From Casetext: Smarter Legal Research

Bays v. Dart

California Court of Appeals, First District, First Division
Nov 20, 2024
No. A169312 (Cal. Ct. App. Nov. 20, 2024)

Opinion

A169312

11-20-2024

NICOL BAYS, Plaintiff and Respondent, v. NATHANIEL DART, Defendant and Appellant.


NOT TO BE PUBLISHED

(Lake County Super. Ct. No. FL218119)

Humes, P. J.

Nathaniel Dart appeals from trial court orders (1) granting the request of Nicol Bays, the mother of his child, for a domestic violence restraining order (DVRO) against him under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) (DVPA or Act) and (2) awarding sole legal and physical custody of the child (son) to Bays. Dart claims that the court, which initially indicated it would deny the DVRO request and award him joint custody, abused its discretion by switching course after he had a hostile outburst in court. We conclude the court acted within its discretion in relying on Dart's courtroom behavior to reassess the parties' credibility. Accordingly, we affirm.

All further statutory references are to the Family Code unless otherwise noted.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Bays and Dart began dating in October 2018, and Bays gave birth to son in September 2020. Son was born without a corpus callosum, which connects the two hemispheres of the brain, resulting in cognitive issues. He also has eyesight problems and reduced kidney function. Bays characterized him as "extremely special needs" and testified that she spent a lot of time on his therapy. She worked as an accountant and became "solely self-employed" to be able to take him to his specialist visits.

For a while, the family lived in Colusa, along with Bays's two daughters from a previous relationship. While Bays and Dart were together, Bays asked Dart to adopt her daughters, but he declined. The couple broke up in April 2022, and Bays moved to Lake County with the three children. Bays later became pregnant by another man and gave birth to twin boys in May 2023.

On May 30, 2023, Bays initiated this action by filing a petition to determine parental relationship. She sought sole legal and physical custody of son. She also sought a temporary emergency order granting her full custody. Finally, on the same day, she filed a request for a DVRO against Dart to protect her, son, and her other four children.

In early June 2023, pending a hearing, the trial court issued (1) a temporary DVRO prohibiting contact between Dart and Bays and her children and (2) a temporary emergency order granting full custody of son to Bays and prohibiting Dart from visiting him. Two weeks later, Dart filed responses to the custody petition and DVRO request. He opposed the DVRO request and sought sole legal and physical custody of son for himself.

An evidentiary hearing was held on July 21, 2023, at which both parties appeared in propria persona. At the hearing, Bays described son's needs at length. She had "a severe problem with the care" that Dart provided son during a recent visit. On May 9, Bays was in the hospital after giving birth to the twins by C-section, and her best friend was at her house caring for the other three children. Dart took son from the house without Bays's permission and kept him until May 12, even though he had never had son for overnight visits. After the visit, son "had some serious separation anxiety issues" and would no longer sleep in his own bed.

On appeal, Dart is represented by retained counsel, and Bays is not.

Bays also had concerns about Dart's living situation. He had texted her a photograph of son sleeping on the floor next to a toilet. Dart told her "he thought it was cute and wanted to share," but Bays was offended. She testified that she requested sole custody because Dart refused to "[s]tart small" with visits and she did not want any further harm to son from being separated from her for long periods. Dart responded that he had not authorized anyone else to care for son while Bays was in the hospital, and there were no court orders preventing him from having son during that time.

The DVRO request was prompted by an incident on May 28, 2023, about three weeks after Bays's twins were born. At the evidentiary hearing, Bays testified that Dart came over to see son on May 28 but "slept . . . for at least three hours of the visit." Dart then went outside to play catch with Bays's older daughter on the porch swing, where the children were not permitted to play. Bays's younger daughter, who was also on the swing, told Dart not to hit her with the ball, and he responded, "You don't want to get hit with the ball? Move."

Bays "stepped in" to tell Dart he should play catch somewhere else, and the two began arguing. Bays was angry because she had told him numerous times not to "parent the girls" but to concentrate on son. According to Bays, she ultimately told Dart to leave her property. Dart then "got up in a threatening manner, blocked [her] from closing [her] screen door, [and] tried to shoulder past [her] into [her] home." She was able to close the wooden door, and "he tried to jam [it] open after it was locked."

Dart called the police, who responded to Bays's house to take a report. The same day, Dart obtained a criminal emergency protective order against Bays giving him temporary custody of son. No charges were ultimately pursued against Bays as a result of the May 28 incident. She testified that when son was returned to her care from Dart's on June 4, son was "dirty, barefoot, and running a 102.5 [degree fever]."

The DVRO request also described an incident in Colusa in February 2022, while Bays and Dart were still dating. After the two "got into a verbal altercation," he "grabbed [her] by the throat . . . [and] slammed [her] back into the wall and then the floor while choking [her]."

