D.R. v. A.R. CA4/1

Filed 1/31/22 D.R. v. A.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
D.R., D078079
Plaintiff and Appellant,
v. (Super. Ct. No. 20FDV00550C)
A.R.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Albert T. Harutunian III, Judge. Affirmed.
SMJ Legal Services and Sherri-Marie St. Cyr, for Plaintiff and
Appellant.
Law Offices of Thomas D. Ferreira and Thomas D. Ferreira, for
Defendant and Respondent.
Appellant D.R. (Mother) appeals from an order denying her request for
a domestic violence restraining order against her former spouse A.R.
(Father). (Fam. Code, § 6300.)1 During a custodial exchange of their five-
1 Unless otherwise indicated, statutory citations are to the Family Code.
year-old son, Mother claimed that Father approached her aggressively,
tapped and then banged on her car window, and demanded to talk to her.
After the court issued a temporary restraining order, Mother complained that
Father violated the order by forcing “face-to-face” exchanges of the child and
sending his ex-wife and a nanny to Mother’s house to exchange the child
rather than exchanging him at his preschool. Following an evidentiary
hearing, the trial court concluded that Mother failed to meet her burden of
proof and denied her request for a permanent restraining order. Mother
appeals, contending the court erred in denying her request. We reject
Mother’s contentions and affirm the court’s order denying her request for a
permanent restraining order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2014 and divorced in 2017. They
share custody of their son, who was born in 2015. Pursuant to an order
entered in Orange County Superior Court in November 2019, the parents
were spending two days during the week and every other weekend with the
child. The custody order provided that exchanges of the child would occur
with one parent dropping the child off at school and the other parent picking
the child up from school.2
On February 11, 2020, Mother filed a request for a domestic violence
restraining order, stating that the most recent incident of abuse occurred on
January 31, 2020, at a custodial exchange following a court hearing in
2 The reference to exchanges at “school” appears to have been a reference
to the child’s preschool or daycare facility.
2
Orange County.3 She did not identify any prior alleged abuse. Mother
described the January 2020 incident, stating that Father had picked up their
child from school in San Diego and brought him to Orange County, “knowing
he would not make it back to San Diego” for the custodial exchange that was
scheduled to occur at 5:30 p.m. at the child’s school. Mother stated that
Father “baited [her] to the deserted portion of [a] parking lot to exchange
[their] son. He was waiting for [her] outside his car [and] was quickly coming
towards [her] car when [she] parked.” Mother further described the alleged
incident as follows: Father “came towards me cursing [and] demanding I talk
to him. He got in my face [and] I wasn’t sure if he was going to hit me, so I
started walking backwards to my car [and] told him nerves are on edge since
court today [and] we should speak another time. I told him I would wait
[until] 5:30 (the exchange of our son time since it was my Friday, per our
custody agreement) [and] got back in my car. This made him more mad [and]
he started tapping on my window so hard I thought he would break it. He
was demanding I roll my window down [and] I did slightly to try to get him to
quit hitting my window. This made him even more mad as he demanded I
get out of the car or roll my window all the way down. I told him to stop
3 Father states this court should disregard the pleadings and
declarations contained in the clerk’s transcript—and Mother’s citations
thereto—and limit our consideration to the parties’ testimony at the hearing.
Father claims, without citation, that “[t]he trial court did not indicate that it
had considered the parties’ pleadings and declarations, nor had it considered
any evidence other than the . . . exhibits it received.” However, the trial court
informed the parties it would “rely on whatever evidence is presented today”
“in terms of testimony,” and notified the parties it was “familiar with the file.”
(See § 6301, subd. (c) [trial court must “consider the totality of the
circumstances in determining whether to grant or deny a petition for relief”].)
Both parties agreed to this approach. Because it appears the trial court did
not rely exclusively on testimony, we will consider the parties’ written
declarations.
3
[and] was searching for my phone to call the police. Because I didn’t follow
his demands he said he was taking our son. He then went to his car [and]
left.” Mother stated she “called the police [and Father] returned [their] son.”
She further stated: Father “now refuses to return our son to school [and]
forces exchange[s] with him outside the school since [January 31, 2020]. I do
not feel safe being around [Father] until things calm down. Our custody case
is on [February 14, 2020].”
