HEBAH ABDELQADER v. ABDO ABRAHAM
D078652
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 3/10/22
CERTIFIED FOR PARTIAL PUBLICATION* (Super. Ct. No. 18FL012730C)
Law Office of Melissa J. Schmitt and Melissa J. Schmitt, for Plaintiff and Appellant.
Cage & Miles and John T. Sylvester, for Defendant and Respondent.
Hebah Abdelqader appeals an order following a bifurcated trial wherein the superior court denied Hebah‘s request for a restraining order against her ex-husband, Abdo Abraham, and granted joint physical custody of the couple‘s children, A.A. and G.A.1 Hebah claims the court made multiple errors when determining she had not met her burden of proving domestic violence. In addition, Hebah asserts the court erred in failing to articulate, on the record or in writing, the reasons it found the presumption under
In the unpublished portion of this opinion, we conclude that the court did not abuse its discretion in denying Hebah‘s request for a restraining order. However, in the published portion of the opinion, we agree that the court erred in failing to state the reasons, on the record or in writing, it found the presumption under
FACTUAL AND PROCEDURAL BACKGROUND
Hebah and Abdo were married on March 3, 2007. They have two children together, A.A. (age 11) and G.A. (age 5). Hebah and Abdo separated on September 16, 2018. On October 26, 2018, Hebah filed a petition for dissolution.
There is no indication in the record whether a hearing took place on October 29, but the court issued another temporary restraining order on March 27, 2019 and set a hearing regarding the restraining order for September 19, 2019. On May 22, 2019, Hebah filed an ex parte application to terminate the temporary restraining order and take the related hearing off calendar. In support of her application, Hebah declared that she was “no longer in need of protection” and made the request “of [her] own free will” and had “not been coerced or threatened in any way by the restrained person or anyone else to make this request.” Abdo also signed the request, attesting that he had “not coerced or threatened the protected party in any way to make this request.”
On May 23, 2019, the court granted Hebah‘s application, terminating the restraining order, vacating the September 19, 2019 hearing date, and dismissing the action.
On March 9, 2020, Hebah filed another request for a restraining order against Abdo. The facts of the underlying abuse giving rise to Hebah‘s request is not in the record before us; however, the superior court issued a temporary restraining order and set a hearing on March 25, 2020. The hearing subsequently was continued to June 12, 2020.
At the June 12 hearing, the court ordered the issues of Hebah‘s request for a restraining order as well as custody and visitation of the children to be bifurcated and set for trial on July 8 and 9, 2020.
The court held the trial on July 8 and 9, 2020, at which both Hebah and Abdo testified. Hebah began her testimony by offering background information about her relationship with Abdo before they were married as well as incidents of violence occurring before she applied ex parte to dismiss the temporary restraining order in May 2019. The court explained that it was focused on “what happened since the last restraining order had been dismissed” but ultimately gave Hebah wide latitude so she would “be able to tell the story the way she want[ed] to tell it.” Thus, Hebah discussed incidences of domestic violence that occurred before she dismissed the restraining order.
On September 16, 2018, Abdo walked into the bedroom and found Hebah reading on her smartphone. Abdo asked what she was reading, and Hebah responded that she was reading an article about unwanted pregnancies and birth control. Abdo became upset and threw a bottle of shampoo at Hebah (but did not hit her). When Hebah tried to leave the room, Abdo charged at her, hit her in the back, grabbed her arm, dragged her to the back of the room, and then hit Hebah‘s back and head into the bedroom wall. Hebah was afraid and asked Abdo to let her go, but he did not do so until Hebah asked again. Hebah left the room; however, Abdo took her phone. Abdo followed Hebah downstairs and continued to call her names. Hebah returned upstairs and locked herself in the bedroom.3 Hebah testified that she did not call the police because Abdo had previously threatened to harm her if she reported any domestic violence to the authorities. Also, Hebah did not want her children to see their father dragged out of their home by the police, and, in the village from which the couple came, it was taboo for a wife to call the police on her husband.
