Marriage of A.M. and R.Y.
A.M., Appellant, v. R.Y., Respondent.
Cage & Miles and John T. Sylvester for Appellant.
Elissa Irene Gray and Jennafer Dorfman Wagner for Family Violence Appellate Project and Legal Aid Society of San Diego as Amici Curiae on behalf of Appellant.
Stegmeier, Gelbart, Schwartz & Benavente, Eric J. Sather; Bickford Blado & Botros, and Andrew
A.M. appeals from an order denying a domestic violence temporary restraining order (DVTRO)1 against her former husband R.Y. A.M. argues the trial court erred by denying her request because she made a facially adequate showing of abuse for a DVTRO pending a noticed hearing. We reverse the order denying the DVTRO and remand for further consideration of the issue.
FACTUAL AND PROCEDURAL BACKGROUND
The facts set forth below are based solely on the evidence submitted by A.M. in support of her request for a DVRO. R.Y. has not had an opportunity to contest any of these facts because the trial court denied the DVTRO and scheduled an evidentiary hearing the same day A.M.‘s petition was filed—before R.Y. submitted an opposition. Although we must summarize the evidence as it was presented by A.M., we make no judgment regarding the truth of these facts.
A.M. and R.Y. were married in April 2019 and separated in April 2023. Their daughter was born in August 2019.
A.M. filed for divorce in April 2023. In December 2023, the parties signed a marital settlement agreement (MSA), which was incorporated into an uncontested judgment of dissolution filed in February 2024. The MSA gave A.M. sole legal and “primary physical custody”2 of their daughter, and it gave R.Y. weekend supervised visitation, with the days and duration of the weekend visits to be mutually agreed upon by the parties and confirmed at least two weeks in advance. R.Y.‘s visits were to be supervised by A.M. or a third party of her choosing until their daughter was 13 years old.
The MSA confirmed the parties’ separate property and divided their community property, with R.Y. agreeing to make an equalization payment
The MSA provided for no payment of spousal or child support and stated that A.M. “will be able to provide for the child according to the standard of living established during the marriage.”
In May 2024, three months after entry of the stipulated judgment, A.M. filed a request for DVRO against R.Y. on behalf of herself and their daughter, who was then four years old. She sought an order enjoining abuse, no-contact and stay-away orders for herself and their daughter, an order removing R.Y.‘s access to a Tesla vehicle, an order for R.Y. to pay for the cost of A.M.‘s therapy, an order awarding A.M. child support, and an order awarding sole legal and physical custody of their daughter to A.M. with no visitation for R.Y.
A.M.‘s DVRO petition was accompanied by a 23-page declaration describing R.Y.‘s alleged abuse. She asserted that R.Y. had subjected her to psychological, verbal, and emotional abuse and coercive control. After their daughter was born in 2019, R.Y. belittled her post-partum emotions and made her feel bad about herself. He shamed and guilted her into having sex even though she had frequent urinary tract infections; he demanded that she lie down in bed in a “compromising position” in front of their daughter and “force[d] affection” on her; he touched her vagina underneath the sheets or stuck his hands in her pants when their daughter was present; and he berated, belittled, and criticized her.
In March 2023, R.Y. told A.M. she was depriving him of his sexual needs. He became angry and shouted at her. He made her feel so bad about not having sex that she felt forced to do so. She asked him to wear a condom, but he refused.
After the parties’ April 2023 separation, R.Y. shouted at A.M. and berated her in front of their daughter, pressured her to give him a key to her residence, played “mind games” with their daughter, threatened to fight A.M. for custody to force her to split their assets evenly, continued to make her feel bad about her post-partum emotions, sent her multiple texts blaming and attacking her for the failure of the marriage, yelled at her about the division of assets and the custody arrangements in front of their daughter, pressured her into changing their financial agreement, and on several occasions was forcefully insistent on hugging A.M. or their daughter when they did not want to hug him.
A.M.‘s declaration described other alleged abuse occurring in March and April 2024, after the judgment of dissolution. R.Y. bombarded her with texts about the division of the business property and continued to blame and shame her about the failure of their marriage. On one occasion, when R.Y. was at A.M.‘s residence for a visit with their daughter, he yelled at A.M. about the MSA and then attempted to grab her. When she resisted and told him to stop, he continued to grab her and tried to hug her. He then grabbed her “by force” in front of their daughter. In a subsequent text exchange about the incident, A.M. said to him, “I clearly said stop.” He responded: “Sometimes you don‘t mean what you say. It‘s just a feminine thing. It‘s the weather. I‘m just learning this.”
Two days later, R.Y. yelled at A.M. and called her “greedy, entitled, and not grateful” because of what she had requested in the divorce. With their daughter nearby, R.Y. threated to “fight” A.M. on custody. A.M. tried to remove herself, but R.Y. grabbed her and forced a hug.
A few days after that, R.Y. tried to pressure A.M. to forego approximately $4 million he still owed her under the MSA. He berated her, called her greedy, and told her she would be “risking custody” if she refused.
