Ins and Outs of the Developing DVPA Case Law
Janet L. Frankel, CFLS
In 1992, Janet Frankel opened her private law practice. In 2004, Janet became certified as a family law specialist by the CA State Bar Board of Legal Specialization. She mentors attorneys who accept pro bono family law matters through the JDC Program of BASF, and mentors law school students interested in family law. In 2005, Janet co-authored Dissolution Strategies, published by CEB, and she was selected as a Northern California Super Lawyer that same year. Janet regularly serves as a Judge pro tem in the Unified Family Courts of the San Francisco Superior Court. Janet has been an Adjunct Professor at SF Law School (Alliant University) since 2006, teaching Community Property and Mediation. She is a past Chair of the BASF Family Law Section. Janet also volunteers monthly in KALW’s public service radio program "Your Legal Rights," where listeners call in to pose their legal questions to certified specialists off the air.
The Domestic Violence Prevention Act (DVPA) enjoins a large range of abusive behavior, as it should. Domestic violence is a serious societal problem, whether it is ongoing verbal abuse or physical attacks with weapons. There are long-term ill effects on the development of young children who witness domestic abuse. Violence in our society is an ever-increasing problem – just look at recent gun violence incidents around our state and the nation.
Our family courts and practitioners often have difficulty when adjudicating or litigating requests for domestic violence restraining orders. The March 2019 Orange County case of N.T. v. H.T. is just one recent example.1
In N.T. v. H.T., the trial court denied wife’s request for a permanent restraining order, even though husband had violated the temporary restraining order. Husband admitted to the violations of the TRO but explained that his behavior was intended to bring his family back together. The trial court noted that husband’s "technical" violations of the TRO had not caused physical injury, and committed clear error when it stated it was "not aware of any authority that says a violation of a TRO is in and of itself domestic violence."2 The Fourth District Court of Appeal reversed because, pursuant to Family Code section 6203(a)(4), engaging in enjoined behavior is abuse for the purposes of the DVPA. Why didn’t the trial court correctly apply the plain language of the DVPA?
In Lugo v. Corona,3 the trial court denied wife’s request for domestic violence restraining order on the basis that there was an existing criminal protective order in place, which the court of appeal found was an erroneous basis for denying the restraining order. The existence of a criminal protective order is not a bar to the issuance of a domestic violence restraining order, and criminal and civil protective orders may coexist.4 The language in the Penal Code and the Family Code is permissive, not mandatory. The problem was that the trial court did not make any findings about whether there was sufficient evidence of domestic violence – or "abuse" – to warrant a domestic violence restraining order.5 The parties in Lugo represented themselves but nonetheless provide a learning opportunity for attorneys and judicial officers. The remedies in the DVPA are different from those in the criminal court, because the purpose of a DVRO is protection, not punishment. If your client needs the additional protection of a domestic violence restraining order, do not let the existence of a criminal protective order deter you from seeking one.
Other recent cases show reversals of trial courts considering inadmissible evidence, ignoring violations of existing orders, and making extra-jurisdictional orders. In June 2019, in Marriage of Ankola, a Santa Clara County trial court issued mutual restraining orders even though only husband had filed a proper formal request. This was reversible error in the face of Family Code section 6305, which specifically provides that mutual restraining orders may not issue unless both parties have filed formal requests "using the mandatory judicial council restraining order application form."6 The statute even goes so far as to state that "written evidence of abuse or domestic violence in a responsive pleading does not satisfy the party’s obligation to present written evidence of abuse or domestic violence."7 In Ankola, husband filed his request for a domestic violence restraining order after wife had been granted a domestic violence restraining order protecting her from husband. Perhaps, in issuing mutual orders, the trial court meant only to reiterate the validity of wife’s pre-existing restraining order.
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In December 2018, in Martindale v. Ochoa,8 the Sonoma County trial court denied wife’s request for renewal of a three-year DVRO. The trial court found that husband did everything he could to avoid all contact with wife, that wife did not demonstrate any reasonable fear of future abuse, and that wife appeared to intentionally seek out encounters with husband. The appellate court affirmed the denial, noting that husband had moved on and was not interested in any further contact with wife.9 Martindale discusses the interesting question of what constitutes a reasonable apprehension of future abuse. Martindale refers to the oft-cited 2004 case of Ritchie v. Konrad,10 which states that a subjective fear is not enough, but must be measured against the standard of a reasonable person in similar circumstances.
