Opinion
B321856
05-03-2024
BETSEY BRUBAKER, Petitioner and Respondent, v. ANDY STRUM, Respondent and Appellant.
Andy Strum, in pro. per., for Respondent and Appellant. Fernandez & Karney and Mark H. Karney for Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 17STFL05662 Christine Byrd.
Andy Strum, in pro. per., for Respondent and Appellant.
Fernandez & Karney and Mark H. Karney for Petitioner and Respondent.
SEGAL, ACTING P. J.
INTRODUCTION
In this, the third, appeal arising from the dissolution of the marriage of Andy Strum and Betsy Brubaker, Strum appeals from an order granting Brubaker her request to renew a domestic violence restraining order against Strum under the Domestic Violence Prevention Act (the Act) (Fam. Code, § 6200 et seq.).Strum argues the trial court misconstrued the Act and abused its discretion in granting Brubaker's request. Because the court did neither, we affirm.
Undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Brubaker Obtains a Domestic Violence Restraining Order Against Strum, and the Trial Court Denies Her First Request To Renew It
We first considered a request from Brubaker to renew a domestic violence restraining order against Strum in In re Marriage of Brubaker & Strum (2021) 73 Cal.App.5th 525 (Brubaker I). That case summarized the facts leading up to and following the family court's order granting Brubaker a two-year restraining order in 2018. Because Brubaker's request to renew that restraining order (which is again the subject of this appeal) relied in part on the facts supporting the initial restraining order, we briefly summarize those facts.
Brubaker and Strum married in 2009 and had twins in 2015. (Brubaker I, supra, 73 Cal.App.5th at pp. 529, 531.) In February 2018 the family court (Judge Hank M. Goldberg) issued a two-year domestic violence restraining order against Strum based on two acts of abuse and repeated violations of a temporary restraining order and a non-CLETS order. The court found that in April 2017 Strum drove erratically with Brubaker and the children in the car while threatening to hit a group of cyclists he believed was slowing traffic and that in October 2017 Strum threatened to strangle and kill Brubaker during an altercation at their home. The court ruled that Strum "placed Brubaker 'in reasonable apprehension of imminent or serious bodily injury' by threatening violence against her and that Strum had violated the stipulated protective order." (Brubaker I, at p. 530.) The court also found "Strum had 'a very significant anger management issue,'" but the court "described the abuse as 'situational' and stated a two-year order would give the parties sufficient time to 'finish the divorce case' with the restraining order in place." (Ibid.)
"'CLETS' refers to the California Law Enforcement Telecommunications System. Domestic violence restraining orders . . . are reported to law enforcement through this system." (In re Marriage of Reichental (2021) 73 Cal.App.5th 396, 399 & fn. 1; see § 6380, subd. (a).)
The domestic violence restraining order prevented Strum from coming within 100 yards of Brubaker, her home, or her vehicle and from contacting her directly or indirectly. (Brubaker I, supra, 73 Cal.App.5th at pp. 530-531.) "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 coparenting. The court also granted Brubaker sole physical and legal custody of the children." (Id. at p. 531.)
In July 2019 the family court entered a final statement of decision dissolving Brubaker and Strum's marriage and granting Brubaker sole physical and legal custody of the children. (Brubaker I, supra, 73 Cal.App.5th at p. 531.) Soon after, Brubaker filed a request to renew the two-year domestic violence restraining order. Brubaker alleged she had a reasonable apprehension of future abuse based on Strum's past abuse and on violations of the existing restraining order. (Id. at p. 532.) After improperly excluding evidence of abuse underlying the initial restraining order, the trial court (Judge Michael R. Powell) found Brubaker did not establish she had a reasonable apprehension of future abuse, and on July 10, 2020 the court denied Brubaker's request. (Id. at pp. 533, 535, 539.) Brubaker appealed, and we reversed and directed the trial court to hold a new hearing on Brubaker's request to renew the restraining order and to allow Brubaker to introduce all relevant evidence in support of her request. (Id. at p. 542.) The remittitur issued on February 16, 2022, and the trial court reinstated the domestic violence restraining order on February 28, 2022.
In Brubaker v. Strum (2023) 87 Cal.App.5th 497 we reversed an order by the family court (Judge Powell) denying a request by Brubaker for an order to determine child and spousal support arrearages.