The court issued a temporary restraining order and set the matter for a
hearing on February 28. The temporary restraining order directed Father
not to “do the following things” to Mother: “[h]arass, attack, . . . [or] disturb
the peace,” “[c]ontact, either directly or indirectly, in any way, including but
not limited to, by telephone, mail, e-mail or other electronic means,” or
“[t]ake any action, directly or through others, to obtain [her] address[] or
location[].” The order also required Father to stay 100 yards away from
Mother, her home, job and vehicle, but carved out an exception for “[b]rief
and peaceful contact with [Mother], and peaceful contact with children . . . as
required for court-ordered visitation of children . . . .”
Father filed a response to Mother’s request for a restraining order. He
explained his version of the incident that occurred in the parking lot, stating
that he and Mother had a court hearing in Orange County earlier that
afternoon. After court, he “picked up [his] son and sent a text to [Mother]
explaining that [he] would be [two] hours late to [their] 5:30[ p.m.] San Diego
exchange because [they] were in [Orange County] for the hearing.” When
they instead agreed to meet in an Orange County parking lot, he approached
Mother’s vehicle and asked if they could speak “because [their] son was still
[asleep]” in the back of his vehicle and in the past Mother declined to speak
while the child was present. Father explained that earlier in court, the judge
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had suggested they “try to resolve [their] issues” regarding the shared
custody of their son and he thought this was a good opportunity to talk.
Mother refused to speak with him because it was several minutes before their
scheduled exchange time. She rolled her window up as he began to speak.
He knocked on the window and told her he would leave. After she rolled the
window down again, he said he was there to accommodate her, and that they
could exchange in San Diego per their custody agreement “if [she was] going
to be rude.” When she said she would call the police, he replied “[c]all them.”
He left, got gas, and then returned and exchanged their son. The police
arrived and Mother gave a statement. Father stated that once the police
arrived, Mother exited her vehicle and started “crying uncontrollably.”
Father later approached the officer and offered to cooperate. In his response
to the restraining order request, Father explained that he believed Mother
was seeking a restraining order “for the sole purpose of attempting to
influence the [j]udge to limit [his] time with [their] son.” He denied coming
toward Mother “cursing and demanding to talk”; denied getting “into her
face”; denied “bait[ing] her to a deserted portion of [the] parking lot”; and
denied that he was “upset or angry.”
Mother, who had filed the initial restraining order request in propria
persona, retained counsel and filed a supplemental declaration in support of
her restraining order request. She stated that Father “was verbally abusive”
during their marriage after their son was born and “used his physicality to
intimidate [her].” 4 She stated Father would call her “ ‘fat,’ ”
“ ‘unintelligible,’ ” “ ‘stupid,’ ” “ ‘stupid bitch,’ ” and “a ‘back wood’s redneck’ ”
4 Mother did not sign this declaration under penalty of perjury.
However, she testified that the contents of both of her supplemental
declarations were accurate (with one minor exception not relevant to this
appeal).
5
[sic]. She acknowledged that Father never hit her but stated he “would get in
[her] face,” “use his body [to] push [her],” and “raise his hand as if he was
going to hit [her] or push [her] back against a wall.” Their custody agreement
ensured that exchanges of their son were to occur at school in a manner that
did not require contact between the parties, and Mother believed that on
January 31, Father “forced a private exchange” because “he wanted to
intimidate [her] and try to force [her] to agree to his custodial request.” She
stated that Father was yelling and angry at the exchange in the parking lot,
he repeatedly hit her car window and raised his fist, and she was “afraid he
was going to punch [her].” She called the police after he “ran back to his
truck and erratically drove off with [their] son.” She stated that she filed the
request for a restraining order after Father subsequently “force[d] another
face to face exchange on February 6.” She attached to her declaration copies
of text messages she and Father exchanged in 2019 in which they argued
about custodial time, both called the other a “liar,” and Father called Mother
a “crazy psycho” and “savage.”
