Opinion
B325700
07-30-2024
IN RE MARRIAGE OF MITCHELL. v. TRICIA A. MITCHELL, Defendant and Appellant. DAMIEN S. MITCHELL, Plaintiff and Respondent,
Law Offices of Melissa B. Buchman and Melissa B. Buchman, for Plaintiff and Appellant. James Karagianides, for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20STFL03239, Michael R. Powell, Judge.
Law Offices of Melissa B. Buchman and Melissa B. Buchman, for Plaintiff and Appellant.
James Karagianides, for Respondent.
MORI, J.
Appellant Tricia A. Mitchell requested a domestic violence restraining order (DVRO) against Damien S. Mitchell. Damien had called Tricia's father and asked if he could help the parties settle their dissolution litigation. Tricia asserted the call destroyed her emotional calm because she had not yet told her father the details of her divorce. Following a hearing, the trial court determined Tricia did not meet her burden of proving a DVRO was warranted. We affirm.
"As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect." (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition for Dissolution
Tricia and Damien married in April 2010 and have two children together. The parties dispute their date of separation. In March 2020, Damien filed a petition for dissolution.
B. Tricia's and Damien's Previous DVRO Requests
In January 2022, Tricia filed a request for a DVRO against Damien. Tricia alleged that in August 2021, Damien arrived at her home to pick up their children and was verbally abusive and lunged at her.
In March 2022, Damien filed his own DVRO request against Tricia. Damien alleged that during the August 2021 incident, Tricia shoved him and attempted to hit him. Damien also alleged incidents of prior abuse occurring between 2016 and 2020. He alleged Tricia extorted money from him, threatened to report him to law enforcement and "child services," threatened to kill him, and physically assaulted him on multiple occasions.
The trial court heard the competing requests for DVROs in April 2022. Regarding the August 2021 incident, Tricia testified Damien arrived at her home angry, pushed her, and tried to barge in when she opened the door. Damien denied pushing her. He testified that Tricia had abused him as described in his DVRO request.
The trial court denied Tricia's DVRO request because it found she was untruthful about the August 2021 incident. The court stated she "outright lied." Damien was granted a three-year restraining order against Tricia. The court noted Damien's claims of past abuse, including being extorted and physically assaulted, "basically went unchallenged." The court found Damien established a pattern concerning Tricia's threats, and it did not believe "[Damien] outright lied to [the court], like [Tricia] did." Tricia did not appeal the order.
C. Tricia's Second DVRO Request
On September 13, 2022, Tricia filed a second request for a DVRO against Damien. She filed a declaration with the request stating that Damien called her father and older brother in Barbados to disparage her. Tricia indicated Damien called her father on September 2, 2022. She spoke with her father two days later, and her father said Damien told him she "lost the children and the children do not like [her]," and that her father "needed to talk to [her] and get [her] to cooperate with what Damien wanted." Tricia stated her call with her father "emotionally destroyed" her because she had not told her family in Barbados the details of her divorce.
Tricia filed declarations from her father and brother with the DVRO request. Tricia's father indicated that on September 2, 2022, he received three calls from Damien. Tricia's father did not know it was Damien calling until he answered the third call at 10:09 p.m. (Barbados time). He had not spoken to Damien in a little over a year and had not seen him in person since Thanksgiving in 2019.
Tricia's father stated Damien told him that he has "'total control'" of the children and Tricia was not going to "'get them back anymore.'" According to Tricia's father, Damien told him, with a "forceful" tone, that he "needed to talk to Tricia and get her to change her attitude and be more cooperative with what Damien wanted, and just settle." Tricia's father concluded by stating that Damien's "call to [him] was harassing and extremely uncomfortable" and he did not want "uninvited information" from Damien.
Tricia's brother stated that Damien called and told him he "needed to help Tricia by telling her to cooperate with him . . . [Damien] stated that he was 'winning' in the divorce, and that he was basically controlling everything. [Damien] explained that the kids are with him and he was nice enough to let Tricia see the kids and that [her brother] needed to tell Tricia to cooperate with him."
Tricia additionally alleged that Damien made demeaning comments to her in text messages. Tricia included a "sample" of the messages, which predated her first DVRO request. She claimed they showed Damien threatened to disparage her to her boyfriend and to share her messages with their children.
