Marriage of Hutchins CA4/1 ( 2022 )

Filed 9/13/22 Marriage of Hutchins CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of JARED and
DANA HUTCHINS.
D078855
JARED HUTCHINS,
Respondent, (Super. Ct. No. 19FL004465C)
v.
DANA HUTCHINS,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Lisa R. Rodriguez, Judge. Reversed and remanded.
Minella Law Group, Kathy A. Minella and Elizabeth A. Lefiti for
Appellant.
Cage & Miles and John T. Sylvester for Respondent.
I.
INTRODUCTION
Appellant Dana Hutchins1 appeals an order entered by the trial court
after a bifurcated evidentiary hearing at which the court considered Dana’s
request for a domestic violence restraining order and respondent Jared
Hutchins’s request for an order regarding custody of the couple’s two young
children.
After finding that Jared had perpetrated domestic violence through
“harassment” in the form of his frequent complaints to Dana’s superior
officers in the United States Navy 2 as a means to “control” Dana, the court
determined that it would not issue a restraining order against him. In the
court’s estimation, Dana’s safety “would no longer be endangered if the court
failed to make the orders.” In reaching this conclusion, the court noted that
the temporary restraining order that had been in place “has served its
purpose” in that Jared appeared to have stopped his harassing conduct. The
court further noted that, at the time of the hearing, the parties were
separated and living in the United States.
Despite having found that Jared had engaged in harassment that met
the definition of domestic violence sufficient to support the issuance of a
1 Dana was identified in the trial court as “Dana Hutchins,” and the
caption for this case, as well as the records provided on appeal, identify her
as “Dana Hutchins.” However, in her briefing on appeal, Dana refers to
herself as “Dana Loney.” We refer to her here, initially, as Dana Hutchins,
consistent with the caption in the appeal and the documents in the record.
However, we will refer to the parties by their first names throughout this
opinion for purposes of clarity.
2 At the time of the harassing conduct, Dana was stationed overseas in
Italy.
2
domestic violence restraining order, the trial court proceeded to address
“child custody and parenting time,” without acknowledging the presumption
imposed by Family Code section 3044 (section 3044). Section 3044
establishes a mandatory rebuttable presumption that an award of joint or
sole custody to a parent who has perpetrated domestic violence is not in a
child’s best interests. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.)
After the court rendered its custody order, Dana’s attorney sought
clarification as to whether the court had, in fact, made a finding that Jared
had perpetrated domestic violence. In response, the trial court affirmed that
it had made such a finding. The court then immediately stated that it was
finding that it was “in the best interest of the children to order ultimately the
50, 50 custody and overcome the 3044 presumption.”
On appeal, Dana contends that the trial court erred by failing to comply
with the requirements of section 3044. She notes that the statute requires
that the presumption be rebutted before custody issues are determined and
argues that the trial court improperly made its custody order before making a
finding that the section 3044 presumption had been rebutted. She further
contends that the trial court failed to place on Jared the burden of
demonstrating by a preponderance of the evidence that the presumption had
been rebutted, despite section 3044’s direction that the burden be placed on
the perpetrator of the domestic violence. In addition, Dana points out that
the trial court also erred in specifically relying on the general policy
preference favoring “frequent and continuing contact with both parents” in
determining what was in the best interests of the children, in contravention
of section 3044’s prohibition against the use of this general policy preference
to rebut the section 3044 presumption. Finally, Dana contends that the trial
court erred in failing to address the seven factors set out in subdivision (b)(2)
3
of section 3044, which it was required to address on the record, and also erred
in failing to articulate, on the record or in writing, its reasons for finding that
the presumption under section 3044 had been rebutted.
We agree with Dana that the trial court erred in failing to comply with
the statutory requirements set out in section 3044. We therefore reverse the
trial court’s custody order and remand the matter for the court to hold a
hearing and enter an order in compliance with the requirements of section
3044.
II.
BACKGROUND
Dana and Jared were married on January 8, 2011. The parties share
two children, one of whom was born in 2014 and the other in 2016.
Jared filed a Petition for Dissolution of Marriage on April 12, 2019. In
late July 2019, Jared filed a request for order (RFO) seeking to have the court
decide issues of child custody and visitation, child support, and spousal
support. Jared requested joint legal custody of the children, and sole physical
custody with visitation for Dana. At the time Jared filed his RFO, Dana was
serving in the United States Navy and was stationed in Italy. 3
The parties participated in a mediation at Family Court Services in
September 2019.
The trial court held an initial hearing on the issues of child custody and
child support on December 20, 2019. The court set an evidentiary hearing for
3 When Dana was initially stationed in Italy in January 2018, Jared also
moved there. Jared returned to the United States in February 2019, while
Dana and the children remained in Italy. After Jared returned to the United
States, he would travel to Italy for varying periods of time. His final visit
began in April 2020. Dana returned to the United States twice between
August 2019 and May 2020. In late August 2020, when Dana’s tour ended,
Dana, Jared, and the children all returned to the United States.
4
May 8 and May 11, 2020. The Register of Actions in the trial court indicates
that no evidentiary hearing was held on these dates.4
On May 12, 2020, Dana filed an initial request for a Domestic Violence
Restraining Order (DVRO). According to a declaration submitted by Dana in
the trial court in support of a second request for a DVRO, the trial court
denied her first request for a DVRO because the court determined that it did
not have jurisdiction to decide the issue, given that Dana and the children
were living in Italy at the time.
Dana, Jared and the children returned to San Diego from Italy at the
end of August 2020. On August 31, 2020, the parties appeared before the
court on an ex parte basis pursuant to Jared’s ex parte request for changes to
the temporary custody arrangement. The trial court determined that the
custody and visitation issues did not constitute an emergency and would be
addressed during a long-cause hearing that the court scheduled for October
28, 2020.