In a second supplemental declaration filed prior to the evidentiary
hearing, Mother described additional exchanges of the child that she felt were
problematic. One morning in March 2020, while in Father’s care, the child
broke three toes, and Father notified Mother of the incident later that
afternoon by e-mail. After the child’s school notified Mother that it was a
safety issue for the child to attend if he was not “ambulatory,” the parents
attempted exchanges at a police station and using a supervised visitation and
exchange center. Around this time, the child’s school announced it was
restricting attendance due to COVID-19, but the child was permitted to
continue attending for the sole purpose of exchanges. On April 16, Father
arrived at the school to exchange the child at the same time Mother was
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there to drop him off. Mother said she was “trying to avoid any contact” with
Father and she was “freaked out” by his presence. She took the child inside
the school and had a teacher escort the child outside to Father. Mother
acknowledged that Father told her he did not want to do exchanges at the
child’s school because “he felt ‘unsafe’ ” and “did not want to unnecessarily
expose [the child] to COVID-19.” Shortly thereafter, the school notified the
parents they would no longer accommodate “exchange only services.” Mother
claimed that Father forced “face-to-face” exchanges of their son, and sent his
“abusive ex-wife” and a nanny to Mother’s home to exchange the child,
without Mother’s consent. She claimed she was “terrorized” by Father’s
conduct and that his “disregard for the custody order is how he has harassed
and intimidated [her], and how he’s disturb[ed] [her] peace.”
Father denied many of Mother’s allegations and argued that most of
the incidents underlying Mother’s complaints were “related to COVID-19.”
After multiple continuances, the parties appeared in court in June. At
this hearing, Father asked the court if he was able to attend medical
evaluations related to the child’s foot injury. The trial court responded:
“Joint legal custody means that you both have equal rights and
responsibilities to make all decisions affecting the health, welfare, and
education of your child. That means you have equal responsibility and equal
rights to make those decisions. You are to consult with each other. And if
the child is in your custodial time and you need to seek medical care, then
you do so in consultation with the other parent.” Because the court had not
yet received all the filed papers, the parties agreed to continue the hearing on
the restraining order until July.
In July, when the parties appeared for the hearing on the restraining
order request, the trial court judge who had presided over some of the parties’
7
prior proceedings was not available, so they appeared before a different trial
court judge. The judge indicated that, while he was not present for the prior
proceedings, he was “familiar with the file.” And, “in terms of testimony,” the
court stated it would “rely on whatever evidence is presented today.” The
parties agreed to proceed in this manner.
Mother testified to some of the incidents described in her declarations.
Father testified, acknowledging that he met Mother in the parking lot in
January 2020 to exchange the child, and admitted he asked to speak to her
and left to get gas when “she said that she was not going to exit her vehicle
until 5:30 because 5:30 was the exchange time,” and “[he] had three minutes
so [he] went to get gas.” He denied that he “demand[ed]” to talk to her and
denied he “banged with a closed fist on her window demanding that she roll
the window down.” Father acknowledged he sent two people to Mother’s
house to exchange the child and acknowledged he and Mother had other
disagreements involving the exchange of the child. Father suggested that
Mother had filed the restraining order request to “[game] the system and get
an advantage as it relates to custody.”
At the close of Mother’s case, the trial court referred to Father’s
assertion that “the request for the restraining order is really being done to
get an advantage in the custody proceeding.” The court asked the parties to
address whether Mother’s evidence was “sufficient to justify issuance of a
restraining order” “because this is not a case where there’s been an
allegation that an incident—that is prompting seeking the restraining order
is, you know, a physical fight or a threat of bodily harm. And I totally
understand that that’s not the only circumstances that can justify a
restraining order. But I do want you to address the basis that you are relying
8
on and why you believe the evidence that you presented is sufficient to meet
the burden of proof.” 5
Mother argued that a protective order was authorized on a showing of
“past acts or active abuse,”6 and abuse was not limited to incidents of
physical injury or assault, but rather was defined broadly to include several
types of nonviolent conduct. She contended that Father’s conduct constituted
“harassment, contacting [her], either directly or indirectly, to intimidate and
disturb[] [her] peace of mind,” and thus amounted to conduct subject to a
restraining order under section 6320. Mother further argued that Father had
knowingly violated the restraining order by “disturbing the peace” of the
protected party, and such behavior should not be characterized as a de
minimis or technical violation. Mother argued “any violation of the
[temporary restraining order] is in itself an act of abuse and it’s grounds for
the issuance for a permanent restraining order.”