At the evidentiary hearing, Dart introduced a police report about the February 2022 incident. The report reflected that Bays told the police that Dart choked her and slammed her into the wall, but Dart stated that he moved Bays physically only after she threw a coffee mug at him and tried to prevent him from leaving. A responding officer concluded that "Bays was the dominant aggressor" and arrested her for domestic battery. At the hearing, Bays clarified that "[t]he charges were dropped before arraignment" and a criminal case was not pending against her in Colusa County. In response, Dart testified that he declined to pursue charges only because he did not want her professional licenses to be revoked.

At the end of the evidentiary hearing, the trial court took the matter under submission, with the temporary restraining order against Dart and the emergency custody order granted to Bays to remain in place. The court indicated it was inclined to order that son live full-time with Bays, who took care of "[h]is special needs," but told Dart it had not "see[n] anything here that would take away [his] visitation" with son. The following month, after a review hearing, the court dissolved the temporary restraining order.

On October 10, 2023, the trial court gave its oral ruling. Dart appeared for the ruling, and Bays did not. The court did "not find any evidence to award sole legal or sole physical custody to either parent." Thus, it stated it would award joint legal and physical custody to both parents, "with physical custody of [son] to . . . be primarily with [Bays]" given son's medical issues. The court also found it appropriate to "grant a liberal visitation schedule, sort of a 60-40 split" between Bays and Dart. Finally, the court confirmed that there were "no restraining orders in place at this time as it relates to the children or as it relates to the mother and father as individuals."

The trial court also directed the parties to attend mediation to agree to a visitation schedule. It told Dart that since he was present, he could decide when mediation should occur, and he responded, "I would like it to happen today, but since [Bays] can't be bothered to show up to court, then it obviously can't happen that way." The court scheduled the mediation for October 27, and after unsuccessfully seeking a sooner date, Dart asked, "If there's no restraining order, am I allowed to go get my son from daycare and spend time with him then?" The court responded, "There is no restraining order." The following exchange then occurred:

MR. DART: As far as [Bays] and I [were] aware, there was a restraining order in effect and she's tried calling the police on me anytime I've requested 6 information about my son, so I'm asking

THE COURT: Could you try for a little less hostile, please. [¶] Calm

MR. DART: I'm asking a question. I'm not trying

THE COURT: -down.

MR. DART: -to be hostile.

THE COURT: Because I can change my ruling at this point. I issued a

MR. DART: I am asking a question. I'm not being hostile, Your Honor. I asked a question, am I allowed to go get my son?

THE COURT: I'm not ruling on that.

MR. DART: I'm not asking for a ruling.

THE COURT: 3:00 p.m. on October 27th.

MR. DART: Of course. Fucking Court's useless.

The courtroom bailiff told Dart to leave, and Dart responded, "Go fuck yourself." After the bailiff detained Dart, the trial court told him, "So based on your behavior in court, the Court finds that there is a concern for domestic violence as [Bays] . . . said there was." Dart protested that he "was not being hostile" but only asking whether he could see son, a question the court "refused to answer." He continued, "So, yes, I am quite pissed that I have waited this fucking long and . . . the day [Bays] received a notice [to come to court] in the mail, like I did, she immediately called the sheriff and reported that I broke a restraining order that you're telling me wasn't in effect. [¶] I'm sorry that I'm frustrated." The court told Dart that the restraining order was reinstated, the emergency custody order remained in place, "and full legal and full physical custody [would] go to Ms. Bays [¶] . . . [¶] based on [his] behavior in court."

After asking whether he was free to go, Dart left the courtroom. The trial court then stated for the record that Dart "slammed out, used a number of profanities, kicked-I don't know if he kicked the doors, but the doors were opened so far that they banged and he stormed out with a number of 'fuck-you'[s] and 'fuck the system'[s]-that might not be an exact quote, but there [were] . . . some 'fucks' involved." The court also clarified that it changed its initial ruling because it "was not convinced by [Bays's] claims that [Dart] could be violent, but [it was] now convinced given his behavior in court."

The following day, the trial court entered a one-year DVRO protecting Bays, son, and her other four children from Dart. The court also entered a form "Findings and Order After Hearing" awarding sole legal and physical custody to Bays (custody order). On the order, the court checked boxes indicating there were allegations of past abuse against Dart and it thus declined to grant sole or joint custody to him. The order also stated that Dart would have no visitation, with a review of that issue scheduled to occur the following January.

In early November 2023, Dart filed a petition for a writ of mandate in this court seeking an immediate and temporary stay of the DVRO and custody order. He claimed the trial court abused its discretion by issuing a DVRO without making "any finding even remotely suggesting that [he] committed an act of abuse under the DVPA" and without any substantial evidence to support such a finding. He also claimed the court abused its discretion by awarding sole custody of son to Bays despite stating it found no evidence to support doing so. Later that month, we denied the petition and request for a stay, concluding that substantial evidence supported the trial court's "implied finding of past abuse" supporting both the DVRO and the custody order. (Dart v. Superior Court of Lake County (Nov. 27, 2023, A169002.) Dart then filed the instant appeal.

