Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIV11566. Jean P. Leonard, Judge.
Donald J. K., in propria persona, for Appellant.
Kimberly L. K., in propria persona, for Respondent.
OPINION
MILLER, J.
INTRODUCTION
Upon the application of Kimberly K., the family court issued a temporary restraining order, and later a permanent restraining order, against Kimberly’s husband, Donald K. On appeal Donald challenges the permanent order, contending the family court exceeded its jurisdiction in making the order because a similar one previously issued by the juvenile court took priority. Finding no merit to that contention or any other of Donald’s claims, we affirm.
We refer to the parties by their given names, not out of any familiarity or disrespect, but rather, because this is the accepted practice in cases of this nature. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 8033, fn. 2.)
On June 14, 2007, Kimberly filed a motion to strike references in Donald’s opening brief to matters outside the record, particularly Donald’s juvenile dependency appeal in case number E041005. Kimberly further alleged that, in using his opening brief as a means of asking us to take judicial notice, Donald failed to comply with applicable court rules. On June 15, 2007, Donald filed a formal request, asking us to take judicial notice of the record in case number E041005. On June 27, 2007, Kimberly filed opposition to the request, indicating that she had not been provided with a copy of the judicially noticed materials and that, since she was not a party to that appeal, she is not otherwise privy to the record. By order dated July 13, 2007, we reserved for decision with the appeal our ruling on Kimberly’s motion to strike, and by order dated July 16, 2007, granted Donald’s request for judicial notice. Having thereafter afforded Kimberly an opportunity to obtain from Donald access to the record in case number E041005, we now deny her motion.
FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2006, Kimberly filed an ex parte request for a restraining order against Donald under the Domestic Violence Prevention Act. (Fam. Code, §§ 6200 et seq.) By her application, Kimberly asked the court, among other things, to order Donald to stay at least 100 yards from her, as well as the other residents of her home, including the parties’ three minor children and her stepdaughter, J.K. (Donald’s daughter from a prior marriage), who is developmentally disabled. Kimberly also asked the court to order Donald to move from and not return to the family home. On March 15, 2006, the court granted Kimberly’s request and issued a temporary restraining order, with a hearing set for April 4, 2006, and scheduled mandatory mediation for March 27, 2006. The court also awarded custody of the minor children to Kimberly, without any mention of visitation for Donald.
Unless otherwise indicated, further statutory references are to the Family Code.
The nature of the abuse alleged by Kimberly is not pertinent to the issues raised on appeal and thus need not be described here in any detail. Suffice it to state, Kimberly alleged, among other things, that Donald, several hours after yelling profanities at her and assaulting her in the presence of one of their minor children, pointed a gun at her and “[t]hreatened to kill [her] and blow [her] head off.”
The same day that the temporary restraining order was issued, and based in part on the circumstances alleged in Kimberly’s application, the Riverside County Department of Public Social Services (DPSS) filed a petition in the juvenile court alleging that the three minor children came within Welfare and Institutions Code section 300, subdivisions (a), (b), and (c). According to DPSS’s detention report, an emergency protective order had been issued the previous month, requiring Donald to move out of the family home and to stay at least 100 yards from Kimberly and the children, and directing Kimberly to file a restraining order within five days. Although Kimberly obtained such an order, she apparently did not enforce it.
On March 30, 2006, Donald filed an answer, essentially refuting the allegations set forth in Kimberly’s application.
On April 4, 2006, the matter was continued to August 21, 2006. The court’s minute order indicates that it reissued the temporary restraining order, which was to remain in full force and effect pending the next hearing or until further order of court, and denied Donald’s request for a stay pending appeal.
Because Donald has elected to proceed without a reporter’s transcript, we are not privy to what transpired at this hearing. In her brief, Kimberly states Donald “arrived almost three hours late and indicated that he was not ready to proceed as he was in the process of trying to find housing. [Donald] objected to the restraining orders, requested a full trial, and made an oral motion before the court for a stay pending appeal. The court set the trial, with additional time to allow [Donald] to get settled in a new home and prepare for the trial at his request, for August 21, 2006, and denied [Donald’s] motion for stay.”
