Opinion
G062715
11-26-2024
In re the Marriage of S.K. and H.S. v. H.S., Appellant. S.K., Respondent,
Provinziano &Associates and Alphonse F. Provinziano for Appellant. Law Offices of Saylin &Swisher, Brian G. Saylin and Lindsay L. Swisher for Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, No. 22D008945 Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Provinziano &Associates and Alphonse F. Provinziano for Appellant.
Law Offices of Saylin &Swisher, Brian G. Saylin and Lindsay L. Swisher for Respondent.
OPINION
GOODING, J.
H.S. (Husband) appeals from the trial court's issuance of a three-year domestic violence restraining order (DVRO), and amended DVRO, in favor of S.K. (Wife) pursuant to the Domestic Violence Prevention Act (DVPA), and the court's denial of Husband's mutual application for a DVRO against Wife. We affirm.
Family Code section 6200 et seq. All further statutory references are to the Family Code unless otherwise stated.
To determine whether substantial evidence supports the trial court's factual findings, we review the evidence in the light most favorable to Wife, the prevailing party. (Casey N. v. County of Orange (2022) 86 Cal.App.5th 1158, 1170.)
Husband and Wife were married in January 2020. Their son, E.S., was born in December 2021. Husband, Wife, and E.S. lived together in their home in Tustin. Wife was diagnosed with postpartum depression approximately six weeks after giving birth to E.S. Wife, an attorney, returned to work four months after E.S. was born. Her schedule required her to take E.S. to her parents' home in Lake Forest before work, work a full day, pick E.S. up after work and drive back to the family home, take care of him, put him to bed, make dinner, and continue working into the night. Before long, the combination of full-time work, household duties, and caring for a newborn became overwhelming for Wife. Husband and Wife began arguing more frequently, and Husband told Wife she was a bad mother and not a good wife and caretaker. When Wife told Husband she was struggling and thought something was wrong with her, Husband responded it was all in her head. When Wife asked if she could hire a nanny and house cleaner, Husband refused, saying: "This is just woman's work that [Wife] should do." From time to time during their marriage, Husband told Wife he could forbid her from seeing her family, and at one point after E.S. was born, he told Wife he no longer wanted her family involved in the child's life.
We refer to the Tustin residence where the parties lived together as the "family home" for ease of reference only. Any disputed issue of ownership over the property is not before us on this appeal.
Although Wife was feeling a little better by August 2022, she was still feeling overwhelmed, and the parties' arguments became more frequent, to the point where Wife and Husband were not on speaking terms. Wife began seeing a therapist who specialized in postpartum depression and anxiety. Around this time, Wife contracted COVID-19, which prompted Husband to take E.S. to stay with Wife's parents so Wife could recover at the family home. Wife stayed in the master bedroom to quarantine, but Husband refused to give Wife privacy, using a key to unlock the master bedroom. Husband continued to make comments about Wife's inadequacies as a caregiver.
In mid-August 2022, after Wife had recovered and tested negative for COVID-19, she left the family home and started staying at her parents' home with E.S. At that point, the arguments between Husband and Wife escalated, and Wife informed Husband she needed space and wanted to separate. By September, Husband began asking Wife to return to the family home in a way that felt harassing to Wife: he persistently called and texted her, and he went to her parents' home multiple days in a row and stood outside for hours insisting he wanted to speak with Wife, even after Wife told him she did not want to talk to him. Wife felt Husband was controlling her movements by constantly texting her and asking where she was. Husband showed up at one of E.S.'s medical appointments unannounced, and he followed Wife's father to a doctor's appointment.
Approximately three weeks after Wife began staying at her parents' home, Husband started asking Wife about spending time with E.S., and they agreed informally to visitation by Husband. By October, E.S. was staying with Husband at the family home for weekly overnight visits. During visitation exchanges, Husband continued to ask Wife when she was coming home.