In re Marriage of Davila and Mejia,11 published in November 2018, affirmed the Los Angeles trial court’s issuance of a three-year DVRO against Mejia. Mejia had two arguments on appeal. First, he argued that Davila should not have been allowed to testify that Mejia held a gun to her head because Davila’s initial request made no mention of a gun, and instead simply alleged that Mejia had threatened her with physical harm. The trial court learned about the gun when Davila was asked about those threats. Mejia testified that Davila’s allegations regarding the gun were not true. Mejia therefore had his opportunity to rebut those allegations. Mejia’s second argument was that the trial court improperly refused to consider Mejia’s proffered impeachment evidence. When Mejia attempted to impeach Davila’s credibility by asserting that Davila had committed welfare fraud, Davila replied that the welfare fraud case against her was dismissed. The trial court told the parties, "I am not taking any allegations of welfare fraud [into] consideration in making this determination."12 Mejia’s argument failed on appeal because he had his opportunity to present evidence but offered no documents for the court to consider. If Mejia had proffered documents to be admitted into evidence, then the appellate court would have had something to consider. Davila’s lesson is: Get your evidence in, even if the court suggests it won’t be considered.
In October 2018, In re Bruno M.13 was affirmed on appeal. A Los Angeles court issued restraining orders protecting a mother (Evelyn) and two young children (Bruno, age 5, and Allison, age 2) from father (Pedro). Pedro appealed. Pedro’s sole contention on appeal was that the children should not have been included in the restraining orders. Pedro argued that, while the children "may have been present during domestic violence between mother and father, … they were never involved in the melee."14 Bruno once asked Evelyn, "Why didn’t you make my daddy happy so he won’t hit you?"15 Pedro had been beating Evelyn three times a month for ten years, often in front of the children. Bruno "yelled at his father to stop. Allison covered her ears. At one point, Bruno thought his unconscious mother was dead."16 Bruno mimicked hitting his little sister the same way he had seen his father hit his mother.
The Bruno appellate court upheld the restraining orders protecting the children, which were based on Welfare and Institutions Code section 213.5. Section 213.5 refers to applications made under Family Code section 6300 if related to domestic violence, and was amended in 2010 to include "disturbing the peace" as enjoined behavior. The Bruno court reviewed the record for sufficient evidence to support the trial court’s finding that Pedro had "disturbed the peace" of the children; there was no need to find evidence of physical harm or a reasonable apprehension of future physical abuse (of which there seemed to be sufficient evidence as well). The Bruno court held, "Plainly, there was substantial evidence that father ‘disturbed the peace’ of Bruno and Allison."17
Given the wide range of enjoined behavior and the challenges interpreting the DVPA, what changes can be made to improve the system? Here are some ideas:
A "tiered" approach: Should someone who engages in ongoing physical violence receive the same treatment as a spouse who had a single verbally abusive outburst as the parties were separating? What about situations where the domestic abuse is linked to substance abuse, and the substance abuse gets under control? A "tiered" system of remedies might help our courts in their struggle to find justice while applying the law.
DAPA instead of DVPA: Replace the word "violence" with "abuse" in the DVPA. The resultant "DAPA" would make it clear that all enjoined behavior is abuse, not just physical violence. This one change alone would make it clear that any abusive behavior, even if it not physically violent, will not be tolerated.
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More training: How much understanding do our judicial officers have about domestic violence? How much understanding do family law practitioners have about domestic violence? We all bring bias based on our own experience to the table; judges and attorneys are no different. To fully understand the ramifications of domestic abuse, judges and attorneys might benefit from additional training regarding domestic violence and the forms it takes, the power imbalance it often represents, and its detrimental impact on child development.
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Notes:
1. N.T. v. H.T., 34 Cal. App. 5th 595 (2019).
2. Id. at 601.
3. Lugo v. Corona, 35 Cal. App. 5th 865 (2019).
4. Id. at 870.
5. Id.
6. Cal. Fam. Code § 6305(a)(1).
7. Id.
8. In re Marriage of Martindale & Ochoa, 30 Cal. App. 5th 54 (2018).
9. Id. at 62.
10. Ritchie v. Konrad, 115 Cal. App. 4th 1275 (2004).
11. In re Marriage of Davila and Mejia, 29 Cal. App. 5th 220 (2018).
12. Id. at 225.
13. In re Bruno M., 28 Cal. App. 5th 990 (2018).
14. Id. at 996.
15. Id. at 994.
16. Id. at 997.
17. Id. at 996.