Opinion
F074629
01-29-2018
In re the Marriage of ELIZABETH and BRETT GARVIN. ELIZABETH GARVIN, Appellant, v. BRETT GARVIN, Respondent.
McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for Appellant. Mugridge Law Firm, David R. Mugridge, Amanda K. Moran and Kathleen Bakergumprecht-Davis for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CEFL07028)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Francine Zepeda, Judge. McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for Appellant. Mugridge Law Firm, David R. Mugridge, Amanda K. Moran and Kathleen Bakergumprecht-Davis for Respondent.
-ooOoo-
Respondent Brett Garvin became obsessed with the notion that he was having lustful thoughts that were in conflict with his religious beliefs. Through a series of confessions about his thoughts and feelings to his wife, appellant Elizabeth Garvin, he caused her to become persuaded he was dangerous to her and their children. They separated. Elizabeth obtained a temporary restraining order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) and requested a permanent restraining order.
At the hearing on this request, two psychologists testified that Brett was not a pedophile and not dangerous. Instead, he had obsessive disorder and persuaded himself that his own harmless thoughts were sinful. Brett and Elizabeth gave conflicting testimony about the content of his statements to her. She claimed he confessed to pedophiliac and homicidal desires and fantasies and he denied it. The differences apparently were attributable to different memories and interpretations of what Brett had said.
The trial court found Brett to be the more credible witness. It then analyzed two possible statutory bases under the DVPA for granting the permanent restraining order: whether Brett engaged in abuse that caused Elizabeth to have a reasonable fear of imminent bodily harm to herself or another, and whether he engaged in abuse by disturbing the peace. It rejected these and denied the request.
In this appeal, Elizabeth argues that the court did not apply the proper legal standards for granting or denying the order. She focuses specifically on her claim that Brett's statements constituted abuse in the form of disturbing of the peace. Elizabeth maintains that in denying her request, the court applied an erroneously narrow definition of this form of abuse. We disagree and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Dissolution petition
Elizabeth filed a petition for dissolution of her marriage with Brett on December 31, 2014. The petition stated that the couple had been married for nine years and had two children, J., age five years, and H., age seven months. The basis for the dissolution was irreconcilable differences.
Request for restraining order
On January 2, 2015, Elizabeth filed a request for a restraining order against Brett under the DVPA. The request alleged that Brett had confessed to Elizabeth and to the couple's pastors, Matt Spradlin and Brian Busby, that he had sexually molested both children and fantasized about killing Elizabeth.
According to Elizabeth's testimony at the hearing, she had previously obtained an emergency restraining order, on December 29, 2014.
The request was supported by Elizabeth's declaration. She alleged that Brett had "an addiction to pornography," which she had known about for years. She learned as part of the current dispute that this included child pornography. Brett told her on November 13, 2014, that he was using Facebook to "feed his addiction," and on November 18, 2014, that he "has fantasized about other women for a long time." The couple had a meeting with the pastors on December 3, 2014, during which Brett said, "'I have a history of lust.'" Elizabeth declared that Brett "has been carrying this burden of guilt for his sins on his heart and . . . has been slowly trying to confess to relieve him of his guilt." On December 26, 2014, Brett said, "'If you knew my deepest darkest secrets, you'd leave me.'" Two days later, on December 28, she asked him "if his addictions to sex included children." He said yes. They again spoke with the pastors, who told Brett he should get professional help and suggested contacting Child Protective Services to Elizabeth. That night, Elizabeth asked Brett if he had anything else to confess. Her declaration states: "[H]e confessed to me that he had fantasies about killing me and that I was dead in all of his fantasies. He confessed to me that nothing was off limits in his fantasies: rape, children, teens, young, old, nothing was off limits."
Elizabeth told Brett to leave that night, and he packed a bag and went to his parents' house. The following day, she made a report to Child Protective Services. She filed for divorce two days after that.
Elizabeth's declaration includes the following list of alleged confessions Brett made to her:
"1. He touched his five (5) year old cousin's vagina when he was 16 years old;
"2. He would look at his cousin's baby pictures with a sexual interest;
"3. When he was 17 or 18 years old, he had an incident with a dog. He confessed, 'When I was about 17 or 18, a dog humped my arm and I touched him by putting my fingers up for the dog to go in and out of';
"4. He had recently [been] noticing a neighbor girl's bottom and that she had a big bottom;
"5. He looks up little girl's panties when ever he has the chance;
"6. He cannot trust himself around our young daughter and stated that he does not know if he has ever touched or done anything to our son other than touching his penis when he had an erection;
"7. He repeated many times that he doesn't know where his heart is and that he doesn't trust his thoughts.
"8. When he holds our daughter, '[He] noticed that his hand has been between her legs."
The trial court issued a temporary restraining order the day the request was filed and set a date for a hearing for a permanent restraining order. The hearing on the request for a permanent restraining order was continued several times—ultimately for a period of more than 18 months—with the temporary restraining order extended each time. Despite the temporary restraining order, the parties reached an agreement during this delay according to which Brett was permitted four supervised visits per month with the children. Elizabeth was granted sole physical custody during this period.
Brett's opposition
Brett filed a response opposing the request for a permanent restraining order on January 20, 2016. It was supported by his declaration.
