Opinion
D072428
08-23-2018
In re the Marriage of M. and B.R. M.R., Respondent, v. B.R., Appellant.
Edward Stephen Temko and Dennis G. Temko for Appellant. Law Offices of Beatrice L. Snider and Edward Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DN187964) APPEAL from an order of the Superior Court of San Diego County, Gerald C. Jessop, Judge. Affirmed. Edward Stephen Temko and Dennis G. Temko for Appellant. Law Offices of Beatrice L. Snider and Edward Castro for Respondent.
I.
INTRODUCTION
B.R. appeals from a domestic violence restraining order issued against him pursuant to the Domestic Violence Protection Act (Fam. Code, § 6200 et. seq.) after the trial court found that he engaged in conduct directed at his wife, M.R., that was "certainly harassment." On appeal, B.R. argues that there is not substantial evidence in the record to support the order because "only one incident occurred and one incident alone cannot demonstrate 'harassing' conduct." (Capitalization & boldface omitted.) We conclude that there is substantial evidence that B.R. engaged in a course of conduct directed toward M.R. that was harassing and affirm the order.
Unless otherwise specified, all subsequent statutory references are to the Family Code.
The DVPA authorizes the trial court to issue a domestic violence prevention restraining order (§ 6300) after finding that a party has engaged in "abuse" (§ 6203), which includes having engaged in "harassing" conduct (§ 6320).
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
In early January 2015, B.R. became suspicious that M.R. was having an affair with another man. B.R.'s suspicions were aroused after he reviewed cell phone records and learned that M.R. had sent thousands of text messages to the other man. M.R. told B.R. that she was not having an affair, and that she was just friends with the other man. M.R. stated that after B.R. discovered that M.R. had sent the text messages, he became "much more sexually aggressive and controlling and just more angry in general."
M.R. testified that B.R. put his fingers in her vagina while she was sleeping on May 1, 2016. When she awoke, B.R. angrily demanded to have sex. According to M.R., when she refused, B.R. started yelling. B.R. denied that this incident had occurred.
According to B.R., M.R. told him that she had "turned in" an old cell phone to a cell phone provider in March 2015. However, B.R. found the old cell phone in April 2016 under a pile of M.R.'s sweaters. According to B.R, M.R. lied to him about turning in the old phone because "it contained the text messages (over 7000) she shared with another man."
B.R. yelled at M.R. on numerous occasions from May through July 2016. On several of these occasions, M.R. felt physically threatened or afraid. Two of M.R.'s friends testified that M.R. told them about incidents during which B.R. would express extreme anger toward M.R. According to M.R.'s friends, M.R. had been traumatized by the incidents. During one of the incidents, M.R. allegedly surreptitiously called her friend Ms. Ru. Ms. Ru testified that she could hear B.R. "berating" M.R., "yelling at her, calling her stupid, a cheat and a bitch."
We have shortened Ms. Ru's name in an attempt to provide greater anonymity to the parties.
As noted in part III.A, post, the trial court stated, "I did not find [Ms. Ru.] credible."
Two of the confrontations between B.R. and M.R. occurred after M.R. sought information about the family business from employees of the business. One of the incidents occurred on July 11, at the family's residence. M.R.'s father was at the residence at the time and overheard B.R. shouting at M.R. B.R. was angry and M.R. was crying.
In June 2016, while on a family vacation at a condominium in Aspen, B.R. angrily took M.R.'s phone without her consent while accusing her of cheating. M.R. and B.R.'s children and the family's nanny were present in the condominium. The nanny witnessed B.R. holding a phone and heard the children asking B.R. why he had M.R.'s phone. It appeared to the nanny that M.R. had been crying.
B.R. acknowledged that he took M.R.'s phone during the Aspen incident and that he forwarded screenshots of text messages from M.R.'s phone to his own phone. He then sent the messages to M.R.'s father and Ms. Ru. B.R. stated in a declaration that the Aspen phone incident "was not the first instance where [he] used [M.R.'s] phone to confirm [his] suspicions about her relationship with another man."
In September 2016, after the trial court had issued a temporary restraining order, B.R. and M.R. arranged for B.R. to pick up their children from a therapy appointment. B.R. arrived at the therapist's office 45 minutes ahead of the scheduled pickup time, while M.R. was present in the office. The therapist testified that M.R. was upset and crying. After calling her lawyer, M.R. called the police. The police arrived at the therapist's office and arrested B.R. outside of the office. B. Procedural background
On July 22, 2016, [M.R.] filed a request for a domestic violence restraining order against [B.R]. [M.R.] supported her request with a statement in which she recounted several incidents of alleged abuse committed by B.R. against her. The trial court issued a temporary restraining order that same day.