In a text exchange, R.Y. threatened to start notifying people of their divorce. A.M. believed this “was a threat to ruin [her] reputation by making it difficult for [her] to work.”
R.Y. stopped paying A.M.‘s salary from Filtrous, in violation of the MSA. He told her by text: “Thank you, but your assistance will no longer be needed. . . . We may have to take a look at the entire MSA and redo it, and revisit Lawyers.”
R.Y. also refused to provide two weeks advance notice before his visits with their daughter, as required by the MSA. On one occasion in April 2024, R.Y. gave only two days notice for a visit, but their daughter was sick so A.M. wanted to let her rest. R.Y. showed up unannounced at A.M.‘s residence, then called and barraged her with text messages when she would not answer the door. He refused to leave until A.M. let him say goodnight to
In addition to her own declaration, A.M. lodged 22 exhibits with hundreds of e-mails and text messages between her and R.Y. from January through April 2024. These messages included numerous arguments between R.Y. and A.M. about their marriage and divorce, the amount of money A.M. was receiving under the MSA, custody and visitation with their daughter, and some of the incidents described in A.M.‘s declaration. In his texts, R.Y. complained about the terms of the MSA, accused A.M. of sneaking provisions into it that he did not agree to, and stated that the MSA was “egregiously in [her] favor” and “extremely unreasonable.” R.Y. told A.M.: “You‘re still hurting me. Before it was no sex and I got over that. Now it‘s more like no [daughter] and imma take all your money.”
In one of A.M.‘s texts in March 2024, she told R.Y.: “You‘re right you wouldn‘t physically hurt me. However, I am afraid of you emotionally and psychologically. . . . Is there a way to consider and understand why I am afraid and have a need to protect myself?” She also said: “I see you have good intentions with your hugs.”
On May 17, 2024, the same day A.M.‘s DVRO petition was filed, the trial court set a hearing for June 6, 2024. On the Judicial Council DV-109 “Notice of Court Hearing” form, the court checked a box denying a temporary restraining order pending the hearing and checked preprinted boxes giving the following reasons for the denial: (1) the facts given in the request “do not show reasonable proof of a past act or acts of abuse“; and (2) the facts given in the request “do not give enough detail about the most recent incidents of abuse, including what happened, the dates, who did what to whom, or any injuries or history of abuse.” In addition, the court checked the “Other reasons for denial” box and handwrote the following: “Issues described center around finalizing the dissolution and child custody/visitation.”
A.M. filed a notice of appeal from the May 17, 2024 order denying a DVTRO, and she also requested a stay of further proceedings in the trial court pending the outcome of the appeal and the entry of a DVTRO pending appeal.3 At the hearing on June 6, 2024, the court noted that “today would have been the date set for the hearing where [A.M.] could have put on evidence to support her position for the request for the restraining order . . . and if the court found that [A.M.] had met her burden, the court could have granted the permanent restraining order.” A.M.‘s counsel confirmed that she
DISCUSSION
I
As an initial matter, R.Y. argues that the order denying the DVTRO is not appealable, and even if it is, the appeal is moot because the DVTRO would have expired after 25 days. We are not persuaded.
An order denying a permanent DVRO is appealable as an order refusing to grant an injunction. (
Nor is the appeal moot. An appeal will be deemed moot if the occurrence of events renders it impossible for the appellate court to grant any effective relief. (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 175.) Here, the noticed hearing on a permanent DVRO has not yet been conducted and has been continued until August 2025. Thus, we could still grant effective relief by, for example, reversing the trial court‘s order and directing it to issue a DVTRO pending a noticed hearing on the permanent DVRO. Although such an order would initially be limited to 21 or 25 days, it could be extended if the hearing was not conducted within this time frame. (
We now turn to the merits of A.M.‘s argument that the trial court erred by denying her request for a DVTRO pending a noticed hearing on a permanent DVRO.
A. General Background of DVPA
The purpose of the DVPA is to prevent the recurrence of acts of domestic violence and provide for a separation of the persons involved for a period sufficient to resolve the underlying causes. (
The DVPA provides that a restraining order to prevent the recurrence of domestic violence “may be issued . . . if an affidavit or testimony and any additional information provided to the court pursuant to section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (
The statute authorizes ex parte restraining orders (DVTROs) pending a hearing (
The grant or denial of injunctive relief is generally reviewed for abuse of discretion. This standard applies to the grant or denial of a protective order under the DVPA. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.) But judicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the particular law being applied by the court, i.e., in the legal principles governing the subject of the action. (Id. at pp. 1264–1265.)
B. Analysis
A.M. argues that under the holding of Nakamura v. Parker (2007) 156 Cal.App.4th 327 (Nakamura), the trial court was divested of discretion to deny the DVTRO because it was required to assume the truth of her evidence and she made a facially adequate showing of abuse. We agree that the trial court erred in finding A.M.‘s evidence was legally insufficient to establish “abuse” as defined in the DVPA. We nevertheless disagree that this divested the trial court of discretion to deny the DVTRO. Even when a DVRO petitioner has made a facially adequate showing of past abuse on the papers, the trial court still has discretion to conclude that the circumstances do not pose enough of an immediate threat to warrant ex parte relief pending a noticed hearing. On this record, we cannot determine whether the court would have denied the DVTRO on this basis but for its error in finding an insufficient showing of abuse. Accordingly, we will reverse and remand the matter for further consideration.
