Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County, No. VFL226730, Melinda M. Reed, Judge.
Ronald E. Pierce, in pro. per., for Appellant.
Nadira M. Arreola, in pro. per., for Respondent.
OPINION
Kane, Acting P.J.
Ronald E. Pierce (Pierce) appeals from the trial court’s order of April 9, 2010, in which a restraining order to prevent domestic violence was extended an additional three years. Pierce’s former wife, Nadira Arreola (Arreola), argued there was good cause to extend the order and the trial court agreed. Pierce contends the trial court abused its discretion. We shall affirm.
FACTS AND PROCEDURAL HISTORY
The record on appeal herein included only documents filed in the trial court after March 1, 2010. However, the record in Pierce’s separately filed appeal in the same case (i.e., case No. F059887) contained pleadings filed earlier in the action. For the purpose of ascertaining the relevant pre-March 1, 2010 background to the trial court’s order of April 9, 2010, we have taken judicial notice of the record in case No. F059887. The matters gleaned therefrom are set forth in this section.
Pierce and Arreola were married in 1992 and, during their 15-year marriage, they had three children. On January 30, 2008, Pierce filed a petition for dissolution of the marriage. Arreola filed a response to the petition on February 28, 2008, agreeing that the marriage should be dissolved. A status-only judgment of dissolution was entered by the trial court on September 4, 2008, with all other issues reserved.
On February 29, 2008, Arreola filed a motion for temporary protective orders against Pierce to prevent domestic violence, including a request for a stay away order and an order to prevent acts of harassment and other personal contact. Arreola’s motion included a request that she be given sole physical custody of the children and that Pierce be allowed reasonable visitation on Sundays between 10:00 a.m. and 8:00 p.m. and on Thursdays between 5:30 p.m. and 8:00 p.m. In support of her request for such orders, Arreola’s declaration stated that Pierce was “violent and … unable to control his temper.” She asserted that “[h]is violent outbursts occurred at least two times each week during [their] marriage.” Further, according to her declaration, Pierce’s outbursts were directed sometimes at Arreola, sometimes at the children, and sometimes at both Arreola and the children, and allegedly included verbal abuse, yelling, intimidation, kicking in doors, throwing furniture, dishes and heavy objects, and punching cabinets and walls. Allegedly, his verbal abuse toward the children included angry tirades against their autistic child, calling the child “‘an asshole’” and “‘a little shit.’” The autistic child allegedly reacted to Pierce’s tirades by trying to run away from Pierce and begging to be left alone. Another child “ha[d] cowered, cried, and [lost bladder control] during [Pierce’s] outbursts.” Arreola further stated in her declaration that Pierce had recently shown up at the house, demanded to be let in, and screamed in anger at her and the children. Other times, he had parked his car out front and waited, and, in light of “what [she knew] about [Pierce’s] inability to control his anger, ” this caused Arreola to be “scared” for her safety. On March 3, 2008, the requested relief was issued by the trial court as a temporary restraining order, effective pending the outcome of a contested hearing or trial of custody issues.
We generally refer to the protective orders as restraining order(s) herein. For convenience, we use the singular “restraining order.”
Thereafter, as more fully outlined below, the hearing on custody issues was continued a number of times, during which period the temporary restraining order remained in effect, subject only to Pierce’s specific rights under the trial court’s provisional custody and visitation orders.
On March 28, 2008, the trial court ordered that “[p]ending trial or until further order of the court, ” Arreola would have physical custody of the children, while Pierce would have supervised visits with the children each Sunday and telephonic contact on Thursday evenings. Further, at Pierce’s own request, a “Domestic Violence Assessment” was to be performed to evaluate both parties. A further contested hearing was held on April 25, 2008, at which the trial court confirmed the prior orders (with some additional elaboration) and provided for greater counseling and other therapeutic involvement of licensed mental health professionals. The prior “referral to Family Services of Tulare County re: Domestic Violence Assessment” was made an order of the court. The protective restraining orders were to remain in effect pending the next contested hearing.