B.R. filed a declaration in opposition to the request for a restraining order in August 2016.
The trial court held hearings on M.R.'s request over two days in January 2017 and one day in May 2017. At the conclusion of a hearing on May 12, 2017, the trial issued an oral statement of decision granting M.R.'s request for a restraining order. That same day, the trial court entered a restraining order that prohibited B.R. from coming within 100 yards of M.R. for three years, among other prohibitions.
B.R. filed a timely appeal.
III.
DISCUSSION
There is substantial evidence in the record to support the
trial court's issuance of a restraining order
B.R. raises two separately captioned, but related, arguments on appeal. First, he contends that the term "harassing" in section 6320 of the DVPA requires multiple incidents of conduct. Second, he argues, "the facts of this case do not support a restraining order, [because] only one incident occurred and one incident alone cannot support a finding that husband engaged in 'harassing' conduct." (Capitalization & boldface omitted.)
Thus, although separately captioned, B.R.'s legal arguments do not provide independent grounds for relief.
We assume for purposes of this decision that B.R. is correct that the term "harassing" in section 6320 refers to multiple incidents. With respect to B.R.'s second contention, we conclude that there is substantial evidence in the record that B.R. harassed M.R. on more than one occasion and that the order may be affirmed on this basis. A. The trial court's ruling granting the restraining order
The trial court issued an oral statement of decision stating its reasons for granting a restraining order, as follows:
"All right. Domestic violence is defined under Family Code Section 6203 as intentionally or recklessly the cause or attempt to cause [sic] bodily injury. That didn't exist in this case. The only thing that got us close to that, as well as No. 2, sexual assault, was the digital penetration allegation, and the Court has a difficult time with that allegation. There was conflicting testimony. [M.R.] testified differently than her declaration. And, in fact, [B.R.] indicated that it didn't occur.
"So it's hard for the Court to view into the marital bedroom. I know I wasn't there. Absent corroborating evidence, signs of injury, reports, it's difficult for me to issue orders when I have opposing statements. In this case, it's a he said/she said.
"Item 3 is to place a person in reasonable apprehension of immediate serious bodily injury to that person or to another. We did not have that in this case.
"Number 4, is to engage in any behavior that has been or could be enjoined pursuant to Family Code Section 6320. And parenthetically subpart (b) of 6203 states that abuse is not limited to actual infliction of physical injury or assault.
"Now, 6320 deals with the more nebulous area which I commented upon earlier and that is what is the threshold that the Court would issue an order for enjoining the party from assault and harassment, because the Court does have the authority under 6320 to issue an order to prevent a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely impersonating, harassing, telephoning, including but not limited to, making annoying telephone calls. The assaulted person need not show that there was fear.
"I think if it [sic] were just to look at the annoying telephone calls provision, annoying is simply annoying. I guess it becomes in the eye of the beholder; however, that does not give the Court a threshold to look at.
"Now, what did I have in this case? Sometimes I made comments, and I always regret making comments because it's always thrown back in my face that you said or he said or this is what we did, because I try and give the parties some guidance so I can get the evidence into court.
"In this particular case, we swung wide on [sic] the mark on numerous occasions, and consequently the hearing took considerably longer I think than it actually needed to take. But it's also difficult for counsel to divine what the Court is looking at. And all I can do is point to the criteria set forth in the Domestic Violence Act as that criteria upon which the Court needs evidence. In other words, the law is the skeleton upon which the facts are the remainder of the body, the muscle, the sinew, the fat, whatever you want to call it that gives substance to the law.
"So what are we looking at? We had Ms. [Ru.] And, candidly, I tended to agree with [B.R.'s counsel], I did not find her credible. She had a long-time relationship with [M.R.] in this case. It was her best friend. And I was very concerned to hear that she was called and the telephone left on while the parties were fighting. Apparently there was some motivation in [M.R.] to bring Ms. [Ru.] in on the action, and that bothered me a lot about the case. It's an act of manipulation.
"It also bothered me that there are implications that the parties are fighting over the family business. . . . I still feel that the motivating factor is money in this case. The fact that [B.R.] refused to allow or at least wanted to prevent [M.R.] from accessing financial records of the business could well be a violation of Family Code Section 721 and Family Code Section 1101.
