A.W. v. S.W. CA3 ( 2022 )

Filed 6/28/22 A.W. v. S.W. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
A.W.,
Plaintiff and Respondent, C089788
v. (Super. Ct. No. S-DR-
0037210)
S.W.,
Defendant and Appellant.
A.C., formerly A.W., applied for and received a renewed and permanent
domestic violence restraining order against her former spouse S.W. under Family Code
section 6345, subdivision (a).1
S.W. now contends (1) the trial court misunderstood and misapplied the standard
for determining whether A.C.’s fear of S.W. was reasonable, (2) the domestic violence
restraining order is not supported by substantial evidence, and (3) the trial court abused
its discretion by making the renewed domestic violence restraining order permanent.
Finding no merit in S.W.’s contentions, we will affirm the trial court’s order.
1 Undesignated statutory references are to the Family Code.
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BACKGROUND
A
Under the Domestic Violence Prevention Act, a court may restrain a person to
prevent a recurrence of domestic violence upon reasonable proof of past acts of abuse.
(§ 6300.) Section 6345 addresses the duration and renewal of a domestic violence
restraining order. When initially issued, the order “may have a duration of not more than
five years” and is subject to termination or modification by order of the court based on
the parties’ stipulation or a motion of a party. (§ 6345, subd. (a).) The domestic violence
restraining order “may be renewed, upon the request of a party, either for five years or
permanently, without a showing of further abuse since the issuance of the original order,
subject to termination or modification by further order of the court either on written
stipulation filed with the court or on the motion of a party.” (§ Id., subd. (a).)
“When contested, a request to renew a restraining order should not be granted
pursuant to section 6345 simply because the requesting party has ‘a subjective fear the
party to be restrained will commit abusive acts in the future.’ (Ritchie v. Konrad (2004)
115 Cal.App.4th 1275, 1288 (Ritchie).) ‘The “apprehension” those acts will occur must
be “reasonable.” ’ (Ibid.) ‘That is, the court must find the probability of future abuse is
sufficient that a reasonable woman (or man, if the protected party is a male) in the same
circumstances would have a “reasonable apprehension” such abuse will occur unless the
court issues a protective order.’ (Ibid.)
“An imminent and present danger of abuse is not required, however. (Ritchie,
supra, 115 Cal.App.4th at p. 1288.) ‘In other words, under this objective test, “[a] trial
court should renew the protective order, if, and only if, it finds by a preponderance of the
evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.
. . . [T]his does not mean the court must find it is more likely than not future abuse will
occur if the protective order is not renewed. It only means the evidence demonstrates it is
more probable than not there is a sufficient risk of future abuse to find the protected
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party’s apprehension is genuine and reasonable.” ’ (Lister v. Bowen (2013) 215
Cal.App.4th 319, 332-333.)” (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 874 (Rybolt).)
On appeal from issuance of a permanent domestic violence restraining order, we
apply an abuse of discretion standard, viewing the evidence in the light most favorable to
the trial court’s order. (Rybolt, supra, 20 Cal.App.5th at pp. 874-875.)
B
The trial court in this case issued a domestic violence restraining order in favor of
A.C. and against S.W. in 2011. At the request of A.C., the trial court renewed the
restraining order in 2013, 2014, and again in 2018.
At the most recent contested hearing, A.C. testified that defendant committed
domestic violence against her during their marriage, which ended in 2011. She testified
that S.W. was controlling and violent, committing physical and psychological abuse.
S.W. continually violated the prior domestic violence restraining order, and A.C.
continued to fear him. A.C. also testified that she believed S.W. was cyberstalking her
through her electronic devices.
The adult son and daughter of A.C. and S.W. testified that S.W. was physically
and emotionally abusive to A.C. during the marriage. They testified that S.W. was also
verbally and emotionally abusive to them.
A.C. presented the testimony of an expert on domestic violence. The expert
testified concerning cyberstalking and also that a victim subjected to past abuse may
experience heightened intimidation and fear resulting from actions of the abuser.
S.W. denied having abused A.C. He claimed A.C. was controlling, and he felt like
he was in jail while they were married.
After the presentation of the evidence, the trial court ruled as follows:
“With respect to the testimony of [A.C.], she testified to the physical and
emotional violence in the household while being married to [S.W.]. She testified that this
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is very traumatizing to her. She testified to being in a relationship where [S.W.] tried to
control her, became enraged when she acted on her own.
“Her adult children -- or their adult children corroborated there’s domestic
violence in the household. She has certainly subjective fear. She exhibited that fear in
the courtroom. She testified to being in continued fear. And also her children and
[S.W.’s] children testified and corroborated that fear. The question for the Court, of
course, is that fear reasonable?