The domestic violence assessments were filed with the trial court on June 6, 2008. The assessments, prepared by a licensed mental health professional affiliated with Family Services (the assessor) who had interviewed both Pierce and Arreola, reflected the assessor’s evaluation that Arreola’s accounts of Pierce’s angry and abusive behavior were accurate. The assessor concluded that Arreola “ha[d] been a victim of domestic violence.” The assessor recommended that future visitation of the children by Pierce should be pursuant to a supervised program at “CHAT House” for the next four to six months. In response to the assessment, the parties appear to have stipulated to participation in additional counseling services and the trial court ordered “reunification therapy.” Meanwhile, the contested hearing regarding child custody was continued from June 27, 2008 to October 28, 2008.
On October 17, 2008, Arreola filed an ex parte request for an order to show cause hearing to modify the child visitation arrangement. Arreola sought to curtail Pierce’s visitation because of alleged concerns that he was mentally unstable and suicidal. In her supporting declaration, Arreola referred to an online Web site posting in which Pierce allegedly admitted to being depressed, suicidal, and struggling with misuse of alcohol. The trial court granted her request for modification, and “[e]ffective immediately, ” Pierce’s visitation was to be “supervised through the CHAT [H]ouse.”
On October 28, 2008, the trial date of remaining contested issues was set for January 29, 2009. On the date of trial, although some issues were resolved, a further trial date was scheduled for June 9, 2009, then continued to July 16, 2009, to address the matters of custody and visitation. Prior to that continued hearing, each party filed declarations accusing the other of improper conduct. For example, Pierce accused Arreola of “[c]yber [s]talking” him, and of allowing the children to be exposed to inappropriate movies and engaging in discussion of sexual matters that were not age appropriate. Arreola’s declaration referred to additional online Web site postings written by Pierce as evidence of his alleged mental instability, including a statement by Pierce that if he had the power to do so, he would go on a “killing spree of … global proportions.” Pierce did not deny making the statement, but explained he was merely expressing his thoughts in the context of a vampire game where he “waxed artistic about [his] despair.”
On July 16, 2009, following the contested hearing, the trial court ordered that a full “custody evaluation” shall be performed “which shall include a psychological evaluation” of the parties. The hearing date on the issue of custody was continued once again to allow sufficient time for the evaluation to be conducted. The process of selecting a qualified evaluator was to begin with Pierce selecting three qualified private custody evaluators and notifying Arreola’s attorney of his selections, and then Arreola was to choose one of the three. Thereafter, Ronald Gandolfo, Ph.D., was selected to act as custody evaluator. The date of the contested hearing on child custody was continued to December 8, 2009.
The contested hearing on the issue of child custody was finally held on December 8, 2009. Dr. Gandolfo’s custody evaluation was on file with the trial court, and the parties were given an opportunity to read the report prior to commencement of the hearing. The custody evaluation recommended a resumption and gradual expansion of Pierce’s visitation with his children under controlled conditions. The trial court ordered that, pending further hearing, Arreola would have sole legal and physical custody of the minor children. The trial court expressly stated it was following the recommendations of the custody evaluation. Pierce was granted visitation every Saturday at the home of the paternal grandmother from 12:00 p.m. until 6:00 p.m. A further review hearing would occur on April 9, 2010, at which time an expanded parenting plan would be considered. In regard to the factor of alleged domestic violence, the trial court held that Arreola’s allegations “do not rise to the level of domestic violence pursuant to Family Code section 3044.” Further, as is significant here, the trial court also held that “[t]he restraining order against [Pierce] that is currently in effect shall expire on April 9, 2010, unless there are ongoing issues that warrant an extension of the orders.” (Italics added.)
