Gary M. v. Crystal S. CA2/1

Filed 8/27/20 Gary M. v. Crystal S. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GARY M., B301773
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BD555480)
v.
CRYSTAL S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Helen Zukin, Judge. Affirmed.
Law Office of Michael C. Duggan and Michael C. Duggan
for Defendant and Appellant.
Leigh Datzker for Plaintiff and Respondent.
_____________________
Crystal S. (Mother) appeals from an amended domestic
violence restraining order and child custody and visitation order
that, among other things, limit her interactions with her former
husband, Gary M. (Father), his wife Leslie M., and Father and
Mother’s son (Son).1 Under the custody and visitation order,
Mother may see Son twice a week with a professional monitor
present. Mother contends she was not provided adequate notice
nor an opportunity to be heard prior to the family law court’s
issuance of these orders. She also argues the orders violate her
constitutional rights to free speech, association, a jury trial, and
to be free from the imposition of cruel and unusual punishment.
We find no merit in these contentions and affirm the amended
orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. The February 25, 2019 Domestic Violence
Restraining Order and Custody and Visitation
Orders
Son was born in 2009. In 2013, Mother and Father entered
into a stipulated judgment dissolving their marriage. The
appellate record does not include a copy of this judgment or any
document relating to the parties’ custody arrangements prior to
February 25, 2019.
According to the family law court’s docket, on or about
December 18, 2018, Father filed an ex parte application seeking
to change child custody and/or visitation. Then, on or about
1 We use first names and initials for the last names of
parents to protect the personal privacy of Son, a child in a Family
Code proceeding. (Cal. Rules of Court, rule 8.90(b)(1), (11).)
2
January 31, 2019, Father sought a domestic violence restraining
order. Because the appellate record does not include Father’s
January 31, 2019 filing, we rely on the description in his
appellate brief of his allegations:
“[Mother] had . . . posted statements on social media and
had purchased a website, entitled, ‘Gary[M.]fraud.com,’ which
alleged that both [Father] and his new wife Leslie had engaged in
numerous criminal activities and had posted excerpts of
[Father’s] family law deposition on January 29, 2019. [Father]
further alleged that [Mother] has created a hostile environment
to the point that the agreed to therapists and others could no
longer work with [Mother] in the context of family therapy and
that [Mother] had spoken to the minor child about the case and
the proceedings on December 18, 2018. [Father] also alleged that
[Mother] was interfering with his receipt of school information
and that she intentionally misinformed the school about
[Father’s] e-mail address in an attempt to circumvent his sole
legal custody rights. [Mother] was also aware that Judge Zukin
and her predecessor, Judge Shelly Kaufman, had admonished her
that if she discussed the case with the minor child, that such
conduct was a major problem that would affect the current
custody arrangements agreed to on December 18, 2018. [Mother]
also falsely told the minor child that [Father] was going to die of
MS and that she was happy he was going to die.”
On February 4, 2019, Mother filed a response to Father’s
request for restraining order, in which she argued she was not a
danger to anyone and that Father was a criminal. Son, through
his counsel, also filed a responsive declaration, which is not
included in the appellate record.
3
On February 25, 2019, following a hearing at which all
parties were represented by counsel, the family law court issued
a three-year domestic violence restraining order and a child
custody and visitation order. Under the restraining order,
Mother must not, among other things, harass, attack, strike,
threaten, assault, hit, follow, stalk, molest, destroy personal
property, disturb the peace, keep under surveillance,
impersonate, or block the movements of Father, Leslie, or Son.
She also may not contact them or obtain their addresses or
locations. Mother is also ordered to stay at least 100 feet away
from Father, Leslie, and Son. Mother may have brief and
peaceful contact with Father and Son as required for court-
ordered visitation. The court also required Mother to attend a
52-week batterer intervention program.
