Opinion
C097309
07-17-2024
A.S., Plaintiff and Respondent, v. D.M., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. FLDV22427)
MAURO, ACTING P. J.
During the time period relevant to this appeal, D.M. (husband) and A.S. (wife) were married with two children, a three-year-old son and a two-year-old daughter. They lived in separate adjoining units of a triplex owned by husband.
Wife obtained a domestic violence restraining order (DVRO) against husband under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).The order protected wife and their two children. In conjunction with the DVRO, wife also obtained a child custody and visitation order. After those orders issued, husband filed a motion for reconsideration/new trial in the trial court. That motion was denied, but the trial court amended the DVRO to clarify one of its provisions. Attached to the amended DVRO was the same custody and visitation order that had issued with the initial DVRO. Husband appeals from the order amending the DVRO and also purports to appeal from the trial court's denial of his motion for new reconsideration/new trial.
Undesignated statutory references are to the Family Code.
We conclude husband's purported appeal from the denial of his motion for reconsideration/new trial is inoperative because the denial of a motion for reconsideration or new trial is not separately appealable but is reviewable as part of an appeal from the underlying challenged order or judgment and husband did not appeal from the initial DVRO. Moreover, although the order amending the initial DVRO was appealable, an appellate court will not review as part of such an appeal earlier rulings that could have been appealed but were not, and here husband seeks to challenge unmodified portions of the initial DVRO in this appeal from the order amending the initial DVRO.
Accordingly, we will affirm the judgment.
BACKGROUND
On July 8, 2022, wife filed a request for a DVRO against husband. She described screaming and controlling behavior by husband. Wife also sought protection for their children, stating: "[Husband] can't control his temper, he screams and yells especially at our son and he spanked him [o]n November 4th 2020 so hard that he left a swollen mark on our son's butt/back. I try very hard to never let him alone with our kids."
In addition to the requested DVRO, wife sought a child custody and visitation order granting her full custody of the children with no visitation for husband until the hearing. She also sought an order preventing husband from moving or traveling outside of Yuba County with the children.
On July 11, 2022, the trial court issued a temporary DVRO and set a hearing date for the following month. The hearing on the DVRO request was held on August 5, 2022. Wife was represented by counsel and husband represented himself. The record on appeal does not contain a reporter's transcript of the hearing, but the clerk's minutes indicate that wife testified at the hearing, and that husband was given an opportunity to testify but declined to do so. The minutes further indicate that eight exhibits were submitted by wife and admitted into evidence, consisting of bank statements, a photograph of the son showing a red mark on his buttocks, text messages between wife and husband, and audio and video files showing, among other things, that husband entered wife's residence while the temporary DVRO was in place. Those exhibits are part of the appellate record.
The trial court granted the requested DVRO, finding, among other things, that husband engaged in controlling behavior, violated the temporary DVRO by entering wife's residence, caused injury to the son, and had been convicted of assault by means of force likely to produce great bodily injury in 2017.
The initial DVRO issued the same day. The order protected wife, the son, and the daughter for a period of three years. Among other things, it prevented husband from engaging in abusive conduct and from contacting wife and the children by any means, except during court-ordered visitation with the children. Attached to the initial DVRO was a custody and visitation order granting wife full custody of the children with supervised visitation granted to husband.
On August 15, 2022, husband filed a motion for reconsideration/new trial. Husband argued he should be given another opportunity to tell his side of the story. According to husband, he "was stunned throughout the trial" and "thought he was walking into a short, preliminary-type or motion hearing" rather than an evidentiary hearing that could result in custody being taken away from him. He said he was unable to find an attorney who would represent him at the hearing, in part because he lost his papers. Among other things, he sought clarification of whether he was required to move out of his residence because the initial DVRO contained a stay-away order, and as mentioned, he and wife lived in separate adjoining units of the same triplex.
A hearing on the reconsideration/new trial motion was held on September 28, 2022. The record on appeal does not contain a reporter's transcript of the hearing.