B. The Trial Court Grants Brubaker's Second Request To Renew the Domestic Violence Restraining Order, and Strum Appeals
The trial court held a four-day hearing in May 2022 to reconsider Brubaker's request to renew the domestic violence restraining order. Brubaker recounted the 2017 incident when Strum threatened to kill her and said Strum "followed me around the house screaming at me, threatening me, telling me he wanted to strangle me, he felt like killing me, that I've hurt him so bad that he wants to hurt me." Regarding the cyclist incident earlier that year, Brubaker said Strum drove up "fast behind them" and "wanted to teach them a lesson" to stay out of "his pathway."
Brubaker also testified that in 2019 or 2020 Strum sent her a text message stating she was "in violation of court orders" and giving her until 9:50 a.m. that morning to hand over the children to him "before escalating." The message continued: "I need a response now. I have called the [Los Angeles Police Department] who will retrieve the children if need be." Brubaker testified police officers went to her home within 45 minutes after she received the text message, but they did not arrest or admonish her. Another text message Strum sent Brubaker in 2019 or 2020 stated: "'You need to read court orders. Along with this and your other duties to inform me are clearly noted. I will go to the school but you need to learn what orders are in place going forward.'"
The record on appeal does not indicate when Strum sent this text message. Strum testified he sent the text message in fall of 2020 when there was no domestic violence restraining order in effect.
Brubaker testified that in December 2021 she moved from Los Angeles to Arizona. She stated in her declaration in support of her request to renew the restraining order that in January 2022 (when no restraining order was in place) Strum refused to give her the address where he planned to take the children for a 10-day visit. Because Brubaker had sole custody of the children, she believed she was entitled under the custody order to know where they would be staying. Brubaker claimed Strum intentionally withheld the address "to control" her and "the situation." At the hearing, Brubaker testified she asked Strum through OFW and his attorneys several times for the address where the children would be staying and received no response. On the day Strum planned to pick up the children from school to begin the visit, Brubaker went to the school before dismissal to ask the school's police officer to get the address from Strum. Brubaker and Strum disagreed about the level of the police officer's involvement, but Brubaker left the school without the address. She testified that when she left Strum was "sprawled on a bench smirking" in a "smug and challenging way." She asked him if she could have the address, and Strum said "'talk to your lawyers.'" Brubaker interpreted Strum's "smirk" to mean that "he had set [her] up and he felt a win or he displayed a win." "He . . . has always told me it feels good to win," she said. Later the same evening Strum provided Brubaker the address through OFW, which was when she learned he had leased a house in Arizona two or three miles from her house.
Strum testified that, since the family court first imposed the domestic violence restraining order, he had seen a psychiatrist, taken medication, attended "probably 60 or 70 court anger management classes," "had private practice with a therapist," and "read every book you can imagine about coparenting with high conflict divorces." Strum described a variety of "life skills" he learned through anger management classes and counseling, including how to "recognize anger and diffuse it," "properly rephrase statements [to] not engage in angry tirades," and "find commonality with other people."
Regarding the impact the domestic violence restraining order had on his life and the potential burdens its renewal would impose, Strum testified he lost his job in May 2020 when the initial restraining order was still in effect. He received four "verbal offers" of employment from other companies "subject to passing a background check," but Strum failed those background checks while the restraining order was in place. After the trial court denied Brubaker's request to renew the restraining order in July 2020, however, Strum passed two background checks. At the time of the hearing Strum was global sales director for a technology company. He testified that after the restraining order was reinstated in 2022 he lost his "trusted traveler" status with the federal Transportation Security Administration, which slowed his travel through airports, and that renewing the restraining order would inhibit his ability to travel internationally, as required by his job. Strum also said he had lost business opportunities and responsibilities in his current job because the restraining order made it more difficult for him to visit international clients.
