Opinion
C080843
11-20-2017
JEREMY SQUIRES, Plaintiff and Respondent, v. DEANA SQUIRES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12DV01710)
Jeremy Squires obtained a three-year domestic violence restraining order against his former wife, appellant Deana Squires, while they were embroiled in a contentious divorce. Because the parties share the same surname, we will refer to them by their first names. Deana did not appeal or otherwise challenge the order. A few months before the restraining order expired, Jeremy filed a request to renew the order. Deana opposed the renewal, arguing for the first time that the original restraining order was invalid. The court found sufficient evidence to renew the restraining order for five years.
On appeal, Deana contends that the court acted in excess of its jurisdiction in issuing the original restraining order and abused its discretion in renewing what she characterizes as a void order. Because Deana's time to challenge the original restraining order has long since passed and substantial evidence supports the renewed restraining order, we affirm the judgment.
FACTS AND PROCEEDINGS
Jeremy and Deana were married in 1996 and had seven children together. They separated in 2011, and finalized their divorce in Madera County in September 2013. That same month, Jeremy married his wife Wendy Squires. Deana resides in Madera County while Jeremy lives in Elk Grove.
While the divorce proceedings were pending, Deana repeatedly called and texted Jeremy and Wendy. As a result, Jeremy sought a domestic violence restraining order (DVRO) against Deana in Sacramento County. On October 26, 2012, Judge Culhane granted the DVRO protecting Jeremy and Wendy against Deana based on the high frequency of the phone calls and text messages. According to the court, "the evidence . . . demonstrate[d]--indeed is undisputed--that [Deana's] contacts by cell phone and text messages to both Jeremy [] and Wendy [] were of such frequency as to fall into the category of harassment . . . ."
Under the DVRO, except for "[b]rief and peaceful contact with [Jeremy and Wendy]," Deana was ordered not to do the following to them: "[h]arass . . . [or] disturb the peace" or "[c]ontact, either directly or indirectly, by any means, including, but not limited to, by telephone, mail, e-mail or other electronic means." The DVRO included a stay-away order requiring Deana to stay at least 100 yards away from Jeremy and Wendy, and from Jeremy's home, job or workplace, and vehicle, except during child exchanges at agreed locations.
The DVRO was for three years, expiring on October 25, 2015. Nothing in the record shows Deana appealed or otherwise challenged the DVRO after it was granted.
Although Deana stopped calling Jeremy after the court granted the DVRO, she continued to send numerous text messages complaining about her prior relationship with Jeremy and her belief that Wendy had wrecked their marriage. Between January 2014 and May 2014, Deana sent Jeremy 2,388 text messages.
In August 2015, Jeremy filed a request in Sacramento County Superior Court to renew the DVRO. His declaration detailed her numerous text and e-mail messages, many of which included hateful comments about he and Wendy. In one text message, Deana told Jeremy that she hated him and that she hoped Wendy would die soon so he would be left all alone. In another she said that his "back stabbing home wrecking woman [(meaning Wendy)] is more important than the [sic] your children again!!!!"
He also described an altercation in December 2014 after he dropped their three-year-old daughter off at Deana's house when exchanging custody. He parked around the corner from the home and walked his daughter towards the house where Deana was waiting in the front yard. Wendy, her two children, and three of Jeremy's other children with Deana waited in the car for him to return. Once his daughter could see Deana and her house, defendant set her down and had her walk the rest of the way. As his daughter walked toward Deana, Deana angrily walked past her and toward Jeremy. She followed him around the corner to his car and started banging on the car as he tried to leave. Their young daughter remained on the other street by herself with no one watching her.
Wendy opposed the renewal request arguing for the first time that the court abused its discretion in granting the DVRO. According to her, Judge Culhane did not find an intent to annoy or harass, something she claimed was required by Family Code section 6320 and Penal Code section 653m. (Unless otherwise set forth, statutory section references that follow are to the Family Code.) She also argued that by stating that nothing in the DVRO "affect[ed] existing custody orders," the court improperly sought to avoid section 3044 in the custody presumption. Although she did not counter the factual allegations in Jeremy's declaration, she did argue that Jeremy was in fact the dominant aggressor, that he did not reasonably fear for his safety, that he was not a credible witness, and that he had not shown an intent to annoy.
At the hearing on Jeremy's request to renew the DVRO, the parties were sworn and testified. The proceeding was not transcribed, however, and a settled statement of the proceeding does not summarize the testimony at the hearing.
