Opinion
F082024
12-12-2022
In re the Marriage of LEIGH ANN and OSCAR NERI, SR. v. OSCAR NERI, SR., Appellant. LEIGH ANN NERI, Respondent,
McCormick, Barstow, Sheppard, Wayte &Carruth, Todd W. Baxter for Appellant. Brungess and Kezirian, Teri Ann Kezirian for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Madera County. No. MFL014564, D. Lynn Collet, Judge.
McCormick, Barstow, Sheppard, Wayte &Carruth, Todd W. Baxter for Appellant.
Brungess and Kezirian, Teri Ann Kezirian for Respondent.
OPINION
SNAUFFER, J.
Appellant Oscar Neri, Sr. appeals after the trial court issued a three-year restraining order under the Domestic Violence Prevention Act ("DVPA"). (See Fam. Code, § 6200 et seq.) The restraining order contains personal conduct and stay-away orders protecting Leigh Ann Neri. Oscar contends the trial court abused its discretion by issuing the restraining order because there was insufficient evidence he committed "abuse" (§§ 6203, 6300). We affirm.
All further statutory references are to the Family Code.
We use Oscar and Leigh Ann's first names because they have the same last name. No disrespect is intended.
FACTS
I. Request for domestic violence restraining order
Oscar and Leigh Ann were married in October 2009 and separated in May 2018. Leigh Ann filed a petition for divorce in June 2018. Her petition listed one minor child, B., born in 2011. B. is Oscar and Leigh Ann's son. Oscar responded to the petition in September 2018.
On December 4, 2018, Leigh Ann filed a request for a domestic violence restraining order ("DVRO"). She requested that she and her brother, R.M., who was living with her, be protected from Oscar. She listed December 2, 2018, as the most recent date of abuse. She alleged that on December 1, 2018, Oscar had left B. in the care of a 17-year-old babysitter at his home. Leigh Ann went to Oscar's home while the babysitter was there and took B. back to her home, and Oscar became very angry when he found out.
The next day, December 2, 2018, Oscar allegedly forced his way into Leigh Ann's home, pushed Leigh Ann's brother, and yelled, "I'm going to kill that bitch!" Leigh Ann was not there. Oscar allegedly destroyed her Christmas decorations, tore down lights, and smashed statues. Leigh Ann submitted photographs of the damage. Oscar also removed guns and ammunition from the house. Leigh Ann described her injuries from the incident as emotional distress. She stated she was very afraid Oscar would harm her and that she had since been hiding with family. She also said she was afraid for her brother's safety.
Leigh Ann's DVRO request also alleged other abuse on May 10, 2017, while Oscar and Leigh Ann were in a hotel room in Chicago. Leigh Ann alleged Oscar was drunk and talking loudly on the phone at 1:00 a.m., and Leigh Ann asked him to quiet down so she could sleep. Oscar got on top of her and punched her in the face and yelled, "Shut up!" Leigh Ann also included a 2012 incident. Leigh Ann alleged that Oscar was drunk, and that she asked him to stop drinking and come to bed. Oscar allegedly told her to "fuck off" and threw a bottle at her. Oscar was arrested and Leigh Ann was granted an emergency protective order.
The DVRO request included a request for a temporary child custody and visitation order. She requested the court grant her sole custody of B. and limit Oscar's contact with B. to supervised agency visits until he has shown he has controlled his anger and drinking problem.
II. Temporary restraining order issued
On December 5, 2018, the court issued a temporary restraining order ("TRO") and set a hearing for December 18, 2018. The TRO stated Oscar was not to do any of the following to Leigh Ann or R.M.: "[h]arass, attack, strike, threaten, assault [...], hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate [.], or block movements." Oscar was also not to contact Leigh Ann or R.M. or come within 100 yards of them, their houses, or their vehicles. The court also temporarily granted full custody of B. to Leigh Ann and limited Oscar's contact with B. to supervised agency visits three times a week.
The December 18, 2018, hearing date was continued to December 19, 2018. On December 19, Oscar filed a response to Leigh Ann's DVRO request. He disagreed with the requested DVRO and with the requested child custody and visitation order. He requested the court order 50/50 joint legal and physical custody of B.
On January 10, 2019, the court modified the TRO and child custody and visitation order to allow "[b]rief and peaceful contact with [Leigh Ann and B.] as required for court-ordered visitation of children[.]" However, any brief and peaceful communication between Leigh Ann and Oscar was to occur through the Our Family Wizard platform. Oscar was also allowed to have reasonable telephone contact with B.
After additional continuances, the parties stipulated on January 17, 2019, to continue the hearing to December 5, 2019. The court issued an order based on the stipulation. The order stated that the TRO issued on January 10, 2019, would remain in effect until December 5, 2019, and would automatically terminate on that date unless Leigh Ann filed "a list of violations" at least 15 days before. The order reflected the parties' stipulation that any alleged violations "must have occurred no earlier than January 17, 2019."