In this declaration, Brett's description of the events that led to his separation from Elizabeth followed a timeline similar to hers, but his characterization of those events differed substantially. In his telling, there was no child molestation, no child pornography, no addiction to sex or pornography, no sexual interest in children, no desire to kill Elizabeth, and no confessions of any of these things.
Brett's declaration stated that when he and Elizabeth began dating, they were both active in their church and decided to remain virgins until they were married. He told her, however, that he had looked at pornography "off and on again" since 12th grade. She wanted him to stop viewing pornography if they were to be married, and he agreed. He declared that he had kept this promise.
Brett stated that his sex life with Elizabeth was "problematic from the onset" and "intercourse was extremely infrequent" throughout their marriage. After Elizabeth's second pregnancy miscarried, Brett felt "disconnected from God" and dissatisfied with his marriage. He "caught [himself] noticing other women and sometimes having sexual thoughts and desires" about them. He believed, on religious grounds, that having these thoughts was the same as committing adultery. He told Elizabeth about this and she agreed with his view that he had betrayed her. At her request, he began seeing a "biblical therapist" to "address [his] lust."
In November 2014, Brett "clicked on an article" on Facebook that "appeared to contain a picture of a naked woman." He felt guilty and told Elizabeth. She asked for further confessions and he said his "struggle not to lust" was unsuccessful, as he had been fantasizing about other women. Elizabeth demanded the names of these women and told him to get help to "keep [him] accountable for [his] lustful thoughts."
Brett went to Spradlin, the pastor, for help. Spradlin thought Brett must be withholding some of the facts, because his feelings of guilt appeared exaggerated compared with what he confessed. Brett and Spradlin made an agreement by which the internet activity on all Brett's devices would be monitored by software called Covenant Eyes, which would report the activity to Spradlin and Elizabeth. Brett also gave Elizabeth the passwords to all his devices. Still she feared he would engage in lustful activities undetected by finding "'back doors.'" He deleted from his phone all programs that had internet access. He also agreed to her demand to provide a "'daily lust report'" on how many times he had lustful thoughts each day.
This regimen proved difficult. Brett found himself noticing other women more often, not less. He stayed away from restaurants "to avoid female temptation" and avoided magazines and television to keep his thoughts "pure and moral."
On December 26, 2014, according to Brett's declaration, he remembered a time when he was 12 or 13 years old and tossed his five-year-old cousin in the air while playing in a pool. "[O]ut of curiosity" he put his "hand between her legs" as he tossed her. He was disgusted by this memory and told Elizabeth, "[N]o one could ever love me if they knew what I had done." The next day, Brett was watching his children playing and noticed a little girl whose "bottom was big" compared with his daughter's. Again he felt overwhelmed with guilt.
On December 28, 2014, Elizabeth wanted Brett to tell her what he had meant when he said no one would love him if they knew what he had done. She asked if it involved their children. Brett told her about the incident in the pool when he was a child and about the little girl whose bottom he noticed. She told him to go on, as he "needed to get everything out," so he "tried to think about every horrible thought or experience" he had ever had. "I told her that I had touched the penis of a dog who was humping my leg when I was 17 years old."
Regarding their children, Brett's declaration states:
"I told her I questioned how I held [H.]. I told Liz that I noticed that when a friend held his baby, he did not cup his hand over her diaper between her legs. I told her that I didn't know if holding [H.] the way I had held her was wrong in God's eyes. Liz asked me if I had ever touched [H.]'s
private. At first I said no but then I remembered the time when [H.] was one-month-old, she had a poopy diaper with semi-liquid feces everywhere. I used two fingers to open her vagina so I could use a wet wipe to clean her. I told Liz that I felt awkward about the process the same day and she agreed it was an awkward process and would talk to [H.]'s pediatrician about it (I believe she did.) Liz asked me if that was the only time and I said it was. Liz asked me if I had ever touched [J.]'s penis and I told her about a time when he was two years old. He was running around the house naked and started play wrestling. He jumped on me and I saw when he did so he had an erection. I lifted him off me and sat him down beside me."
Elizabeth pressed Brett to describe other times he had looked at children. He remembered a time when he was 11 years and looked at a picture of his newborn cousin because had never seen a girl's private area before. He also recalled a recent occasion when he noticed that the wind was blowing girls' skirts up on a playground and revealing their underwear.
Elizabeth told Brett he should tell all these things to the two pastors, Spradlin and Busby. He and Elizabeth went to see them. The pastors again said Brett was not being fully honest and must have more to confess because his feelings of guilt were out of proportion to what he had told. Spradlin said Brett should get professional help and Brett and Elizabeth should separate and work on their issues. Brett was then sent home so Elizabeth could talk to the pastors alone. When she got home, she said the pastors told her he was a pedophile. She said he had to move out and could not be around the children. She said, "'There's still more you're not telling me. This is your final chance to tell me every thought you ever had.'" The declaration states:
"I was an emotional wreck. I was losing my family, my children, and my home. At that point I told Liz I have horrible thoughts and nothing is off limits to my mind. Searching for anything left to confess, I told her I had had thoughts that she wasn't around anymore and I was with another wife. I told her that she must be dead or that maybe I killed her because God doesn't condone divorce. The thought was random and I felt guilty the moment I had it."