B. Hearing and Order of April 9, 2010
As noted above, the trial court’s December 8, 2009, order provided that the restraining order would expire on April 9, 2010, unless it was shown there were ongoing issues that warranted an extension thereof.
On April 1, 2010, Arreola filed a declaration requesting that the trial court extend the duration of the restraining order. Arreola’s declaration began by reiterating past matters of which the trial court was previously informed, including Pierce’s alleged out-of-control anger that led Arreola to originally seek the restraining order, the subsequent domestic violence assessment, and Pierce’s online Internet postings in which he admitted to being suicidal, severely depressed and also stated (apparently in a game setting) that he would like to go on a “killing spree of … global proportions.” As new and further information in support of her request to extend the restraining orders, Arreola’s declaration asserted that Pierce was continuing to engage in acts of emotional intimidation and harassment against her, as demonstrated in certain online Internet postings and frivolous legal filings.
Pierce’s opening brief admits he has since been diagnosed with “Severe Depressive Disorder.”
With regard to Internet postings, Arreola’s declaration and exhibits attached thereto showed that Pierce made an Internet blog entry in December 2009 stating that he would like to see “‘the death chamber’” for those involved in the judicial proceedings or “‘court-run corruption scheme’” that had brought him such misery. Arreola asserted that she continued to live in fear of Pierce, based in part on this “ongoing pattern of threatening statements on the [I]nternet.…” Arreola’s declaration also presented evidence that, in 2009, Pierce posted on YouTube an interview he conducted with the parties’ autistic child, about why the child purportedly wanted to stay with Pierce and did not want to live with Arreola. The public posting of such a sensitive matter was presented to the trial court as further evidence of Pierce’s emotional intimidation and harassment.
Arreola also asserted that the YouTube recording and interview were in violation of a prior court order of April 25, 2008. Among other things, that order prohibited Pierce from discussing the court proceedings with the children or inquiring about Arreola’s personal life with them. We find it unnecessary to decide at this time whether Pierce’s conduct violated that order.
Regarding Arreola’s allegation that Pierce sought to intimidate her through frivolous court filings, Arreola claimed in her declaration that there was a past pattern of such litigious conduct that had recently been continued by Pierce. As to the past, Arreola’s declaration stated that in 2008, Pierce filed a meritless lawsuit against Tulare County Family Services, Family Services therapists, and against the therapist of one of the children at that time, Dr. Jackie Harris-Groeber. We do not have that lawsuit before us in the record on appeal, and about all we do know is that Pierce has conceded it was summarily dismissed by the superior court based on Civil Code section 47. As to more recent conduct, Arreola claimed that subsequent to the December 8, 2009, order, Pierce filed a baseless petition for a “[c]ivil [h]arassment” restraining order against Arreola’s boyfriend merely because some of the boyfriend’s junk mail was inadvertently forwarded to Pierce’s post office box. That fact and the fact that Pierce had recently threatened to sue the current doctor or therapist of one of the children, Dr. Sanjay Masson, for prescribing medications that Arreola herself had expressly consented to and approved of, were submitted by Arreola to the trial court as further evidence of Pierce’s harassment and intimidation.
On April 6, 2010, Pierce filed a declaration in opposition to the requested extension of the restraining order. Pierce decried the fact that Arreola was again “vomiting forth the same tired and perjurious allegations” and, consequently, it was with “a sigh of weariness over [Arreola’s] continued maliciousness” that he presented his response. He asserted that he was no longer suicidal, not a threat to anyone’s safety, and never committed or threatened domestic violence or abuse of any kind whatsoever. He claimed that, contrary to Arreola’s “‘scary’” portrayal of him, he was in reality a most “benevolent” family man. As to the Internet postings, Pierce pointed out that he had a right to state his own opinions and political views, including the opinion that Tulare County Superior Court’s “sneeringly aloof family law judges, ” the “greedy” Tulare County Family Services mental health professionals, and the “twisted” lawyers involved in such proceedings, had been extremely corrupt and evil in how they treated him. He stated he had learned firsthand how “lives have been uprooted and destroyed by malicious spouses, judicial retaliation, and court racketeering that has nothing to do with the best interests of children.…” He stated that if he was persuaded that some of those “monsters” should “suffer the death sentence, ” and if he presented that viewpoint on the Internet, he was simply exercising his right to free speech. He did not deny that he filed the several lawsuits and the threatened lawsuit referred to by Arreola, but contended such measures were legally justified in light of all the circumstances and the way he had been treated.