On October 22, 2022, Wife went to the family home; Husband wanted to reconcile and had asked her to come speak with him. The meeting did not go well. During the visit-which lasted approximately five hours- Wife told Husband she did not want to stay in the marriage. He would not take "no" for an answer, however, and threatened to take E.S. away from her. Wife became upset, lost her temper, lost control, threw things, and began hitting herself. When Husband came to Wife and put her in a "bear hug[]," she yelled at him to get off her.
Eventually, Wife walked downstairs to the first level of the home, intending to leave the house through the garage, where her car was parked. Husband followed her down the stairs and they continued arguing for another two hours or so. Wife tried to leave multiple times, but Husband stood in front of the doorway in the narrow passageway leading to the garage, blocking Wife's exit with his body, and pleading with her to talk to him. When Wife tried to back away from Husband to get him to stop talking, he would come closer to her, which caused her to put her arms out to try to block him and keep him back. Wife admitted that at one point, she threw a stool during the altercation because she was exhausted and wanted Husband to stop arguing with her, but testified she threw it behind him, not at him. Although Husband responded apologetically, the parties nevertheless continued to argue until finally Wife urinated on herself from sheer exhaustion. At that point, Husband stopped arguing, and Wife changed her clothes and left the house.
Visitations between Husband and E.S., and contact between Husband and Wife, continued smoothly for the next month and Wife began to grow hopeful the parties could amicably co-parent. The arguments between Husband and Wife had minimized, and they began seeing a marriage counselor together. Wife spent Thanksgiving with Husband at the family home.
In December 2022, Husband was continuing to have regular weekend overnight visitations with E.S., and the parties were talking about whether they should get back together and began interviewing nannies. However, Wife filed for dissolution of marriage on December 16, 2022, and requested sole legal and physical custody of E.S., with visitation by Husband. On a Sunday in mid-December, Husband did not return E.S. to Wife at her parents' home at the agreed-upon time following E.S.'s overnight visit at the family home; instead of returning E.S. to Wife on Sunday, Husband did not bring him back until the next morning. The next weekend, Husband failed to return E.S. at all, telling Wife, "[E.S.] lives here now" and "is not leaving the house ever again." When Wife went to the family home to talk with Husband, he threatened to call the police if Wife tried to leave with E.S., and he tried to take her phone away. Wife called a friend, who stayed on the speaker phone with Husband and Wife for hours. Wife ended up staying in the family home that night; she was concerned for E.S.'s safety due to Husband's erratic behavior and emotional volatility.
Wife was not able to leave the family home with E.S. until she obtained a temporary restraining order (TRO) from the court on December 22.
When Wife went back to the family home a few days later to see E.S., Husband refused to let her hold E.S. Although Wife was able to hold E.S. briefly the next day, Husband would not allow her to be alone with him. At some point, Husband pushed Wife into the master bedroom so she could not get to E.S. Husband reprogrammed the garage opener to keep Wife out of the family residence. Husband told her she was not welcome in the family home, and he would be keeping E.S. 100 percent of the time. While she was locked out of the garage, Wife managed to gain entry to the house through the front door and see E.S., although she was only able to hold him for a brief time and was not permitted to be alone with him unless he was sleeping. Wife was only able to visit with E.S. if she was at the family home, and Husband prevented her from taking E.S. out.
On December 22, 2022, Wife applied for a DVRO and a TRO against Husband. The trial court issued a TRO listing Wife and E.S. as protected persons pending a hearing on the DVRO. On January 23, 2023, Husband filed a response to Wife's petition for dissolution; he requested dissolution of marriage and asked for sole legal and physical custody of E.S., with no visitation to Wife. On February 3, 2023, Husband filed a response to Wife's request for a DVRO, as well as a request for a mutual DVRO against Wife. Through their respective DVRO applications, both parties sought a DVRO against the other, a home exclusion order, and temporary custody of E.S.