The parties participated in a second mediation with Family Court
services on September 24, 2020. The Family Court Services mediator
recommended that the children reside primarily with Dana, and that Jared
have weekly visitation, including overnight visits.
At the October 28, 2020 hearing, the Court issued an interim custody
order, pursuant to which the parties were to share joint legal custody of the
children, Dana would have primary physical custody, and Jared would be
entitled to weekly visitation, including overnights. The court continued the
matter to December 21, 2020.
4 The record indicates that the hearing that was scheduled to begin on
May 8, 2020 was cancelled as a result of the Covid-19 pandemic.
5
Appellant filed her second request for a DVRO on November 13, 2020.
Dana alleged that in 2018, Jared began contacting her superior officers and
falsely accused her of having an affair with a coworker. Dana further alleged
that Jared continued a pattern of contacting her superior officers, often with
allegations that she was abusing him or the children, or that she was
preventing him from seeing the children. According to Dana’s declaration,
Jared’s repeated contacts with her superior officers was “placing [her] career
in jeopardy,” and “disrupt[ing] [her] peace of mind and [her] safety.”
The court issued a temporary restraining order pending a full hearing
and set the hearing for December 1, 2020. The matter was subsequently
continued in order to be heard in conjunction with the hearing on Jared’s
RFO regarding custody, which was set for December 21, 2020.
The trial court held a joint evidentiary hearing on Jared’s RFO
regarding custody and Dana’s request for a DVRO on December 21, 2020.
Closing arguments occurred on December 28 and the court ruled on that
date.
At the outset of the hearing on December 21, the trial court informed
the parties that if the court were to make a finding that domestic abuse had
occurred, then the rebuttable presumption in Family Code section 3044 that
an award of joint custody would be detrimental to the children would arise,
and the court would have to view the child custody issues through that lens.
Dana called Nancy Estrada, one of her former supervisors in the Navy,
to testify at the hearing.5 Estrada testified that she supervised Dana
5 We provide only a brief summary of the witness testimony given at the
evidentiary hearing because there is no challenge to the trial court’s factual
findings and the underlying facts are no more than minimally relevant to the
issues raised on appeal.
6
through an intermediary supervisor. According to Estrada, Jared had
contacted her directly on a number of occasions. He told Estrada that “he
was concerned about emotional abuse and withholding finances,” on Dana’s
part and also indicated that he thought that Dana “might be having an
affair.”6 Estrada testified that because of Jared’s communications with
Dana’s supervisors, Estrada was “required” to “go through [Dana’s] finances
[at the Fleet and Family Service Center] to ensure that [Dana] was providing
adequate support [to Jared].” Estrada indicated that it had been determined
that Dana was providing Jared with adequate financial support. Estrada
also testified that Jared had filed a complaint against Estrada, alleging that
Estrada “showed favoritism to the chiefs on base and did not hold them
accountable.”
Estrada testified that the amount of involvement she had in the
parties’ disagreements was “certainly more than normal.” Jared had also
tried to arrange an appointment with the commanding officer. According to
Estrada, a meeting with the commanding officer regarding a divorce
proceeding is not a normal or routine occurrence.
Dana testified that she was surprised and confused when she learned
that Jared had opened a case through the military to investigate the financial
support that she had been providing to him because she thought they had
agreed as to how their financial resources would be allocated. She explained
that as a result of Jared’s contacts with her superior officers, she was
“forced . . . to, essentially, overcommunicate what was going on in my
personal life and embarrass myself on a daily basis.”
Dana testified that Jared had engaged in continuing contact with her
command throughout the time that she was stationed in Italy. In April 2020,
6 Estrada indicated that Jared failed to provide evidence of an affair.
7
Jared indicated that he wanted to stay with Dana in her home in Italy, but
she did not feel comfortable with this plan. She tried to reach an agreement
with him about finding a different place for him to stay. Jared had made
remarks to her about her “command know[ing] that any implicit or explicit
claim [about him] posing any sort of safety risk to anything but your pride is
completely unfounded.” This made Dana feel that she could not go to her
command for assistance. Ultimately, when Jared returned to Italy that
April, Dana rented another home where she stayed while Jared was staying
in the home in which she had been living.
According to Dana, at the time of the hearing regarding the DVRO and
custody issues, the parties were utilizing the custody and visitation scheme
set forth in the report and recommendation from Family Court Services filed
on September 28, 2020. In Dana’s view, the exchanges were going well, and
the children had “done great” in adjusting to the schedule. Dana was
requesting that the current schedule remain in effect.
Jared testified regarding his version of the same events about which
Dana had testified. Jared stated that between November 2014, when the
parties’ first son was born, until August 2016, he was the primary caretaker
of the children. According to Jared, he left Italy in February 2019 “[b]ecause
up to that point, I had been in a situation with us being divorced that was
just emotionally abusive and financially controlling, and we could not come to
an agreement about how to cohabitate and coparent.” Jared believed that his
contact with Dana’s chain of command was “appropriate.” Jared testified,
“particularly overseas, they play a larger role because we are separated from
other civil mechanisms of support.” Jared also indicated that it was his
impression that his communications with the chain of command were
“welcomed.”
8
Jared acknowledged that he had contacted Dana’s chain of command in
March 2020 with respect to his planned return to Italy in April 2020, but that
he had not informed Dana of his planned return until April 6, 2020, just prior
to his arrival.
Jared testified that it is his belief that “in general, [the children] not
having time with me is something that injures them and puts them in a place
where they are not happy.” Jared also testified that he disagreed with
aspects of Dana’s parenting. However, when questioned about whether he
had raised his concerns directly with Dana, he testified that “[b]ased off [his]
previous experience in [the] marriage,” he did not “offer critiques of Dana
about anything.”
The attorneys for both parties presented closing arguments on
December 28, 2020. Upon the conclusion of the closing arguments, the trial
court immediately issued its orders regarding Dana’s DVRO request and
Jared’s request for an order regarding child custody.
