense under Article 13(b) of the Convention therefore applied.
The panel held that neither the Hague Convention nor its implementing legislation, the International Child Abduction Remedies Act, provides for appointment of a psychologist as of right. Nonetheless, the district court erred in refusing the mother’s request for appointment of a forensic psychologist to examine the child and provide an expert opinion regarding the mother’s allegations of abuse and the psychological harm to the child arising therefrom. The panel concluded that the district court’s refusal to permit the requested examination amounted to an abuse of discretion that rendered the subsequent bench trial fundamentally unfair.
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Lazaro argues on appeal that the district court’s refusal to permit an in-depth psychological examination rendered the bench trial unfair. We agree.
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In particular, it would have been unfair for the district court to first refuse the exam because Dr. Romero had already examined S.L.C. but later conclude that Dr. Romero’s examination was too brief to be reliable and that her testimony should never have been admitted because her opinion was based on an inadequate examination. Together, these rulings rendered the bench trial fundamentally unfair. It is impossible to know, reviewing the record, whether Colchester in fact abused Lazaro and S.L.C. But the district court prevented Lazaro from developing the expert evidence that courts generally require respondents to present for an Article 13(b) defense based on domestic violence to be accepted. This error was further compounded by the district court’s peremptory refusal to permit S.L.C. to testify herself. In effect, the district court’s rulings made it practically impossible for Lazaro to make out her case.
Finally, the district court’s abuse of discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. resulted in actual and substantial prejudice to Lazaro, since there is a reasonable probability that ordering the exam would have changed the result at trial. See Laub, 342 F.3d at 1093. The court’s denial of that examination therefore constitutes reversible error.
Noble v. Superior Court of Merced County
Noble v. Superior Court of Merced County (2021) 71 Cal.App.5th 567: In this case, the Fifth District granted W’s petition for a writ of mandate compelling the Merced County family court “to vacate its interim orders granting Forestt joint legal and physical custody of the children and to enter a new order after considering the section 3044 presumption of detriment.”
Family Code section 30441 establishes a rebuttable presumption that it is not in the child’s best interest to award joint or sole legal or physical custody to a parent who a court has found to have committed domestic violence against the other parent within the previous five years. (§ 3044, subds. (a), (d)(2).) The presumption can only be rebutted if the court finds both that the perpetrator of domestic violence has demonstrated it is in the child’s best interest to grant the perpetrator custody and enumerated factors on balance support the legislative findings in section 3020. (§ 3044, subd. (b).) When a party in a custody proceeding has alleged the other party has perpetrated domestic violence, the court is required to: (1) inform the parties of the existence of section 3044 and give them a copy of the section prior to custody mediation (§ 3044, subd. (h)); and (2) in an evidentiary hearing or trial in which custody orders are sought, determine whether section 3044 applies before issuing a custody order (§ 3044, subd. (g)).
In this marital dissolution action, petitioner Desirae Noble (Desirae) contends that, despite respondent family court knowing she had obtained a domestic violence restraining order from a Utah court against real party in interest Forestt Noble (Forestt) and presented evidence of Forestt abusing her, the family court neither notified the parties of section 3044 prior to custody mediation nor applied the statute in making its interim custody orders. As a result, she argues, the family court awarded joint custody of the couple’s two children to Forestt without making the findings required to rebut the statutory presumption against an award of custody to him.
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In 2018, the Legislature amended section 3044 to add, among other things, subdivision (g), which provides: “In an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether this section applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Section 3011, including, but not limited to, subdivision (e), and Section 3020.” (Stats. 2018, ch. 941 (A.B. 2044), § 3, eff. Jan. 1, 2019.)
The Assembly Committee on Judiciary analysis of Assembly Bill No. 2044, as amended March 22, 2018, explains the rationale for the amendment: “[T]his bill requires that if an allegation of domestic violence is made in any hearing in which custody or visitation is sought, the court must determine if the Section 3044 presumption applies before issuing a custody or visitation order. This is just a common sense measure to ensure that Section 3044 is actually implemented properly. An allegation of domestic violence against a parent, without more, should not create a presumption against custody to that parent. However, if an allegation is made, the court first must determine if the presumption might apply before making a custody award. If courts do not, upon receiving an allegation of domestic violence, even have to consider whether the Section 3044 presumption applied, the goal of that section—to protect children from the known harm of exposure to domestic violence—would be substantially undermined. This amendment does not make it any more likely that a court will find that the presumption exists; it simply requires that the court at least consider whether or not it might.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2044 (2017-2018 Reg. Sess.) as amended Mar. 22, 2018, pp. 7‒8.)
Thus, the court is required to determine whether section 3044 applies whenever there is an evidentiary hearing or trial in which custody orders are sought and domestic violence has been alleged. Here, although it does not appear testimony was taken at the August 14, 2020 hearing, the parties did submit evidence in support of their requests for sole custody of the children. Moreover, the family court was aware that Desirae had made allegations of domestic violence and, more importantly, the family court knew of the Utah protective order. Therefore, the family court was required to determine whether section 3044 applies before issuing the modified custody order.
In re S.G.
In re S.G. (2021) 71 Cal.App.5th 654: In this case, which has a dissenting opinion, a Second District majority affirmed a Los Angeles County Pro Tem judge’s denial of M’s request for a permanent restraining order protecting her from Father.
While Mother’s appeal was pending, the juvenile court terminated jurisdiction in an order from which Mother did not appeal.
We hold that Mother’s failure to appeal the termination of juvenile court jurisdiction does not render Mother’s restraining order appeal moot. In so holding, we disagree with certain cases to the extent they stand for the broad proposition that an appellate court can never grant effective relief in a dependency appeal following the unappealed termination of juvenile court jurisdiction. Here, were we to conclude the juvenile court’s denial of Mother’s restraining order request constitutes reversible error and direct the court to issue the restraining order, our remittitur would vest jurisdiction in the juvenile court for the limited purpose of correcting that error. Correcting an erroneous denial of Mother’s restraining order request would immediately afford Mother effective relief. Mother’s appeal is therefore not moot.
