A.C. v. M.N. CA1/2

Filed 5/17/22 A.C. v. M.N. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
A.C.,
Plaintiff and Respondent,
A162999
v.
M.N., (San Mateo County
Super. Ct. No. 20-FAM-00646-A)
Defendant and Appellant.
This appeal involves a husband and wife who each sought a domestic
violence restraining order (DVRO) against the other under the Domestic
Violence Protection Act (Fam. Code, § 6200 et seq). After a lengthy
evidentiary hearing, the trial court denied the husband’s request, granted the
wife’s request for a no-harassment order, and ordered joint legal and physical
custody of the couple’s children with an equal timeshare. The husband, M.N.,
now appeals, but because he fails to show that the trial court abused its
discretion in making these orders, we will affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
Appellant M.N. (Husband) and respondent A.C. (Wife) met in 2011 and
married in 2014. In April 2020, when their children were ages 2 and 4, they
filed their competing requests for protective orders.1
A. Requests for Protective Orders
On April 13, Husband filed a request for DVRO against Wife, alleging
that Wife had physically abused him, that he felt unsafe living with her, and
that she emotionally and verbally abused him. Husband alleged two
incidents of abuse. The first was sometime between January 23 and 28,
when Wife kneed him in the groin and slapped him in the face after he asked
her to stop having relationships with other men and they fought over access
to their cell phones (the January incident). The second was on April 9, when
Wife accessed Husband’s electronic devices and accounts without his
permission in an unsuccessful attempt to delete recordings of the two of them
discussing the January incident.2 Husband sought a stay-away order, a
move-out order, and sole physical custody of the children with no visitation
for Wife. On April 14, Husband’s requests were temporarily granted until a
hearing set for May.
Also on April 14, Wife filed her own request for DVRO, alleging that on
an ongoing basis Husband pressured and harassed her to perform or agree to
perform sexual activities, and had threatened to take the children away from
her if she would not agree to his sexual demands. Wife explained that when
1Subsequent dates are in 2020 unless otherwise stated. All statutory
references are to the Family Code.
2 Husband stated in his petition that he called the police at about 4:00
a.m. on April 10 to report the January incident and that after he made the
call, he learned of Wife’s attempt to delete the recordings.
2
the couple married, they had an understanding that she would have sex with
him every day, whether or not she wanted to have sex on any particular day.
She could ask for permission to skip a day, in which case she must “make it
up” by having sex twice on a future day, but, she alleged, Husband claimed
he could deny a request for a future date. The parties referred to this
arrangement as their “marriage contract,” and the “make it up” rule as a
“double tap.” Recently the couple had conflicts in which Husband had
harassed her: if she refused to have sex and did not want to make it up later,
Husband would argue with her late into the night and keep her awake until
she agreed to have sex or “double tap.” Wife alleged three incidents of abuse.
First, on March 25, after an argument about sex, Wife said she would
be skipping sex that day. Early in the morning of March 26, Husband
complained that her refusal was an “abusive violation” of the marriage, and
that she needed to leave the apartment. When she refused, he threatened to
leave with the children. Later that day, a friend invited Wife to stay with her
for a few days. Husband told Wife that if she went, he would separate from
her and might not welcome her back afterwards unless she assured him that
she would stay married to him. He eventually agreed she could go after
having sex with him three times. She agreed at first, but ultimately did not
follow through and did not visit her friend.
Second, Husband and Wife argued from about 10:00 p.m. on March 27
to 3:00 a.m. on March 28 because Wife did not want to have sex or agree to
make it up. Husband said that if she insisted on that, he would take the
children away to San Diego. After a long argument, Wife told Husband she
was going to sleep, but he would not let her: he pulled the blankets off her,
opened the door to let cold air in, turned off the heater, and turned on the
lights. When she put on warm clothing and earplugs, Husband began getting
3
dressed as if he were leaving. Fearing that he would take the children from
the home, Wife agreed to make up the sex so that he would let her sleep and
not take the children.
Third, on April 9, Husband and Wife had another argument about sex.
