Woo v. Woo CA1/5 ( 2013 )

Filed 12/12/13 Woo v. Woo CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
SUZANNE SIMS WOO,
Plaintiff and Respondent, A137279
v.
ALAN WOO, (San Mateo County
Super. Ct. No. FAM0105651)
Defendant and Appellant.
Alan Woo appeals from the trial court’s order renewing for five years a domestic
violence restraining order against him, arguing the trial court employed the wrong legal
standard and the evidence did not support the renewal. We reject his arguments and
affirm.
BACKGROUND
In 2009, Suzanne Sims Woo sought a domestic violence restraining order against
Alan Woo, her then husband and the father of her child.1 In February 2010, the parties
commenced a multi-day hearing on the restraining order; around the same time,
according to Suzanne, the parties’ case was “converted” to a dissolution of marriage
action. At the restraining order hearing, Suzanne testified to two incidents involving
physical force: In January 2009, Alan grabbed and twisted her forearms; and in August
1 For convenience, we refer to the parties by their first names; no disrespect is intended.
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2009, Alan poked her in the chest with his finger. Alan admitted placing his hands on
Suzanne’s forearms and brushing his raised finger against her, but denied using force or
aggression in either incident. In March 2010, at the conclusion of the hearing, the court
issued a two-year restraining order against Alan, which was subsequently modified in
nonmaterial respects in June 2010. The restraining order expressly permitted contact
related to Alan’s visitation rights with their child.
Suzanne subsequently sought permission to relocate with their child to the east
coast. A multi-day trial on the issue took place over the course of many months. In May
2012, the trial court issued a tentative decision granting Suzanne leave to relocate to the
east coast and awarding Alan certain visitation rights.
Meanwhile, in March 2012, Suzanne filed a request to renew the restraining order
against Alan. Suzanne did not contend Alan had used physical force against her since the
issuance of the original order. Instead, she cited the ongoing and contentious litigation
over her requested relocation and certain behavior she characterized as “bullying.” A
hearing on the renewal request was held before the same judge who presided over the
hearing on the initial restraining order and the relocation trial. As part of the hearing, the
court took judicial notice of the testimony and exhibits from the hearing on the initial
restraining order.
In June 2012, after hearing testimony and argument, the trial court announced
from the bench its decision to grant Suzanne’s renewal request. The court found none “of
the [new] contact that was alleged to be abusive.” However, it relied upon evidence
from the hearing on the original restraining order that the court “did find to constitute
domestic violence including the finger hitting [Suzanne] in the chest and the twisting of
the arms.” The court also considered the current circumstances, including that “[t]here is
a move away order contemplated.” The court concluded, “[Suzanne’s] fear in this case is
well beyond that which you would expect in a case given the incidents that have
occurred; however, the incidents that the court found were such that a reasonable person
would be concerned, would have reasonable apprehension that given the situation
occurring, given the situation of arguing in the future that, yeah, that might occur again.”
2
The restraining order was renewed for five years.2 However, the court specifically noted
Alan “may move for a modification for termination of the restraining order once the
move-away is either finalized or [Suzanne] decides not to move away.”
DISCUSSION
“A trial court should renew [a domestic violence restraining order], if, and only if,
it finds by a preponderance of the evidence that the protected party entertains a
‘reasonable apprehension’ of future abuse,” meaning “the evidence demonstrates it is
more probable than not there is a sufficient risk of future abuse to find the protected
party’s apprehension is genuine and reasonable.” (Ritchie v. Konrad (2004) 115
Cal. App. 4th 1275, 1290 (Ritchie).) Such a finding may be made “without a showing of
any further abuse since the issuance of the original order.” (Fam. Code, § 6345, subd.
(a).) “[T]he trial judge ordinarily should consider the evidence and findings on which
[the] initial order was based in appraising the risk of future abuse should the existing
order expire.” (Ritchie, supra, at p. 1290.) Indeed, “the underlying findings and facts
supporting that order often will be enough in themselves to provide the necessary proof to
satisfy [the reasonable apprehension of future abuse] test.” (Id. at p. 1291.) “Also
potentially relevant are any significant changes in the circumstances surrounding the
events justifying the initial protective order. For instance, have the restrained and
protected parties moved on with their lives so far that the opportunity and likelihood of
future abuse has diminished to the degree they no longer support a renewal of the order?
Or have there been no significant changes or even perhaps changes that enhance the
opportunity and possibility of future abuse?” (Ibid.) Finally, the burdens the restraining
order imposes on the restrained party are not relevant “where the protected party has a
‘reasonable apprehension’ of future physical abuse,” but may become relevant if the
2 The trial court properly found it lacked discretion under the governing statute to
renew the order for less than five years. (See Fam. Code, § 6345, subd. (a) [domestic
violence restraining orders “may be renewed . . . either for five years or permanently”];
Avalos v. Perez (2011) 196 Cal. App. 4th 773, 777.)
