Marriage of F.M. & M.M. ( 2021 )

Filed 5/28/21; Modified and Certified for Pub. 6/3/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of F.M. and M.M.
F.M.,
A160669
Appellant,
v. (Alameda County
Super. Ct. No. HF18918839)
M.M.,
Respondent.
F.M. (mother) appeals the trial court’s denial of her application for a
domestic violence restraining order (DVRO) against her former husband
M.M. (father).1 Mother alleges that the trial court erroneously refused to
consider evidence of abuse committed following the filing of her application,
failed to properly evaluate the evidence of domestic violence that the court
did agree to hear, and improperly found that physical separation alone could
1Father did not file a respondent’s brief, so we “may decide the appeal
on the record, the opening brief, and any oral argument by the appellant.”
(Cal. Rules of Court, rule 8.220(a)(2).) “Nonetheless, [mother] still bears the
‘affirmative burden to show error whether or not the respondent’s brief has
been filed,’ and we ‘examine the record and reverse only if prejudicial error is
found.’ ” (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.)
substitute for the legal protections afforded by a restraining order. We agree
the court erred in all of these respects, and reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Dissolution Proceedings Are Filed
Mother and father married in June 2002. The parties are originally
from Nigeria. In August 2018, mother filed a petition for dissolution of the
parties’ marriage, listing June 7, 2017, as the date of separation. At the time
of filing, the parties resided together with their six children, who were
between the ages of 3 and 13. Throughout the marriage, mother was a stay-
at-home parent and the primary caregiver for the children.
In December 2018, mother filed a request for child and spousal support.
In her moving papers, she stated that father had abused her throughout their
marriage. Over the next six months, the dissolution proceeded without
resolution through a series of status conferences. During this time mother,
father, and their children continued to reside together.
B. Mother’s DVRO Request
On August 15, 2019, mother filed in pro. per. a DVRO application
seeking protection from father for herself and their children under the
Domestic Violence Prevention Act (Fam. Code,2 § 6200 et seq.; DVPA). She
requested orders forbidding father from committing abuse, compelling him to
stay away and to move out of their shared residence, and to be restrained
from travelling with their children. In support of her request, she claimed
that on four occasions during the previous two months father had called her
vulgar names in front of their children, seized her cell phone, demanded that
she leave the house, thrown her belongings outside, and tried to strike her
2All statutory references are to the Family Code unless otherwise
indicated.
2
with his hands. She also stated that father had made multiple threats to kill
her. According to mother’s declaration, she had suffered no physical injury
from these incidents but had been beaten by father in the past. She also
alleged that father had moved their eldest daughter to another location
without her permission.
The trial court granted mother’s application, in part, and issued a
temporary restraining order (TRO). Father was ordered not to abuse mother
and to stay at least five yards away from her. The court denied mother’s
other requests pending a September 2019 hearing, including her requests to
add the children as protected parties, to require father to move out of their
shared residence, and to prevent father from traveling with the children. In
denying these requests, the court explained that mother had not described
the alleged abuse in sufficient detail and had failed to provide a legal basis
for a move-out order. The court also noted that parenting orders would be
issued after the parties met with family court services.
Before the scheduled hearing, father filed a response to mother’s DVRO
application. He stated that he was financially supporting the family without
any contribution from mother. He reported that mother was verbally abusive
towards him and the children, and that she would threaten to call the police
whenever he asked her for help in paying household expenses. According to
father, their oldest daughter was so upset at mother’s treatment of her that
she had asked to move out. He denied committing any acts of violence,
claiming that when mother harassed him he would not respond and would
try to avoid her.
C. DVRO Hearings
The DVRO matter was heard over several days in the latter part of
2019. Before the first hearing, mother and father met with a child custody
3
counselor who recommended that mother be given sole legal and physical
custody of the parties’ children. The counselor’s report noted that mother and
father had argued during the entire meeting and were unable to make good
use of mediation. The report also detailed father’s unilateral decision to send
their eldest daughter to live in Elk Grove with the mother of his other child.
Mother said she had not seen her daughter for almost a month and that
father would not disclose their daughter’s exact location. The counselor
opined that father’s decision to relocate the child was “peculiar” and
“unusually controlling.”