Wife said she would not have sex or agree to make it up later. Husband
argued with Wife about the issue for a while, and then said he would divorce
her. When she still would not agree to have sex, he expressed plans to move
forward in divorcing, and since then had complained multiple times a day
that she is depriving him of sex and using sex sadistically to get her way in
arguments. He told her that if she wants to stay married but is not willing to
live up to the sexual agreement, she could enter a new agreement to have as
many children as he wants. She refused and said she wanted to stay married
and work things out without the sexual agreement.
Wife included in her petition additional allegations to provide “context”
for the “escalation” of Husband’s harassment in recent months. She alleged
that she and Husband had agreed in November 2019 to open the marriage to
other sexual partners. Since then, both had partners outside the marriage.
On January 23, Husband tried to cut off Wife’s contacts with others by
engaging in a tug-of-war with her over her phone. After that, Husband
continued his relationships, but monitored Wife’s text messages and phone
calls and asked her to cut off her relationships. Husband threatened to take
the children away from her if she did not agree to cut off her romantic
contacts, while he maintained his.
On April 10, Wife called the police to report Husband’s threats of
leaving with the children.
Wife requested a no-harassment order, and requested that the couple
share physical and legal custody, with Husband having visitation two days
4
per week. Wife’s requests were temporarily granted on April 15, and were set
to be heard with Husband’s.
After continuances and extensions of the temporary orders, evidentiary
hearings on Husband’s and Wife’s requests were held over two days in
October. At the time of the hearing, Husband and Wife had joint custody of
the children with an equal time share, pursuant to an order that had been
entered in June.
B. Evidentiary Hearing
At the evidentiary hearing, Husband and Wife were represented by
counsel. By the time of the hearing, Wife had filed a petition for dissolution
of the marriage. The court heard testimony from Husband, Wife, and a
former nanny who had lived with the couple for about two years from 2016 to
2018. Several exhibits were admitted into evidence, including a social media
post in which Wife sought support as a victim of “gas lighting” and abuse (but
did not identify her alleged abuser), and a later social media post by Husband
containing details about Wife’s sexual history, which Wife testified was
“horrible, public humiliation.”
The evidence also included an audio recording of a March 29 discussion
between Husband and Wife and a transcript of the recording. In the
recording, the parties discussed their different perspectives on incidents that
were alleged in their respective petitions (which were filed after the recording
was made), including the January incident in which Wife struck Husband
and the March incident in which Husband threatened to take the children to
San Diego. During the discussion, Wife commented, “[Y]ou’re using this
recording and if I ever do want to divorce you, you’re probably just going to
use it against me in child custody proceedings.” Toward the end of the
discussion, Wife said she did not consent to the discussion being recorded.
5
Husband said, “I had consent going into this.” Wife responded, “You don’t
anymore.” Shortly thereafter, the recording ended.
C. Trial Court Ruling and Appeal
The trial court announced its decisions after hearing extensive
argument from counsel.
The court denied Husband’s request for a restraining order against
Wife. The court stated it found Wife’s testimony credible. Wife admitted
kneeing Husband in the groin and slapping him in January, but the court
found extenuating circumstances such that the incident did not constitute
domestic violence. There were already difficulties in the marriage, and there
were specific “events that triggered [Wife’s] actions” that day, which the court
found to be “aberrant and out of line with her normal behavior” and would
not be repeated. After the incident, Wife “immediately retreated and she was
apologetic.” The court found no other violent acts by Wife.
The court denied Husband’s request for full custody of the children.
The court found that in view of the circumstances leading up to Wife’s
kneeing and slapping Husband, the January incident did not constitute
domestic violence for purposes of triggering the rebuttable presumption
under section 3044, subdivision (a), that an award of sole or joint custody to
Wife was detrimental to the children’s best interest.3 The court concluded
from the evidence that both Husband and Wife loved their children and
3 Section 3044, subdivision (a) provides: “Upon a finding by the court
that a party seeking custody of a child has perpetrated domestic violence
within the previous five years against the other party seeking custody of the
child . . . there is a rebuttable presumption that an award of sole or joint
physical or legal custody of a child to a person who has perpetrated domestic
violence is detrimental to the best interest of the child . . . . This presumption
may only be rebutted by a preponderance of the evidence.”
