Opinion
D070943
06-14-2017
In re the Marriage of RACHAEL and WILLIAM DANIEL HULSE. RACHAEL HULSE, Plaintiff and Respondent, v. WILLIAM DANIEL HULSE, Defendant and Appellant.
Eric Ransavage and Todd A. Moore for Defendant and Appellant. No appearance for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DN183832) APPEAL from an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Eric Ransavage and Todd A. Moore for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Daniel Hulse appeals a domestic violence restraining order (DVRO) issued in this pending dissolution action, as requested by his wife, Rachael Hulse, the respondent here. Daniel argues the trial court abused its discretion by granting a DVRO where there was no support for a finding of a past act or acts of abuse. He contends the family court granted the DVRO solely because he violated a previous court order by accepting brief contact from his children, which, Daniel argues, does not constitute abuse nor justify granting a restraining order under the Domestic Violence Protection Act (DVPA). (Fam. Code, § 6200 et seq.) Daniel also contends the family court abused its discretion by issuing the DVRO for the maximum term allowed. Finally, Daniel claims that Rachael sought the DVRO to gain a tactical advantage in the custody dispute for their three minor children.
As customary in family law cases, we identify the parties by their first names. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.) Rachael did not submit a respondent's brief in this proceeding. However, we do not "treat the failure to file a respondent's brief as a 'default' . . . but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232-233.)
All statutory references are to the Family Code unless otherwise specified.
Our rules of review applied to this limited record lead us to determine that the trial court had a sufficient basis to conclude that Daniel's January 2016 and subsequent conduct at Rachael's home and at their minor children's school events amounted to enjoinable conduct within the meaning of the DVPA. The court did not abuse its discretion in issuing this injunctive order and we affirm.
I
PROCEDURAL AND BACKGROUND FACTS
As the appellant, Daniel has the burden of providing an adequate record, showing that error occurred, and that the error was prejudicial. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) The arguments on appeal must be restricted to documents in the record, and we generally may not consider references to matters outside the record. (Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant's opening brief must provide a summary of significant facts limited to matters in the record on appeal].) Absent an adequate record to demonstrate error, a reviewing court presumes the judgment or order is supported by the evidence. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137.) Daniel, as appellant, has not presented a complete version of the relevant facts, and we set forth below a more in depth explanation of the events leading to these proceedings.
Rachael initiated the instant dissolution action on July 22, 2015. Each party filed at least one ex parte application requesting, among other things, modification of visitation orders for the minor children, and exclusive use of the family residence. Of relevance, during a September 16, 2015 ex parte hearing, the court granted Daniel's request to attend the minors' Saturday sports events and denied Rachael permission to videotape or record the drop off and pick up of the children.
At a hearing on July 6, 2016, Rachael testified that she previously initiated dissolution proceedings and sought a DVRO against Daniel in January 2013. The court granted a temporary restraining order for five months, and she did not seek to renew it when she and Daniel dismissed their pending dissolution. Those proceedings are not otherwise part of the instant record.
Daniel also states that Rachael applied for a second temporary restraining order on or about July 17, 2015, with case number DVN24658, and it was also dismissed. That application is not a part of the instant proceeding. The record is unclear on whether Rachael has applied for two or three DVROs. We confine our analysis to her current application.
On November 2, 2015, in the dissolution action, Daniel filed a request for a DVRO against Rachael. He claimed Rachael was stalking him by videotaping him and the children at a Halloween event. The court denied the request on November 20, 2015.
On December 29, 2015, by order of the court, Rachael gained exclusive use of the family residence, to be effective on January 1, 2016. On January 13, 2016, Daniel arrived at the residence and demanded entry to take some of his belongings. When Rachael refused, Daniel walked around to the back yard, attempting to gain access to other entrances to the home. After Daniel left, Rachael placed some of his belongings outside the front door of the home so he could return later to pick them up.