Father argued that Mother’s claims of harassment were insufficient to
justify imposing a restraining order. He argued that he and Mother
disagreed about their respective obligations under the custody agreement and
further disagreed about placing the child in daycare during the COVID-19
pandemic. Father argued he did not want to keep the child at school because
the facility was caring for children of emergency workers, which Father
5 The court later framed the issue, asking Father, “because there’s no
allegation of physical violence here, whether the evidence that [Mother]
presented about allegations of harassment . . . should be viewed by the Court
as sufficient to meet their basic burden of proof.”
6 The reporter’s transcript may contain a typographical error or counsel
perhaps misspoke; section 6300, subdivision (a) authorizes the court to issue
a restraining order based on “reasonable proof of a past act or acts of
abuse”—not “active abuse.” (Italics added.)
9
believed meant “those were high-risk kids at that facility.” Father claimed he
sent people to Mother’s house to exchange the child to minimize the child’s
potential exposure to COVID-19 and to prevent his direct contact with
Mother.
The trial court denied Mother’s request for a restraining order, finding
she had not met her burden of proof. The court addressed Mother’s claims
regarding the alleged violations of the temporary restraining order, as well as
the alleged incident in the parking lot. The court acknowledged that
violating a custody order might constitute abuse or harassment under certain
circumstances, but concluded that the evidence in this case was not sufficient
to support the issuance of a restraining order.
The trial court stated:
“Even accepting [Mother’s] version of the incidents that
occurred, some of which [Father] is disputing. But even
accepting her version of what happened, I don’t believe that
what’s been presented shows anything beyond disputes and
disagreements about what’s a proper way of engaging in
the custody exchanges.
“And even if [Father] is totally wrong in deciding when and
where custody exchanges that he was going to engage in or
have engaged in, that to me is an issue [to be] addressed by
the custody court.
“If . . . we allow restraining orders to be issued every time
one parent says the other parent is intentionally not
complying with the custody order, then every case is going
to—not every case, but many, many cases are going to have
restraining orders, and I don’t think that that’s what the
[L]egislature intended.
“The issue about complying with the custody order, part of
the problem is that the temporary restraining order has a
provision saying that it permits peaceful compliance with
the custody order. And so [Mother] cannot just unilaterally
decide that if [Father] does something, that that’s not
10
peaceful . . . —that she doesn’t want a particular person
involved in an exchange.”
The court found that Father’s behavior of sending other people to
Mother’s home to exchange the child did not constitute harassment in the
context of this case. The court noted Father’s actions might warrant a
modification to the custody order, but the evidence before it was not sufficient
to necessitate a permanent restraining order. The court stated: “If he is
unilaterally violating the custody order left and right, then that may cause
the Court to cut back his custody. I’m not making a determination about
that. I’m determining whether the allegations that he has been engaging in
this conduct that’s against the custody order, if that is sufficient to constitute
grounds for a restraining order. I do not believe it is. I do not believe the
evidence presented shows sufficient evidence to grant the restraining order.”
The court further noted as to Father’s handling of the exchanges, “I think
[Mother] brushes aside the impact of COVID, and I think that that’s not fair
to do.”
Similarly, the court concluded Mother’s allegations regarding the
incident in the parking lot were not sufficient to warrant a restraining order.
The court explained:
“The incident that resulted in [Mother] coming to court to
ask for a restraining order is the incident in the [parking]
lot. I don’t believe that the description that’s been
presented of that incident constitutes abuse justifying a
restraining order. I think it is—because not all name
calling or yelling or accusations or disagreement are
sufficient for a restraining order.
“Again, I think the incident demonstrates a claim that
[Father] was supposed to comply with a custody order, was
supposed to do an exchange, and had his own agenda and
wanted to deal with that, as opposed to just, you know,
exchanging the son and leaving. And I think that’s a
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matter for the custody court to deal with. I don’t think it’s
a demonstration of sufficient abuse to constitute a
preponderance of the evidence in this case.”