6
wanted to be responsible parents, and that it was in the children’s best
interest to retain the then-existing arrangement of joint custody with an
equal timeshare.
The court granted Wife’s request for a no-harassment order against
husband, explaining that it found evidence of a pattern of intimidation and
harassment in the marriage sufficient to leave the temporary order in place,
but for three years rather than the requested five years. The court found
evidence of harassment in Husband’s enforcement of the parties’ agreement
to have sex every day; his responses when he was denied sex, such as pulling
the blankets off Wife or repeated incidents of badgering her for hours to
prevent her from sleeping; his use of the audio recording not just to preserve
evidence but also as a way to exert leverage to keep Wife in the marriage and
hold her to their agreement to have sex every day; and his contacting the
police and seeking a restraining order and full custody of the children after
the parties discussed divorce. The court noted that while the temporary no-
harassment order was in place, Husband had humiliated Wife by “taking the
marriage’s dirty laundry and airing it on” social media in a post that
described Wife in a shaming way as agreeing to polyamorous relationships.
The court expressed concern that husband would continue to post things
about the marriage on social media that could be seen as humiliating and
would be harassing to Wife.4
Accordingly, the trial court extended the no-harassment order against
Husband, setting an expiration date in October 2023.5 The court also ordered
4 The court stated that it was respectful of Husband’s First Amendment
rights, and that Husband was “allowed to vent his feelings and post whatever
he wants as long as it’s not harassing.”
5The court’s orders were filed on Judicial Council Form DV-130,
“Restraining Order After Hearing (Order of Protection).” The no-harassment
7
joint legal and physical custody of the children with an equal timeshare, and
ordered the parties to bear their own fees and costs. A written order was
filed in January 2021, and this appeal timely followed.
DISCUSSION
A. Principles of Appellate Review
An order challenged on appeal is presumed to be correct. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to
affirmatively demonstrate error. (Ibid.) Claims of error must be supported
by reasoned argument and legal authority, or we may treat those claims as
forfeited. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Even
if an appellant can show error, we will not reverse a trial court order unless
the appellant shows prejudice from the error, which requires the appellant to
show that it is “ ‘reasonably probable that, absent the error, the appellant
would have obtained a more favorable result.’ ’’ (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 823.) The rules of appellate review apply
when parties represent themselves on appeal, as they do in this case, as well
as when they are represented by counsel. (See Stokes v. Henson (1990) 217
Cal.App.3d 187, 198 [self-represented party is entitled to the same
consideration as other litigants and attorneys, but not to anything more].)
B. Applicable Law and Standard of Review
The purpose of the Domestic Violence Prevention Act (DVPA) 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
order is a personal conduct order that Husband must not do the following
things to Wife: “Harass, attack, strike, threaten, assault (sexually or
otherwise), hit, follow, stalk, molest, destroy personal property, disturb the
peace, keep under surveillance, impersonate (on the Internet, electronically or
otherwise), or block movements.”
8
sufficient to enable these persons to seek a resolution of the causes of the
violence.” (§ 6220.) The DVPA authorizes the trial court to issue an order “to
restrain any person for the purpose specified in Section 6220 if [evidence]
shows, to the satisfaction of the court, reasonable proof of a past act or acts of
abuse.” (§ 6300, subd. (a).) The trial court is to “consider the totality of the
circumstances in determining whether to grant or deny” a request for a
DVRO. (§ 6301, subd. (c).)
The DVPA defines “domestic violence” as “abuse perpetrated against”
certain individuals, including a spouse or former spouse. (§ 6211, subd. (a).)
“Abuse” is defined as “(1) To intentionally or recklessly cause or attempt to
cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in
reasonable apprehension of imminent serious bodily injury to that person or
to another. [¶] (4) To engage in any behavior that has been or could be
enjoined pursuant to Section 6320.” (§ 6203, subd. (a).)