With respect to Dana’s request for a DVRO, the Court found that a
domestic relationship existed between the parties under Family Code section
6211. The court noted that, by their own admission, the parties had a prior
history of domestic violence involving physical violence, but the court
indicated that this conduct had occurred “much prior to this.” The court
noted that there were not “currently any issues of physical violence going on.”
The court proceeded to discuss the fact that Jared’s initial contacts with
Dana’s military command had begun in an appropriate manner. However,
the court found that as time progressed, Jared’s use of the military system to
try to redress personal issues between him and Dana while they were in Italy
became inappropriate and constituted harassment:
9
“And at some point there began to be this escalation of
involving the military. . . . But at some point that
escalation turned into where he’s contacting the military
even before he’s contacting Ms. Hutchins. And that
certainly occurred in April when he made a plan to come
back before he even told Ms. Hutchins about that. He was
letting the military know that he was coming. And that’s
where it starts to become, as far as the evidence showed,
more of a use of the military to get what Mr. Hutchins
wanted. And that is a form of coercion, that is a form of
control, and it certainly was impacting Ms. Hutchins. And
so it does seem that there was some control that was going
on there. . . . So yes, I believe that there was harassment
that went on. I also think it was situational. So really the
court is making a finding that there has been this form of
harassment, this form of domestic violence.”7
After making this finding, the court proceeded to discuss its
determination regarding whether a DVRO was necessary to prevent further
abuse. The court concluded that a DVRO was not necessary, stating:
7 In the minute order issued in connection with the court’s December 28,
2020 rulings, the court stated the following with respect to its findings
regarding Jared’s conduct:
“Thus, the Court finds the respondent has met her burden
of proof [for purposes of requesting a domestic violence
restraining order] by a preponderance of the evidence, as
the Court notes pursuant to F[amily] C[ode] 6203, abuse
did occur through the persistent and overbearing
harassment by the petitioner, both directly to her and in
contacting her superiors and chain of command in the U.S.
Navy, creating a disruptive environment, and overall
inappropriate conduct. The Court finds the petitioner has
established a pattern of situational coercive and controlling
behavior over the respondent, causing reasonable
apprehension from the respondent, as her peace has been
disturbed by the petitioner as described in the pleadings in
this case and by the respondent’s testimony in court.”
10
“But I cannot find at this point given the type of issues that
were going on that Ms. Hutchins’ safety would be
jeopardized if the court failed to make orders. I think that
the restraining order has served its purpose, that we have
gotten to a point after this period of enforced separation
since the filing of the restraining order [as a result of the
temporary restraining order], that we are now to a point
where the petitioner’s safety would no longer be
endangered if the court failed to make the orders. So I
don’t think that orders are necessary to prevent this
reoccurrence [sic] at this period. I think that there has
been enough time that the parties have been separated for
sufficient time to enable them to resolve the causes of the
violence. And in considering the totality of the
circumstances, I am making a finding not to grant the
restraining order at this time.”
After making this ruling, the court immediately proceeded to discuss
the issue of custody, stating, “So that leads up to the issue of the custody and
parenting time.” The court stated:
“The court has to use the standard set out in the California
Family Code, and it is California public policy that the
health, safety, and welfare of the children is the Court’s
primary concern in determining the best interest of
children during custody and visitation disputes. That’s
Family Code section 3020. It is also public policy that
children have frequent and continuing contact with both
parents after the parents have separated or dissolved their
relationship and to encourage parents to share the rights
and responsibilities of childrearing unless contact would
not be in the children’s best interest. And if the two
policies conflict, the Court’s order must ensure the
children’s health, safety, and welfare, and the safety of all
family members. In this case then, the Court looks to what
is going to be in the children’s best interest.”
The court proceeded to discuss the “children’s need for continuity and
stability,” mentioning the “upheavals that they have had to endure over the
11
last couple of years.” The court noted that for the previous two years, Dana
had been the primary caregiver, and although there had been a brief period
of time during which the parties “were switching on and off for a few weeks,”
at the time of the hearing, the children had been with Dana “for a few
months.” The court stated, “[I]t’s my belief that it would be in their best
interest to maintain the current plan for a period of time and step up to the
50, 50, just so that they can have some continuity and stability before we
change things up on them yet again . . . . And so because of that, I am going
to maintain the current parenting plan . . . .”
The court then stated that it would adopt the “original FCS report that
is dated September 28th of 2020, with the modification beginning 2C, that
beginning April 1st of 2021, the parenting of the children shall be as follows.”
The court set out a parenting plan known as a “2, 2, 5 plan,” which gives
parents an equal time share but does not require that children be away from
one parent for a week at a time, to begin in April 2021. The court also stated,
“Otherwise, I’ll adopt everything else as previously ordered at the last court
hearing. . . . [B]ut with that modification.” At this point in the hearing, it
appears that the court noticed that Dana’s attorney was trying to get the
court’s attention. The court asked, “Ms. Minella, did you have any
questions?”
Dana’s attorney responded, “I do, Your Honor. So to clarify, is the court
making a finding that domestic violence occurred?” In response, the court
said, “Yes, and I should say that I am making that finding. I’m not issuing
the restraining order. And pursuant to Keith R., I do believe it is in the best
interest of the children to order ultimately the 50, 50 custody and overcome
the 3044 presumption. Thank you for that reminder.” Dana’s attorney
sought further clarification from the court: “Okay. So then in the findings I
12
can include that in the order. And then the court is ordering that 3044 has
been rebutted. So 3044 is not applicable. I got that correct; yes?” The court
indicated that Dana’s attorney’s understanding of the trial court’s ruling was
correct.
Finally, the trial court admonished Jared about his conduct:
“Sir, I want you to know that you were dangerously close to
having a restraining order issued here. And so if there
were to be further communication that exceeded any
normal contact with the military or involved issues related
to your dissolution, the Court would consider issuing a
restraining order in the future, it would reconsider its
decision here. . . . Do you understand that, Mr. Hutchins?”
