Opinion
H043504
12-11-2018
M.Y., Petitioner and Respondent, v. E.O., Respondent and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CP021683)
I. INTRODUCTION
E.O. (mother) appeals from a February 2016 order granting the application of respondent M.Y. (father) for renewal of a restraining order issued under the Domestic Violence Prevention Act (DVPA). (See Fam. Code, § 6200 et seq.)
Unspecified section references are to the Family Code.
The February 2016 order renewed a restraining order that had been issued in March 2015. The March 2015 restraining order contained personal conduct, no-contact, and stay-away orders, and it ordered mother to move out of the family home. At the time the March 2015 restraining order was issued, the court had already granted father sole legal and physical custody of the parties' children. In issuing the March 2015 restraining order, the trial court found that there had been no rebuttal of the section 3044 presumption against an award of sole or joint physical or legal custody of the children to a person who has perpetrated domestic violence.
On appeal, mother contends the trial court abused its discretion by: (1) finding that the section 3044 rebuttable presumption applied and failing to provide mother with a timely hearing to rebut that presumption; (2) renewing the restraining order based on an incorrect legal standard and a lack of evidence that she committed any acts of abuse; and (3) ordering mother to move out of the family home.
Section 3044, subdivision (a) provides: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence."
For reasons that we shall explain, we will affirm the order.
II. BACKGROUND
Our summary of the relevant factual and procedural background is limited by the record provided in this case, which includes only (1) the reporter's transcripts of the February 2016 hearings on father's application for renewal of the previously-issued restraining order, (2) the reporter's transcript of the March 2015 hearing on father's previous application for a restraining order, and (3) the February 2016 restraining order after hearing. Mother has augmented the record with several documents and transcripts, most of which pertain to proceedings held in 2017—after the order she appeals from.
A. Original Restraining Order
Father and mother were never married, but they lived together for about 20 years and had three children together.
In August 2014, the trial court issued a temporary restraining order that protected father and restrained mother. The order was issued following an incident during which mother smashed father's cell phone. The temporary restraining order contained personal conduct, no-contact, and stay-away orders, along with an order that mother move out of the family home. Father was granted sole legal and physical custody of the children.
In March 2015, following a hearing, the trial court issued a restraining order that continued the temporary orders and was set to expire in September 2015. Father subsequently filed an application to renew the restraining order, and the matter was set for a court trial.
B. Hearing on Renewal of Restraining Order
At the time of the February 2016 court trial on father's request for renewal of the restraining order, daughter was the only one of the parties' three children who was under the age of 18. The parties' other two children were in college. Daughter was represented by counsel, as was father. Mother represented herself in pro per.
1. Mother's Testimony
Mother acknowledged that in May 2015, she filed a change of address form with the post office, which changed not only her mailing address but also that of the children. The box next to "Entire family" was checked on the change of address form, and thus she had also received some of father's mail. Mother claimed she had not been the one to check the box and that she had subsequently asked the post office to fix the problem.
Mother acknowledged sending e-mail messages to father's parents after the March 2015 restraining order was issued, while the parties were both still represented by counsel. Mother acknowledged that in some of the e-mails, she asked father's parents to give messages to father. Mother asserted that she did not realize she was not supposed to contact father's parents. Mother acknowledged she had also "cc'd" father on a number of those e-mails.
In one e-mail message, mother wrote, "Tell [father] to stop using our children as pawns for my financial manipulation." In another, she wrote, "Please respond to [father] that if he was really taking care of our children's needs he wouldn't have removed their mother from their lives, et cetera." Another e-mail read, "Please ask [father] to end this tragedy."
Mother acknowledged that after the March 2015 restraining order issued, she had parked in front of a neighbor's house, on the same street as father's home. Mother had measured the distance from the neighbor's house to father's home as 147 yards, but she subsequently learned that the stay-away order prohibited her from being within 100 yards of father's home "as the crow flies." After that, mother had driven by the family home only a few times, to pick up her adult daughter and to drop off a present for her son.
2. Father's Testimony
According to father, the mail delivery of daughter's paychecks was delayed because mother had changed daughter's mailing address. A citation issued to daughter had similarly been delayed and had become past due, with the fine increasing from $156 to $499 as a result.
Father had seen mother at a neighbor's house several times while the March 2015 restraining order was in effect. On one occasion, mother was visiting with a neighbor on a back deck. On other occasions, mother was in front of the neighbor's house. Father had seen mother drive by to get her mail from another neighbor's house several times.
Father testified that he was apprehensive about mother engaging in future abusive conduct if the restraining order was not renewed. Father referenced an August 2014 incident during which mother had "c[o]me home drunk and trashed the house and called the police on [him] and said [he] was beating her." Father did not trust mother as a result of that incident, and he felt that mother wanted to "use the system to mess with" him.