The custody and visitation order awarded full legal and
physical custody of Son to Father. The family law court awarded
Mother professionally-monitored visitation with Son on
alternating Saturdays between 12:00 p.m. and 4:00 p.m. and
every Tuesday between 3:00 p.m. and 7:00 p.m. at the Hollywood
Police Department. The family law court also enjoined Mother
from “posting anything on the internet and/or anywhere else
disparaging [Father] and/or Leslie [M.],” sending disparaging
emails and/or making disparaging claims against them. Mother
was further ordered to remove any online posts about Father and
Leslie. According to the family law court’s docket, the
February 25, 2019 orders were served that same day. Mother did
not appeal from those orders.
4
B. August 1, 2019 Amended Domestic Violence
Restraining Order and Custody and Visitation
Orders
According to the family law court’s docket, on April 3, 2019,
Mother filed a request for order (RFO) to “end [the] restraining
order.” Father filed a response on April 24, 2019. Neither
Mother’s RFO nor Father’s response is included in the appellate
record. On April 29, 2019, Mother also filed an “additional
declaration” that attached several witness declarations in
support of her April 3, 2019 RFO. In her additional declaration,
Mother accused Father’s counsel of misconduct, alleging, among
other things, that counsel intended the “legal kidnapping of
[Son]” and to harm Mother physically, mentally, and emotionally
by checking the box on the February 25, 2019 restraining order
requiring Mother to attend a 52-week batterer’s program.
Mother filed complaints against Father’s attorney with the Los
Angeles Police Department and with the California State Bar.
Mother also argued that the family law court overlooked the
rights of the biological grandparents, that Father’s and the
psychologist’s claim that Son no longer had ADHD was a
“complete fabrication,” that Father was attempting to move Son
to Puerto Rico, and that certain of Father’s submissions to the
family law court were fraudulent. Mother further argued that
she did not approve of the professional monitor and attached
negative online reviews of the monitor as an exhibit to her
additional declaration.
On May 7, 2019, Father, Mother, their respective counsel,
and Son’s counsel appeared before the family law court for
arguments concerning Mother’s RFO and cross-requests to
5
modify the custody and visitation orders.2 As to Mother’s RFO,
her counsel argued the restraining order should be dismissed or
modified to not limit Mother’s access to Son. The family law
court ruled: “The court is not going to go back through all the
findings it made in the past that resulted in the restraining order
being issued, only to say that at that time, the court looked at the
totality of the circumstances, all of the facts presented, not just
the postings, but the course of conduct on behalf of [Mother] . . . .
The court does see this request to terminate a restraining order
issued in February as a motion for reconsideration, and on that
basis, it is denied. The fact [is] that the court did take a second
look at the restraining order, at the evidence nonetheless and
determined that even based on what was contained—what was
submitted by [Mother] in the moving papers causes the court
great concern over [Mother’s] stability and awareness of why the
restraining order was even issued or conscious of the behavior
that both sides presented evidence on at the time of that hearing.
So the court is denying the request to terminate, denying the
request to modify. There are no new facts. There are no—there
is no new law presented to me today; however, on the issue of
custody and the presumption, we’re about to move into that
hearing now.”
During argument on the custody and visitation order,
Father’s counsel described Son’s positive progress at school, in
2 The family law court’s docket lists three hearings for May
7, 2019: “Request for Order re: Modification Hearing,” “Request
for Order re: Modification Hearing,” and “Request for Order –
Other . . . End restraining order.” On May 7, 2019, Son’s counsel
stated the hearings were for “cross-RFO’s for custody” and
Mother’s “request to modify or vacate the restraining order.”
6
therapy, with his doctors, and in other programs since the
issuance of the February 25, 2019 orders. In addition to arguing
that depriving Mother of custody was unwarranted, Mother’s
counsel objected to the professional monitor, in part due to the
cost. The parties also stated that the times listed in the
visitation order required modification because Son was still in
school at 3:00 p.m. on Tuesdays, when the visitation period
started, and because Son had swimming lessons every Saturday.
Further, Father requested Son be available to go with him on
vacation beginning on June 11, 2019. The parties also argued
that the Hollywood police station was not a good location for
visitation, but did not agree during the hearing to an alternative
site.
Son’s counsel argued against awarding custody to Mother.