3
threat is of “lesser forms of abuse — unwanted telephone calls or mail, for example.”
(Id. at p. 1292.)
We review the trial court’s order renewing the restraining order “under an abuse of
discretion standard, to determine ‘ “whether the trial court exceeded the bounds of
reason. . . .” ’ [Citation.]” (Lister v. Bowen (2013) 215 Cal. App. 4th 319, 333 (Lister).)
As an initial matter, Alan contends the trial court failed to issue a statement of
decision. If a “trial is concluded . . . in less than eight hours over more than one day,”
“the request [for a statement of decision] must be made prior to the submission of the
matter for decision.” (Code Civ. Proc., § 632.) The hearing on the renewal request lasted
less than eight hours over the course of two days. (See In re Marriage of Gray (2002)
103 Cal. App. 4th 974, 980 [trial time for purposes of Civ. Proc. Code, § 632 “means the
time that the court is in session, in open court, and also includes morning and afternoon
recesses when the parties remain at the courthouse. It does not include time spent by the
judge off the bench without the parties present — lunch, for example — except for such
routine recesses as occur during the day”].) The matter was submitted on June 18, 2012
(see Cal. Rules of Court, Rule 2.900, subd. (a)(2)) and the order issued on June 19, but
Alan did not request a statement of decision until June 27. As his request was untimely,
the trial court had no obligation to issue a statement of decision. (In re Marriage of
Gray, at p. 980.)
In any event, the trial court did announce the reasons for its decision on the record
before the parties in what it likely intended to be the statement of decision. (See Code
Civ. Proc., § 632 [“when the trial is concluded . . . in less than 8 hours over more than
one day, the statement of decision may be made orally on the record in the presence of
the parties”].) As explained below, we affirm even assuming this constitutes a statement
of decision to which we look “to determine whether the court’s decision is supported by
the facts and the law.” (In re Marriage of Rising (1999) 76 Cal. App. 4th 472, 477, fn. 7
[considering document “that the trial court clearly intended . . . be a statement of decision
under Code of Civil Procedure section 662”].)
4
Alan next contends the trial court improperly used a subjective rather than
objective standard. To the contrary, the trial court explicitly stated the evidence was
“such that a reasonable person would be concerned, would have reasonable
apprehension that [the physical abuse] might occur again.” (Italics added.) That the trial
court also found Suzanne’s “fear in this case is well beyond that which you would
expect” is not in conflict with this finding. For example, Suzanne implied she feared a
fatal attack from Alan. Even if the trial court could find such a fear was not objectively
reasonable, a fear of nonfatal physical abuse was.
Finally, Alan argues the evidence does not support the trial court’s conclusion that
Suzanne had a reasonable apprehension of future abuse. In so concluding, the trial court
relied on the evidence underlying the initial restraining order, specifically, “facts I did
find to constitute domestic violence including the finger hitting [Suzanne] in the chest
and the twisting of the arms.” Alan argues no statement of decision issued after the
initial restraining order hearing, despite Alan’s timely request. Any error in failing to
issue a statement of decision has been forfeited as Alan did not appeal the original
restraining order. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial
Court, § 10, p. 593 [“where prior orders are independently appealable and become final
by lapse of time, an attack on them in an appeal from the judgment or from some later
order is collateral”].) The absence of a statement of decision in the initial order did not
preclude the trial court from reviewing the evidence underlying the initial order. The trial
court’s consideration of this evidence was proper. (Ritchie, supra, 115 Cal.App.4th at
p. 1290.)
The trial court also properly considered the current circumstances of the parties.
The ongoing litigation involving Suzanne’s relocation request placed the parties in
adversarial positions. The trial court’s statement that it would consider a request by Alan
to terminate the restraining order once Suzanne’s move was either finalized or canceled
indicates an understanding that this litigation was particularly contentious and increased
the possibility of heated arguments. The trial court considered this a “change[] that
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enhance[d] the opportunity and possibility of future abuse,” an appropriate consideration
in assessing a renewal request. (Ritchie, supra, 115 Cal.App.4th at p. 1291.)
The trial court found no additional harassment had occurred since the initial
restraining order issued, but nonetheless concluded Suzanne had a reasonable
apprehension of future abuse. In light of the trial court’s finding of physical abuse from
the hearing on the initial restraining order and the ongoing litigation over Suzanne’s
relocation request, we cannot say the trial court’s conclusion “ ‘exceeded the bounds of
reason.’ ” (Lister, supra, 215 Cal.App.4th at p. 333.)3
DISPOSITION
The judgment is affirmed. Suzanne is awarded her costs on appeal.
3 Because we find the trial court did not abuse of its discretion, we need not resolve
Suzanne’s contention that the “reasonable person” standard properly considers a
reasonable domestic violence victim.
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