Marriage of Godfrey CA4/1 ( 2024 )

Filed 10/29/24 Marriage of Godfrey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 DON GODFREY
and AMAL BOUTROS GODFREY.
D082526
DON GODFREY,
Respondent, (Super. Ct. No. D563821)
v.
AMAL BOUTROS GODFREY,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Leah Boucek, Commissioner. Affirmed.
Amal Boutros Godfrey, in pro. per., for Appellant.
No appearance for Respondent.
A few years after Amal Boutros Godfrey (Amal) and Don R. Godfrey
(Don) divorced, Don obtained a temporary restraining order (TRO) against
Amal. After an evidentiary hearing, the family court granted Don a two-year
domestic violence restraining order (DVRO). Amal contends on appeal that:
(1) Don was not residing at the address he claimed to be living at when he
sought the TRO in December 2022; (2) Don’s claims were “frivolous” and did
not meet the legal standards for a DVRO; (3) the court should have
considered video evidence that Amal did not commit “breaking and entering”
as Don alleged; and (4) the court erred by not considering the undue burden a
DVRO would place on Amal in the care of her adult son, A.G.
We conclude that Don’s address at the time he sought the TRO is
irrelevant to the validity of the DVRO. We further conclude that the family
court had a sufficient basis for finding that Amal was harassing Don and
disturbing his peace. To the extent Amal requested that the court compel
Don to produce a video for admission into evidence, we conclude any
purported error by the court in failing to compel discovery and admit the
video would be harmless. Lastly, we conclude that the court properly
considered the burden a DVRO would impose on Amal in caring for her son,
and that the court did not abuse its discretion in granting a DVRO anyway.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Amal and Don were married for nearly 25 years when Don filed for
divorce. After the divorce was finalized in 2019 and the court ordered their
shared dwelling sold, Don moved into a rented home in Spring Valley,
California, with their two adult sons. One of them, A.G., was 24 years old at
the time of the DVRO hearing in April 2023. A.G. was born with a congenital
heart disease, struggles with depression, and has been hospitalized in the
past.
Don testified that he had been living in the rented Spring Valley house
for a few years by the time of the evidentiary hearing, and though he lived
2
elsewhere temporarily, he moved back in October 2022. Don also subleased a
room in the house to a married couple he knew from work.
Leading up to December 2022, Amal was a frequent visitor at the
house. Because A.G. did not have a driver’s license, Amal often took him to
doctor’s appointments and to run errands. According to Amal, when Don was
at home, she generally stayed in her car and did not go inside. Don and his
subtenants agreed that in the beginning, Amal would only park in the
driveway and wait outside for A.G. to come out. At some point, however,
Amal started going inside the house on a daily basis and often stayed all day.
Amal said that Don was not living at the house when she was there because
when she came to the house “several times,” she saw that his room was
empty. She said she only entered the house “because nobody else” besides
the subtenants and her sons were living there.
During this time, Amal called or talked to A.G. “20, 30 times a day” to
“make sure he takes his medication [and to] make sure he eats.” She worried
about A.G. often, and sometimes called A.G.’s brother up to “50, 100 time[s]”
to ask him to check on A.G. According to Amal, when A.G. sometimes did not
come out of the house on his own, she would knock on A.G.’s window and door
“several times” and enter the house after waiting half an hour to take him to
his appointments. Don said that sometimes Amal would “bang on the door
for half an hour [and] scream and holler at [A.G.]” until he let her inside.
Don also said that at one point, Amal took A.G.’s keys and let herself in.
Whenever Don saw her at the house he asked her to leave or at least move
out of the driveway, but she refused.
Don’s subtenants also had conflict with Amal because Amal believed
they were taking A.G.’s money, food, and personal items. One day she went
into the house and confronted them about taking A.G.’s items. The
3
subtenants denied using his belongings, but Amal said they continued to do
so. She also accused the subtenants of locking A.G. out of the house and
keeping the house “freezing” cold. According to one of the subtenants, when
Amal was around she would slam doors, make a lot of noise, act “very
aggressive,” and lock them out of the house. When the subtenants told Amal
to leave and she refused, they called Don and the police to the house. And
when Don asked her to leave, Amal told him she “would leave when [A.G.] is
doing okay.”