The trial court found Brubaker established by a preponderance of the evidence a reasonable person in the same circumstances would have a reasonable apprehension abuse would occur unless the court renewed the restraining order. The court found Brubaker's fear reasonable "because of the nature of the conduct found to have occurred at the initial hearing, as well as subsequent time periods." Conduct from the initial hearing that supported the court's finding included the incidents where Strum threatened to strangle and kill Brubaker and the episode where he drove erratically and "placed Ms. Brubaker in fear, all for the purpose of Mr. Strum teaching a lesson to some cyclist[s]." The court also found Strum "engaged in conduct that constitute[d] abuse" within the meaning of the Act when the initial restraining order expired following Brubaker's first (unsuccessful) request to renew it. The court found the text messages Strum sent Brubaker in 2019 and 2020 used the same "threatening tone" as earlier messages and were similar to the cyclist incident in seeking to "teach[ ] somebody a lesson." The trial court also found Brubaker's fear of future abuse reasonable based on the January 2022 incident when Strum refused to tell Brubaker where he would be taking the children for 10 days. The court stated that at the time there was no restraining order precluding Strum from texting Brubaker to tell her that he had rented a house near her in Arizona. Instead, the court found Strum "provoked a confrontation" by withholding the information and "smirked at [Brubaker's] discomfort." The court rejected Strum's argument "his anger management issues are a thing of the past" because the "unique timeline" of the case provided "a laboratory test of how [Strum] acts where the restraining order is in effect and when the restraining order is lifted."
The trial court observed any text messages in 2019 would have violated the domestic violence restraining order, which prohibited contact by text message.
Because the trial court found Brubaker had a reasonable fear of future physical abuse, the court ruled that under Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie) the burdens on Strum from renewing the domestic violence restraining order were not relevant to Brubaker's petition. Alternatively, the court found the burden on Strum did "not outweigh the seriousness of the abuse." In particular, the court found the impact on Strum's ability to travel "pales in comparison" to Brubaker's prospect of having to face abusive and threatening verbal assaults "without any end in sight."
The trial court renewed the domestic violence restraining order "on the same terms and conditions as initially ordered." The court, based on the totality of the circumstances, exercised its discretion to renew the restraining order permanently, subject to termination or modification by further order of the court. Strum timely appealed.
DISCUSSION
Strum does not challenge the trial court's factual findings. Instead, he contends the court misconstrued and misapplied the Act to the facts. He also contends the court abused its discretion by failing to consider or properly weigh certain evidence and by precluding him from presenting evidence and cross-examining witnesses.
A. Applicable Law and Standard of Review
At the time the trial court renewed the domestic violence restraining order against Strum, former section 6345, subdivision (a), provided such an order "may have a duration of not more than five years" and may be renewed "either for five years or permanently, without a showing of further abuse since the issuance of the original order ...." "The legal standard for renewal of a [domestic violence restraining order] is whether the protected party entertains a reasonable apprehension of future abuse. [Citation.] '[T]his does not mean the court must find it is more likely than not that abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension genuine and reasonable.' [Citation.] An imminent and present danger of abuse is not required; there must only be a reasonable apprehension that 'abuse will occur at some time in the future if the protective order is allowed to expire.'" (Michael M. v. Robin J. (2023) 92 Cal.App.5th 170, 179; see Ritchie, supra, 115 Cal.App.4th at p. 1290.)
Section 6345, subdivision (a), now provides a domestic violence restraining order "may be renewed, upon the request of a party, either for five or more years, or permanently, at the discretion of the court ...."
"In evaluating whether the requesting party has a reasonable apprehension of future abuse, the trial court ordinarily should consider the evidence and findings on which the initial [domestic violence restraining order] was based." (Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 180; see Ritchie, supra, 115 Cal.App.4th at p. 1290.) Indeed, "[i]n challenging a renewal order, the restrained party is not permitted 'to challenge the truth of the evidence and findings underlying the initial order[.]'" (Lister v. Bowen (2013) 215 Cal.App.4th 319, 333; see Ritchie, at p. 1290.) The underlying findings and facts supporting the initial order "often will be enough in themselves" to satisfy the reasonable-apprehension test. (Michael M., at p. 180; see Ritchie, at p. 1291.) "'Also potentially relevant are any significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?' [Citation.] 'Also relevant are the seriousness and degree of risk, such as whether it involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities.'" (Michael M., at p. 180; see Lister, at p. 333.)