After he moved to his parents' house, Brett continued counseling with the biblical therapist. Through counseling, he "realized [he] was a normal human being" and the behavior about which he had been feeling guilty was innocent. The incidents he had related about his children were not incidents of molestation. He had merely wiped his daughter while changing her diaper and been concerned that he had been holding her awkwardly. With his son, he "did not think it proper that our game had caused [J.] to be aroused so [he] stopped it." He had looked at one cousin's baby picture because he had never seen a naked girl and was curious, and "[i]t was the same when [he] tossed [his] other cousin in the pool." When he recalled the sight of wind blowing little girls' skirts up, his "instinct was that [he] wanted to pull their skirts back down and protect them." He had never looked at or touched a child for purposes of sexual gratification. His admission that he imagined a scenario in which he had killed Elizabeth was not a threat; she ordered him to leave the house when he made that statement and he complied immediately.
Brett's declaration denied that he ever told Elizabeth he was a pedophile or had molested their children. It further denied that he had "ever looked at child pornography or adult pornography during [their] marriage."
Brett stated that after Elizabeth contacted law enforcement, she gave all his electronic devices to the sheriff's department and he was placed on administrative leave by his employer. The sheriff's department and the employer searched his personal and work devices and found no pornography. He was "informed" that his emails, text messages, social media contacts and telephone contacts also were investigated. At the end of the investigation, his devices were returned and he was allowed to return to work.
According to Elizabeth's testimony at the hearing, the sheriff's department found one pornographic image on an old computer that had not been connected to the internet. Brett testified that this was a computer his father had lent him, and it had come from a student computer lab at Fresno State University, where his father worked. He borrowed this computer for J. to play with and he had never connected it to the internet. There was no criminal case pending against Brett.
Psychologists' reports and testimony
The parties agreed that Dr. Ronald Gandolfo, a psychologist, would conduct a child custody evaluation of the family pursuant to Family Code section 3111. Brett also obtained an evaluation of himself from Dr. Robert Bernstein, another psychologist. Each doctor prepared a report.
The hearing finally began on August 16, 2016, and took place over three days. The doctors' reports were admitted into evidence.
Dr. Bernstein's report was dated March 2, 2015. Bernstein conducted a three-hour clinical interview and administered two personality inventories. The factual recitation in the report generally tracked the narrative in Brett's declaration, matching it verbatim in places. One new piece of information related to Brett's imagining of a situation in which he had killed Elizabeth. In speaking to Bernstein, Brett equivocated on this point. Bernstein wrote: "After stating that once 'I thought of killing her in my mind,' [Brett] commented, 'I don't think I ever remember having that thought.'"
Bernstein found there was no evidence of inappropriate sexual interests or behaviors on Brett's part:
"There was no evidence to indicate that Mr. Garvin had prurient interests or behavior with children. There was no evidence of potential risk factors of pedophilia, such as, a history of sexual, physical abuse or substance abuse, impulsivity, or interest in child pornography. Mr. Garvin's recollection of an early adolescent incident did not appear to be indicative of sexual gratification from this interaction with a child. Rather, this one incident reported was guilt-inducing, not sexually stimulating. In the context of distorted memory, it was highly possible that Mr. Garvin's recollection was influenced by the current situation in which he was being told by the pastor that he was not being fully disclosing of immoral conduct, and may simply have been a slip of his hand that elicited guilt, rather than a conscious act. Notwithstanding, since that one-time incident during adolescence, Mr. Garvin has not shown a pattern of inappropriate conduct with children. Rather, frustrated sexually in his marriage, Mr. Garvin's sexual interest and fantasies involved adult females. Until the days before the marital separation and the allegation that he posed a risk of child sexual abuse, Mr. Garvin's guilt about sexual ideation was solely focused on an interest in adult women. Showing no indication that he was
prone to acting on his thoughts and impulses, there was no reported history in adult female pornography beyond age-consonant exploration during late adolescence and early adulthood."
Brett was, however, in Bernstein's opinion, subject to "cognitive rigidity and obsessiveness" and "[p]rone to black-white, moralistic thinking." He also "view[ed] sexuality rigidly in accordance with ... literal biblical definitions," interpreting his "normative" reactions to adult women "as adultery and sinful." These qualities, in combination with "pronounced pressure imposed by his wife and pastors, who conveyed that his thoughts were immoral and wrong and there was more not revealed," resulted in a crisis of self-doubt, in which he was "[g]uilt-ridden" and "unable to contain his obsessional ideation," and which accounted for his sense that he had done wrong. "Overwhelmed by the failure to satisfy the external expectations of important people in his life, Mr. Garvin's sense of self disintegrated as he explored the recesses of his mind to find the answers that would relieve their critical perspective and his mounting guilt."
Dr. Gandolfo's report, dated June 5, 2015, evaluated the family. Gandolfo interviewed Brett, Elizabeth, J., both sets of grandparents, and both pastors. He administered personality inventories to Brett and Elizabeth. The facts underlying the dispute, as related to Gandolfo by Brett and Elizabeth, roughly matched the accounts in Brett's and Elizabeth's declarations.
Regarding Elizabeth's statement that Brett said he imagined killing her, Brett told Gandolfo what he really said to Elizabeth was that "he did not know" whether he had that thought because "his thoughts were confused."