Don and his subtenants called the police multiple times to get Amal to
leave, but Don said officers told them Amal had a right to visit A.G. In
December 2022, a couple days before Don requested the TRO, Amal and A.G.
were served with eviction notices at the house and told to vacate the
premises. The following day, Amal went back to the house and called A.G. “a
hundred times, waiting for hours and knocking on the door,” then knocking
on his window. According to Amal, A.G. eventually let her in, and when she
walked into the home, one of the subtenants was taking a video of her and
telling A.G. not to open the door. The subtenants asserted that the video
showed Amal opening the door with her own keys, even though she never
lived at the house and had no permission to enter. After Amal went inside,
she gave A.G. medication and took him out for a drive. When she came back
and tried to enter the house, she realized that Don had changed the locks
while they were out.
The next day, Don applied for a TRO. He accused Amal of “breaking
and entering,” among other things. A.G. went back to live at the house after
4
he spent some time hospitalized, but Don’s subtenants decided to move out
around January or February 2023.
After an evidentiary hearing in April 2023 in which both parties
appeared without counsel, the family court granted Don a two-year DVRO.
The court found that Amal was frequently at and inside Don’s residence
uninvited, and even if A.G. allowed her inside, she remained in the residence
all day without permission. The court further credited testimony that Amal
locked the subtenants out of the house when she was inside, and that she
also let herself into the home after somehow obtaining a key.
The court stated that it understood and appreciated Amal’s “concern for
her son’s physical and mental health,” and that Amal was “not capable right
now of having [A.G.] live with [her].” It also observed it was “understandable
that [Amal] want[s] to take him to the doctor or shopping or other outings.”
The court nonetheless found that taking care of A.G. did not require Amal to
be inside the residence, and that in the past, it “was fine” for her to stay
outside and allow A.G. to come out.
The court also noted that Amal herself testified she sometimes called
her adult sons up to 100 times per day, knocked on the window and door of
the house until she was let in, and was “inside the residence often enough
and long enough” to know what was in the bedrooms and what food the
subtenants were eating. The court found that Amal’s refusal to leave when
asked led Don and the subtenants to call the police numerous times for
assistance. The court further noted that Don had to be called home from
work to deal with Amal being inside the house. In granting the DVRO, the
5
court found credible Don’s testimony that he “felt verbally abused and this
behavior disturbed his peace[.]”
The written DVRO ordered Amal to have no contact with Don. It also
required her to stay at least 100 yards away from Don and his home,
workplace, and vehicle. The DVRO granted use, control, and possession of
the Spring Valley property to Don.
DISCUSSION
Amal contends that: (1) Don was not residing at the address he claimed
to be living at when he sought the December 2022 TRO; (2) Don’s claims in
support of the April 2023 DVRO did not meet legal standards; (3) the family
court should have considered video evidence that the subtenants and Don
had in their possession; and (4) the court failed to consider the undue burden
a DVRO would place on Amal in caring for A.G. As discussed below, we
disagree with each of these contentions.
We review a grant of injunctive relief for abuse of discretion.
(Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 [abuse-of-discretion
standard applies to a grant or denial of a DVRO].) To the extent we are
called upon to review the trial court’s factual findings, we apply a substantial
evidence standard of review. (In re Marriage of G. (2017) 11 Cal.App.5th 773,
780.) On appeal, we do not reweigh the evidence or second guess the
credibility of witnesses. (In re Marriage of Balcof (2006) 141 Cal.App.4th
1509, 1531 (Balcof).) In determining whether substantial evidence supports
the court’s order, we view the evidence in the light most favorable to the
order. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151 (Drake).)
I
Turning to Amal’s first argument, it is unclear why Don’s address at
the time he sought the December 2022 TRO is relevant to the validity of the
6
DVRO. Amal claims Don did not reside at the Spring Valley house between
October and December 2022. Amal has only appealed from the DVRO issued
April 17, 2023, and the issue of whether the court erred in granting
December 2022 TRO is not properly before us. Furthermore, the only time
Don mentioned the Spring Valley address in his request for a TRO was to list
it as a place he could receive court papers. Don sought a temporary stay-
away order that included himself, his “home,” his workplace, and his vehicle,
but he did not give his home address or request exclusive use, possession, and
control of any property. Don also did not contend at the DVRO hearing that
Amal violated the TRO by coming to the house. Don’s address in December
2022 thus had little relevance to the granting of either the TRO or the DVRO.