At a juvenile court hearing a week later, the court continued the jurisdictional hearing to May 25, 2006. At the hearing, Kimberly informed the court that a temporary restraining order had been issued in the family law matter and that a hearing was set for August 21, 2006. The court stated: “Let that one go here, and I’ll issue one here. That’s stupid to do that. Give notice to [Donald] that an OSC for the permanent order will be set in this court on the May 25th date. . . . And then if we could get the County Counsel’s Office to prepare that as a permanent order since the TRO issued in family law. That will be a permanent order, OSC date, here May 25th.”
On May 25, 2006, the juvenile court took jurisdiction over the minor children and issued a permanent restraining order, to expire at midnight on May 25, 2009, prohibiting Donald from contacting, molesting, attacking, striking, threatening, sexually assaulting, battering, or telephoning Kimberly, and further, from following, stalking, sending messages to, telephoning, destroying the personal property of, or disturbing the peace of Kimberly and the minor children. Donald was also ordered to stay at least 100 yards from Kimberly, the minor children, and their residence; from the children’s school or child care; and from Kimberly’s place of business and vehicle. A formal order was apparently signed in court, but does not appear in the juvenile court record. During the course of that hearing, after Kimberly’s counsel informed the court that a hearing in the family court was scheduled for late August, the court stated: “The hearing in family law as to the restraining order obviously will be vacated.”
We presume this order was made pursuant to Welfare and Institutions Code section 213.5, subdivisions (a) and (d).
At the scheduled hearing in family court on August 21, 2006, Kimberly apprised the court that the juvenile court had already issued a restraining order, to expire in three years, but noted that the order did not include her stepdaughter, J.K. After a discussion between the court and the parties, the court proceeded to issue its own restraining order against Donald, to expire at midnight on August 21, 2011. By that order, Donald was directed, among other things, to stay at least 100 yards from Kimberly, the minor children, and their home; Kimberly’s place of employment and vehicle; the children’s school and daycare; and J.K. and her daycare. The court read the restraining orders aloud to Donald in open court. The court further indicated that all custody and visitation orders regarding the minor children would be pursuant to order of the juvenile court. The court denied Donald’s request to have contact with J.K., indicating that “he is to go through the attorneys involved.”
Donald’s notice of appeal was filed 59 days later.
DISCUSSION
Asserting five separate grounds, Donald contends the permanent restraining order issued by the family court cannot stand. As we have already said, his claims are meritless. Before addressing the reasons for our conclusion, we summarize pertinent sections of the Family Code relating to domestic violence protective orders.
As previously indicated, Kimberly’s ex parte request for a restraining order was predicated on the Domestic Violence Prevention Act, codified at sections 6200 et seq. Pursuant to section 6220, “[t]he purposes of [the act] are to prevent the recurrence of acts of violence 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.” Section 6211 defines domestic violence as “abuse perpetrated against,” among others, “[a] spouse or former spouse[,]” “[a] child of a party . . .” and “[a]ny other persons related by consanguinity or affinity within the second degree.” The term “‘[a]ffinity,’ when applied to the marriage relation, signifies the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other.” (§ 6205.) For purposes of the act, to “abuse” means to intentionally or recklessly cause or attempt to cause bodily injury; to sexually assault; to place a person in reasonable apprehension of imminent serious bodily injury; or to engage in any behavior that has been or could be enjoined pursuant to section 6320. (§ 6203.) Section 6320 provides for the issuance of ex parte orders enjoining a party from making certain proscribed forms of contact with the other party and, “in the discretion of the court, on a showing of good cause, of other named family or household members.”
