Malinowski v. MartinMalinowski v. Martin
In 2018, Kamila Malinowski filed for dissolution of marriage from Justin Martin. While that case was pending, in September 2021, Malinowski filed an ex parte request for a domestic violence restraining order (DVRO) under the Domestic Violence Prevention Act (
On appeal, Malinowski contends the trial court erred by modifying the DVTRO without adhering to
In the unpublished portion of our opinion, we address threshold questions of appealability and mootness. Though we find the case is moot, we will exercise our discretion to retain and decide the appeal because it presents an important and potentially recurring issue of law in the context of DVPA cases involving parallel dissolution proceedings. In the published portion of our opinion, we conclude that
A. Ex Parte Request for DVRO
On September 14, 2021, Malinowski filed an ex parte request for a DVRO against Martin, seeking to protect herself, as well as the parties’ two children as additional protected persons. Malinowski requested that Martin have no direct or indirect contact with her or the children, and that he be ordered to stay at least 100 yards from them. In her application, Malinowski disclosed the case numbers for the parties’ marital dissolution action and a prior DVPA case. Her application indicated she had a child custody or visitation order that she wanted changed and asked that Martin be ordered to make a debt payment of $17,000 to the court-appointed child custody evaluator, Dr. Robin Press, for a custody evaluation.
In her supporting declaration, Malinowski described prior instances of domestic violence by Martin, including acts of abuse “‘going back to 2015‘” which resulted in a three-year DVRO in October 2020 in favor of Malinowski that did not include the children as additional protected persons. According to Malinowski, the trial judge in the prior DVPA case (Hon. Richard Dubois) indicated he would have included the children “but for the fact that the Family Court had a careful eye on their safety and health.” She further alleged nine specific instances of alleged physical and verbal abuse by Martin against the children in April, May, June, and August of 2021. In the August incident, Martin allegedly threatened to “‘punch‘” one of the children in the head. Though Malinowski acknowledged that in March 2021, the trial court in the dissolution case “ordered the removal of supervised-visitation protective measures of our children and doubled the amount of time that the children would spend with their Father,”2 she claimed the children‘s “health, safety, and emotional condition [had] dramatically declined” since unsupervised visits began.
The trial court (Hon. Rachel Holt) immediately issued a DVTRO against Martin that included the children as additional protected persons and contained a no-contact order and a stay-away order.3 The DVTRO identified no exceptions to the no-contact and stay-away orders. By its terms, the DVTRO was set to expire at the conclusion of a hearing set for October 7, 2021.
After the DVPA case was assigned for all purposes to the Honorable Sean Dabel, who was also the judge in the dissolution case, Malinowski filed a peremptory challenge under
C. November 2021
In advance of the November 1, 2021, hearing, the parties filed trial briefs, witness and exhibit lists, and motions in limine. However, the matter was reassigned several times and continued for a trial setting conference on November 17 before Judge Holt. By court order, the amended DVTRO was set to expire at the conclusion of the November 17 hearing.
At the November 17 trial-setting conference, Judge Holt calendared the DVRO trial for the earliest available date, which was in October 2022. Martin informed Judge Holt that he had not had any contact with the children for three months; that Malinowski had failed to comply with Judge Dabel‘s order to advance the $17,000 in fees for Dr. Press‘s report; and that Judge Dabel had already “lifted the restriction of the supervised visitation that had been in effect for many months.” Emphasizing that all but one of the counts in the domestic violence action had been brought to the attention of Dr. Press as part of the evaluation process in the dissolution action, Martin urged Judge Holt to defer to Judge Dabel‘s decision in July 2021 that allowed child visitation given his “working history in this case” for years.
After further argument, Judge Holt ruled that “[i]n light of the fact that there are some subsequent decisions that may be made by Judge Dabel at the end of this month,” the trial court would reissue the DVTRO with “modifications providing for the exceptions for any brief and peaceful contact that is required for any court ordered visitation of the minor children, pending any further orders in Judge Dabel‘s department.” Judge Holt clarified she was “simply providing the exceptions” that were not included in the original September 2021 DVTRO and ordered that the amended DVTRO “remain in
Thereafter Malinowski filed an ex parte application asking the trial court to reconsider or set aside its November 17, 2021, ruling. Malinowski argued that the court‘s modification of the DVTRO improperly removed the no-contact and stay-away provisions without notice or an evidentiary showing as required under
D. January 5, 2022
At the January 5, 2022, review hearing, Judge Holt began by recalling she had previously continued the matter because “you were all going to be back in front of Judge Dabel in regards to some possible custody modification. I had made the exception for brief and peaceful contact. My understanding is, that, apparently, wasn‘t filed.4 Judge Dabel didn‘t make any changes. Judge Dabel has since left the family law department.” Judge Holt further noted that both the dissolution case and the DVPA action were now assigned to her.