"I'm not opining on that at this point, just to the extent that there is a fiduciary duty that flows between spouses that is flowing between [B.R.] and [M.R] and [M.R.] and [B.R.], and that's the highest fiduciary duty owed to partners in a business to completely disclose all information. This came up at least two times in different instances, and the Court questions why it was even necessary.
"[The children's therapist] bothered me, because [M.R.] had set up an exchange with [B.R.] to occur at [the therapist's] office. [The therapist] was not aware of this exchange. [B.R.] arrived early, and apparently that caused [M.R.] to become upset. I didn't understand what was going on in her mind that she would arrange for an exchange at the doctor's office and then she would be upset because he arrived a half hour early.
"My concern is that [M.R.] will continue to ignore the terms of restraining orders to her peril. I'm not sure she was thinking correctly at the time.
"[M.R.'s father's] testimony the Court found credible. Even though he is [M.R.'s] father, he testified of hearing a fight in the bedroom. When he arrived, his daughter was in the bathroom. [B.R.] was standing outside the bedroom. He could hear yelling. When [M.R.] stopped yelling, the three eventually returned to the dining room at which time [M.R.'s father] admonished his daughter not to contact the company, but that also [B.R.] would provide financial records to [M.R.], which was his duty to do.
"All of these instances were insufficient to and for [sic] the Court to issue a domestic violence restraining order. However, I am going to issue a domestic violence restraining order in this case because I do find that [B.R.] in his actions was simply not credible. He testified that he obtained records from [M.R.'s] phone because he wanted to, quote, save the marriage, closed quote.
"He never elicited any information the Court could glean as to how that would save the marriage. I firmly believe that he was accessing these records to manipulate [M.R.] to prove that he was right. Either in Ms. [Ru.'s] eyes or in her father's eyes, the end result was he wanted to control [M.R.'s] behavior.
"The Court feels that the elements of control are elements of domestic violence that was present here in this case. If it wasn't
manipulation, it was certainly harassment. And that supports the issuance of a domestic violence restraining order."B. Governing law and standard of review
Although the court referred to M.R. here, it appears that the court intended to refer to B.R., since M.R.'s father testified that it was B.R. who he heard shouting and the court expressly found M.R.'s father to be credible.
1. Substantive law
"The purpose of the DVPA is 'to prevent acts of domestic violence, 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.' (§ 6220.) To this end, the DVPA provides for the issuance of restraining orders that enjoin specific acts of abuse." (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)
Section 6300 provides in relevant part, "An order may be issued under this part, with or without notice, to restrain any person for the purpose specified in Section 6220,[] if an affidavit[] . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse."
Section 6220 provides, "The purpose of this division 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."
Section 6340, subdivision (a) provides in relevant part, "The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing."
Section 6203 provides:
"(a) For purposes of this act, 'abuse' means 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 ."
"(b) Abuse is not limited to the actual infliction of physical injury or assault." (Italics added.)
Section 6320, in turn, permits the issuance of an order restraining a party from:
"molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making 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 . . . ." (Italics added.)
"[T]he DVPA confer[s] a discretion designed to be exercised liberally, at least more liberally than a trial court's discretion to restrain civil harassment generally. For example, the 'abuse' that may be enjoined under sections 6203 and 6320 is much broader than that which is defined as civil harassment. (Cf. Code Civ. Proc., § 527.6, subd. (b).)[] Moreover, an order after hearing may enjoin civil harassment only on proof by clear and convincing evidence. [Citation.] This stringent standard of proof does not apply to an order after hearing restraining abuse under the DVPA. (See § 6340, subd. (a).)" (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
Code of Civil Procedure section 527.6, subdivision (b)(3) provides in relevant part: "Harassment is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner."
Further, as is made clear by the plain language of both sections 6203, subdivision (b) and 6320, "[m]ental abuse is relevant evidence in a DVPA proceeding." (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 821.) Indeed, under the DVPA, "Annoying and harassing an individual is protected in the same way as physical abuse." (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.)
6203, subdivision (b) provides that abuse "is not limited to the actual infliction of physical injury or assault," and section 6320, subdivision (a) refers to various forms of abuse that may be inflicted without physical contact including "harassing" and "disturbing the peace of the other party."