Jared indicated that he understood the court’s warning. The court’s
minute order from the hearing corresponds with the trial court’s oral ruling
and includes as an attachment a detailed “PARENTING PLAN,” which
provides that Dana was to have primary physical custody of the children
until April 1, 2021, and beginning on that date, the parties would share equal
time with the children. The plan also set out the division of holidays, how
exchanges were to take place, and requirements governing communication
between the parties.
Dana filed a timely notice of appeal on March 18, 2021.
III.
DISCUSSION
A. There is no indication that the court’s custody order was a temporary
order
Jared initially asserts that Dana’s appeal should be dismissed because,
he contends, it has been taken from “a non-appealable temporary child
13
custody order.”8 Although Jared is correct in his assertion that a temporary
order regarding child custody is not appealable, we conclude that the order
from which Dana appeals is not a temporary custody order.
“It is settled that the right to appeal is strictly statutory, and a
judgment or order is not appealable unless made so by statute. [Citation.] In
civil matters, Code of Civil Procedure section 904.1 is the main statutory
authorization for appeals. Code of Civil Procedure section 904.1, subdivision
(a) provides in relevant part that an appeal may be taken from: a final
judgment (subd. (a)(1)); an order made after an appealable judgment
(subd. (a)(2)); or ‘an order made appealable by the provisions of the Probate
Code or the Family Code’ (subd. (a)(10)).” (Enrique M. v. Angelina V. (2004)
121 Cal.App.4th 1371, 1377 (Enrique M.).) Given that the “Family Code
contains no express provision governing appeals of child custody orders”
other than orders “to enforce an order for the return of a child under the
Hague Convention on the Civil Aspects of International Child Abduction,”
“the right to appeal a child custody determination is generally limited to final
judgments and orders made after final judgments. [Citations.]” (Ibid.)
Thus, to be appealable, an order must “finally determine all issues or
end the litigation between the parties.” (George v. Shams-Shirazi (2020)
45 Cal.App.5th 134, 141.) “ ‘ “It is not the form of the decree but the
substance and effect of the adjudication which is determinative” ’ of whether
an order is a final judgment.” (Id. at p. 141, fn. 5.) Therefore, in the context
of an order setting out custody and/or visitation, the question is whether the
court, in issuing the order, intends to effectuate a final adjudication of the
parties’ rights of custody or visitation.
8 Jared did not file a motion to dismiss the appeal, but instead makes
this argument in his respondent’s brief.
14
In Enrique M., the father filed a complaint to establish a parental
relationship and to determine child custody and visitation. (Enrique M.,
supra, 121 Cal.App.4th at p. 1378.) After a contested hearing, the court
entered a custody order. The reviewing court concluded that the order, which
was “entered after a hearing and determining the issues raised in Enrique's
complaint, constituted an appealable ‘final judgment[ ] as to custody.’ ”
(Ibid.)
The custody order from which Dana appeals was entered after a
contested hearing—held over two nonconsecutive days—addressing both
Dana’s November 2020 request for a DVRO, and Jared’s July 2019 RFO
regarding custody.9 Both parties filed documents titled “Long Cause Brief,”
and Jared’s brief indicated that although the issue of “holidays and legal joint
custody” had been settled, he identified “Custody–daily parenting time” and
the “DVRO” as the two issues “left to be litigated” at the evidentiary hearing.
At the beginning of the contested evidentiary hearing, the trial court noted
that it had reviewed all of the documents that the parties had filed related to
both the custody issue and the DVRO issue, going back as far as Jared’s
original July 31, 2019 RFO regarding custody.10 After the court found that it
9 The minute order issued with respect to the long-cause evidentiary
hearing indicated that it comprised both the “Jared Hutchins Evidentiary
Hearing: (P) CC/CV; Filed 7/31/2019; Cont’d from 10/28/2020; Cont’d from
12/21/2020; TE: 5 hours” and the “Dana Hutchins Retraining Order Hearing:
(R) DVTRO; Issued 11/13/2020; Cont’d from 12/1/2020.”
10 The trial court stated: “This Court has reviewed the original request
for order that was filed on July 31st of 2019, filed by Mr. Hutchins for child
custody, support, spousal support, and attorney's fees. [¶] I reviewed the
response filed by Ms. Hutchins on December 5th of 2019. This case, of
course, as you all know, has gone through some issues related to the
UCCJEA. The Court did make a finding that this Court does have
15
was not necessary to issue a permanent DVRO, despite having found that
Jared had engaged in domestic violence, the court proceeded to set out a
detailed custody arrangement, asserting that its determination of custody
and visitation was based on the court’s conclusions as to what custody
arrangement would be in the best interests of the children.
The trial court set out a comprehensive and detailed custody order. At
no point did the court indicate that its order was intended to be an interim or
temporary custody order, nor did the court indicate that it was contemplating
further hearings or proceedings with respect to the issue of custody. 11
Because a custody order entered after a contested evidentiary hearing and
devoid of any indication that the order is intended to be interim normally
constitutes a final judgment from which an appeal may be taken (see
Enrique M., supra, 121 Cal.App.4th at pp. 1377-1378), we conclude that the
custody order entered by the trial court on December 28, 2020 constitutes a
final custody order from which Dana may appeal.
jurisdiction. [¶] Then I reviewed the declaration filed on October 21st of 2020,
by Ms. Hutchins, the declaration filed by Mr. Hutchins on October 22nd. I
reviewed the [request for] restraining order filed on November 13th of 2020,
including the declarations and points and authorities. I reviewed
Mr. Hutchins’ response dated November 30th of 2020, and then the long-
cause brief that has been filed by both parties.” The court then asked the
parties’ attorneys whether the court had “miss[ed] any documents.” Neither
attorney indicated that the court had failed to consider a relevant document.