II.

DISCUSSION

A. We Can Consider Dart's Claims on the Merits.

Before evaluating Dart's claims on the merits, we briefly address two issues impacting our ability to do so. (See Barry v. State Bar of California (2017) 2 Cal.5th 318, 326 [court has jurisdiction to determine its own jurisdiction].)

First, although the DVRO expired during the pendency of this appeal, Dart's challenge to it is not moot. An appeal from an expired order "is not moot . . . if it 'could have consequences for [a party] in . . . future court proceedings.'" (Cardona v. Soto (2024) 105 Cal.App.5th 141, 148.) We recently held in Cardona that an appeal from an expired DVRO was not moot based on section 3044, which provides that "[u]pon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, . . . 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." (§ 3044, subd. (a); Cardona, at p. 148.) Here, as in Cardona, even though the DVRO has expired, the section 3044 presumption will continue for several more years and adversely affect Dart's ability to potentially regain custody of son. (Cardona, at p. 148; see Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 [permanent custody order may be modified based on significant change in circumstances].)

Second, we agree with Dart that it is appropriate to consider his challenge to the custody order regardless of whether it is appealable. "[T]he right to appeal a child custody determination is generally limited to final judgments and orders made after final judgments." (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377.) "A temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial," and is not appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559-560.) But custody orders entered after contested hearings that determine the issues raised in the pleadings are generally considered appealable final judgments. (See Enrique M., at pp. 1377-1378 [reviewing cases].)

We conclude the custody order at issue is appealable because it was entered after a contested hearing and determined the issues raised by Bays's petition to determine parental relationship and Dart's response. But even if it were not, we would exercise our discretion to grant Dart's request that we treat the appeal from it as a petition for writ of mandate. (See Olson v. Cory (1983) 35 Cal.3d 390, 401.) Although Dart already unsuccessfully petitioned for writ review of the DVRO and custody order, our summary denial of his writ petition without a written opinion or the opportunity for oral argument does not constitute law of the case. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894-895.) Thus, we will evaluate the merits of his challenge to the custody order in this proceeding.

B. The Trial Court Did Not Err by Granting the DVRO Request.

Dart claims the trial court abused its discretion by issuing the DVRO because the order was based on his "behavior in court, not Bays's (already-rejected) allegations of domestic violence." We are not persuaded.

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 effectuate this purpose, a trial court may issue a DVRO if a preponderance of the evidence "shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a); In re Marriage of Davila &Mejia (2018) 29 Cal.App.5th 220, 226.) A DVRO may be "based solely on the affidavit or testimony of the person requesting the restraining order." (§ 6300, subd. (a).)

Under the Act, "abuse" includes, but "is not limited to[,] the actual infliction of physical injury or assault." (§ 6203, subd. (b).) The term is defined as "mean[ing] any of the following": (1) "intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury"; (2) "[s]exual assault"; (3) "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another"; and (4) "engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a).) In turn, section 6320 provides that a court may enjoin a party from a variety of behavior, including "threatening, sexually assaulting, . . . harassing, . . . or disturbing the peace of the other party." (§ 6320, subd. (a).) The phrase" '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." (§ 6320, subd. (c).)

We review an order granting a DVRO for an abuse of discretion. (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 115.) The discretion to issue a DVRO" 'is not unfettered,'" and"' "[i]f the [trial] court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law." '" (Id. at p. 116.) We review the court's underlying factual findings for substantial evidence. (Ibid.)

Dart bears the burden of demonstrating that the challenged ruling was erroneous. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) In particular, a trial court's "[c]redibility determinations . . . are subject to extremely deferential review." (Jennifer K. v. Shane K. (2020) 47 Cal.App.5th 558, 579.)

Dart claims the trial court expressly found he did not commit domestic violence, "or, at the very least, . . . declined to make such a finding." He relies on the court's remarks and actions before entering the DVRO, including its statements that there was no justification for taking away his custody or visitation rights, its dissolution of the temporary restraining order, and its preliminary ruling that it would award joint custody to him. Thus, according to Dart, there was no finding of past abuse to justify a DVRO, and the court must have issued the order solely as "punishment" for his courtroom behavior.

We agree with Dart that up until his outburst, the trial court was prepared to both deny Bays's DVRO request and award him joint custody. We also agree that had the court ruled as it initially indicated, it would have effectively found that he did not commit past abuse within the meaning of the DVPA. Not only is a finding of past abuse required to issue a DVRO, but it also precludes an award of joint custody to the offending party unless the court makes other findings overcoming the section 3044 presumption. (§ 3044, subds. (a)-(b).) The court made no such findings here, signifying it did not find the presumption applicable when it initially decided to award Dart joint custody. And finally, we will assume without deciding that Dart's courtroom behavior did not constitute affirmative evidence of past abuse. (See Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 131, 137-138 [reversing protective order issued based in part on appellant's trial counsel's "aggressive and confrontational cross-examination" of respondent].)

