Opinion
G054256
06-22-2018
In re Marriage of KIRSTEN BLANCHARD and KENNETH ALAN COOK. KIRSTEN BLANCHARD COOK Appellant, v. KENNETH ALAN COOK, Respondent.
Kirsten Blanchard Cook, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09D000398) OPINION Appeal from an order of the Superior Court of Orange County, Sherri L. Honer, Judge. Affirmed. Kirsten Blanchard Cook, in pro. per., for Appellant. No appearance for Respondent.
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INTRODUCTION
Kirsten Blanchard Cook appeals from a domestic violence restraining order requiring her to stay away from her former husband, Kenneth Alan Cook (Alan), and their minor son for a period of three years. We reject each of Kirsten's contentions of error and affirm. We conclude (1) the trial court did not err by issuing the restraining order after Kirsten appealed from the court's order denying her special motion to strike under Code of Civil Procedure section 425.16; (2) the trial court did not abuse its discretion by denying a motion by Kirsten's counsel to continue the conclusion of the hearing on the request for a restraining order; and (3) substantial evidence supported the domestic violence restraining order.
For clarity, we refer to Kirsten Blanchard Cook as Kirsten and Kenneth Alan Cook as Alan.
BACKGROUND
Kirsten's challenge to the domestic violence restraining order is the latest chapter in the history of what Alan testified had been "contentious, high-conflict, out of control, irrational" marital dissolution-related proceedings that, he testified at the hearing on the petition, had been going on for seven and a half years.
I.
ALAN FILES THE PETITION.
In February 2016, Alan filed a request for a domestic violence restraining order (the petition) in which he sought a domestic violence restraining order against Kirsten to protect himself and their then 17-year old daughter and 15-year old son. In relation to himself and the children, Alan specifically requested the court order Kirsten not to "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate (on the Internet, electronically or otherwise), or block movement." He also asked for the right to record communications made to him by Kirsten that would violate the court's orders and further asked the court to order Kirsten to complete a 52-week batterer intervention program and submit to "a mental health evaluation and treatment program to address the issues causing this continuing litigation, waste of resources and disruption to me & [the] children."
In the petition, Alan stated that the family court had restricted Kirsten's contact with the children to monitored/supervised visitation. Kirsten was not permitted unplanned, unmonitored or unsupervised contact with them. Alan has sole legal and physical custody of the children.
Alan stated in the petition that Kirsten had a history of irrational behavior. He explained that, on the one hand, she had accused him of abuse and harassment in various court filings and asserted she fled the country for fear of violence by him, but, on the other hand, on February 4, 2016, she showed up unannounced and uninvited in the driveway of the home he shared with the children. Alan stated he was fearful that Kirsten would continue to escalate her intimidation, surveillance, stalking, and threatening actions disrupting his and their children's peace.
II.
KIRSTEN FILES A SPECIAL MOTION TO STRIKE THE PETITION; ON APRIL 22, 2016, THE
TRIAL COURT DENIES HER MOTION AND COMMENCES THE EVIDENTIARY HEARING ON
THE PETITION.
In response to the petition, in March 2016, Kirsten filed a special motion to strike the petition under Code of Civil Procedure section 425.16 because she alleged it was based on protected petitioning activity. On Friday, April 22, 2016, the trial court heard argument on Kirsten's special motion to strike. After questioning whether a petition for a domestic violence restraining order can be challenged by way of a special motion to strike under Code of Civil Procedure section 425.16, the trial court orally announced its ruling to deny the special motion on the merits. Kirsten's attorney, Patricia Barry, asked the court to stay further proceedings "because once I file the notice of appeal, your ruling cannot go into effect."
The court did not stay trial court proceedings at that point but moved on to the hearing on the petition. The trial court informed the parties it would be considering only evidence presented at the hearing in ruling on the petition.
Alan testified about the behavior he described in the petition. He testified that Kirsten asserts she fears for her life because of him, but then on February 4, 2016, she showed up at his residence twice, notwithstanding the fact the children lived there (who were not home at the time) and Kirsten was not permitted unplanned, unmonitored contact with them. Alan was also concerned that she knew where he lived because his address was supposed to be confidential and not listed in court records. Alan testified that when Kirsten appeared at his residence, she was accompanied by Ann Case. Alan testified that Kirsten had once used Case's telephone to contact the children in violation of the court's contact orders. Alan further testified that he called the number that was used to call the children and spoke with a man he did not know who threatened Alan.
