Marriage of Emilie D.L.M. and Carlos C. CA2/6 ( 2021 )

Filed 4/29/21 Marriage of Emilie D.L.M. and Carlos C. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of EMILIE 2d Civ. No. B304820
D.L.M. and CARLOS C. (Super. Ct. No. 19FL-0484)
(San Luis Obispo County)
EMILIE D.L.M.,
Respondent,
v.
CARLOS C.,
Appellant.
Carlos C. appeals a domestic violence restraining order
issued by the family law court. We reject his contention that
California was an inconvenient forum for consideration of the
application for the restraining order, and affirm. (Fam. Code,
§ 3427.)1
All further statutory references are to the Family Code
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unless stated otherwise.
This appeal concerns an international custody dispute
involving the two minor children of an American mother and a
Chilean father. In 2016, the parties relocated to Chile from
California. There, the mother, Emilie D.L.M., was subjected to
acts of domestic violence and emotional abuse by her husband
Carlos C., sometimes committed in the presence of the children.
Frequently, the violence was occasioned by Carlos C.’s excessive
alcohol consumption. Following an unsuccessful family vacation
to California in 2019, Emilie D.L.M. and the children refused to
return to Chile. She then filed a petition to dissolve the marriage
and requested a domestic violence restraining order. In response,
Carlos C. filed a petition for the return of the children to Chile
pursuant to the Hague Convention. (22 U.S.C. § 9003.)
Following a lengthy evidentiary hearing, the family law court
concluded, among other things, that Emilie D.L.M. established by
clear and convincing evidence that returning the children to
Chile would subject them to a grave risk of harm. The court also
issued a domestic violence restraining order against Carlos C.
FACTUAL AND PROCEDURAL HISTORY
Carlos C. and Emilie D.L.M. met while students at the
University of California Davis Law School. Carlos C., a Chilean
native, held a law degree in Chile, and was pursuing an advanced
law degree at Davis. Following law school, Emilie D.L.M. passed
the California state bar exam and accepted a litigation position
with a Bay Area law firm. Carlos C., a permanent resident of the
United States, established a legal translation service in the Bay
Area.
In 2006, the couple wed and, within seven years, had two
children. Emilie D.L.M. soon realized that Carlos C. frequently
drank alcohol and became verbally abusive to her when he was
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intoxicated. In 2006, and again in 2011, he was arrested and
subsequently convicted of driving under the influence of alcohol.
In September 2016, the parties and children relocated to
Carlos C.’s hometown of La Serena, Chile. Carlos C.’s mother
and his large extended family lived nearby.
In Chile, Carlos C. established a law practice and also
worked as a law professor. Emilie D.L.M. worked remotely as an
independent contractor for a California law firm. The couple paid
income taxes in the United States and Chile. Their children were
bilingual and held dual American-Chilean citizenships. The
children enrolled in schools, played with paternal cousins, and
participated in music, sports, and social activities in La Serena.
In 2019, the family took a vacation to Hawaii and then to
Lake Tahoe, California. During the vacation, Carlos C. consumed
excessive alcohol and became verbally and physically abusive to
Emilie D.L.M.
Following the 2019 California vacation, Carlos C. sent a
text to Emilie D.L.M. stating, “There is nothing left for us after
the past two weeks. Don’t bother coming back to Chile. We’ll
make arrangements later on regarding your belongings.”
Although Emilie D.L.M. and the children had return airline
tickets to Chile, they remained in California. Several weeks
later, Emilie D.L.M. filed a petition to dissolve her marriage to
Carlos C. and later requested a domestic violence restraining
order against him. The application for the restraining order was
supported by her declaration detailing Carlos C.’s alcoholism and
physical and emotional abuse. Carlos C. responded to the
restraining order application and asserted that California was an
inconvenient forum, pointing out that the acts of abuse occurred
in Chile and the family witnesses lived there.
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Carlos C., who had returned to Chile in the meantime,
returned to California. He visited unsupervised with the children
for three days. Emilie D.L.M.’s mother required Carlos C. to sign
an agreement that promised he would not consume alcohol while
visiting the children. Carlos C. testified that he signed the
agreement without reading it and under pressure from his
mother-in-law. He violated the agreement by consuming alcohol
during the three days of visitation with his children.
Carlos C. then returned to Chile where he filed a family
law action and a Hague Convention petition seeking repatriation
of the children. In December 2019, the San Luis Obispo County
family law court held a hearing regarding the petition and Emilie
D.L.M.’s request for a temporary restraining order.
Family Law Evidentiary Hearing
At the contested family law hearing, Emilie D.L.M.
testified that Carlos C.’s drinking “suddenly increased after the
birth of [their] children and increased drastically” after moving to
Chile. She described several occasions when she concealed the
keys to Carlos C.’s vehicle to prevent him from driving while
intoxicated.
