Opinion
G054320
11-13-2017
In re Marriage of JUAN CHAVEZ and KARELY TORRES. JUAN CHAVEZ, Respondent, v. KARELY TORRES, Appellant.
The Law Office of Daniel J. Kern and Daniel J. Kern for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16D006835) OPINION Appeal from an order of the Superior Court of Orange County, Julie A. Palafox, Judge. Affirmed. The Law Office of Daniel J. Kern and Daniel J. Kern for Appellant. No appearance for Respondent.
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INTRODUCTION
Karely Torres sought a protective order pursuant to the Domestic Violence Prevention Act (DVPA) against her then husband, Juan Chavez. Following an evidentiary hearing, the trial court denied Torres's request.
On appeal, we conclude the trial court did not err in denying the protective order. Substantial evidence supports the trial court's findings that Torres failed to establish by a preponderance of the evidence that any abuse had occurred.
Torres also argues the trial court erred by awarding Chavez and Torres joint custody of the couple's minor children. Because the trial court did not err in denying the protective order, the rebuttable presumption under Family Code section 3044 against joint custody never arose.
Therefore, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Following a domestic dispute in August 2016, Torres filed a request for a domestic violence restraining order against Chavez. The trial court conducted an evidentiary hearing at which the following testimony and evidence were offered.
Neither Torres's request for a protective order nor Chavez's response thereto was included as part of the appellate record.
Chavez and Torres were married in 2013 and have two minor children. On August 1, 2016, Chavez and Torres were having a dispute at their home. The police were called, but did not arrest Chavez. After the police had finished questioning Chavez and Torres, Torres's mother and sister arrived and became involved in a dispute with Chavez's relatives; ultimately, Torres's mother was cited for committing assault and battery against Chavez's sister.
Chavez placed the couple's son in his truck and began to leave. Torres ran up to the truck and tried to open the passenger door; Torres fell and claimed the truck's tire ran over her leg. The police officers, who were still at the scene, prepared a report in which they concluded Chavez did not have any criminal intent and had not committed a crime, and that Torres had "put herself in the position where she was possibly struck by the moving vehicle." One of the police officers testified he ultimately did not believe Torres had been run over, but that she had been pulled off balance and fell down. Paramedics who responded to the scene advised the police that Torres "sustained minor abrasions, but no traumatic injuries to her foot or leg that would suggest she was run over by the truck." Torres refused to be transported to a hospital.
Torres offered a photograph she claimed showed Chavez blocking her access to the garage, but later admitted she could get her car out even when Chavez's truck was blocking the garage. Chavez testified he only parked the car sideways when he was washing it, and would move it back after finishing. Torres offered photographs she claimed showed injuries caused by Chavez. Torres also offered a photograph of a bedroom in which the bed was pushed up against the door. Torres testified she and her children slept in that room together and pushed the bed against the door because Chavez had broken the lock; Torres testified she was afraid of Chavez. Chavez testified Torres broke the lock.
Torres testified that in April 2016, while they were in the car with their children, Chavez hit her on the arm, leaving a large bruise. Torres testified the police would not take any action because the incident happened in Mexico. Chavez testified Torres was mad at him and was shoving him into the driver's side door as he drove. Therefore, he stopped the car and let Torres out. Chavez testified he did not strike Torres during the incident.
Both Torres and Chavez testified Torres had on occasion left their children in Chavez's care for several days; Torres testified it was no more than four days at a time, but Chavez testified on one occasion Torres was gone for 10 days.
After filing an ex parte request, Torres was granted a temporary domestic violence restraining order against Chavez, after which Chavez temporarily moved out of the family home. Chavez filed for dissolution of the marriage in August 2016.