According to the settled statement, Commissioner Danny L. Haukedalen asked Jeremy's counsel for an offer of proof regarding two alleged violations of the DVRO. In the first incident, Deana drove past Jeremy while he was approximately 200 yards from her house. In a supplemental declaration, Jeremy described Deana as driving within five feet of him causing him to fear that the car was going to hit him. In the second incident, Jeremy alleged that Deana had followed him after a parent-teacher conference for one of their children. According to his supplemental declaration, she waited for him after the conference, followed within 20 yards of him and the children even though she was supposed to be 100 yards away, and then moved her car across from where he was parked and sat glaring at him as he loaded the children into his car.
After considering the parties' testimony and the arguments of counsel, Commissioner Haukedalen found the evidence was sufficient to renew the DVRO for five years. No request for a statement of decision appears in the record. Deana timely appealed.
DISCUSSION
I
Validity of the DVRO
Deana first contends that the court exceeded its jurisdiction in granting the DVRO. She characterizes the DVRO's language that "[n]othing here affects existing custody orders," as an improper attempt to circumvent section 3044, subdivision (a), which creates a presumption against awarding sole or joint physical custody to a party who the court has found "perpetuated [sic] domestic violence against the other party seeking custody of the child . . . within the previous five years." (§ 3044, subd. (a).) Because Deana failed to timely challenge the DVRO when issued, she cannot do so now.
Even if we assume, for a moment, that the court exceeded its jurisdiction by including the above-quoted language, an act in excess of jurisdiction is merely voidable and not void. (Fireman's Fund Ins. Co. v. Workers' Comp. Appeals Bd. (2010) 181 Cal.App.4th 752, 767.) " ' "Action 'in excess of jurisdiction' by a court that has jurisdiction in the 'fundamental sense' (i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable." ' " (Ibid.) While a void act is vulnerable to direct or collateral attack at any time, a voidable act "generally [is] not subject to collateral attack once the judgment is final unless 'unusual circumstances were present which prevented an earlier and more appropriate attack.' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661.)
Deana's argument that a voidable order somehow becomes void and subject to collateral attack at any time "when proof is offered" is without merit. None of the cases she cites supports that proposition. Neither Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, nor County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, involved a judgment in excess of jurisdiction. Each of the judgments in those cases was void from the outset because evidence showed that the proofs of service of process were false and the defendants had never been properly served. (Morgan, at pp. 729-731; Gorham, at pp. 1221, 1226-1227.) The courts thus lacked fundamental personal jurisdiction over the defendants--something Deana does not claim here. Nor does she contend that the court lacked subject matter jurisdiction to issue a DVRO. (See § 6200 et seq. [Domestic Violence Prevention Act]; see also § 6300 [authorizing court to issue order restraining any person from committing acts of domestic violence upon reasonable proof of a past act or acts of abuse].)
Having determined that the DVRO was at most voidable and not void, it was incumbent on Deana to appeal the order before it became final. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503 ["[a] domestic violence restraining order is a type of injunction, as it is an 'order requiring a person to refrain from a particular act' "]; S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1257-1258 (S.M.) [DVRO is separately appealable as an order granting an injunction]; Code Civ. Proc., § 904.1, subd. (a)(6) [appeal may be taken "[f]rom an order granting . . . an injunction"].) This she did not do.
Generally, a party must file an appeal by the earliest of either 60 days after the superior court clerk served a notice of entry of judgment or a file-endorsed copy of the judgment, 60 days after being served with a document entitled notice of entry of judgment or a file-endorsed copy of the judgment, or 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1)(A)-(C).) In this case, the court granted the DVRO on October 26, 2012. The absolute latest Deana could have appealed the order, then, was April 24, 2013, 180 days after it was entered.
Deana did not challenge the DVRO until October 15, 2015, over two years after it became final for purposes of appeal. Because she did not timely challenge the order, she is prohibited from doing so now. " 'If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.' " (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46; see also In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 687 [" 'The right to appeal in California is wholly governed by statute and appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature' "].)
The court recognized as much when it stated that Deana should have raised the legality of the DVRO in a timely appeal from that order. Applying these well settled finality principles to the DVRO did not, as Deana argues, constitute an abuse of discretion. A party does not "deserve[] the opportunity to have the defect in the underlying order examined" when that party has failed to preserve his or her rights by filing a timely appeal.
In any event, even if Deana could challenge the order now, she has failed to show the court abused its discretion in granting the DVRO. (S.M., supra, 184 Cal.App.4th at p. 1264 [abuse of discretion "standard applies to a grant or denial of a protective order under the DVPA"].) In other words, the trial court's order did not exceed the bounds of reason. (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 560.)