The trial court held a joint hearing on the mutual DVRO requests on April 10, 2023, granted a three-year DVRO in favor of Wife and E.S., and denied Husband's DVRO application. The court granted sole legal and physical custody of E.S. to Wife, but specifically stated the custody order was "not a Montenegro order," and the issue of custody would be decided later by the family court judge to whom the parties' dissolution action was assigned.The court also ordered Husband's visitation with E.S. to continue on the same alternate weekend schedule the parties had previously put in place.
We assume the court's reference is to Montenegro v. Diaz (2001) 26 Cal.4th 249 and the court was conveying that its order granting Wife sole legal and physical custody of E.S. was not a final judicial custody determination.
In granting Wife's request for a DVRO, the trial court found Husband's efforts to reconcile with Wife had devolved into harassment. The court stated that, although it tended to believe that Husband had physically blocked her from leaving the house on October 22, it was not making a specific finding on that issue. The court, however, found it important that Husband refused to let Wife hold E.S. and concluded there was a pattern of controlling conduct by Husband that constituted abuse. The court determined Husband's conduct in withholding E.S. from Wife amounted to coercive control and E.S. was harmed because of that conduct.
In denying Husband's application for a DVRO against Wife, the court acknowledged Husband had been injured, as depicted in a photograph showing a scratch and bruise on his chest. It nevertheless found the abuse by Wife was not of a continuous nature and Husband's conduct had exacerbated the situation. The court concluded Husband had not shown, by a preponderance of evidence, that Wife engaged in a pattern of abuse toward him.
Husband timely appealed from the issuance of the DVRO on April 11, 2023, as amended by an order issued April 27, 2023.
The amended DVRO simply corrected the spelling of Husband's name.
DISCUSSION
I.
GOVERNING PRINCIPLES AND STANDARD OF REVIEW
"'Under the DVPA, a court is authorized to issue a protective order "'to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved'" upon "reasonable proof of a past act or acts of abuse."'" (Parris J. v. Christopher U. (2023) 96 Cal.App.5th 108, 115.)
"'[A]buse'" under the DVPA includes intentionally or recklessly causing or attempting to cause bodily injury, placing a person in reasonable apprehension of imminent serious bodily injury, or engaging in behavior that could be enjoined under section 6320. (§ 6203.) Behavior that can be enjoined pursuant to section 6320 includes "molesting, attacking, striking, stalking, threatening, sexually assaulting, [and] battering . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party." (§ 6320, subd. (a), italics added.) The phrase "'disturbing the peace'" refers to conduct that "based on the totality of the circumstances, destroys the mental or emotional calm of the other party." (§ 6320, subd. (c).) "This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (Ibid.) One example of coercive control is unreasonably "[c]ontrolling, regulating, or monitoring the other party's movements." (Id., subd. (c)(3).) "'Abuse'" is "not limited to the actual infliction of physical injury or assault." (§ 6203, subd. (b).)
"'The DVPA vests the court with discretion to issue a restraining order "simply on the basis of an affidavit showing past abuse." [Citation.] The burden of proof is by a preponderance of the evidence. [Citations.] The 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."'" (Parris J. v. Christopher U., supra, 96 Cal.App.5th at p. 116.)
"'We review the grant of a DVPA restraining order for abuse of discretion, and, to the extent we are called upon to review the court's factual findings, we apply the substantial evidence standard of review. [Citation.] In reviewing the evidence, we examine the entire record to determine whether there is any substantial evidence-contradicted or uncontradicted-to support the trial court's findings. [Citation.] We must accept as true all evidence supporting the trial court's findings, resolving every conflict in favor of the judgment. [Citation.] We do not determine credibility or reweigh the evidence. [Citation.] If substantial evidence supports the judgment, reversal is not warranted even if facts exist that would support a contrary finding.'" (Parris J. v. Christopher U., supra, 96 Cal.App.5th at p. 116.) With respect to the trial court's application of the law to the facts, "'[a]n abuse of discretion occurs when the ruling exceeds the bounds of reason.'" (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 396.)
