Rybolt v. Riley

Filed 1/31/18; Certified for Publication 2/26/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COURTNEY E. RYBOLT, C082857
Plaintiff and Respondent, (Super. Ct. No. 10FL05692)
v.
JAMES E. RILEY IV,
Defendant and Appellant.
Respondent Courtney E. Rybolt 1 obtained a domestic violence restraining order
against appellant James E. Riley IV with whom she shares a minor child. Rybolt later
filed a request to renew the order. 2 Following a contested trial in which both Rybolt and
1 At the time of trial, Rybolt was married to Joshua McGourty and her name had
changed to Courtney McGourty. For consistency purposes, we shall refer to her as
Rybolt.
2 Rybolt’s written request to renew the restraining order is not included in the record
on appeal.
1
Riley testified, the court renewed the restraining order for five years. The court also
modified a parenting plan to prohibit Riley from attending their son’s extracurricular
activities during Rybolt’s parenting time, after finding that Riley used the time as a
pretext to harass and manipulate Rybolt in violation of the restraining order.
On appeal, Riley contends that: (1) insufficient evidence shows Rybolt had a
reasonable apprehension of future abuse, which was required before the court could
renew the restraining order; (2) the court failed to properly consider that circumstances
had changed since the initial restraining order was entered; (3) the court erroneously
modified the parenting plan without considering the best interests of the child under
Family Code 3 section 3040; and (4) the modified parenting plan prohibiting him from
attending extracurricular activities during Rybolt’s parenting time is vague and
overbroad. Finding no merit to any of his contentions, we affirm.
FACTS AND PROCEEDINGS
In summarizing the factual and procedural history of this dispute, both parties
have disregarded the rules governing appellate briefs by failing to support numerous
factual assertions with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
In other instances, the parties include citations that do not support the factual assertions
they make. “Because ‘[t]here is no duty on this court to search the record for evidence’
[citation], [we] may disregard any factual contention not supported by a proper citation to
the record.” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379;
see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [appellate court
need not consider any matter asserted without appropriate reference to the record].) On
the scant record provided, we have done our best to piece together the contentious history
of this case.
3 Undesignated statutory references are to the Family Code.
2
Rybolt and Riley share a minor son together, M. R. In May 2011, Rybolt sought a
domestic violence restraining order against Riley. After trial, Judge Jaime Román
granted the restraining order. Among other things, the restraining order mandated that
Riley stay at least 25 yards, or approximately 75 feet, away from Rybolt. 4
Judge Román’s written statement of decision specifically found that Riley
intentionally or recklessly attempted to cause bodily injury to Rybolt, sexually assaulted
her, placed her in reasonable apprehension of imminent serious bodily injury, and stalked
and threatened her. The court also found that Riley repeatedly engaged in abuse within
the meaning of the Domestic Violence Prevention Act.
During a child custody hearing a year later in June 2012, Judge Kevin Culhane
found that Riley still failed to comprehend the nature and gravity of his conduct. 5
According to Judge Culhane, Riley involved a number of third parties, including his
family members, in private parenting issues. The court found that Riley was the source
of threatening e-mails Rybolt received from Riley’s sister and that his family members
had followed her and copied private parenting documents. “Such controlling and
intrusive conduct,” in the court’s view, “[wa]s fundamentally inconsistent with any
finding that the [Family Code section 3044] 6 presumption ha[d] been rebutted.”
4 Judge Román’s statement of decision and order granting the domestic violence
restraining order does not contain the 25-yard limitation, but both parties repeatedly
referenced the restraining order’s 25-yard restriction in their correspondence and at trial.
5 Judge Culhane’s order and statement of decision following the custody hearing
does not appear in the record, but Riley asked the court to take judicial notice of his
statement of decision and the court took judicial notice of its file and quoted extensively
from his findings in its order renewing the restraining order. While Rybolt’s brief
includes additional purported quotes from Judge Culhane’s findings, she provides no
citation to the record to support the quoted language.
6 Family Code section 3044, subdivision (a) creates a presumption against awarding
sole or joint physical custody to the party who the court has found perpetuated domestic
3
Judge Culhane further found that, “[m]ost fundamentally the evidence
demonstrates an ongoing course of conduct whereby father attempts to blame multiple
third parties, includ[ing] mother, mother[’]s boyfriend, other parties, the co-parent
counselor, the former lawyer, mediator, and others for the continuance of father[’]s own
activities.” Riley had also “drawn the child into these disputes on a number of
occasions.”