However, the clerk's minutes indicate that after husband provided argument, the trial court stated it understood the parties' living situation and would amend the initial DVRO to provide the clarification requested by husband. The trial court then heard argument from wife's attorney and denied husband's motion for reconsideration/new trial, stating: "The Court declines to reconsider its earlier ruling. [Husband] had the ability to present evidence at the hearing but [he] chose not to testify. The only testimony the Court heard was that of [wife.]" After ordering correction of an immaterial misstatement in the minutes of the prior hearing, the trial court stated it would amend the initial DVRO to clarify that husband could enter the two units of his triplex where wife and children were not residing.
The amended DVRO issued the same day. The only change was the above-described exception to the stay-away order. Attached to the amended DVRO was the same custody and visitation order that had been issued with the initial DVRO.
DISCUSSION
Husband's opening brief does not contain a statement addressing the appealability of the orders he challenges on appeal, as required by rule 8.204(a)(2)(B) of the California Rules of Court. Although husband is representing himself on appeal, he is not excused from compliance with this rule because self-represented appellants are held to the same standard as attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) We are therefore authorized to strike the brief and dismiss the appeal "for failure to submit a brief in compliance with the rules of court." (Lester v. Lennane (2000) 84 Cal.App.4th 536, 557(Lester).) We nevertheless address appealability on our own initiative.
"The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Husband's notice of appeal states that he is appealing both from a "final judgment" entered on September 28, 2022, and from the denial of his motion for reconsideration/new trial on the same date.
Addressing first the purported appeal from the denial of husband's motion for reconsideration/new trial, "[a]n order denying a motion for reconsideration . . . is not separately appealable," but rather, the denial "is reviewable as part of an appeal from" the underlying "order that was the subject of [the] motion for reconsideration." (Code Civ. Proc., § 1008, subd. (g).) Similarly, an order denying a motion for new trial is not an appealable order, but "rather, the new trial denial is reviewable on appeal from the underlying judgment." (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 930, fn. 4.) Accordingly, husband's purported appeal from the denial of his reconsideration/new trial motion is inoperative, and husband did not appeal from the initial DVRO that was the subject of his motion for reconsideration/new trial.
Turning to husband's purported appeal from the "final judgment" entered on September 28, 2022, the notice of appeal appears to refer to the order issued on that date amending the initial DVRO. "A domestic violence restraining order is a type of injunction, as it is an 'order requiring a person to refrain from a particular act.' [Citation.]" (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503.) An appeal may be taken "[f]rom an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction." (Code Civ. Proc., § 904.1, subd. (a)(6).) An order modifying an injunction is also "appealable as 'an order granting an injunction.' [Citation.]" (Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 251 (Scully).) The order amending the initial DVRO is therefore an appealable order. Nevertheless, not all aspects of the amended DVRO may be challenged in this appeal.
Generally, "on an appeal from an appealable ruling, an appellate court will not review earlier appealable rulings." (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1082 (Malatka).) In Malatka, the appellate court applied this general rule in the context of an appeal from an amended restraining order that was issued after the trial court denied the defendant's motion to dissolve the original restraining order. Although the court concluded the amended restraining order was an appealable order, it also concluded "to the extent the current appeal from [the amended restraining order] presents issues that could have been raised in an appeal from the original restraining order, those issues are not reviewable in this appeal." (Id. at p. 1084; see also Scully, supra, 208 Cal.App.3d at p. 252 [applying the general rule in the context of an appeal from a modified preliminary injunction].)
As we have indicated, husband did not appeal from the initial DVRO, and yet he seeks to challenge unmodified portions of the initial DVRO in this appeal from the order amending the initial DVRO. As in Malatka, to the extent husband raises issues that could have been raised in an appeal from the initial DVRO, they are not reviewable. (Malatka, supra, 188 Cal.App.4th at p. 1084.)
