Opinion
C074153
11-14-2014
ROBERT D. BARRON, Appellant, v. LEAH M. COOK, Respondent.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SDR0024538)
Father Robert D. Barron (father) appeals from a restraining order obtained by respondent Leah M. Cook (mother). (Fam. Code, § 6200 et seq.) Father contends there is insufficient evidence supporting the restraining order; he adds that the trial judge was biased against him. We conclude sufficient evidence supports the issuance of the restraining order, such that the trial court did not abuse its discretion in issuing the order, and find no evidence of bias. Accordingly, we affirm.
Further undesignated statutory references are to the Family Code.
Mother, now propria persona, did not file a response to father's opening brief.
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BACKGROUND
Father and mother, never married, are parents of a child who is now 10 years old (the minor). On February 26, 2013, mother filed a request for a domestic violence restraining order against father. Mother claimed that on February 7, 2013, father had driven past her residence multiple times, after surreptitiously obtaining her address through a tracking device installed on the cell phone he had given the minor. In partial support of her request, mother described father's history of violence toward her. She included evidence of a temporary restraining order that she had obtained against father in 2005, which she described as resulting from father's throwing her down a flight of stairs and holding her by the throat against a wall. Mother also described and documented a restraining order issued in 2008 for father's attacking her and throwing her against a wall and to the ground, as well as hitting her in a manner that resulted in a fractured rib, among other injuries.
The parties' history of domestic violence included events witnessed by the minor. Because of this history, mother had resisted father's repeated attempts to find out where she lived. The parties had appeared multiple times before this same trial court during the course of their custody dispute involving the minor. The court was aware of this history and the need to refrain from revealing mother's physical address to father, and had specifically declined to order mother to provide her address to father.
After holding a hearing that we review in detail post, the trial court took the matter of the restraining order under submission. The court issued a written order on May 13, 2013, granting the restraining order in relevant part. The formal CLETS restraining order after hearing was filed on June 10, 2013; father appeals from that order.
DISCUSSION
I
Sufficiency of the Evidence
We review the trial court's issuance of a protective order under the Domestic Violence Protection Act (DVPA) (§ 6200 et seq.) for abuse of discretion. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264).) " ' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 319.)
A. Evidence
Because the trial court did not include factual findings in its order granting the request for a restraining order, we review the record provided to us in order to ascertain what evidence the trial court heard and what findings it made, including implicit findings, during the course of the relevant proceedings. A summary of our review follows.
November 30, 2012
On November 30, 2012--less than three months before mother first requested the disputed order--the parties were in court, before the same trial judge, for a hearing on other issues related to parenting the minor. While mother was testifying under oath, father's counsel asked her about the incident resulting in the 2008 restraining order; she described being pushed against a wall, hit repeatedly in the ribs, and shoved into a bookshelf. She added that after father was released from jail, he "went on a campaign to terrorize" her for the two weeks before she left the apartment. She did not tell father where she lived after that, although the court had ordered visitation with the minor, because she "had gotten word" that he had planned to "have [her] gang raped and have [the minor] taken" away from her, and she was scared. She did not tell him where she lived with the child at any point, because she was "fearful of him and his actions." She hypothesized when asked why she remained scared after years had passed since he "had . . . beaten [her] up" that perhaps his not being privy to her address "prevented further actions" by him.
February 8, 2013
On February 8, 2013--18 days before mother first requested the disputed order--the parties came once again before the same trial judge for a progress review. At some point before that hearing, in conjunction with facilitating father's contact with the minor, the trial court had ordered father to "provide a cell phone with prepaid minutes" to mother and the minor. At the hearing, father (now in propria persona) complained that although he had provided the phone, mother had not activated it. Mother's counsel responded that mother had activated the phone but then shut it down immediately upon discovering that "GPS tracking had been turned on."
Reminded that it had specifically denied father's request for mother's address, the trial court asked father whether he had "put GPS tracking on" the phone, to which he replied: "I believe it is on the phone. It is my constitutional rights [sic] to know where our daughter is and school information." The trial court stated: "You obviously didn't like my order so you put GPS tracking on the phone."
At that point, mother's counsel told the court that mother had, "yesterday," seen father near her home, and that there was "great concern" father had used the phone to locate mother's home. The trial court commented to father that "it does concern me that I thought we had come up with a really good solution, for you to get the cell phone and that way you would have a number . . . . And then you install a GPS device on it, which then justifies in [mother's] mind a continued concern about being followed."
The court set the next hearing for April 12, 2013, and the February 8 hearing concluded at approximately 11 a.m.
