In re the Marriage
H049337
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 1/23/23
CERTIFIED FOR PUBLICATION; (San Benito County Super. Ct. Nos. FL-21-00057 & DV-21-00032)
D.S., Appellant, v.
Appellant D.S. appeals a domestic violence restraining order (DVRO) enjoining him from certain conduct and contact with his wife, A.S, and their two minor children.1 D.S. contends the family court abused its discretion in granting A.S.‘s request for a DVRO without holding an evidentiary hearing compliant with
I. FACTUAL AND PROCEDURAL BACKGROUND
D.S. and A.S. were married and have two minor children, ages fourteen and eight. After approximately nine years of marriage, A.S. filed a petition for legal separation (hereafter, family law matter). On the same date, A.S. also filed an ex parte request for temporary emergency orders related to child custody and visitation, property control, and “an order that all contact between Mother and Father be peaceful and neither party disparage the other, alienate the children nor discuss details of the custody case with the child.” In support, she alleged that D.S. had a “trigger temper” and “outbursts at any time,” that “[w]e are always on eggshells” and that the “children and I have had to flee the home multiple [times] when his anger has gotten out of control.” She stated that she did not have access to the family‘s bank accounts. She alleged that “when he is not in one of his outbursts,” D.S. had a “great relationship” with the children, who “adore him.” After the court denied her ex parte request, A.S. filed, and was granted, a peremptory challenge against the judge who issued the denial.
A week later, on April 19, 2021, A.S. filed a request for a DVRO, which sought both personal conduct orders and a stay away order. In describing the alleged abuse, A.S. identified two dates, April 8 and February 15, 2021, on
On April 26, 2021, A.S. filed an amended request for a DVRO, alleging that D.S. had abused alcohol throughout their marriage, smoked marijuana and used other drugs, and had driven drunk with the children in the car. A.S. further alleged that D.S. owned over ten registered and unregistered guns which he left accessible to the children. Without any further description, A.S. stated that “[t]here have been many incidents where he becomes aggressive and violent when under the influence.” She indicated that she had eight videos of D.S. “being verbally and emotionally abusive to the children and I, which have occurred in the last 18 months. I can present these videos to the Court as evidence of Father‘s abuse.” She attached the same annotated transcripts to her request. A.S. contended that D.S.‘s conduct, including verbal and emotional abuse and control of the family‘s finances and changing account passwords (though she retained access to their credit cards through Apple Pay), constituted a disturbance of the peace under
D.S. filed a written response to A.S.‘s amended DVRO request, asserting that she had “grossly exaggerated” his conduct and “relied upon inadmissible evidence of what she calls abuse.” He specifically stated that he was “not abusive in any way,” that the described events were “also not supportive of a request for orders pursuant to the DVPA [Domestic Violence Prevention Act,
At the continued hearing on June 11, 2021, both parties represented themselves. Neither party filed a witness list nor otherwise sought to introduce live evidence at the hearing. At the outset of the hearing the court inquired, and A.S. confirmed, that everything stated in her declaration in support of her DVRO request was true and correct. The court then turned to D.S., stating, “I think you disagreed with some of these orders on your responsive declaration.” Without further inquiry, the court stated, “[i]t sounds like you do not disagree that you will stay away from her—that you will follow the conduct orders and that you would move out, but you want to do those voluntarily and not by court order.” D.S. confirmed that he would voluntarily comply with family law conduct orders. He did not agree to the issuance of a domestic violence restraining order. He then engaged in a brief colloquy with the court regarding his concern that he would lose access to firearms as a result of a restraining order as he had hunting trips planned with his brothers. This effectively concluded the DVRO portion of the hearing, as the court next stated, “I think you‘re going to lose your guns . . . I am forbidding you from obtaining, owning, borrowing . . . or in any way having guns or firearms or ammunition . . . .” The court then addressed the status of the family residence and the parties’ two dogs.
The court made no further inquiry of D.S. regarding the allegations in A.S.‘s declaration or his denial of those allegations. The court did not address or rule on the hearsay objections and other objections to the legal sufficiency of A.S.‘s claims raised in D.S.‘s declaration. Neither party was sworn as a witness and the court did not seek any testimony from either party regarding the abuse allegations. Neither party sought to introduce additional testimony, witnesses, or other evidence regarding the DVRO, and the court did not ask if either party wished to call any witness or admit any additional evidence.