Husband also challenges the unmodified custody and visitation order that was attached to both the initial DVRO and the amended DVRO. Final judicial custody determinations are appealable, but temporary custody orders are not. (Lester, supra, 84 Cal.App.4th at p. 559.) "A domestic violence order is not the same as a final judicial custody determination." (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1054 (Keith R.).) "There are important policy reasons why domestic violence orders should not be treated as the functional equivalent of final judicial custody determinations. Domestic violence orders often must issue quickly and in highly charged situations. The focus understandably is on protection and prevention, particularly where the evidence concerning prior domestic abuse centers on the relationship between current or former spouses. Treating domestic violence orders as de facto final custody determinations would unnecessarily escalate the issues at stake, ignore essential factors (such as the children's best interest) and impose added costs and delays. It also may heighten the temptation to misuse domestic violence orders for tactical reasons." (Id. at p. 1056.)
Nevertheless, certain custody orders issued in the context of proceedings under the DVPA have been held to be appealable. (See, e.g., K.L. v. R.H. (2021) 70 Cal.App.5th 965, 978-979.)
We need not determine whether this particular custody and visitation order is separately appealable because, even if it is, the same rule regarding reviewability applies. To the extent husband raises issues that could have been raised in an appeal from the initial DVRO, to which the same custody and visitation order had been attached, they are not reviewable in this appeal from the order amending the initial DVRO.
Accordingly, we look at husband's appellate contentions to determine whether they could have been raised in an appeal from the initial DVRO.
A
Husband argues the trial court erred by issuing a DVRO based on a single spanking incident that caused "mere reddening of the skin" on his son's buttocks without considering his defense of reasonable parental discipline. Those contentions could have been asserted in an appeal from the initial DVRO and thus they are not reviewable in this appeal.
In any event, even if we were to reach the merits of this contention, husband would not succeed on this claim. The trial court found that husband caused injury to the son, and that can be a basis for protection under the DVPA. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) But wife's request for a DVRO alleged more than the son's injury. "[A]ttempts to control, regulate, and monitor a spouse's finances, economic resources, movements, and access to communications are abuse" within the meaning of the DVPA. (Hatley v. Southard (2023) 94 Cal.App.5th 579, 583.) Frequent yelling and screaming may also amount to "disturbing the peace of the other party." (§ 6320, subd. (a); see Br. C. v. Be. C. (2024) 101 Cal.App.5th 259, 269.) A trial court's order is presumed correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) The trial court did not consider a defense of reasonable parental discipline because husband did not raise such a defense at the hearing on the DVRO, he did so as part of his motion for reconsideration.
B
Husband also argues the trial court erred by granting custody to wife because it did not consider the best interests of the children or whether husband rebutted the presumption against awarding custody to a parent who had committed domestic violence. Again, this challenge could have been made in an appeal from the initial DVRO. The amended DVRO did not modify the custody order at all.
And again, even if we were to reach the merits of this contention, husband would not succeed on the claim. In addition to issuing a DVRO, the trial court may issue orders pertaining to child custody. (§ 6323, subd. (a); § 6340, subd. (a).) The paramount factor is a child's health, safety and welfare. (Keith R., supra, 174 Cal.App.4th at p. 1055.) Section 3044 "establishes a rebuttable presumption that an award of joint or sole custody to a parent who has perpetrated domestic violence is not in a child's best interests." (Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 195.) Without the reporter's transcript of the hearing, we are required to presume that the evidence supported the trial court's findings, that the trial court performed its duty, and that husband did not rebut the presumption against awarding him custody. Indeed, husband did not testify or provide any evidence at the hearing.
C
Husband further claims we must strike the trial court's finding that he submitted a false signature. He asserts he was not given notice of this specific allegation. The contention is not cognizable in this appeal because it could have been raised in an appeal from the initial DVRO.
But even if we were to address the issue, it would lack merit. Although a permanent restraining order may issue only after notice and a hearing (§ 6345, subd. (a); In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226), husband received sufficient notice that wife was seeking a DVRO based on allegations of abuse, and her allegations did not limit wife's ability to testify about other instances of abuse at the hearing (id. at p. 227-228). Because husband had an opportunity to respond to wife's testimony at the hearing, the trial court did not abuse its discretion or violate due process by considering the false signature testimony. (§ 6300, subd. (a).) And as in In re Marriage of Davila & Mejia, supra, 29 Cal.App.5th 220, husband "neither objected to the testimony nor requested a continuance to respond." (Id. at p. 228.)
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RENNER, J., KRAUSE, J.