1. September 2019 DVRO Hearing
At the September 5, 2019 hearing, the trial court adopted the child
custody counselor’s recommendations. Regarding mother’s DVRO
application, the court stated, “[C]learly, you two do not need to be living
together. I think that’s the big issue.” The court continued, “[T]he problem is
you are living together, and if you were just living in separate households,
you wouldn’t be encountering each other— [¶] . . . [¶] . . . and there wouldn’t
be problems.” Mother responded that she was looking for an apartment and
would move out as soon as she found one. The court replied that it wanted to
set a date certain for mother’s move-out, saying the court was “not as much
concerned with this request for this restraining order because I think the
allegations you’ve made in this request have to do with the fact that the two
of you are living together.” Mother said she would move out by the end of the
month.
The trial court asked mother whether she thought a restraining order
would still be necessary once the parties had separate residences. Mother
expressed concern about father being around her and the children because
“[h]is behavior, it’s not good.” As an example, mother said that father calls
4
her a “motherfucker bitch” in the presence of the children. The court decided
to continue the hearing for two months to allow the parties’ oldest daughter
to be interviewed by the family court counselor since both parents had
alleged the other was manipulating the child. Mother was directed to present
a court order to the Elk Grove police to obtain a standby and retrieve the
child. Even though father had not filed a request for a DVRO, the court
ordered mother to move out of the parties’ home by the end of the month.
The court granted mother’s request to reissue the TRO. Father was denied
visitation.
In October 2019, mother attended her scheduled custody counselor
meeting, but father missed his own appointment. The counselor’s report
noted that mother had moved out of the family home and was temporarily
living in a motel. She also described a recent incident in which father had
pushed her when she returned to their former shared residence to collect
some of her personal belongings. Mother called the police, who arrested and
jailed father. Additionally, mother had attempted to retrieve their eldest
daughter but was unsuccessful because her court paperwork lacked the trial
court’s signature and stamp. The report also noted that the parties’ second
eldest daughter was refusing to relocate with mother.
2. November 2019 DVRO Hearing
On November 6, 2019, the court held the second hearing on mother’s
DVRO request. When asked by the court about the October incident, father
admitted he had been arrested and jailed but denied having pushed mother
and said that no criminal charges were filed against him. Mother responded
that father had beaten her, leaving a bruise on her hand, and that she
intended to press charges. The court again continued the hearing and
5
encouraged mother to contact the district attorney’s office no later than
November 15, 2019. The TRO was reissued.
As the hearing was concluding, father mentioned that his arrest
occurred after mother came to his home without a police standby in order to
pick up clothes for the children and to try to take their second eldest
daughter from the home. The trial court asked mother if she had gone to
father’s home by herself. When she said she had, the court admonished her:
“[T]hat doesn’t show very good judgment on your part. [¶] You had this
restraining order; you say you’re afraid of him. I don’t know under what
circumstances it would be a good idea for you to do that. [¶] . . . [¶] . . . I’m
just saying that when we ultimately have a hearing on this request for a
domestic violence restraining order, that’s a factor I’m going to look at,
because when someone is truly in fear of another person, they don’t go to
their house.” Mother explained that father had told her she could come, but
the court replied: “No, ma’am, you do not go to his house. If there’s
something that you need to do there, you need to have a civil standby. That
does not show good judgment.”
Ahead of the final hearing, mother filed a declaration asking the trial
court to order father to move out of their former shared residence so she could
return with their children. She explained that she had not found an
apartment and was living out of her car with the children.3
3. December 2019 DVRO Hearing
At the December 16, 2019 hearing, the trial court began by asking
mother to put forth evidence in support of her DVRO request. Mother
responded: “Now, he’s threatening— [¶] . . . [¶] . . . [h]e’s going to kill me,
3There is nothing in the record indicating that the trial court
addressed this request.
6
because I went to our joint account and we have joint $23,000, and I took
$3,000 from it, and he’s telling everybody he’s going to kill me, and I’m so
scared of my life.” The court refused to consider this evidence because the
incident had occurred the previous Friday, stating: “You need to support this
request with what took place before you filed this request. What happened
Friday is not relevant to this request.” (Italics added.)
Mother then explained that father was refusing to give her their
children. The trial court also rejected this evidence because it related to the
parenting order, not domestic violence. The court then asked her, “You are
living separately and apart, correct? [¶] . . . [¶] . . . So, you don’t have the
conflict with living with each other. [¶] . . . [¶] . . . So what is the basis for
your continued request for the restraining order?” Mother responded by
referring to threats father had made in November and December 2019. The
court cut her off, repeating that she could not rely on events that occurred
after she filed her DVRO request.