We review the trial court's order granting a request to renew a restraining order under the Act for abuse of discretion. (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 115; Rybolt v. Riley (2018) 20 Cal.App.5th 864, 874.) When two or more inferences can reasonably be deduced from the facts, the reviewing court may not substitute its decision for that of the trial court. (Rybolt, at pp. 874-875; Lister v. Bowen, supra, 215 Cal.App.4th at p. 333.) "But the question whether the trial court applied the correct legal standard in exercising its discretion is a question of law requiring de novo review." (Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 179; see Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 397.) If the court's decision is influenced by an erroneous understanding of the law, the court has not properly exercised its discretion. (Perez, at p. 396; Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.) "The failure to weigh relevant evidence can be deemed an abuse of discretion." (Ashby v. Ashby (2021) 68 Cal.App.5th 491, 514.)
B. The Trial Court Applied the Correct Legal Standard
Strum argues the trial court erred in renewing the domestic violence restraining order permanently because the court failed to consider a certain "interpretive nuance" in the Act. Strum contends that, in cases that do not involve "physical violence or 'coercive control'" and where circumstances require the parties to have "continuous contact, such as in circumstances involving the co-parenting of young children," courts should impose a permanent restraining order only in "the most egregious and recalcitrant contexts."
Strum's argument has no support in the text of the Act or in well-settled case law applying the Act's standards for renewing a domestic violence restraining order. As stated, the version of section 6345, subdivision (a), applicable to Brubaker's request provided only that a domestic violence restraining order "may be renewed . . . either for five years or permanently, without a showing of further abuse since the issuance of the original order." And cases beginning with Ritchie have established a petitioner need only show a reasonable apprehension of future abuse to justify renewal. (Ritchie, supra, 115 Cal.App.4th at p. 1290; see Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 179; Rybolt v. Riley, supra, 20 Cal.App.5th at p. 874; Cueto v. Dozier (2015) 241 Cal.App.4th 550, 560; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1463; Lister v. Bowen, supra, 215 Cal.App.4th at p. 333.)
The court in Ritchie also suggested that, when determining the duration of a restraining order, including a permanent restraining order, the trial court may consider "'the seriousness of the facts and the probability of repeat violence to the victim and his or her family.'" (Ritchie, supra, 115 Cal.App.4th at p. 1287 & fn. 15, italics omitted.) But nothing in Ritchie or more recent cases requires petitioners seeking a permanent restraining order to show "egregious" conduct or "recalcitrant" abusers. Indeed, the court in Ritchie directed the trial court in that case on remand to determine "whether [the petitioner's] expressed fear of significant future abuse is reasonable and thus sufficient to warrant a permanent (or lengthy) extension of the original protective order." (Id. at p. 1293.) The court in Ritchie did not preclude the trial court from imposing a permanent restraining order, even though the conduct was "largely nonviolent" and the respondent, unlike Strum, had not made "significant threats" of violence. (See id. at p. 1292.) And the predicate for Strum's argument, that his conduct did not involve "'coercive control'" (a term Strum does not define), is questionable, given the trial court's finding Strum put Brubaker "in the position of . . . begging him for his address" during the January 2022 incident where he refused to disclose where he would be taking the children.
C. The Trial Court Did Not Abuse Its Discretion in Renewing the Domestic Violence Restraining Order
1. The Trial Court Did Not Abuse Its Discretion in Finding Brubaker's Fear of Future Abuse Was Reasonable
Strum argues the findings supporting the family court's initial domestic violence restraining order were not sufficient to show Brubaker had a reasonable apprehension of future abuse. The trial court, however, based its order granting Brubaker's request to renew the restraining order on evidence that supported the initial restraining order, as well as on evidence of incidents that occurred after the initial order.
Strum also cites Ritchie for the proposition that, in order to find the restrained party "'posed a continuing risk'" sufficient to impose an indefinite or permanent restraining order, the trial court must find "a chronic pattern of 'prior violent behavior' and a 'predisposition to violence.'" The court in Ritchie, however, stated only that "[t]he evidence and findings supporting the original protective order" may "conclusively establish[ ]" a reasonable fear of future abuse where the restrained party engaged in "prior violent behavior" and showed a "predisposition to violence." (Ritchie, supra, 115 Cal.App.4th at p. 1292.) The court did not state such behavior or such a predisposition was required. In addition, as stated the trial court did not rely exclusively on the evidence and findings supporting the original protective order.