Among the behavior that may be enjoined under section 6320 is
“harassing, . . . or disturbing the peace of the other party.” (§ 6320, subd. (a).)
“[D]isturbing the peace of the other party” in this context has for more than a
decade been interpreted to mean “conduct that destroys the mental or
emotional calm of the other party.” (In re Marriage of Nadkarni (2009) 173
Cal.App.4th 1483, 1497 (Nadkarni).) In Nadkarni, the Court of Appeal
concluded that a former wife made a sufficient showing of abuse under the
DVPA by alleging that her former husband had destroyed her mental or
emotional calm by “accessing, reading and publicly disclosing the content of
[her] confidential e-mails.”6 (Id. at pp. 1498-1499.) “Abuse is not limited to
the actual infliction of physical injury or assault.” (§ 6203, subd. (b).)
At the time Nadkarni was decided, and at the time the case before us
6
was heard in the trial court, the phrase “disturbing the peace of the other
9
After notice and a hearing (§ 6340), a court is authorized to issue a
protective order under the DVPA (§ 6218) with a duration of up to five years.
(§ 6345.)
We review the trial court’s decision to grant or deny a protective order
under the DVPA for abuse of discretion. (S.M. v. E.P. (2010) 184 Cal.App.4th
1249, 1264 (S.M.).) We review the trial court’s conclusions of law de novo and
its findings of fact for substantial evidence. (Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711-712.) The trial court’s “application of the law to
the facts is reversible only if arbitrary and capricious.” (Id. at p. 712.) As our
Supreme Court has explained, “A ruling that constitutes an abuse of
discretion has been described as one that is ‘so irrational or arbitrary that no
reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 773.)
In applying the substantial evidence standard, we determine
“ ‘ “ ‘whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted,’ supporting the trial court’s finding.
[Citation.] ‘We must accept as true all evidence . . . tending to establish the
correctness of the trial court’s findings . . ., resolving every conflict in favor of
the judgment.’ ” [Citation.]’ ” (In re Marriage of Evilsizor & Sweeney (2015)
237 Cal.App.4th 1416, 1424.) This means we do not reweigh the evidence or
consider whether there might be substantial evidence to support a finding
different from the trial court’s, but only whether there is substantial evidence
to support the findings that were made. (Schmidt v. Superior Court (2020) 44
party” was not defined in the DVPA. (Nadkarni, supra, 173 Cal.App.4th at p.
1497.) Effective January 1, 2021, the phrase is defined as “conduct that,
based on the totality of the circumstances, destroys the mental or emotional
calm of the other party.” (§ 6320, subd. (c), added by Stats. 2020, ch. 248,
§ 2.)
10
Cal.App.5th 570, 581-582 (Schmidt).) We defer to the trial court’s credibility
determinations. (In re Marriage of Martindale & Ochoa (2018) 30
Cal.App.5th 54, 61.) The testimony of a single witness, including a party,
may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d
604, 614.)
C. Analysis
1. Denial of Husband’s Request for a Restraining Order
Husband argues that the trial court erred as a matter of law by
declining his request for a restraining order after finding that Wife had kneed
him in the groin and slapped him. He also argues that substantial evidence
shows that the trial court erred in finding that, apart from the kneeing and
slapping, there was no evidence of other acts of violence by Wife. He
contends that the trial court was required not only to issue a restraining
order against Wife but also to find that Wife had perpetrated domestic
violence against Husband and to apply the rebuttable presumption of section
3044, subdivision (a), that awarding joint custody to Wife was detrimental to
the best interest of the children.
“[A] finding of abuse is not mandated merely because the complainant
shows he or she suffered an injury caused by the other party.” (In re
Marriage of G. (2017) 11 Cal.App.5th 773, 775 [affirming trial court order
denying a request for DVRO].) A person who, in view of all the
circumstances, uses reasonably necessary force in responding to an aggressor
does not commit abuse within the meaning of section 6203. (Id.at pp. 776,
779-780.)