Mother then explained that in August 2019 father would beat her and
call her “bitch” and “motherfucker” in front of the children. She said the
abuse started in 2017, when father went to Nigeria “to get married to a new
wife.” Father told her he did not want her and threatened to kill her if she
did not leave their house. When mother referred to the incident leading to
father’s recent arrest, the court interrupted and said that the arrest came
after mother filed her request for the restraining order. The court asked
father for his response, cutting him off as well when he began relating events
that happened after August 2019. Father then denied that he had abused
mother and accused her of repeatedly coming to his house and causing him
distress.
7
The trial court asked mother if she had any additional evidence, and
she replied she wanted her daughters back because they were not doing well
in school and because father was a “party man.” The court interrupted her
again, telling her that the issue was irrelevant to the DVRO request. Mother
then said her additional evidence was “[j]ust the beating he has been giving
me.” She also said that she had tried to press criminal charges against father
but had not yet received a response from the authorities.
D. Trial Court Findings and Ruling
The trial court summarized its findings at the close of the December
2019 hearing:
“THE COURT: Well, you haven’t provided any corroborating evidence
to me that that, in fact, took place. All I have is your say so if that’s what
happened, and I have [father]’s testimony that that didn’t happen. You have
the burden of proof, not him; you do.
“[MOTHER]: Yes.
“THE COURT: And I just don’t find that there’s sufficient evidence to
grant this domestic violence restraining order. I think the two of you need a
lot of help with your parenting issues though, a lot of help.”
When father interjected that he was staying away from mother but
that she kept coming back to him, the court reiterated:
“THE COURT: Sir, as I said, there’s no question that the two of you
need to stay away from each other.
“[FATHER]: Yes, your Honor.
“THE COURT: That doesn’t mean that there needs to be domestic
violence restraining orders.
“[FATHER]: Right.
“THE COURT: You definitely need to stay away from each other.”
8
Following a brief discussion of child custody issues, the trial court
denied mother’s DVRO request after finding that mother had not met her
burden of proof to establish that a restraining order was necessary. The
court explained: “[Mother] provided no corroborating evidence for her
statements as to what took place in the past. [¶] The court finds they are too
general in nature and lack [the] specificity required to support the request.”
This appeal followed.
II. DISCUSSION
On appeal, mother argues that the trial court erred in denying her
request for a restraining order because the court refused to hear her
testimony regarding acts of domestic violence that father committed against
her after she filed her DVRO application and obtained the TRO. She also
faults the court for failing to properly credit and consider the evidence it did
agree to consider, and for misapplying the law by determining that physical
separation alone could substitute for the legal protections afforded by the
DVPA.
A. General Principles
As relevant here, the DVPA defines domestic violence as abuse of a
spouse or the child of a party. (§ 6211, subds. (a) & (e).) “Abuse” 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.) 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).)
9
Under the DVPA, a court may 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.’ ” (Nevarez v. Tonna (2014)
227 Cal.App.4th 774, 782.) The statute should “be broadly construed in order
to accomplish [its] purpose” of preventing acts of domestic violence. (In re
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.)
We review the trial court’s grant or denial of a DVPA restraining order
request for an abuse of discretion. (In re Marriage of Davila & Mejia (2018)
29 Cal.App.5th 220, 226 (Davila).) We likewise review a trial court’s failure
to consider evidence in issuing a DVRO for an abuse of discretion. (See
Nevarez v. Tonna, supra, 227 Cal.App.4th at p. 785.) “ ‘To the extent that we
are called upon to review the trial court’s factual findings, we apply a
substantial evidence standard of review.’ ” (In re Marriage of G. (2017)
11 Cal.App.5th 773, 780.)
“Judicial discretion to grant or deny an application for a protective
order is not unfettered. The scope of discretion always resides in the
particular law being applied by the court, i.e., in the ‘ “legal principles
governing the subject of [the] action . . . .” ’ ” (Nakamura v. Parker (2007)
156 Cal.App.4th 327, 337.) Thus, “we consider whether the trial court’s
exercise of discretion is consistent with the statute’s intended purpose.”