We first conclude that A.M.‘s evidence was sufficient to establish a prima facie case of abuse based on her declaration and the accompanying text and e-mail messages. A.M.‘s allegations of abuse were not facially implausible. Because the trial court itself did not make a credibility determination, and the record before us does not disclose that the court had any basis to doubt A.M.‘s credibility in ruling on the papers at this initial stage of the proceedings, we must assume the truth of A.M.‘s evidence.4 (See In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498–1499.) We also agree with the trial court that much of A.M.‘s
Taken in its totality, this evidence was enough to make a prima facie showing that R.Y. disturbed A.M.‘s peace by destroying her mental and emotional calm. (
Even so, this did not necessarily compel the trial court to issue a DVTRO. In Nakamura, the trial court summarily denied a DVRO petition without an evidentiary hearing on the same day it was filed. The trial court concluded that the facts set forth in the petition did not provide a legal basis to issue the order. (Nakamura, supra, 156 Cal.App.4th at pp. 332, 333.) On appeal, the petitioner (Nakamura) argued “that the denial of her application for a temporary protective order, summarily and without a hearing, which had the effect of dismissing her entire action, constituted an abuse of discretion.” (Id. at p. 332.)
The Court of Appeal agreed that because Nakamura‘s petition was not jurisdictionally defective, it could be summarily denied without a hearing only if the facts she alleged did not constitute “abuse” within the meaning of the DVPA. (Nakamura, supra, 156 Cal.App.4th at p. 337.) The court also concluded that Nakamura made a factually adequate showing of abuse assuming the truth of her evidence. (Ibid.) The court concluded: “The [trial] court could have deferred ruling on her application until a noticed hearing
For several reasons, we do not agree with this conclusion, although we ultimately reach a similar result by a different route. First, the court may not “defer” a ruling on a request for DVTRO until the evidentiary hearing because the statute explicitly states that a DVTRO must be issued or denied on the same day it is filed or the next court day. (
Second, Nakamura cited
We nevertheless agree that the pertinent provisions of the DVPA do not compel the trial court to grant a DVTRO whenever the petitioner has made a facially sufficient showing of past abuse.
Whenever a statute grants discretion to a court, however, it must be exercised consistent with the principles and purposes of the governing law. (Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135.) And when the court declines to exercise its statutory discretion, its statement of reasons should reflect consideration of the underlying purposes of the statute. (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893.) It follows that whenever a court declines to grant a DVTRO to a petitioner who has made a facially sufficient showing of abuse, its statement of reasons must reflect consideration of the fundamental purpose of the DVPA to prevent recurring acts of domestic violence. (
More specifically, we hold that a trial court has discretion to deny a DVTRO to a petitioner who has made a prima facie showing of past abuse if it reasonably concludes based on the totality of circumstances that a DVTRO is not necessary to protect the petitioner or others for whom the petitioner is seeking protection from further acts of domestic violence pending the noticed hearing. Such a discretionary ruling would be consistent with the basic purpose of the DVPA. (
We now apply these principles to the case before us. As we have explained, the trial court erred by concluding that A.M. failed to present reasonable and sufficiently detailed proof of past abuse. Moreover, absent a sufficient basis for finding that A.M.‘s allegations of abuse were not credible, the trial court‘s explanation that the alleged abuse occurred in the context of disputes over “dissolution and child custody/visitation” was not a proper reason to deny the DVTRO. Although we recognize that DVRO petitions are sometimes used for tactical purposes in family law cases, the court may not deny ex parte relief at the DVTRO stage solely because otherwise sufficient allegations of abuse may have arisen in the context of a family law dispute. Thus, the trial court abused its discretion by failing to state proper reasons for denying the DVTRO.
On this record, however, we cannot determine whether the trial court would have denied the DVTRO for other valid reasons if it had found the allegations of abuse to be sufficient. The only reasons the trial court gave for denying the DVTRO related to the sufficiency of A.M.‘s evidence to establish past abuse. We cannot imply other findings in favor of the order that were not made expressly because the statute itself requires express findings. (See, e.g., Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 197–198; In re J.S. (2011) 196 Cal.App.4th 1069, 1078; In re Adam L. (2013) 219 Cal.App.4th 452, 463.) At the same time, in the highly unusual posture of this case involving a DVTRO that was denied nearly a year ago and a noticed hearing on the permanent DVRO that has been continued to August 2025, it would be inappropriate for us to direct the trial court to enter a DVTRO when circumstances may have changed since its original ruling. Accordingly, we will reverse the order and remand the matter to the trial court for further consideration of the DVTRO based on the totality of circumstances, including any events occurring since the original ruling. We express no view on how the court should exercise its discretion on remand.6
The May 17, 2024 order denying the DVTRO is reversed and the matter is remanded for further proceedings. A.M. is entitled to recover her costs on appeal.
BUCHANAN, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.