Here, there is substantial evidence to support a finding that Wife used
reasonably necessary force against Husband, under the totality of the
circumstances, and thus that the trial court did not abuse its discretion in
11
declining to find that Wife perpetrated abuse and declining to issue a
restraining order against her.7 Wife testified that when she kneed and
slapped Husband she and Husband had been engaged in a physical tug-of-
war for possession of her phone. She felt “cornered and scared” and
“desperate.” Husband had instigated an argument about the status of their
open marriage: he wanted her to cancel dates that she had made, apparently
because he was jealous that she had more extramarital dates than he did. He
said he was going to text the other men, and she asked him not to. He said
he was going to do it anyway, and when he grabbed his phone to contact the
other men, she grabbed it from his hands, and in frustration she tried to
make it appear that she was breaking it, and then dropped it on the bed next
to her. Husband then moved toward Wife’s phone. She was scared of what
he would do with it, scrambled over the bed and they both grabbed her phone
at the same time. Wife testified that it was 3:00 a.m., and “I was cornered
between the wall and the back wall and the bed and a man who had been
yelling at me for five hours past my bedtime . . . and we were in a tug of war
over my phone and I asked him to let go and he said, ‘No,’ and gave me his
very aggressive look.” Wife wanted to leave the room with her phone, but
Husband was preventing her from leaving. She testified that at the time, she
was scared of him, scared of social isolation, and scared about what messages
Husband would send from her phone. She kneed him in the groin and
7 Husband contends that because Wife stated in the parties’ recorded
discussion that she was not justified in kneeing and slapping him, the trial
court erred in finding “extenuating circumstances” such that Wife’s conduct
did not constitute domestic violence. Husband is mistaken. The court
reached its own conclusion as to whether Wife’s conduct was justified under
all the circumstances, in view of all the evidence before it, including the
statements by both parties in the recorded discussion as well as the parties’
testimony.
12
slapped him in quick succession and he let go of the phone. He left the room,
and she went after him, apologizing. She testified, “I was in shock and I felt
awful and I had not intended on doing that. It was an instinctual reaction,
but I had never done that before and I felt bad.” She explained, “Sometimes
you do things in what feels like self-defense and you still feel badly for that.”
Asked whether she felt she was justified in hitting him, Wife responded, “In
retrospect, I wish I had not, but at the same time I understand why I did,
because I was scared and there was a person in a tug of war with me in a
room while I was trapped after being yelled at for hours.”
Husband argues that there was substantial evidence that Wife engaged
in “a pattern of repeating abusive behavior,” contrary to the trial court’s
statement that it had “heard no evidence of any other acts of violence.”
Husband points to evidence that Wife tried to delete recordings of her
discussions with Husband; that she tried to destroy Husband’s phone during
the January incident; and that he was afraid of her. Husband also argues
briefly that Wife’s abusive conduct included her telling him not to tell others
about the January incident and in that way isolating him from familial
support.8 The argument lacks merit.
Our task on appeal is to determine whether substantial evidence
supports the trial court’s findings of fact; we do not consider whether
substantial evidence might support other possible findings. (Schmidt, supra,
8 This argument rests on a provision that was added to the Family
Code after the hearing in this case. Effective January 1, 2021, “ ‘disturbing
the peace of the other party’ ” may refer to “coercive control, which is a
pattern of behavior that in purpose or effect unreasonably interferes with a
person’s free will and personal liberty.” (§ 6320, subd. (c), added by Stats.
2020, ch. 248, § 2.) Examples of “coercive control” include “unreasonably . . .
[i]solating the other party from friends, relatives, or other sources of
support.” (§ 6320, subd. (c)(1), added by Stats. 2020, ch. 248, § 2.)