The hearing was held on April 9, 2010. At that time, the trial court issued the following order: “The court grants [Arreola’s] request for continuance of the current restraining order against [Pierce]. The court finds good cause for the issuance based upon the evidence presented. The restraining order issued March 28, 2008, shall expire on March 28, 2013. This restraining order shall be subject to existing custody orders and to future orders the court may make regarding custodial or visitation plan.” In addition, the trial court also directed that reports should be submitted by Dr. Sanjay Masson and Dr. Margarita Prado-Borrego, as the court desired further information relevant to other issues before it.
On April 15, 2010, Pierce filed his notice of appeal from the April 9, 2010 order.
The order extending the restraining order is appealable. (See Code Civ. Proc., § 904.1, subd. (a)(6).)
DISCUSSION
I. Standard of Review
We review the trial court’s order under the abuse of discretion standard since an order granting, denying, dissolving, or, as in this case, extending a restraining order “‘“‘rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case.’”’” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495, quoting Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) The same standard applies to appellate review of a grant or denial of a protective order to prevent domestic violence. (Gonzalez v. Munoz (2007)156 Cal.App.4th 413, 420.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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.’ [Citation.]” (Id. at p. 421.) To the extent that we are called upon to review the trial court’s factual findings, we apply a substantial evidence standard of review. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)
“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.) Because a trial court’s order is presumed to be correct, an appellant must affirmatively show prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.)
II. Domestic Violence Protection Act
The restraining order before us was issued pursuant to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq. (the DVPA)). We begin with a brief summary of the DVPA.
Unless otherwise indicated, all further statutory references are to the Family Code.
The DVPA authorizes the trial court to issue a restraining order “for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit … shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§§ 6300, 6220 [purpose of DVPA stated].) A restraining order may issue under the DVPA either “enjoining specific acts of abuse, ” “excluding a person from a dwelling, ” or “enjoining other specified behavior” and may issue ex parte, after notice and a hearing, or in a judgment. (§ 6218.)
For purposes of the DVPA, “‘abuse’ means any of the following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320 .” (§ 6203, italics added.) The behavior specified in section 6320 includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 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, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (§ 6320, subd. (a); see In re Marriage of Nadkarni, supra, 173 Cal.App.4th at pp. 1494-1498 [abuse includes conduct described in § 6320, such as disturbing the peace of the other].)
The DVPA also specifies the duration of “the personal conduct, stay-away, and residence exclusion orders” that may issue after notice and a hearing. (§ 6345, subd. (a).) In the discretion of the court, such restraining orders “may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.” (Ibid.) The orders “may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.” (Ibid.) Where no expiration date is stated, the order is presumed to have a duration of three years. (Id., subd. (c).)
Here, due to the trial court’s order of December 8, 2009, the expiration of the restraining order was scheduled to occur on April 9, 2010, unless evidence warranting its extension was presented at that time. The effect of the trial court’s ruling on April 9, 2010, was to make the restraining order last a full five years.