Martin explained at the hearing that he had not had contact with the children for five months, and he requested “the immediate restoration of contact.” Martin represented that all but one of the abuse allegations in Malinowski‘s DVRO application would be covered in Dr. Press‘s forthcoming report. Martin emphasized there was “no battery in any of the counts” and stated the children “are not in any unreasonable risk of harm.”
Judge Holt set another review hearing for March 1, 2022, based on her stated hope that Dr. Press‘s report would be released by then. Following the hearing, Judge Holt issued a second amended DVTRO on the revised version of Judicial Council form DV-110, which became effective January 1, 2022. In it, the court granted the no-contact and stay-away orders in items 8a and 9a, respectively, but also checked boxes in items 8b and 9b for “Exception” and “Other (explain): see MC-025 Attachment to this Order.” In the attached form MC-025, the court indicated it was “mak[ing] the exception for brief and peaceful contact with the minor children only during such court-ordered contacts or visits as may be ordered following the entry of this Second Amended Temporary Restraining Order.” By its terms, the second amended DVTRO was set to expire at conclusion of the DVRO trial in October 2022.
At the March 1, 2022, review hearing, Judge Holt began with a comprehensive account of the “fairly complex history” of the case to date. As she explained, when Malinowski first filed her DVRO application on September 14, 2021, “somehow it was missed that there was already an active dissolution matter, as well as the outstanding case number that the other restraining order had been issued under,” and thus, instead of going to Judge Dabel, the application went to Judge Holt “as the signing judge on Tuesdays, which I can tell you all is a flurry of ex partes in the midst of hearings in the morning and [requests for orders] in the afternoon.” Judge Holt had issued the initial DVTRO without having “the independent knowledge of what had long been going on in this case in regards to custody and evaluation.” After the matter was assigned to her, she “included the exception for any court-ordered visitation to give Judge Dabel the opportunity to make whatever orders he felt were appropriate” based on his significant history with the dissolution case involving the same parties.
Judge Holt further explained that having now had the opportunity to review all of the relevant filings and transcripts for “the hearings that occurred in front of Judge Dabel through early last year, spring, and summer,” she understood there was a “current custody order” in place dated July 1, 2021, “wherein Judge Dabel increased the timeshare with [Martin] to 15 hours per week” with “unsupervised visits, but supervised exchanges.” Judge Holt explained “the exceptions for court-ordered visitation” that she ordered in November 2021 “allow[ed] for visitation pursuant to that July 1st order.”
Judge Holt ultimately ruled that because Judge Dabel‘s July 2021 visitation order was still in full force and effect, she would delete the prior September 14 order that included no visitation to Martin. Judge Holt further ordered the DVTRO to remain in effect until the DVPA hearing in October 2022, but “with the exceptions for brief and peaceful contact for court-ordered visitation.” Malinowski objected “to the Court‘s ruling as it did without taking any evidence,” and because “[t]he matter wasn‘t even on for a ruling on visitation today.”
F. Notice of Appeal
On March 7, 2022, Malinowski filed a notice of appeal from the following orders: (1) the November 17, 2021, minute order allowing for peaceful contact for visitation and the safe exchange of the children; (2) the December 1, 2021, order denying Malinowski‘s ex parte application to reconsider or set aside the November 17 ruling; (3) the second amended DVTRO making
DISCUSSION
A. Appealability
As a preliminary matter, Martin argues that the statement of appealability in Malinowski‘s opening brief fails to comply with
Martin nevertheless maintains that Malinowski fails to demonstrate that any of the four orders listed in the notice of appeal are, in fact, appealable. Relying on Smith v. Smith (2012) 208 Cal.App.4th 1074 (Smith), Martin argues that the orders are “in the nature of” nonappealable temporary custody orders and that the minute orders for the hearings on November 17, 2021, and March 1, 2022, are likewise not appealable because they were never reduced to writing. We conclude otherwise.
B. Mootness
In her reply brief on appeal, Malinowski acknowledged “the potential mootness of this appeal” due to the completion of the DVRO trial in October 2022, but argued that an exception to the mootness doctrine applies. In view of this information, we requested and received supplemental briefing from Martin on the mootness issue, as well as a copy of the trial court‘s written decision after the DVRO trial. On our own motion, we now take judicial notice of the trial court‘s December 13, 2022, statement of decision after the DVRO trial. (See
The statement of decision confirms that the trial on Malinowski‘s request for a DVRO against Martin in favor of Malinowski and the children was completed in late October 2022 and that her request was denied. Accordingly, the challenged DVTRO is no longer in effect (see
Nevertheless, because the appeal raises an issue of continuing importance and involves a question “capable of repetition, yet evading review,” we will exercise our discretion to reach the merits of the appeal. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Specifically, in DVPA cases involving parallel dissolution proceedings, an appeal from the modification of a DVTRO will likely become moot due to the generally short duration of temporary protective orders. (See
C. Modification of DVTRO
Here, Malinowski argues the trial court did not conduct a noticed evidentiary hearing pursuant to
The grant or denial of a DVPA protective order is reviewed for abuse of discretion. (Gonzalez, supra, 156 Cal.App.4th at p. 420.) This standard also applies to review of an order modifying an injunction. (In re Butler (2018) 4 Cal.5th 728, 738.) Accordingly, “‘we determine “whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” [Citation.] We presume an order is correct and imply findings necessary to support the judgment. [Citation.] An abuse of discretion must be clearly established to merit reversal on appeal. [Citation.] To the degree resolution of the appeal requires statutory interpretation, we undertake that review de novo.‘” (Hupp v. Solera Oak Valley Greens Assn. (2017) 12 Cal.App.5th 1300, 1309-1310.) A trial court abuses its discretion when its acts transgress the confines of the applicable principles of law. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 495.)