Mother appeals the court’s denial of her request for a restraining order.
DISCUSSION
The purpose of the Domestic Violence Prevention Act (DVPA; § 6200 et
seq.) is “to prevent acts of domestic violence, abuse, and sexual abuse and to
provide for a separation of the persons involved in the domestic violence for a
period sufficient to enable these persons to seek a resolution of the causes of
the violence.” (§ 6220.)7 To effectuate this purpose, trial courts may issue a
restraining order based on “reasonable proof of a past act or acts of abuse.”
(§ 6300, subd. (a); In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th
220, 225 (Marriage of Davila).) “The DVPA requires a showing of past abuse
by a preponderance of the evidence.” (Marriage of Davila, supra,
29 Cal.App.5th at p. 226.)
“Abuse is not limited to the actual infliction of physical injury or
assault.” (§ 6203, subd. (b).) Rather, “ ‘abuse’ ” includes causing or
attempting to cause bodily injury (id., subd. (a)(1)), “plac[ing] a person in
reasonable apprehension of imminent serious bodily injury” (id., subd. (a)(3)),
and behavior such as “stalking, threatening, . . . harassing, . . . contacting,
either directly or indirectly, . . . or disturbing the peace of the other party”
(§ 6320, subd. (a); see § 6203, subd. (a)(4)). “ ‘[T]he plain meaning of the
phrase “disturbing the peace of the other party” in section 6320 may be
7 Prior to its amendment in 2014, this provision stated that the statutory
“purposes of [the DVPA] are to prevent the recurrence of acts of violence and
sexual abuse and to provide for a separation of the persons involved . . . .”
(Stats. 1993, ch. 219, § 154 [former § 6220], italics added.) The amendment
deleted the phrase “the recurrence of” and replaced “violence” with “domestic
violence, abuse.” (Stats. 2014, ch. 635, § 3.)
12
properly understood as conduct that destroys the mental or emotional calm of
the other party.’ ” (N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602 (N.T.); see
also § 6320, subd. (c) [amending the statute effective January 1, 2021 to
define “ ‘disturbing the peace of the other party’ ” consistent with this
caselaw].)
Generally, we review a trial court’s denial of a domestic violence
restraining order for abuse of discretion (Marriage of Davila, supra,
29 Cal.App.5th at p. 226), we review a court’s factual findings for substantial
evidence (ibid.), and we review a trial court’s determination of a question of
law de novo (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 560).
Mother argues that there was ample evidence of harassing,
threatening, and abusive conduct to justify issuing a permanent restraining
order. But the question before us is not whether substantial evidence exists
to support a finding of abuse within the meaning of the DVPA. Mother bore
the burden of proof as the moving party seeking a restraining order. Because
the trial court found she failed to meet her burden of proof, “ ‘ “the question
for a reviewing court becomes whether the evidence compels a finding in
favor of the appellant as a matter of law. [Citations.] Specifically, the
question becomes whether the appellant’s evidence was (1) ‘uncontradicted
and unimpeached’ and (2) ‘of such a character and weight as to leave no room
for a judicial determination that it was insufficient to support a finding.’ ” ’ ”
(Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018)
19 Cal.App.5th 258, 270; accord In re S.G. (2021) 71 Cal.App.5th 654, 671
(S.G.) [applying this standard of review to the denial of an analogous
restraining order pursuant to Welf. & Inst. Code, § 213.5].)
Mother has not made the requisite showing to prevail here. The
evidence regarding the parking lot incident was not uncontradicted. The
13
parties’ accounts differed on material points. Viewed in the light most
favorable to the court’s ruling, the evidence shows Mother refused to speak to
Father prior to their scheduled custody exchange, Father attempted to get
Mother to speak with him by tapping on the window to ask her to roll her
window down, Father told Mother she was being rude and left to get gas, and
Father cooperated with the police after he returned and exchanged the child
with Mother. Father denied that he was aggressive or angry during the
exchange. Father also denied his subsequent actions—including sending
third parties to conduct exchanges and picking the child up at school earlier
than Mother expected—were intended to harass Mother or disturb her peace.