Although the DVRO does include the Spring Valley address in its
“Control of Property” provision and grants exclusive use, control, and
possession of the property to Don, Amal presents no argument as to why the
court erred in giving Don control of the property in the DVRO. Amal does not
appear to dispute that Don was living there at the time the DVRO issued in
April 2023, nor does she claim she has any legal interest in the property.
Amal herself confirmed that she never lived there.
To the extent Amal contends Don was dishonest by testifying during
the DVRO hearing that he moved back into the house in October 2022, we do
not second guess the credibility of witnesses. (Balcof, supra, 141 Cal.App.4th
at p. 1531.) The family court explicitly found Don’s testimony credible, and
we have no reason to disturb its determination, especially considering that
fact’s limited relevance. (See Longshore v. Desmond (In re Estate of
Desmond) (1963) 223 Cal.App.2d 211, 215 [“It is the exclusive function of the
trial court to weight the evidence, resolve conflicts and determine the
credibility of witnesses [citation] and if its interpretation . . . is reasonable, a
7
reviewing court will not disturb the trial court’s determination in the matter
unless an abuse of discretion is clearly shown [citation].”].) Accordingly, we
find no grounds for reversal in Amal’s argument that Don was not residing at
the Spring Valley house in December 2022.
II
Amal next argues that Don’s assertions in support of the DVRO were
“frivolous” and insufficient to justify granting a DVRO. When viewing the
evidence in the light most favorable to the order, as we must, we disagree.
(See Drake, supra, 53 Cal.App.4th at p. 1151.)
“Abuse” in the domestic violence context may, under Family Code1
section 6203, subdivision (a)(4), include engaging “in any behavior that has
been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(4).)
Those behaviors include “harassing, . . . contacting, either directly or
indirectly, . . . coming within a specified distance of, or disturbing the peace of
the other party[.]” (§ 6320, subd. (a).) Abuse need not be violent or physical
to warrant the issuance or renewal of a DVRO. (See In re Marriage of
Nadkarni (2009) 173 Cal.App.4th 1483, 1495–1496 (Nadkarni); § 6320,
subd. (a).) “[S]ection 6320 broadly provides that ‘disturbing the peace of the
other party’ constitutes abuse . . . .” (Nadkarni, at p. 1497.)
“[T]he plain meaning of the phrase ‘disturbing the peace of the other
party’ in section 6320 may be properly understood as conduct that destroys
the mental or emotional calm of the other party.” (Nadkarni, supra, 173
Cal.App.4th at p. 1497.) To obtain a DVRO, a protected party has the burden
to show by a preponderance of the evidence that a reasonable person would
1 Further undesignated statutory references are to the Family Code.
8
have a “ ‘reasonable apprehension’ ” of future abuse. (Ritchie v. Konrad
(2004) 115 Cal.App.4th 1275, 1290.)
Other than to argue her own version of events, Amal has failed to
discuss the evidence supporting the trial court’s order. Don testified that he
sought a DVRO only after Amal began “coming to the house constantly, on a
day-to-day basis.” She sometimes stayed all day, and when Don or one of his
subtenants asked her to leave, she refused. Officers were frequently called to
the house to resolve conflicts. According to Amal’s own testimony, she
persistently knocked on the window and door of the house until she was let
in. As the family court observed, she was “inside the residence often enough
and long enough” to know what was kept in the bedrooms and what food the
tenants were eating. Don was often called at work or had to leave work to go
back to the house to deal with Amal’s intrusions. Amal even caused conflict
with Don’s subtenants to the point that they moved out of the house.
Moreover, Don testified that Amal verbally abused him and badgered him.
This evidence provides a sufficient basis for the trial court’s finding that
Amal harassed Don and disturbed his peace, and that Don had a reasonable
apprehension that Amal would continue disturbing his peace, which amounts
to abuse for DVRO purposes. (See Nadkarni, supra, 173 Cal.App.4th at
pp. 1495–1497; § 6320, subd. (a).) Accordingly, we affirm the court’s finding
of abuse.
