Opinion
A098797.
7-24-2003
KAREN SCHNEIDER, Plaintiff and Respondent, v. CHARLES TUTTLE, Defendant and Appellant.
INTRODUCTION
Charles Tuttle appeals from a domestic violence prevention restraining order, challenging the order itself, its attorney fees award, and its duration.
BACKGROUND
On July 11, 2000, Tuttle applied for a restraining order against his former domestic partner, Karen Schneider, under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).
He alleged that on June 30, Schneider had removed from his home personal property belonging to him, and physically attacked and injured him and his then-fiancee. On July 14, Schneider applied for a DVPA order restraining Tuttle, who, she alleged, had accosted her in her car on June 29, causing injuries requiring hospitalization. The matters were consolidated for a July 17 hearing. For reasons not revealed in the record on appeal, the hearing did not take place for over a year, by which time, Tuttle says, he had "dropped his request for a restraining order."
On October 9, 2001, the court issued a memorandum of decision, finding by a preponderance of the evidence that Tuttle had assaulted Schneider causing her physical and emotional harm, which entitled her to the requested restraining order, and awarding her costs including attorney fees. On October 30, Schneiders counsel filed a declaration in support of request for attorney fees with attached billing statements, and on January 10, 2002, she filed a memorandum of costs. On February 27, the court issued a ruling, based on counsels cost bill and fee declaration, awarding Schneider $ 7,183.25.
On March 21, 2002, the court issued a restraining order after hearing, enjoining Tuttle from contacting, molesting, harassing, attacking, striking, threatening, sexually assaulting, battering, telephoning, sending messages to, following, stalking, destroying the personal property of, disturbing the peace of, keeping under surveillance, or blocking the movements in public places or thoroughfares of Schneider and her two sons. It also ordered Tuttle to stay at least 25 yards away from Schneider, her residence, her place of work, her vehicle, and her sons and their school, and ordered payment of attorney fees. Tuttle filed a timely notice of appeal. Tuttle has failed to include the required statement of appealability (Cal. Rules of Court, rule 14(a)(2)(B)) in his opening brief. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 556-557 [brief may be stricken for such failure, and appeal dismissed for repeated lapse].) The order is, however, appealable as an injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2002) § 16:294, p. 16-61.)
DISCUSSION
I.
STANDARD OF PROOF
Tuttle first contends the applicable burden of proof was greater than a preponderance of the evidence. Acknowledging that the DVPA is silent on the issue, Tuttle bases his contention on the fact that clear and convincing evidence is required for a civil injunction prohibiting harassment (Code Civ. Proc., § 527.6), and for imposition of probate conservatorship (Conservatorship of Sanderson (1980) 106 Cal. App. 3d 611, 620, 165 Cal. Rptr. 217), both of which he considers less serious than a domestic violence restraining order. (His repeated litany of possible "sanctions flowing from" a domestic violence restraining order is unsupported by citation to any particular provisions of the DVPA.)
The short answer is that "arguments not asserted below are waived and will not be considered for the first time on appeal. [Citations.]" (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.) Tuttles counsel began his closing argument to the court by stating that "they have not established by clear and convincing evidence that Mr. Tuttle did anything wrong." When he was finished, the court asked, "Anything else?" to which Schneiders counsel replied, "Your Honor, I dont believe its clear and convincing evidence for a domestic violence restraining order-it is for a civil harassment-but thats not, I believe, the burden in a domestic violence restraining order." The matter was submitted without objection, and in the five months between the memorandum of decision (wherein the court expressly applied the preponderance standard) and the issuance of the restraining order, Tuttle did not raise the issue below.
II.
SUFFICIENCY OF THE EVIDENCE
Next Tuttle contends there was insufficient evidence to support an implied finding that a restraining order was necessary to prevent a recurrence of domestic violence. He quotes selectively from section 6300 (mistakenly identified as section 6200), which provides for issuance of a domestic violence prevention order "upon affidavit" (temporary restraining order), omitting the phrase "if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Tuttle eschews challenging the courts express finding of a past assaultive act.) Although one purpose of such an order is "preventing a recurrence of domestic violence," the quoted section does not require a finding of the likelihood of such a recurrence. Nor does Tuttle identify any other statutory provision requiring a finding such as the one he claims the court impliedly made without sufficient evidence. (Orders issued, as here, after notice and hearing, are governed by section 6340.)
III.
ATTORNEY FEES AWARD
Next, Tuttle contends the court was without power to award attorney fees absent a motion, notice and opportunity to be heard, and a determination of his ability to pay. He points out two short, passing references to fees and/or finances at the hearing: On direct examination, Schneider was asked about her attorney fees and costs. Before she could answer, Tuttles counsel said, "Your Honor, Im assuming that the prevailing party will file a cost bill on attorneys fees after this is over." After a short discussion about whether the fees of Schneiders prior counsel would be included, the following colloquy ensued: "[Tuttles counsel]: My assumption is you file a motion for attorneys fees and you file a cost bill and I either-and maybe I even, I11 do it, who knows. [P] [Schneiders counsel]: Well, we asked for attorney fees and costs as part of this, so I would think the Court would address it one way or the other in its ruling, so-[P] THE COURT: If you feel thats part of your cost bill-[P] [Schneiders counsel]: Thats fine. [P] THE COURT:-if you prevail."
Later, Tuttle testified that on June 29, 2000, he was unemployed. When counsel asked about the termination of his previous employment, the court sustained a relevancy objection. Tuttles counsel explained that because Schneider "got into this child support stuff," he wanted to point out that Tuttle had lost his job. The court replied, "I dont care about the child support stuff." There was no further objection, and the restraining order contained no child support provision.
As previously noted, the court first awarded Schneider costs and fees in its memorandum of decision. Schneider then filed a written request for attorney fees, supported by counsels declaration and billing statements, and a memorandum of costs. The court issued a ruling thereupon, and a month later included an award of costs and fees in its final order.
Tuttle now complains that there was no "motion" or "application" for attorney fees, nor a hearing on the issue ( § 6344 ["After notice and a hearing, the court may issue an order for the payment of attorneys fees and costs of the prevailing party"], Cal. Rules of Court, former rule 1220 [Code Civ. Proc., § 1021 et seq., "Of Costs," applicable to Family Code proceedings] and rule 870.2(b)(1) [claiming attorney fees before trial court judgment]), nor a determination of his ability to pay ( § 270).
Tuttle has waived the attorney fees issues by failing to raise them below. As indicated above, starting in July 2000, when Schneider applied for a restraining order, he was repeatedly made aware of her claim for costs and fees, yet he neither opposed her request, nor raised any objection below, either procedural or substantive. He may not do so for the first time here. (See In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178-179 [waiver of sanctions hearing under § 271].)
IV.
DURATION OF RESTRAINING ORDER
Finally, Tuttle maintains the restraining order exceeds its permissible duration, which, without citation to authority, he takes to be "no more than three years from the date of the event." He is mistaken. Section 6345, subdivision (a) provides, "In the discretion of the court, an order issued after notice and a hearing under this article may have a duration of not more than three years, unless otherwise terminated or extended by further order of the court either on written stipulation filed with the court or on the motion of a party." The March 21, 2002 restraining order expressly expires on October 9, 2004, a little more than two and a half years after the date of issuance.
DISPOSITION
The order is affirmed.
We concur: Kay, P.J., Rivera, J. --------------- Notes: Unless otherwise indicated, all statutory references are to the Family Code.