As to the merits, we hold that the court did not abuse its discretion in denying Mother’s requested restraining order because the evidence does not compel the conclusion that Mother’s safety would be in jeopardy without such an order. Nor do we agree with Mother that the juvenile court applied an incorrect legal standard in ruling on her request. Even assuming the court did so err, however, such error would not warrant reversal because it is not reasonably probable that Mother would have obtained a more favorable result under the correct standard.
In his dissent, Justice Chaney says that “I would have concluded that the appeal was moot.”
C.T. v. K.W.
C.T. v. K.W. (2021) 71 Cal.App.5th 679: In this case, the First District reversed a San Francisco family court’s denial of M’s request for attorney fees in “this contentious domestic violence action.” “She contends the trial court erred in finding that she was not entitled to attorney fees under any of the cited statutes. While we agree that most of the statutes cited by mother are not applicable, we conclude that she may be entitled to attorney fees under Family Code section 7605. Accordingly, we shall reverse the order and remand for the court to determine whether an award of fees and costs is appropriate, using the appropriate needs-based criteria.”
Conservatorship of C.O.
Conservatorship of C.O. (2021) 71 Cal.App.5th 894: In this case, the Sixth District affirmed a Santa Clara County trial court’s orders in this conservatorship action.
Following a court trial, the trial court found objector and appellant C.O.1 to be gravely disabled within the meaning of the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5000 et seq.). The court reappointed the Santa Clara County Public Guardian (public guardian) as C.O.’s conservator. On appeal from that judgment, C.O. contends the trial court prejudicially erred when it failed to advise him on the record of his right to a jury trial and did not obtain from him a personal waiver of that right. C.O. asserts the trial court erred under the LPS Act, as well as violated his constitutional rights to due process and equal protection. For the reasons explained below, we affirm the judgment.
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Based on the language of section 5350 and Probate Code section 1828(a)(6), we therefore decide that where, as here, the proposed conservatee is able to and willing to attend the hearing (cf. Prob. Code, § 1825), the trial court must directly advise a proposed conservatee of his or her right to a jury trial over the matter of the establishment or reestablishment of the conservatorship. The trial court’s failure to do so here was statutory error.
Before considering whether that advisement error requires reversal of the judgment, we address whether the trial court erred in accepting counsel’s waiver of C.O.’s right to jury trial.
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C.O. also contends the trial court was statutorily required to obtain from him a personal waiver of his right to jury trial, and the trial court erred by relying upon the waiver by his counsel. But C.O. does not point to language in any of the relevant statutes addressing waiver of the jury trial right, and our independent research has not identified any.
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C.O. does not assert any deficiency in the failure to communicate C.O.’s sentiments to the court, and we see no evidence of any in the record. C.O. informed the court, through his counsel, that he wished to have the matter of his conservatorship decided by court trial. In response, the court conducted a court trial, in accordance with C.O.’s expressed preference.
Based upon the absence of any specific language referencing waiver in either section 5350 or the applicable Probate Code provisions, we adhere to our prior conclusion in Maldonado, supra, 173 Cal.App.3d at p. 148. We hold that (absent circumstances suggesting the proposed conservatee’s counsel lacked actual authority, counsel disregarded his client’s wishes, or that the proposed conservatee was actually unaware of his right to a trial by jury) counsel may waive on behalf of the proposed conservatee his or her right to have the matter of establishment or reestablishment of the conservatorship decided by jury trial.
Adoption of S.S.
Adoption of S.S. (2021) 72 Cal.App.5th 607: In this case, the First District reversed and remanded a San Mateo County juvenile court’s determination that it did not have the authority to amend adoption judgments.
The question before us is whether the trial court had the authority to amend final adoption orders to include a postadoption contact agreement that had not been properly presented to the adoption court for review and approval at the time the adoption petitions were granted.
More than three years after adoption orders were entered for two siblings, the adoption agency and the children’s biological grandparents moved the court to amend the orders to include the postadoption contact agreement the grandparents and adoptive parents executed prior to the adoption. The contact agreement had not been provided to the adoption court and thus not considered or made part of the original adoption orders. The trial court determined, as a matter of law, that it had no jurisdiction to consider the motion to amend because the adoption court which had originally granted the adoptions had not made the necessary judicial determinations as to whether the postadoption contact agreement was executed voluntarily and in the best interests of the children. It therefore deemed the postadoption contact agreement invalid and unenforceable.
The trial court erred in ruling it did not have the authority to amend the adoption judgments. As a court of equity, it could have used its equitable powers to amend the judgments to include the parties’ agreement in the interests of fairness and justice. The trial court also erroneously ruled that the grandparents could not show the adoptive parents were barred from opposing the amendment under the doctrine of equitable estoppel, as it misapplied the law in concluding that evidence of fraud or an intentional or deliberate misrepresentation was necessary for the doctrine to apply. We reverse and remand.
Conservatorship of Joanne R.
Conservatorship of Joanne R. (2021) 72 Cal.App.5th 1009: In this case, the Second Division confirmed a Los Angeles County trial court’s determination that the conservatee had a grave disability and re-appointed her conservator. In doing so, it said this:
Joanne contends the trial court provided her an inadequate jury trial waiver advisement and improperly induced her to waive her right to a jury trial by stating she could either have a court trial that day or a jury trial nine months later. Although we are concerned by the delay in providing conservatees jury trials during the COVID-19 pandemic, we conclude there was no violation of Joanne’s statutory right to a jury trial.