Instead, he explained he was concerned about his safety and the child’s
exposure to COVID-19. The court apparently credited Father’s
explanations—concluding that Mother “brushes aside the impact of
COVID”—and we do not reweigh credibility determinations on appeal.
(Bookout v. State of California ex rel. Dept. of Transportation (2010)
186 Cal.App.4th 1478, 1486; see Chase v. Wizmann (2021) 71 Cal.App.5th
244, 257 [“absent an express credibility finding, we must infer the trial court
resolved questions of credibility in a manner that supports its findings and
order”].)
Even assuming Mother’s account of the alleged incidents was largely
accurate, substantial evidence supports the court’s finding that the parties
were involved in a custody dispute that did not rise to the level of abuse
within the meaning of the DVPA. We acknowledge Mother asserted she was
upset by Father’s actions. As the Court of Appeal explained in Curcio v. Pels
(2020) 47 Cal.App.5th 1, 13, however, a trial court is not compelled to issue a
restraining order “based on any act that upsets the petitioning party. The
DVPA was not enacted to address all disputes between former couples, or to
14
create an alternative forum for resolution of every dispute between such
individuals.” Here, the trial court found that “not all name calling or yelling
or accusations or disagreement are sufficient for a restraining order.” The
court further found the evidence failed to show “anything beyond disputes
and disagreements about what’s a proper way of engaging in the custody
exchanges.” We will not reverse the trial court’s decision unless the trial
court “ ‘ “ ‘exceeded the bounds of reason’ or it can ‘fairly be said’ that no
judge would reasonably make the same order under the same
circumstances.” ’ ” (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223.)
“ ‘ “When two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for that of the
trial court.” ’ ” (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.)
Applying these principles to the record here, we cannot say no judge would
reasonably have made the same decision denying Mother’s request for a
restraining order. (See id. at p. 781 [affirming order denying request for
restraining order where trial court’s findings of fact were supported by
substantial evidence and trial court applied proper legal principles]; see also
S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1265-1266 [father’s “badgering”
conduct of mother during custodial dispute did not rise to the level of
harassment or abuse to support the issuance of a restraining order]; K.L. v.
R.H. (2021) 70 Cal.App.5th 965, 981 [offensive name-calling and failing to
show up at custody exchanges demonstrated a lack of ability to communicate
but did not reach the level of disturbing the peace of the party seeking the
restraining order].)
Mother also argues the court applied the wrong legal standard in
denying her request. She makes two arguments to support this claim. First,
Mother argues the DVPA broadly defines “abuse” to include non-violent acts.
15
But the court understood this principle. When asking the parties to address
whether Mother’s evidence was sufficient to warrant the issuance of a
restraining order, the trial court stated it “totally” understood that a
“physical fight or a threat of bodily harm” were not the sole grounds for
issuing a restraining order. The record demonstrates that the court applied
the correct legal standard and understood that abuse is defined broadly
under the DVPA. Second, Mother argues violations of a temporary
restraining order are sufficient to support a permanent restraining order.
Both parties recognize that violations of a temporary restraining order may
support the issuance of a permanent restraining order. (See N.T., supra,
34 Cal.App.5th at pp. 597-598.) Nonetheless, a trial court is not compelled to
issue a restraining order where it concludes, based on the totality of the
evidence, that a restraining order is not warranted. (See § 6300, subd. (a)
[“An order may be issued under this part to restrain any person for the
purpose specified in Section 6220” where the evidence “shows, to the
satisfaction of the court, reasonable proof of a past act or acts of abuse.”],
italics added.) Moreover, in this case there were no findings made that
Father violated the temporary restraining order. To the contrary, the trial
court expressly declined to accept Mother’s claim that Father violated the
temporary restraining order. Instead, the court found that the temporary
restraining order expressly allowed for “[b]rief and peaceful contact” with
Mother for purposes of court-ordered child visitation. There was substantial
evidence to support the court’s conclusion that Father did not violate the
temporary restraining order. Instead, the parties were involved in a custody
dispute and Father’s actions did not rise to the level of abuse within the
meaning of the DVPA.8 We cannot conclude no reasonable judge would have
8 The temporary restraining order did not include (and Mother did not
16
reached the same decision after considering Mother’s claim that Father’s
actions violated the temporary restraining order and disturbed her peace.