By agreement, Daniel was to return to the house the next day (Jan. 14, 2016) with a home appraiser recommended by Rachael's attorney. Daniel arrived after the appraiser had already left. In her declaration Rachael stated that Daniel again attempted to gain entry, yelling, "this is my house and you have to let me in the house." Rachael called the police, but Daniel left the property before they arrived.
On January 16, 2016, Daniel arrived at their son's baseball evaluation. Daniel called Rachael a "jerk," and, according to Rachael's declaration, he continued to yell at her until she walked away. In his declaration, Daniel stated that "[he] was, in fact, angry with her for keeping [] information [about his child's sports schedule] from [him]." During a DVRO hearing on June 22, 2016, Leah Gonzalez, a friend of Rachael who was present at that baseball evaluation, testified that Daniel was acting aggressively and irrationally that day, and that he "came up in a confrontational manner." In her declaration, Rachael stated that Daniel followed her and the children to their car and she then called police. She also stated that later that day she received 31 threatening text messages from Daniel.
On January 21, 2016, Daniel arrived at his son's sports practice where he volunteered as an assistant coach. A mutual acquaintance, Lorraine Romer, served Daniel with paperwork. A sheriff's deputy was also present and told Daniel that he would be arrested if he did not leave. According to Lorraine's testimony at the DVRO hearing on June 22, 2016, Daniel had argued with the deputy that day and yelled at Rachael, "You're an asshole" and "This is bullshit."
Between January 19, 2016 and March 31, 2016, the DVRO application was heard by Judge Wood. He recused himself and Judge Washington heard the case starting on April 1, 2016.
At a hearing in the dissolution action, on June 6, 2016, Daniel was granted permission by the court to attend the children's life events, but he was to have no contact with the children or Rachael, and a professional visitation supervisor must be present. On June 20, 2016, Daniel attended the preschool graduation of his youngest child. During the event, Daniel was seen by two of his children who then approached him. Rachael took a photograph of Daniel showing him hugging one of the children. The photograph is designated Exhibit 14 in the record.
After two days of testimony, Judge Washington granted Rachael's request for a DVRO, protecting her individually, for five years. He then, at the request of Daniel's attorney, ordered both parties to attend mediation to further discuss custody and visitation with the minor children.
II
APPLICABLE STANDARDS
Under the DVPA, the family court is authorized to issue a restraining order enjoining a party from engaging in specific acts of harassment or abuse against a cohabitant or former cohabitant. (§§ 6300-6301.) DVROs may have a duration of not more than five years and may be renewed, upon request of a party, either for five years or permanently, without a showing of any further abuse. (§ 6345, subd. (a).) Such an order may be issued based on an affidavit that shows, to the court's satisfaction, reasonable proof of a past act or acts of abuse. (§ 6300.) DVROs " 'often must issue quickly and in highly charged situations' but should not be 'misuse[d] . . . for tactical reasons.' " (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1426, citing Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1056.)
For purposes of the DVPA, section 6203, subdivision (a) forbids as abusive any conduct by a perpetrator defined as follows: "(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 ." (Italics added.)
Section 6320, subdivision (a), authorizes a court to issue a temporary DVRO under the following circumstances:
"The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening . . . 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." (Italics added.)Under section 6320, a DVRO can be issued by a trial court if it finds reasonable proof was made of past abusive behavior by the respondent, as described by statute. "Disturbing the peace of the other party" as listed in section 6320 may properly be understood as conduct that destroys the mental or emotional calm of the other party. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 [defining "disturbing the peace of the other party" under rules of statutory interpretation and in consideration of the broad protective purpose of the DVPA intended by the Legislature].)
On a petition for a DVRO, a trial court has broad discretion to apply this statutory scheme in determining whether such an order is justified. (§ 6345, subd. (a) ; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420; Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.) Abuse of discretion occurs if the trial court exceeds the bounds of reason, or fails to apply correct legal standards and thereby acts outside the confines of the applicable principles of law, or acts without substantial support in the evidence. (Gonzalez, supra, at pp. 420-421.)