She argued that under Family Code section 3044, a domestic
violence restraining order creates a rebuttable presumption that
awarding custody of Son to Mother would be detrimental to the
best interests of Son. Son’s counsel further argued Mother failed
to rebut that presumption: “There’s no evidence of any
coparenting classes. In fact, the testimony from [Mother] was
that she had studied high conflict families, but there was nothing
that was about her own behavior. The lack of accountability that
she set forth was troubling, not only in her testimony but also in
the pleadings filed on April 3rd and the reply as well. The blame
of other people, placing blame [on Father], again renewing her
request that I be removed and that the minor’s therapist [be]
removed. . . . The police report against [Father’s counsel] was
concerning. . . . There’s no evidence of domestic violence classes
of any kind. Despite all of the many certificates that they
provided this court, there was nothing regarding anger
7
management, nothing regarding domestic violence. . . . I believe
the court was particularly concerned by [Mother’s] inability to
contain herself so many times before this court . . . . [T]here was
a recommendation [that Mother] take anger management classes.
That never happened. There was a recommendation and order in
August of last year for the parties to attend coparenting
counseling because of the severe conflict that exists between
these people. The level of conflict has led to such acts as has been
testified, where [Mother] told the child that his father was going
to die[,] . . . that he was born of a surrogate[,] . . . [and Mother]
calls [Father] a homosexual . . . .”
The family law court ruled that Mother did not rebut the
Family Code section 3044 presumption. Further, the court
expressed extreme concern for Son as a result of Mother’s
“continued course of conduct of attempting to threaten in one
form or another, almost everyone in [Son’s] orbit and life.” The
court noted Mother did not engage in the ordered anger
management or batterer’s intervention program, nor did she
acknowledge her behavior is detrimental to Son. The family law
court reiterated that the domestic violence restraining order was
based upon the totality of the circumstances. Further, “[t]he
court finds that [Mother] has engaged in a continued course of
undermining [Father’s] parenting, undermining [Son’s]
relationship with [Father], and making it impossible to coparent
by a series of decisions that [Mother] has made over and over
again. The court finds that [Mother] has infused [Son] into the
center of this high-conflict relationship with [Father] and into
this litigation by discussing the litigation, . . . telling [Son] that
next time [Mother] was going to win[,] . . . tell[ing] [Son] that his
father was going to die . . . . [T]he court finds that—already
8
found there was harassment of [Father], but the form of that
harassment directly harms [Son]. . . . Every time there is an
attack on his school, his therapist, his counsel—it just seems to
be a series of conduct, so if the court had seen that [Mother] was
showing some insight, some understanding that some changes
needed to be made, the court may have found differently . . . . So
at this time, the court, based on everything that was said, does
not find it in [Son’s] best interest for [Mother] to have custody,
awards sole legal and physical custody to [F]ather for the time
being. It is this court’s hope that this will be for a short period of
time. Mother[,] . . . you are ordered once again to take the anger
management class that you were already ordered to do. You are
ordered to take— . . . I am going to modify, pursuant to minor’s
counsel’s suggestion. You’re ordered to engage in treatment
therapy, individual therapy, designed to discuss issues relating to
coparenting, high conflict, and [Father], you are ordered to do the
same.”
The family law court also found the services of a
professional monitor were still required, that the visits be
modified to Tuesdays from 4:00 to 7:00 p.m. and every Saturday
from 1:00 to 7:00 p.m., that Son be available to go on vacation
with Father on June 11, 2019, that Mother attempt to schedule a
professional monitor for Mother’s Day so she could see Son on
that day, and that the parties meet and confer concerning Son’s
summer schedule. The court stated that “[i]f the monitor has no
negative comments in reports over a period of time, Mother can
come back, but not next week, not next month. This has to be
over a period of time.” The court further ordered that Mother
share the costs for the professional monitor equally with Father,
9
denied sanctions against Mother, and ordered Father’s counsel to
prepare the order.
The docket reflects that on July 7 and July 24, 2019,
Mother filed ex parte applications for changes in custody and
visitation, respectively. Neither of these applications nor any
responsive documents are included in the appellate record.