Strum also argues Brubaker's fear of future abuse was not reasonable because Brubaker is overly sensitive. He asserts that Brubaker's "overwhelming sense of fear" from "every possible interaction" with him "is not reasonable or normative" and that Brubaker's anxiety "has bled into expressions of near paranoia." But the trial court found Strum's "verbal assaults" were "abusive and threatening in the extreme" and included "threats to commit the ultimate in physical abuse" by killing someone. The court stated "the prospect of having to face [Strum's] abusive conduct without any end in sight would cause any reasonable person utter despair." The court also found credible Brubaker's "discomfort" in response to Strum's smirking outside the children's school in 2022. As stated, Strum does not challenge the trial court's factual findings, and (even if he had) we resolve all factual conflicts and questions of credibility in favor of Brubaker. (Rybolt v. Riley, supra, 20 Cal.App.5th at p. 876.) The trial court did not abuse its discretion in concluding Brubaker had a reasonable apprehension of future abuse. (See Lister v. Bowen, supra, 215 Cal.App.4th at p. 335 [trial "court was within its discretion to conclude that the evidence together indicated it was more probable than not there was a sufficient risk of future abuse to find that [the protected party's] apprehension was genuine and reasonable"].)
2. The Trial Court Did Not Abuse Its Discretion in Ruling the Burdens on Strum Did Not Outweigh the Seriousness of the Potential Abuse
Strum argues the trial court failed to subject Brubaker's request to renew the domestic violence restraining order to a "risks v. burdens" balancing test under Ritchie, supra, 115 Cal.App.4th 1275. The court in Ritchie stated that "the 'burdens' the protective order imposes on the restrained party . . . may or may not be a relevant factor in the trial court's consideration of a contested request for renewal of a protective order.... [W]here the protected party has a 'reasonable apprehension' of future physical abuse if the current protective order expires, that order should be renewed despite any burdens this inflicts on the restrained party.... Where the worst 'danger' the protected party must fear is a few unwanted calls or letters or e-mail messages, the court may have to weigh the seriousness as well as the degree of the risk against the significance of the burdens the restrained party will experience if subjected to a continuing protective order." (Ritchie, at pp. 1291-1292.) Strum argues that, because there was no "history of physical violence" between him and Brubaker, the trial court erred in failing to consider the burdens caused by renewing the domestic violence restraining order against him.
Strum misstates the standard in Ritchie. The court in that case held the burdens imposed on a restrained party are not relevant to whether the court should renew a restraining order where the protected party has a "'reasonable apprehension' of future physical abuse" (Ritchie, supra, 115 Cal.App.4th at p. 1292, italics omitted), not where physical abuse had actually occurred. (See id. at p. 1291 ["those burdens would never justify denial of a renewed protective order where the 'reasonable apprehension' is of future acts of physical violence," italics omitted].) The trial court found Brubaker had a reasonable apprehension of future physical violence, and Strum does not challenge that finding.
Strum also misstates the record. The trial court considered the burdens a renewed restraining order would have on Strum and concluded they did not outweigh the seriousness of the abuse that could occur if the court did not renew the restraining order. The court stated that Strum's conduct went "far beyond" the "'few unwanted calls or letters or e-mail messages'" at issue in Ritchie and that the burdens to Strum's ability to travel paled in comparison. Strum contends his declaration and testimony showed the restraining order "would have a serious impact on any future employment prospects," but at the time of the hearing Strum was employed, and he has not shown the trial court abused its discretion in determining that a permanent restraining order struck the proper balance between the interests of the parties. (See Lister v. Bowen, supra, 215 Cal.App.4th at p. 336 [trial court did not abuse its discretion in weighing risks and burdens where the restrained party argued the court gave insufficient weight to impediments to his work caused by the restraining order].) Strum says he lost his job and filed for bankruptcy after the trial court renewed the restraining order. Although we may not consider developments that occurred after the hearing, Strum may raise these circumstances in a proper motion under section 6345 to modify or terminate the restraining order. (See In re Zeth S. (2003) 31 Cal.4th 396, 405 ["'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration'"]; Jan F. v. Natalie F. (2023) 96 Cal.App.5th 583, 587, fn. 3 [declining to consider the content of a declaration filed by a restrained party after the family court ruled on a petition for a domestic violence restraining order].)