Section 6345, subdivision (a) provides for initial issuance of a DVRO, on a sufficient showing, "in the discretion of the court." The order "may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party," and it is subject to renewal if appropriate. --------
On appeal, we do not reweigh the evidence or second guess the credibility of a witness. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) In determining whether substantial evidence supports the court's order, we view the evidence in the light most favorable to the order. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)
III
ANALYSIS
Daniel contends the trial court erred by issuing the DVRO because the evidence was insufficient to support a finding of a past act or acts of abuse within the meaning of the DVPA. His argument presumes the family court based its decision solely on a finding that his brief interaction with his children at a school event on June 20, 2016 constituted abuse, and that the judge's comments at the hearing amounted to a finding that Daniel's conduct before that same interaction with his children did not constitute abuse. As we explain below, we disagree with Daniel's interpretation of the record and conclude there was substantial evidence presented to support the court's finding that Daniel's conduct justified issuance of the DVRO.
The record contains testimony given during two hearings on the DVRO, on June 22 and July 6, 2016. For the first time on appeal, Daniel contends the DVRO was issued for an excessive period, the full five years allowed by statute. (§ 6345, subd. (a).) However, this issue was not preserved for appeal and the ruling was within the court's authority. At the hearings, Daniel did not raise any objection to the proposed duration of the DVRO.
Overall, the testimony and declarations disclose that in January 2016, Daniel engaged in several types of activity that a court could reasonably find would fall within the enjoinable conduct described in section 6320 (e.g. "threatening . . . harassing . . . or disturbing the peace of the other party"). According to Rachael's testimony, Daniel attempted to gain entry to the family home, of which Rachael had court-ordered exclusive use, and, on multiple occasions, he called her names and yelled at her during their minor children's school events. There is evidence that Daniel sent threatening and hostile text messages to Rachael. He conceded that he did engage in this activity, with the explanation that he was angry at Rachael for keeping his children from him. It was reasonable, on these facts, for the family court to conclude Daniel threatened, harassed and disturbed the mental or emotional calm of Rachael within the meaning of section 6320.
At the end of the first day of testimony, Judge Washington stated:
"[The photo of Daniel and the boys] is concerning to the court . . . and the question that I face today is, is [violating a court order to have no contact with the children at events] enough by itself to grant the restraining order? Because it demonstrates to me either an unwillingness on behalf of Mr. Hulse, or . . . a lack of capacity on his behalf to control his behavior. Either one concerns me. [¶] . . . [G]iven the photo that I received . . . that seems to be some compelling evidence to me that would justify the need for a restraining order because it justifies to me that you didn't understand what was going on. [¶] . . . [¶] . . . My impression is that I made some orders just a couple weeks ago . . . and it appears [Mr. Hulse] wasn't able to follow those. [¶] And so it suggests to me that that violation itself is enough for me to say I need to have more strict
guidelines in the nature of a domestic violence restraining order because he can't control himself consistent with the court orders otherwise."
After hearing further testimony by Rachael and Daniel on July 6, 2016, Judge Washington made the following statement to Daniel to explain his rationale in granting the DVRO:
"I understand that you were upset back in January. And as you're probably aware, my decision is based on what happened back then, not what your feelings are today. [¶] . . . [¶] . . . This is about recognizing what your conduct was back in January. What you admitted, what you said is, 'I know my behavior was wrong.' " (Italics added).
On appeal, Daniel's arguments rely on Judge Washington's first statement at the hearing on June 22, 2016, but without considering the explanation of his decision as given on July 6, 2016. Contrary to Daniel's assertion that a single June 2016 incident occurred, the record shows the family court relied primarily on a finding that Daniel had harassed and disturbed the peace of Rachael within the meaning of section 6320, beginning in January 2016. To the extent Daniel claims the DVRO was sought purely for tactical reasons to disadvantage him on child custody issues, he cannot find support in the record for such an assertion. On this record, we conclude the family court did not abuse its discretion in issuing injunctive relief.
DISPOSITION
The order is affirmed. Each party shall bear its own costs.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
HALLER, J.