Gandolfo's assessment of Brett was quite similar to Bernstein's. Gandolfo found that Brett's "mental health status is characterized by obsessive behavior that," apart from the current crisis, "does not interfere with his ability to handle responsibilities or function satisfactorily in society." "Generally speaking," Brett "has been an emotionally stable person with a good school and work history." He is, however, "subject to rigid, moralistic thoughts that he attributes to his interpretation of bible passages and has an obsessive need to place thoughts and actions into simplistic absolute categories of right and wrong."
The current crisis arose after Brett's sexual frustration, obsessive nature, attraction to other women, and "belief that a thought is equivalent to a deed" led to feelings of guilt, which Brett internalized, according to Gandolfo's account. "Obsessive individuals internalize many of their thoughts and thus deprive themselves of external feedback that could be correcting." Yet when he did disclose his thoughts to his wife and pastors, the results were the opposite of correcting. Brett's "self-doubt and confusion [were] buttressed by the beliefs of his wife and pastors," who reacted by making "a remarkable effort to monitor and audit Mr. Garvin's daily activities." Subject to this surveillance, Brett came to believe "he should not be alone in the presence of another woman and his perception was distorted to the point that he felt he sinned when he viewed a 'provocative woman' in People magazine." Brett's distorted perception led him to make the statements that caused Elizabeth to fear him, and the two of them were not talking to anyone who could help them take an undistorted view of the matter:
"Mr. Garvin then went through a process of conducting an inventory of all his past associations and he finally came to the conclusion that because he had curiosity about the anatomy of females including children he may possibly be a pedophile. The loss of perspective is illustrated by him worrying whether he held his 10-month[-]old daughter, [H.], in a correct manner. Mr. Garvin essentially went through a process of attempting to identify any shred of behavior that would establish him as sinful and lustful. Because communication regarding these matters was limited to Elizabeth Garvin and the two pastors, Mr. Garvin had no other feedback which could present a different perspective."
Gandolfo found there was "no evidence from this evaluation that Mr. Garvin is a sexual deviant or a pedophile." Instead, he had a tendency toward "magnification of a thought into a disturbing obsession by extrapolating all possible outcomes." Gandolfo recommended that Brett engage in therapy with a clinical psychologist for obsessive disorder, and that he consult with a psychiatrist for consideration of anti-obsessive medication.
Regarding Elizabeth, Gandolfo opined that Brett's statements and the pastor's reactions led to anxiety, which in turn led to her actions against Brett, which she honestly but mistakenly believed to be necessary: "Ms. Garvin appears generally confused and has taken a strong, protective gate-keeper role with respect to the children that is genuine in nature and not intended to alienate the father from the children." Gandolfo recommended that she "consult with a counselor to help her place in perspective the events that have occurred and help her reconcile her suspicions and mixed feelings" about Brett.
On the issue of custody, Gandolfo recommended a 50-50 arrangement either with alternating weeks or a split week. This arrangement would apply to J. immediately. H. would continue living with Elizabeth at first, with visits by Brett gradually increasing until she had the same arrangement as J. by age five.
In addition to their written reports, the doctors gave live testimony at the hearing. Bernstein testified that Brett had been seeing him for therapy once or twice a week from January 2016 until the time of the hearing. Regarding the evaluation, Bernstein gave testimony generally consistent with his report. He characterized Brett's problem as a rigidly-conceived kind of moral perfectionism combined with an inability to distinguish fear from reality when contemplating his own thoughts and feelings. Bernstein reaffirmed his conclusion that Brett was not a threat to the children or Elizabeth.
Discussing the incidents Brett recalled from when he was a teenager or younger—looking at his newborn cousin's picture, tossing another cousin in a pool, and touching a dog—Bernstein said such incidents were not indicative of future risk for Brett as an adult. "Pattern behavior as an adult is very different than teenage curiosity and experimenting." Regarding the episodes involving changing H.'s diaper and J. having an erection, Bernstein testified that two incidents of this kind were not an indication of a sexual interest in children. Such an interest develops in early adolescence, becoming dominant in adulthood. In a case of that kind, Bernstein would expect to see recurrent themes and struggles over an attraction to children, not two isolated incidents like those Brett described.
On cross-examination, Bernstein confirmed that in his evaluation of Brett, he did not administer any testing instrument to measure a propensity for domestic violence. He said he did not have confidence in the validity of such instruments. He also did not administer any testing instrument designed to rate a subject's sexual interest in children. He said those instruments were intended for use in estimating the risk of recidivism in populations of known offenders and no testing norms existed for the general population.
Bernstein testified that Brett did not recall fantasizing about killing Elizabeth or saying he had had such a fantasy. Elizabeth's counsel pointed out that Bernstein's report mentioned an equivocal statement Brett made—he said he thought of killing Elizabeth but then said he did not think he ever had that thought. Bernstein replied that Brett did say this, but Bernstein did not believe Brett had the ability to recall his own thoughts reliably.
Gandolfo also gave testimony generally consistent with his written evaluation. He said the "instigating contributor" to Brett's breakdown was his lustful feelings for women. His fears about those feelings then became "generalized" because "obsessive people start to question everything. So it's like a confirmatory bias, okay, now I have to look for evidence, maybe I'm a child molester, I have to look for evidence." Gandolfo said Brett consistently denied, however, that he was ever aroused by any of the experiences he described with children. He denied he was sexually aroused by children when speaking to Gandolfo, Bernstein, the pastors, and his parents.