3. The Trial Court Did Not Abuse Its Discretion in Excluding Strum's Evidence or Preventing Him from Cross-examining Witnesses
Strum argues the trial court violated his due process rights by constraining "his ability to present meaningful and appropriate evidence" and to "confront and cross-examine adverse witnesses." In particular, Strum argues the court barred him from "challenging Brubaker's claims regarding pre-2018 events and denied him the right to present new evidence which bore direct relevance to the truth and credibility of Brubaker's position." He contends, contrary to Ritchie and cases applying Ritchie, issue preclusion should not have prevented him from presenting his account of events underlying and supporting the initial domestic violence restraining order.
a. Strum May Not Challenge Factual Findings Supporting the Initial Restraining Order
As discussed, Ritchie and later cases hold a restrained party opposing a request to renew a domestic violence restraining order may not challenge the truth of the evidence and findings underlying the initial order. (See Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 180; Ashby v. Ashby, supra, 68 Cal.App.5th at pp. 510-511, 514-515; Lister v. Bowen, supra, 215 Cal.App.4th at p. 333; Ritchie, supra, 115 Cal.App.4th at p. 1290; see also In re Marriage of Martindale & Ochoa (2018) 30 Cal.App.5th 54, 60, fn. 3 [stating this holding in Ritchie was dicta].) As the court in Ritchie explained, "[t]his would contradict principles of collateral estoppel and undercut the policies supporting those principles." (Ritchie, at p. 1290.) The court in Ritchie further stated: "But this does not mean the trial court should be prohibited from looking behind the order itself when evaluating whether that order, often three years old, should be extended another three years or even, as here, permanently." (Ibid.) For example, a court may consider the facts supporting the initial order in determining whether a petitioner seeking to renew the restraining order has a reasonable apprehension of future abuse based on those facts. (See Ritchie, at pp. 1290-1291 [describing the types of facts underlying initial protective orders and whether they conclusively establish or support renewal]; see also Ashby, at pp. 517-518 [considering facts underlying the initial protective order in determining whether the petitioner seeking to renew the protective order had a reasonable apprehension of future abuse].)
The court in In re Marriage of Martindale & Ochoa, supra, 30 Cal.App.5th 54 agreed with Ritchie that a previously restrained party "is collaterally estopped from challenging the sufficiency of the evidence to support issuance of the initial restraining order," but did not interpret Ritchie to mean that "a court hearing a renewal request must accept the truth of every piece of evidence presented in support of the original order." (Id. at p. 60.)
Strum tries to avoid the rule in Ritchie by asserting issue preclusion does not apply because the hearing on Brubaker's request to renew the domestic violence restraining order considered "whether Brubaker experiences a 'reasonable apprehension' of future abuse," while the hearing on the initial petition for a domestic violence restraining order considered "whether a [restraining order] as a prevention/protection modality constitutes the most appropriate judicial mechanism for achieving the resolution imperative mandated under the [Act's] statutory scheme." (See Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511 [issue preclusion precludes relitigation of issues argued and decided in prior proceedings]; Howard Jarvis Taxpayers Assn. v. Weber (2021) 67 Cal.App.5th 488, 499 [for issue preclusion to apply, "the issue a party seeks to have precluded must be identical to the issue decided in a prior proceeding, have been actually litigated, and necessarily decided in the prior proceeding"].) The court hearing Brubaker's initial request for a domestic violence restraining order, however, considered whether Brubaker satisfied her burden to show "proof of a past act or acts of abuse" (§ 6300, subd. (a); see In re Marriage of D.S. & A.S. (2023) 87 Cal.App.5th 926, 933-934), and those acts were relevant to the court's consideration of Brubaker's petition to renew the restraining order. (See Ashby v. Ashby, supra, 68 Cal.App.5th at pp. 517-518; Ritchie, supra, 115 Cal.App.4th at p. 1291 .) Thus, in opposing Brubaker's request to renew the restraining order, Strum cannot challenge the family court's initial findings that Brubaker suffered two past acts of abuse; namely, that Strum threatened Brubaker with physical violence during the altercation at their home and that he created a reasonable apprehension of bodily harm when he drove erratically to "teach a lesson" to a group of cyclists. A contrary holding would "undermine the integrity of the judicial system" by permitting inconsistent judgments, creating repetitive litigation, and allowing the harassment of parties through repeated litigation. (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 879; see Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 686-687.)