11 In contrast, the trial court specifically noted that there were future
proceedings and hearings set for purposes of addressing support issues in the
case.
16
B. The record is sufficient to permit this court to address the legal issues that
Dana has raised
Jared contends in the alternative that the record on appeal is
“inadequate on its face to permit meaningful appellate review.” We disagree.
First, the record contains the documents relevant to the issues raised
on appeal. Specifically, the record contains the parties’ written requests for
orders (i.e., the request for determination of custody filed by Jared in July
2019 and the request for a DVRO filed by Dana in November 2020), as well
as a transcript of the entire evidentiary hearing, including the trial court’s
oral pronouncement of its ruling with respect to both the RFO regarding
custody and the request for the DVRO. The record also contains the trial
court’s lengthy minute order reflecting what transpired at the hearing, as
well as the court’s specific rulings and orders.
Jared contends that the record is inadequate because it does not
include certain other documents. Specifically, he asserts that the lack of
transcripts or minute orders from “several key hearings from which [Dana’s]
appeal stems” is fatal. He identifies the lack of a transcript or minute order
from the following three proceedings as problematic: (1) “The December 20,
2019 RFO hearing , during which initial temporary child custody and
visitation orders were purportedly made”; (2) “The July 14, 2020 DVRO
hearing, during which the trial court denied Dana’s first request for a
DVRO”; and (3) “The October 28, 2020 RFO hearing, during which the court
made additional temporary child custody and visitation orders.” The problem
with Jared’s argument is that the records of these proceedings are not
necessary for this court’s consideration of Dana’s contention that the trial
court failed to comply with the requirements of section 3044 with respect to
the order at hand. The fact that the court made a prior temporary order
17
regarding custody is not relevant for purposes of determining whether the
court properly applied section 3044 with respect to the permanent custody
order from which Dana appeals. Similarly, the fact that Dana sought a prior
DVRO that was denied does not affect our review of what the court did in the
proceeding that resulted in the order from which Dana appeals. In sum, the
transcripts and minute orders from these prior proceedings are not necessary
to our determination of the issues raised in this appeal.
Jared also contends that Dana “failed to provide” certain “key court
filings and exhibits upon which the Court expressly relied in making its
findings and orders at the December 28, 2020 RFO hearing.” He identifies
two Family Court Services reports (one from September 2019 and one from
September 2020), Dana’s prior DVRO request from May 2020, and the
parties’ exhibits that the court admitted at the evidentiary hearing on Dana’s
November 2020 DVRO request and Jared’s RFO regarding custody.
However, Dana’s arguments on appeal challenge whether the trial court
properly applied section 3044 and followed all of the statutory directives in
that provision as a matter of law. Dana’s contentions do not hinge on the
evidence presented at the hearing, nor do they require an assessment as to
whether the court abused its discretion in how it applied the law to the facts
that it found. Dana is arguing that in making its ruling, the trial court failed
to comply with the statutory requirements set forth in section 3044. The
record that Dana has supplied on appeal, which, as noted, includes the
parties’ moving papers, the transcript of the hearing, the trial court’s oral
ruling, and the court’s written minute order provides a sufficient basis to
permit this court to assess her claims.
18
C. The trial court prejudicially erred in failing to comply with the statutory
requirements, and in relying on an improper policy concern, in
concluding that the presumption of section 3044 had been rebutted
Dana contends that the trial court “incorrectly applied Family Code
[section] 3044” in multiple ways. She points out that the court essentially
made its custody order prior to making any finding that the presumption of
section 3044 had been rebutted, noting that the court’s finding that Jared
had engaged in domestic violence triggered the presumption of section 3044,
and that this presumption is to be applied before a court decides the issue of
custody and visitation. Dana also contends that the court failed to place the
burden on Jared to demonstrate by a “preponderance of the evidence” that
the presumption had been rebutted. She further contends that the trial court
erred in specifically relying on the general policy preference favoring
“frequent and continuing contact with both parents,”—a public policy set out
in Family Code sections 3020 and 3040—in concluding that the section 3044
presumption had been rebutted. As Dana points out, section 3044,
subdivision (b)(1) expressly provides that the policy preferences identified in
Family Code sections 3020 and 3040 may not be used to rebut the section
3044 presumption. Dana also notes that section 3044 sets out seven factors
that “the court [must] consider in determining whether the presumption has
been overcome,” and contends that the trial court erred in failing to address
these factors on the record.
1. Relevant legal standards and the statutory scheme
Dana challenges the trial court’s interpretation of, and application of,
section 3044.
Although an appellate court typically “review[s] custody and visitation
orders for an abuse of discretion, and appl[ies] the substantial evidence
standard to the trial court's factual findings” (Jaime G. v. H.L. (2018)
19
25 Cal.App.5th 794, 805 (Jaime G.)), to the extent the issue asserted on
appeal involves statutory interpretation, our review is de novo (ibid.). In
addition, a court necessarily “abuses its discretion if it applies improper
criteria or makes incorrect legal assumptions.” (In re Marriage of Fajota
(2014) 230 Cal.App.4th 1487, 1497, italics omitted.)
“Section 3044 establishes a rebuttable presumption that an award of
joint or sole custody to a parent who has perpetrated domestic violence is not
in a child's best interests.” (Abdelqader v. Abraham (2022) 76 Cal.App.5th
186, 195 (Abdelqader).) Section 3044 states in pertinent part: “Upon a
finding by the court that a party seeking custody of a child has perpetrated
domestic violence within the previous five years against the other party
seeking custody of the child . . . there is a rebuttable presumption that an
award of sole or joint physical or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to the best interest of the child,
pursuant to Sections 3011 and 3020. This presumption may only be rebutted
by a preponderance of the evidence.” (§ 3044, subd. (a).)
“The section 3044 ‘presumption is mandatory and the trial court has no
discretion in deciding whether to apply it: “[T]he court must apply the
presumption in any situation in which a finding of domestic violence has been
made.” ’ ” (Abdelqader, supra, 76 Cal.App.5th at p. 196, quoting Celia S. v.