III. Modification of child custody and visitation order
On March 26, 2019, Leigh Ann sought a change to the child custody and visitation order due to Oscar's March 19, 2019, arrest for public intoxication while B. was in his care. Oscar filed a responsive declaration accepting responsibility for the incident and informing the court he has sought counseling and treatment. Following an April 24, 2019, hearing, the trial court issued an order requiring Oscar to continue counseling and treatment for co-parenting issues, anger management issues, and alcohol and substance abuse issues. Oscar submitted a declaration in compliance with the court's order in June 2019. After a September 24, 2019, hearing, the court allowed Oscar unsupervised visits with B.
IV. Leigh Ann's renewed request for a DVRO
On November 15, 2019, Leigh Ann filed a declaration with the trial court requesting a permanent DVRO. She stated she remains fearful for her safety without a restraining order. She alleged Oscar violated the TRO by sending her "harassing and insulting" messages. She said she does not see how she can be safe from harassment and insults so long as there remains litigation over support, property division, and custody and visitation. She detailed many alleged violations of the TRO:
1. On February 5, 2019, Oscar sent Leigh Ann an "insulting and aggressive" message on Our Family Wizard about who is allowed to pick B. up. A copy of the message was attached to the declaration.
2. Also on February 5, 2019, Oscar blind copied Leigh Ann on an email to B.'s teacher where he blamed Leigh Ann for B.'s trouble at school. She reported the incident to law enforcement. A copy of the email was attached to the declaration.
3. On March 25, 2019, Oscar was "extremely angry and aggressive" in a joint mediation session where he yelled at and insulted Leigh Ann. His yelling made Leigh Ann extremely anxious and fearful that he would hurt her.
4. In April and May 2019, Oscar sent two checks to Leigh Ann for child and spousal support and wrote on the memo line, "Child Support and Lazy Mom Fee." She reported the second instance to law enforcement. Copies of the checks were attached to the declaration.
5. On April 24, 2019, before a hearing where Oscar knew the proposal for custody and visitation was not going to be what he wanted, he sent a message to Leigh Ann on Our Family Wizard that violated the restraining order. A copy of the message was attached to the declaration.
6. On July 9, 2019, Oscar raised his voice in court and stormed out of the courtroom. On his way out he shouted at Leigh Ann, "Let me know when I can have my son back." Leigh Ann was scared and did not spend the night at her house. Later that night, Oscar insulted Leigh Ann to B. on the phone, telling B. that Leigh Ann did not want Oscar to see him.
7. Leigh Ann did not allow any more telephone calls between Oscar and B. after the July 9, 2019, phone call. On August 8, 2019, Oscar sent a message on Our Family Wizard calling her a "horrible mother" for not allowing phone calls. A copy of the message was attached to the declaration.
A hearing was set for December 5, 2019, but was continued to January 9, 2020. In mid-December 2019, the parties stipulated to an exception to the TRO for B.'s baptism and winter performance. Oscar was to stay 25 feet away from Leigh Ann at the baptism and sit in one of two specified areas of the church. Oscar was also to stay 25 feet away from Leigh Ann at the winter performance.
Oscar responded to Leigh Ann's request for the issuance of a DVRO and Leigh Ann filed a reply. The hearing was continued to March 3, 2020.
V. The DVRO evidentiary hearing
The evidentiary hearing took place over three days-March 3, 2020, July 30, 2020, and September 18, 2020. Despite the parties' stipulation that only conduct on or after January 17, 2019, would be considered, the parties presented much evidence of alleged acts before January 17, 2019. But because the court made clear it was not considering such acts, we will not summarize them.
1. The marriage
Oscar and Leigh Ann were together for about 10 years and married for more than eight. They had one child together, B., and Oscar had two older children from a prior marriage. His daughter, J., was born in 2000, and his first son was born in 1998.
Oscar described his marriage as having ups and downs. He stated they traveled the world together and enjoyed drinking. He cheated on her once, but after they went to counseling he believed their marriage improved. He stated he and Leigh Ann joked around a lot and teased each other. He considers himself a jokester. He said people call him a "teddy bear," but he also said he is loud, has a "big mouth," and is very blunt and honest.
Alcohol was a big part of Oscar and Leigh Ann's relationship. They often drank to the point of drunkenness. They got sober for about two-and-a-half years before they began drinking again. Oscar said the police had to be called to the house one time because Leigh Ann was intoxicated and aggressive, but Leigh Ann denied this happened. Oscar acknowledged he was charged in 2012 with assault for throwing a beer bottle at Leigh Ann.
2. February 5, 2019, message exchange regarding drop-off
On February 5, 2019, Oscar and Leigh Ann had a message exchange on Our Family Wizard about dropping B. off at Oscar's house. That day, B. was supposed to be dropped off at Oscar's house. Oscar was running late from business meetings, but Oscar's adult daughter, J., was at Oscar's house and ready to receive B. B.'s nanny, Becki, did not want to drop B. off because Oscar was not there. According to Oscar, Becki did not want to drop B. off because she does not like J.
Later that day, Leigh Ann sent Oscar a message on Our Family Wizard informing Oscar that his daughter was "very rude" to Becki and swore at her in front of B. Leigh Ann said that she thinks J.'s behavior scared B. and that she was bringing the incident to Oscar's attention so he can "smooth things out" for B. She closed by saying, "Be gentle and kind. [B.] needs that from you right now."