“On the one hand she’s had no contact with [S.W.]. The parties are divorced and
have been separated for a long time. Several years. [S.W.] has moved on, has married,
has a new child.
“Yet on the other hand, there’s been no real reconciliation, no admission or any
understanding of any wrongdoing. And [S.W.] remains still alienated from his own
children who are now adults.”
The trial court continued:
“[S.W.] denies any abuse. Basically turns it around that she was the abuser, the
controller of the relationship. Yet there has been a finding, a [prior] court finding against
him on the issue of abuse. Yet also his own adult children directly contradict him, and
the Court does find their testimony relevant and credible.”
Although the trial court found that A.C. had failed to establish by a preponderance
of the evidence that S.W. continued to cyberstalk her, the trial court concluded, based on
the evidence, that A.C. had a continuing fear of S.W. that was reasonable. A.C. testified
that she did not “go anywhere without having somebody with [her] because of the threats
[S.W. has] made.” The trial court found that A.C. “continues to suffer anxiety,
hypervigilance, stress about any continued control, [and] manipulation even from afar.”
Finally, the trial court determined that a continuing restraining order against S.W. would
have only minimal impact on S.W. Based on these findings and conclusions, the trial
court granted a permanent domestic violence restraining order.
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DISCUSSION
I
S.W. contends the trial court misunderstood and misapplied the standard for
determining whether A.C.’s fear was reasonable.
A trial court may renew a domestic violence restraining order if “the
protected party entertains a ‘reasonable apprehension’ of future abuse.” (Ritchie, supra,
115 Cal.App.4th at p. 1290.) No imminent or present danger is required. (Lister v.
Bowen, supra, 215 Cal.App.4th at p. 332.)
S.W. argues the trial court erred in its analysis of the initial protective order and
any changed circumstances. These arguments, however, are unfocused and broach other
issues not included in the heading. We will limit our analysis to the argument made in
the heading, which states: “Trial court abused its discretion by misapplying criteria of
the appropriate legal standard in measuring ‘reasonableness.’ ” (See Cal. Rules of Court,
rule 8.204(a)(1)(B) [requiring appellant to state each point in heading summarizing
point]; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 (Pizarro) [issues limited to
those included in headings].)
We turn first to the trial court’s reliance on the initial domestic violence
restraining order issued in 2011.
“In evaluating whether the requesting party has a reasonable apprehension of
future abuse, ‘the existence of the initial order certainly is relevant and the underlying
findings and facts supporting that order often will be enough in themselves to provide the
necessary proof to satisfy that test.’ (Ritchie, supra, 115 Cal.App.4th at p. 1291.) While
the trial court may look behind the initial order itself to the evidence and findings on
which the order was based in appraising the risk of future abuse, the restrained party is
not permitted ‘to challenge the truth of the evidence and findings underlying the initial
order.’ (Id. at p. 1290.)” (Rybolt, supra, 20 Cal.App.5th at p. 874.)
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The trial court noted in its ruling that S.W. denied any responsibility for abuse.
S.W. argues this was an impermissible reason for granting the domestic violence
restraining order because the record does not include any findings related to the 2011
domestic violence protective order. Therefore, he argues, he can continue to argue there
was no wrongdoing before the 2011 order. This argument fails because an appellant may
not argue an absence of evidence in the record when the record is incomplete. S.W. fails
to direct us to evidence presented in the 2011 hearing. We therefore presume a complete
record of the 2011 proceedings would include evidence of S.W.’s abuse and A.C.’s
reasonable fear of S.W. (See Hernandez v. California Hospital Medical Center (2000)
78 Cal.App.4th 498, 502 [appellant bears the burden of producing an adequate record on
appeal].)
In the subheading relating to “The Initial Protective Order,” S.W. makes
unfocused arguments not related to the 2011 domestic violence restraining order. We
need not consider those arguments. (See Pizarro, supra, 10 Cal.App.5th at p. 179.)
S.W. also argues the trial court failed to properly consider the changes in
circumstances since the prior domestic violence restraining orders. In making this
contention, S.W. construes evidence in his own favor rather than in the light most
favorable to the trial court’s ruling, arguing that the break-up was hard on him, he had left
the door open for reconciliation, and he had no animus towards A.C. or the children.
S.W.’s appellate contention fails because he presents the evidence in the light most
favorable to himself, a view the trial court declined to adopt. An appellate contention
based on an improper view of the facts is unpersuasive. (Thompson v. Miller (2003)
112 Cal.App.4th 327, 330.)
II
S.W. contends the domestic violence restraining order must be reversed because it
is not supported by substantial evidence. He claims A.C. failed to show she had a
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genuine and reasonable fear of future abuse and A.C.’s allegations of cyberstalking did
not constitute abuse under the Domestic Violence Protection Act.