On August 1, 2019, the court issued the amended
restraining order and custody and visitation order that are the
subject of this appeal. The amended orders differed from the
February 25, 2019 orders in a few respects. Specifically, the
family law court made only two changes to the amended
restraining order. First, the amended restraining order listed the
hearing date as May 7, 2019. Second, the amended restraining
order checked boxes at item 26, “Criminal Protective Order,” that
“[n]o information has been provided to the judge about a criminal
protective order.” The court did not change the expiration date of
the restraining order, which remained February 25, 2022.
As to the custody and visitation order, Mother was provided
with more visitation than she had under the February 25, 2019
order. She was awarded visitation every Saturday from 1:00 to
7:00 p.m. and every Tuesday from 4:00 to 7:00 p.m.; the parties
were ordered to meet and confer concerning a summer visitation
schedule; Mother was not to have visitation on June 11, 2019; but
Mother was scheduled to have visitation on Mother’s Day.
Additionally, the location for visitation remained the Hollywood
Police Department, but the visitation order noted this was
“unless otherwise agreed to in writing by [the] parties and
counsel.” Mother and Father were also ordered to split the costs
of the professional monitor equally.
10
Mother was served with a copy of the amended restraining
order on September 16, 2019. Mother timely filed this appeal as
to the August 1, 2019 amended orders.
DISCUSSION
A. Appellant’s Duty to Provide an Adequate Record and
Recitation of Facts
As a preliminary matter, we address an appellant’s duty to
provide this court with an adequate record and recitation of facts.
“[I]t is a fundamental principle of appellate procedure that a trial
court judgment [or order] is ordinarily presumed to be correct and
the burden is on an appellant to demonstrate, on the basis of the
record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.
[Citations.] ‘This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of
reversible error.’ [Citations.] ‘In the absence of a contrary
showing in the record, all presumptions in favor of the trial
court’s action will be made by the appellate court. “[I]f any
matters could have been presented to the court below which
would have authorized the order complained of, it will be
presumed that such matters were presented.” ’ [Citation.] ‘ “A
necessary corollary to this rule is that if the record is inadequate
for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.” ’ [Citation.] ‘Consequently,
[the appellant] has the burden of providing an adequate record.
[Citation.] Failure to provide an adequate record on an issue
requires that the issue be resolved against [the appellant].’
[Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; see
In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A
11
judgment or order of a lower court is presumed to be correct on
appeal, and all intendments and presumptions are indulged in
favor of its correctness”].)
Further, an appellant challenging the sufficiency of
evidence to support an order must summarize both favorable and
unfavorable evidence. (Huong Que, Inc. v. Luu (2007) 150
Cal.App.4th 400, 409.) She cannot shift this burden to the
respondent or to the appellate court. (Ibid.) An appellant’s one-
sided recitation of facts risks forfeiture of her claims. (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Here, Mother has provided only a one-sided version of the
facts in her briefs. Further, while she included the restraining
orders, custody orders, and her filings, she has not included other
relevant documents in the appellate record, including Father’s or
Son’s filings relating to the domestic violence restraining orders
or custody orders. Accordingly, in certain instances described
below, we resolve any ambiguity in favor of affirming the court’s
orders. (See Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609.)
B. Mother Received Notice and Opportunity to Be
Heard
Mother argues she was denied due process because she was
not provided with notice of the hearing relating to the amended
orders or an opportunity to be heard. This argument is without
merit.
Even a cursory review of the record establishes that the
May 7, 2019 hearing gave rise to the amended orders. The
amended restraining order expressly identifies the hearing date
as May 7, 2019. Also, a review of the May 7, 2019 reporter’s
transcript reveals that each change reflected in the amended
custody and visitation order was discussed and orally ruled upon
12
at that hearing.3 Further, two May 7, 2019 minute orders list the
changes to the custody orders.4 The only change in the amended
orders that was not discussed at the May 7, 2019 hearing was the
two boxes checked at item 26 relating to a criminal protective
order, which we discuss further below.
Mother was provided with an opportunity to be heard at
the May 7, 2019 hearing. Two separate counsel accompanied
Mother and argued extensively on Mother’s behalf. At the
conclusion of each of Mother’s counsel’s arguments, the family
law court asked whether there was anything further, and counsel
responded in the negative.