March 18, 2013
At a hearing before a different judge, the temporary restraining order which mother had sought on February 26, 2013, and apparently obtained soon after that date (the date of initial issuance is not in the record provided to us) was extended to April 12, 2013, so that it could be heard by the same judge, as the parties agreed that she was "aware of some of the facts in the hearing upon which [mother] filed the restraining order."
April 12, 2013
Both parties appeared propria persona at the next regularly scheduled hearing. The court heard from both parties regarding several disputed issues, including mother's allegations supporting her request for a restraining order. Mother testified in a manner consistent with her declaration in support of the order that, in summary, soon after father provided the phone to the minor, he appeared outside her house, in a car, for an extended period of time in the late afternoon. Mother's 18-year-old daughter also testified as to the presence of the car and her resulting fear.
There was some confusion at the hearing over whether the date of the incident was February 7 or February 8. Mother wrote in her declaration and told the court that she had seen father at her house during a garage sale she was hosting in the late afternoon of February 7; her declaration also set forth father's admission in court the following day (February 8) that he had indeed deliberately provided the minor with a GPS-enabled phone. As we have described ante, mother's counsel represented at the hearing held the morning on February 8 that mother had told him "yesterday" she had sighted father at her house. Although the trial court, acknowledging the confusion, told father to address both February 7 and 8, father called witnesses who spoke only to his whereabouts after his court appearance concluded on February 8.
Mother told the court that she had already moved due to father's discovery of her residence.
B. Analysis
As we described ante, mother presented compelling and undisputed evidence that father had a history of significant and at times severe violence against her. He admitted purposefully providing the minor with a cell phone that tracked her location, knowing that she lived at mother's house and that mother was afraid to provide him with her address. He also was present in court when the trial judge refused to allow him to elicit mother's address during testimony; yet he deliberately circumvented that order by giving the minor a tracking device under the guise of facilitating communication with her.
The evidence presented by mother showed that father, after tracking mother's location through the minor--and apparently while in town for the custody hearing--drove by the house multiple times on the same day without any legitimate reason to do so. The only reason for his appearance at the home would be to harass and frighten mother and her daughter, who were outside tending a garage sale. His purpose was achieved; mother moved out of her house as a result. Although father argues at length in his brief that he presented witness testimony proving that he was not near mother's house on February 8, he also tacitly acknowledges that clearly the date in question was February 7, the day before the court hearing held on February 8, as counsel proffered that mother had seen father "yesterday" at that very hearing. Father presented no evidence as to his whereabouts on February 7, despite the trial court's advisement to address both dates. As father admits, he merely "proffered that he had evidence 'that [he] wasn't anywhere near [mother's] house on February 7"; he did not present this evidence to the trial court. Even assuming father's proffer constituted evidence and was fully considered as such, the trial court implicitly deemed his proffer insufficient to counter mother's evidence to the contrary. We do not substitute our opinion as to the credibility of the witnesses for that of the trial court. (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254.)
Father's conduct is readily within the scope of the DVPA, which provides expansive protection against myriad forms of domestic violence, both physical and nonphysical. (§§ 6203, subd. (d), 6211, 6320; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498-1499.) Further, trial courts may issue a protective order under the DVPA on the basis of evidence that shows "reasonable proof of a past act or acts of abuse." (§ 6300; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) We see no abuse of discretion here.
II
Change of Assignment
Father's arguments also include personal attacks on the trial court, whose rulings he claims were arbitrary, unreasonable, and based on personal disdain and a preconceived belief in his guilt. He asks us to remand his case to a different trial judge. Although we certainly have the authority to do as father asks, we decline to do so.
"At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court. " (Code of Civ. Proc., § 170.1, subd. (c).) This statutory power "should be used sparingly and only where the interests of justice require it." (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.)
Our review of the record reveals a patient, careful trial judge taking great pains to make sure both parties were heard, while effectively moving the case forward and considering the best interests of the minor above all. The judge did not favor mother over father, but instead treated the parties equally, looking out for father's interests as well, at one point telling mother after mother missed a visit: "I told both of you games are over and that I'm going to hold [father] accountable and I'm going to hold you accountable. We have all spent a considerable amount of effort to come up with a plan . . . and [father] was entitled to have [the minor] until 8 o'clock."
The trial judge emphasized to both parties that: "I would like to move forward. I want to make sure that [father] continues to see [the minor]. And I want to make sure that [mother] continue[s] to feel safe. . . . That's my primary focus." These are but two of the many examples in the record of the trial judge's continuing efforts to enable both mother and father to effectively parent their child.
Because we see no evidence that the trial judge lacked objectivity or is biased against defendant, we decline to order the matter assigned to a different trial court.
DISPOSITION
The order is affirmed. The parties shall each bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
DUARTE, J. We concur: RAYE, P. J. BUTZ, J.