In January 2014, the court adopted a Family Court Services mediation report that
allowed Riley to attend school functions such as back-to-school night. 7 Neither the
mediation report nor the court’s order is included in the record. It also appears, although
it is not entirely clear from the record and the parties do not specify, that the court
adopted another mediation report in or about February 2015 that allowed Riley to attend
at least half of M. R.’s extracurricular activities. That mediation report and the court’s
order are not included in the record.
In February 2016, Rybolt filed a request to renew the 2011 restraining order. As
previously noted, Rybolt’s written request is not included in the record on appeal. Riley
contested the renewal. His written response is not included in the record.
Rybolt and Riley both testified at the trial on the renewal request. Rybolt’s
husband, Joshua McGourty, and Riley’s mother, Dawn Riley, also testified.
Rybolt testified as follows: She obtained the initial restraining order in 2011
because Riley had sexually assaulted her, stalked her, and threatened her. Riley also
threatened her in and outside of coparenting counseling sessions.
violence against the other party seeking custody of the child within the previous five
years.
7 According to Riley’s counsel, the agreement provides in part: “Father shall be
enabled to attend school events and functions such as Back-to-School Night. He shall
notify the mother [by] e-mail of his intention to attend, and she shall notify him [by] e-
mail if she will be accompanied by friend or family member. If she has not been, the
father shall arrange a school official to escort the mother to her car following the event.”
4
Under a Family Court Services mediation report adopted by the court, Riley could
attend half of M. R.’s extracurricular activities. They would either split the events or they
would both attend so long as Riley followed the restraining order, including staying 25
yards away from her. She did not consider the mediation report a modification of the
restraining order.
Rybolt described several instances when Riley had violated the restraining order at
extracurricular activities and school events. At M. R.’s most recent school open house,
for example, Riley stood within 15 feet of Rybolt as he performed with his class.
Although she asked him to comply with the restraining order at school events and sports
games and practices during her parenting time, he would often stand closer than the order
allowed. Rybolt called the police at a baseball game and a swim practice when she felt
Riley was violating the restraining order. Riley sometimes got too close during child
exchanges and when Rybolt dropped M. R. off at school.
Rybolt would often avoid activities because Riley said he was going to attend, but
then later she would learn he did not attend the event. Other times, Riley insisted on
attending sports events during Rybolt’s parenting time but then failed to take M. R. to
games or practices during his own parenting time. Riley would also send his family
members, who had threatened and harassed Rybolt in the past, in his place at school
events even though he said he was going.
At one point, Riley attended a carnival that occurred during her parenting time.
She allowed M. R. to spend some time with Riley at the carnival, but when she told him
it was time to go, Riley appeared to try to bribe and manipulate M. R. with tickets and
merchandise. She could see M. R. felt stressed and conflicted during the exchange, and
she had to walk up to Riley, take her son’s hand, and walk away.
Riley also insisted on attending the parent-teacher conference she had scheduled
even though they had always done separate conferences due to the restraining order.
Riley told her he was unable to schedule separate conferences. She e-mailed the teacher
5
and confirmed that the teacher had never told Riley he could not have a separate
conference, and in fact, that he had actually scheduled a separate conference.
Nevertheless, Riley continued to insist on attending Rybolt’s conference time. Rybolt
was extremely anxious during the conference, believing Riley might walk in at any
minute. He did not show up.
In addition to her testimony, Rybolt offered numerous e-mail exchanges between
the parties documenting the above-described events as evidence during trial. The court
admitted the e-mail exhibits.
Rybolt testified that she is in constant fear of Riley and that she does not feel safe
around him. Rybolt explained that part of her fear stemmed from never knowing whether
Riley would actually show up to events and violate the restraining order. She said she
gets anxious, shaky, and nauseous whenever he is around, and has trouble sleeping. She
installed video surveillance at her home and changed all the locks. She also testified that
her son is in conflict when she and Riley attend events together, and that he worries about
the distress she feels when around Riley. Rybolt’s husband, Joshua McGourty,
confirmed her adverse physical symptoms when around Riley.
Throughout his testimony, Riley generally denied intending to intimidate or harass
Rybolt, and he claimed that her recollections of events were not always accurate.