Mother’s contention that she was not able to present
witnesses or evidence is also without merit. At the May 7, 2019
hearing, the family law court referred to an earlier evidentiary
hearing at which each side rested. Still, following some
discussion as to whether witnesses were present in the
courtroom, the family law court inquired of Mother’s counsel,
“[C]ounsel for respondent, do you have witnesses you plan to—,”
and Mother’s counsel responded, “No, your honor. No, your
honor.” Later in the hearing, the court again asked, “[A]s I
understand it, where we left off was both sides are rested;
correct?” Mother’s counsel responded, “That’s correct, your
honor.” The court then asked, “On the issue of custody and
parenting time, but I don’t recall hearing argument or
3 Mother complains that the family law court canceled her
visitation with her son on June 11, 2019, to allow Father to take
Son on vacation. We find the family law court acted within its
discretion in making this order.
4 The appellate court independently obtained these minute
orders.
13
recommendations from any counsel. Is that where you agree
that’s where we stand?” Mother’s counsel, replied, “Yes, your
honor.” Thus, Mother waived any further evidentiary hearing.
Additionally, the record does not demonstrate that Mother could
not submit declarations or other documentary evidence in
support of her request to modify or terminate the February 25,
2019 orders. Indeed, she filed documentary evidence with her
February 4, 2019 response and several declarations and
documentary evidence with her additional declaration filed in
support of her RFO.5
Mother next argues the family law court violated due
process in designating the domestic violence restraining order as
a criminal order without providing her notice and an opportunity
to be heard. However, Mother’s argument that the court
designated the restraining order as criminal is not supported by
the record. Form DV-130, Domestic Violence Restraining Order
After Hearing, item 26 is titled “Criminal Protective Order” and
provides three choices that the court may select: “a. Form CR-
160, Criminal Protective Order – Domestic Violence, is in effect”;
“b. Other Criminal Protective Order in effect (specify)”; and “c. No
information has been provided to the judge about a criminal
protective order.” Both options a. and b. provide spaces for the
court to write in the case number, county, and expiration date
relating to the criminal protective order. Here, the family law
court selected option “c.” In other words, to the court’s
knowledge, there is no criminal protective order against Mother,
5 Ofcourse, ordinarily, new evidence is not permitted with
reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522,
1537.)
14
and Mother has not demonstrated that this selection means
anything else. At oral argument, Mother’s counsel conceded he
was “not sure what [item 26] means,” but argued that the
selection could be interpreted to mean the court was designating
the domestic violence restraining order to be a criminal protective
order. We find this interpretation unlikely in light of the
language of options a. through c., including that space is provided
for the court to state the case number, county and expiration date
of the criminal protective order, thereby evidencing the criminal
protective order is separate from the domestic violence
restraining order. Accordingly, Mother has not demonstrated
that the family law court’s selection of item 26.c. warrants
reversal.
Mother also contends “that if she had actually been
‘heard[,’] the merits of her case would have prevailed.” To the
extent this statement is intended to suggest that sufficient
evidence did not support the August 1, 2019 orders, this
argument is not fully developed and, therefore, is waived. (See
Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th
857, 862 [“ ‘When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to
authority, we treat the point as waived’ ”].)
Further, because Mother failed to provide an adequate
appellate record that includes, for example, the reporter’s
transcript of the evidentiary hearing or Father’s or Son’s filings
relating to the restraining and custody/visitation orders, we
conclude Mother has defaulted as to any argument that the
family law court’s orders were not supported by sufficient
evidence. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609.)
15
C. Mother Has Not Demonstrated the Family Law
Court’s Restraining Order Amounted to an
Unconstitutional Prior Restraint of Mother’s Free
Speech
Mother argues the form DV-140 “other orders” portion of
the restraining order is overbroad and an unconstitutional prior
restraint on her right to free speech. These “other orders” were
issued with both the February 25, 2019 and the August 1, 2019
restraining orders and provide: “1. Respondent is hereby
enjoined and restrained forthwith from posting anything on the
internet and/or anywhere else disparaging [Father] and/or
Leslie [M.]. [¶] 2. Respondent is hereby enjoined and restrained
forthwith from sending disparaging emails and/or making
disparaging claims against [Father] and/or Leslie [M.]. [¶]
3. Respondent is ordered to immediately remove any on-line
posts about [Father] and/or Leslie [M.] from Face[b]ook,
YouTube, or anywhere else on-line concerning [Father] and/or
Leslie [M.] which Respondent and/or her agents or
representatives posted on-line. [¶] 4. Respondent shall not
record or videotape the visitation exchanges.”