Oscar responded later on Our Family Wizard:
"It's all your fault. You not allowing Becki to drop off [B.] started all of this. You don't realize that it's 100% your fault. I don't believe [J.] did anything wrong but I will ask her. Becki was very rude and [threw] her phone at her or at the floor[.] [T]hat was super rude. The court order paper you sent me is [an] OLD one that means nothing right now. The new one is not even approve by me or my lawyer. Again you need to know that at times I will need someone to watch him for a little bit. You are the one hurting [B.] I just want the best for him and you are being SUPER hard to deal with. The new court paperwork had no restrictions on who can pick him up."
Leigh Ann testified she felt she was being attacked in this message.
3. February 5, 2019, email exchange with B.'s teacher
Also on February 5, 2019, B.'s teacher emailed Oscar and Leigh Ann regarding concerns she had with B. Oscar responded to the email stating that he was willing to do anything to help B., and that he thinks B. is having a hard time with the new "weird schedule that Leigh Ann made."
Leigh Ann claimed she was blind copied with Oscar's response to B.'s teacher, which she said was a violation of the TRO. She said she was to be copied (not blind copied) with the response. She reported the alleged violation to law enforcement. But Oscar's records showed Leigh Ann was copied, not blind copied, on the email. Oscar said he was not attacking Leigh Ann in his email response to B.'s teacher.
4. The March 25, 2019, mediation session
On March 25, 2019, Oscar and Leigh Ann had a second joint mediation session about child custody and visitation with Kevin Pranger, a Child Custody Recommending Counselor Investigator for Madera County Superior Court. Oscar and Leigh Ann reached an agreement during the first mediation and were referred back to discuss whether Oscar "should be present during visits."
It is clear from context that the purpose of the second mediation was to address whether Oscar needed to be present at all times when B. visited him, or if Oscar could ever have someone else watch B. for some time when B. comes to visit.
Pranger testified he could not recall any problems during the first mediation. But at the beginning of the second session, Leigh Ann expressed apprehension about participating in joint mediation. Pranger told the parties up front he would end the session if the situation appeared "lopsided" or if somebody was being intimidated.
Oscar and Leigh Ann sat three feet away from each other in the second session. According to Pranger, Oscar was "really out of control." Oscar became very angry and raised his voice several times. Leigh Ann described Oscar's behavior as aggressive. The first time Oscar raised his voice was when questioned about his drinking and his arrest with B. present. Oscar called Leigh Ann a liar, saying she could not prove he was arrested. When Leigh Ann produced a paper documenting Oscar's release from jail, Oscar became angry and said, "You're not allowed to bring anything. How come she has stuff?" Pranger tried several times to get Oscar to stop raising his voice. Oscar would temporarily lower his voice but then raise it again when a new upsetting subject came up.
Oscar's raised voice turned to yelling, which frightened Leigh Ann. Oscar yelled when calling Leigh Ann a liar and yelled that she was trying to hurt B. Pranger said the yelling caused a look of fear in Leigh Ann's face; her eyes widened, and she began to cower and cry. Her head sank into her shoulders and she "shrank away" from Oscar. Her body began to move away from Oscar. Oscar did not change his behavior in response to her crying.
When Pranger asked Oscar about his damaging the Christmas decorations, Oscar yelled at Leigh Ann and Pranger and said the decorations were his to destroy. Leigh Ann became afraid and began crying. Pranger ended the session that moment because Oscar became "really, quite out of control." Leigh Ann testified she became afraid Oscar would retaliate against her later. Leigh Ann told Pranger she had a restraining order and did not have to be exposed to Oscar's conduct and asked if she had to sit there any longer and Pranger said she did not.
Leigh Ann testified Oscar was "glaring" and "scowling" at her, calling her a liar, and raising his voice during the mediation. She also testified he spoke over her, interrupted her, and laughed at her. She said he was "clearly mocking" her.
Pranger testified that out of 700 mediations he had conducted, he had stopped "maybe five" because of a party's behavior. He described Oscar as being out of control the whole session. He recommended that the parties not participate in any more joint mediation sessions. He testified Leigh Ann was exposed to a "very concerning" level of intimidation in the second mediation session. He told Leigh Ann he agreed with her that there should be no more joint mediation sessions.
Pranger recommended in his report after the second mediation session that Oscar participate in an anger management program. This recommendation was based on Oscar admitting destroying the Christmas decorations, which Pranger said by itself was "disturbing and concerning behavior," and his "really out of control" behavior in the session.
Pranger testified that Oscar did not call Leigh Ann any names during the session, did not try to get closer to Leigh Ann, and did not stand up or make any aggressive movements toward Leigh Ann or Pranger. Pranger also acknowledged that some people are louder than others and that Oscar's "elevated voice" may have been his "talking voice."
Oscar testified that he may have raised his voice but that he did not think he was yelling at anyone. He said he got "very excited" and "passionate" because the issues pertained to his son.
5. Memo reference on support checks
In March and April 2019, Oscar sent two support checks in which he wrote in the memo section, "Child Support and Lazy Mom fee." Leigh testified she felt "attacked" and "bad," and did not find it funny. She reported the second instance to law enforcement.