As for the applicable standard of review, because Donald expressly requested that no reporter’s transcript be prepared, this matter comes to us as a judgment roll appeal. Accordingly, “every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed. The sufficiency of the evidence is not open to review. The trial court’s findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record. [Citation.]” (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.)
With the foregoing as a backdrop, we turn now to Donald’s various claims.
A. The family court did not err insofar as it proceeded to hear the merits of the restraining order even though a juvenile dependency proceeding was pending and a juvenile court restraining order had already been issued.
Donald maintains the family court erred in proceeding with the hearing on August 21, 2006, because the hearing “had previously been vacated by the juvenile court.” He is mistaken. On May 25, 2006, the juvenile court remarked that “[t]he hearing in family law as to the restraining order obviously will be vacated.” The juvenile court did not vacate any order or hearing. Nor did it have the power to do so. (See, e.g., Williams v. Superior Court (1939) 14 Cal.2d 656, 662.)
B. The permanent restraining order is not unenforceable on the ground the hearing was not held in a timely fashion.
Section 242, subdivision (a), provides that a temporary restraining order “shall be made returnable on an order requiring cause to be shown why a permanent order should not be granted, on the earliest day that the business of the court will permit, but not later than 20 days or, if good cause appears to the court, 25 days from the date of the order.” Pursuant to subdivision (b), “[i]f a hearing is not held within the time provided in subdivision (a), the court may nonetheless hear the matter, but the order is unenforceable unless reissued under Section 245 [providing for reissuance of an order which had been dissolved for failure to serve the respondent].”
Citing section 242, Donald contends the court failed to comply with the statutory requirements when, on April 4, 2006, it continued the hearing to August 21, 2006, a date more than four months later. We reject Donald’s position.
Notwithstanding the requirements of section 242, subdivision (a), the court was authorized pursuant to section 243, subdivision (e), to continue the hearing, at the request of the responding party (here, Donald), for a reasonable period to respond to the application for the order. And while we presume that the Legislature intended any continuance to be “reasonable” in duration, in the absence of a reporter’s transcript of proceedings held on April 4, 2006, we may presume that the court acted appropriately in giving Donald what it deemed to be ample time to prepare for the hearing.
As for what transpired at the April 4 hearing, Donald asserts that “both parties stood ready,” and that “[n]o requests from either party were made for a continuance.” Kimberly, however, asserts that Donald expressly asked the court for a continuance because he was not ready. In light of the fact the court did continue the hearing, we presume that a request was made and that Kimberly’s account of what happened is accurate. Moreover, when the court indicated that it was continuing the hearing to August 21, 2006, Donald apparently did not object; if he did, we cannot know because he failed to provide us with a reporter’s transcript. In short, in the absence of a reporter’s transcript, Donald simply cannot rely on his version of events as a means of challenging the court’s ability to make an enforceable restraining order.
C. The court did not err in issuing a restraining order for the protection of J.K.
Donald insists the permanent restraining order is improper insofar as it names J.K. as a protected individual because she is an adult who did not herself seek a protective order. He contends the court had no jurisdiction over J.K. and thus no power to hear the case insofar as it concerned her, and that whether the court acted without jurisdiction or in excess of jurisdiction, it acted illegally. Donald’s argument is entirely off the mark. He provides no authority for the proposition that J.K. needed to be a party to the proceeding in which the restraining order was sought before she could be named in the order.
Section 6320 authorizes the court to issue an ex parte order enjoining one party from contacting another party “and, in the discretion of the court, on a showing of good cause, [] other named family or household members.” Section 6340 authorizes the court to issue any of the orders described in section 6320 “after notice and a hearing.”
Not only was J.K. a member of Kimberly’s household for purposes of sections 6320 and 6340, but also, as Kimberly’s stepdaughter, she fell within the ambit of section 6211’s definition of domestic violence as abuse perpetrated against a person related by affinity. (§ 6205.) Moreover, in light of the fact that J.K. is developmentally disabled, it seems safe to say there was good cause for the court to include her as a named individual on the restraining order. Indeed, in making its order, the court utilized a preprinted Judicial Council JV-130 form, apparently submitted by Kimberly. In the absence of a reporter’s transcript, we may presume that during the discussion between the court and the parties, the court learned that J.K. attended some type of daycare facility and determined that protecting her from Donald while at that facility was essential. We perceive no error.
