Herriott v. Herriott
244 Cal. Rptr. 3d 755
Cal. Ct. App. 5th2019Background
- Paul (elder, 82) and Alicja, divorced, continued to live in the same multiunit building owned by Paul; long history of mutual accusations, litigation, and police calls.
- Paul sought an elder-abuse restraining order (EARO) against Alicja alleging physical, emotional, and financial abuse (e.g., intercepted rent check, turning off utilities, entering his unit); court issued temporary TRO and later a five-year EARO.
- Alicja sought a domestic violence restraining order (DVRO) against Paul alleging recent harassment and disturbing the peace (yelling, slamming iron gate, interfering with utilities); court issued a five-year DVRO.
- Trial court heard both matters together; made credibility findings, limited the meaning of "dwelling" to the petitioner’s residence (apartment unit), and declined to designate a primary aggressor while stating orders were not "mutual" under the DVPA.
- On appeal Paul argued (1) the DVRO against him was unsupported, (2) the trial court erred in construing "dwelling" to exclude the entire apartment building, and (3) the court should have made primary-aggressor findings because the orders were mutual; the appellate court affirmed and also addressed Alicja’s sanctionable but unpaid disclosure of a confidential custody report.
Issues
| Issue | Paul’s Argument | Alicja’s / Respondent’s Argument | Held |
|---|---|---|---|
| Whether DVRO against Paul was an abuse of discretion | Court lacked factual basis; Alicja not credible | Evidence of recent yelling, harassment, and testimony (including daughter) supported DVRO | Affirmed: substantial evidence supports DVRO; no abuse of discretion (DVPA discretionary standard applies) |
| Meaning of "dwelling" in Welf. & Inst. Code §15657.03(b)(4)(B) | "Dwelling" should include entire apartment building, allowing exclusion from whole building | "Dwelling" means petitioner’s residence/unit (apartment), not entire multiunit building | Affirmed: "dwelling" refers to petitioner’s residence/unit, not entire apartment building |
| Whether court had to make primary-aggressor findings under Fam. Code §6305 when both parties had restraining orders | Orders amount to "mutual" restraining orders requiring detailed primary-aggressor findings | Orders arose from different statutory schemes (DVPA and Elder Abuse Act) and are not mutual under Fam. Code §6305 | Affirmed: no §6305 findings required because orders issued under different statutes and are not "mutual" for §6305 purposes |
| Whether appellate sanctions should be imposed for attaching confidential custody evaluation to brief | Disclosure was intentional and sanctionable | Alicja lacks funds; sanction would be unreasonable burden | Appellate court found disclosure sanctionable but declined to impose monetary sanctions due to Alicja’s inability to pay |
Key Cases Cited
- Marriage of Smith, 225 Cal.App.3d 469 (1990) (appellate review of discretionary family-court orders)
- In re Marriage of Bonds, 24 Cal.4th 1 (2000) (deference to trial court credibility findings)
- Botello v. Shell Oil Co., 229 Cal.App.3d 1130 (1991) (statutory construction reviewed de novo)
- Conness v. Satram, 122 Cal.App.4th 197 (2004) (distinguishing contemporaneous mutual orders from separate orders)
- Melissa G. v. Raymond M., 27 Cal.App.5th 360 (2018) (requirements for mutual restraining orders under Fam. Code §6305)
- In re Marriage of Anka & Yeager, 31 Cal.App.5th 1115 (2019) (sanctions for wrongful disclosure of confidential child custody materials)