Gandolfo believed Brett was telling the truth when he said he was confused about whether he had imagined killing Elizabeth. He did not think Brett ever had any actual wish to kill her. Gandolfo said it was "typical for obsessives" to have extraordinary fears about acting on negative thoughts, but their behavior generally does not conform to their fears. He also said that if Brett told Elizabeth he imagined killing her, this would have been "attention-getting," "dramatic," and expressive of anger and frustration, but not indicative of a real wish to kill her.
In spite of his opinion that Brett was not dangerous in reality, Gandolfo felt it was not unreasonable for Elizabeth to be concerned for her safety and the children's safety around him, in light of what he had said to her.
Asked about the issue of Brett's behavior under stress, Gandolfo testified that there was a potential for him to lose his temper under stress, but not an unusually great potential. He said there was "no evidence really it would be a problem."
Because 14 months had passed since he wrote his evaluation, Gandolfo would modify his custody and visitation recommendation. He would now recommend a graduated visitation plan, working up slowly to a more equal time arrangement, probably still leading to a 50-50 split. He would recommend starting with meetings with a co-parenting counselor.
Parties' testimony
Elizabeth testified at the hearing. She began with a "clarification" of her declaration: when she declared that Brett had used child pornography, she used that expression in error and did not actually believe he had used child pornography. She believed Brett had molested the children and "just thought child pornography equals child molestation."
Elizabeth was next asked whether Brett had done anything to cause her to fear for her life in the time since the temporary restraining order. She said yes, he had done two things: he found out where she worked when she was trying to keep that information secret, and he took pictures of the children during a supervised visit. She also said the pictures upset her because Brett might look at the pictures in a sexual way. She claimed Brett told her on "the morning that [she] found everything out" that he had that day "looked down [H.]'s onesie looking at her cleavage."
A supervisor from Child Supportive Services testified that during a supervised visit, J. made an unsolicited reference to Elizabeth's workplace, thus revealing it to Brett. --------
Elizabeth's counsel asked whether Brett had ever been physically abusive. She said no, but he had been emotionally abusive. As an example, she said that when he was "having inappropriate relationship[s] with some women" in November 2014—presumably referring to his confession that he had looked at and thought about other women—he had blamed her for it, saying it was because of their limited sex life. Then they began having sex more often and he said it was too much.
Counsel asked Elizabeth about Brett's confessions as alleged in her declaration. Elizabeth reiterated these, with some additional claims. She asked him if he was sleeping with other women, and he answered that "he did not know." Regarding the incident with the cousin in the pool, Elizabeth now added that Brett said he "slipped his finger underneath her bathing suit" to feel the cousin's vagina. She also said Brett was 17 or 18 when this happened, not 16 as stated in her declaration. Further, Elizabeth said that Brett said that when she had been pregnant with J., he hoped it would be a boy, because he did not know if he could control himself around a girl. But when J. was born, he found he was curious about his penis. Referring apparently to Brett's story about touching H.'s vagina while changing her diaper, Elizabeth said Brett confessed to "violating [H.]'s vagina while he's changing her." Regarding Brett's way of holding H., Elizabeth testified that he "often put his hand in between [H.]'s legs and he said that he would see if he felt any sexual feelings, but he didn't." She said Brett told her that on the occasion when Brett and J. were playing and J. had an erection, Brett "put [J.] on his lap then he put his hand out again just like he did for [H.], and had [J.] bounce on his hand."
Elizabeth testified that on the night Brett left, December 28, 2014, she called Child Protective Services and the sheriff's department. Deputies came to the house, collected all the computer equipment, and helped Elizabeth obtain an emergency protective order. They arrived around 11:00 that night and stayed until about 8:00 the next morning. After December 29, she and the children never spent the night in the house again. They stayed with relatives for a few nights, and then went to a "safe house," which was "a stranger's house that [Elizabeth] had never met before," because she was afraid Brett would find them. She also had her "car swept for any tracking devices that might be on it" to make sure Brett would not follow her.
About future arrangements, Elizabeth testified that her preference was for agency-supervised visits of no more than two hours per week. She wanted Brett to be barred from having any contact with the children's schools or teachers or any access to their school records. She felt Brett should not be allowed to have any pictures of the children. She did not want Brett to have any means of contacting her or communicating with her, or communicating with the children outside of supervised visits, and she would be uncomfortable if the court were to order her to communicate with him. She did not want Brett to watch the children doing activities, such as playing soccer. She said, "In an ideal world, Brett would not know where we lived or where the children were during the day." Further, "I need to separate myself from him and give myself the freedom to live a new life and to not be controlled by the hands of my abuser." She was not reassured by Bernstein's opinions. She understood Bernstein to be saying that Brett was in a fragile state of mind, and also that Brett did not know what he had or had not done to the children. In her view, this meant it still was not safe for Brett to be in unsupervised contact with the children.