With respect to the denial of a DVRO, where "'the trier of fact has determined that the party with the burden of proof did not carry its burden and that party appeals, "it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment [or order]." [Citations.] Instead, "where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." [Citation.] Specifically, we ask "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'"' [Citation.] This is 'an onerous standard' [citation] and one that is 'almost impossible' for a losing [party] to meet, because unless the trier of fact made specific factual findings in favor of the losing [party], we presume the trier of fact concluded that '[the party's] evidence lacks sufficient weight and credibility to carry the burden of proof.'" (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 651.)
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ISSUING A DVRO TO WIFE
Husband contends the trial court abused its discretion in issuing the DVRO to Wife because there was insufficient evidence of coercive control. We disagree.
"As with any civil appeal, we must presume the [order] is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the [order]." (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) As the appellant, Husband bears the burden of overcoming that presumption of correctness by demonstrating prejudicial error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.)
Husband has not met that burden. Based on our review of the record, we find no abuse of discretion in the court's decision to issue Wife a DVRO. Credibility determinations are the sole province of the trier of fact (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823), and the testimony of one witness, contradicted or uncontradicted, is enough to affirm an order granting a domestic violence restraining order (In re Marriage of Fregoso &Hernandez (2016) 5 Cal.App.5th 698, 703). There is substantial evidence in the record that Husband engaged in conduct that, "based on the totality of the circumstances, destroy[ed] the mental or emotional calm of [Wife]," including acts of coercive control. (§ 6320, subd. (c).) The trial court was entitled to believe Wife's version of the events and disbelieve Husband's, including Husband's assertion that he was only acting in E.S.'s best interest and was not using E.S. to control Wife or to coerce her to move back in and reconcile with him. The evidence showed that, after Wife told Husband the marriage was over and the parties informally agreed to child visitation, Husband refused to return E.S. to Wife, refused to let her hold E.S. or take him outside, and would only let Wife see E.S. if she stayed physically in the family home with Husband. Husband also threatened to take E.S. away from Wife if she divorced him. In addition, the trial court stated it tended to believe Wife's testimony that Husband physically used his body to block Wife from leaving the house during an argument.
Wife made no allegation of physical abuse; she testified Husband never hit her or threatened her with physical harm.
Although the court stated it believed Wife's version of the events over Husband's, it stated it was not making a specific finding that Husband blocked Wife from leaving the house.
The court also found Wife was under "extreme stress" and it was clear Husband knew it. "Mental abuse is relevant evidence in a DVPA proceeding." (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 821; Id. at p. 822 ["[A]cts of isolation, control, and threats were sufficient to demonstrate the destruction of Rodriguez's mental and emotional calm" where they "continued despite respondents' knowledge of the adverse consequences to Rodriguez's health and pregnancy"].)
In sum, the evidence amply supports the court's finding by a preponderance of the evidence that Husband committed acts of abuse. It does not compel a finding in favor of Husband as a matter of law.
In arguing the evidence was insufficient to justify issuing the DVRO against him, Husband relies on S.M. v. E.P. (2010) 184 Cal.App.4th 1249 (S.M.). In that case, the mother of a toddler wished to move out of state to raise the child. (Id. at p. 1253.) The father secured a restraining order prohibiting the mother from removing the child from California. The couple then argued, and the mother called the police, which resulted in the father's arrest. (Id. at p. 1254.) The mother asserted the father threatened her (ibid.), badgered her, called her derogatory names, and refused to leave the room despite her request that he do so (id. at p. 1258). Police reports described the father as badgering the mother based on "his refusal to give [her] permission to take [their child out of California] without her signing a stipulation that she would return with the child" and his "refusal to agree to let [the mother] take [their child] out of the house" for her booked flight out of California with the child later that day. (Id. at p. 1266.)