Damien filed a declaration with his response. He indicated that in late August 2022, he sent her a message asking, "'Do you want to try and come to a settlement so we can stop wasting time and money on court?'" Tricia did not respond. Damien stated that on September 2, 2022, he was 15 minutes late to drop off their children for their visitation with Tricia, which led to Tricia instructing her attorneys to email his attorneys "demanding . . . the 'immediate release [of] the children to Tricia's custody.'" Damien said that because he had a "decent relationship" with Tricia's father, and because he wanted to "explore all possible ways to end this litigation," he called Tricia's father to "ask him if there was any way that he could talk some reason into her." Damien stated they had a "very cordial conversation," and Tricia's father told him he would try and talk to Tricia. Damien denied calling Tricia's brother.
The trial court declined to issue a temporary restraining order pending the hearing on Tricia's second DVRO request.
D. The Hearing on Tricia's Second DVRO Request
The trial court held the hearing on Tricia's second DVRO request in October 2022. Tricia's father and brother appeared remotely. Her brother authenticated his declaration, and the parties stipulated to admitting Tricia's father's declaration into evidence.
Tricia then called Damien to testify. Damien denied speaking negatively about Tricia and said he told her father only that he had legal custody of the children. Damien denied his purpose in calling Tricia's father was to pressure her to settle on his terms. He stated he called Tricia's father because he wanted to see if he could help settle the case. When asked if he was aware that "Tricia's father was influential in [her] life," Damien responded, "I hope so." He characterized the conversation with Tricia's father as "amicable" and "cordial."
Additionally, Damien confirmed he sent the text messages Tricia submitted with her DVRO request. In these messages, he said he would tell her boyfriend she was a "'liar and a parasite.'" He also said, "'Stop pretending to be a mother to my children.'" However, Damien testified the messages lacked context and messages sent by Tricia were missing. He regretted saying Tricia was not a mother to his children.
The trial court announced its ruling at the end of the hearing. The court began by taking judicial notice of its files. The court noted the evidence did not support Tricia's claim that Damien's call to her father exacerbated an underlying condition she has, as the exacerbation predated her knowledge of the call. The court acknowledged that disturbing someone's peace could be done through third parties, but did not find that occurred. It reasoned, "The court has to look at the relationship of the parties that were engaged in the phone call. Whether anybody likes it or not, well, when you marry somebody, usually you will end up with a relationship by affinity to other people. That affinity creates a relationship potentially between the nonnatural connection between two people. And this is what we have in society. We call them mother-in-laws, we call them sister-inlaws, father-in-laws, et cetera. I think the court would be stretching this by saying that talking to somebody in the family about talking to another person in relation to their divorce is something that is prohibited or something that can't be discussed. Because it would be the proposition that this person that you were related to by affinity, you could never discuss your divorce with that sister or brother or mother or whatever it is. [sic]"
The trial court then stated about Damien's call to Tricia's father, "The question is whether or not, as far as this court is concerned, was that done in a harassing or nefarious way? And I don't think that [Tricia] has met that burden. Like I said, you're -- these people [that] are family members either by blood or by marriage. And to say that, you know, there's a dividing line that he cannot cross is a different story." The court believed the statements "were an attempt to try to get this resolved"; it did not "think that they were intended to use a third party in an inappropriate manner to upset, taunt, [or] harass [Tricia] in this case."
The trial court indicated it also looked at prior acts and considered that it previously found "[Tricia] to be the primary abuser." The court expressed, "This relationship is toxic beyond belief" and both parties made inappropriate statements. The court concluded, "[T]he bottom line is the court is going to find that there was no abuse in this case." The court found Tricia did not meet her burden of proof and denied her DVRO request.
Tricia timely appealed.
DISCUSSION
A. Legal Principles and Standard of Review
The Domestic Violence Prevention Act's (DVPA) 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.)
All undesignated statutory references are to the Family Code.
To carry out this purpose, trial courts "may" issue a restraining order based on "reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a).) "Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under [the DVPA]." (In re Marriage of Fregoso and Hernandez (2016) 5 Cal.App.5th 698, 702; see also Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433 ["the word 'may' connotes a discretionary or permissive act"].)
The DVPA defines "abuse" as "any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subd. (a).)