Alan presented evidence of letters Kirsten wrote to the children in violation of the monitored contact order. He also produced evidence of four e-mails Kirsten wrote to him that were in his opinion "highly abusive, verbally abusive." These exhibits are not in the appellate record. The court ordered all parties to return to court for the continuation of the evidentiary hearing on the petition on Monday, April 25, 2016.
III.
ON APRIL 25, 2016, THE EVIDENTIARY HEARING ON THE PETITION RESUMES.
At the beginning of the hearing on April 25, 2016, the trial court stated: "We are in the middle of an evidentiary hearing on a request for a domestic violence restraining order. The court was . . . handed this morning a notice of appeal with respect to the court's ruling on Friday with respect to the denial of the anti-SLAPP motion." The court stated it found the notice of appeal was premature because it was from an oral ruling and no written minute order or signed order had been prepared. The court stated it would proceed with the evidentiary hearing, continuing where it had left off, with the cross-examination of Alan. Alan rested his case-in-chief after his testimony concluded. Kirsten called Case to testify. The court recessed during Alan's cross-examination of Case and ordered the parties to return the following day. Our record does not show the hearing resumed until September 15, 2016.
IV.
THE SEPTEMBER 15, 2016 HEARING: THE TRIAL COURT SUMMARIZES THE PROCEDURAL
HISTORY OF THE EVIDENTIARY HEARING ON THE PETITION, DENIES KIRSTEN'S REQUEST
FOR A CONTINUANCE, AND ISSUES A DOMESTIC VIOLENCE RESTRAINING ORDER;
KIRSTEN APPEALS.
At the September 15, 2016 hearing, the trial court summarized the history of the evidentiary hearing on the petition as follows: "The hearing on the request for restraining order was initially set for April 22, 2016. The parties were sworn the court began to take testimony. The matter was then continued to April 25, 2016. The court continued to take testimony that the petitioner—I'm sorry, the respondent, moving party, Mr. Cook, rested his case and chief.
"Ms. Cook called her first witness in this case which was witness Ann Case and prior to the end of the day on April 25, 2016, Ms. Case's testimony had not been completed. The court—we had finish[ed] the direct testimony of Ms. Case and had beg[u]n the cross-examination but the cross-examination had not been completed.
"Thereafter, Ms. Cook . . . filed an appeal from the anti-SLAPP—from the denial of the anti-SLAPP motion and this court stayed the hearing on the request for the domestic violence restraining order pending that appeal.
"This court received notice from the [C]ourt of [A]ppeal that the appeal was dismissed and a remittitur was issued. Thereafter, the court reset this matter for the conclusion of the domestic violence restraining order hearing to today's date and the clerk gave notice to both parties.
"It should be noted that some time last week Ms. Barry did appear and I'm not sure if she filed paperwork or if she just appeared in court. The court was not here but I was informed by the courtroom assistant that she appeared requesting a continuance claiming that Ms. Cook had started a new job and wasn't going not be able to be here. Also that Ms. Barry had a hearing for the State Bar this afternoon and that she had some—Ms. Barry had some issues with transportation.
"The court notified the courtroom assistant that none of the grounds that Ms. Barry stated was a good cause to continue since this was a request for a restraining order which had already been in progress and had already been delayed and that the court was going to be proceeding on today's date.
"The court also had its courtroom assistant notify the State Bar and the information which was provided by Ms. Barry to the courtroom assistant. The courtroom assistant notified the State Bar that Ms. Barry had been ordered to appear today, this morning, for the restraining order—for conclusion of the restraining order hearing.
"As I indicated Ms. Barry did appear this morning for the conclusion of the hearing and she did not have with her either the Petitioner [Kirsten] who indicated was not appearing because she was at work and she wasn't going to appear. She also didn't bring with her the witness, Ann Case, whose testimony was in progress.