The trial court issued the mother a DVRO, but "specifically declined to find [the father] made a threat against [the mother] as [she] claimed." (S.M., supra, 184 Cal.App.4th at p. 1265.) The trial court suggested it was not making a finding of domestic violence against Husband despite its issuance of a DVRO against him. (Id. at pp. 1267-1268.) The appellate court reversed the trial court's order, reasoning that "without a finding that [the father] threatened [the mother], the evidence of [the father]'s conduct, [wa]s legally insufficient, by itself, to support issuance of a restraining order." (Id. at p. 1265.) The appellate court further concluded the trial court did not find, and the evidence would not support a finding, that the father's conduct constituted harassment or abuse. Rather, father's "behavior demonstrated that he was 'highly concerned about losing contact with [his] child,' a concern that the court found to be 'certainly commendable.'" (Id. at p. 1266.)
The facts in this case are readily distinguishable from those in S.M. First, the court in S.M. did not make any finding of abuse or coercive control as the trial court did here. Second, unlike S.M., the trial court here did not believe Husband's actions, e.g., prohibiting Wife from holding E.S. or leaving the house with him, were motivated by concern for E.S. Rather, the court found they were Husband's way of using E.S. to assert control over Wife in an attempt to save their marriage.
In addition to challenging the issuance of the DVRO, Husband argues the three-year duration of the DVRO was an abuse of the trial court's discretion because (1) the facts were not egregious because there was no evidence he physically abused Wife, and (2) the court failed to explicitly articulate its reasons for imposing a three-year order. Neither argument is persuasive.
In addition to its broad discretion to issue a DVRO (In re Marriage of Fregoso &Hernandez, supra, 5 Cal.App.5th at p. 702), the DVPA expressly provides the trial court discretion to determine the duration of a DVRO, which may not exceed five years (subject to modification or renewal). (§ 6345, subd. (a).) The DVRO issued here did not exceed the statutory limit. Husband cites no authority for his argument that the court must specify its reasons for selecting the duration of the restraining order or his argument that, in cases of domestic violence where there is no physical abuse, the order must be of a short duration (or at least shorter than three years). An appellant must "support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B); see Blizzard Energy, Inc. v. Schaefers (2021) 71 Cal.App.5th 832, 854 [forfeiture of points without meaningful argument or citation to authority].) We find no abuse of discretion in the court's issuance of a three-year DVRO in favor of Wife.
III.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING HUSBAND'S REQUEST FOR A DVRO
In addition to challenging the trial court's issuance of a DVRO in favor of Wife, Husband challenges the court's denial of his own request for a mutual DVRO against Wife. The court had broad discretion to deny Husband's request (In re Marriage of Fregoso &Hernandez, supra, 5 Cal.App.5th at p. 702), and we find no abuse of that discretion.
Husband contends the trial court ignored the evidence of Wife's abuse of him and gave more weight to Wife's evidence than to his. But the record does not reflect the court ignored Husband's evidence. To the contrary, the court heard the testimony of both parties, including not only each side's explanation of what happened on October 22, but also Husband's claims that Wife had been abusive to him throughout the marriage. The court also acknowledged the evidence of the injury to Husband's chest. Then, weighing all the evidence and evaluating the parties' credibility, it declined to issue the DVRO requested by Husband.
In essence, Husband argues the trial court erred because it should have believed him and not Wife. Husband points out he challenged Wife's credibility at the hearing, including showing that portions of her testimony at the hearing were not included in her initial declarations filed in support of her TRO application.
But Husband's view of Wife's credibility is not relevant, much less controlling. As noted above, credibility determinations are the province of the trial court and we do not second-guess them. That includes not only credibility findings explicitly made by the court but also those that are implicit in its findings. (People v. Tully (2012) 54 Cal.4th 952, 984; Id. at p. 979 ["'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences'"].) Here, the trial court clearly found Wife more credible and found there was not a pattern of abuse by Wife directed toward Husband that would necessitate a court order. (See § 6220 [the purpose of the DVPA "is to prevent acts of domestic violence [or] abuse"].) The record does not compel a finding in favor of Husband as a matter of law.
Finally, we address Husband's contention that, in denying his requested DVRO, the trial court failed to properly apply section 6305, which governs the issuance of mutual restraining orders, and failed to make necessary findings under Penal Code section 836. Again, we find no error.