After the evidentiary hearing, the trial court denied Torres's request for a domestic violence restraining order. The court made the following findings: "The Court finds the August 1, 2016 incident was an accident and finds insufficient evidence that it was [a] delibera[te] intent and does not find [Torres] was fearful that night. Court finds the parties were fighting over money and finds [Torres] left the residence and came back to the home and reengaged. [¶] The Court further finds that [Torres] had left the children in [Chavez]'s care on other occasions for up to ten day[s] at one time. [¶] The Court finds that carelessness and negligence does not fall under Family Code [section] 6203 and finds while the circumstances at issue involve [Family Code section] 6203 offending conduct, the circumstances seem situational and not likely to occur. Court found no history or pattern of abuse, clear evidence of bi-directional conflict, the injury sustained by [Torres] was from an accident, power and control is not central to the dispute, what is in dispute is about money, the conflict was related to emotional outburst with poor impulse control. [¶] Therefore[,] the Court finds the offending conduct does not rise to the level of domestic violence and denies [Torres]'s request for a domestic violence restraining order." The court also awarded Chavez and Torres temporary joint legal and joint physical custody of the children. Torres timely filed a notice of appeal.
DISCUSSION
We review the order denying a protective order under the DVPA for abuse of discretion. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."' [Citation.] We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment. [Citation.] Under the substantial evidence test, the pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made." (Ibid.) Torres bears the burden of establishing the trial court's abuse of discretion, despite Chavez's failure to file a respondent's brief on appeal. (Ibid.)
The incident leading to the application for a DVPA protective order was Chavez's alleged act of running over Torres's leg with his truck. The trial court found this incident was an accident and not a deliberate act by Chavez. This finding is amply supported by the evidence, including Chavez's testimony he was merely trying to leave the scene with his son; the police report indicating the incident was an accident; and the police officer's testimony that, based on his observations, Chavez did not intend to harm Torres. The court correctly concluded that carelessness or negligence on the part of Chavez toward Torres was not abuse for purposes of issuing a protective order. (Fam. Code, § 6203.)
Even if the trial court had found nothing had happened at all, that finding would be supported by Chavez's testimony he did not feel the truck run over anything; the paramedics' statement to the police officer that they did not observe any serious injuries to Torres; and Torres's refusal to go to the hospital for treatment.
"(a) For purposes of this [domestic violence prevention] act, 'abuse' means any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the actual infliction of physical injury or assault." (Fam. Code, § 6203.) --------
The evidence to which Torres points does not obviate the evidence supporting the trial court's findings. Even if the photographs offered by Torres accurately reflected the injuries she suffered, they do not change the evidence that any contact between Chavez's truck and Torres was an accident and not an intentional act.
Torres also challenges the trial court's comments as to the weight it was giving to certain pieces of evidence, namely the photographs offered by Torres. On the record, the court made the following statements regarding the photographs: "Now I want to address the photographs. What first appeared to the court to be a power and control issue turned out to have a possible other meaning. The plywood on the door could be an attempt to block movement, restrict movement, but it also could be a substitute door. The truck on the driveway could be an attempt to block and restrict movement; but the testimony was it didn't block and restrict movement, it simply made them inconvenient. That's not domestic violence. [¶] The bedroom photographs are also inconclusive because both parties had testified they slept in the children's bedroom, and those types of photographs can be staged and set up for any reason." It is the trial court's role to weigh the evidence. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1141.) That the court gave the evidence a different weight than Torres thought it should have is not grounds for reversal.
The issuance of a DVPA protective order requires proof by a preponderance of the evidence of a prior act of abuse by the person to be restrained. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) Torres failed to make the necessary showing. The trial court did not err in denying the request for a protective order.
Torres also challenges the trial court's order to the extent it gives Chavez and Torres joint legal and joint physical custody of the minor children. If the court had found Chavez committed domestic violence against Torres, and issued a DVPA protective order, a presumption would have arisen under Family Code section 3044 that it was not in the best interests of the minor children to award custody to Chavez. (Fam. Code, § 3044, subd. (a).) Because no such finding was made in this case, no rebuttable presumption arose, and the trial court's temporary order for joint custody was not improper.
DISPOSITION
The order is affirmed. Because respondent did not appear, no costs are to be awarded on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.