Brett also testified, giving an account of the events of November and December 2014 that was generally consistent with his declaration. He said that after he first told Elizabeth about how he had looked at women and pictures of women and they agreed he would be monitored with Covenant Eyes, Elizabeth told him she already had sufficient reason to leave him, since he had committed adultery by lusting. He denied he ever told Elizabeth he looked at little girls' panties whenever he got the chance. He reaffirmed his story about desisting from playing with J. when he saw that J. had an erection. He denied telling Elizabeth he touched J.'s penis when J. had an erection. He acknowledged saying he did not know where his heart was and did not trust his thoughts. He said this during the meeting with the pastors on December 28, because the turn the conversation had taken disoriented him. "I was so confused that I was sitting here saying things about lustful thoughts about adult women and then now we've transitioned to this, Brett, tell us everything about children. And it didn't make sense to me, and I wondered why I was having to say these things." He denied saying anything about H.'s "cleavage." Believing he had to confess all his thoughts that might be wrong, he said he had noticed that H.'s shirt was hanging low and showing her baby fat. When he remembered the incident with the cousin in the pool, he felt distraught over the idea that his hand had been where it should not have been; he did not feel any sexual gratification or arousal.
Brett denied saying he could not trust himself with his daughter. He did tell Elizabeth, before H. was born, that he was afraid of having a daughter. He explained that after their second baby, a girl, miscarried, he blamed himself and thought God was punishing him for something, and he was afraid this would happen again if they conceived another daughter. When they found out H. was a girl, Brett felt relieved, because he thought it meant God loved and forgave him.
Brett denied saying he touched H.'s vagina to see if he felt any sexual gratification. He heard Gandolfo testify that he had said this, but he did not recall saying it. He thought he and Gandolfo only discussed how he was uncomfortable cleaning H. when she had a dirty diaper. Brett also denied ever telling Elizabeth he was curious about J.'s penis.
Brett's account, at the hearing, of his statement about imagining killing Elizabeth was as follows:
"[T]hen she said to me, have you ever thought of killing me. And I thought about it, and I thought, what, and I said yes—well, no, that is not right, no, I've never had that thought. But then it was too late. By the time she heard that, she said I've made up my mind, I want you to leave."He conceded this was not quite the same as the description in his declaration.
Brett testified that in his therapy with Bernstein, he was working on techniques to manage stress.
He testified that he had never felt any sexual feelings toward his children or any children. The only time the notion of killing Elizabeth ever arose for him was during the discussion when he made his remarks on that subject. He never had any plan of harming her in any way.
Brett's counsel asked Brett to explain his "statement that said nothing was off limits, young, old, rape, et cetera." Brett did not deny he made this statement. He said he had become convinced that "the only way [he] was going to be healed" was by saying "any thought that had ever come to [his] mind." "So if I had seen a TV show and they talked about catching somebody who raped or murdered," he continued, "then I thought about that because I watched TV and thought, oh, you know, whatever about it. Well then that was bad because I had a thought."
Other witnesses' testimony
Pastor Spradlin testified about his conversations with Brett and Elizabeth. When he advised the Garvins to separate and recommended that Brett seek professional counseling, he believed Brett's statements indicated Brett was struggling with a sexual attraction to children. Brett said he had a sexual curiosity about children. Brett spoke only of thoughts and feelings and did not say he was thinking of taking action, but Spradlin was still concerned for the safety of the Garvins' children. Spradlin was a mandated reporter. He did not contact Child Protective Services, but this was only because his colleague Pastor Busby had done so. During the time Brett was being monitored by Covenant Eyes, in November and December 2014, the software never showed that Brett viewed any pornography.
Frances King, a licensed clinical social worker, testified that Elizabeth brought J. to her in January 2015 and she had been counseling him since then. By the time of the hearing, she was working with J. and both parents. Regarding the children's safety, King testified that her "only concern" was about Brett's coping skills under stress. In particular, she was concerned about "the degree in which he kind of decompensated" (i.e., his mental state deteriorated) under stress. She believed he should receive treatment to bolster his coping skills. Absent such treatment, she believed the children could be at risk. Without speaking to Brett's clinician (Bernstein) about Brett's ability to manage stressors, King felt she could not give an opinion on the subject of visitation. King confirmed she was a mandated reporter and stated that J. had not revealed anything that would cause her to make a mandatory report.
Dr. Cesar Vasquez, a pediatrician, testified that Elizabeth brought H. to him in February 2015 for a checkup. Elizabeth told Dr. Vasquez that H.'s father had admitted he was a pedophile and had molested H. Vasquez found nothing unusual in his physical exam of H.
Trial court's ruling
The trial court issued a written ruling on October 7, 2016. The court explained that, under the DVPA, courts can issue restraining orders "to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient, to enable these persons to seek a resolution of the causes of the violence." (Fam. Code, § 6220.) A restraining order can be issued if the evidence shows "reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.) "Abuse" within the meaning of the statute "is not limited to the actual infliction of physical injury or assault." (Fam. Code, § 6302, subd. (b).) Among other things, it includes action that places "a person in reasonable apprehension of imminent serious bodily injury to that person or another," as well as "any behavior that has been or could be enjoined pursuant to Section 6320." (Fam Code, § 6302, subd. (a)(2), (3).) Behavior enjoinable under Family Code section 6320 includes "disturbing the peace of the other party." (Fam. Code, § 6320, subd. (a).) Having laid out these provisions, the court proceeded to consider whether Elizabeth, as the petitioner, had shown by a preponderance of the evidence that Brett either disturbed the peace or placed her in reasonable apprehension of imminent serious bodily injury.
The court rejected Elizabeth's contention that there was no material dispute over the facts. It found instead that the parties gave contradictory testimony, and that "[t]o the extent that the testimony of the parties differs, the court finds respondent Brett Garvin to be the more credible witness."
