76 Cal.App.5th 186
Cal. Ct. App.2022Background:
- Hebah Abdelqader and Abdo Abraham, married 2007, have two children (born ~2009 and 2015); separation in September 2018 and dissolution petition filed October 2018.
- Hebah obtained a TRO based on August–September 2018 incidents (including threats, shoving, and an incident where Abdo hit her into a wall); she dismissed that TRO in May 2019 by signed court filing, stating she was not coerced.
- Hebah filed another restraining-order request in March 2020; the court bifurcated trial of DV and custody and held evidentiary hearings July 8–9, 2020.
- The trial court found domestic violence occurred in August–September 2018 (triggering Family Code § 3044) but denied a new restraining order based on the March 2020 allegations, finding no current reasonable apprehension of harm.
- The court awarded legal custody to Hebah but continued a shared physical custody arrangement; Hebah appealed, challenging denial of the TRO and the court’s failure to state reasons for rebutting the § 3044 presumption.
- The Court of Appeal affirmed denial of the restraining order but reversed and remanded solely as to the § 3044 issue for the court to make explicit, on the record or in writing, findings addressing each statutory factor.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying Hebah a new restraining order based on post‑2018 conduct | Abdelqader: prior DV findings + subsequent incidents (threats, stalking, recordings, confrontations) justified a new TRO | Abraham: court reasonably found no recent pattern or reasonable apprehension of imminent harm; prior incidents were remote and Hebah dismissed the earlier TRO | Affirmed: abuse of discretion not shown; court permissibly found no current reasonable apprehension and weighed totality of circumstances |
| Whether the court complied with § 3044 by stating reasons when it awarded joint/shared custody after finding prior DV | Abdelqader: court applied § 3044 but failed to state on record or in writing why the presumption was rebutted and did not address each § 3044(b) factor | Abraham: implied findings or failure to request a statement of decision cures any omission; error, if any, harmless | Reversed in part and remanded: court must comply with § 3044(f) and state explicit reasons addressing each statutory factor on the record or in writing |
Key Cases Cited
- Pugliese v. Superior Court, 146 Cal.App.4th 1444 (examples of conduct supporting reasonable apprehension for TRO)
- Gou v. Xiao, 228 Cal.App.4th 812 (pattern/threatening conduct showing reasonable apprehension of imminent serious bodily injury)
- Celia S. v. Hugo H., 3 Cal.App.5th 655 (mandatory application of § 3044 when court finds recent domestic violence)
- Jaime G. v. H.L., 25 Cal.App.5th 794 (§ 3044 requires specific findings on each enumerated factor when presumption is overcome)
- S.M. v. E.P., 184 Cal.App.4th 1249 (a finding supporting a DVPA restraining order triggers § 3044 presumption)
- In re Marriage of McHugh, 231 Cal.App.4th 1238 (doctrine of implied findings explained)