However, we caution the superior court that a nine-month delay for a conservatee to have a jury trial where the conservatorship would otherwise end in a year, absent a health emergency, raises serious constitutional concerns in light of the significant liberty interests at stake. A conservatee’s right to a jury trial has little meaning if the conservatee can only exercise that right after spending nine months of a one-year term in a custodial setting. Indeed, in this case, because the pretrial hearing was delayed due to the pandemic, the jury trial would have taken place just one month before the conservatorship was scheduled to expire. This delay strays far from the statutory requirement in section 5350, subdivision (d)(2), that a “[c]ourt or jury trial shall commence within 10 days of the date of the demand,” unless the attorney for the proposed conservatee requests up to a 15-day continuance.
As we stated in Conservatorship of Jose B. (2020) 50 Cal.App.5th 963, 967, “We are deeply troubled by the significant delay of over four months in holding a trial on [the] petition, especially given the lack of any justification by the court for most of the delay. [The conservatee] contends trials on conservatorship petitions are routinely continued by the trial courts in violation of the 10-day requirement.” At oral argument in this case, counsel stated that even pre-pandemic, jury trials were consistently delayed well beyond the four-month period at issue in Jose B. We urge the superior court to dedicate the necessary additional resources to LPS jury trials so that conservatees may exercise their right to a jury trial in a timely manner. Failure to do so likely violates a conservatee’s constitutional right to due process.
In re M.P.
In re Marriage of Reichental (2021) 73 Cal.App.5th 396: In this case, the Second District partially reversed the decision of a temporary judge appointed pursuant to the parties’ stipulation. It held that the temporary judge did not exceed the scope of her appointment when she heard and decided Husband’s request for a DVRO but erred as a matter of law when she specified that the restraining order was a “non-CLETS” order.
Dorit petitioned for dissolution in February 2017 and in May 2017, the parties agreed to appoint Judge Melinda Johnson as a temporary private judge.
The stipulation provides, “The temporary judge shall hear and try the above- entitled matter, including hearing and determining all pretrial motions, discovery matters, and orders to show cause; presiding over the trial; rendering judgment; and hearing and determining all post-trial motions and orders to show cause.”
Avi filed a request for a DVRO against Dorit. In response, Dorit argued that what Avi alleged was not sufficient for a restraining order. Judge Johnson denied Avi’s request for an emergency order and set the matter for an evidentiary hearing.
On the first day of the evidentiary hearing, Wife objected to Judge Johnson presiding over Husband’s DVRO request. She contended the DVRO request should be dismissed because the proceeding was outside the scope of the stipulation appointing the temporary judge. She described the DVRO request as an ancillary proceeding that was independent from the dissolution action referred to Judge Johnson. Wife noted the DVRO request was based on facts that arose after the petition for dissolution was filed and included a request that the order extend to Jobst, who is not a party to the dissolution action.
Judge Johnson declined to dismiss the DVRO proceeding, concluding that it was related to the petition for dissolution and fell within the scope of the parties’ stipulation. Judge Johnson acknowledged that the DVRO request relied on circumstances arising after the dissolution petition was filed but noted, “[T]here are a lot [of] things that we try that weren’t contemplated at all at the time the petition[] or response was filed. That is typical in family law, particularly the ones that linger on for some period of time.”
After an eight-day hearing, “Judge Johnson granted a ‘non-CLETS’ restraining order accompanied by a statement of decision.” She
acknowledged that a CLETS order would have “the potential of disrupting [Wife’s] employment as a life coach and, perhaps, eventually, a therapist, to an unwarranted degree.” She concluded a non-CLETS order, “[a]lthough disfavored in the law,” was appropriate. The judge explained, “just as the pattern of the behavior is such as to leave the Court in a state of mind to believe re-offen[d] is more than a hypothetical possibility, the length of time since the last reported incident suggests something less than the full force of law may be sufficient to prevent such a re-offense.”
On Dorit’s appeal, the Second District first held that Judge Johnson had jurisdiction under the stipulation to hear Avi’s DVRO request.
Wife argues the parties’ stipulation appointing Judge Johnson defined the “cause” assigned to her as the dissolution of the parties’ marriage. The DVRO proceeding is ancillary to that “cause,” she contends, because it is a separate cause of action that proceeds on its own record and whose outcome does not impact any final judgment in the dissolution action. We disagree.
The parties stipulated that Judge Johnson was authorized to “hear and try the above-entitled matter,” e.g., the petition for the dissolution of the parties’ marriage, “including hearing and determining all pretrial motions . . . .” In the family law context, a request for order is the equivalent of a motion. (Cal. Rules of Court, rule 5.92(a)(1)(A).) The Family Code also expressly authorizes the court to issue a DVRO “in a proceeding for dissolution of marriage . . . .” (§ 6221, subd. (a).) We conclude a request for a domestic violence restraining order, filed in a pending dissolution case, is a motion in that case. (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 37.) Phrased otherwise, a DVRO can, as this case shows, arise out of, and may be the offspring of, or “direct progeny” of, a marital dissolution action. (Gridley, supra, 166 Cal.App. 4th at pp. 1582-1583.) Accordingly, the parties’ stipulation authorizing Judge Johnson to hear and determine pretrial motions applies to Husband’s request for a DVRO.
Wife protests that a DVRO request is an ancillary proceeding and not a motion because the request can be made by filing a form petition, without also seeking a dissolution or separation. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 335; § 6221, subd. (a) [DVRO may be issued “in a proceeding brought pursuant to this division,” in an action under the Uniform Parentage Act, or in a dissolution proceeding].) The DVRO request has a separate record and resolution of the request need not impact the judgment in the dissolution action. But the fact that a DVRO may be obtained in a separate proceeding does not mean that it must be a separate proceeding. As we have noted, a DVRO may also be obtained in a dissolution proceeding, as it was here. A DVRO may be included in a judgment of dissolution and may impact other provisions of the judgment, such as the division of property and child custody.
Here, the parties agreed the Judge Johnson would “hear and try the above-entitled matter until its final determination.” Husband’s DVRO request arose during the pendency of the dissolution and relates to incidents that occurred while the matter was pending. There has been no “final determination.” We conclude the DVRO request is part of the “above-entitled matter,” was therefore within the scope of the temporary judge’s appointment.