The right to free speech is not absolute (In re Marriage of
Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1427) and may
be abridged in favor of a countervailing compelling interest (see
Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831-832). Thus,
in family law proceedings, courts have restricted speech to
promote the bests interests of the children. (See In re Marriage
of Hartmann (2010) 185 Cal.App.4th 1247, 1251; In re Marriage
of Candiotti (1995) 34 Cal.App.4th 718, 725-726.) For example,
“[p]arents are routinely ordered not to make disparaging
comments about the other parent to the children or in their
16
presence” (In re Marriage of Candiotti, supra, at p. 725, fn.
omitted) or are restrained “from discussing their dissolution case
(especially custody/visitation issues) in front of the children.”
(Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter
Group 2020) ¶ 5:71.1.)
Of course, an order affecting First Amendment rights
“ ‘ “must be tailored as precisely as possible to the exact needs of
the case.” ’ ” (In re Marriage of Evilsizor & Sweeney, supra, 237
Cal.App.4th at pp. 1430-1431.) Accordingly, some courts have
held that orders enjoining a parent’s speech and the
dissemination of independently-acquired information outside the
immediate family are “too attenuated from conduct directly
affecting the children to support a prior restraint” on speech. (In
re Marriage of Candiotti, supra, 34 Cal.App.4th at p. 726.) For
example, in Molinaro v. Molinaro, supra, 33 Cal.App.5th at
p. 826, the Court of Appeal reversed a portion of a domestic
violence restraining order that prohibited a husband “from
posting anything about his divorce case on Facebook.” The
“Facebook posts were not specifically directed to the minor
children, but in many cases invited comments from [the
husband’s] adult friends and extended family.” (Id. at p. 833.)
The appellate court found that “although the trial court plainly
had the power to prohibit [the husband] from disparaging [the
wife] in the children’s presence [citation], the order here . . . was
‘much more far-reaching,’ proscribing speech only peripherally
related to the case and speech that might, at worst, ‘cause others,
outside the immediate family, to think ill’ of [the wife].” (Ibid.)
However, other appellate courts have found that
restraining speech “that has been determined after a hearing to
constitute abuse is not the type of ‘speech’ afforded constitutional
17
protection.” (In re Marriage of Evilsizor & Sweeney, supra, 237
Cal.App.4th at p. 1427; see also Balboa Island Village Inn, Inc. v.
Lemen (2007) 40 Cal.4th 1141, 1153 [“injunctive order prohibiting
the repetition of expression that had been judicially determined
to be unlawful did not constitute a prohibited prior restraint of
speech”]; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853 [if
First Amendment issue had been preserved for appeal, appellate
court would conclude that order “to ‘not post photographs, videos,
or information about [respondent] to any internet site’ and to
‘remove the same from any internet site over which he has access
or control’ ” was directed at conduct that constituted abuse and
not protected by the First Amendment]; Planned Parenthood
Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 352 [an
injunction “may ‘deprive the enjoined parties of rights others
enjoy precisely because the enjoined parties have abused those
rights in the past’ ”].)6
While it initially appears that the first three “other orders”
may be overbroad, the determination of whether there has been a
constitutional violation will depend on the specific facts of this
case. The orders seem to relate directly to Mother’s previous
actions, including creating a website that alleges Father is a
criminal, posting his deposition online, and posting on social
media that Father committed crimes against her. Mother’s
filings also suggest that then-9-year-old Son may have accessed
these postings on the internet. We simply do not have before us
an adequate record from which we may determine whether
6 Abuse under the Domestic Violence Protection Act
includes disturbing the peace of the other party. (In re Marriage
of Nadkarni (2009) 173 Cal.App.4th 1483.)