Although he admitted that he came closer than 25 yards to Rybolt during one child
exchange, he said his then-girlfriend and now-wife knew about the restraining order but
did not know about its 25-yard limitation when she parked behind Rybolt’s car. Riley
also testified that one of the sheriff’s deputies who responded to M. R.’s swim lesson
when Rybolt contacted law enforcement told him that he was violating the restraining
order, but that the officer knew he was not really doing anything wrong.
According to Riley, he sometimes would not show up to events he planned to
attend because he did not want to create a “ruckus” in front of M. R. and he did not “want
to stress [M. R.] out mainly.” He denied telling Rybolt that he was going to attend a field
6
trip that he later did not attend. He said he never intended to attend the parent-teacher
conference Rybolt scheduled, and that she had simply misunderstood that he had
scheduled a separate conference on the same day. As for the school carnival, he claimed
they agreed they would both attend. He said that while he was playing a game with
M. R., Rybolt walked rapidly toward them and roughly grabbed M. R. by the arm. She
dragged him away and he was visibly upset.
Sometimes Riley would not take M. R. to practices or games when M. R. was in
his care, but he explained that he might have been caught in traffic or stuck at work on
such occasions. He disputed an e-mail from Rybolt in which she claimed that M. R. had
missed two practices while with him.
Riley testified that he had remarried and was currently attending law school. He
had also completed a 52-week anger management course since the initial restraining
order was granted. Riley expected to graduate in 2018 and was concerned about having a
permanent domestic violence restraining order on his record because it could possibly
prevent him from being admitted to the state bar.
On cross-examination, Riley admitted that he had previously worked as a
California Highway Patrol Officer but had been dismissed from his law enforcement
position for dishonesty. Rybolt also testified on redirect that Riley had submitted false
paystubs to the court and testified about them in order to falsify his income at a prior
hearing between the parties. The court significantly increased her child support payment
after the falsity was discovered.
Riley’s mother testified that she attended back-to-school night at her grandson’s
school. Although Riley initially intended to go, he got caught in traffic and did not make
the event. She saw Rybolt as she was leaving. Rybolt did not appear stressed and was
joking and laughing with another woman.
After considering the parties’ pleadings, the witnesses’ testimony, the
documentary evidence admitted at trial, and the reporter’s transcript, the court granted
7
Rybolt’s renewal request. The court found that Rybolt’s apprehension of future abuse
was genuine and reasonable, that Riley had violated the restraining order on several
occasions, that he used extracurricular activities as a pretext to manipulate, control, and
disturb Rybolt, and that circumstances had not sufficiently changed to reduce the need for
continued protection. The court renewed the restraining order for five years.
The court also found that the February 2015 change to the parenting plan was the
source of “much mischief” in the case and was not working. The court therefore ordered
that “Mr. Riley may not attend extracurricular activities during Ms. Rybolt’s parenting
time. Ms. Rybolt can grant specific exemptions to this prohibition, but that shall only be
valid if it is in a signed writing or if there is an email from her that explicitly provides for
Mr. Riley to attend. Mr. Riley shall be permitted to attend minor’s extracurricular
activities during his parenting time. He shall not be required to leave if Ms. Rybolt
attends such activities even if it is not possible to remain 25 yards away from
Ms. Rybolt.” Riley timely appealed.
DISCUSSION
I
Renewal Of Restraining Order
Riley contends the court erred in renewing the restraining order. He argues that
the court misapplied the standards for renewing a domestic violence restraining order
under section 6345, and that insufficient evidence showed Rybolt had a reasonable
apprehension of future abuse. As a derivative of the latter argument, he claims that
although Rybolt may have subjectively feared him, that fear was unreasonable. We
disagree.
8
Under the Domestic Violence Prevention Act 8 (the Act), a court may restrain a
person to prevent a recurrence of domestic violence upon reasonable proof of past acts of
abuse. (§ 6300.) “Abuse” means intentionally or recklessly causing or attempting to
cause bodily injury, sexual assault, placing a person in reasonable apprehension of
imminent serious bodily injury to that person or another, or engaging in behavior that
could be enjoined pursuant to section 6320. (§ 6203, subd. (a)(1)-(4).) Among other
things, a court may enjoin the following under section 6320, subdivision (a): “molesting,
attacking, striking, stalking, threatening, sexually assaulting, battering . . . harassing,
telephoning, including, but not limited to, making annoying telephone calls as described
in Section 653m of the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a specified distance of, or
disturbing the peace of the other party . . . .”