Strum also suggests the trial court impermissibly allowed Brubaker to introduce "entirely new material not previously presented." The court in In re Marriage of Martindale & Ochoa, supra, 30 Cal.App.5th 54 stated "courts ordinarily should not entertain new evidence regarding the underlying incidents, because the issue in the renewal proceedings is '"reasonable apprehension of future abuse."'" (Id. at p. 60.) But even if the evidence Strum cites concerned factual issues not conclusively established by issue preclusion, in all but one of the instances Strum identifies, he did not object to the alleged new evidence, thus forfeiting the argument on appeal. (See In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 227 [restrained party forfeited the argument the protected party's testimony was not admissible by failing to object to the testimony in the trial court]; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726 ["[t]o obtain reversal based on the erroneous admission of evidence, the record must show a timely objection making clear that specific ground"].) And in that one instance, counsel for Strum objected to a line of questioning concerning certain statements Strum allegedly made to Brubaker when she was pregnant and following the birth of the twins. The trial court, however, did not cite that testimony in finding Brubaker satisfied her burden to show she had a reasonable apprehension of future abuse. Nor has Strum shown the testimony prejudiced him. (See Hatley v. Southard (2023) 94 Cal.App.5th 579, 592 [evidentiary error in a hearing on a petition for a domestic violence restraining order is subject to harmless error analysis]; Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 1208, 1215 ["[t]o establish that he or she was prejudiced, an appellant must demonstrate that there was a reasonable probability that in the absence of . . . error, a result more favorable to the appealing party would have been reached" (internal quotation marks omitted)].)
b. The Trial Court Did Not Prevent Strum from Presenting Evidence or Crossexamining Brubaker
Even if issue preclusion did not apply to the trial court's findings of fact supporting the initial domestic violence restraining order, Strum has not shown the trial court prevented him from introducing evidence or cross-examining Brubaker. Strum provides three record citations to support his argument the trial court did this. First, during Brubaker's case-in-chief, counsel for Brubaker asked Brubaker about an incident that allegedly occurred in a Seattle hotel while the family was on vacation in 2017. Counsel for Strum objected following Brubaker's response to a question, stated that Brubaker's response contradicted a finding from the initial hearing, and asked if he could read from the transcript from that hearing. The trial court said, "You may do it in your case-in-chief." Counsel for Strum did not introduce that transcript in Strum's case-in-chief or cross-examine Brubaker on that line of questioning. No error here.
Second, Strum cites his examination by counsel for Brubaker regarding Strum's conduct during the cyclist incident. Counsel for Brubaker asked Strum why he behaved the way he did that day, and the trial court said, "I'm not sure that you can . . . examine this witness on Judge Goldberg's findings." After appearing to agree that counsel for Brubaker could ask Strum about the reasons for his conduct that day, the court stated, "Why you would want to go back and question him about Judge Goldberg's findings is beyond me." After a brief discussion, counsel for Brubaker said, "I'll move on, your Honor." This exchange did not result in any action precluding Strum from introducing evidence or cross-examining a witness.
Finally, Strum cites the cross-examination by his attorney during Brubaker's case-in-chief where his attorney asked Strum about his plans on the day he chased and threatened to kill Brubaker at their home. Strum said that a taxi was waiting to pick him up to go to the airport for a business trip and that he "went after" Brubaker to let her know he had to leave. Counsel for Brubaker objected to the line of questioning under Evidence Code section 352 and Ritchie's holding the restrained party cannot challenge the truth of the evidence and findings supporting the initial restraining order. The trial court stated, "[M]y concern with it is, I don't believe that was a subject of testimony under [Evidence Code section] 776," which had allowed Brubaker to call Strum as an adverse witness in her case-in-chief. (See Evid. Code, § 776, subd. (a).) Counsel for Strum responded, "You're right. They didn't ask Mr. Strum about that." Strum does not argue the trial court abused its discretion under Evidence Code section 773 in limiting the cross-examination to the scope of direct examination (see Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 387 ["the scope of cross-examination rests largely within the sound discretion of the trial judge"]), and nothing in this exchange precluded Strum from offering the same evidence in his case-in-chief or from crossexamining any witness.