Neither party has cited any case in which a court has interpreted the meaning of the term "harassing" as used in section 6320 and our own independent research has not revealed any such caselaw. However, B.R. states the following in his brief:
"According to Webster's Third New International Dictionary 'harass' is defined as '1 a: to lay waste (as an enemy's country) : RAID HARRY b: to worry and impede by repeated attacks 2 a: to tire out (as with physical or mental effort) : EXHAUST, FATIGUE b: To vex, trouble, or annoy continually or chronically (as with anxieties, burdens, or misfortune)." (Fns. omitted.)
Accordingly, we assume for purposes of this decision that the term "harassing" in section 6320 includes conduct described in these definitions. (Cf. Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 ["When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word"].)
2. Standard of review
"Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under this statutory scheme." (In re Marriage of Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 702.) "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
However, in Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143, the Court of Appeal explained that when reviewing challenges to a trial court's factual findings in support of an order entered upon a request for a restraining order, "the reviewing court must apply the 'substantial evidence standard of review,' meaning ' "whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted," supporting the trial court's finding. [Citation.] "We must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgment." ' [Citation.]" (Ibid.)
In reviewing the record for substantial evidence, " 'We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order. [Citation.]' " (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850.) In addition, where a party fails to "object to [an] oral statement of decision, or draw any omissions or ambiguities therein to the attention of the trial court," we must "infer any findings necessary to support the judgment." (Kinney v. Overton (2007) 153 Cal.App.4th 482, 488 (Kinney); see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1136 [if a statement of decision "is ambiguous the defects must be brought to the court's attention to avoid presumptions in favor of the judgment"].) C. Application
As noted above, in granting a restraining order, the court stated, "The Court feels that elements of control are elements of domestic violence that was present here in this case." In addition, the court stated, "If it wasn't manipulation, it was certainly harassment." Thus, the trial court clearly found that B.R. harassed M.R. A finding that a party engaged in "harassing" (§ 6320) conduct constitutes a basis for a trial court to issue a domestic violence prevention restraining order. (§§ 6300, 6203.)
Notwithstanding the trial court's finding that B.R. harassed M.R., B.R. argues that this finding is insufficient to support the issuance of a restraining order because "[t]he Aspen phone incident was the only evidence of the domestic violence credited by the trial court." To the extent that B.R. intends to argue that the trial court rejected all evidence of B.R. having engaged in harassing conduct directed toward M.R. other than the Aspen phone incident, we disagree.
As discussed above, we assume strictly for purposes of this decision that B.R. is correct that "one incident alone cannot support a finding that [B.R.] engaged in 'harassing' conduct." (Capitalization & boldface omitted.)
Similarly, in his reply brief, B.R. argues, "This court should reject [M.R.'s] attempt to create multiple [domestic violence] events when there was only a potential single Aspen incident, as the trial court found these other alleged events were either not credible, uncorroborated, withdrawn, or failed to demonstrate abuse."
To begin with, the trial court's order states no such thing. In fact, the court stated, "I am going to issue a domestic violence restraining order in this case because I do find that [B.R.] in his actions was simply not credible." (Italics added.) While it is true that the Aspen phone incident is the only incident of domestic violence that the trial court expressly referred to in support of its decision to grant the restraining order, the record contains other evidence, upon which the court did not comment, that supports a finding that B.R. engaged in harassing conduct.
The court did refer to some of the other evidence of B.R.'s conduct and state that such "instances were insufficient" to issue a domestic violence prevention restraining order. Specifically, the court referred to B.R.'s reluctance to provide M.R. with financial information pertaining to the family business, the incident at the children's therapist's office, and the July 11th incident that M.R.'s father partially witnessed.
For example, in addition to the Aspen phone incident, the record contains evidence that B.R. had surreptitiously accessed information on M.R.'s cell phone at least one other occasion. M.R. stated in her declaration in support of her request for a restraining order:
"In or about May 2016, [B.R.] stole my previous cell phone. He only recently returned it to me, admitting that he had taken it and hid it. Again, [B.R.] took the phone in order to view and download my private content and communications."
The parties stipulated that their declarations would be admitted in evidence.
In his declaration, after discussing the Aspen phone incident, B.R. stated, "That was not the first instance where I used her phone to confirm my suspicions about her relationship with another man." B.R. stated further with respect to M.R.'s allegation in her declaration that B.R. had stolen her old cell phone:
"[M.R.] makes it sound like I stole her current cell phone. That is not true. I found her old cell phone. A phone she told me she turned in to Verizon when she switched her account from AT&T to Verizon in March 2015. In April 2016 I spotted the old phone under some old sweaters. I suspected she lied to me about it because it contained the text messages (over 7000) she shared with another man. In May she asked me about it and I returned it to her the same day."
