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Case of the Month Archive

June 2018

Trial court may deny DVPA restraining order even when abuse is proven . . .


In affirmance, First District holds wife did not intentionally or recklessly cause husband bodily injury, and wife did not abuse husband by reading and disclosing text messages


Fischer v. Fischer

(March 23, 2018; ordered published April 20, 2018)

California Court of Appeal 1 Civil A148482 (Div 2) 22 Cal.App.5 th 612, 231 Cal.Rptr.3d 621, 2018 FA 1836, per Richman, Acting PJ (Stewart and Miller, JJ, concurring). San Mateo County: Holt, J, affirmed. For appellant: Christopher Melcher, CFLS, (818) 591-3100. For respondent: Robert Roth, CALS, (415) 649-6700. CFLP §§C.9.5.5, C.10.10.


David and Joannie Fischer were married in 1999, and later had two sons, both with special needs, and now ages 16 and 12. The marriage had its “‘ups and downs’”; at times, David, who was 6’1” and weighed 185 pounds, shoved, pushed, and spat on Joannie, 5’5’’ and 130 pounds, and threw water on her. Joannie, “alone and frustrated” broke a picture frame and a bowl at separate times. The couple’s main problem, however, was that David had an affair with another woman, E.D. When Joannie learned of it, David assured her (“a million times”) that it hadn’t lasted long and was now over.


Nevertheless, David filed for divorce on October 20, 2014. After initially refusing service, Joannie filed a response denying that irreconcilable differences existed. However, she bought a house on Fletcher Drive in Atherton, while continuing to live in their Atherton family home (FH) at least part-time. According to Joannie, things began to improve between David and her, giving her hope for a reconciliation. On September 26, 2015, he brought her a birthday card and flowers prior to her birthday, which was the next day.


On her birthday, Joannie, believing that David was out of town, drove over to FH to pick up some clothes to wear at her birthday party. When she entered the house, she heard music and assumed that David was getting a massage. When she went into the closet to get her clothes, David’s phone buzzed, indicating a text message “from a famous male singer.” Curious, Joannie tapped the phone and saw E.D.’s face on the screen, after which she scrolled through “20 or so text messages” that showed that David’s affair was still going on. She was “‘heartbroken.’” About that time, David came in and saw Joannie with his phone, got in her face, and snatched the phone from her. Calling him a liar, Joannie slapped David twice, pushed him, and scratched his neck. David warned her that if she hit him again he “would call 911,” and went to pay the masseuse. Joannie followed him into his office and grabbed his phone, but David got it back; Joannie began hitting him again. David called 911, but hung up, prompting the 911 operator to call back and send police. When the police arrived, Joannie admitted slapping and pushing David after she learned he was still cheating on her. The officers “made a ‘call’ that Joannie was the primary aggressor” and arrested her, but David declined to obtain an emergency protective order.


After she was processed at the jail, Joannie called David to ask him to post bail and pick her up, which he did. David drove Joannie to the Fletcher Drive house, with her in the front seat. Once there, the family had a birthday party for Joannie, complete with cake, candles, and gifts. David then invited Joannie and the kids to spend the night at FH. The next day, Joannie phoned her four BFFs to tell them in detail about yesterday’s incident. Thinking David had gone to New York for a conference, Joannie went over to FH to pick up “some supplies” and found David sending text messages; the two exchanged snide and wounding words.


The DA later declined to prosecute Joannie and dropped all charges. Meanwhile, she stopped fighting the fact that her marriage was over and took steps to move on with her life. David, however, would not let the matter drop. On September 30, on the advice of his attorney, he filed a request for a 5-year DVPA restraining order against Joannie, demanding, among other things, that Joannie vacate the FH and stay 100 feet away from him and from the kids’ school. The trial court issued a TRO and scheduled a hearing.


On October 8, Joannie and David stipulated to a 50/50 custody timeshare, but David pressed for a custody evaluation of Joannie, pointing out that Fam C §3044 [rebuttable presumption that giving custody to domestic violence perpetrator is not in child’s best interests] might apply. On January 4, 2016, the trial court declined to order the evaluation.


At a two-day hearing on David’s restraining order request, David, Joannie, two police officers, a neighbor, and another person testified. In a lengthy statement of decision, the trial court found that Joannie had not committed an act of abuse as defined in Fam C §6203 (intentionally or recklessly causing or attempting to cause bodily injury), that her actions were taken when she discovered that her belief re David’s affair was “patently wrong,” and that her calls to her four BFFs did not constitute harassment of David, but rather an understandable reaction to betrayal. The trial court found that denying the restraining order would neither jeopardize David’s safety nor impact the kids’ welfare and safety. And, the court concluded at the incident on September 27, 2015, was “‘a singular incident’” caused by Joannie’s discovery of David’s ongoing affair. Accordingly, the trial court declined to issue a DVPA restraining order and terminated the existing TRO.


After moving unsuccessfully for a writ petition, David appealed, but the First District affirmed.