On disturbing the peace, the court analyzed several Court of Appeal decisions holding that a disturbance of the peace could be established by evidence showing that the party to be restrained had destroyed the mental or emotional calm of the other party. Rejecting the view that these cases supported issuance of a permanent injunction here, the court stated:
"The conduct in this matter involves statements made by respondent Garvin on December 28, 2014. After that date he did not contact petitioner Garvin. There were no affirmative actions taken by the respondent. The court finds that the conduct by respondent does not rise to the level of the conduct restrained by other courts. It is not 'disturbing the peace' which should be subject to the provisions of the DVPA"
The court also found that any apprehension by Elizabeth of imminent serious bodily injury to herself or another caused by Brett was not reasonable.
On the basis of this analysis, the court concluded that Elizabeth had not carried her burden of proving her entitlement to a permanent restraining order by a preponderance of the evidence. The request for the order was denied.
The court issued a custody and visitation order the same day. It provided that the parents would have joint legal and physical custody. It further provided, however, that the children would live primarily with Elizabeth, and would reside with Brett only for portions of two days each week, on a graduated schedule culminating in periods of two hours each Wednesday evening and seven hours every Saturday. The children's time with Brett was to be supervised by Brett's parents at first and unsupervised later. The court ordered each parent to undergo psychological counseling.
DISCUSSION
Elizabeth's sole argument on appeal is that the trial court erred by applying an incorrectly narrow definition of disturbing the peace as a form of abuse under the DVPA. She does not argue that the evidence was insufficient to support the judgment, that the court should have found a reasonable apprehension of imminent serious bodily injury, or that the custody and visitation order was erroneous even if the denial of a permanent restraining order was not.
We review the trial court's decision on the request for a permanent restraining order under the abuse of discretion standard. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143 (Burquet).) One way a trial court can abuse its discretion is by applying an incorrect legal standard, as Elizabeth claims the court did here on the definition of disturbing the peace. (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.)
Elizabeth argues that disturbing the peace, as that term is used in the DVPA to describe a form of abuse, includes behavior that destroys a person's emotional or mental calm. The observations in the trial court's order that Brett's conduct consisted of statements and not "affirmative actions" imply the court did not understand this, Elizabeth maintains, since the statements at issue naturally were destructive of her peace of mind regardless of the absence of any other actions.
Elizabeth relies on several appellate decisions affirming the view that, under the DVPA, abuse in the form of disturbing the peace includes conduct that disturbs a petitioner's peace of mind. In the leading case in this group, In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 (Nadkarni), an ex-husband allegedly gained unauthorized access to his ex-wife's email account and obtained documents from it. He filed some of these in the trial court as evidence against her in child custody proceedings and made what she considered to be a veiled threat to release others to embarrass her in her business and family relationships. He also used his unauthorized access to learn of her schedule and activities, which caused her to fear for her safety. He had a prior conviction for misdemeanor spousal battery against her. (Id. at pp. 1488-1491.) The trial court issued a temporary restraining order at the ex-wife's request, but then dismissed her request for a permanent restraining order, stating that the ex-husband's alleged conduct with the email account might have been illegal, but it would not amount to a basis for a permanent DVPA restraining order even if proved. (Id. at pp. 1491-1493.) The Court of Appeal reversed. It held that "the plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (Id. at p. 1497.) The ex-husband's behavior with the ex-wife's email account allegedly destroyed her mental or emotional calm and "could, if found to be true, constitute 'disturbing the peace of the other party.'" (Id. at p. 1499, italics added.) It followed that it was error to dismiss the petition and a hearing on the merits was required. (Ibid.)
The other cases Elizabeth cites are similar. In Burquet, supra, 233 Cal.App.4th 1140, the Court of Appeal followed Nadkarni and affirmed an order granting a DVPA restraining order based on evidence that an ex-boyfriend, who had "gotten physical" with his ex-girlfriend when angry during the relationship, disturbed the mental or emotional peace of the ex-girlfriend by making multiple unwanted contacts after the breakup, culminating in an incident in which he appeared uninvited at her home and refused to leave. (Burquet, supra, at pp. 1142-1143, 1144-1147.) In In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416, 1416-1425, evidence of an ex-husband accessing and disseminating emails and other data from ex-wife's cell phones supported a DVPA order specifically restraining him from engaging in those activities. The Court of Appeal followed Nadkarni and applied the disturbing-the-peace provision. In Altafulla v. Ervin (2015) 238 Cal.App.4th 571 (Altafulla), an ex-boyfriend disseminated a surveillance report showing his ex-girlfriend had had an affair. He also described the affair to the ex-girlfriends' daughters in sexually explicit terms. In a prior marriage, the ex-boyfriend made what was then described as a death threat. The Court of Appeal followed Nadkarni and affirmed a DVPA restraining order against ex-boyfriend based on disturbing the peace. (Altafulla, supra, at pp. 574-576, 578-580.) (See also Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 821-822 [trial court erred when it refused to consider evidence of mental or emotional abuse offered in support of petition for DVPA restraining order]; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852-853 [citing Burquet and holding that no evidence of violence was necessary to support DVPA restraining order].)
It is important to note at the outset of the analysis that none of these cases involved a finding of abuse in the form of disturbing the peace based on statements alone. The trial court was correct in noting that the cases Elizabeth relied on (which included those discussed above) differed from the present case in this respect. But we will assume, without deciding, that in relying on a definition of disturbing the peace as including destroying someone's mental or emotional calm, these cases imply it is possible for statements alone to disturb the peace, and to constitute abuse on that basis, under some circumstances.