The next day, Hebah went to the Family Justice Center to seek help. From September 18 through September 27, 2018, she locked herself in the bedroom every evening. However, on September 27, Abdo left for Florida and did not return until October 9. After Abdo‘s return, Hebah slept separately from him, with her room locked. The following day, Hebah filed for a restraining order. Hebah was notified that the sheriff‘s office had served Abdo with the restraining order that same day.
At trial, Hebah discussed why she dismissed the restraining order in May 2019. She admitted that she was feeling pressure from her family as well as Abdo‘s family to settle her dispute with Abdo. In addition, Hebah was experiencing financial pressure because she was “tens of thousands of dollars
Hebah admitted that she voluntarily traveled to court on May 22, 2019, to seek dismissal of her request for a restraining order. Before she arrived at court, she contacted Abdo to let him know what she was doing. Hebah testified that she chose to dismiss her request because she wanted “peace for [their] family” and “what‘s best for [their] children.” That said, Hebah also claimed that she did not “think [she] was in [her] right mind” at that time.4
Hebah admitted that after she dismissed the restraining order action there was no further physical violence from Abdo. Nevertheless, she pointed out other instances that she believed warranted a new restraining order.
For example, during a February 29, 2019 telephone call with the children, Abdo “flat-out threatened” Hebah (the call was conducted on speaker phone).5 Also, on March 6, 2019, Hebah had coffee with another parent of a student at A.A.‘s school. After coffee, she dropped the friend off at the school parking lot. At that time, she did not see Abdo in his car. However, when she was pulling out, she saw Abdo parked in the school parking lot. When Abdo saw Hebah leaving the lot, he sped off in his car over a cement block.6
On March 9, 2019, Hebah filed for, and was granted, a temporary restraining order.
In addition, beginning in July 2019, Hebah started seeing Abdo driving by her home. Because he had previously threatened her, Hebah testified that seeing him driving by her house frightened her.
Hebah also testified about an incident that occurred in August 2019 at an urgent care facility. One of their sons, A.A., was injured in a BMX accident
In addition, Hebah testified about an incident that occurred at A.A.‘s school on December 19, 2019 wherein Abdo and his mother approached Hebah‘s car outside the school. Both G.A. and Hebah‘s sister were in the car. Abdo and his mother were making a video recording of the car and asking Hebah‘s sister questions. Abdo also was on the phone with the police. Hebah, at this time, was not in the car. However, Hebah‘s sister called Hebah. Hebah took G.A. from the car and took him to the playground. G.A. was upset. Abdo and his mother followed them to the playground, and Abdo‘s mother continued to record them. Hebah explained that she felt unsafe and afraid for her children. Hebah and her sister also recorded the interaction on their phones after they moved away from the car.7
According to Abdo, he and his mother approached the car because he had concerns that Hebah‘s sister was unlicensed and uninsured but still driving A.A. and G.A. to and from school. His mother was primarily asking Hebah‘s sister whether she was insured. The disagreement appeared to be between Abdo‘s mother and Hebah‘s sister. Also, there was some evidence that the car was registered in Abdo and his mother‘s names.
Finally, Hebah testified about a problem she experienced during a visitation exchange of the children. The court had made temporary visitation orders on June 12, 2020.8 Shortly after the court made its visitation order, when Hebah went to pick up the children from Abdo at the exchange location, Abdo did not show up. Hebah could not get in contact with Abdo. After the parties’ lawyers became involved, Abdo returned A.A. and G.A. to Hebah at 10:00 a.m. However, during cross-examination, Hebah admitted that Abdo told her that he was confused about the exchange time and took A.A. to a class and brought both kids to an agreed place to give them to Hebah at 10:00 a.m.