"Based on that the court struck the testimony of Ms. Case and indicated that the court would be issuing its ruling solely on the [testimony] that was presented at the hearing and the exhibits admitted at the hearing.
"Both parties were given—both Mr. Cook and Ms. Barry were given an opportunity to present some argument on the issue, and the court ordered everyone to return at 1:30 for the court's ruling. And the court is now ready to issue its ruling."
The court stated it would grant the petition and issue a domestic violence restraining order against Kirsten for a period of three years that would protect Alan and the Cooks' minor son (their daughter turned 18 years old during the course of the proceedings).
The court's order provided that Kirsten must not "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate (on the Internet, electronically or otherwise), or block movements." The order provided that Kirsten not "[c]ontact [Alan or their minor son], either directly or indirectly, by any means, including, but not limited to, by telephone, mail, e-mail, or other electronic means" and must not "[t]ake any action, directly or through others, to obtain the addresses or locations of any protected persons." The court also ordered Kirsten to stay at least 100 yards away from (1) Alan and their minor son, (2) their home, (3) Alan's job and vehicle, and (4) their son's school. The court ordered Kirsten to complete a 26-week anger management program and noted that an online or accelerated course would not be accepted.
DISCUSSION
I.
KIRSTEN HAS FAILED TO SHOW THE TRIAL COURT FAILED TO TIMELY STAY THE COURT
PROCEEDINGS PENDING RESOLUTION OF HER APPEAL.
In her appellate brief, Kirsten argues that the proceedings on April 25, 2016 pertaining to Alan's request for a domestic violence protective order are "void" because she had filed a notice of appeal on that day from the order denying her special motion to strike, which, she contends, automatically stayed the trial court proceedings. She states she seeks "a declaratory ruling that the April 25 through May 6, 2016 proceedings are void."
We first note that our record does not contain a transcript or minute orders showing what trial court activity occurred after April 25 and before September 15, 2016. As to whether the trial court improperly proceeded with the evidentiary hearing on April 25, we have no record of Kirsten's appeal from the order denying her special motion to strike. Our record contains the reporter's transcript from the September 15, 2016 hearing during which the trial court stated that on April 25, 2016, it heard testimony from Alan, Case's direct examination, part of her cross-examination, and that "[t]hereafter, Ms. Cook had filed an appeal from the anti-SLAPP—from the denial of the anti-SLAPP motion and this court stayed the hearing on the request for the domestic violence restraining order pending that appeal. [¶] This court received notice from the Court of Appeal that the appeal was dismissed and a remittitur was issued. Thereafter, the court reset this matter for the conclusion of the domestic violence restraining order hearing to today's date and the clerk gave notice to both parties."
The clerk's transcript contains a register of actions containing some entries in that timeframe. --------
There is nothing in the record to show the trial court continued with any hearing in this case, on April 25 or otherwise, after Kirsten filed a notice of appeal from the order denying her special motion to strike. While the reporter's transcript of the April 25, 2016 hearing shows the trial court had been handed "a notice of appeal," which the court considered to be "premature," that document is not included in our record.
Kirsten, as the appellant, bears the burden of providing a record affirmatively proving error. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) She failed to do so. We therefore reject her argument that any proceedings in the trial court should be declared void on that basis.
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING KIRSTEN'S COUNSEL'S
ORAL REQUEST TO CONTINUE THE SEPTEMBER 15, 2016 HEARING.
Kirsten contends the trial court abused its discretion by denying her counsel's oral request to continue the September 15, 2016 hearing. Her argument is without merit.
California Rules of Court, rule 3.1332(b) sets forth the procedures a party must follow in requesting a continuance: "A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application . . . with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered." (Italics added.) Rule 3.1332(c) states: "Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance."
Good cause, as set forth in rule 3.1332(c), includes (1) the unavailability of an essential expert or lay witness because of death, illness, or other excusable circumstances; (2) the unavailability of a party because of death, illness, or other excusable circumstances; (3) the unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) the substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; and (5) under specified circumstances involving the addition of a new party to the case. "Although a trial court may excuse failure to comply with the requirement of a declaration in support of a motion for continuance [citations], the court is not required to do so." (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 172.) As a matter of law, there is no right to a continuance. (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 648.)