18
sufficient evidence supported a finding that such speech
amounted to abuse and whether the “other orders” could have
been more narrowly drawn while still protecting Father, his wife,
and Son from abuse. Accordingly, we must follow the well-
established principle that the family law court’s order is
presumed correct. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-
609.)
D. Mother Has Not Demonstrated the Family Law
Court’s Restraining Order Violated Her Right to
Association
In the questions presented portion of her opening brief,
Mother asks whether “the terms of the Amended Restraining
Order infringe unconstitutionally on Appellant’s right to
associate with her natural child and provide parenting?”
However, Mother did not develop any legal argument on this
issue and, thus, has waived it for purposes of appeal. (Nelson v.
Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862.)
Further, “[t]he principle of the best interests of the child is the
sine qua non of the family law process governing custody
disputes. ‘Although a parent’s interest in the care, custody and
companionship of a child is a liberty interest that may not be
interfered with in the absence of a compelling state interest, the
welfare of a child is a compelling state interest that a state has
not only a right, but a duty, to protect. [Citations.]’ [Citation.]”
(Banning v. Newdow (2004) 119 Cal.App.4th 438, 447-448.)
19
E. Mother Does Not Have a Constitutional Right to a
Jury Trial or to Be Free from Cruel and Unusual
Punishment in Family Law Court Child Custody and
Visitation Proceedings
Mother contends the family law court’s amended orders
violate her constitutional rights to a jury trial and to be free from
cruel and unusual punishment. Mother is wrong. “The right to a
jury trial is not absolute. ‘The right so guaranteed by the
Constitution is that of the right as it existed at common law or in
those cases triable by a jury as a matter of right under the
common law.’ [Citation.]” (In re Marriage of Gagne (1990) 225
Cal.App.3d 277, 289.) “Family law proceedings and other actions
as to which a right to jury trial did not exist at common law do
not fall under this constitutional provision.” (Grafton Partners v.
Superior Court (2005) 36 Cal.4th 944, 951, fn. 2.) As to Mother’s
Eighth Amendment challenge, the cruel and unusual punishment
clause prohibits the imposition of a penalty that is
disproportionate to a criminal defendant’s personal responsibility
and moral guilt. Mother does not cite to and we have not found
any authority extending the Eighth Amendment to child custody
and visitation orders.
F. Any Error in Service of the Restraining Orders Was
Harmless and Does Not Warrant Remand
Mother contends she was not personally served with a copy
of (1) the original petition for the temporary restraining order;
(2) the temporary restraining order; (3) “the petition for the first
Amendment of the Restraining Order of February 25, 2019 and
when it was signed,” which she received by mail; (4) “the petition
for the Amended Restraining Order (note a proper petition was
never filed and there was no hearing)”; and (5) the signed
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amended restraining order, “as required by Family Code section
243.” Even if objections to the manner and timeliness of service
of items (1) through (2) were appealable, the time for appeal has
long since lapsed because these orders were issued prior to
February 25, 2019. As to items (3) through (5), Mother has not
demonstrated these items could not be served by mail, nor has
she shown any prejudicial error. By its plain terms, Family Code
section 243 applies only to temporary restraining orders: “If a
petition under this part [Part 4. Ex Parte Temporary Restraining
Orders] has been filed, the respondent shall be personally served
with a copy of the petition, the temporary restraining order, if
any, and the notice of hearing on the petition. . . .” (Id., subd.
(a).) We note that form DV-250, Proof of Service By Mail,
expressly prohibits certain forms from being served by mail, but
not the forms at issue in this appeal, which include DV-130
(Restraining Order After Hearing), DV-140 (Child Custody and
Visitation Order), and DV-150 (Supervised Visitation and
Exchange Order). In fact, form DV-250 expressly lists form DV-
130 as a document that may be served by mail.
Finally, the appellate record demonstrates Mother was
present with counsel at the May 7, 2019 hearing, and that she
had ample opportunity to file pleadings and evidence prior to the
hearing.
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DISPOSITION
The August 1, 2019 amended orders are affirmed.
Respondent is to recover his costs on appeal.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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