III. No Abuse of Discretion Shown Regarding Extension of Restraining Order
Pierce argues the trial court’s order extending the restraining order an additional three years was an abuse of discretion. We disagree. There was substantial evidence below that would permit a reasonable judge to conclude that continuation of the restraining order was warranted under the circumstances. As a starting point, we note that Arreola’s previously filed declaration in support of her original request for a restraining order described Pierce’s out-of-control anger and fits of rage which, according to Arreola, intimidated and frightened both Arreola and the children. When that description, which the trial judge was entitled to find credible, is combined with the further evidence of Pierce’s recent Internet posting (and his candid April 6, 2009, declaration) stating his opinion that participants in the judicial system who have caused him such misery should be put to death, we have no difficulty concluding that the trial court’s ruling to extend the restraining order was within the range of its discretion. Among other things, Pierce’s online words could reasonably be construed as threatening or harassing in nature, or as designed to disturb the emotional peace of Arreola, and therefore within the categories of conduct expressly listed in the DVPA as “abuse” and concerning which a restraining order, or an extension thereof, may appropriately be based. (§§ 6203, 6320, subd. (a) [abusive conduct includes “threatening” or “harassing” or “disturbing the peace”]; see In re Marriage of Nadkarni, supra, 173 Cal.App.4th at pp. 1494-1499 [“disturbing the peace” as used in § 6320 includes conduct that would seriously disturb the emotional calm or peace of the other].) It is unnecessary to address in this opinion any of the additional evidence that may have been considered by the trial court, since what we have discussed in this paragraph is sufficient to defeat Pierce’s claim on appeal.
Although there is no evidence before us that Pierce sent or e-mailed his online entries to Arreola directly, the trial court could have reasonably inferred, among other things, that Pierce knew she would likely undertake Internet searches from time to time to ascertain what he may be saying or threatening as to her. For example, Pierce knew she found out about his prior online statement that he would like to go on a “killing spree, ” since she brought that remark to the court’s attention in prior hearings. “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, supra, 51 Cal.3d at p. 1133.)
Further, contrary to Pierce’s argument, the mere fact that the trial court considered his Internet statements was not a violation of his freedom of speech. All that happened was that the words he expressed became relevant evidence in the parties’ legal case. As such, his words and their import had consequences by virtue of their factual relevance to the trial court’s discretionary legal decision, but that is not the same as an unconstitutional abridgement of his right to speak or write freely. (See, e.g., Cal. Const., art. I, § 2 [a party may speak or write freely, but may be responsible for any abuse of that right]; Evans v. Evans (2008) 162 Cal.App.4th 1157, 1168 [stating rule that a misuse of right to speak may have subsequent tort consequences].)
In summary, we conclude that the trial court did not abuse its discretion when it extended the existing restraining order an additional three years. In light of the particular facts and circumstances before the trial court, the extension was not unreasonable or arbitrary. It is fundamental to appellate law that a trial court’s order is presumed to be correct and an appellant must affirmatively show prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557.) Pierce has failed to meet his burden of establishing an abuse of discretion.
IV. Other Claims of Error Fail
Pierce’s appeal includes a number of generalized assertions of error concerning other matters (unrelated to the restraining order) that were ruled on by the trial court on April 9, 2010. For example, he claims the trial court should not have requested input from Dr. Masson or Dr. Prado-Borrego, should not have postponed the hearing on matters such as the court’s review of visitation and support, and should not have denied his request that certain prior orders be vacated. We have disregarded such vague contentions. When points are perfunctorily raised, without adequate analysis and authority, and without citation to an adequate record, we pass them over and treat them as abandoned. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) In each of these claims, it was Pierce’s burden to affirmatively demonstrate the existence of prejudicial error. He failed to do so. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557 [appellant’s burden on appeal]; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [error must be shown to be prejudicial such that it resulted in a miscarriage of justice].)
Moreover, although these other claims of error relate to rulings that were entered by the trial court on April 9, 2010, the rulings were distinct from the appealable restraining order. It appears to us that these rulings complained of by Pierce were interlocutory in nature, and hence nonappealable. (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1432; In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.)
DISPOSITION
The order of the trial court is affirmed. Costs on appeal are awarded to Arreola.
WE CONCUR: Poochigian, J., Detjen, J.