Section 6345, subdivision (a) provides that a trial court may renew a 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. . . .” 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 male) in the same circumstances would have a ‘reasonable
apprehension’ such abuse will occur unless the court issues a protective order.” (Ibid.)
8 Family Code section 6200 et seq.
9
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 party’s apprehension is genuine and reasonable.’ ” (Lister v. Bowen (2013)
215 Cal.App.4th 319, 332-333.)
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.)
Significant changes in the circumstances surrounding the events justifying the
initial protective order may also be relevant in evaluating the protected party’s
apprehension of future abuse. (Ritchie, supra, 115 Cal.App.4th at p. 1291.) “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?” (Ibid.) The seriousness and degree of risk, such
as whether it involves potential physical abuse, and the burdens the protective order
imposes on the restrained person, such as interfering with job opportunities are also
relevant considerations. (Ibid.)
10
“We review the trial court’s ruling under an abuse of discretion standard, to
determine ‘ “whether the trial court exceeded the bounds of reason. 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.” ’ ” (Lister v. Bowen, supra,
215 Cal.App.4th at p. 333.) With these principles in mind, we turn to Riley’s contention
that the court erred in renewing the protective order in this case.
Riley first contends that the court erred in applying the factors discussed in Ritchie
in determining whether to renew the restraining order. Not so. The record shows the
court properly considered the facts and circumstances underlying the initial restraining
order, violations of the restraining order, whether circumstances had changed, and the
relative burden on Riley if the restraining order was renewed.
Riley, as the court noted, had been restrained in 2011 after he intentionally or
recklessly attempted to cause bodily injury to Rybolt, sexually assaulted her, placed her
in reasonable apprehension of imminent serious bodily injury, stalked and threatened her,
and repeatedly engaged in abusive behavior toward her. The original restraining order
was thus based on findings of serious physical, emotional, and mental abuse. As Ritchie
recognized, the facts and findings underlying the original restraining order “often will be
enough in themselves to provide the necessary proof” that a protected party’s
apprehension of future abuse is reasonable. (Ritchie, supra, 115 Cal.App.4th at p. 1291.)
That is true here.
The fact that Rybolt did not allege an apprehension of future physical abuse as
Riley argues is of no moment and does not mean that the court could not evaluate
whether Rybolt’s apprehension of future abuse was reasonable. Fear of physical abuse is
not required to renew a restraining order. (Eneaji v. Ubboe (2014) 229 Cal.App.4th
1457, 1464 [“there is no requirement that the party requesting a renewal have a fear of
physical abuse”].) The Act covers a myriad of conduct beyond mere physical abuse.
Under section 6320, subdivision (a) for example, courts may enjoin stalking, threatening,
11
harassing, telephoning, destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the
peace of the other party. The court could reasonably conclude that Riley’s behavior,
while not physically threatening, sufficiently disturbed Rybolt’s peace and emotional
well-being that her apprehension of such future abuse was reasonable.
Riley’s contention that there was no evidence that he actually violated the
restraining order is both legally irrelevant and factually inaccurate. Section 6345,
subdivision (a) expressly states that a restraining order “may be renewed, upon the
request of a party . . . without a showing of any further abuse since the issuance of the
original order . . . .” Ritchie explained: “It would be anomalous to require the protected
party to prove further abuse occurred in order to justify renewal of that original order. If
this were the standard, the protected party would have to demonstrate the initial order had
proved ineffectual in halting the restrained party’s abusive conduct just to obtain an
extension of that ineffectual order.” (Ritchie, supra, 115 Cal.App.4th at p. 1284.)
The record, moreover, is replete with evidence showing Riley in fact violated the
restraining order on multiple occasions as the court so found. Riley himself testified that
his wife parked their car closer than 25 yards to Rybolt during a child exchange and that a
sheriff’s deputy told him he was in violation of the restraining order during a swim
practice. Rybolt also testified to numerous occasions during school activities and
sporting events that Riley violated the restraining order’s 25-yard stay-away provision.
The court found Rybolt’s testimony particularly credible and expressly rejected Riley’s
testimony about the same events as not credible.
Riley simply fails to accept the trial court’s factual finding that he violated the
restraining order. He also fails to comprehend the barrier credibility findings present on
appeal. We do not substitute our opinion as to the credibility of the witnesses for that of
the trial court. (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254.) And we are bound
to “ ‘resolve all factual conflicts and questions of credibility in favor of the prevailing
12
party and indulge all reasonable inferences to support the trial court’s order. [Citation.]’