Four to explore . . .
The justices began by explaining that a trial court has the authority to consider all circumstances before exercising its broad discretion to grant or deny a DVPA restraining order. Moreover, as David admitted in his reply brief, that court may deny a DVPA restraining order even when abuse is proven. Still, the court must find that the litigant’s abuse was intentional and reckless under Fam C §6203(a)(1), including the part that incorporates Fam C §6320. The panel then noted that the lower court had made “four essential rulings” regarding its denial of the restraining order: Joannie had not committed an act of abuse as defined in Fam C §6203; her discussion with her four friends did not constitute unlawful harassment of David; denying the restraining order would not jeopardize David’s safety; and declining to issue the restraining order would not impact the safety and welfare of their sons.


Too much for Joannie . . .
With regard to the first of those findings, David contended that the trial court had impermissibly focused on Joannie’s reasons for slapping and pushing him instead of on the fact that she had done those things, which constituted abuse under Fam C §6320. David acknowledged that Fam C §6203(a)(1) required a finding that her acts were committed intentionally or recklessly to cause bodily injury, but argued that the acts enumerated in Fam C §6320, in which Joannie’s were included, did not have such a requirement. Therefore, he asserted, the trial court had misunderstood the law in finding that Joannie’s action did not constitute abuse. The panel found that analysis of Fam C §6203 to be “implausible on its face because it entirely reads out of the statute subdivision (a)(1).” If David’s interpretation was correct, the justices explained, a person who attempted to or caused bodily injury must do so intentionally or recklessly, but someone who, per Fam C §6320, strikes, telephones, or contacts another need not do so in that manner. The justices found that reading “frankly, incredible” as it would replace the mental state requirement in the statute with a strict liability provision. The justices also saw no error in the trial court’s reading of Joannie’s actions, that after seeing evidence that David’s affair with E.D. was ongoing, Joannie, felt “‘overwhelmed and flooded’” and simply “‘lost it.’” That evidence, the justices found, was enough to conclude that “Joannie was so emotionally shocked by the events that she was not thinking or acting with presence of mind, but rather instinctively in the heat of the moment” and lacked the level of consciousness needed to “constitute ‘intentional’ or ‘reckless behavior.’”


Cries and further cries . . .
The justices were not impressed by David’s contention that Joannie’s reading of his text messages, and her telling her BFFs about them, constituted abuse in that it qualified as disturbing the peace under Fam C §6320. He had cited In re Marriage of Nadkarni (2009) 173 Cal.App.4 th 1483, 93 Cal.Rptr.3d 723, 2009 CFLR 11221, 2009 FA 1392, and In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4 th 1416, 189 Cal.Rptr.3d 1, as authority, but the justices found that neither of them was “remotely applicable here.” They pointed out that the actions of the offending spouse in the former (using secretly accessed emails to ruin his wife’s business and personal relationships and leaving threatening messages) were “a far cry from what Joannie did here,” and those in the latter case (using special software to hijack his wife’s phone, attorney-client communications, and personal diary and attaching copies of salacious emails to his public disso filings) were “an even farther cry.” Given that, the panel saw no error in the trial court’s finding that Joannie’s reading and telling were not abuse.


No danger to David . . .
David also argued that Joannie’s “‘prior destruction of property’” was another act of abuse. The justices quickly rejected that argument. They pointed out that Joannie had broken a picture frame and a bowl while she was alone; thus, those actions posed no threat to David’s safety. The panel was similarly unpersuaded that gender bias was behind the trial court’s denial of the restraining order. That contention, they found, was not supported by the record, which contained many rulings that were favorable to him during the course of the proceeding. Accordingly, the justices affirmed the trial court’s orders.





The justices here say that they “could perhaps end this opinion by referring to David’s acknowledgment in his reply brief [that] . . . ‘[t]he DVPA gives courts discretion to deny a protective order even when abuse has been proven.’” However, they choose to go on with an analysis of the record and come to the conclusion that the trial court had not abused its discretion in denying the protective order, either under the law or in its reasoning. When an appellate panel says that before beginning its analysis, it does not bode well for the appellant, and it didn’t for David. Nor did the panel’s extensive descriptions of David’s behavior and deceit, including a footnote, where they tell us that Joannie had been taking care of the kids extra days so that David could travel for work more easily, only to find out that he wasn’t traveling for work, but rather, to rendezvous with E.D. The trial court properly considered this evidence, the justices say, because it “went not only to David’s credibility, but most expressly to the genuineness of his claim he fears Joannie.”



The justices have some cautionary words for appellate attorneys whose briefs contain statements of fact that are favorable to their client, but fail to include the critical facts favorable to the other side or supporting the lower court’s judgment. In a footnote, they remind appellate counsel that Cal Rules of Court, rule 8.204(a)(2)(C) requires an appellant to provide a summary of significant facts in his or her opening brief, and include instructions from Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group) which advise counsel to state the critical facts and applicable law accurately and fairly, without bias. Failure to do so, the author warns, will dilute the effectiveness of the brief, result in waiver of issues and arguments, and may draw sanctions.



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