Marriage of F.M. & M.M.
65 Cal.App.5th 106
Cal. Ct. App.2021Background
- Parties are Nigerian-born, married 2002, six children; dissolution petition filed by mother in Aug 2018 while parties continued to live together.
- Mother filed a pro. per. DVRO petition Aug 15, 2019 alleging repeated verbal abuse, threats to kill, physical assaults, and one child moved by father without permission; court issued a TRO but denied some relief pending hearing.
- Multiple DVRO hearings took place Sept–Dec 2019; court ordered mother to move out, reissued TROs, and heard competing testimony.
- At the December hearing the court excluded evidence of alleged abuse that occurred after mother filed the DVRO, faulted mother for lack of corroboration and date specificity, treated residential separation as substituting for a restraining order, and denied the DVRO.
- Appellate court reversed: it held the trial court erred by (1) refusing to consider postfiling abusive conduct and TRO violations, (2) imposing a corroboration/specificity requirement not in the DVPA, and (3) treating physical separation as a substitute for DVPA protections; case remanded for a new hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could categorically exclude evidence of abuse occurring after the DVRO petition (and after issuance of the TRO) | Mother: postfiling abuse and TRO violations are relevant to whether a permanent DVRO should issue and the statute places no temporal cutoff | Father: (implicitly) postfiling events are not relevant to the petition as filed | Court: Excluding postfiling abuse was legal error; postfiling conduct (especially TRO violations) is relevant and must be considered; reversal required |
| Whether the trial court properly required corroboration and strict date-specificity for mother’s testimony | Mother: DVPA allows issuance based on affidavit/testimony alone; no corroboration or heightened specificity required | Father: (implicitly) mother’s testimony was too general and uncorroborated to meet burden | Court: Imposing a corroboration or heightened specificity requirement was error; a petitioner’s testimony alone can suffice and must be weighed without such a rule |
| Whether physical separation (mother moving out) negates need for a restraining order | Mother: Separation does not bar relief; DVPA expressly allows petitions even when petitioner vacated household; coparenting requires protection | Father/Court below: Living separately eliminates the need for a DVRO; parties should just "stay away" | Court: Physical separation is not a substitute for statutory protections; denial on that basis was improper |
| Whether the trial court’s errors were prejudicial and require remand | Mother: Errors likely changed outcome because postfiling threats and alleged assault could support a DVRO | — | Court: Errors were prejudicial; reasonable probability of a more favorable result absent error; reversed and remanded for a new hearing |
Key Cases Cited
- Nevarez v. Tonna, 227 Cal.App.4th 774 (protective order may be issued on reasonable proof of past acts of abuse)
- In re Marriage of Davila & Mejia, 29 Cal.App.5th 220 (abuse of discretion standard for DVRO rulings)
- N.T. v. H.T., 34 Cal.App.5th 595 (violation of a TRO can itself constitute abuse under the DVPA)
- In re Marriage of Fregoso & Hernandez, 5 Cal.App.5th 698 (a single witness’s testimony may constitute substantial evidence)
- Cueto v. Dozier, 241 Cal.App.4th 550 (trial court may not substitute bench admonitions or separation for legal protection of a restraining order)
- Eneaji v. Ubboe, 229 Cal.App.4th 1457 (trial court’s discretion must apply correct legal standards; errors of law require de novo review)
- In re Marriage of Nadkarni, 173 Cal.App.4th 1483 (DVPA construed broadly to prevent domestic violence)