Regarding custody of the children, Hebah admitted that she and Abdo had been successfully practicing a “50/50” timeshare for a few months and the
At the close of testimony, the court indicated that it was “ready to make some orders.” To this end, the court found that Abdo committed domestic violence in August and September 2018. As such, the court found that the presumption codified in
“I understand that there was domestic violence in 2018. But the fact that you did dismiss it, I think knowing what you were doing—I‘m not at all faulting that you did that. You can‘t bring that back in to have me make the DV [domestic violence] request in March only based on that because I have to find you have now a reasonable apprehension of harm, whether it‘s disturbing the peace or something else. So that‘s what I have to look at.
“Well, there is no physical aggression. I have controverting testimony on the car. And given how you love to record and he loves to record, I‘m surprised I don‘t have a recording of him driving around your neighborhood. I have one incident where you believe you‘re saying he yelled in Arabic at you. I tend to think that probably happened. I don‘t believe you, [Abdo], 100 percent, I have to say, when you say that never happened. But I don‘t think I would on that incident, even if I say it happened, say that it was domestic violence. Because yes, it would have disturbed your peace, but it wasn‘t happening repeatedly. So, whatever caused it to happen that night or day, you didn‘t tape it. I don‘t have a very good record of it.
“And then the taping of the school, while I find it embarrassing and really very childish on everybody‘s part, I don‘t think that‘s DV. She wasn‘t there. It might have disturbed your peace when you came up and saw mom and—and—and [Abdo] were recording, but I do believe there was a dispute over who was driving the car and whether they had insurance because that‘s the first thing you responded to. I think your mom was harassing her, [Abdo]. And you should tell your mother if she had gone to court, she probably would have gotten a restraining order against her; a civil one. You don‘t go around taping people even if they‘re driving your car because she is driving the car with her permission. If she wants her car back, then she should take her car back. But she‘s driving it. And that would be very unfair to the kids if you did that. So I don‘t find that to be domestic violence even in the disturbing of the peace.
“And the other incidents that are cited in here, just so I don‘t miss one, the Birney school incident in December, the February driving around the—I
don‘t have good evidence about driving around the neighborhood. And the March incident, I think I believe [Abdo], and I didn‘t see that he was threatening you in any way. And, in fact, he tried to get away. “So, as to the schedule—so I don‘t believe there is enough to meet the burden by a preponderance of the evidence as a domestic violence in March. And that the 2018 incidents do cause the Court to make a finding of domestic violence, and the 3044 presumption is in place.”
The court then awarded legal custody of the children to Hebah. However, the court continued the previous interim order sharing physical custody of the children with both Hebah and Abdo.
The court subsequently entered a judgment, which included a four-page written explanation of its reasoning, including findings of fact. The court reiterated that it found the presumption in
Hebah timely filed a notice of appeal.
DISCUSSION
I
DENIAL OF THE RESTRAINING ORDER
Hebah contends the trial court erred in denying her request for a restraining order. We disagree.
The purpose of the Domestic Violence Prevention Act (DVPA) (
“Abuse” includes, among other acts, placing a person in “reasonable apprehension of imminent serious bodily injury” or any behavior that could be enjoined under
Placing a person in reasonable apprehension of imminent serious bodily harm requires either a pattern of physical abuse or threatening conduct toward the victim seeking protection. (See Gou v. Xiao (2014) 228 Cal.App.4th 812, 814-815, 818 [court reversed order denying a restraining order request wherein wife was in “reasonable apprehension of imminent serious bodily injury” because husband bit her on the arm, and wife watched husband place child in a chokehold, whip with a stick, and strike on numerous occasions]; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450 [estranged wife sufficiently alleged being placed in a “reasonable apprehension of imminent serious bodily injury” because estranged husband “shoved, pushed, kicked, hit, slapped, shook, choked and sexually abused her. She also alleges he pulled her hair, pinched and twisted her flesh, threatened to kill her, threatened her with bodily harm, confined her in the family car while driving erratically and drunkenly and infected her with sexually transmitted diseases“].)
