Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Super. Ct. No. 08D006872 Robert H. Gallivan, Judge. Petition granted.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller; Law Offices of Roy A. Hoff and Kathleen A. Tomeo for Petitioner.
No appearance for Respondent.
Ronald D. Barbera for Real Party in Interest.
Before Rylaarsdam, Acting P. J., Aronson, J., and Ikola, J.
OPINION
Petitioner Loren Petersen filed a petition for dissolution of a long-term marriage on July 30, 2008. On September 19, 2008, and before any hearing on the division of property or a child custody had been held, real party in interest Donna Petersen filed an ex parte order to show cause to exclude petitioner from the family home they had lived in for more than 10 years. (Fam. Code, § 6321.)
At the hearing, the court considered Donna’s declaration. She asserted Loren “continues to this day with a volatile temper,” accuses her of having had “an affair,” “continuously degrades me in front of our children,” and “follows me out of the house ranting and screaming where our neighbors hear and embarrass [sic] me and the children.” She further stated that more than a year earlier, in June 2007, after she had picked him up from the hospital, “he pounded the dashboard and yell [sic] at me all the way home, insisting I leave the house as soon as we got home. Shortly after arriving at the residence, in front of our children, petitioner’s conversation escalated and he became more outraged, yelling profanities and then he threw a chair through the sliding glass door. He told me I had 15 seconds to get out of the house or he would pick me up and physically put me in the car.” And about three months before the ex parte hearing “in the heat of anger through [sic] a telephone across the room and damaged the wall, while in the presence of myself, the children and friends.” She concludes that “[b]ased on petitioner’s violent and unpredictable conduct I fear for my physical and emotional safety and the physical and emotional safety of our children.”
Donna also testified on her behalf, repeating much of what she included in her declaration. On cross-examination she conceded Loren had never “physically hit” her.
Several times during the hearing the family law judge opined that the situation was “intolerable.” At the conclusion of Donna’s testimony, the court concluded it was going to grant the relief prayed for. Loren’s counsel responded: “I’m sorry to interrupt you, but my client feels that he hasn’t had a chance to tell his side of the story. Would you mind listening to him too?”
The court responded: “Ma’am, I tried to accommodate you to—this is just an ex parte situation to let you have an opportunity to cross-examine her.” To which counsel stated: “I know, you let me have an opportunity to cross-examine her, but we haven’t called the petitioner.” The court responded: “No, I don’t think I am going to need to hear from him. Based upon their ex parte application and the testimony I have heard, I just feel that it would be appropriate to grant . . . .”
Counsel then argued the lack of irreparable harm as a necessity for ex parte relief. Counsel also informed the court once again that Loren wanted to testify, and that he should have his day in court. Without hearing from Loren the court issued an order excluding him from the family dwelling and ordering him to vacate it within 24 hours of the order. This writ petition ensued challenging that order.
Family Code section 6340 provides: “(a) The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. . . . (b) The court may issue an order described in Section 6321 excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.”
A spouse who seeks to obtain an ex parte order under Family Code section 6321 must show “that the spouse to be excluded has either assaulted or threatened to assault the other spouse as well as that physical or emotional harm would otherwise result to the other spouse” or the children. (In re Marriage of Parker (1981) 118 Cal.App.3d 291, 294.) If the spouse to be excluded has “not been physically violent” to the other spouse then there is no basis for ex parte relief. (Ibid.) A leading treatise on family law echoes this. “As a practical matter, judges rarely grant ex parte dwelling exclusion orders, except in the most extreme cases of very recent assaultive or threatening conduct demonstrated on competent, fact-specific declarations (times, dates, places and exact injuries suffered, etc.). [Emphasis in original.]” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 5:77, p. 5-32 (rev. #1, 2008).)
The petition advised Donna a peremptory writ might be issued in the first instance without issuance of an order to show cause. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Donna was afforded an opportunity to file a response to the allegations of the petition. Let a peremptory writ of mandate issue compelling the family law court to conduct a noticed hearing under Family Code section 6360 and to allow Loren to testify. Costs are awarded to petitioner. In the interest of justice, this opinion is final as to this court immediately upon its filing.