(People v. Rodriguez (2016) 1 Cal.5th 676, 685.) “ ‘If the court’s decision is
influenced by an erroneous understanding of applicable law or reflects an
unawareness of the full scope of its discretion, the court has not properly
exercised its discretion under the law. [Citation.] Therefore, a discretionary
order based on an application of improper criteria or incorrect legal
assumptions is not an exercise of informed discretion and is subject to
10
reversal. [Citation.]’ [Citation.] The question of whether a trial court
applied the correct legal standard to an issue in exercising its discretion is a
question of law [citation] requiring de novo review [citation].” (Eneaji v.
Ubboe (2014) 229 Cal.App.4th 1457, 1463.)
B. The Trial Court’s Refusal to Consider Evidence of Postfiling Abuse
Was Prejudicial Error
During the December 2019 hearing, the trial court repeatedly refused
to consider evidence regarding alleged acts of domestic violence committed by
father after mother filed her DVRO request, deeming such evidence
irrelevant to whether a permanent restraining order should issue. Mother
contends this was error, asserting that “[n]othing in the plain language of the
DVPA restricts courts when ruling on a DVRO request to hearing evidence of
abuse that occurred only before the request was filed.” We agree.
“The DVPA requires a showing of past abuse by a preponderance of the
evidence.” (Davila, supra, 29 Cal.App.5th at p. 226.) Section 6300
subdivision (a) provides, in part: “An order may be issued under this part to
restrain any person . . . if an affidavit or testimony and any additional
information provided to the court . . . shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse.” (Italics added.) Mother
correctly observes that the DVPA does not “provide that the ‘past act or acts
of abuse’ must have occurred only before the petitioner filed the request, or
that a court is barred from considering any abuse occurring thereafter.”
While a trial court should, of course, hear and evaluate the evidence
relating to incidents set forth in a petitioner’s request, evidence of postfiling
abuse is also relevant, particularly when that abuse occurs after a temporary
restraining order has been issued, as was the case here. The purpose of a
domestic violence restraining order is not to punish past conduct, but to
“prevent acts of domestic violence [and] abuse” from occurring in the future.
11
(§ 6220.) Evidence of recent abuse or violation of a TRO is plainly relevant to
whether a petitioner should be granted a protective order. Evidence Code
section 210 defines “relevant evidence,” in part, as “evidence . . . having any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” Evidence Code section 351
provides: “Except as otherwise provided by statute, all relevant evidence is
admissible.”
Postfiling abusive conduct is clearly relevant in cases in which a TRO
has been granted pending a hearing on a permanent restraining order. As
noted above, section 6320 allows a court to enjoin, among other things,
attacking, striking, threatening, harassing, contacting directly or indirectly,
or disturbing the peace of the protected party. (§ 6320, subd. (a).)
Section 6203, subdivision (a)(4) specifically provides that engaging in
behavior that “has been . . . enjoined pursuant to Section 6320” constitutes
abuse for purposes of the DVPA. (See N.T. v. H.T. (2019) 34 Cal.App.5th 595,
602–603 [violation of TRO was itself an act of abuse].) The probative value of
postfiling evidence is even more apparent in cases such as this one where the
trial court’s final ruling was delayed by several months.
In this case, the August 2019 TRO forbade father from attacking or
threatening mother, disturbing mother’s peace, or contacting her directly or
indirectly apart from “peaceful contact” required for visitation with the
children. Mother offered admissible evidence that father violated these
prohibitions after she obtained the TRO. For example, she testified that
father threatened to kill her a few days before the December 2019 hearing
after he learned that she had withdrawn $3,000 from their joint bank
account. She also testified about an altercation in October 2019 at father’s
home in which she was physically attacked by him, resulting in his arrest.
12
The trial court’s categorical refusal to consider postfiling evidence of
father’s alleged abuse and violation of the TRO, based solely on the ground
that the conduct had occurred after mother filed her DVRO application, was
legal error and therefore constituted an abuse of the court’s discretion. The
court’s evidentiary cut-off violated the DVPA’s mandate that a court “shall”
consider the “totality of the circumstances” in determining whether to issue a
restraining order. (§ 6301, subd. (c) [“The court shall consider the totality of
the circumstances in determining whether to grant or deny a petition for
relief.”]; see also § 6340, subd. (a)(1) [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”].)
The error was prejudicial. To establish prejudice, an appellant must
demonstrate that there was a “ ‘ “reasonable probability that in the absence
of . . . error, a result more favorable to the appealing party would have been
reached.” ’ ” (County of Los Angeles v. Williamsburg National Ins. Co. (2015)
235 Cal.App.4th 944, 955.) If mother’s testimony regarding father’s postfiling
conduct had been credited, the evidence could have established abuse
sufficient to support the issuance of a DVRO under the proper legal standard.