Next, the panel held that Judge Johnson erred in granting a “non-CLETS” restraining order.
Wife contends Judge Johnson abused her discretion by specifying that the restraining order was based on a finding of domestic abuse but was a “non-CLETS” order that would not be reported to the Department of Justice. The “non-CLETS” aspect of the order was an error of law. Judge Johnson found that Wife committed acts of abuse within the meaning of the statute. Section 6380 required the resulting restraining order to be reported to the Department of Justice and entered in CLETS. (§§6221, 6380.) The obligation to register the order in CLETS was mandatory, not discretionary.
Wife contends the remedy for this error is to vacate the order in its entirety. She is incorrect. Judge Johnson found Wife had engaged in abuse within the meaning of section 6320 and properly granted Husband’s DVRO request. (§ 6300; see, e.g., In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p. 1497.) The appropriate remedy is to remand the matter, to permit Judge Johnson to enter an order that complies with the mandatory provisions of section 6380.
The panel also held that the restraining order properly included Husband’s girlfriend as a protected person.
Section 6320 grants the court discretion to “issue an ex parte order enjoining a party from . . . disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (Id., subd. (a).) Section 6340 grants the trial court discretion to issue “any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing.” (Id., subd. (a).)
Jobst is a member of Husband’s household because she lives with him. Judge Johnson found good cause to include Jobst in the protective order based on Wife’s conduct in chasing Jobst on the freeway, falsely accusing Jobst and Husband of disabling her home security system and surveilling Husband and Jobst from the neighbor’s property. Including Jobst in the restraining order was not an abuse of discretion.
Finally, the panel held that Avi’s DVRO filing was sufficient to give Judge Johnson jurisdiction to hear it even though Husband failed to file it with the Superior Court clerk first. It held that notwithstanding Rule of Court 2.400,
Husband filed his DVRO request with Judge Johnson before filing it with the superior court clerk. The document was, however, filed with the superior court clerk before the evidentiary hearing concluded and before Judge Johnson entered the order. Unlike a motion to vacate or a notice of appeal, there is no jurisdictional time period within which a DVRO request must be filed. Under these circumstances, as Husband points out, any error is harmless.
In re Marriage of Brubaker & Strum
In re Marriage of Brubaker & Strum (2021) 73 Cal.App.5th 525: In this case, filed on December 10, 2021, but ordered published on January 3, 2022, the Second District reversed an order of L.A. County JO Michael Powell denying W’s request to renew a restraining order against H. It held that issue preclusion did not prevent the court from considering evidence of H’s domestic violence even though those issues were also considered for spousal support purposes.
The parties married in 2009, had twins in 2015 and Betsey filed for divorce in 2017, along with a request for a DVRO against Andy. She “alleged Strum threatened to strangle and kill her, stalked her, and told her he would make her life ‘a living hell’ if she continued to pursue a divorce,” detailing years of his abusive behavior.
On November 3, 2017 Brubaker and Strum entered into a stipulated temporary protective order. The order required Strum to remain 100 yards from Brubaker (except during school events, extracurricular activities, and when exchanging the children for visitation), prevented Strum from contacting Brubaker except in connection with custody and visitation matters, and established a temporary custody schedule for the children.
On January 25, 2018 Brubaker filed another request for a domestic violence restraining order, alleging Strum violated the stipulated protective order on multiple occasions and committed additional acts of abuse.
The trial court ultimately issued a two-year restraining order against Andy.
The domestic violence restraining order prevented Strum from coming within 100 yards of Brubaker, her home, or her vehicle, and from contacting Brubaker directly or indirectly. The court made an exception for “brief and peaceful contact” required to facilitate Strum’s court-ordered visitation with the children and ordered the parties to communicate using Our Family Wizard (OFW), an online platform designed to facilitate communications for co-parenting. The court also granted Brubaker sole physical and legal custody of the children.
On May 22, 2018 Brubaker asked for an order limiting Strum’s use of OFW. The family law court (Commissioner Doreen Boxer) found Strum had violated the domestic violence restraining order by using OFW to “scold, admonish, [and] reprimand” Brubaker and by “using the children as a pretext to further harass” her. The court modified the restraining order by limiting the scope of permitted OFW communications.
On July 23, 2019 the family law court (Judge Lawrence Riff) entered a final statement of decision in the dissolution action, ruling the court would award Brubaker sole physical and legal custody of the children. The court stated a “principal issue for trial” was whether Strum rebutted the presumption under section 3044 that “‘an award of sole or joint custody to a perpetrator of domestic violence “is detrimental to the best interest of the child.”’” (See § 3044, subd. (a).) The court found Strum had not carried his burden to rebut the presumption because Brubaker was “and still is damaged on account of [Strum’s] abuse” and because Strum’s “inability to control his explosive temper and aggressive behavior, with [Brubaker] as a target, has . . . been in the past detrimental to the children.” The court also found that Strum “continue[d] palpably to radiate anger and agitation . . . during the Court proceedings,” and that, “in a less structured environment,” Strum’s issues with anger management “are likely to be more pronounced.”
The family law court also ruled that, even if Strum had rebutted the presumption under section 3044, the court would not grant Strum physical or legal custody of the children because there was “no prospect” of Strum and Brubaker co-parenting effectively. The court found giving Strum joint custody “would require him and [Brubaker] to interact with a high likelihood . . . of [Brubaker] being further abused.” The court found, however, Strum had “complied with the terms of the permanent restraining order” and had “not committed any further acts of domestic violence since that order was issued.” The court did not address Commissioner Boxer’s finding Strum had violated the terms of the restraining order, but the court did relax the restrictions Commissioner Boxer had imposed on Strum’s use of OFW.
On October 1, 2019, Betsey filed a request to renew the two-year RO. Andy opposed the request and filed two motions in limine to exclude evidence.