Hugo H. (2016) 3 Cal.App.5th 655, 661.)
As section 3044 makes clear, although application of the presumption is
mandatory, the presumption is rebuttable. The language of section 3044
demonstrates that a trial court must undertake two steps before concluding
that the presumption of section 3044 has been overcome. (§ 3044, subd. (b).)
First, the court must find that the parent who has perpetrated the domestic
violence has demonstrated that it “is in the best interest of the child pursuant
20
to Sections 3011 and 3020” to give the perpetrator sole or shared custody.
(Id., subd. (b)(1).)12 The statute specifies that in making the requisite
12 Section 3011 provides in relevant part:
“(a) In making a determination of the best interests of the
child in a proceeding described in Section 3021, the court
shall, among any other factors it finds relevant and
consistent with Section 3020, consider all of the following:
(1) The health, safety, and welfare of the child.
(2) (A) A history of abuse by one parent or any other
person seeking custody against . . .
(ii) The other parent.”
Section 3020 provides in relevant part:
“a) The Legislature finds and declares that it is the public
policy of this state to ensure that the health, safety, and
welfare of children shall be the court’s primary concern in
determining the best interests of children when making
any orders regarding the physical or legal custody or
visitation of children. The Legislature further finds and
declares that children have the right to be safe and free from
abuse, and that the perpetration of child abuse or domestic
violence in a household where a child resides is detrimental
to the health, safety, and welfare of the child.
“(b) The Legislature finds and declares that it is the public
policy of this state to ensure that children have frequent
and continuing contact with both parents after the parents
have separated or dissolved their marriage, or ended their
relationship, and to encourage parents to share the rights
and responsibilities of child rearing in order to effect this
policy, except when the contact would not be in the best
interests of the child, as provided in subdivisions (a) and (c)
of this section and Section 3011.
“(c) When the policies set forth in subdivisions (a) and (b) of
this section are in conflict, a court’s order regarding
physical or legal custody or visitation shall be made in a
21
finding regarding the best interests of the children, the court is prohibited
from relying on “the preference for frequent and continuing contact with both
parents, as set forth in subdivision (b) of Section 3020, or with the
noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section
3040.” Second, the court must consider each enumerated factor contained in
section 3044, subdivision (b)(2) and “find that the factors in [subdivision
(b)](2), on balance,” weigh in favor of granting some amount of custody to the
perpetrator in terms of protecting the child’s health, safety, and welfare.
(§ 3044, subd. (b).)13
manner that ensures the health, safety, and welfare of the
child and the safety of all family members.” (Italics added.)
13 The following are the factors to be considered and balanced, as set out
in subdivision (b)(2) of section 3044:
“(A) The perpetrator has successfully completed a batterer’s
treatment program that meets the criteria outlined in
subdivision (c) of Section 1203.097 of the Penal Code.
“(B) The perpetrator has successfully completed a program
of alcohol or drug abuse counseling, if the court determines
that counseling is appropriate.
“(C) The perpetrator has successfully completed a
parenting class, if the court determines the class to be
appropriate.
“(D) The perpetrator is on probation or parole, and has or
has not complied with the terms and conditions of
probation or parole.
“(E) The perpetrator is restrained by a protective order or
restraining order, and has or has not complied with its
terms and conditions.
“(F) The perpetrator of domestic violence has committed
further acts of domestic violence.
22
Importantly, section 3044 mandates that the trial court “make specific
findings on each of the factors in subdivision (b).” (§ 3044, subd. (f)(1).) “If the
court determines that the presumption . . . has been overcome, the court shall
state its reasons in writing or on the record as to why” the two-step
requirement has been met. (Id., subd. (f)(2), italics added.) Thus, “[t]he
statement of reasons must address all of the factors outlined in section 3044,
subdivision (b). [Citations.]” (Abdelqader, supra, 76 Cal.App.5th at p. 196,
italics added.)
In addition, subdivision (g) of section 3044 specifies that the trial court
is to consider whether section 3044 applies before entering anything other
than an interim custody order: “In an evidentiary hearing or trial in which
custody orders are sought and where there has been an allegation of domestic
violence, the court shall make a determination as to whether this section
applies prior to issuing a custody order, unless the court finds that a
continuance is necessary to determine whether this section applies, in which
case the court may issue a temporary custody order for a reasonable period of
time, provided the order complies with Sections 3011 and 3020.”
2. Analysis
What occurred at the evidentiary hearing in this case is similar to what
occurred in Abdelqader, supra, 76 Cal.App.5th at pages 195-198, a case that
was the subject of an opinion recently issued by another panel of this court.
In Abdelqader, it was undisputed that the trial court had determined that the
section 3044 presumption applied. (Id. at p. 197.) However, the record failed
to demonstrate “that the [trial] court provided the necessary statement of
“(G) The court has determined, pursuant to Section 6322.5,
that the perpetrator is a restrained person in possession or
control of a firearm or ammunition in violation of Section
6389.”
23
reasons addressing each factor outlined in section 3044, subdivision (b).”
(Ibid.) The Abdelqader court concluded that the court’s failure to follow the
precise dictates of section 3044 constituted reversible error. In reaching this
conclusion, the court rejected the respondent’s argument that because the
appellant had not requested a statement of decision, the doctrine of implied
findings operated to require affirmance of the trial court’s order.14 The
Abdelqader court explained why the doctrine of implied findings does not
apply in such a scenario:
“[Respondent] has not provided any authority wherein a
court applied the doctrine of implied findings to the
requirements of section 3044. Indeed, none of the cases on
which [respondent] relies involved the section 3044
presumption. [Citations.] Moreover, our independent
research has not found any case where an appellate court
held that a trial court does not have to comply with the
requirements of section 3044 unless a party requests a
statement of decision. The reason for this absence is clear.
