68 Cal.App.5th 491
Cal. Ct. App.2021Background
- Jeff and Michelle Ashby married in 2005, separated in 2016; Michelle obtained an ex parte domestic violence restraining order (DVRO) after incidents including loud verbal abuse, a physical shove causing a bruise, and Jeff’s display of a loaded firearm; Michelle’s aunt corroborated some facts.
- In 2016 Judge Kelly held a contested hearing, credited Michelle, discredited Jeff, and issued a three‑year DVRO with firearm restrictions, custody to Michelle, supervised/coordinated co‑parenting measures, and a 52‑week batterer’s program for Jeff.
- The restraining order was later modified several times (e.g., limits on phone‑tracking, supervised family counseling). Michelle moved to Idaho citing fear, financial hardship, and ongoing stalking/harassment; Judge Melzer denied Jeff’s request to terminate the DVRO but removed the children as protected parties and set a custody/visitation plan.
- Michelle sought renewal of the DVRO in 2019 for five years; Jeff argued changed circumstances (move, distance, completion of programs, increased custodial time) and urged termination/modification and lack of current fear.
- Judge Vu renewed the DVRO for five years. On appeal the court affirmed, holding Jeff forfeited his substantial‑evidence challenge by failing to fairly present adverse evidence and that the trial court did not abuse its discretion or misapply the law in renewing the DVRO.
Issues
| Issue | Michelle's Argument | Jeff's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by relying on prior findings and failing to evaluate current circumstances | Prior findings and the record (including post‑order events) support a reasonable apprehension of future abuse; court may consider underlying facts of original DVRO | Court improperly relied on earlier orders and should have given greater weight to changed circumstances (move, distance, compliance, increased visitation) | No abuse of discretion; court considered prior findings and current facts and reasonably concluded risk of future abuse remained |
| Whether substantial evidence supports renewal (reasonable apprehension of future abuse) | Michelle continues to reasonably fear future abuse based on original incidents, ongoing tracking/stalking allegations, violations, and hostile conduct | No current reasonable apprehension: no recent physical abuse, Jeff completed programs, lives >1,000 miles away, increased custodial time | Renewal supported; appellant forfeited a full sufficiency challenge by failing to summarize favorable and unfavorable evidence; record contains substantial evidence supporting renewal |
| Whether compliance with DVRO precludes renewal or renders violations irrelevant | Prior violations, persistent hostile conduct, and noncompliance (e.g., phone‑tracking, custody/financial misconduct) support ongoing risk | Compliance (or lack of recent violent incidents) shows no real risk; violations were unrelated custody/financial disputes | Compliance does not preclude renewal; violations and other misconduct were relevant and the record showed noncompliance that supported reasonable apprehension |
| Whether the trial court applied the correct legal standard for renewal | Renewal requires finding by preponderance that protected party has reasonable apprehension of future abuse; court applied Ritchie factors and considered burdens on restrained party | Court misapplied the standard by overrelying on earlier findings and not independently weighing current evidence | Court applied correct legal standard; its findings and reasoning satisfied applicable law and were reviewed for abuse of discretion |
Key Cases Cited
- Ritchie v. Konrad, 115 Cal.App.4th 1275 (2004) (renewal requires objective test: protected party must show by preponderance a "reasonable apprehension" of future abuse; trial court should consider facts underlying initial order and any material changes)
- Cueto v. Dozier, 241 Cal.App.4th 550 (2015) (standard of review: renewal order reviewed for abuse of discretion; legal questions reviewed de novo)
- Loeffler v. Medina, 174 Cal.App.4th 1495 (2009) (termination of a restraining order is governed by injunction principles; restrained party bears burden to show material change/ends of justice)
- Boeken v. Philip Morris, Inc., 127 Cal.App.4th 1640 (2005) (appellate review presumes judgment correct; appellant must show insufficiency of evidence and fairly summarize favorable and unfavorable evidence)
- In re Marriage of Martindale & Ochoa, 30 Cal.App.5th 54 (2018) (restrained party is collaterally estopped from relitigating the sufficiency of evidence supporting the initial issuance of a protective order)
- Rybolt v. Riley, 20 Cal.App.5th 864 (2018) (a restrained party’s violations can support a finding of reasonable apprehension of future abuse)
- Pope v. Babick, 229 Cal.App.4th 1238 (2014) (appellant must set forth full and fair statement of the evidence on appeal; failure to do so results in waiver/forfeiture)
- Sabbah v. Sabbah, 151 Cal.App.4th 818 (2007) (testimony of a single witness may be sufficient to support findings in domestic relations matters)