Marriage of Brubaker and Strum CA2/7
73 Cal.App.5th 525
| Cal. Ct. App. | 2021Background
- Betsey Brubaker obtained a two‑year domestic violence restraining order (issued Feb. 22, 2018) against her then‑husband Andy Strum after allegations of threats, stalking, harassment, and situational physical endangerment to her and the children. The order prohibited contact and set a 100‑yard buffer, with limited exceptions for custody exchanges.
- During dissolution proceedings, a commissioner found some OFW communications violated the restraining order and limited Strum’s messaging; the family law court later awarded Brubaker sole custody and stated Strum had “complied with the terms” of the permanent restraining order and had “not committed any further acts of domestic violence since [the restraining order] was issued.”
- Brubaker sought renewal of the restraining order before its expiration, alleging ongoing harassment via OFW, manipulative school volunteering to be near her, and aggressive exchanges during child handoffs.
- Strum moved in limine to exclude evidence before May 24, 2018 and to bar evidence of conduct through Feb. 13, 2019 based on issue preclusion from the dissolution decision. The trial court granted the preclusion motion in large part, excluded much prior evidence (including evidence underlying the original order), and limited Brubaker to events after the dissolution court’s findings.
- The trial court denied renewal, finding Brubaker’s testimony and the admitted OFW messages insufficient to show a reasonable apprehension of future abuse. Brubaker appealed.
- The Court of Appeal reversed, holding the trial court wrongly applied issue preclusion, erroneously excluded the original‑order evidence, and must hold a new hearing allowing all relevant evidence on whether a reasonable person in Brubaker’s circumstances would fear future abuse.
Issues
| Issue | Brubaker's Argument | Strum's Argument | Held |
|---|---|---|---|
| Whether issue preclusion barred evidence of Strum’s conduct from Feb 2018–Feb 2019 at the renewal hearing | Preclusion did not apply because the dissolution court decided a different issue (custody presumption under §3044), not whether Brubaker reasonably feared future abuse | The dissolution decision necessarily resolved that Strum committed no further acts after the restraining order, so those facts cannot be relitigated | Issue preclusion did not apply: the prior proceeding resolved a different issue (custody rebuttal), so the evidence remained admissible for renewal purposes |
| Whether renewal requires proof of additional abuse after the original order | Renewal may be granted without showing further abuse; statute and precedent permit renewal based on reasonable apprehension of future abuse relying on past acts | The trial court correctly focused on post‑trial conduct and the dissolution court’s findings when evaluating renewal | Trial court erred: renewal does not require proof of new abuse after the original order; court must evaluate reasonable apprehension based on all relevant facts (including past conduct) |
| Whether the trial court properly excluded the evidence underlying the original restraining order | Excluding that evidence prevented Brubaker from proving reasonable fear of future abuse; original‑order facts are relevant to renewal | The trial court permissibly relied on Judge Goldberg’s two‑year limitation and the dissolution court’s findings to exclude or deprioritize earlier evidence | Excluding the underlying evidence was an abuse of discretion; the court must consider those facts in assessing future risk |
| Remedy: Whether the denial of renewal was reversible | Reversal and new evidentiary hearing permitting all relevant evidence is necessary | The trial court’s errors were harmless or did not warrant reversal | Court reversed and remanded for a new hearing; Brubaker awarded costs on appeal |
Key Cases Cited
- Ritchie v. Konrad, 115 Cal.App.4th 1275 (2004) (renewal under §6345 does not require proof of further abuse occurring after the original order)
- Perez v. Torres‑Hernandez, 1 Cal.App.5th 389 (2016) (Act’s definition of abuse is broader than physical assault; renewal may rest on past acts)
- Lister v. Bowen, 215 Cal.App.4th 319 (2013) (renewal standard: whether a reasonable person in the protected party’s circumstances would have a reasonable apprehension of future abuse)
- Ashby v. Ashby, 68 Cal.App.5th 491 (2021) (violations of a protective order may support reasonable apprehension, but compliance does not preclude finding of apprehension)
- DKN Holdings LLC v. Faerber, 61 Cal.4th 813 (2015) (elements and limits of issue preclusion)
- Lucido v. Superior Court, 51 Cal.3d 335 (1990) (identical‑issue requirement for collateral estoppel focuses on identical factual allegations)