Opinion
D040198.
7-30-2003
In re the Marriage of SUSAN and DENIS DUCHENE. SUSAN DUCHENE, Respondent, v. DENIS DUCHENE, Appellant.
Denis Duchene appeals from the issuance of a restraining order pursuant to the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). Denis contends the evidence did not support the issuance of the order. We affirm.
Because the parties have the same surname, we refer to them by their first names in this opinion. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1, 4, fn. 1.)
All further statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
On November 30, 2001, the court ordered Denis removed from the family home and issued a temporary restraining order(TRO) restraining Denis from contacting his wife, Susan Duchene, and their sons Robert, Joshua and Timothy. These orders were based on Susans declarations, which stated that Denis had coerced her into sexual activities that caused her emotional distress, had verbally threatened her, had thrown duct tape against the wall behind her, and had torn up the telephone directory in front of her. Child Protective Services (CPS) contacted Susan and told her they had received two reports about Deniss treatment of Robert. Recently, Denis called Robert names, cursed at him, and shoved him against a freezer in the garage. Denis also threatened to knock Robert down.
On January 2, 2002, the court modified the TRO to allow Denis to visit with the two younger children, Timothy and Joshua, under the supervision of Deniss mother. The TRO was to remain in effect until the next court date.
Prior to the hearing on the continuance of the restraining order, a Family Court counselor reported that the children were afraid of their father due to his style of discipline. In a supplemental declaration, Susan declared that when Timothy was about three years old, Denis disciplined him so severely that he caused serious bruises on Timothys legs, buttocks and arms.
At hearings held on February 14, 2002 and March 13, 2002, Susan testified that for the past few years on Saturday nights, Denis demanded they go driving on the interstate to find truck drivers to look at Susan, who would be dressed in sexually provocative clothing, such as a little bra on top and a tube top on her bottom. Once on the interstate, Susan would contact truck drivers on a C.B. radio and would say things that Denis had trained her to say. Three times in November 2001, Susan and Denis entered a truck drivers truck. On November 24, Susan took the truck drivers hands and put them on her body. Susan found these incidents frightening. In July 2001, at Deniss request, she took her clothes off in a restaurant and asked Denis for oral sex.
Susan and Denis often argued about this behavior. If Susan refused to engage in it, Denis would become angry with Susan and the children. He would argue with her for three to six hours at a time, telling her that she was not a supportive woman and she was not allowing him to be a man. She testified she did these acts under coercion and duress.
On July 4, 1992, Susan went to the emergency room because Denis had injured her. In the early 1990s, on more than one occasion, Denis put his hands around Susans neck and pushed her against the wall.
On February 6, 2002, Susan brought Timothy and Joshua to Deniss mothers apartment for their supervised visit with Denis. Although Denis was subject to the TRO, Susan asked that Denis come to the apartment while she was there because Joshua did not want to see Denis. Susan testified that she was fearful of being alone with Denis but was not fearful of being with him in his mothers apartment with his mother present.
Joyce Duchene, Deniss mother, testified Susan asked for Denis to come to Joyces apartment because Joshua was having a temper tantrum, even though Joyce told Susan it was not a good idea to violate the restraining order. Susan told Joyce that she would not remove the restraining order because Denis had not been nice to her and had not apologized to her. Joyce has not seen Denis abuse the children and the children have not expressed any fear of Denis in Joyces presence.
Denis confirmed his mothers account of what happened on February 6. He came into his mothers apartment while Susan was there only because Susan said she would not leave until he came. He explained that Joshua was not upset about seeing him but about a dispute Joshua had had with Susan.
Denis testified Susan was a willing participant in the freeway cruising activities and was sexually aroused by these activities. Denis admitted suggesting what Susan should say to the truck drivers, as well as rehearsing and role-playing the conversations with her. He warned Susan against getting into the truck one time because he did not think the truck driver was a nice guy. Susan went anyway.
Denis admitted he and Susan had had arguments in which he called her names, but those arguments did not last longer than one hour. He threw a half-used roll of electrical tape at the wall 12 feet from Susan to get her attention because she would speak with him only in front of the children.
Two and one half years prior to the hearing, Denis inappropriately disciplined Timothy by spanking him so hard he left bruises. Denis changed his behavior after the incident based upon the advice of a counselor. CPS found Robert was scared of Denis but did not substantiate that Denis had been abusive when Denis disciplined Robert for lying. After giving Robert five chances to explain what happened, Dennis got "in his face" (about six inches away), tapping Roberts chest with his finger as he spoke to him. Robert walked backwards until he stepped into a freezer.
On March 29, 2002, the court issued a restraining order against Denis, which protects Susan, Robert, Joshua and Timothy. It provides for court-ordered or CPS-approved counseling and visitation. The order expires on March 12, 2004.
DISCUSSION
Under the DVPA, a court may issue a protective order to enjoin specific acts of abuse. ( § 6218.) "Abuse" is defined as "(a) intentionally or recklessly to cause or attempt to cause bodily injury[;] [P] (b) sexual assault; [P] (c) to place a person in reasonable apprehension of imminent serious bodily injury to that person or to another[; or P] (d) to engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203.) The behavior outlined in section 6320 includes threats and harassment.
We review the trial courts grant of a restraining order for abuse of discretion. (Kobey v. Morton (1991) 228 Cal. App. 3d 1055, 1060, 278 Cal. Rptr. 530 [reviewing a restraining order under Code of Civil Procedure section 527.6].) When the parties do not request findings of fact, we assume the trial court made the factual findings necessary to sustain its order. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, 218 Cal. Rptr. 39, 705 P.2d 362.)
We review the courts implied findings of facts for substantial evidence. (In re Marriage of Slivka (1986) 183 Cal. App. 3d 159, 162, 228 Cal. Rptr. 76.) To determine whether there was substantial evidence, we "must view the evidence in the light most favorable to the party prevailing below. [Citation.] The weight of the evidence and the credibility of witnesses are matters for the trier of fact and not for the appellate court. [Citation.] The test is not whether there is substantial conflict in the evidence but whether there is substantial evidence in favor of the respondent. " (Harland v. State of California (1977) 75 Cal. App. 3d 475, 482-483, 142 Cal. Rptr. 201.) In this case, substantial evidence supports the courts implied findings that Denis harassed Susan and Robert and threatened Robert.
In contending the evidence does not show abuse, Denis asks us to reweigh the evidence, which we cannot do. He also relies upon a pre-1998 version of section 6203 (see Polin v. Cosio (1993) 16 Cal.App.4th 1451, 1455, fn.2) and upon Penal Code section 13700. Neither of these definitions includes harassment.
DISPOSITION
The order is affirmed. Denis Duchene is to bear costs on appeal.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.