Under the Domestic Violence Prevention Act (DVPA), a court may restrain a person to prevent a recurrence of domestic violence upon reasonable proof of past acts of abuse. (§ 6300.) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury to that person or another, or engaging in behavior that could be enjoined pursuant to section 6320. (§ 6203, subd. (a)(1)-(4).) Among other things, a court may enjoin the following under section 6320: "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering . . . 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 . . . ." (§ 6320, subd. (a).)
The court found that Deana's phone calls and text messages to both Jeremy and Wendy were of such a frequency that they qualified as harassment within the meaning of the DVPA. According to the court, the evidence was "undisputed." That unwanted pattern of incessant phone calls and text messages supports granting the DVRO. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290-1291 (Ritchie) ["protective orders can be issued because of persistent unwanted phone calls or letters--which fall into the same category as 'molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, [or] harassing' the protected party"]; see also Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398 (Perez) [same].)
Although Deana does not dispute the evidence supporting the DVRO, she cites the language "[n]othing here affects existing custody orders" to show the court abused its discretion in granting the order. She relies on S.M. to support her argument. That case, however, is inapt.
In S.M., S.M. and E.P. had an on-again, off-again relationship that resulted in the birth of a child. (S.M., supra, 184 Cal.App.4th at pp. 1253-1254.) They got into a dispute over E.P.'s plans to take the baby to another state even though S.M. had served E.P. with a summons in a custody and paternity action that included a restraining order prohibiting either party from taking the child out of state. (Ibid.) Although the court did not find that S.M. made a death threat against E.P. as she claimed, (id. at p. 1265) and it noted that S.M. was "understandably agitated" about losing contact with his child but was not "acting in a violent or rude manner," the court issued a DVRO against S.M. (Id. at pp. 1262, 1265-1266.) After granting the order, the court commented that it did not "view this as the kind of restraining order which would tell me pursuant to the Family Code [section 3044] that [S.M.] is inappropriate for custody or visitation." (Id. at p. 1262; italics omitted.)
In reversing the restraining order, the appellate court emphasized that the trial court had made no finding that S.M. engaged in conduct that rose to the level of harassment or abuse or engaged in conduct that placed E.P. in reasonable fear of serious bodily injury, and the record did not reveal that any such conduct in fact occurred. (S.M., supra, 184 Cal.App.4th at p. 1266.) Because no evidence in the record established that S.M. engaged in the type of behavior identified in section 6320, section 6300 did not authorize issuing the restraining order and the court abused its discretion in granting the order. (S.M., at pp. 1265-1266.)
The trial court's statement that the facts were not sufficient to apply the presumption in section 3044 further illustrated that the court abused its discretion because a finding of domestic abuse sufficient to support a DVRO necessarily triggers the section 3044 presumption. (S.M., supra, 184 Cal.App.4th at pp. 1266-1267.) As the court in S.M. explained, "[i]f the [trial] court did not intend to make a finding that S.M. had committed an act of domestic violence sufficient to trigger the presumption of section 3044, then the court could not have found that S.M. had engaged in domestic violence sufficient to support issuance of a restraining order under section 6300." (Id. at p. 1268.)
Here, by contrast, the trial court expressly found undisputed evidence that Deana's conduct rose to the level of harassment. And, unlike in S.M., the DVRO's language that "[n]othing here affects existing custody orders" does not prevent application of the presumption in section 3044. The record does not show what the existing custody orders were or that they were orders subject to the presumption. Nor does the language in any way prevent the family court in Madera County from applying the section 3044 presumption in a dispute over whether Deana should have sole or joint custody.
As Jeremy points out, the judge in S.M. attempted to create a DVRO that adversely affected child custody proceedings by effectively abolishing the section 3044 presumption. The DVRO provision here expressly did not affect child custody proceedings. Thus, the order does not violate the DVPA and the court did not abuse its discretion in issuing the order with the challenged language.
II
Validity of the Order Renewing the DVRO
Deana contends the court abused its discretion by extending an invalid order in violation of the DVPA. Having already determined that the DVRO was not invalid when issued and that the time to challenge the validity of the DVRO has long since passed, we reject her contention.
She further argues that Jeremy did not reasonably perceive her as a threat, and, thus, the court abused its discretion in renewing the DVRO. We disagree.
"A trial court should renew [a DVRO], if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Ritchie, supra, 115 Cal.App.4th at p. 1290; Cueto v. Dozier, supra, 241 Cal.App.4th at p. 559.) The protected party is not required to show "any further abuse since the issuance of the original order" to obtain a renewal order. (§ 6345, subd. (a).)