(S.G., supra, 71 Cal.App.5th at p. 672 [mother’s testimony regarding father’s
alleged history of domestic violence, “as well as her testimony that [f]ather
violated the 2019 temporary restraining order by parking near her driveway”
was not “ ‘ “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support” ’ the requisite finding—
namely, that a permanent restraining order was necessary to protect
[m]other’s safety.”].) We therefore reject Mother’s contention that the court
misapplied the law in evaluating her claims.
Although the majority of the evidence presented to the trial court
involved the parties’ custody dispute, Mother also testified briefly about two
prior incidents of alleged abuse during the parties’ marriage. As set forth
ante, Mother contended in her first supplemental declaration that Father
“was verbally abusive” during their marriage and “used his physicality to
intimidate [her].” At the evidentiary hearing, Mother briefly described these
two alleged incidents. During the first incident, Mother alleged that Father
was unsatisfied with her responses to his questions and he apparently
request) any orders regarding custody and visitation. The custody and
visitation order was issued by the Orange County Superior Court, and the
parties were permitted to have brief and peaceful contact with one another
under the temporary restraining order to exercise their court-ordered custody
and visitation.
17
positioned himself “over” her while she sat on a recliner. 9 During the second
incident, Mother alleged that Father “cornered” her with his body while
asking for her opinion on something.10 Mother relies on this evidence to
support her argument that “ample evidence” supported the issuance of a
restraining order. As we have already explained, the question before this
court is not whether Mother can point to substantial evidence to support the
issuance of a restraining order. (See Rayii v. Gatica (2013) 218 Cal.App.4th
1402, 1408 [“The fact that there was substantial evidence in the record to
support a contrary finding does not compel the conclusion that there was no
substantial evidence to support the judgment.”].)11 Even assuming that
these incidents were sufficient to support a finding of past abuse, the court
9 Specifically, Mother testified as follows regarding the first incident,
which occurred in 2015 before the child turned a year old: “[W]hen I wasn’t
answering the way he wanted or answering fast enough or giving him what
he wanted, he was over me in his recliner chair. I had [the child] in my left
hand, and he was yelling at me saying that I’m stupid and I don’t know what
I’m talking about. And he was asking me for—to respond and answer his
question. And I didn’t know the subject very well so I wasn’t able to give him
the answer. And then I reminded him [the child is] in our arms and to please
stop, which he did.”
10 Specifically, Mother testified as follows regarding the second incident:
“It’s always about something that he had looked up and wanted to know
more, if I knew something about this. And he needed to know my opinion on
it and where I stood because he didn’t like how my family was. [¶] And he
had me cornered on the wall where he was, with his body pushed up against
me. And I had [the child] in my right arm and he was again in my face. And
I was, ‘[Father], stop. [The child is] with me. Stop right now.’ [¶] And he got
mad and he just pushed his hand up against the wall, turned around and
walked out the door.”
11 We therefore are not persuaded by Mother’s citations to cases
describing actions that are sufficient to constitute abuse, or to cases affirming
a court’s discretionary decision to grant a permanent restraining order.
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reasonably could conclude a sufficient period of separation had elapsed and a
permanent restraining order was not needed based on the record before it.
(In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1499, fn. 8 [“the fact
that a trial court finds past abuse does not require that the court issue a
restraining order; rather, a court may decline to issue a restraining order”].)
In sum, Mother has not affirmatively shown the trial court was
compelled by the evidence to find that Father committed an act of abuse
under the DVPA and to grant a restraining order. Contrary to Mother’s
assertions, the trial court did not commit legal error in denying her request.
The court made factual findings supported by substantial evidence to support
its decision. Viewing the record in the light most favorable to the court’s
ruling, we cannot conclude the trial court abused its discretion in denying
Mother’s request for a restraining order.
DISPOSITION
The order denying Mother’s application for a permanent restraining
order is affirmed. Father may recover his costs on appeal.
GUERRERO, J.
WE CONCUR:
AARON, Acting P. J.
DATO, J.
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