(See § 6203, subd. (a).)4 Accordingly, we reverse the order denying mother’s
request for a DVRO and remand this matter to the trial court for a new
hearing to be conducted consistent with this opinion. We address mother’s
remaining arguments to provide further guidance on remand.
4 It also appears that the trial court selectively applied this blanket
rejection of evidence. While the court refused to consider evidence of father’s
postfiling conduct, it considered mother’s own postfiling conduct when it
declared that mother had not exhibited “good judgment” by retrieving her
personal belongings from father’s home without a civil standby, and indicated
it would use that as a “factor” against her DVRO petition.
13
C. Sufficiency of Mother’s Evidence of Prefiling Abuse
In denying mother’s DVRO request, the court found her testimony
lacked specificity and corroboration. According to the court, mother “need[ed]
to tell [the court] specific dates.” The court also faulted her for failing to
provide corroborating evidence: “Well, you haven’t provided any
corroborating evidence to me that [domestic violence], in fact, took place. All
I have is your say so if that’s what happened, and I have [father]’s testimony
that that didn’t happen. You have the burden of proof, not him; you do. [¶]
. . . [¶] . . . And I just don’t find that there’s sufficient evidence to grant this
domestic violence restraining order.” The court concluded that mother
“provided no corroborating evidence for her statements as to what took place
in the past. [¶] The Court finds they are too general in nature and lack [the]
specificity required to support the request.”
We agree with mother that the DVPA does not impose a heightened
standard for specificity, nor does it contain any corroboration requirement.
Instead, it provides that a court may issue a DVRO “if an affidavit or
testimony and any additional information provided to the court . . . shows, to
the satisfaction of the court, reasonable proof of a past act or acts of abuse.”
(§ 6300, subd. (a), italics added.) The DVPA also expressly provides that a
court may issue a restraining order “based solely on the affidavit or testimony
of the person requesting the restraining order.” (§ 6300, subd. (a), italics
added.)
Our review of the evidence does not reveal a fatal lack of specificity in
mother’s evidence. Mother’s request for a restraining order documented
specific acts of domestic violence and described father’s ongoing abusive
behavior. For example, she alleged that father had threatened her life and
had specifically threatened to kill her if she called the police for help. He had
14
allegedly called her father in Nigeria and made the same threats. She
alleged that father repeatedly called her a “motherfucker,” “bitch,” and
“prostitute” in front of their children. In her DVRO request, mother
referenced four specific dates on which these incidents occurred, and she also
testified that these kinds of acts occurred with regularity. Mother also
alleged that father had beaten her and hit her with his hands, and had taken
her phone away from her. Threats on a person’s life, demeaning a person in
front of their children with vulgar and degrading language, physically
beating a person, and seeking to exercise control over a person by taking
away their phone, are all actionable forms of abuse under the DVPA. (See §§
6203, 6320, subds. (a) & (c).)
Of course, “[a] trier of fact is free to disbelieve a witness . . . if there is
any rational ground for doing so.” (In re Jessica C. (2001) 93 Cal.App.4th
1027, 1043.) Here, the trial court did not indicate on the record that mother
lacked credibility as a witness, and indeed, the court must have credited her
testimony because it issued and reissued the TRO several times. Instead, the
court found mother failed to meet her burden of proof because she did not
offer corroborating evidence. In many domestic violence cases, however, the
sole evidence of abuse will be the survivor’s own testimony which, standing
alone, can be sufficient to establish a fact: “The testimony of one witness,
even that of a party, may constitute substantial evidence.” (In re Marriage of
Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703.) On remand, the trial
court is directed to weigh this evidence without a corroboration or heightened
specificity requirement.
D. Physical Separation Is Not a Substitute for the Protections of a
Restraining Order
Mother correctly argues that the trial court erred insofar as it relied
on the fact that she no longer lives with father as a basis for denying her
15
DVRO request. Section 6301, subdivision (b) expressly provides, in relevant
part: “The right to petition for relief shall not be denied because the
petitioner has vacated the household to avoid abuse . . . .” As mother states:
“In light of the recognized seriousness of domestic abuse, domestic violence
survivors must not be denied critical protection under the DVPA merely
[because] they have succeeded in extracting themselves from the immediate
risks posed by living with their abuser.”