Those cases are not inconsistent with the result in the present case even under that assumption. Nadkarni held only that conduct that destroyed the petitioner's emotional calm could show abuse in the form of a disturbance of the peace if proved—not that it necessarily would do so. The proposition that abuse in the form of disturbing the peace can be based on words or actions that destroy a person's mental or emotional peace does not mean any words (or actions) that have this effect constitute this form of abuse. A revelation that one's spouse is afflicted with a terminal illness, for instance, could easily have that effect on the hearer, but would not constitute abuse. Other examples could readily be conceived. The notion that any words or actions that destroy a person's emotional calm constitute an abusive disturbance of the peace is untenable because there are countless innocent or otherwise nonabusive ways of destroying emotional calm.
The language of Family Code section 6320, subdivision (a), where the reference to disturbing the peace is found, supports our view. It provides:
"The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or 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.
The list of behaviors contained in this subdivision includes several that clearly cannot properly be understood to constitute abuse every time they occur: telephoning, contacting by mail or otherwise, and coming within a specified distance. Abusive instances of conduct like this are a subset of the whole. Disturbing the peace as interpreted in the above cases—conduct that destroys someone's mental or emotional calm—is similar to these in one respect: Although it can be conduct that amounts to abuse, to say it always is so would not be a reasonable interpretation of the DVPA.
Altafulla, supra, 238 Cal.App.4th 571, supports our holding. In addition to affirming the trial court's decision to issue a restraining order protecting the ex-girlfriend, it also affirmed the denial of the ex-boyfriend's request for a similar order. The trial court agreed with the ex-boyfriend that the ex-girlfriend's affair was upsetting, but still denied his request. Court of Appeal affirmed, saying this behavior was not abuse under the DVPA. (Id. at pp. 577, 582.) This is an example of conduct that destroys a petitioner's emotional calm—even culpably so—and therefore disturbs the peace under the definition adopted by Nadkarni and its progeny, but that still does not amount to abuse under the DVPA.
Given this understanding of the law, we do not think the trial court's remarks in this case reflected an erroneously narrow interpretation of it. The court's remarks did not imply that it thought conduct consisting only of statements could never constitute abuse under the DVPA. Instead, the court's remarks were consistent with the view just stated, that not all disturbing statements (indeed, not all disturbing actions) amount to abuse in the form of disturbing the peace. The court did refer to an absence of "affirmative" conduct, but it was correct that such conduct was absent in this case and present in the cases Elizabeth relied on. By mentioning this, the court did not necessarily imply that some conduct beyond the making of statements was always required for abuse in the form disturbing the peace.
Even if we were to assume the court's remark about affirmative conduct did imply a too-narrow conception of abuse within the meaning of the DVPA, we would not find reversible error. The court made clear its finding that barring Brett from Elizabeth and the children was not warranted in light of the facts as it found them. It surely would still have found no abuse even if it had expressly acknowledged and applied a standard according to which statements alone can—but do not necessarily—amount to an abusive disturbance of the peace if they destroy a person's mental and emotional peace.
The record supported the trial court's order. The court could reasonably find Brett's statements, though upsetting, were consequences of his obsessive disorder, not signs of danger, and therefore were not abuse that could be enjoined under the rubric of disturbing the peace within the meaning of Family Code section 6320. In concluding that the court did not abuse its discretion, it is unnecessary for us to state any general rule about which statements or instances of conduct that destroy someone's emotional or mental calm amount to abuse under the DVPA. It is enough to say that the court could reasonably find Brett's conduct was not such an instance.
Elizabeth next argues that statements in the trial court's order imply the court thought a permanent restraining order could issue only if there was conduct subsequent to Brett's statements that constituted abuse. She cites cases in which previously-issued restraining orders were renewed despite the absence of subsequent conduct.
We agree that requiring subsequent conduct would be a misunderstanding of the law, but we do not view the trial court's order as reflecting any such misunderstanding. The court was simply pointing out that Brett's upsetting statements were the sole basis of Elizabeth's claim of disturbing the peace, so the claim stood or fell based on the statements.
Elizabeth also suggests the court's statements implied it somehow conflated disturbing the peace with a reasonable fear of imminent serious bodily injury. Again, that is not how we read the court's ruling. It considered disturbing the peace and a reasonable fear of imminent serious bodily injury as two possible bases for issuing the order, and rejected both.
Finally, Brett's appellate counsel appears to be under the mistaken impression that if Brett is awarded costs on appeal as the prevailing party under California Rules of Court, rule 8.278, the award will include "reasonable attorney's fees." Attorneys' fees are not among the costs recoverable under that rule. (Cal. Rules of Court, rule 8.278(d)(1).) To obtain an award of attorneys' fees on appeal, the prevailing party in the appeal must submit a fee motion under rule 3.1702, asserting some valid contractual or statutory basis for the award. (Cal. Rules of Court, rules 3.1702, 8.278(d)(2).) The costs award in the disposition below does not include any attorneys' fees.
DISPOSITION
The order is affirmed. Respondent Brett Garvin is awarded costs on appeal.
/s/_________
SMITH, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
PEÑA, J.