III
Amal argues the family court committed reversible error because it
should have considered video evidence that would have shown she did not
commit “breaking and entering,” as Don alleged. Again, we disagree.
We use an abuse of discretion standard to review the trial court’s
rulings determining the relevance and admissibility of evidence. (People v.
9
Green (1980) 27 Cal.3d 1, 24–25; People v. Garcia (2001) 89 Cal.App.4th 1321,
1334.) The court abuses its discretion in deciding whether to admit evidence
only when it acts in an “arbitrary, capricious, or patently absurd manner that
result[s] in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20
Cal.4th 1, 9–10.) Only relevant evidence is admissible (Evid. Code, § 350),
and “[t]he trial court has broad discretion . . . in determining the relevance of
evidence” (People v. Horning (2004) 34 Cal.4th 871, 900).
As an initial matter, because the video was not marked as an exhibit
and is not part of the record, we can only speculate about what it would have
shown. Amal herself has never seen the video, so we cannot simply assume
that it would show what she asserts it would show. Moreover, to the extent
Amal is arguing she should have been given access to the video, as she had
requested at various points during the evidentiary hearing, she cites no
authority to support her argument. Until the recent enactment of section
6309, which went into effect after the hearing and lays out parameters for
discovery in future domestic violence proceedings, it was unclear what
discovery, if any, parties in such proceedings were entitled to. (See Stats.
2023, ch. 503, § 1, eff. Jan. 1, 2024.) Amal has not provided us with any legal
argument as to why she had a right to discovery of the video before the
enactment of section 6309.
But even assuming Amal made a proper request to receive and admit
the video into evidence, and further assuming it was error for the court not to
admit the video, any purported error would be harmless. Amal claims the
video would have shown A.G. letting her into the house on the occasion that
Don and his subtenant both accused her of using a set of keys to enter
without permission. Amal further argues the video would have undermined
Don’s and his subtenant’s credibility by revealing that they lied about what
10
the video shows. But the court did not base its decision solely on that
incident, nor did it make any finding that Amal actually committed “breaking
and entering.” The court determined that Amal’s harassing behavior
consisted of her frequent and intrusive presence at and inside Don’s residence
over a period of time. The court cited numerous examples outside of the
purportedly recorded incident to support its decision to grant the DVRO,
including examples drawn from Amal’s own testimony. We therefore
conclude that to the extent there was any error on the court’s part stemming
from the video being absent from the record, Amal suffered no actual
prejudice, and we decline to reverse on that ground. (See Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 580 [“No form of civil trial error justifies
reversal and retrial, with its attendant expense and possible loss of
witnesses, where in light of the entire record, there was no actual prejudice to
the appealing party.”].)
IV
Lastly, Amal contends that the family court failed to consider the
undue burden a DVRO would place on her in caring for A.G. Not only does
Amal fail to cite any authority regarding what role “undue burden” plays in
whether to grant a DVRO, the record shows that the court did consider
Amal’s ability to care for A.G. The court expressly stated that it understood
and appreciated Amal’s “concern for her son’s physical and mental health,”
and that Amal was “not capable right now of having [A.G.] live with [her].” It
also observed that it was “understandable that [Amal] want[s] to take him to
the doctor or shopping or other outings.” The court therefore clearly took into
account the hardship a DVRO would impose on Amal and A.G.
To the extent Amal claims the court abused its discretion in deciding to
grant the DVRO despite that hardship, we disagree. According to Don, before
11
Amal started entering the house and staying there daily, A.G. was doing well,
going to school, and working. Don’s subtenant testified that he and his wife
used to take A.G. to the gym and that A.G. seemed “normal,” but that his
mental health deteriorated when Amal started coming to the house more
often. Amal even testified that there were times A.G. refused to come to the
door or answer his phone when she called unless she called repeatedly or
banged on the door. Moreover, the DVRO does not prevent Amal from
visiting with A.G. at locations other than within 100 yards of Don and his
home, workplace, and vehicle. In these circumstances, we cannot conclude
that the court’s act of discretion in granting Don a DVRO—despite the impact
it would have on Amal’s ability to visit A.G.—was “arbitrary, capricious or
patently absurd.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003)
105 Cal.App.4th 1414, 1420.)
DISPOSITION
The April 17, 2023 DVRO is affirmed.
BUCHANAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
12