But the trial court did not rely exclusively on Dart's courtroom behavior to issue the DVRO. Rather, once Dart lost his temper, the court changed its assessment of the evidence of past abuse Bays had already presented. Specifically, the court stated that while it was previously "not convinced by her claims that he could be violent," it was "now convinced given his behavior in court." Dart does not contest that, if credited, Bays's averments that he (1) attempted to enter her home forcefully in May 2023 and (2) choked her and slammed her into a wall and onto the ground in February 2022 constituted sufficient evidence of past abuse to support a DVRO. And the court's quoted comment demonstrates that while it did not initially believe Bays's claims, it altered its assessment of her credibility-and, by extension, Dart's to the extent he denied those claims-once it witnessed his behavior.

Dart does not address this comment, and he does not provide any authority in his opening brief suggesting the trial court was precluded from reconsidering its credibility determinations before entering a final order. In his reply brief, he argues for the first time that his conduct did not "constitute evidence . . . even to the extent that the trial court 'consider[ed his] in-court behavior is assessing the credibility of the parties' testimony.'" Relying primarily on Evidence Code section 780, he claims the court could not properly rely on his courtroom behavior "both because that behavior was not evidence at all and because factfinders are prohibited from using specific instances of conduct for the sole purpose of making credibility determinations."

Even assuming this argument is preserved, we are unpersuaded by it. Evidence Code section 780 provides that "[e]xcept as otherwise provided by statute, the [trial] court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of [the witness's] testimony at the hearing, including but not limited to" 11 listed matters. (Italics added.) These include the witness's "demeanor while testifying" and "attitude toward the action in which [the witness] testifies or toward the giving of testimony." (Evid. Code, § 780, subds. (a), (j).) Although Dart claims that Evidence Code section 780 "restricts [credibility] determinations to narrowly defined instances such as" those listed, the italicized statutory language plainly makes the list nonexclusive. Furthermore, the list includes matters that occur in the courtroom and need not be separately admitted into evidence, such as a witness's demeanor. In short, Dart fails to demonstrate that this statute, or any other, precluded the trial court from relying on his courtroom behavior to reassess his or Bays's credibility.

C. The Trial Court Did Not Err by Awarding Sole Custody to Bays.

Dart also claims the trial court abused its discretion by awarding sole legal and physical custody of son to Bays. Again, we are not persuaded.

"When there are competing parental claims to custody, the family court must conduct an adversarial proceeding and ultimately make an award that is in 'the best interest of the child.'" (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1053, quoting § 3040, subd. (b).) To determine a child's best interest, a court must consider several factors, "including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents." (In re Marriage of Brown &Yana (2006) 37 Cal.4th 947, 955-956; § 3011, subd. (a).)

We review a custody order for an abuse of discretion. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.) Under this standard, "reversal is only warranted 'if there is no reasonable basis upon which the trial court could conclude that its decision advanced the best interests of the child.'" (Ed H. v. Ashley C. (2017) 14 Cal.App.5th 899, 904.) Again, we presume that the challenged order was correct. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.)

Similar to his argument for reversing the DVRO, Dart claims the trial court erred by basing its custody determination on his courtroom behavior, not son's best interest. According to Dart, since the court had previously said there was no evidence to support an award of sole custody to either parent, it could not rely on his expressed "frustration in not being able to see his son" to conclude that awarding sole custody to Bays was in son's best interest. But as we have explained, the court could and did reassess the credibility of Bays's claims of past abuse based on Dart's outburst. In turn, having concluded that there was sufficient evidence of past abuse to issue a DVRO, the court was prohibited from awarding sole or joint custody to Dart unless it made findings overcoming the section 3044 presumption. (See § 3044, subds. (a)-(b).) The court's written order confirms that it made no such findings. Dart does not mention this presumption in challenging the custody order, much less argue that the court could not properly rely on it to deny him custody of son.

III.

DISPOSITION

The October 11, 2023 DVRO and custody order are affirmed. Bays is entitled to her costs on appeal.

WE CONCUR: BANKE, J., HILL, J. [*]

[*] Judge of the Superior Court of the County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

Bays v. Dart

California Court of Appeals, First District, First Division
Nov 20, 2024
No. A169312 (Cal. Ct. App. Nov. 20, 2024)
Case details for

Bays v. Dart

Case Details

Full title:NICOL BAYS, Plaintiff and Respondent, v. NATHANIEL DART, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Nov 20, 2024

Citations

No. A169312 (Cal. Ct. App. Nov. 20, 2024)