Section 3044 is not triggered by whether a party requests a
statement of decision. Further, such a request (or the
absence of such a request) does not impact a court's duty to
follow section 3044 whatsoever.
“A trial court’s obligations under section 3044 begin once
the court makes a finding of domestic violence. [Citation.]
Moreover, the statute is explicit that the court must
consider the factors set forth in section 3044, subdivision
(b) and, if the court determines that the presumption has
been overcome, it must state its reasons in writing or on
the record. [Citations.] There is no requirement in section
3044 that a party must first request a statement of decision
14 “ ‘Under the doctrine of “implied findings,” when parties waive a
statement of decision expressly or by not requesting one in a timely manner,
appellate courts reviewing the appealed judgment must presume the trial
court made all factual findings necessary to support the [order] for which
there is substantial evidence.’ ” (In re Marriage of McHugh (2014)
231 Cal.App.4th 1238, 1248.)
24
before a court must comply with subdivision (f) of the
statute. In fact, a statement of decision is not mentioned
anywhere in the statute. And we will not read any such
language into section 3044. [Citation.] As such, the
doctrine of implied findings does not relieve a court of its
obligations under section 3044.” (Abdelqader, supra,
76 Cal.App.5th at pp. 197-198.)
In other words, regardless of whether an appellant requests a
statement of decision with respect to a trial court’s rulings regarding section
3044, a reviewing court will examine the record to determine whether the
trial court fulfilled its obligations under section 3044.
Like the trial court in Abdelqader, the trial court in this case
determined that domestic violence had occurred and indicated that the
section 3044 presumption applied.15 However, after finding that Jared had
15 Despite having found that Jared had perpetrated domestic violence,
after denying Dana’s request for a DVRO and moving on to addressing the
issue of custody of the children, the trial court essentially completed its
custody ruling without mentioning section 3044. When the court concluded
its remarks, the court asked whether Dana’s attorney had any questions
about the court’s order. Dana’s attorney asked whether the court had made a
finding that domestic violence had occurred. It was only in response to
Dana’s attorney’s inquiry that the court mentioned or addressed section 3044,
stating:
“Yes, and I should say that I am making that finding. I’m
not issuing the restraining order. And pursuant to Keith
R., I do believe it is in the best interest of the children to
order ultimately the 50, 50 custody and overcome the 3044
presumption. Thank you for that reminder.”
Jared suggests that Dana forfeited her appellate contentions by failing
to further “object to [the court’s] application of section 3044 at the trial level.”
As evidence of Dana’s forfeiture of this issue, Jared points to the fact that
Dana’s attorney asked, specifically, what to include in a proposed order that
she had been designated to prepare for the court, confirmed that the court
was “ordering that [section] 3044 has been rebutted[,] [s]o [section] 3044 is
25
perpetrated domestic violence, the trial court never fully complied with the
requirements of section 3044. The court did not make any of the “specific
findings on each of the factors in subdivision (b)” as required by subdivision
(f)(1) of section 3044. Nor did the court “state its reasons in writing or on the
record as to why” both provisions of subdivision (b) were met, as required by
subdivision (f)(2) section 3044. The doctrine of implied findings does not
operate to permit us to presume that the court fulfilled all of the
requirements of section 3044. As in Abdelqader, the record in this case
demonstrates, on its face, that the trial court did not comply with the
requirements of section 3044, subdivisions (b) and (f). (See Abdelqader,
supra, 76 Cal.App.5th at pp. 197-198.) The court’s failure to follow the
express mandates of section 3044 was error. (See Abdelqader, at pp. 197-198;
see also City and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531,
544 (H.H.) [appellate court “ha[d] no choice but to conclude the court failed to
comply with section 3044” where trial court failed to meet section 3044’s
requirements that the court (1) find “the presumption overcome by a
preponderance of the evidence showing the order was in the child’s best
interest—without consideration of the statutory preference for ‘frequent and
not applicable,” and asked the court whether she had “got[ten] that correct.”
We disagree with Jared’s forfeiture argument. Dana’s attorney raised the
issue of the finding of domestic violence; in so doing, Dana’s attorney placed
the trial court on notice of the fact that the court’s finding had triggered the
presumption of section 3044. The court had already set out the entirety of its
custody order without making any mention of section 3044. As noted, it was
only in response to Dana’s attorney’s inquiry that the court addressed the
presumption of section 3044. And when the court did address section 3044,
the court stated in a conclusory manner that the presumption had been
“overcome.” Under these circumstances, Dana adequately raised the issue of
the effect of the court’s finding of domestic violence to allow the court the
opportunity to properly apply the presumption of section 3044; it was clear
that the court felt that it had sufficiently addressed the matter.
26
continuing contact with both parents,’ ” (2) determine that “the factors in
section 3044, subdivision (b)(2), ‘on balance, support the legislative findings
in Section 3020,’ ” and (3) “state its reasons for making these findings ‘in
writing or on the record,’ including ‘specific findings on each of the factors in
subdivision (b)’ ”].)
Jared argues that even if the trial court erred in its application of
section 3044, the error was harmless. In California, prejudicial error
implicating state law concerns is ordinarily found only if, “ ‘after an
examination of the entire cause, including the evidence,’ [the reviewing court]
is of the ‘opinion’ that it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.)
The courts in Abdelqader and H.H. addressed the issue of prejudice
where the trial court failed to comply with the requirements of section 3044
to make findings on all of the statutory factors. In both cases, the courts
concluded that the trial court’s error in failing to make all of the required
findings and in failing to state its reasons for concluding that the
presumption had been overcome was prejudicial. (See Abdelqader, supra,
76 Cal.App.5th at p. 198; H.H., supra, 76 Cal.App.5th at p. 547.) As the H.H.
court noted, a record that “offers no explanation to . . . demonstrate the court
found the presumption rebutted,” results in prejudice. (H.H., at p. 547.)