Oscar usually put in the memo section "child support and alimony" so his CPA would know what the check was for. He admitted putting "lazy mom fee," but said it was a joke and said he quit doing it when he learned it bothered Leigh Ann. He never sent another check with "lazy mom fee" written in the memo section.
6. April 24, 2019, message
Leigh Ann received a message through Our Family Wizard on April 24, 2019, at 12:27 p.m. Oscar asked Leigh Ann to not go through the trial court and to let him have unsupervised visitation with B. There was a court hearing that day at 1:30 p.m. about custody and visitation. The message read in part, ".. please don't let the judge decide what's best for our son if you have a heart and you know that [B.] means the world to me please I'm begging you let me have him unsupervised at least every other weekend." Leigh Ann testified the message made her feel bad given that she was trying to do what was best for and protect B.
7. July 9, 2019, court appearance and phone call
Leigh Ann testified Oscar stormed out of court after a hearing on July 9, 2019, and said to her, "Let me know when I can have my son back." She feared retaliation and spent that night with B. at a friend's house. Leigh Ann said, however, that Oscar said nothing threatening that day and did not call her names. Leigh Ann also clarified that Oscar said those words to her when everyone was walking toward the door, and that Oscar walked past her, her attorney, and his own attorney.
Later that day, Oscar told B. on the phone, "Your mom just doesn't want you to see me." Leigh Ann heard that and felt bad for B. because it was confusing for B. She was also scared because Oscar was angry. Leigh Ann and Oscar did not speak on the phone that day.
8. August 7, 2019, message exchange; June 22, 2020, message; and August 20, 2020, message
On August 7, 2019, Oscar messaged Leigh Ann on Our Family Wizard asking, "Are you going to let [B.] download Skype? So he can video call me?" Leigh Ann responded, "This issue can be addressed in court. The phone calls need to be supervised by a third party. As I emailed before, contact Rena at Jim Miller's office to arrange for phone calls." Oscar replied, "You are a horrible mother not allowing me to talk to my son. You have change so much I don't understand why you hate me [s]o much." Oscar admitted calling her a horrible mother but said he was not trying to insult her; instead, he was just giving his opinion to her. Leigh Ann reported the message to law enforcement.
On June 22, 2020, Oscar sent another message to Leigh Ann: "You are a horrible person for not allowing [B.] to see me he's the one that wants to what's the big deal you're such a unreasonable person."
On August 20, 2020, Oscar sent a message to Leigh Ann: "Are you stupid, or you don't know how to read? Because I clearly told you that I can't see him this Thursday and he just called me. And you make me feel and look really bad in front of [B.]." Oscar testified he did not mean to insult her in this message and was not actually calling her stupid; he was instead just asking her a question.
9. November 6, 2019, message exchange regarding B.'s baptism
On November 6, 2019, Oscar and Leigh Ann exchanged messages relating to B. being baptized. Leigh Ann testified that before separation they had discussed that B. would get baptized when he was older and if he decided he wanted to. Oscar testified he and Leigh Ann never believed in church and never attended. Leigh Ann testified she started attending church following her separation from Oscar.
During the message exchange regarding the baptism subject, Oscar messaged, "I'm still in shock that you even go to church. You were ALWAYS SO against church. Don't understand how you can change so fast from hating church to now loving it lol. Doesn't make sense to me but of course I respect anyone decision about religions..." Leigh Ann testified this was an insulting attack on her religious beliefs. Leigh Ann replied to the message that "[t]hese conversations need to remain peaceful and you are attacking me. Please consider [B.'s] wishes and we can bring it up in court." Oscar responded apologizing but added that it was impossible for her to have a normal conversation.
10. B.'s baptism
Before the baptism, the parties agreed to an exception to the TRO so that Oscar could attend. The parties agreed Oscar would sit in one of two specified sections of the church and would stay at least 25 feet away from Leigh Ann. Leigh Ann testified that Oscar sat in the wrong section of the church and was about 15 feet away from her. Oscar testified he had never been to the church and was thus unfamiliar with the layout, and in any event stated he remained 25 feet away from Leigh Ann at all times.
11. Alleged Facebook "friend" request
After the TRO was issued, Leigh Ann blocked Oscar from all social media. Still, Leigh Ann alleged during her testimony that Oscar sent her a "friend" request on Facebook ahead of the March 3, 2020, hearing. She identified a screenshot of a friend request she had received allegedly from Oscar. She testified she clicked the link provided and found that the suspect account had been created under Oscar's name. She said she felt she was being stalked but admitted she did not know if Oscar had created the account or sent the friend request.
Oscar testified he does not follow Leigh Ann on any social media and denied creating the suspect Facebook account and sending the friend request. He said he had no access to the suspect account. He disputed the account with Facebook and asked his assistant to report the account as a fake profile. He believed Facebook deactivated the account.