Section 6320 provides in relevant part, "The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, including, but not limited to, making annoying telephone calls as described in [s]ection 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party." (§ 6320, subd. (a).) "'[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).) "This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, internet- connected devices, or other electronic technologies. This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (Ibid.) "We review an order granting or denying a DVRO for abuse of discretion." (M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 11431144.) Whether the court applied the correct legal standard to an issue in exercising its discretion is a question of law requiring de novo review. (Jan F. v. Natalie F. (2023) 96 Cal.App.5th 583, 593.) To the extent we are called upon to review the trial court's factual findings, we apply the substantial evidence standard of review. (Curcio v. Pels (2020) 47 Cal.App.5th 1, 12 (Curcio).) We review the entire record to determine whether there is any substantial evidence, contradicted or uncontradicted, to support the trial court's findings. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) We must accept all evidence supporting the court's findings as true and resolve every conflict in favor of the judgment. (Ibid.) We do not reweigh the evidence, and we do not reverse, even if facts exist that may support a contrary finding. (Ibid.)
B. Tricia Does Not Demonstrate the Trial Court Employed an Incorrect Legal Standard
Tricia argues the trial court applied an incorrect legal standard by considering whether Damien called Tricia's father in a harassing or nefarious manner. She argues the court required her to prove not only that Damien disturbed her peace, but also that Damien had the specific intent to do so. We are not persuaded.
The record demonstrates that the trial court did not base its finding exclusively on Damien's intent in calling Tricia's father. The court found Tricia was not credible in claiming that the call to her father exacerbated an underlying condition she has. Then the court recognized the familial relationship between Damien and Tricia's father. The court considered whether Damien's call to his father-in-law was "done in a harassing or nefarious way" as opposed to "somebody talking to another family member." The court found "that the statements that were made were an attempt to try to get this resolved," indicating that it was not abusive to merely speak to a relative by affinity about one's divorce. The court found statements were not made to "use a third party in an inappropriate manner to upset, taunt, [or] harass [Tricia] in this case." Having taken judicial notice of its files, the court went on to analyze the past acts between the parties. It found that Damien made inappropriate statements to Tricia, but Tricia had been more aggressive toward Damien. For example, Tricia had physically abused and threatened to kill Damien previously. Thus, the court considered the totality of the circumstances surrounding Damien's call to Tricia's father in finding it did not qualify as abuse.
Tricia contends intent is only relevant to establish abuse under section 6203, subdivision (a)(1), which defines abuse as "intentionally" or "recklessly" causing or attempting to cause bodily injury. She asserts that because section 6203, subdivision (a)(4), incorporates section 6320, and section 6320 includes harassment and disturbing the peace without specifying intent or mens rea, Damien's purpose in calling Tricia's father was irrelevant. However, the trial court was required to consider the "totality of the circumstances" to determine whether to issue a permanent restraining order. (§ 6320, subd. (c); see § 6301, subd. (c) ["The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief'].) It was appropriate for the court to consider the purpose of the call as part of its analysis of the totality of the circumstances.
In further arguing that Damien's intent in making the call was improperly considered by the trial court, Tricia cites to Penal Code section 647.6, which concerns annoying or molesting children under 18 years old. Tricia asserts the terms "annoys" and "molests" in Penal Code section 647.6 must be construed under an objective test. We are not persuaded by Tricia's argument that the language used to discuss child molestation in Penal Code section 647.6 "is almost the same as under the DVPA," such that a similar test must apply.
Penal Code section 647.6, subdivision (a) states: "(1) Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment. [¶] (2) Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years of age, which conduct, if directed toward a child under 18 years of age, would be a violation of this section, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail for up to one year, or by both that fine and imprisonment."
Tricia also argues that the trial court did not require Damien to show that Tricia had nefarious intent when it granted Damien's DVRO request in April 2022, and this shows the court should not have required Tricia to prove Damien's nefarious intent when she made her second request for a DVRO. Tricia did not appeal from the order granting Damien's DVRO request. We review the order Tricia appealed denying her second DVRO request, and as we have discussed, we conclude the trial court conducted the proper "totality of the circumstances" analysis.