Father acknowledged that there had been no violent incidents since the August 2014 incident. He acknowledged that he had assumed it was mother driving by when he heard a diesel vehicle on the street. He acknowledged that mother had only directly sent him one e-mail following issuance of the March 2015 restraining order and that he had sent her multiple e-mails, even after mother's former attorney requested he stop.
3. Other Testimony
Dana Wright had known mother since 2009. Mother had been living with Wright since 2014. Wright's daughter had been good friends with daughter. Wright had never seen mother exhibit violent behavior or become enraged.
C. Findings and Order
The trial court expressed concern about mother's indirect e-mail communication with father. The trial court also discussed the evidence showing that mother had stopped her vehicle within 100 yards of father's property. Finally, the trial court discussed the change-of-address form that mother had filled out, which included the names of the children and a check-mark in front of the box for "entire family." Taken together, the trial court found that these actions by mother "created a reasonable apprehension in the mind of [father], that if a court order does not continue that he will continue to have either conduct that disturbs his peace or that constitutes harassment of him."
The trial court found that father had met his burden of proof and issued a five-year restraining order after hearing. The order prohibited mother from contacting or harassing father, and it continued the prior 100-yard stay-away order. The order contained exceptions for brief and peaceful contact at activities for the children (including the non-minor children) and for communication during court-ordered co-parent counseling or therapy.
The trial court noted that a move-out order was "no longer necessary," but reiterated that mother was not allowed to move back into the family home. The written order provided that father would have sole control of the family home.
The trial court indicated it was not making any custody and visitation orders and that the previous custody and visitation orders made in March 2015 would remain in effect. The written order specified, "Existing orders remain in effect." The written order also stated that father would have temporary sole legal and physical custody of the minor children, and it included the following statement: "The court makes FC §3044 finding."
III. DISCUSSION
A. Section 3044 Findings
Mother contends the trial court abused its discretion by applying the section 3044 rebuttable presumption against her having custody of daughter and failing to provide her with a hearing at which she could rebut the presumption.
The augmented record on appeal shows that, subsequent to the order at issue in this case, mother filed a request for a change in the visitation order regarding daughter. Hearings on that request were held in August and September 2017, and the trial court issued a statement of decision in November 2017. The trial court found good cause to rebut the section 3044 presumption but denied mother's request to modify the custody and visitation orders, finding that joint legal custody was not in daughter's best interest. --------
Although the restraining order after hearing contains the statement, "The court makes FC §3044 finding," the trial court specified that it was not making any custody and visitation orders. To the extent mother is challenging the trial court's previous section 3044 findings, she could have appealed from the March 2015 restraining order after hearing, but, "having failed to do so, [s]he cannot be heard to complain now." (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 (Padilla).)
In any event, because daughter turned 18 in June 2018, the challenged custody and visitation orders are now unenforceable. (See §§ 3022 [the court may "make an order for the custody of a child during minority"], 3402, subd. (b) [defining "child" as "an individual who has not attained 18 years of age"].) The custody and visitation issues raised by mother are therefore moot, and we need not address them. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 566 ["A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire which prevent the appellate court from granting any effectual relief."].)
B. Renewal of Restraining Order
Mother contends the trial court abused its discretion by renewing the restraining order because she did not engage in any conduct that could be considered "abuse."
1. Legal Standards
"[T]he DVPA's definition of abuse 'is not confined to physical abuse but specifies a multitude of behaviors which does not involve any physical injury or assaultive acts.' [Citations.]" (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1425, fn. omitted (Marriage of Evilsizor).)
Section 6203, subdivision (a) defines " 'abuse' " as meaning "any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." Behavior that may be enjoined pursuant to section 6320 includes "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." (Id., subd. (a).)
Under the DVPA, the trial court may issue an order "to restrain any person for the purpose" of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved upon "reasonable proof of a past act or acts of abuse." (§ 6300, see also § 6220.) The personal conduct, stay-away, and residence exclusion orders contained in such an order "may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order . . . ." (§ 6345, subd. (a).)
A trial court should renew the protective order only if it finds by a preponderance of the evidence that the protected party genuinely entertains a " ' "reasonable apprehension" of future abuse.' " (Lister v. Bowen (2013) 215 Cal.App.4th 319, 333 (Lister).) A violation of a previously-issued restraining order "gives very significant support for renewal of a restraining order." (Id. at p. 335.) However, a violation of the restraining order is not a condition to renewing that order. (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 561 (Cueto).)
The trial court need not find it is more likely than not future abuse will occur, and "a request to renew a restraining order should not be granted pursuant to section 6345 simply because the requesting party has 'a subjective fear the party to be restrained will commit abusive acts in the future.' [Citation.]" (Lister, supra, 215 Cal.App.4th at p. 332, fn. omitted.) Rather, "the court must find the probability of future abuse is sufficient that a reasonable [person] in the same circumstances would have a 'reasonable apprehension' such abuse will occur unless the court issues a protective order.' [Citation.]" (Ibid.)