“When reviewing a trial court’s factual findings for substantial evidence we accept
as true all evidence tending to establish the correctness of the trial court’s findings,
resolving every conflict in the evidence in favor of the judgment. [Citation.] ‘Under the
substantial evidence test, the pertinent inquiry is whether substantial evidence supports
the court’s finding -- not whether a contrary finding might have been made.’ [Citation.]”
(In re Marriage of Ankola (2020) 53 Cal.App.5th 369, 380.)
In arguing A.C. failed to show she had a genuine and reasonable fear, S.W.
attempts to attack A.C.’s credibility and minimize his own conduct. He does so by
highlighting what he asserts are contradictions in A.C.’s testimony. For example, he cites
A.C.’s testimony that, during the marriage, S.W. shattered a crystal bowl by hitting A.C.
with it. However, A.C. did not note this incident in her 2011 application for a domestic
violence restraining order. He claims it was “conspicuously missing” from the
application. Yet the trial court credited A.C.’s testimony. S.W.’s argument fails because
credibility determinations are the province of the trial court, and we will accept those
determinations unless the witness’s testimony is physically impossible or inherently
improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) S.W. has made no such
showing here. An appeal is not a second chance to try a case. (See In re Marriage of
Balcof (2006) 141 Cal.App.4th 1509, 1531 [the appellate court is not a second trier of
fact].)
S.W.’s attempt to minimize his own conduct is also unavailing. He claims his
abusive acts were reactions to a painful divorce in a stressful environment that he likened
to being in jail. But the trial court did not credit S.W.’s version of the facts.
S.W. also claims A.C. failed to produce evidence of threats against her. In her
testimony, A.C. related she did not “go anywhere without having somebody with [her]
because of the threats [S.W. has] made.” Contrary to S.W.’s claim, this statement is,
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itself, evidence that S.W. made threats, even if it was unspecific. Furthermore, S.W.
provides no authority or argument that a domestic violence restraining order may not be
issued without evidence of threats. (See McComber v. Wells (1999) 72 Cal.App.4th 512,
522 [failure to cite authority forfeits point].
Additionally, S.W. asserts A.C.’s allegations of cyberstalking do not constitute
abuse under the Domestic Violence Abuse Act. This assertion is not on point because the
trial court did not conclude the allegations constituted abuse. Instead, it found A.C. had
failed to establish that S.W. was cyberstalking her. Recognizing this finding, S.W. states:
“Since the court made a finding that [S.W.] was not the ‘abuser’ within section 6211,
[A.C.] was statutorily precluded from a remedy under the DVPA on this ground also.”
But the trial court did not find that S.W. never committed abuse; it merely found that
A.C. did not establish cyberstalking. A.C. and her children all testified to abuse
committed by S.W., testimony that the trial court found credible. Moreover, section 6345
expressly authorized the trial court, in its discretion, to issue a permanent restraining
order even in the absence of any further abuse since the issuance of the original order.
III
S.W. contends the trial court abused its discretion by making the domestic
violence restraining order permanent.
As we have explained, section 6345 provides that a trial court may renew a
domestic violence restraining order “upon the request of a party, either for five years or
permanently, without a showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the court either on
written stipulation filed with the court or on the motion of a party.” (§ 6345, subd. (a).)
A.C. requested a domestic violence restraining order for either five years or permanently.
The trial court elected to make the order permanent. As noted, we review the trial court’s
decision for abuse of discretion only. (Rybolt, supra, 20 Cal.App.5th at p. 874.)
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S.W. continues to claim he never committed domestic violence against A.C. and
accuses A.C. of abusing him. But there is overwhelming evidence to the contrary, not
only from A.C. but also from the adult children, who testified that S.W. committed abuse
against all of them. Although S.W. has a right to assert innocence, and his ongoing
assertion should not be a basis, by itself, to impose a permanent restraining order, the trial
court did not abuse its discretion in considering the totality of the circumstances.
The trial court found that A.C. continues to experience reasonable fear of S.W.
According to the trial court, A.C. “continues to suffer anxiety, hypervigilance, stress
about any continued control, [and] manipulation even from afar.” S.W. has not
established, based on the totality of the record, that the trial court abused its discretion in
making this finding.
Although the trial court issued a “permanent” order, section 6345 specifies that it
is nevertheless subject to termination or modification by further order of the court. S.W.
has not established reversible abuse of discretion or undue prejudice.
DISPOSITION
The domestic violence restraining order is affirmed. A.C. is awarded her costs on
appeal. (Cal. Rules of Court, rule 8.278(a).)
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
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