13
44 Cal.App.5th at pp. 581-582.) In denying Husband’s request for a
restraining order, the court impliedly found that Wife had not engaged in a
pattern of abusive conduct. It is true that Wife testified she tried to delete
the recordings because she knew that Husband would use them to follow
through on his threat to take the children from her, but there was also
testimony from Husband and Wife that at one point Husband told Wife she
could delete the recordings. As to the alleged attempt to destroy Husband’s
phone, there was evidence that Wife did not try to destroy Husband’s phone
during the January incident, and that his phone was not damaged. Although
Husband testified that he was afraid that Wife would physically harm him,
the court found credible, based on the parties’ testimony, that Husband was
not physically afraid of Wife.9 As to Husband’s argument that Wife isolated
him from familial support, Husband and Wife both testified that Wife asked
Husband not to tell family members and their closest friends about the
January incident because she was embarrassed about it. But Wife also
testified that she encouraged Husband to go to therapy, and couples therapy
with her, and to talk to therapists about what had happened in January.
Accordingly, the record contains substantial evidence to support the trial
court’s finding that Husband had not shown a pattern of abusive conduct by
Wife.
In sum, Husband fails to show that the trial court abused its discretion
in concluding that under the circumstances Wife’s conduct did not constitute
abuse, and in declining to issue a restraining order against her. Because we
conclude that the trial court did not err in finding that Wife had not
For example, Husband testified that even after he sought a
9
restraining order, he had asked Wife to “hang out” with him and the children.
Wife testified that Husband did not appear to be afraid of her.
14
perpetrated abuse against Husband, we also conclude that the trial court did
not err in failing to apply the rebuttable presumption of section 3044 in
granting Husband and Wife joint legal and physical custody of the children.
2. Granting of Wife’s Request for a Restraining Order
We turn now to Husband’s arguments challenging the trial court’s
issuance of a no-harassment restraining order against him.
a. Husband’s Request for a DVRO as an Incident
of Harassment
Husband argues that it was legal error for the trial court to find that
his filing of a request for a DVRO was itself an incident of harassment. This
argument rests on Husband’s observation that, by statute, a DVRO may be
issued against a spouse or former spouse. (§§ 6211, subd. (a) & 6301, subd.
(a).) But the fact that the Family Code authorizes the issuance of a DVRO
does not mean that a particular request for a DVRO can never be regarded as
evidence of harassment. Whether a request is evidence of harassment
depends upon the record.
Here, there was evidence that Husband waited until April to contact
the police about actions that Wife took in January; that Wife feared Husband
would take the children from her and that he threatened to take the children
from her if she did not have sex; and that Husband contacted the police and
sought a restraining order asking for full custody of the children only after
Wife made it clear that she would no longer agree to have sex every day or
make it up on a later date. From all of this, the court could have concluded
that Husband filed the restraining order for the purpose of “destroying the
mental or emotional calm” of Wife. (Nadkarni, supra, 173 Cal.App.4th at p.
1498.)
But even if it were error for the trial court to view Husband filing his
request for DVRO as an incident of harassment, Husband fails to show any
15
prejudice from the error because the court found other incidents of
harassment, including his treatment of Wife when she would not agree to
have sex, per their “marriage contract,” or “double tap.” Wife testified that
the arrangement evolved such that Husband would force her to have sex by
preventing her from sleeping. He would sometimes argue with her for hours
about the contract after she wanted to go to sleep. About three times, he
pulled the covers off to prevent her from sleeping. If she left the room to
sleep elsewhere, he would follow her and continue to argue, and if she locked
herself in another room, he would pound on the door and continue arguing.
These occurrences of what Wife characterized as sleep deprivation to force
her to have sex occurred throughout the marriage, on average once per
month. More recently, Husband told her that if she didn’t have sex with him
or agree to “double tap,” he would take the children to San Diego. Wife
testified she was so scared that he was going to take the children that she
took pictures of all their vehicles and license plates to make sure she had
photographs for the police if Husband carried out his threat.