Although Kimberly’s application for restraining order does not allege any particular facts concerning abuse to J.K., Kimberly does assert that Donald “attempts to hit the children, and [she has] to physically place [herself] between him and the children in order to protect them.” We presume that Kimberly was referring to all four children.
D. In naming J.K. on the application for restraining order, Kimberly was not practicing law without a license.
Donald maintains that Kimberly was acting as J.K.’s lawyer in asserting a request for a restraining order on her stepdaughter’s behalf. This position is unfounded. Kimberly was not representing J.K.; she merely named J.K. as a member of her household who was in need of protection from Donald.
E. Donald was not denied due process by virtue of the family court’s issuance of a restraining order which essentially duplicated—and extended by two years—the restraints imposed upon him by the juvenile court’s order.
Finally, Donald contends that because the juvenile court acquired jurisdiction over the children on May 25, 2006, any action thereafter taken by the family court is essentially a nullity. He is mistaken. True, once a child is declared a dependent of the juvenile court, only that court retains jurisdiction over issues pertaining to custody and visitation. (See, e.g., In re Travis D. (1991) 233 Cal.App.3d 492, 498-499) However, we are unaware of any authority for the proposition the family court’s restraining order cannot stand because the juvenile court had already issued a similar order.
Donald’s reliance on In re Marriage of Seaman (1991) 1 Cal.App.4th 1489 is inapt. The trial court in that case ordered one spouse to pay the other’s attorney’s fees incurred in a juvenile dependency proceeding, and the appellate court reversed. In distinguishing dependency proceedings from marital dissolution proceedings, the court recognized that “juvenile court proceedings take precedence over other proceedings affecting the custody of children so that once a minor has been adjudged a dependent child of the juvenile court no other superior court may entertain proceedings regarding the child’s custody until the child is no longer a dependent of the juvenile court. [Citation.]” (Id. at pp. 1498-1499.)
Here, the family court recognized this when, in issuing its restraining order, it expressly deferred to the juvenile court all matters pertaining to the custody of the children. Donald acknowledges this fact, but insists nonetheless that the family court was required to also defer any issue regarding the requested restraining order, and that its failure to do so deprived him of due process. He provides no authority for this proposition, and we are aware of none.
Sections 6221 and 6227 shed some light on the question presented. Pursuant to section 6221, subdivision (b), “[n]othing in [the Domestic Violence Prevention Act] affects the jurisdiction of the juvenile court.” According to comments of the California Law Revision Commission, subdivision (b) was enacted “to help to ensure that conflicts of jurisdiction between the family court and the juvenile court do not arise.” (23 Cal.Law.Rev.Comm.Reports 1 (1993).) Further, section 6227 states that “[t]he remedies provided in [the act] are in addition to any other civil or criminal remedies that may be available to the petitioner.” Viewing these statutes together, we conclude that nothing in the law prohibits juvenile and family courts from exercising concurrent jurisdiction in the issuance of restraining orders and injunctions against domestic violence.
In any event, even if we were to find that the family law order is unduly duplicative of the juvenile court order with regard to Kimberly and the three minor children, the order issued by the family court was a necessity as to J.K., who was not named (and could not have been named) in the juvenile court order. Accordingly, that portion of the family court order pertaining to J.K. would survive.
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
In her concluding paragraph, Kimberly asks the court to assess sanctions against Donald for filing a frivolous appeal for the sole purpose of harassing her. Pursuant to rule 8.276(e), sanctions may be assessed either on a party’s motion or on the court’s own motion. We deny the request.
We concur: McKINSTER, Acting P.J., KING, J.