Section 6305, subdivision (a) provides "the court shall not issue a mutual order enjoining the parties from specific acts of abuse" (ibid.) unless it makes "detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense" (id., subd. (a)(2)). "[I]n determining if both parties acted primarily as aggressors, the court shall consider the provisions concerning dominant aggressors set forth in [Penal Code section 836, subdivision (c)(3)]." (§ 6305, subd. (b).) On its face, the statute specifies only the findings a court must make to issue a mutual protective order. It does not require a court to make factual findings where-as here-it denies a mutual DVRO. As explained in Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1060, "Nothing in the statute mandates the issuance of a mutual restraining order" and "the statute [does not] require detailed findings of fact when the court declines to issue a mutual restraining order." (Ibid.)
IV.
EVIDENTIARY ISSUES
Husband challenges certain of the court's evidentiary rulings. We review the evidentiary rulings for an abuse of discretion. (Jane IL Doe v. Brightstar Residential Inc. (2022) 76 Cal.App.5th 171, 176.)
First, Husband contends the court abused its discretion by refusing to allow him to cross-examine Wife on her conversation with her doctor about suicidal ideations. Wife had put her medical records and diagnosis into evidence on direct examination, testifying (among other things) that her doctor had asked her whether she had any suicidal ideations, and that she had responded she did not. Husband's counsel sought to inquire further on cross-examination about the medical records related to that conversation in order to ascertain why Wife was referred for a depression test and mental health services and what she discussed with her doctor regarding suicidal ideations. The court stated it would not "permit any medical record to be permitted into the trial without an expert to testify and advise the court as to its significance." The court appeared to overlook that the medical record Husband's attorney was seeking to use to cross examine Wife had been marked for identification as evidence by Wife's attorney on direct. The trial court declined Husband's counsel's request to clarify or make a record of the questions he intended to ask, stating "[t]he matter is closed on that issue without an expert, period."
We are aware of the workload and time pressures under which trial courts work. But we cannot endorse the abrupt and dismissive way the trial court handled this evidentiary issue; trial counsel should be allowed to make a complete record when a line of questioning is foreclosed by the court. Such a record can assist the trial court in fully understanding the proffer (and perhaps lead it to modify its ruling) and-significantly for our purposes-facilitates our review on appeal. Nevertheless, particularly considering the key issues before the court on the parties' DVRO petitions, we cannot say the court's ruling precluding questioning on the subject amounted to an abuse of discretion. We find no reversible error arising from the court's rulings and conduct during the hearing.
Husband relies on Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, which held that "[t]he right of cross-examination of witnesses is fundamental, and its denial or undue restriction is reversible error." (Id. at p. 971.) We do not disagree, but the key to this sentence is the word undue. The right to cross-examine witnesses, although fundamental, is not absolute and may be curtailed by a court. (See In re Jeanette V. (1998) 68 Cal.App.4th 811, 817 ["due process is not synonymous with full-fledged cross-examination rights" and is "limited to relevant evidence of significant probative value to the issue before the court"].)
We do not find that Husband's right to cross-examine Wife on this limited issue was unduly restricted or that the trial court excluded evidence of significant probative value to the issues before it. Husband's attorney was permitted to, and did, fully cross-examine Wife on a broad range of topics involving the interactions between Husband and Wife, not just on October 22 but more generally during the marriage. Although counsel was not permitted to delve further into Wife's medical records, Wife acknowledged her doctor had asked her about suicidal ideations and she had responded in the negative. The court could reasonably conclude further questioning about Wife's discussion with her doctor on the topic was not genuinely germane to the primary issue at hand-i.e., whether either party had engaged in conduct vis-a-vis the other (or vis-a-vis E.S.) that warranted issuance of one or more DVROs. We find no abuse of discretion.