One motion sought to exclude the OFW messages exchanged between the parties prior to May 24, 2018. Strum claimed that, prior to that date, counsel for Brubaker “wantonly violated the rules of professional conduct” by communicating directly with Strum through OFW without Strum’s knowledge. Brubaker stipulated to the relief requested in Strum’s first motion in limine.
Strum’s second motion in limine sought to exclude Brubaker from “proffering any evidence regarding any allegations of abuse or violations of the Domestic Violence Restraining Order by [Strum] prior to February 13, 2019,” which was the last date the parties presented evidence in the marriage dissolution trial. Strum argued that, because Judge Riff found Strum had not committed any acts of domestic violence or abuse since Judge Goldberg issued the restraining order in February 22, 2018, the doctrines of issue preclusion and estoppel precluded the trial court in this proceeding (Judge Michael R. Powell) from considering that evidence or any other evidence of domestic violence or abuse occurring before the dissolution trial. Strum also asked the trial court to take judicial notice of the family law court’s final statement of decision because “the matter of violations of the protective order since its issuance . . . through the last day of trial . . . has already been adjudicated.” Strum’s motion in limine did not mention Commissioner Boxer’s earlier finding Strum violated the restraining order.
The trial court granted the second motion in limine. It said that
Strum made “a compelling case [for] issue preclusion . . . in the sense that [the] parties had an opportunity to present [evidence of violations of the restraining order] earlier during the hearing with Judge Riff. If it wasn’t presented at that hearing, it’s almost as if [Brubaker] had a basis for the restraining order, but [she] didn’t include all of the information. And then [she] want[s] to go back in time and say . . . this happened too . . . .” The trial court concluded that Judge Riff made “an explicit finding” Strum had not violated the restraining order and that it was “inappropriate” to relitigate that finding. The court stated that the “question is now, what has occurred after [Judge Riff made his finding] that would warrant the continuation of the restraining order?”
The trial court also stated, “This is a renewal of the restraining order. This isn’t a re-litigation of the past restraining order. . . . I went back and I made sure that I looked at the original restraining order request. And I looked at what Judge Goldberg had said. And I believe that Judge Goldberg had made the statement that he believe[d] . . . the granting of the domestic violence restraining order was to be for two years based on the fact that he felt once [the marriage dissolution] matter [was] adjudicated, that that’s all that would be needed at that point. So if we have a restraining order that’s a duration of two years, and . . . we don’t see any violations within the two-year period, then the court is left with looking at what are the facts that exist . . . after this is all adjudicated . . . . This is in effect saying, ‘What has happened since the restraining order has been issued that warrants it continuing?’ . . . If the events [that led to the issuance of the restraining order] have ceased, if the behavior is such that it does not rise to the level that there is prescribed in [the Act], I don’t think that I have the authority to issue a restraining order.”
The trial court concluded its discussion of the second motion in limine by stating: “The court wants to concentrate on any events that happened after [Judge Riff’s] hearing and during the restraining order period. And I want to focus on that solely.” As a result of the court’s ruling, Brubaker did not present, and the court did not consider, evidence underlying the original restraining order or evidence Judge Riff considered in finding Strum had not violated the restraining order as of February 13, 2019.
Ultimately,
the court denied Brubaker’s request to renew the restraining order. The court stated that, to renew the restraining order, Brubaker had to show she “entertain[ed] a reasonable apprehension of future abuse without showing any further abuse since the issuance of the original order,” but reiterated that Judge Riff’s statement of decision in the dissolution trial “gave a timeline as to conduct that was going to be examined” by the court (with the exception of some OFW messages) “in determining whether or not the restraining order should be granted on a permanent basis.” The court found Brubaker’s testimony “insufficient,” “vague,” “conclusory,” and lacking a “time frame.” The court acknowledged the incident where Strum banged on Brubaker’s car window, but said an OFW message related to that incident showed the parties had “different viewpoints about what happened that day.”
Regarding the OFW messages in general, the court stated: “The most that I could glean . . . was that potentially [Strum] was being patronizing. His choice of words and language in terms of characterizing [Brubaker’s] behavior [was not] ideal,” but it did not create a “reasonable apprehension” under the Act. The court found that, “based on the aggregate of what [Brubaker] presented to the court,” her “concerns are not reasonable.”
On Betsey’s appeal, the Second District panel held that the trial court erred in granting Andy’s motion in limine “and effectively requiring Brubaker to prove, contrary to the plain language of the Act, Strum violated the domestic violence restraining order after February 13, 2019.” After reviewing various DVPA provisions and the law on issue preclusion, it said that
(t)he trial court erred in finding issue preclusion barred Brubaker from presenting evidence of Strum’s alleged abuse from February 2018 to February 2019 because the issue addressed by the trial court on Brubaker’s request to renew the restraining order was not an issue the parties litigated and the family law court necessarily decided in the marriage dissolution trial. (See DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 825; Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 686.) The issue the family law court heard in February 2019 and decided in July 2019 was whether Strum rebutted the presumption under section 3044 that giving him sole or joint custody of the children was detrimental to their best interest. The issue the trial court heard and decided in July 2020 in ruling on Brubaker’s request to renew the restraining order was whether Brubaker had a reasonable fear of future abuse. Those issues were very different. (See Lucido v. Superior Court, supra, 51 Cal.3d at p. 342; Key v. Tyler, supra, 34 Cal.App.5th at p. 534.)