Here, Kirsten did not file a noticed motion or declarations supporting her request, and did not submit an ex parte application seeking a continuance of the hearing pursuant to California Rules of Court, rule 3.1332(b). The record does not show any circumstances that would have prevented Kirsten from complying with the requirements of rule 3.1332(b). Neither Kirsten nor Barry made any attempt to explain Kirsten's failure to file a written request for a continuance or why she should be excused from doing so.
Even assuming Kirsten's failure to make the requisite written request for a continuance with supporting declarations was excused, which it was not, she failed to demonstrate any good cause supporting such a request. Kirsten's oral request for continuance was not based on any of the factors which may establish good cause. There was no issue of the unavailability of an essential expert or lay witness, or the addition of a new party to the case. When she appeared in court the morning of September 15, 2016, Barry informed the court that Kirsten would not be present that day because she was at work at a new job and that Barry also would not be available to appear later that day because she had a State Bar hearing and she "had some issues with transportation." Although Barry appeared in the morning on September 15, she did not bring Case, whose testimony was in progress; Barry confirmed to the court that she had not asked Case to appear that day.
The request for a continuance was not based on the substitution of counsel or the unavailability of counsel because of death, illness, or other excusable circumstances. We find no error.
III.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ISSUING THE DOMESTIC
VIOLENCE RESTRAINING ORDER AGAINST KIRSTEN.
A.
General Legal Principles Governing Renewals of Domestic Violence Restraining Orders
and the Applicable Standard of Review.
The Domestic Violence Prevention Act's purpose "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." (Fam. Code, § 6220.) The term "abuse" is defined in Family Code section 6203 as intentionally or recklessly causing or attempting to cause bodily injury (id., subd. (a)(1)); committing a sexual assault (id., subd. (a)(2)); placing a person in reasonable apprehension of imminent serious bodily injury to that person or another person (id., subd. (a)(3)); or "behavior that has been or could be enjoined pursuant to Section 6320" (id., subd. (a)(4)).
Family Code section 6320 in turn permits the court to enjoin "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, . . . or disturbing the peace of the other party." (Id., subd. (a).) As a result, abuse under the Domestic Violence Prevention Act includes physical abuse or injury, as well as acts that "destroy[] the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497; see Fam. Code, § 6203, subd. (b) ["Abuse is not limited to the actual infliction of physical injury or assault"].)
Courts construe the Domestic Violence Prevention Act liberally (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334) and may issue a domestic violence restraining order when the applicant makes the requisite showing by a preponderance of the evidence (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137). We review the trial court's issuance of a domestic violence restraining order under the abuse of discretion standard. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782.) We must affirm the determination of the trial court if there is any credible evidence to support its factual findings. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
B.
The Trial Court Did Not Abuse its Discretion by Issuing the Domestic Violence
Restraining Order.
The trial court did not abuse its discretion in issuing the domestic violence restraining order against Kirsten. Alan's testimony, which the court found credible, showed he had suffered abuse within the meaning of the Domestic Violence Prevention Act. Alan testified the parties have experienced a highly volatile and contentious divorce and custody proceedings for years. The court had previously ordered that Kirsten's contact with the minor children be planned and monitored. Nevertheless, Kirsten sent letters to the children in violation of the court's order and contacted the children by using a friend's telephone. When Alan called the number by which Kirsten had called the children, an unidentified man threatened Alan.
Kirsten had also sent Alan e-mails he found to be verbally abusive. The court described such a communication in which Kirsten accuses Alan of having murdered their older son (who had committed suicide). Kirsten does not deny making that communication. On February 4, 2016, Kirsten appeared, without warning, at the home Alan shared with their children. Her unpredictable behavior and history of violating the court's order caused Alan fear and destroyed his emotional calm. Alan's testimony therefore constituted the requisite substantial evidence to support the issuance of the domestic violence restraining order against Kirsten. Kirsten does not argue the trial court erred in applying the law in making its ruling. We find no error.
DISPOSITION
The order is affirmed. Respondent did not appear on appeal so no costs are awarded.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.