““[D]isturbing the peace of the other party” in
“[T]he trial court considers whether the totality of the circumstances supports the issuance of a restraining order under the DVPA. (McCord v. Smith (2020) 51 Cal.App.5th 358, 366;
Here, Hebah claims the court erred in not granting a new restraining order because: (1) it found Abdo committed domestic violence in August and September 2018; (2) the court incorrectly found that Hebah was not present during the December 19, 2019 interaction between Abdo‘s mother and Hebah‘s sister in the school parking lot; and (3) the court erred when it did not find that Abdo violated the temporary restraining order when he dispatched his sister to visit Hebah at her home on October 19, 2018 to pressure her to dismiss the restraining order action.
As a threshold matter, we note that Hebah does not discuss the applicable standard of review (abuse of discretion) or explain how the court abused its discretion in denying her request to grant a restraining order. Instead, she merely points to alleged errors and claims the superior court should have granted her the requested order. For example, she notes that the court found that Abdo committed domestic violence against Hebah in August and September 2018. And although “[a] trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334), Hebah does not elucidate why these two past events of domestic abuse warranted a restraining order some two years later. Further, it is clear the superior court carefully considered those past acts and weighed them against what was occurring more recently. To this end, the court noted that Hebah dismissed the previous temporary restraining order based on the domestic violence in August and September 2018, specifically finding “[s]he knew what she was doing when she dismissed the restraining order.” Additionally, the court found there had been “no physical aggression since October 2018” and Hebah “does not have now, in July 2020, a reasonable apprehension of harm.” We also note that the court did not find any of the interactions following Hebah‘s dismissal of the temporary restraining order constituted domestic violence, and Hebah does not challenge these findings on appeal.
Similarly, we do not find merit in Hebah‘s argument that the court incorrectly found she was not present during the events on December 19, 2019. The court found that Hebah “was not there” when Abdo and his mother first confronted and recorded Hebah‘s sister in the car at the school parking lot. Indeed, substantial evidence supports such a finding because Hebah testified that her sister called her to inform her what was happening. Moreover, the court specifically noted that Hebah later approached the car and saw Abdo and his mother recording the interaction with her sister. And Hebah‘s claim of error is further undermined by the court‘s conclusion that the December 19 incident did not constitute domestic violence.
Finally, we summarily reject Hebah‘s claim that the court erred when it did not find that Abdo violated the temporary restraining order when he allegedly dispatched his sister to visit Hebah at her home on October 19, 2018, to pressure her to dismiss the restraining order action. Hebah‘s argument is primarily based on a recording of her interaction with Abdo‘s sister. However, the court listened to the recording and did not admit it into evidence, finding it was not relevant. Hebah claims she is challenging this evidentiary ruling, but she does not provide any legal authority to support her position or make any arguments why the court abused its discretion in excluding the evidence. Accordingly, she has waived any such argument here.9 (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) In addition, Hebah does not explain how a finding that Abdo violated a temporary restraining order she ultimately dismissed established the need for a restraining order at the trial in July 2020.
II
SECTION 3044 PRESUMPTION
The trial court explicitly found the presumption under
The
Although mandatory, the presumption is rebuttable. Subdivision (b) of
Finally,
““Under the doctrine of “implied findings,” when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the [order] for which there is substantial evidence.‘” (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.) “In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence.” (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 100.) The doctrine of implied findings “is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
In the instant matter, Abdo has not provided any authority wherein a court applied the doctrine of implied findings to the requirements of
A trial court‘s obligations under
In the alternative, Abdo asserts that if we determine the court failed to comply with
In the instant action, the court awarding joint physical custody to Hebah and Abdo suggests it found the presumption rebutted. Yet, it is undisputed that the court neither made the mandatory findings under
DISPOSITION
The judgment is reversed in part and the case is remanded to the trial court for a new hearing that complies with the statutory requirement of an express statement of reasons that specifically mentions each of the seven
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.