And while evidence of additional acts of domestic violence or a violation of the original restraining order was relevant to whether Brubaker had a reasonable fear of future abuse (see Lister v. Bowen, supra, 215 Cal.App.4th at p. 335), such evidence was not required to renew the restraining order. (See Ashby v. Ashby, supra, 68 Cal.App.5th at pp. 515-516 [“a party’s violation of [a domestic violence restraining order] can support a finding of reasonable apprehension,” but “the reverse is not true”: compliance with a domestic violence restraining order does not “preclude[ ] a finding of reasonable apprehension”]; Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 306-307 [issue preclusion does not apply where a finding from an earlier action is relevant to “but does not resolve the inquiry” in the later action]; Johnson v. GlaxoSmithKline, Inc., supra, 166 Cal.App.4th at p. 1513 [“‘where the previous decision rests on a “different factual and legal foundation” than the issue sought to be adjudicated in the case at bar, [issue preclusion] should be denied’”].) Even if Strum’s conduct between February 2018 and February 2019 did not constitute domestic violence or violate the terms of the restraining order, it could have contributed to a reasonable fear of future abuse. (See Ashby v. Ashby, supra, 68 Cal.App.5th at p. 516 [conduct that does not violate the original restraining order may still contribute to the protected person’s fear of future abuse].) Thus, issue preclusion did not apply, and the trial court erred in granting Strum’s second motion in limine and excluding evidence of Strum’s conduct between February 22, 2018 and February 13, 2019.
The panel also held that the court erred in excluding the evidence Betsey sought to introduce that formed the basis for the original restraining order.
The trial court wrongly believed it could not consider the evidence underlying the original restraining order. By excluding relevant evidence of Brubaker’s fear of future abuse, the court abused its discretion by limiting Brubaker’s ability to meet her burden of proof. (See Perez, supra, 1 Cal.App.5th at p. 396 [“‘“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.”’”]; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1465 [a decision “predicated on an erroneous understanding of the applicable law . . . must be reversed and remanded”].)
Following the trial court’s lead, Strum argues the “‘pattern of situational abuse’” that justified limiting the original restraining order to two years supports an exception to the general rule that a protected party need not present evidence of additional abuse to renew a domestic violence restraining order. But the Act does not include any such exception, and we decline Strum’s invitation to read one into it.
Jennifer Shenenfield v. Mark Shenefield (Karolyn E. Kovtun)
Jennifer Shenenfield v. Mark Shenefield (Karolyn E. Kovtun), Cal.App., February 25, 2022, D078643: In this case, the Fourth District affirmed the orders of two San Diego judges sanctioning H and his attorney for violating Family Code §§3111(d) and 3025.5.
On September 13, 2017, Mark pled guilty to misdemeanor battery on a spouse. The court issued a criminal protective order against Mark. Jennifer was given sole physical custody of their child. Kovtun was Mark’s attorney of record.
Jennifer filed for marital dissolution from Mark on September 26, 2018.
On August 21, 2018, Mark filed an RFO seeking joint legal and physical custody of the couple’s child. In Mark’s attached declaration, after detailing allegedly false allegations Jennifer made against her previous husband, Mark wrote: “Jennifer was ordered to undergo a E[vidence] C[ode] §730 evaluation by Dr. Stephen Sparta who suggested that she would do it again if she felt the ends justified the means.” Then Mark explained the court presiding over Jennifer’s previous marital dissolution matter ordered a psychological evaluation, which was performed by Dr. Steven Sparta3 and published December 11, 2012. Mark quoted directly from that report for nearly a page of his declaration, single-spaced. Mark again discussed content from Dr. Sparta’s evaluation in paragraph 10 of his declaration and referenced some of the details again in paragraph 15. Kovtun was his attorney of record.
…
In its Final Ruling, the court found that Mark provided excerpts of the child custody evaluation from a previous dissolution matter. It noted that Jennifer asked the court to impose sanctions in her February 20, 2019 response. It confirmed that at the May 30, 2019 trial readiness conference it had identified the request for sanctions as an issue for trial. The court stated that Kovtun was personally served Jennifer’s trial brief, which identified the sanctions as an issue to litigate. The court wrote that “counsel was aware Petitioner would be requesting sanctions related to the unwarranted disclosure of the 730 Custody Evaluation in violation of Family Code §3111(d), and this request was reiterated in Petitioner’s Trial Brief filed August 7, 2019.” It found that Mark and Kovtun had actual notice of the request for sanctions, as well as an opportunity to respond to and oppose the request.
The court then found that Kovtun was a seasoned attorney, and as such, she should have been aware of sections 3025.5 and 3111, subdivision (d). It also found Kovtun was reckless in filing documentation that disclosed a confidential custody evaluation. It concluded Kovtun intended for the court to rely on the former custody evaluation from the unrelated case. It also found Kovtun was not a party to the unrelated case under section 3025.5, and thus sanctions were appropriate.
The court imposed $15,000 in sanctions against Kovtun, payable at $300 per month, starting April 1, 2020, with interest accruing at an annual rate of 10 percent.
The court separately concluded Mark’s disclosure of the content from the custody evaluation was unwarranted and without substantial justification, and it imposed monetary sanctions against Mark in the amount of $10,000.
Kovtun moved to vacation the sanctions against her.
A court different from the one that issued sanctions heard Kovtun’s motion. Following a hearing, the reviewing court denied Kovtun’s request and affirmed the sanctioning court’s judgment, incorporating the sanctioning court’s Final Ruling. The reviewing court concluded Kovtun was a party to the proceedings, as defined in California Rules of Court, rule 1.6(15), found Code of Civil Procedure section 128.7 inapplicable, concluded California Rules of Court, rule 5.14 did not apply, and found that Kovtun had received sufficient notice
On Kovtun’s appeal, the Fourth District affirmed.
On appeal, Kovtun argues the court improperly sanctioned her because (1) attorneys cannot be sanctioned under section 3111; (2) the notice she received did not comply with due process standards; (3) the court lacked personal jurisdiction over her; (4) the court failed to enforce the safe harbor provision of Code of Civil Procedure section 128.7; and (5) the court improperly admitted and relied on a transcript of a meeting between Kovtun, Mark, and Jennifer. We find Kovtun’s arguments meritless, and we will affirm.