VI. Trial court's decision
The court stated its decision orally on the record on September 18, 2020. The court began by affirming it was not looking back to any alleged acts before January 17, 2019. The court found the acts at issue came down to: (1) the February 5, 2019 Our Family Wizard message about drop-off; (2) the blind copy on the email to B.'s teacher; (3) the second mediation session on March 25, 2019; (4) the "lazy mom fee" memo on the support checks; (5) the April 24, 2019, message sent before a court hearing; (6) the July 9, 2019, incident in the courtroom; (7) the August 8, 2019, message in which Oscar called Leigh Ann a "horrible mother;" (8) the baptism ceremony; and (9) the Facebook friend request.
The court stated the evidence could not prove the allegations related to the alleged blind copy on the email to the teacher, the baptism ceremony, or the alleged Facebook friend request.
The court found the "lazy mom fee" phrase was put on two support checks and found the two instances each "potentially[ ] disturbed [Leigh Ann]." The court next addressed the second mediation session on March 25, 2019, stating that it also stood out to the court. The court noted that Oscar claimed he did not yell during the mediation, but also noted that Oscar has gotten "a bit loud at times" in the courtroom and has even stormed out of the courtroom in July. The court said it did not think Oscar realizes "how big and intimidating and loud he really is." The court continued:
"Mr. Neri, I don't think you understand, you physically are an intimidating individual, okay? It's not like you're, you know, five-foot and a hundred pounds, okay? You're a big guy, all right?
"And you are a businessman, and you are used to getting your way.
You're a successful businessman, okay? You have lots of people that work for you, and when you say what you want done, they do it, okay? And that makes you a success in the business world, but that's not necessarily how we can deal with this.
"So from my seeing, when you are told something that you don't like, you become defensive and you change your tact. And, basically, I'm going to call you a bully, okay? You start getting louder and you start, kind of, puffing up and getting bigger. You may be a teddy bear at times, but when you're challenged, you're not a teddy bear, all right? You become excited. You get louder."
The court noted Leigh Ann's testimony that Oscar was glaring, scowling, calling Leigh Ann a liar, laughing at things she said, and mocking her during the mediation. The court also noted Pranger tried several times to get Oscar to stop raising his voice before Oscar began yelling and Pranger stopped the mediation. The court noted that during the mediation Leigh Ann looked scared, cried, cowered her head, and shrank away from Oscar. Her eyes also widened and had tears. The court also noted that on the previous court date, Leigh Ann shifted in her seat and became visibly uncomfortable when Oscar walked past her, which aligns with what the mediator described from the mediation.
The court found by a preponderance of the evidence that Leigh Ann's "peace was disturbed" during the March 19, 2019, mediation and by the two "lazy mom fee" references on the support checks, and stated it would issue a DVRO.
Afterward, the following colloquy took place:
"THE COURT: Here's the other part. I'm sorry. I left this part out. I apologize.
"So Mr. Neri testified when-during his testimony, that Ms. Neri and [Pranger], basically, were calling him horrible, and then he called Ms. Neri horrible on Our Family Wizard twice. He testified that he felt
"What was the phrase? Excuse me. "He felt insulted-I believe was the phrase that he used-by that. And yet, he felt insulted, but then he did it to her. "So sir, you know, you need to be considerate of the other party.
And I understand that you guys may have had a relationship that you felt you guys can joke around, like the 'lazy mom fee' and 'horrible person,' not to mention the 'are you stupid,' okay?
"MR. NERI: I'm not changing the way I am.
"THE COURT: Sir, I'm telling you, you may want to
"MR. NERI: You can tell me whatever you want. I will not change.
"THE COURT: All right. Sir, I am making my ruling, so if you don't want to hear it, you can leave, all right?
"MR. NERI: Do whatever you want.
"THE COURT: I am giving my
"All right. For the record, Mr. Neri is walking out at this point."
The court went on to state the terms of the DVRO, which contained personal conduct and stay-away orders substantially similar to those of the TRO. When finished stating the terms, the court said both parties were at the hearing, so no other proof of service was needed. The court hoped that Oscar would reconsider his refusal to change and said that it knew Oscar's counsel would speak with Oscar. The court added that Oscar had walked out of court in the past and came back once he had calmed down.
DISCUSSION
Oscar contends the trial court abused its discretion in granting Leigh Ann's request for a DVRO because substantial evidence does not support the court's findings that his conduct during the second mediation session on March 25, 2019, and the two "lazy mom fee" references on two support checks constitute abuse under the DVPA. He also contends that his conduct during the mediation session cannot be considered abuse "as a matter of law." We reject his arguments.
I. Basic legal principles
"The purpose of [the DVPA] is 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." (§ 6220.) To accomplish its purpose of preventing acts of domestic violence, the DVPA should be construed broadly. (In re Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106, 115; N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602 (N.T.); In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498 (Nadkarni).)
To effectuate this purpose, trial courts may issue a restraining order based on "reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a).) "The DVPA requires a showing of past abuse by a preponderance of the evidence." (In re Marriage of Davila &Mejia (2018) 29 Cal.App.5th 220, 226.)