[Citation.]” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850.)
We also reject Riley’s contention that at most the evidence demonstrated Rybolt
had a subjective but unreasonable fear of him. Although he claims her fear is not based
on any material facts, he fails to acknowledge the facts underlying the initial restraining
order and the evidence showing he violated the restraining order after it was issued. “It
almost goes without saying that any violation of a restraining order is very serious, and
gives very significant support for renewal of a restraining order.” (Lister v. Bowen,
supra, 215 Cal.App.4th at p. 335; see also Avalos v. Perez (2011) 196 Cal.App.4th 773,
775-777 [although there had been no contact during the two-year term of the restraining
order, a visit by the restrained party’s friend to the protected party’s restaurant workplace
to deliver “ ‘greetings’ ” from the restrained party, along with the initial mental and
physical abuse, “amply” supported the protected party’s continued fear].)
Finally, the record belies Riley’s contention that the court failed to consider that he
had started law school or successfully completed a 52-week anger management course
when evaluating whether changed circumstances militated against renewing the
restraining order. The court heard and considered testimony and documentary evidence
on both issues. The court’s order also specifically recognized that, “[Riley] has taken
anger management classes . . . .” when discussing whether circumstances had changed
since the initial restraining order.
The order also implicitly acknowledges Riley’s future plans to become a lawyer in
the context of considering the potential burden a renewed restraining order would have
on him. Because he had already been dismissed from the California Highway Patrol for
dishonesty, the court found it would be difficult to discern any negative consequences
from the renewal. When considered in context and in light of Riley’s testimony that he
was attending law school and that a renewed restraining order might affect his ability to
13
gain admittance to the state bar, the court’s statement shows it did consider Riley’s law
school attendance in its decision but did not find the evidence compelling.
The trial court was within its discretion to conclude that the totality of the
evidence indicated it was more probable than not there was a sufficient risk of future
abuse to find that Rybolt’s apprehension was genuine and reasonable. The court did not
err in renewing the restraining order.
II
Modification Of Parenting Plan
Riley contends the court twice erred in modifying the parenting plan to prevent
him from attending extracurricular activities during Rybolt’s parenting time. First, he
argues the court did not consider the best interests of the child when changing custody.
Second, he contends the order is vague and overbroad. He is wrong.
In ruling on the request to renew the restraining order, the court found that “much
of the mischief ha[d] been caused under the cover of the February 2015 change to the
parenting plan,” which apparently allowed Riley to attend M. R.’s extracurricular
activities. The court therefore modified the order to prohibit Riley from attending
extracurricular activities during Rybolt’s parenting time unless Rybolt granted an express
written exemption for him to attend. The court also ordered that Riley was permitted to
attend his son’s extracurricular activities during his parenting time, and that he did not
have to leave if Rybolt attended such activities even if it was not possible to remain 25
yards away from her.
At the outset, we note that in modifying the parenting plan, the court did not
change the custody arrangement between the parties. The order merely prohibits Riley
from attending extracurricular activities during Rybolt’s parenting time. In other words,
Rybolt already had custody of M. R. during those periods. The renewal order did not
change that.
14
We review custody and visitation orders under the deferential abuse of discretion
test. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “The precise measure is
whether the trial court could have reasonably concluded that the order in question
advanced the ‘best interest’ of the child.” (Ibid.) We uphold the ruling if it is correct on
any basis, regardless of whether such basis was actually invoked. (Ibid.)
There was no abuse of discretion. After extensive testimony from both parents,
the trial court concluded the current visitation order was not working for the family. In
doing so, the court implicitly weighed the health and safety of M. R. and other family
members, including Rybolt, as permitted under the relevant statutory provisions.
Evidence from both parties showed that M. R. often suffered distress when both
parents attended various extracurricular events. In one e-mail, for example, Riley asked
Rybolt to confirm that she and McGourty would not attend practices or games during his
parenting time because “it truly makes [M. R.] uncomfortable.” Riley also testified that
he would sometimes not show up to events because he did not want to “stress [M. R.] out
mainly.”
