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Case of the Month Archive

May 2020

Trial court says the case was "'very contentious and fraught with high conflict'". . .


In affirmance, Fourth District holds that trial court did not err in issuing mutual restraining orders where evidence supported its determination that both spouses had acted as primary aggressors at various times where domestic violence occurred and neither acted only in self-defense in the incidents


In re Marriage of Everard

(March 30, 2020)

California Court of Appeal 4 Civil D075110 (Div 1) 45 Cal.App.5th109, 260 Cal.Rptr.3d 556, 2020 FA 1931, per Benke, Acting PJ (Irion and Dato, JJ, concurred). San Diego County: Martin, J, affirmed. For appellant: Anthony Boucek, (619) 850-3313. For respondent: No appearance. CFLP §C.11.10.


According to his appellate brief (facts taken as true since respondent failed to file a brief), Kyle Everard married Valerie in 2004. Their twins were born in February 2009. The couple separated on December 14, 2017, and five days later, Kyle filed a request for a DVRO, based on Valerie's several incidents of domestic violence toward him. In a supporting declaration, Kyle stated that he had been living at his mother's house because of Valerie's escalating domestic violence. He related that on December 17, 2017, he was on a FaceTime call with the twins when they began screaming to Valerie to stop threatening to cut herself with a steak knife in an apparent attempt to remove a tattoo of Kyle's name. Kyle called police and promptly went to Valerie's house to pick up the twins. A sheriff's officer was there when he arrived and had diffused the situation by sending Valerie to stay at her mother's. Kyle's declaration also described other incidents in which Valerie threw things at him, hit and injured him, kicked him, and held a barbeque fork to his chest, saying she'd like to "'run it through [his][effing] heart.'"


On December 30, 2017, Valerie filed her own request for a DVRO, plus custody of the twins, and asked for an order allowing her to live in the family home. In her supporting declaration, Valerie asserted that Kyle was the aggressor in the various incidents of domestic violence that she described, and claimed that he drank to excess, followed her around inciting her to hit him and blocking her path through the house, threw her down on the bed and sofa where he tried to strangle or smother her. In one such incident, another sheriff's deputy arrested Kyle and he spent the night in jail. After filing amended declarations, the couple reached a stipulated agreement to stay away from each other and to let Kyle have legal and physical custody of the twins, with supervised visitation for Valerie. The trial court ordered the parents and the twins to attend programs to address their various issues and scheduled a follow-up hearing for August 22, 2018.


In a brief prepared for that hearing, Kyle listed the many ways that Valerie had violated the stay away stipulation, claimed that her declaration contained numerous falsehoods, and asserted that he had only been defending himself from her frequent assaults. Kyle also submitted a report by the sheriff's deputy who responded to the December 17, 2017 incident. That report described Valerie's fear of Kyle, her distress over the incident, and her admission that there had been numerous unreported incidents of domestic violence between the two. The deputy also reported Kyle's descriptions of the various incidents and his concern for the twins.


Kyle, Valerie, and the deputy testified at the August 22 hearing. The parties detailed various incidents of domestic violence between them, each describing the other as the primary aggressor. The deputy testified that he found the things that Valerie told him to be credible and he believed that she was genuinely afraid of Kyle when he started to lose control. When the hearing concluded, the trial court found that both Kyle and Valerie had submitted sufficient evidence to support its issuing mutual restraining orders per Fam C §6305. The court also determined that both had acted as primary aggressors at different times during the many incidents of domestic violence that had occurred. The trial court did not find the parties' claims of self-defense credible. However, it did find Valerie's claims of fear of Kyle's belligerence credible, as supported by the sheriffs' reports. The court expressed concern over the welfare of the twins, given the ongoing animosity between their parents and opined that mutual restraining orders would give the twins a break from the conflict. The trial court also ordered Kyle and Valerie to participate in mediation re the custody and visitation issues and appointed counsel for the twins.


Kyle appealed, but the Fourth District affirmed.


It wasn't just that. . .
Kyle contended that the trial court shouldn't have issued a DVRO against him that was based solely on the deputy's report. The justices began by reviewing the provisions of Fam C §6305, which specifies that a trial court may not issue mutual restraining orders unless both parties personally appear and each presents written evidence of abuse or domestic violence on the required Judicial Council form; it is not enough that the evidence is contained in a responsive pleading. The trial court must make detailed findings of fact indicating that both parties acted as primary aggressors and neither acted primarily in self-defense. The statute also directs the court to consider the provisions regarding primary aggressors found at P C §36 (c)(3), which defines those persons as those who are the dominant aggressors, not just the first aggressors. The panel then focused on the record to see whether the lower court based its order against Kyle only on the deputy's report, and found that it had not. The trial court, the justices determined, had based its order on parts of Kyle's testimony, Valerie's testimony, the parties' declarations, and the reports of both deputies who had responded to incidents of domestic violence.


The devil in the details. . .
The justices then considered Kyle's claim that the trial court failed to make the detailed findings of fact as to his aggressive actions required by Fam C §6305. The justices didn't agree. They acknowledged that there was "little if any caselaw" describing what findings will satisfy the requirement. However, they found that "at a minimum" there must be a finding of abuse by both parties. The panel noted that in Conness v. Satram (2004) 122 Cal.App.4th 197, 18 Cal.Rptr.3d 577, 2004 CFLR 9758, 2004 FA 1162, the court had reasoned that the findings requirement "helps ensure" that the court makes mutual restraining orders based on a "careful evaluation of a thorough record" and not on one party's going along with the other party's insistence on mutual orders. The justices also noted that the court in Monterroso v. Moran (2006) 135 Cal.App.4th 732, 37 Cal.Rptr.3d 694, 2006 CFLR 10217, 2006 FA 1225, followed Conness in reversing mutual orders that it appeared to have issued apparently as "an expedient way to protect or mollify Moran and resolve the matter without reaching the merits." Those justices explained that courts must be sure to "root out the truth in each case and protect victims when possible." Finding guidance in Moran, the panel here found that findings are sufficiently detailed if they contain sufficient factual findings and analysis to permit a reviewing court to assess the factual or legal basis for the trial court's decision. Here, they concluded, the trial court's findings met that criteria and were sufficient to support the issuance of a DVRO against Kyle. Accordingly, the panel affirmed that order.





We have merely summarized the incidents of domestic violence that are the basis for the mutual orders. The opinion contains many more of the gory details of each one, if readers are interested. We think that the main takeaway from the opinion is its discussion of what constitutes detailed factual findings as required by Fam C §6305. The trial court will make those findings, but our pleadings and trial briefs should give it a blueprint for doing so. These days, courts are busier than ever with domestic violence cases and trial judges will appreciate it if we set forth the facts on which we want them to rely in a clear narrative of each incident that includes more than a summary. We also need to prepare our clients carefully if they are going to testify. Hopefully, they will come across as credible because they are telling the truth. However, it will help if they are cautioned against embellishing the facts or straying from narrative we've given the court. And, since these cases are highly emotional, clients must also be cautioned to keep their cool, in order to keep their credibility.



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