B.R. also acknowledged at the hearing that he possessed M.R.'s old cell phone for "a period of time," before informing M.R. that he had it. While B.R. claimed at trial that he had not reviewed the contents of the phone, and that he learned of the content of text messages on the phone only when M.R. showed him the messages, the trial court was not required to accept this explanation. This is particularly true since B.R.'s testimony was, at a minimum, in tension with B.R.'s statement in his declaration that, "I used her phone to confirm my suspicions about her relationship with another man."
The trial court also heard considerable evidence that B.R. engaged in verbally aggressive behavior toward M.R. that the court could have reasonably found amounted to harassing conduct. For example, M.R.'s father, whom the court found "credible," discussed a May 2016 incident as follows:
"[M.R.] called very, very upset, crying, scared, didn't know what to do. She told me [B.R.] was following her around, getting in her face, and she was really scared. And she went and put -- got down on her knees and put her hands over her head like this because she was afraid she was going to get hit."
M.R.'s friend, D.D., testified that, while visiting with M.R. in May of 2016, M.R. told her that B.R. "was yelling at her, like, in very extreme ways and that sometimes she would be curled up in a ball on the floor and he would still be yelling at her."
In her declaration, M.R. stated that during a July 18 confrontation:
"[B.R.] drew very near to me. At this point, I was in tears, openly frightened, and fearful for my physical safety. . . . [¶] . . . I laboriously made my way to the master bathroom. Unfortunately, [B.R.] followed close behind, his unrelenting verbal aggressiveness escalating to a peak level that I had become familiar with during our marriage. After [B.R.] followed me into the bedroom, I then tried to retreat into the bathroom. However, before I could close the bathroom door, [B.R.] rushed in and cornered me inside. He physically blocked the doorway so that I could not get away. B.R. continued to shout at me in the bathroom, and the bathroom walls amplified his angry and aggressive tone. I became more fearful for my safety and I continued to cry."
The evidence recounted above, when considered in connection with evidence of B.R.'s conduct during the Aspen phone incident, supports a finding that B.R. both engaged in verbally aggressive and physically threatening behavior on multiple occasions, and that he accessed M.R.'s phones on more than one occasion without her consent. This constitutes substantial evidence that B.R. harassed M.R.
While the trial court's oral statement of decision was not a model of clarity, to the extent that B.R. believed that the trial court's statement of decision was ambiguous in that it did not sufficiently discuss the basis for the court's finding that he had engaged in "harassment" it was incumbent on B.R. to raise such ambiguity with the trial court. (Kinney, supra, 153 Cal.App.4th at p. 488; see In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1136.) B.R. did not request clarification in the trial court. Accordingly, given that the record contains substantial evidence to support the trial court's finding that B.R. engaged in harassment of M.R., and that we are required to "infer any findings necessary to support the judgment," (Kinney, supra, at p. 488), B.R. fails to establish any reversible error.
In his reply brief, B.R. acknowledges that the court did not discuss either B.R.'s conduct with respect to M.R.'s old cell phone or B.R.'s verbally aggressive conduct on July 18 in its oral statement of decision. B.R. suggests that the fact that the court did not discuss such evidence supports the conclusion that the court found that such conduct did not support a finding of abuse. We reject this argument since it is premised on the notion that the court implicitly made findings against the court's restraining order. Such an argument is contrary to the fundamental precept of appellate review, namely that "all intendments and presumptions are indulged in favor of correctness" of the trial court's order. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996.)
Accordingly, we conclude that there is substantial evidence in the record to support the trial court's issuance of a restraining order against B.R. on the ground that B.R. harassed M.R.
In her respondent's brief, M.R. contends that the order may be affirmed on the ground that there is substantial evidence in the record that B.R. "disturb[ed] the peace," of M.R. B.R. contends that the order may not be affirmed on this ground for various procedural reasons, including that the trial court did not find that B.R. had disturbed M.R.'s peace. In light of our affirmance of the order on the ground stated in the text, we need not consider whether the award may be affirmed on this alternative ground. --------
IV.
DISPOSITION
The order is affirmed. B.R. is to bear costs on appeal.
AARON, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.