c. The Trial Court Did Not Abuse Its
Discretion in Failing To Consider Evidence of Changed Circumstances Strum contends the trial court failed to consider evidence of changed circumstances since the initial domestic violence restraining order was issued. (See Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 180; Cueto v. Dozier, supra, 241 Cal.App.4th at p. 560; Ritchie, supra, 115 Cal.App.4th at p. 1290.) Strum's evidence of changed circumstances included his declaration and testimony he had completed anger management classes and related therapy. The trial court considered Strum's argument "his anger management issues [were] a thing of the past," but rejected it because he engaged in abusive behavior when the restraining order expired. (See Rybolt v. Riley, supra, 20 Cal.App.5th at p. 876 ["the record belies [the restrained party's] contention that the court failed to consider" evidence of changed circumstances]; Cueto v. Dozier, supra, 241 Cal.App.4th at p. 561 ["[a]bsent any evidence to the contrary, we presume that the trial court applied the correct legal standard"].)
Even if the trial court had failed to consider other evidence of changed circumstances, Strum has not shown (or even attempted to show) the trial court would have rendered a more favorable decision for Strum had the court considered it. (See Hatley v. Southard, supra, 94 Cal.App.5th at p. 592; Priscila N. v. Leonardo G., supra, 17 Cal.App.5th at p. 1215.) Strum needed to show he and Brubaker had "moved on with their lives" to the extent that the prospects of future abuse had diminished to the point that renewing the restraining order was not necessary. (See Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 180; Cueto v. Dozier, supra, 241 Cal.App.4th at p. 560; Lister v. Bowen, supra, 215 Cal.App.4th at p. 333.) In addition to the evidence concerning Strum's anger management classes and therapy, Strum argued the parties' separate residences, the finality of their divorce, and the infrequency of custody exchanges supported a finding that changed circumstances mitigated the likelihood of future abuse. Although Strum and Brubaker are no longer married or navigating their divorce, their lives are still interconnected. Strum leased a house in Arizona just a few miles from Brubaker's house, "co-parents" the children with Brubaker, goes to school events where Brubaker is present, and communicates frequently with her through OFW messages. Strum admits the circumstances still require him to have "continuous contact" with Brubaker. The evidence did not demonstrate circumstances had changed sufficiently to "reduce the probability" (Ritchie, supra, 115 Cal.App.4th at p. 1293) of future abuse. (See Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1506 [even though the restrained party moved out of state, he still had "continuing contact" with the area where the protected party lived]; cf. Ritchie, at p. 1293 [evidence the parties were both married to other people and lived 300 miles apart suggested "the circumstances had changed rather dramatically"].)
Strum testified at trial he lived in the Los Angeles area but leased a house in Arizona. In his brief on appeal he asserts he lives "full-time" in Arizona, which "removes the trial court's exercise of jurisdiction over the issue of the [restraining order's] renewal." Because Strum testified he lived in California at the time of the hearing and Strum did not argue in the trial court that the court lacked jurisdiction over him, we do not consider this argument for the first time on appeal. (See Zachary H. v. Teri A. (2023) 96 Cal.App.5th 1136, 1143-1144 [constitutional challenge that requires factual findings in the trial court may not be raised for the first time on appeal]; Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1061 [appellate courts generally will not consider matters presented for the first time on appeal].)
Moreover, the trial court found Strum "provoked a confrontation" with Brubaker in 2022 after the restraining order had lapsed, further evidence Strum had not "moved on." (See Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 184 [hostile text to the protected party from the restrained party showed the restrained party had not "moved on with his life" and "was still consumed with anger"]; Ashby v. Ashby, supra, 68 Cal.App.5th at p. 517 [restrained party's conduct showed he had not moved on from "the power and control dynamic of the abusive relationship"].) Thus, even if the trial court had considered Strum's evidence of changed circumstances, Strum has not shown a reasonable probability the trial court would have rendered a more favorable result.
DISPOSITION
The order is affirmed. Brubaker is to recover her costs on appeal.
We concur: FEUER, J., MARTINEZ, J.