The court need not find that it is more likely than not future abuse will occur if the protective order is not renewed. (Ritchie, supra, 115 Cal.App.4th at p. 1290.) "It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Ibid.) In some instances, "the underlying findings and facts supporting [the initial] order often will be enough in themselves to provide the necessary proof to satisfy the test." (Id. at p. 1291.) We review a trial court's ruling on a request to renew a DVRO for abuse of discretion. (Perez, supra, 1 Cal.App.5th at p. 396.)
In this case, Jeremy's declaration and supplemental declaration provided sufficient evidence to support the trial court's implicit finding that he had a reasonable apprehension of future abuse if the DVRO was not renewed. "A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse." (Perez, supra, 1 Cal.App.5th at p. 397 [protected person's testimony that post-order phone calls and text messages from restrained person made her feel scared and helpless, particularly in light of the course of misconduct that led to the original restraining order was sufficient to establish a reasonable apprehension of future abuse].)
Jeremy's declaration in support of the renewal request stated that even though Deana had stopped calling him since the DVRO was issued in 2012, she still sent him angry and emotional text messages, declaring her love for him in one sentence and then telling him she hates him in another. She continued to send such messages well after their separation and divorce and his remarriage.
Between January 2014 and May 2014, Deana sent Jeremy 2,388 text messages. In one exchange, Deana said she wished Jeremy's new wife, Wendy, would die. Sending incessant text messages to a protected person can qualify as harassment under the DVPA. (See, e.g., Ritchie, supra, 115 Cal.App.4th at pp. 1290-1291 ["protective orders can be issued because of persistent unwanted phone calls or letters--which fall into the same category as 'molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, [or] harassing' the protected party"]; § 6320, subd. (a).)
Jeremy's supplemental declaration in support of the renewal request also described how Deana followed him after a parent-teacher conference for one of their children. Although the DVRO required her to stay at least 100 yards away, she came within 20 yards of him. Stalking is a form of abuse subject to a DVRO. (§§ 6203, subd. (a)(4), 6320, subd. (a).) Her stalking behavior also made Jeremy fear for his safety and that of his children as he was uncertain whether she would start an altercation in their presence.
In another instance, the day after an ex parte hearing on the renewal motion, she drove her car within five feet of Jeremy causing him to fear that she was about to hit him with her car. Under the DVPA, abuse includes: "[t]o intentionally or recklessly cause or attempt to cause bodily injury" and "[t]o place a person in reasonable apprehension of imminent serious bodily injury to that person . . . ." (§ 6203, subd. (a)(1), (3).) It is beyond dispute that a traveling vehicle could seriously injure a pedestrian.
Still, in another instance, when Jeremy dropped their young daughter off to exchange custody, Deana followed him back to his car and started banging on the vehicle because he would not talk to her. She did so even though Jeremy's wife, her two children, and several of Jeremy and Deana's other children were in the car.
The evidence in Jeremy's declaration and supplemental declaration amply supported the trial court's finding that sufficient evidence supported renewing the DVRO. (See, e.g., Perez, supra, 1 Cal.App.5th at pp. 397-398 [protective order may be issued on basis of abuse documented in affidavit].) Nothing in the record suggests that circumstances had changed and that Deana had "moved on with [her] li[f]e so far that the opportunity and likelihood of future abuse ha[d] diminished to the degree they no longer support a renewal of the order." (Ritchie, supra, 115 Cal.App.4th at p. 1291 [court can consider change in circumstances when evaluating request to renew DVRO].)
Although Deana claims that other evidence shows Jeremy did not really view her as a threat or that she also committed acts of domestic violence, she misapprehends our task on appeal. We do not resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence. (In re Stephen W. (1990) 221 Cal.App.3d 629, 642.) The trial court implicitly deemed Deana's proffer of evidence insufficient to counter Jeremy's evidence to the contrary. We do not substitute our opinion as to the credibility of the witnesses for that of the trial court. (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850 [" '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' "].) The court was within its discretion to conclude that the totality of the evidence indicated it was more probable than not there was a sufficient risk of future abuse to find that Jeremy's apprehension was genuine and reasonable.
Finally, we need not address Deana's argument, raised for the first time in her reply brief, that Jeremy's request to renew the DVRO was not based on fear of violence but rather was an attempt to stifle her from engaging in protected speech activities. Points raised for the first time in a reply brief ordinarily will not be considered. (Prince v. United National Ins. Co. (2006) 142 Cal.App.4th 233, 238 ["An argument raised for the first time in a reply brief need not be addressed"].)
DISPOSITION
The order renewing the domestic violence restraining order is affirmed.
HULL, J. We concur: BLEASE, Acting P. J. MAURO, J.