Marriage of D.S. & A.S.
87 Cal.App.5th 926
Cal. Ct. App.2023Background
- D.S. and A.S., married with two minor children, separated; A.S. filed family law papers and an ex parte request alleging D.S. has a short temper and the children had fled the home multiple times.
- A.S. later filed a DVRO request alleging verbal/emotional abuse, substance use, threats involving a gun, accessibility of multiple firearms to children, and attached annotated transcripts and offered videos; a temporary restraining order (TRO) was initially denied but later issued after amendment.
- D.S. filed a written response denying physical abuse, disputing the evidence, offering to voluntarily comply with conduct orders, and surrendering ten firearms to the sheriff pending resolution.
- At the June 11, 2021 hearing both parties were pro se, no live witnesses were called, neither party was sworn, the court did not probe credibility or resolve hearsay/ admissibility objections, yet the court issued a three-year DVRO and firearm prohibition.
- D.S. appealed, arguing the court abused its discretion and denied due process by failing to hold an evidentiary hearing (Family Code §217/§6340) and that no substantial evidence supported the DVRO.
- The Court of Appeal concluded the hearing denied D.S. due process and reversed and remanded for a new hearing; the DVRO remains in force until 30 days after remittitur or until the new hearing concludes.
Issues
| Issue | Plaintiff's Argument (D.S.) | Defendant's Argument (A.S.) | Held |
|---|---|---|---|
| Did the trial court violate due process / Family Code §217/§6340 by issuing a DVRO without live testimony or adequate inquiry? | Court abused discretion and denied meaningful opportunity to be heard; trial judge should have elicited live testimony and probed objections. | A.S. relied on §6300 permitting issuance based on affidavit/testimony; she confirmed her declaration as true at the hearing. | Reversed: hearing procedurally deficient; due process required more active judicial fact‑finding where facts disputed and parties pro se; remand for new hearing. |
| Was there substantial evidence to support the DVRO? | No admissible evidence was received at hearing; A.S.’s written materials were facially insufficient to show abuse/disturbance of the peace. | The affidavit allegations and offered videos/transcripts supported reasonable proof of abuse. | Court did not decide sufficiency on the record; ordered new evidentiary hearing so petitioner may present evidence and respondent may rebut. |
Key Cases Cited
- Ross v. Figueroa, 139 Cal.App.4th 856 (importance of active judicial role in DVRO hearings with pro se litigants)
- Gonzalez v. Munoz, 156 Cal.App.4th 413 (abuse of discretion review and limits on judicial procedure when rights implicated)
- In re Marriage of Nadkarni, 173 Cal.App.4th 1483 (due process and trial court discretion to allow or exclude oral testimony)
- In re Marriage of Davila & Mejia, 29 Cal.App.5th 220 (standard of review for DVPA restraining order rulings)
- In re Crystal J., 12 Cal.App.4th 407 (meaningful hearing requires opportunity to examine evidence and cross‑examine)
- In re Jessica C., 93 Cal.App.4th 1027 (credibility determinations require testimonial evaluation)
- Alviso v. Sonoma County Sheriff's Dept., 186 Cal.App.4th 198 (notice and opportunity to be heard are fundamental due process requirements)
- Lovato v. Santa Fe Internat. Corp., 151 Cal.App.3d 549 (remedy for denial of full opportunity to present case is a new hearing)