…
Kovtun’s main argument is that the statute does not apply to her because she is an attorney, not a party to the litigation, and the statute authorizes sanctions only for parties. She argues the plain language excludes attorneys, and the inclusion of attorneys in the statute is not supported by the definitions applicable in family court, which she contends define “party” to exclude an attorney of record.
…
If section 3111, like section 271, applied only to the parties to litigation, a party to the dispute could simply share the information with counsel for the purpose of disclosing it, and the attorney could then properly release confidential information from the previous dissolution matter without consequence. This outcome is inconsistent with the intended purpose of the sanctions because it would discourage honesty during the custody evaluation, making it more difficult for the court to determine the best interests of the child.
The panel also held that the court had given Kovtun sufficient notice of the sanctions request. “She maintains that the only way for Jennifer to meet the constitutional due process requirement was to file and personally serve a form FL-300, an RFO, naming Kovtun as the person against whom sanctions were sought, as required by California Rules of Court, rule 5.14.” Disagreeing, the panel said that Jennifer properly raised the sanctions issue in her response to Mark’s RFO, noting that
when a party to a marital dissolution moves to modify an existing court order, the responding party may file a responsive declaration in which the party may request sanctions in addition to opposing the requested order.
…
Mark’s August 2018 RFO sought joint legal and physical custody of their child. Along with the RFO, Mark filed a declaration in which he quoted from a court-ordered psychological evaluation of Jennifer completed during a previous dissolution proceeding to which Mark was not a party. In direct response to this RFO, Jennifer sought sanctions against Mark and his attorney, Kovtun, because the declaration disclosed the contents of the earlier court-ordered custody evaluation. Thus, Jennifer’s request was responsive to Mark’s and Kovtun’s conduct.
Kovtun focuses on notice requirements detailed in Code of Civil Procedure section 128.5 and the Rules of Court. However, unlike those provisions, the text of Family Code section 3111, subdivision (d) does not require a separate RFO or otherwise mandate a noticed motion.10 Family Code section 3111 does not detail any specific procedural requirements. And Kovtun’s argument that the notice here did not strictly comply with the notice requirements of the Rules of Court is not persuasive because, as we have explained, the Rules of Court are not the basis for the sanctions. Thus, we consider instead whether the notice Kovtun received complied with due process.
…
Kovtun does not claim the documents seeking sanctions were not served on her. Nor does she claim that the court did not address the issue of sanctions in the hearing or at the trial readiness conference. But she nonetheless claims in her declaration to her motion to set aside her sanctions that she “was not given notice.” The procedural facts outlined in the court’s order refute Kovtun’s claim.
Further, although Kovtun stated in her declaration that the court did not provide her an opportunity to be heard on the issue of sanctions before it issued its ruling, she points to no evidence to support this allegation beyond the bald statement in her declaration. Certainly, Kovtun could have been heard in the trial brief she failed to file.
The panel held that CCP §128.7 did not apply.
The premise of Kovtun’s argument is that because section 3111, subdivision (d) does not apply to attorneys, the only way the court could properly sanction her would be via Code of Civil Procedure section 128.7, which applies to attorneys and unrepresented parties.
Kovtun cites no authority for this conclusion, and she offers no explanation for why a safe harbor would be appropriate in the present circumstances.15 Further, as we previously concluded, Family Code section 3111, subdivision (d) applies to attorneys; thus, Code of Civil Procedure section 128.7 is not the only procedural mechanism available to courts to impose sanctions on attorneys, as Kovtun contends.
Jennifer recorded a meeting she had with Mark and Kovtun at Kovtun’s office.
On September 28, 2017, Jennifer attended a meeting at Kovtun’s office, with Mark and Kovtun. Jennifer recorded the meeting. During the course of the meeting, Kovtun told Jennifer she was a liar and a bad and unfit mother who was harmful to their child. When Jennifer said if Kovtun were not there, Mark would probably be beating her, Kovtun responded, “You know what? I would be.” Kovtun called Jennifer “nuts,” said Jennifer was “out of [her] mind,” commented that living with Jennifer was like dealing with a lunatic, and called Jennifer crazy.
Mark berated Jennifer, telling her that he was going to take their child away and get full custody, directing Jennifer to stop crying, and admonishing her that if she loved him, Jennifer would sign a
custody agreement that would give Mark 50 percent custody. Kovtun repeatedly supported Mark’s statements, commenting, “Yeah.”
As a consequence of the September 28, 2017 meeting, Mark pled guilty to violating a court order (Pen. Code, § 166, subd. (c)(1)) in October 2018.
Also in October 2018, Jennifer filed a lawsuit in civil court against Kovtun alleging causes of action arising out of the conduct that occurred at the September 28, 2017 meeting. In connection with that lawsuit, Kovtun filed an anti-SLAPP motion, which the trial court denied.16 That trial court concluded the transcript and recording of the conversation were admissible under the facts of that case.
…
Kovtun argues that the sanctioning court improperly admitted and considered the transcript of the recording of the September 28, 2017 meeting at Kovtun’s office. She maintains that Jennifer violated Penal Code section 632 by recording the conversation because the communication was confidential, and such a recording is not admissible in a judicial proceeding. She further contends that her statements during the meeting are protected by the litigation privilege.
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Kovtun was Mark’s criminal defense attorney and represented him when he pled guilty to misdemeanor battery on a spouse on September 13, 2017. And she was his attorney when the court issued the corresponding protective order. Thus, she was aware of the protective order when she participated in the September 28, 2017 meeting, and she was aware that Jennifer had the right to record communications with Mark under the terms of the restraining and protective orders. The court’s February 27, 2020 Final Ruling noted that the September 28, 2017 meeting occurred after the restraining and protective orders were issued against Mark, recognizing that Kovtun knew Jennifer was authorized to record communications with Mark when Kovtun hosted the meeting at her office.