Based on this evidence, its findings that Riley had violated the domestic violence
restraining order, and that he had used the extracurricular activities as a pretext to
continue harassing and controlling Rybolt -- conduct that qualified as abuse within the
meaning of the domestic violence statutes (§§ 6203, 6320), the court could reasonably
conclude it was in the best interest of M. R. that Riley not attend extracurricular events
during Rybolt’s parenting time. After carefully reviewing the record and the court’s
detailed ruling, the court did not abuse its discretion in modifying the visitation plan.
Riley next argues that it is difficult if not impossible for him to know what
constitutes an extracurricular activity or attendance at such an activity. He contends the
court’s order is thus vague and ambiguous. We disagree.
15
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ [citation], protections that are ‘embodied in the due process clauses of the
federal and California Constitutions.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
“In deciding the adequacy of any notice afforded by those bound by a legal restriction,
we are guided by the principles that ‘abstract legal commands must be applied in a
specific context,’ and that, although not admitting of ‘mathematical certainty,’ the
language used must have ‘ “reasonable specificity.” ’ ” (Ibid.)
The term “extracurricular activities” is generally understood to include all
voluntary activities that are not part of the school curriculum. (See, e.g., Ed. Code,
§ 35160.5, subd. (a)(2) [an extracurricular activity is not part of the regular school
curriculum, is not graded, does not offer credit, and does not take place during classroom
time]; Random House Webster’s College Dict. (1997) p. 462 [defining “extracurricular”
as “outside the regular program of courses” and “outside one’s regular work or
responsibilities”].) The word “attend” means “to be present at,” and the word
“attendance” means “the act of attending.” (Random House Webster’s College Dict.,
supra, at pp. 85, 86.) The terms have common sense meanings.
Nothing in the record shows Riley complained that the original order allowing him
to attend extracurricular activities was vague, which implies that Riley had no problem
comprehending the meaning of the terms when the court changed the parenting plan in
February 2015 to allow such conduct. The parties, moreover, include a specific section
in their parenting updates to one another entitled “Extra Curricular Activities.” There,
they discuss attending M. R.’s sporting events such as baseball and swimming. When
considered in context, then, the phrases “extracurricular activities” and “attendance” at
such activities are not vague.
16
Riley’s claim that the court’s order is overbroad is likewise without merit. While
it is true that a restriction that imposes limitations on a person’s constitutional rights must
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad (In re Sheena K., supra, 40 Cal.4th at p. 890), we
conclude the court’s order is narrowly tailored given the specific circumstances of this
case.
Although Riley claims the order may prevent him from attending parent-youth
baseball meetings, parent baseball clubs, or the parent teacher association, nothing in the
record shows such activities fall exclusively on Rybolt’s parenting time. Under the
court’s order, Riley is free to participate in such activities on his parenting time even if
that means he cannot stay at least 25 yards away from Rybolt.
Riley’s assertion that less intrusive alternative means exist to afford Rybolt
protection, such as requiring him to maintain the 25-yard restriction at any extracurricular
events, is not persuasive. The court specifically found that Riley repeatedly violated the
25-yard restriction “even though it would have been easy to do at extracurricular events.”
Substantial evidence supports the court’s finding. Given Riley’s conduct, the “less
intrusive” 25-yard restriction was no longer a viable means of affording Rybolt protection
from Riley’s abusive conduct.
The court’s order modifying the parenting plan to prohibit Riley from attending
extracurricular activities during Rybolt’s parenting time unless she gives him written
permission is not vague and overbroad. Nor did the court abuse its discretion in
modifying the order because it implicitly considered M. R.’s best interest.
17
DISPOSITION
The order renewing the domestic violence restraining order and modifying the
parenting plan is affirmed. Respondent shall recover her costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(2).)
/s/
Robie, Acting P. J.
We concur:
/s/
Butz, J.
/s/
Mauro, J.
18
Filed 2/26/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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COURTNEY E. RYBOLT, C082857
Plaintiff and Respondent, (Super. Ct. No. 10FL05692)
v. ORDER CERTIFYING
OPINION FOR
JAMES E. RILEY IV, PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion of this court filed January 31, 2018, was not certified for publication
in the Official Reports. For good cause it now appears the opinion should be published in
its entirety in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Butz, J.
/s/
Mauro, J.
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EDITORIAL LISTING
APPEAL from a judgment of the Superior Court of Sacramento County, Jennifer
K. Rockwell, Judge. Affirmed.
Law Office of Christie Mitchell and Christie Mitchell, for Plaintiff and
Respondent.
James Riley, in pro. per., for Defendant and Appellant.
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