" 'Domestic violence'" is defined as "abuse" perpetrated against a person in one of the relationships covered by the statute, such as a spouse or former spouse. (§ 6211.) In turn," 'abuse'" occurs if the perpetrator "intentionally or recklessly cause[s] or attempt[s] to cause bodily injury"; "place[s] a person in reasonable apprehension of imminent serious bodily injury to that person or to another"; or "engage[s] in any behavior that has been or could be enjoined pursuant to Section 6320 ." (§ 6203, subds. (a)(1), (a)(3)-(4), emphasis added.) Section 6203, subdivision (a)(4)'s, reference to "behavior that has been ... enjoined under Section 6320," means that a violation of a TRO is "abuse" for purposes of the DVPA. (N.T., supra, 34 Cal.App.5th at pp. 597, 602.) "Abuse is not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).)
Under section 6320, trial courts may issue ex parte orders "enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, ... harassing, telephoning, ... 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 ..." (See § 6340 [order after notice and hearing].) The phrase" 'disturbing the peace of the other party'" has been interpreted to mean "conduct that destroys the mental or emotional calm of the other party." (Nadkarni, supra, 173 Cal.App.4th at p. 1497.) "Annoying and harassing an individual is protected in the same way as physical abuse." (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.)
In 2020, the Legislature incorporated this definition into the DVPA. Section 6320, subdivision (c) now provides that" 'disturbing the peace of the other party' refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means .." The statute also gives examples of such conduct. (§ 6320, subd. (c)(1)-(5).)
We review an order granting a restraining order under the DVPA for abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420; Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850 [granting or denying permanent or preliminary injunctive relief rests in the sound discretion of the trial court].) In reviewing the evidence supporting such an order, "the reviewing court must apply the 'substantial evidence standard of review,' meaning' "whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted," supporting the trial court's finding. [Citation.] "We must accept as true all evidence ... tending to establish the correctness of the trial court's findings ..., resolving every conflict in favor of the judgment." '" (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143 (Burquet).)
II. Law and analysis A. Reasonable apprehension of future abuse
At the outset, we address Oscar's contention that the trial court could not issue the DVRO here without finding Leigh Ann has a reasonable apprehension of future abuse. He is incorrect.
In his opening brief, Oscar cites Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie), for the proposition that a reasonable apprehension of future abuse is required for the renewal of a DVRO. In doing so, he impliedly asserts his case involves the renewal of a DVRO. Oscar is correct that a reasonable apprehension of future abuse is required for the renewal of a DVRO (Ritchie, at p. 1290), but this case does not involve the renewal of a DVRO; it involves the issuance of a DVRO in the first instance (after the termination of a TRO). Thus, no finding of a reasonable apprehension of future abuse was required to issue the DVRO.
In Ritchie, the trial court issued a three-year DVRO after an evidentiary hearing where both parties presented evidence. (Ritchie, supra, 115 Cal.App.4th at p. 1280.) While not expressly stated in the appellate opinion, it is obvious the three-year DVRO was issued under section 6345, which is titled, "Orders Issuable After Notice and Hearing." Section 6345, subdivision (a), begins: "In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years[.]" No TRO was issued before the DVRO.
Section 6345, subdivision (a), reads in full: "In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article 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. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of further abuse since the issuance of the original order, 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. The request for renewal may be brought at any time within the three months before the expiration of the orders."
Three years later, the protected party filed a request that the DVRO "be made permanent[] pursuant to section 6345." (Ritchie, supra, 115 Cal.App.4th at p. 1280.) Subdivision (a) of section 6345 provides that "the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing ... may be renewed ... either for five years or permanently, without a showing of further abuse since the issuance of the original order ..." (Emphasis added.) The trial court granted the request after a hearing. (Ritchie, at p. 1281.) The question of first impression on appeal was whether renewal of a DVRO under section 6345 requires a finding that there is a "reasonable apprehension of future abuse." (Id. at p. 1283.) The court held that a DVRO may be renewed under that statute only if the court finds by a preponderance of the evidence the protected party "entertains a 'reasonable apprehension' of future abuse." (Id. at p. 1290.)
Here, Leigh Ann was not seeking to renew a DVRO under section 6345; she was seeking the issuance of a DVRO in the first instance. Indeed, no DVRO had ever been issued, only a TRO, which was not issued after a hearing under section 6345. Therefore, the "reasonable apprehension of future abuse" requirement created in Ritchie, which only applies to renewals of DVROs under section 6345, does not apply here.
Oscar tries to widen the scope of his contention in his reply brief, claiming that the "reasonable apprehension of future abuse" requirement applies not just to DVRO renewals, but to initial issuances of the same. But the foregoing discussion shows this is incorrect.
B. The mediation session
We first address the trial court's finding that Oscar's conduct during the second mediation session disturbed Leigh Ann's peace and thus constituted abuse under the DVPA. We conclude substantial evidence supported the court's finding that Oscar's conduct disturbed Leigh Ann's peace, which is to say it destroyed Leigh Ann's mental or emotional calm. (N.T., supra, 34 Cal.App.5th at pp. 597, 602; § 6320, subd. (c).) We will then address Oscar's contention that his conduct during the mediation did not warrant issuing the DVRO "as a matter of law." We disagree with the contention.