Here, the trial court repeatedly stated on the record that mother’s
protection from abuse could be accomplished simply by having her and the
parties’ six children move out of the house. For example, at the September
2019 hearing, the court stated that it was “not as much concerned” about the
allegations that father had threatened to kill mother and had verbally abused
her in front of their children, because those behaviors were, in the court’s
view, simply a function of them living together. At the same time, the court
repeatedly stated that the parties needed to stay away from each other,
which the court presumably believed they could do without a court order in
place. This was error. (See Cueto v. Dozier (2015) 241 Cal.App.4th 550, 562
[“These comments [warning the respondent to stay away from the petitioner
after denying her petition] suggest that the trial court believed there was a
need to admonish [the respondent] from the bench that he must continue to
stay away [from] and have no contact with [the petitioner], but without
giving [the petitioner] the legal protection of a restraining order.”].)
The trial court’s use of residential separation as a substitute for a
DVRO was inappropriate given that the parties still have to coparent.
Because the parties have six children together, further interactions between
the two are unavoidable. The record shows that even with separate
residences, continuing interaction between the parties has resulted in
16
ongoing conflict. On remand, the trial court may not deny mother’s petition
for a restraining order on the basis that she no longer lives in the same
residence with father.5
III. DISPOSITION
We reverse the trial court’s order and remand the matter for a new
hearing on mother’s DVRO request consistent with the views expressed in
this opinion. Because respondent did not appear on appeal, neither party
shall recover costs. (Cal. Rules of Court, rule 8.278(a)(5).)
5 Mother additionally contends on appeal that the trial court erred
when it concluded that parenting order issues are “not really relevant” to the
issue of the restraining order. We need not resolve whether the trial court
committed error in this instance. We observe, however, that if the evidence
establishes that father has cut off access to their eldest daughter in violation
of the court’s order granting mother sole legal and physical custody, that may
constitute abuse. Section 6320, subdivision (c) explains that “ ‘disturbing the
peace of the other party’ ” within the meaning of section 6320, subdivision (a)
“refers to conduct that, based on the totality of the circumstances, destroys
the mental or emotional calm of the other party.” Depriving a parent of
access to his or her child certainly may qualify as abuse under this definition.
17
SANCHEZ, J.
WE CONCUR:
HUMES, P. J.
MARGULIES, J.
A160669
In re Marriage of F.M. and M.M.
18
Filed 6/3/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of F.M. and M.M.
F.M., A160669
Appellant, (Alameda County
v. Super. Ct. No. HF18918839)
M.M.,
ORDER MODIFYING OPINION
Respondent. AND CERTIFYING OPINION
FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
The opinion in the above-entitled matter filed on May 28, 2021, was not
certified for publication in the Official Reports. After the court’s review of a
request under California Rules of Court, rule 8.1120, and good cause
established under rule 8.1105, it is hereby ordered that the opinion should be
published in the Official Reports.
It is further ordered that the opinion filed herein on May 28, 2021, be
modified as follows:
1. Footnote 1 on page 1 is removed and replaced with the following
footnote:
1After issuing a tentative opinion in this matter, we
received notice that respondent had died. Despite this
development, we have exercised our discretion to resolve this
matter and order publication of the opinion in light of the
important public matters raised in this appeal. “On issues of
great public interest, we have the inherent discretion to
resolve the matter despite events which may render the
matter moot.” (Konig v. Fair Employment & Housing Com.
(2002) 28 Cal.4th 743, 745, fn. 3.) Although respondent did
not file a brief in this appeal, appellant “still bears the
‘affirmative burden to show error whether or not the
respondent’s brief has been filed,’ and we ‘examine the record
and reverse only if prejudicial error is found.’ ” (Smith v.
Smith (2012) 208 Cal.App.4th 1074, 1078.)
The modification does not change the appellate judgment. (Cal. Rules
of Court, rule 8.264(c)(2).)
Dated:
____________________________
Humes, P.J.
2
Trial Court: Alameda County Superior Court
Trial Judge: Nikki Clark, Commissioner
Counsel:
Family Violence Appellate Project, Arati Vasan, Cory Hernandez, Jennafer
D. Wagner, Erin C. Smith; Jones Day and Craig E. Stewart for Plaintiff and
Appellant.
No appearance for Respondent.
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