In sum, there was substantial evidence that Husband had engaged in a
pattern of conduct that harassed Wife and that disturbed her peace by
destroying her mental or emotional calm. (Nakdarni, supra, 173 Cal.App.4th
at p. 1498.)
b. The Date of the Audio Recording
In explaining its ruling, the trial court discussed the parties’ audio
recording as part of a pattern of harassment. The court concluded that
Husband used the recording “as leverage to continue to compel [Wife] to stay
in the marriage, because he could use the tape to seek a restraining order
and possibly full custody of the children. [¶] . . . [¶] . . . “From [Wife’s]
perspective, . . . [Husband] was going to use the tape to be able to take the
16
children away from her. . . . [¶] . . . [I]t was taken with her consent, then
without her consent. It clearly shows she’s admitting to conduct [the January
incident] that she’s apologetic for. But holding that tape in reserve—it was
recorded sometime in January, early February—and not bringing it out until
after the police are called, could also be seen—again, he could be preserving
his evidence, but also a pattern of exerting leverage on this woman to keep
her in the marriage and in the marriage contract.”
Husband points out that the parties agreed the recording was made on
March 29, and there is no evidence that it was made in January or early
February. But Husband fails to show that he was prejudiced by the trial
court’s reference to the wrong date. To the contrary, he admits that it makes
no difference whether the recording was made 12 days before he sought a
DVRO or three months before.
Regardless of the exact date the recording was made, there was
evidence to support the finding that it was made, at least in part, to exert
leverage on Wife. During the conversation, Wife can be heard expressing her
belief that Husband would use the recording to try to gain custody of their
children should she seek divorce. Wife testified that the recording was made
in the evening, when she wanted to sleep, and that she felt pressured to
agree to being recorded because for months she had felt that Husband was
using the January incident as a leverage point for custody purposes.
But even leaving aside evidence concerning the recording, there is
substantial evidence, as we have described, to support the trial court’s
finding that Husband harassed Wife and disturbed her peace.
c. Badgering as Abuse
Husband contends that even if we view the evidence most favorably
toward the trial court’s ruling, his behavior to Wife was, “badgering at worst.”
17
He argues that under S.M., supra, 184 Cal.App.4th at pages 1265-1266,
badgering is not a basis for a finding of domestic violence in the absence of a
finding that Wife was ever in apprehension of imminent serious bodily injury.
Husband’s argument disregards the DVPA’s expansive definition of “abuse”
to include behavior other than physical harm or a threat of physical harm.
That definition includes a multitude of behaviors that are not limited to
physical harm or destruction or a threat of physical harm or destruction.
(§ 6203, subds. (a)(4) & (b); § 6320.) And Husband’s reliance on S.M. is
misplaced.
In S.M. the trial court issued a restraining order under the DVPA
protecting E.P. (the mother) based solely on a finding that S.M. (the father)
had “engaged in badgering.” (S.M., supra, 184 Cal.App.4th at p. 1266.) The
conduct found by the trial court involved a single argument in which S.M.
made “ ‘a very negative comment’ ” and there was “ ‘an argument, and
essentially he wouldn’t stop and was badgering’ ” E.P. about her plans to
travel with the parties’ child. (Ibid.) The Court of Appeal held that the trial
court had abused its discretion by issuing a restraining order without making
a finding that S.M.’s conduct rose to the level of harassment or abuse, and
further held that the record did not reveal that any such conduct had
occurred. (Ibid.) The Court of Appeal noted that although the trial court had
issued a restraining order, the trial court had made comments demonstrating
that it did not believe that S.M.’s conduct met the statutory definition of
domestic violence or abuse. (Id. at p. 1268.) Specifically, the trial court had
indicated that under the circumstances before it, some additional behavior
would have been necessary to justify a finding of abuse, such as further
incidents of the badgering or conduct that placed E.P. in reasonable
apprehension of serious bodily injury. (Id. at pp. 1265, 1268.)
18
This case is far from S.M., where the trial court found that one party
had engaged in what it characterized as “badgering” during a single
argument. (S.M., supra, 184 Cal.App.4th at pp. 1265-1266.) The trial court
here found a pattern of harassment and intimidation in the marriage. On
this record Husband has not shown that the issuance of a restraining order
against him was an abuse of discretion.
DISPOSITION
The challenged orders are affirmed. Wife shall recover her costs on
appeal.
19
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Mayfield, J.*
A162999, A.C. v. M.N.
*Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
20