Connell v. Connell CA2/6 ( 2023 )

Filed 7/17/23 Connell v. Connell CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MAYA CONNELL, 2d Civ. No. B322982
(Super. Ct. No. 21FL00943)
Plaintiff and Respondent, (Santa Barbara County)
v.
AARON CONNELL,
Defendant and Appellant.
Appellant Aaron Connell appeals an ex parte order
requiring supervision during visits with his son. The supervision
requirements were initially imposed as part of a restraining order
issued under the Domestic Violence Prevention Act (DVPA).
(Fam. Code, §§ 6200, 6300.) We conclude the trial court did not
abuse its discretion when it issued the order and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Aaron and Maya1 divorced in 2018. Their two children
lived with Maya but saw Aaron on occasion. Maya obtained a
We use the first names of the parties for clarity, intending
1
no disrespect.
domestic violence restraining order against Aaron in 2021
following an incident between him and their 17-year-old daughter
(restraining order). The restraining order prohibited contact with
his daughter and restricted him to monthly supervised visits with
their nine-year-old son, A.C. It allowed unsupervised visits with
A.C. to resume if, among other things, Aaron joined an alcohol
monitoring program and documented his compliance.
Aaron demanded an unsupervised visit with A.C. in August
of 2022. Maya requested ex parte orders keeping the original
supervision requirements in effect. She expressed concern about
Aaron’s mental health and requested the court order him to
provide a verifiable physical address before allowing
unsupervised visits with A.C. Maya further alleged Aaron had
not completed his 30-day alcohol monitoring program.
Maya and her counsel appeared at the ex parte hearing
remotely via Zoom. The trial court granted her requests and
issued an “Order After Ex Parte Application for Supervised
Visitation” (ex parte order). It confirmed the original restraining
order remained “in full force and effect.” Aaron received notice of
the hearing but did not attend in person or remotely. He
appealed the order.2
2 The DVPA contains no section governing appeals of
domestic violence restraining orders. However, we treat the
restraining order and ex parte order as a final judgment and
order following judgment, respectively, for the purposes of
appealability. (Code Civ. Proc., § 904.1, subd. (a)(1) & (2); see,
e.g., Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378
[custody order entered after contested hearing was a final
judgment because it decided the issues raised in the complaint;
later order denying request to modify appealable as an order
made after judgment].)
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DISCUSSION
Aaron states he is homeless. He challenges the
constitutionality of an order conditioning his unsupervised
visitation with A.C. on providing a verifiable physical address.
He also contends the trial court excluded him from the ex parte
hearing by failing to provide him with “appropriate
accommodations” for his cognitive disabilities. We find nothing
in the record showing Aaron raised these issues below. He did
not oppose Maya’s application despite receiving notice. New
theories on appeal are generally forfeited. (See D.Z. v. L.B.
(2022) 79 Cal.App.5th 625, 632 [“California courts recognize that
claims alleging violations of due process rights can be forfeited by
failing to raise them in the trial court”].) The court may, in its
discretion, hear new legal arguments “‘determinable from facts
which not only are uncontroverted in the record, but which could
not be altered by the presentation of additional evidence.’” (In re
Marriage of Priem (2013) 214 Cal.App.4th 505, 510-511.) These
conditions are not present. We dispose of the arguments on this
basis but would also reject them on the merits.
Aaron contends the order’s physical address requirement
criminalizes his homelessness. He likens it to the anti-camping
ordinance struck down in Martin v. City of Boise (9th Cir. 2019)
920 F.3d 584. The argument does not persuade us. DVPA
confers on the trial court “a discretion designed to be exercised
liberally, at least more liberally than a trial court’s discretion to
restrain civil harassment generally.” (Nakamura v. Parker
(2007) 156 Cal.App.4th 327, 334.) We review the granting or
renewing of a domestic violence restraining order for the abuse of
discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th
1483, 1495; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)
“To the extent that we are called upon to review the trial court’s
factual findings, we apply a substantial evidence standard of
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review.” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)
We find no abuse of discretion. Requiring a restrained party to
provide a verifiable address before visiting with a minor
protected party was a reasonable condition under the
circumstances. Maya offered unrebutted evidence of Aaron’s
ongoing struggles with alcoholism and his mental health.
The analogy to Martin v. City of Boise, supra, 920 F.3d 584,
is factually tenuous as well. Aaron’s inability to provide a
verifiable physical address appears to be a consequence of living
“off the grid” in the Trinity County wilderness. He implies his
exile is forced, like the plaintiffs in Martin whose poverty drove
them to sleep on city sidewalks. Aaron makes no such showing.
Aaron states the trial court failed to accommodate his
disabilities, which include major depressive disorder, impaired
executive functioning, and cognitive impairment. He does not
explain how the court failed to accommodate him. Nor does he
explain why he could not appear remotely (as did Maya and her
counsel) or oppose the order in writing.3
Lastly, any error was harmless. Aaron asserts he “fulfilled
all of the [restraining order’s] requirements and should have had
unsupervised visits with [A.C].” We find no evidence of his
compliance in the record. The attestations and exhibits
submitted with Maya’s ex parte application provide substantial
evidence to support a contrary finding. This means the
supervision requirements would have remained in effect
regardless of whether Aaron provided a verifiable physical
3 The record confirms Aaron has used the trial court’s
electronic case filing system to submit documents on his own
behalf before and after this date, including a request to find
Maya in contempt of court only two days before the ex parte
hearing.
4
address or appeared at the hearing. (Code Civ. Proc., § 475; see
Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570 [trial
court error harmless if “it is not reasonably probable defendant
would have obtained a more favorable result in its absence”].)
DISPOSITION
The ex parte order is affirmed. Respondent shall recover
her costs on appeal.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P.J.
BALTODANO, J.
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Stephen Foley, Commissioner
Superior Court County of Santa Barbara
______________________________
Aaron Connell, in pro per, for Defendant and Appellant.
Maya Connell, in pro per, for Plaintiff and Respondent.
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