First, the evidence established that Oscar's behavior in the mediation was "really out of control" and that Leigh Ann was exposed to a" 'very concerning' level of intimidation." Oscar yelled, glared, and scowled at Leigh Ann, called her a liar, spoke over and interrupted her, laughed at her, and mocked her. Oscar yelled when calling Leigh Ann a liar and accusing her of trying to hurt B. The mediator tried unsuccessfully to calm Oscar down and had to end the session prematurely, something he had done about five times out of 700 mediation sessions. After the session, the mediator recommended anger management for Oscar.
As for the effect on Leigh Ann, the evidence established she was frightened and intimidated. She cried, and when Oscar yelled, her eyes widened, she cowered, her head sank into her shoulders, and she "shrank away" from him. Oscar did not change his behavior in response to Leigh Ann's distress. Leigh Ann was afraid Oscar would retaliate later. So great was the abuse that she told the mediator she had a restraining order and did not have to be exposed to Oscar's conduct and asked if she had to sit there any longer. The mediator ended the session and agreed with her there should be no more joint mediation sessions. Leigh Ann evidently no longer felt safe being close to Oscar after this session. These facts must also be considered in the context that a TRO was in place at the time. Admittedly, Leigh Ann agreed to the joint mediation session, so Oscar's presence at the session cannot by itself be considered a violation of the TRO. But the fact that a TRO existed that prohibited Oscar from disturbing Leigh Ann's peace makes his conduct during the session all the more egregious.
The evidence easily supports a finding that Leigh Ann was more than just upset during the mediation session; it supports a finding that her mental and emotional calm was destroyed during the session. We therefore conclude the trial court's finding that Oscar abused Leigh Ann during the mediation session by disturbing her peace was supported by substantial evidence.
Oscar does not challenge any of the court's findings or evidence relating to his conduct in the mediation or to its effect on Leigh Ann. Instead, he argues that his conduct was insufficient as a matter of law to establish disturbing the peace of another. He contends that, irrespective of the substantial evidence that Leigh Ann's mental or emotional calm was destroyed, his specific conduct cannot be considered an act of abuse. Another way to put it would be that Oscar's conduct was not severe enough in the abstract and therefore cannot be considered abuse, no matter how much the conduct affected Leigh Ann.
Oscar cites a string of cases in support of his assertion: Nadkarni, supra, 173 Cal.App.4th 1483; Burquet, supra, 223 Cal.App.4th 1140; In re Marriage of Evilsizor &Sweeney (2015) 237 Cal.App.4th 1416 (Evilsizor); and Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816 (Rodriguez). Each of these cases involved abuse within the DVPA based on disturbing the peace of another. In each, the Court of Appeal either affirmed the grant of a DVRO or reversed the denial of a DVRO.
Oscar argues the abusive conduct in each of the cases he cites was more severe than his. His argument implies that the cited cases, considered together, establish a threshold level of severity of abuse to which his conduct does not rise, and therefore his conduct cannot be considered abuse within the DVPA, as a matter of law. We will summarize each of these four cases. As we will show, each case indeed involved more severe abuse than there was here, but that does not control this case's outcome. Rather, the important point is that in each of the four cases, there was substantial evidence to support a finding the protected party's peace was disturbed by the restrained party's conduct. The appellate courts' holdings turned not on the severity of the abusive acts, but on the fact that substantial evidence supported findings that the abusive acts destroyed the peace of protected parties.
In Nadkarni, supra, 173 Cal.App.4th 1483, the ex-husband secretly accessed his ex-wife's private email account over the course of several months, and then used the emails he discovered to ruin her business and her personal relationships and compromise her attorney-client privilege. (Id. at pp. 1488-1490.) He also left semi-threatening messages with her friends saying he knew her schedule and where she would be. (Id. at p. 1490.) She feared his access to her email would compromise her safety by informing him of calendared events at which he could confront and attack her. (Ibid.) She said he had repeatedly and viciously beaten her during their marriage. (Ibid.)
The Court of Appeal held that the ex-wife's allegations, if proven, could support a DVRO and the trial court erred in denying her a hearing on the merits. (Nadkarni, supra, 173 Cal.App.4th at pp. 1498-1499.) The court interpreted the phrase "disturbing the peace" as used in the DVPA to mean "conduct that destroys the mental or emotional calm of the other party," and found that a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by sharing, reading, and publicly disclosing her confidential emails could qualify as "disturbing the peace" within the meaning of the statute. (Id. at pp. 1497-1498.) The court noted that the ex-wife alleged that the exhusband's conduct related to the email account caused her to fear for her safety and destroyed her mental or emotional calm. (Id. at pp. 1498-1499.) The court found that these allegations, if true, would constitute "disturbing the peace of the other party" and would thus be considered abuse within the meaning of the DVPA. (Id. at p. 1499.)
Burquet, supra, 223 Cal.App.4th 1140, involved the respondent refusing to accept the petitioner's termination of their relationship or heed her requests that he stop contacting her. (Id. at p. 1142.) He continued to contact her, and his communications were inappropriate and contained sexual innuendos. (Ibid.) She constantly turned him down and requested he stop and each time he would get angry. (Ibid.) He kept sending her texts and emails. (Ibid.) He once came to her residence uninvited and became angry when she asked him to leave. (Ibid.) She was afraid of what he would do and told him she was scared and asked him to leave. (Ibid.) She threatened to call the police and he said he wanted to see her do that. (Id. at p. 1142-1143.) He left before police arrived. (Id. at p. 1143.)