Tricia also argued the "double standard" the trial court applied resulted in "an appearance of gender bias." However, in her reply, Tricia admits she has forfeited any bias claim. She also concedes the facts from this case are far removed from the case she cited in support, In re Marriage of Iverson (1992) 11 Cal.App.4th 1495 disapproved in part in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4. She does not cite anything in the record or specific statements by the court in support of her claim that the decision was influenced by gender bias. She further apologizes for suggesting the court engaged in "mental gymnastics" and "contorted logic." Indeed, such language should be eschewed. (WasteXperts, Inc. v. Arakelian Enterprises, Inc. (July 11, 2024, B325299) Cal.App.5th ["Emotional diatribes do nothing to support the arguments made by counsel"].)
C. The Trial Court Did Not Abuse Its Discretion
Tricia contends that even if the trial court applied the correct legal standard in denying her request for a DVRO, the evidence shows Damien abused her as a matter of law. We disagree.
Tricia argues the de novo standard of review applies here because the underlying facts are undisputed. This is not the case. For example, while Tricia claims Damien disparaged her to her father, Damien denied speaking negatively about Tricia during the call. As we have discussed in greater detail previously, we review the court's order denying Tricia's DVRO request for abuse of discretion. (M.S. v. A.S., supra, 76 Cal.App.5th at p. 1143-1144.)
Viewing the evidence in the light most favorable to the trial court's ruling, as we must, it shows Damien called Tricia's father to see if he could help the parties settle the case. Damien has a "decent relationship" with Tricia's father, and they had a cordial conversation. To the extent Tricia takes issue with the trial court believing Damien's testimony about the call, we do not reweigh credibility determinations on appeal. (Curcio, supra, 47 Cal.App.5th p. 12.) Regarding the text messages Damien sent Tricia, Damien stated the text messages Tricia presented were out of context and excluded some of Tricia's messages. Tricia does not show the court abused its discretion in denying her request for a DVRO. (See Curcio, supra, 47 Cal.App.5th at p. 13 ["The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals"].)
Tricia cites In re Marriage of Evilsizor &Sweeney (2015) 237 Cal.App.4th 1416, in asserting a husband's uninvited contact with a wife's father can constitute domestic violence. In Evilsizor, the husband downloaded "tens of thousands of text messages" from his wife's cellphones and "information from the 'notes' section of [her] iPhone, which [she] used as a diary." (Id. at p. 1420.) The wife alleged the husband "downloaded her private text communications to third parties, including her attorney, without her consent, and had hacked into her Facebook account, changed her password, and rerouted the e-mail associated with her Facebook account to his own account." (Id. at p. 1421.) He spent 20 to 30 hours reviewing the messages and later went uninvited to the wife's parents' home and disclosed "private and sensitive information" about her to her father. (Id. at p. 1420.) The husband also allegedly threatened to reveal publicly more messages and emails for leverage in the dissolution proceedings. (Ibid.) The husband's actions, including his extensive unauthorized downloading, interception of email, and hacking, as well as the intimate nature of the communications he downloaded, distinguish Evilsizor from this case.
Based on the foregoing, Tricia has not shown the trial court abused its discretion in denying her request for a DVRO.
D. Tricia Fails to Show Error Relating to the Trial Court's Finding She was the Primary Abuser
Tricia further argues that there was "no substantial evidence" that the trial court previously found she was a "primary aggressor." She argues courts only find a party to be a "primary aggressor" under section 6305 when they issue mutual restraining orders. Tricia reasons that because the trial court declined to issue mutual restraining orders previously, the court could not have found her to be the "primary aggressor." Tricia does not demonstrate error in this regard.
Tricia misstates the record. The hearings on Damien's and Tricia's DVRO requests were held before the same judge.
In explaining its ruling on Tricia's second request, the trial court looked at the parties' prior acts, which would include the parties' text messages to each other, and noted it found Tricia was the "primary abuser." The court did not state that it had made a primary aggressor finding under section 6305.
To the extent Tricia suggests the trial court "estopped" her from obtaining a DVRO because of the prior primary abuser finding, this is not what the record reflects. Instead, the court considered the past acts of abuse as a factor in the totality of the circumstances. Tricia neither cites any authority holding it was improper for the court to do so, nor demonstrates that she suffered prejudice as a result. (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 512; see also Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 [the reviewing court will not "act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial"].) Indeed, the DVPA called upon the court to consider past acts of abuse. (§ 6300, subd. (a).) We find no error in the court's doing so.
DISPOSITION
The order is affirmed. Damien shall recover his costs on appeal.
We concur: COLLINS, Acting P. J., ZUKIN, J.