Emilie D.L.M. also described incidents of domestic violence
and emotional abuse, including sexual insults, some of which
occurred in the children’s presence. On one occasion, Carlos C.
threw her to the bathroom floor, causing her to bruise her face
against the bathtub. On another, he kicked her in her side and
legs, causing her to fall from bed. In August 2018, Carlos C.
became angry and threw the family television out the door as
Emilie D.L.M. and the children were watching it. On Chilean
Independence Day, Carlos C. became intoxicated at the home of
his uncle. As Emilie D.L.M. drove everyone home, Carlos C.
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kicked the windshield and insisted on driving. He pushed Emilie
D.L.M. from the vehicle as the children screamed. The couple’s
minor daughter physically struggled with Carlos C. to prevent
him from driving. Carlos C. overwhelmed his daughter and drove
away until his uncle blocked the road. In the spring of 2019,
Carlos C. threatened to kill the family dog to “teach [Emilie
D.L.M.] a lesson.” One evening, Carlos C. locked Emilie D.L.M.
out of the bedroom, only to shove her to the floor three times after
he relented and opened the door. Carlos C. also demanded money
from her and threatened her with harm if she did not pay him.
Emilie D.L.M.’s legal earnings were a critical source of the
household funding.
Carlos C. also ridiculed his daughter’s intellect and
compared her unfavorably to himself and her brother. During
the Hawaiian vacation, Carlos C. kicked Emilie D.L.M. from the
bed where she slept with her son. The child awoke and began to
cry. Carlos C. then spit on Emilie D.L.M. and the child.
Carlos C. testified and denied that he consumed alcohol
excessively or that he committed any acts of domestic violence.
Carlos C.’s relatives in Chile also testified through video-
conferencing.
Family Law Court Decision
Following the hearing and argument, the family law court
rendered a comprehensive written decision. The court found
many of Emilie D.L.M.’s accounts of incidents of domestic
violence and emotional abuse credible, but others not. The court
also found that Carlos C. consumed alcohol excessively and
frequently and that Emilie D.L.M. consumed alcohol excessively
as well. The court expressly found that Carlos C. was not
credible regarding the extent of his alcohol consumption, his
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denial of the domestic violence incidents, and his denial of his
emotional abuse of Emilie D.L.M. in the children’s presence.
The family law court then concluded that Emilie D.L.M.
established by clear and convincing evidence that return of the
children to Carlos C.’s custody in Chile presents a grave risk to
their physical and psychological well-being. The court also
granted Emilie D.L.M.’s application for a domestic violence
restraining order based upon the evidence presented regarding
the Hague Convention petition.
Carlos C. appeals and contends that the family law court
erred by not staying or dismissing the application for a domestic
violence restraining order because California was an
inconvenient forum.
DISCUSSION
The family law court has “broad discretion in determining
whether to grant a petition for a restraining order” pursuant to
the Domestic Violence Prevention Act, section 6200. (In re
Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)
In determining whether to issue a domestic violence restraining
order, the court must consider “the totality of the circumstances.”
(§ 6301, subd. (c).)
Section 3427, subdivision (a) authorizes the trial court to
decline to exercise its jurisdiction if it determines under the
circumstances that a court of another state is a more appropriate
forum. Section 3427 lists “relevant factors” for the court to
determine the appropriate forum, including the “location of the
evidence required to resolve the pending litigation.” (§ 3427,
subd. (b)(6).)
In response to Emilie D.L.M.’s petition for a domestic
violence restraining order, Carlos C. requested the family law
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court to determine that it was an inconvenient forum pursuant to
section 3427 because the alleged acts of domestic violence
occurred in Chile and the witnesses thereto resided there. Emilie
D.L.M. responded that the witnesses to many of the alleged acts
of abuse were her, Carlos C., and the children, all before the court
in California.
The family law court did not abuse its discretion by
impliedly denying Carlos C.’s motion to dismiss or stay due to an
inconvenient forum. (In re Marriage of Taschen (2005) 134
Cal.App.4th 681, 691 [ruling of inconvenient forum is reviewed
for an abuse of discretion].) Emilie D.L.M. and Carlos C. were
available and testified in the proceeding; Carlos C.’s relatives also
testified through video-conferencing. Emilie D.L.M. introduced
photographs of her injuries into evidence. Many of the acts of
abuse occurred in the presence of only Emilie D.L.M. and Carlos
C. Carlos C. has not met his burden of establishing an abuse of
discretion by the court’s denial of his motion.
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Gayle L. Peron, Judge
Superior Court County of San Luis Obispo
______________________________
Carlos O., in pro. per., for Appellant.
James Alex Karagianides for Respondent.
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