Kovtun’s knowledge about Jennifer’s right to record communications with Mark casts doubt on her claim that the communication was confidential. Because Kovtun knew Jennifer had a right to record communications that could evidence Mark violating the protective orders, it was not objectively reasonable for Kovtun to believe the conversation she participated in could not be recorded. Absent such an expectation, the communication could not be characterized as confidential, and it therefore does not fall within the restrictions detailed in Penal Code section 632.
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Even had the court abused its discretion by admitting the transcript of the meeting, Kovtun does not identify any resulting prejudice. From the transcript, the court confirmed that Kovtun is a seasoned family law attorney, a finding Kovtun does not dispute. On that basis, the court concluded that Kovtun should have been aware of the Family Code prohibition on disclosing the confidential custody communication and determined that Kovtun acted at least recklessly. The sanctioning court next provided additional details from the transcript of the September 28, 2017 meeting to explain why it concluded Kovtun’s actions were likely intentional. But those conclusions were not necessary to determine Kovtun violated section 3111. (See § 3111, subd. (f) [explaining a disclosure is unwarranted if either reckless or malicious and not in the best interests of the child].)
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Even were we to conclude the litigation privilege made the court’s use of the transcript improper, it would not persuade us that the order denying the motion to vacate the sanctions portion of the judgment was erroneous. The sanctions did not arise out of Kovtun’s conduct during the recorded meeting. The court sanctioned Kovtun because of her participation in the disclosure of confidential information in violation of sections 3111, subdivision (d) and 3025.5. The court considered the contents of the communication to support its conclusion that Kovtun acted intentionally and recklessly, but the court primarily based its conclusion that Kovtun acted recklessly on its evaluation that Kovtun is an experienced family law attorney. As we explained ante, even without that transcript, the court’s conclusion is supported by substantial evidence.
Hebah Abdelqader v. Abdo Abraham
Hebah Abdelqader v. Abdo Abraham, Cal.App., March 10, 2022, D078652: In this partially published case, the Fourth District partially reversed a San Diego County family court’s order following a bifurcated trial denying W’s request for a restraining order against her ex-husband. In the unpublished portion of the case, it affirmed the trial court’s denial of the requested restraining order.
Hebah and Abdo were married on March 3, 2007. They have two children together, A.A. (age 11) and G.A. (age 5). Hebah and Abdo separated on September 16, 2018. On October 26, 2018, Hebah filed a petition for dissolution.
However, before she filed a petition for dissolution, on October 10, 2018, Hebah filed a request for a domestic violence restraining order. In her request, Hebah claimed Abdo verbally abused her in August 2018, while they were riding a train from Venice to Rome. She also alleged Abdo was verbally and physically abusive during an argument at their home on September 16, 2018. Based on these allegations, the court issued a temporary restraining order against Abdo and set a hearing on October 29, 2018, to consider further action on the request.
There is no indication in the record whether a hearing took place on October 29, but the court issued another temporary restraining order on March 27, 2019 and set a hearing regarding the restraining order for September 19, 2019. On May 22, 2019, Hebah filed an ex parte application to terminate the temporary restraining order and take the related hearing off calendar. In support of her application, Hebah declared that she was “no longer in need of protection” and made the request “of [her] own free will” and had “not been coerced or threatened in any way by the restrained person or anyone else to make this request.” Abdo also signed the request, attesting that he had “not coerced or threatened the protected party in any way to make this request.”
On May 23, 2019, the court granted Hebah’s application, terminating the restraining order, vacating the September 19, 2019 hearing date, and dismissing the action.
On March 9, 2020, Hebah filed another request for a restraining order against Abdo. The facts of the underlying abuse giving rise to Hebah’s request is not in the record before us; however, the superior court issued a temporary restraining order and set a hearing on March 25, 2020. The hearing subsequently was continued to June 12, 2020.
At the June 12 hearing, the court ordered the issues of Hebah’s request for a restraining order as well as custody and visitation of the children to be bifurcated and set for trial on July 8 and 9, 2020.
The court held the trial on July 8 and 9, 2020, at which both Hebah and Abdo testified.
Ultimately, the court “entered a judgment, which included a four-page written explanation of its reasoning, including findings of fact. The court reiterated that it found the presumption in section 3044 to apply but did not discuss that presumption any further.”
On Hebah’s appeal, the Fourth District affirmed the denial of the restraining order request but reversed for the trial court’s failure to make the required findings under Family Code §3044 and remanded for it to do so.
In the unpublished portion of this opinion, we conclude that the court did not abuse its discretion in denying Hebah’s request for a restraining order. However, in the published portion of the opinion, we agree that the court erred in failing to state the reasons, on the record or in writing, it found the presumption under section 3044 had been rebutted. As such, we reverse the judgment as to that issue only and remand the matter for further consideration consistent with this opinion.
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The trial court explicitly found the presumption under section 3044 applied. Hebah claims the court erred in failing to articulate, either on the record or in writing, the reasons it found the section 3044 presumption rebutted. We agree.
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In the instant action, the court awarding joint physical custody to Hebah and Abdo suggests it found the presumption rebutted. Yet, it is undisputed that the court neither made the mandatory findings under section 3044, subdivision (f)(1) nor explained its findings in writing or on the record as required by subdivision (f)(2). As such, we must reverse and remand this matter back to the superior court so it may properly consider section 3044, and if it determines the presumption has been rebutted, then it can provide a statement of reasons on the record or in writing.
Dawn Gray is a Certified Specialist in Family Law. Since 1994, her practice has been dedicated to research and writing projects for family law and civil attorneys. She works with many family law attorneys throughout the state on their cases, doing research, drafting pleadings and appellate briefs. She is a past president of ACFLS and is currently on its Amicus committee. She is also a past member of FLEXCOM, serving as the Executive Editor of the Family Law News. She gives frequent presentations and continuing education classes on family law issues. Dawn is also the principal author of the 11-volume series “Complex Issues in California Family Law.” She is a member of the editorial board of the California Family Law Monthly and a frequent contributor to family law publications throughout the state.