Like those courts, we conclude that under the circumstances of this
case, it is reasonably probable that a result more favorable to Dana may have
been reached if the trial court had properly applied section 3044 in the
manner in which the Legislature intended. As the court in Jaime G., supra,
25 Cal.App.5th at pp. 805-807, explained, the Legislature’s very purpose in
creating the scheme set out in section 3044 was to ensure that trial courts
27
give proper consideration to, and adequately reflect on, the harm to children
caused by any perpetration of domestic violence. “The purpose of the
rebuttable presumption statute is to move family courts, in making custody
determinations, to consider properly and to give heavier weight to the
existence of domestic violence.” (Jaime G., at p. 805, italics added, citing Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 840 (1999-2000 Reg. Sess.)
July 13, 1999.) “Presumptions are used in this context because courts have
historically failed to take sufficiently seriously evidence of domestic abuse.
[Citation.] [¶] “Without such [pre]sumptions, it has been too easy for courts to
ignore evidence of domestic abuse or to assume that it will not happen again.
As with the limitations on consideration of the gender of a parent or child,
presumptions function to counteract the proven tendency of some courts to
make judgments based on ignorance or stereotypes.’ ” (Jaime G., at p. 806,
quoting Bartlett, Preference, Presumption, Predisposition, and Common
Sense: From Traditional Custody Doctrines to the American Law Institute’s
Family Dissolution Project (2001) 36 Fam. L.Q. 11, 23.)
“By enacting the seven factors in the rebuttable presumption statute,
the Legislature created a mandatory checklist for family courts. Mandatory
checklists can improve professional decisionmaking for professionals as
diverse as surgeons and pilots,” and although such checklists “can seem
bothersome to experienced professionals,” the Legislature created a checklist
in this context in order “to require family courts to give due weight to the
issue of domestic violence.” (Jaime G., supra, 25 Cal.App.5th at p. 806, italics
added.) In addition, the requirement of written findings or findings
otherwise stated on the record was included to facilitate meaningful appellate
review grounded in the “policies set forth in the governing law,” which is
“essential to the creation of the body of precedent necessary for the system of
28
rebuttable presumptions to produce consistent and predictable results.”
(Ibid.)
A trial court’s omission of the findings required under section 3044
leaves a reviewing court unable to adequately assess whether the trial court
gave due weight to the issue of domestic abuse, or whether the court would
have approached a particular scenario differently if it had gone through all of
the steps contemplated by the legislative scheme. As the Jaime G. court
explained, the failure of the trial court to make the requisite findings under
section 3044 “raise[d] questions” that the appellate court could not answer.
(Jaime G., supra, 25 Cal.App.5th at p. 807.) The Jaime G. court noted that
despite its finding that the father had committed domestic violence against
the mother, the trial court had imposed “no batterer’s treatment program on
Father,” and the appellate court was left unable to know why; it was possible
that the trial court “simply may have overlooked the statutory suggestion of
such a program.” (Ibid.) The same is true here. We do not know why the
trial court did not impose a treatment program or a parenting class, which
are among the factors included in subdivision (b)(2) of section 3044, or
whether it even considered that such a program or class could have been
imposed in connection with the custody order. Given that there was a prior
history of domestic violence,16 it is possible that the court may have
16 As the trial court noted, the “parties by their own admission have this
prior history of domestic violence where both parties engaged in some
physical conduct, but that occurred much prior to this.” Jared testified that
he had completed a “52-week anger management course” and attended
“counseling with our spiritual leaders” after a 2012 incident involving
physical violence. The trial court found that despite Jared’s earlier efforts to
address these issues, Jared again engaged in conduct that constituted
domestic violence.
29
approached the issue of custody differently if it had complied with the specific
requirements set forth in section 3044, as the Legislature intended.
Further, the trial court erroneously relied on the “public policy that
children have frequent and continuing contact with both parents after the
parents have separated or dissolved their relationship,” in direct
contravention of section 3044’s express prohibition of such reliance in
determining that section 3044’s presumption has been rebutted. (See § 3044,
subdivision (b)(1) [“In determining the best interest of the child, the
preference for frequent and continuing contact with both parents, as set forth
in subdivision (b) of Section 3020, or with the noncustodial parent, as set
forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to
rebut the presumption, in whole or in part” (italics added)].) If the trial court
had complied with the requirements of section 3044, and not considered the
general policy that favors frequent and continuing contact with both parents,
it is reasonably probable that the court may not have determined that the
presumption had, in fact, been rebutted.
We therefore conclude that the trial court’s custody order must be
reversed and the matter remanded so that the court may properly apply
section 3044. (See Abdelqader, supra, 76 Cal.App.5th at p. 198 [reversing
and remanding to allow trial court to “properly consider section 3044”]; H.H.,
supra, 76 Cal.App.5th at p. 547 [“[r]eversal of the visitation order is
required”]; Noble v. Superior Court (2021) 71 Cal.App.5th 567, 582 [issuing “a
writ of mandate reversing the family court’s [interim] custody orders and
directing the family court to reassess custody in light of the presumption set
forth in section 3044”]; Jaime G., supra, 25 Cal.App.5th at p. 809 [reversing
30
and remanding for trial court “to hold a new hearing and to provide th[e
required] statement of specific reasons”].)17
IV.
DISPOSITION
The trial court’s order issued December 28, 2020 regarding custody of
the parties’ children is reversed and the case is remanded to the trial court to
conduct a new proceeding, and issue a new order, in compliance with the
statutory requirements of section 3044. Dana is entitled to her costs on
appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
O’ROURKE, J.
17 In reversing, we express no opinion as to how the trial court should
decide the issue regarding whether the section 3044 presumption has been
rebutted. We recognize that on remand, much time will have passed and the
court will have additional information before it as to how the parties have
conducted themselves in the interim. The court is free to take all of this
information into consideration in applying section 3044.
31