The Court of Appeal sustained the grant of a DVRO. (Burquet, supra, 223 Cal.App.4th at pp. 1143, 1147.) The court found the record contained sufficient evidence that respondent's behavior disturbed petitioner's peace, constituting an act of "abuse" under the DVPA. (Id. at pp. 1144, 1147.)
In Evilsizor, supra, 237 Cal.App.4th 1416, the husband used special software to surreptitiously access the wife's phone. (Id. at p. 1420.) He downloaded "tens of thousands" of text messages and notes, including attorney-client communications and her personal diary, accessed her social media account and redirected her messages to his own email account, and after collecting this private information, attached the wife's emails to his public filings in a divorce proceeding and threatened to reveal her private messages publicly. (Id. at pp. 1420-1421.)
The wife testified it had been" 'incredibly incredibly difficult to deal with' the dissemination of her personal information, stating, 'I have sleepless nights. I'm sick to my stomach. My friends are mad at me, embarrassed as if I let him. I didn't know he was even doing any of this. My parents are upset, you know. Why did I marry him? I didn't know that things were going-I didn't know. Yeah. It's been incredibly challenging to live with.'" (Evilsizor, supra, 237 Cal.App.4th at p. 1423.) She also testified she had suffered shock and embarrassment and fear for her safety because of the disclosure. (Id. at p. 1423.) She was also concerned about the husband's threats to reveal information to the Internal Revenue Service about "things she didn't do." (Ibid.) The Court of Appeal upheld the grant of the DVRO, finding the record revealed sufficient evidence to conclude the court's order was not an abuse of discretion. (Id. at pp. 1426- 1427.)
In Rodriguez, supra, 243 Cal.App.4th 816, an ex-girlfriend requested a DVRO because, throughout their relationship and on top of being physically abusive, her exboyfriend was controlling. He monitored her closely throughout the day, forcing her to keep phone calls open when she was in college classes so he could monitor whether she was talking with others, and isolating her from others. (Id. at pp. 818-819, 822.) He also played with a knife close to her face, threatened to beat her with a studded belt, threatened to send her to jail, took her phone away when she tried calling for help, drove erratically during a ride to the hospital while she was pregnant, and threatened to drive into the path of an oncoming train. (Id. at p. 819.) She testified that she sought counseling as a result of the abuse and that she was in fear he might hurt her or her child. (Ibid.)
The Court of Appeal reversed the denial of the restraining order, finding that, apart from sufficient evidence of physical abuse, there was sufficient evidence that the exboyfriend's acts of isolation, control, and threats destroyed the ex-girlfriend's mental and emotional calm, which constituted abuse within the meaning of section 6320. (Rodriguez, supra, 243 Cal.App.4th at p. 822.)
In each of these four cases, the restrained party's acts were found to constitute abuse not because they met some abstract severity threshold, but because there was substantial evidence to support a finding that the acts destroyed the protected party's mental or emotional calm. Had there been insufficient evidence in any of these cases that the protected party's peace was disturbed, granting the DVRO would have been an abuse of discretion. These cases, considered individually or collectively, do not support Oscar's claim that his conduct cannot be considered abuse under the DVPA as a matter of law.
C. The "lazy mom fee" references
Oscar also contends the trial court erroneously found the "lazy mom fee" references on two support checks disturbed Leigh Ann's peace and constituted abuse under the DVPA. He argues the evidence was insufficient to support a finding that the references destroyed Leigh Ann's mental or emotional calm.
We conclude substantial evidence supported a finding the two references constituted abuse because the references were violations of the TRO that was in place, and a violation of a TRO is itself an act of abuse. (N.T., supra, 34 Cal.App.5th at pp. 597, 602; § 6320.) In light of this conclusion, we need not address whether the references destroyed Leigh Ann's mental or emotional calm.
The TRO prohibited Oscar from having any communication with Leigh Ann except for "brief and peaceful" communication regarding court-ordered visitation. And any such brief and peaceful communication was to be through the Our Family Wizard platform. The two lazy mom fee references constituted two instances of communication. These communications were not peaceful-or else the trial court would not have found that they constituted abuse that disturbed Leigh Ann's peace-not related to visitation, and not made over Our Family Wizard.
Oscar does not dispute that the two lazy mom fee references violated the restraining order. Again, he argues only that there is insufficient evidence to support a finding that the two references destroyed Leigh Ann's mental or emotional calm. But even were we to agree with Oscar, that does not change the fact that the two references were violations of the TRO and thus instances of abuse under section 6320. We therefore conclude substantial evidence supported a finding that the two lazy mom fee references each constituted an instance of abuse under the DVPA.
D. No abuse of discretion
Oscar does not argue it would be an abuse of discretion to issue the three-year DVRO if these three instances of abuse were supported by substantial evidence. Given the court's findings, we conclude issuing the three-year DVRO was not an abuse of discretion.
DISPOSITION
The trial court's order is affirmed. Leigh Ann is to recover her costs on appeal.
WE CONCUR: DETJEN, ACTING P.J., PENA, J.