The Lister court set forth factors that are relevant when "evaluating whether the requesting party has a reasonable apprehension of future abuse." (Lister, supra, 215 Cal.App.4th at p. 333.) The " 'existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test.' [Citation.] 'Also potentially relevant are any significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?' [Citation.] Also relevant are the seriousness and degree of risk, such as whether it involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities. [Citation.]" (Ibid.; see also Cueto, supra, 241 Cal.App.4th at pp. 559-560.) The very fact "that the initial restraining order 'proved effective' " can be " 'a good reason for seeking its renewal.' [Citation.]" (Cueto, supra, at p. 562.)
On appeal, we review the trial court's issuance or renewal of a restraining order under the DVPA for abuse of discretion. (See Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782.)
2. Analysis
Mother first contends the trial court applied the wrong legal standard and abused its discretion because her conduct did not "rise to the level of abuse or violence the recurrence of which would have to be prevented." Mother asserts that the trial court was wrong when it found that it could renew the restraining order if father reasonably apprehended that, without the order, mother would engage in conduct that disturbed the peace of father or constituted harassment of father.
As noted above, a trial court may renew a protective order if the protected party genuinely entertains a " ' "reasonable apprehension" of future abuse.' " (Lister, supra, 215 Cal.App.4th at p. 333.) As also noted above, the term "abuse" does include behavior that constitutes harassment and behavior that disturbs the peace of the other party. (§§ 6203, subd. (d), 6320.) Thus, the trial court did not apply an incorrect legal standard when it determined that it could renew the restraining order because father reasonably apprehended that, without the order, mother would engage in conduct that disturbed the peace of father or constituted harassment of father.
Mother next contends the trial court's order renewing the restraining order is not supported by the facts. She contends that father presented no proof of any past acts of "abuse." Mother points out that none of her e-mails to father's parents included any violence or threats, and that there was no evidence she attempted to cause bodily injury to father. She contends that receiving her children's mail did not disturb father's peace or constitute harassment of him.
Because the trial court heard the parties testify, the trial court "was in the best position to evaluate credibility and to resolve factual disputes." (See Marriage of Evilsizor, supra, 237 Cal.App.4th at p. 1426.) The trial court heard evidence that mother had destroyed father's cell phone and "trashed the house"—in other words, that she had destroyed father's personal property. (See §§ 6203, subd. (d), 6320.) The trial court heard evidence that mother had violated the no-contact order by asking father's parents to relay messages to him. And, the trial court heard evidence that mother had filled out a change-of-address form that prevented father from receiving his own mail. The trial court determined that taken together, mother's conduct led to father's reasonable apprehension that mother would disturb his peace or harass him without a renewal of the restraining order.
It is very clear from our review of the record that the parents care deeply for their children. However, the evidence at the February 2016 hearings provided "reasonable proof of a past act or acts of abuse" (§ 6300) under the legal standards set forth above, and the evidence supported the trial court's finding that father entertained a " ' "reasonable apprehension" of future abuse.' " (Lister, supra, 215 Cal.App.4th at p. 333.) Thus, the trial court's decision to renew the restraining order was not an abuse of discretion.
C. Move-Out Order
Mother contends the trial court abused its discretion by ordering her excluded from the family home.
Pursuant to section 6321, subdivision (b), the trial court may issue an ex parte order excluding a party from the family dwelling only if all of the following have been shown: "(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises. [¶] (2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party. [¶] (3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party."
Under section 6340, subdivision (c), the trial court may issue an order after hearing excluding a party from the family dwelling "if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party." Since the residence exclusion order was issued after notice and a hearing, this is the applicable standard.
Mother's claim fails for several reasons. First, the trial court did not issue a new residence exclusion order; it merely renewed the March 2015 restraining order, which apparently had originally ordered that mother move out. Mother could have appealed from the March 2015 restraining order after hearing, but, "having failed to do so, [s]he cannot be heard to complain now." (Padilla, supra, 38 Cal.App.4th at p. 1216.)
Second, even if we were to consider mother's argument on the merits, we would find no error. Mother asserts that the trial court applied the wrong legal standard by failing to require evidence that physical or emotional harm would result. However, we have found nothing in the reporter's transcripts to indicate the trial court applied a standard different from that set forth in section 6340.
Mother also asserts that the trial court's decision was not supported by the facts because there was "no evidence of assaultive behavior toward or injury to [father]." But under section 6340, subdivision (c), a residence exclusion order may be issued if the trial court finds that "physical or emotional harm would otherwise result to . . . a minor child of the parties or of the other party." Here, the high-conflict nature of the relationship between mother and father provided evidence that emotional harm would result to daughter (who was a minor child at the time the order was made) if mother was not excluded from the family dwelling.
On this record, the trial court did not abuse its discretion by issuing a move-out order as part of the March 2015 restraining order or by renewing the residence exclusion order in February 2016.
IV. DISPOSITION
The February 25, 2016 order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
DANNER, J.