Even where a court has erred by unduly limiting crossexamination, "[t]he trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a 'miscarriage of justice'-that is, that a different result would have been probable if the error had not occurred." (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480.) That standard is not met here. Even assuming the court erred by limiting this line of questioning, Husband has not shown a different result would have been probable had the trial court given him greater leeway on this issue during cross-examination. We find no miscarriage of justice.
Husband also argues the court abused its discretion in refusing to allow his attorney to ask questions about a draft postnuptial agreement, purportedly to show the case was really all about child custody and visitation. The court excluded the evidence pursuant to Evidence Code section 352, stating that while it understood that parenting time with E.S. is an issue in the case, the evidence Husband was trying to introduce was too "far afield" from that issue. We agree. It does not require delving into the details of a postnuptial agreement (much less a draft of such an agreement) to know that child custody and visitation will be important in a dissolution action involving parents of a one-year-old child. Moreover, given that the primary issue before the court in the evidentiary hearing was the parties' mutual requests for a DVRO and that any resulting custody order would only be temporary, the trial court could, in the exercise of its discretion, reasonably conclude that, if relevant at all, questions about the financial or other terms contained in a draft postnuptial agreement were not sufficiently probative and would unduly and unnecessarily lengthen the proceeding. The trial court did not abuse its discretion in excluding this evidence.
V.
HUSBAND'S ALLEGATIONS OF GENDER AND CULTURAL BIAS AND LACK OF A LANGUAGE INTERPRETER
Husband contends the trial court's ruling reflected implicit gender bias against Husband as a father. To support this argument, Husband asserts Wife had unilaterally withheld the baby from him for four months and dictated a visitation schedule to him, yet his arguments were not given the same weight. We are not persuaded.
Contrary to Husband's contention, there was no evidence Wife withheld E.S. from him and unilaterally imposed a visitation schedule. To the contrary, the evidence showed Wife was staying with her parents with E.S., who was under the age of one, and the parties had agreed informally to Husband's visitation with E.S. There was no evidence Wife prevented Husband from seeing E.S. or that Wife used E.S. to control Husband's movements. The trial court heard and considered Husband's testimony concerning Wife's alleged abuse of him and rejected it, which is within the court's role as the trier of fact. Husband's contention the court was biased against him due to his gender is wholly unsupported by the record.
Husband next argues he had difficulty understanding and following the proceedings at trial because they were conducted in English, and he therefore was unable to meaningfully participate in his own defense. Before the hearing commenced, however, Wife's counsel asked for confirmation that Husband did not need an interpreter. Specifically, Wife's counsel said the following on the record: "I know at certain hearings he- Respondent has needed an interpreter, and I understand he did not want one today, that one was available. I just want to confirm on the record because I don't want it to become an issue later that we're not understanding one another." Husband's counsel responded by stating, "Confirmed." Based on this exchange, we agree with Wife that Husband expressly and knowingly waived his right to have an interpreter at the hearing.
Husband also points out that at times during the hearing, he struggled to explain things in English, and he asserts this must have "impacted the weight his testimony was then given." The record does not support Husband's contention that the trial court did not gain a full understanding of Husband's testimony or that the court demonstrated cultural bias against Husband because Husband sometimes had difficulty expressing himself in English. The court was active during the hearing and asked for clarification when needed; nothing in the record suggests the court misunderstood or failed to consider any of Husband's testimony.
VI.
TRIAL COURT'S CUSTODY ORDER
Husband argues the trial court abused its discretion in granting Wife sole legal and physical custody of E.S. In her respondent's brief, Wife argued the custody order was not appealable because it was only a temporary order, not a Montenegro order. There was no reply from Husband on this issue. We conclude the custody order issued by the trial court at the time it issued the DVRO to Wife was temporary and not appealable. (See Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1051 [child custody determinations under the DVPA are temporary custody orders]; Lester v. Lennane (2000) 84 Cal.App.4th 536, 557-565 [temporary child custody and visitation orders are properly challenged through a writ petition].)
DISPOSITION
The orders are affirmed. Wife is entitled to her costs on appeal.
WE CONCUR: O'LEARY, P. J., GOETHALS, J.