The purpose of the
Division 2, part 4 of the Family Code generally governs the matter of ex parte temporary restraining orders issued under the DVPA. (See
From “the plain, commonsense meaning” of the statutory language (People v. Manzo (2012) 53 Cal.4th 880, 885), we see that Family Code section 245 addresses both mandatory (“shall“) acts and permissive (“may“) acts of the trial court in connection with continuing a DVRO hearing and extending a DVTRO in the interim.
Notwithstanding the language of
In Loeffler, the appellant moved for termination of the restraining order against him pursuant to Family Code section 6345. The appellate court affirmed the trial court‘s denial of termination, applying the standards in
one of the circumstances set forth in [section 533] is present and justifies a termination of the restraining order.” (Loeffler, at p. 1504.)
We find Loeffler distinguishable on a number of fronts. Starting with an obvious dissimilarity, we note Loeffler involved a motion to terminate a permanent DVRO issued after notice and hearing, whereas the instant matter involves a prehearing request to modify a DVTRO pending a continued merits hearing. Additionally, the burden of proof question raised in Loeffler was tethered to an underlying factual dispute about the threat of future abuse, thereby making relevant any changed facts or circumstances that would justify termination of the DVRO. (See Loeffler, supra, 174 Cal.App.4th at pp. 1505-1508 [restrained party‘s move out of state and recent marriage did
Furthermore, at least one appellate court has distinguished and declined to follow Loeffler in determining the scope of a trial court‘s discretion
to modify a civil harassment restraining order under
Yost reversed. As relevant here, Yost specifically addressed whether the trial court‘s discretionary authority to modify the restraining order was limited to the grounds set forth in
Although Yost did not involve a DVPA protective order, the court made several observations about
The same can be said for the DVPA, which also “provide[s] expedited and simplified procedures for victims of violence, abuse, and harassment to obtain temporary and permanent restraining orders to protect them.” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 40; Rivera v. Hillard (2023) 89 Cal.App.5th 964, 983 (Rivera) [DVPA proceedings are “streamlined” and “expeditious“].) Importantly, the DVPA contains many of the same safeguards that Yost identified in
Indeed, the record here illustrates perfectly why a DVTRO issued under expedited procedures may require flexibility and nimbleness for modifications as further information comes to light. Malinowski‘s DVRO application, though procedurally sufficient for purposes of obtaining an initial DVTRO (
Yost further observed that “the Legislature clearly was capable of referring to other provisions in the
Malinowski‘s contention that the requirements of
We agree that under appropriate circumstances, the requirements of due process may require a trial court to take evidence at a noticed hearing consistent with
Moreover, the record contains no indication that Malinowski was deprived of adequate notice in this regard. Malinowski does not contend she lacked notice of any of the hearings in question, and she knew from the trial court‘s order continuing the matter to November 17, 2021, that the amended DVTRO was set to expire at the end of that hearing. Thus, Malinowski was on notice that the DVTRO could be terminated or extended based on matters discussed at the November 17 hearing, and germane to that discussion was the possibility that the DVTRO might be reissued with modified terms. (
Having said this, we observe Malinowski‘s DVRO application alleged one incident of abuse occurring after the issuance of the July 2021 visitation order in the dissolution case. The record does not disclose whether the August 2021
In closing, we emphasize that our decision is not intended to suggest that courts in DVPA proceedings are necessarily bound by a child visitation order when material evidence supports a ruling at odds with such an order. And though we conclude the DVPA does not categorically mandate adherence to
DISPOSITION
We conclude that
Fujisaki, Acting P. J.
WE CONCUR:
Petrou, J.
Rodríguez, J.
Malinowski v. Martin (A164713)
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Rachel Holt
Counsel: Law Office of Gary K. Dubcoff, Gary Dubcoff, for Petitioner and Appellant
Seeley Family Law Practice, Helen Yvonne Seeley, and Jennifer L. Knops; Paul F. Vorsatz Law Office, Paul F. Vorsatz for Defendant and Respondent