The court concluded by stating, “So I‘m going to issue the restraining order, which includes the personal conduct orders, the stay-away orders . . .” and later indicated that the order was effective for three years. The remainder of the proceeding addressed temporary custody and visitation orders, and the parties’ temporary financial arrangements. The court accepted the parties’
D.S. timely appealed the DVRO.
II. DISCUSSION
D.S. contends that the trial court erred on two grounds in issuing the DVRO. First, he contends that the trial court abused its discretion and denied him due process by issuing a restraining order based solely on declarations without receiving live testimony or evidence as required by
On appeal we review the trial court‘s grant or denial of a DVPA restraining order request for abuse of discretion. (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) ” ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ [Citation.]” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez).) ” ‘If the court‘s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]’ [Citation.] The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review. [Citation.]” (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.) “We independently review due process claims ‘because “the ultimate determination of procedural fairness amounts to a question of law.” ’ ” (Roth v. Jelly (2020) 45 Cal.App.5th 655, 666.)
Under the Domestic Violence Prevention Act (
In the matter before us, D.S. appropriately does not challenge the adequacy of the notice. He received A.S.‘s amended DVRO request and filed a written response to her request. D.S. instead challenges the adequacy of the court‘s hearing, asserting that the court violated
As one court observed, “[i]t is rare for a Court of Appeal to get a peek into the world of domestic violence proceedings, because these protective orders are nearly never appealed. We know something about these proceedings, not so much from the appellate brief and oral arguments, but because of judicial administration studies and innovations over the past few years.” (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861 (Ross).) Litigants in DVRO proceedings “are unrepresented by counsel in the vast majority of cases,” as they were here. (Id. at p. 861 & fn. 3 [“In domestic violence restraining order cases, litigants are reported to be pro se over 90 percent of the time.“].) This high percentage of self-represented litigants places a special burden on bench officers hearing these restraining order requests. Our family courts are daily faced with the needs of self-represented litigants, the requirements of judicial neutrality, and the need for judicial efficiency. These interests require delicate balancing, but allowance must be made for the status of the parties appearing before the court. In a contested restraining order hearing, the trial court is tasked with protecting the fundamental due process rights of self-represented litigants both seeking a restraining order or defending against the request, even when they do not fully understand what those rights encompass. (Id. at p. 867.)
Due process requires “the right to be heard in a meaningful manner.” (In re James Q. (2000) 81 Cal.App.4th 255, 265.) “A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses. . . .” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) As the court in Ross accurately observed, the fact that DVRO litigants are frequently self-represented “influences how these hearings should be conducted—with the judge necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order. In such a hearing, the judge cannot rely on the pro per litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights.” (Ross, supra, 139 Cal.App.4th at p. 861.) “The role of a judicial officer sitting in such a court, which has many attributes of an inquisitorial as opposed to an adversarial process, is different than when sitting in a purely adversarial court where the parties are presumed to be ‘well counseled’ by skilled and knowledgeable lawyers. In a purely adversarial setting it is reasonable for the judge to sit back and expect a party‘s lawyer to know about and either assert or by silence forfeit even the most fundamental of the party‘s constitutional and statutory procedural rights. But not so in a judicial forum, such as this domestic violence court, which can expect most of those appearing before the court to be unrepresented.” (Id. at pp. 866-867.)
The conduct of the hearing in this matter fell far short of providing D.S. a meaningful opportunity to be heard. Although D.S. filed a written response
To be sure, there are instances in which a DVRO request is either unchallenged or the declaration in support of the request, if not materially disputed, so clearly describes abuse under the legal standard that a family court may issue a DVRO after a brief hearing that consists of minimal questioning of the petitioner and respondent confirming that the declarations are true. Such a hearing may well comport with due process based on the position of the parties regarding the DVRO request and the nature of the evidence in support of or refuting the restraining order request. But the conduct of the hearing in this matter was fundamentally unfair. The court did not invite either party to present their version of events and did not question either party or allow an opportunity for cross-examination on the disputed issues. The court thus effectively deprived D.S. of an opportunity to be heard on the material factual dispute and legal issue before the court. (See Alviso v. Sonoma County Sheriff‘s Dept. (2010) 186 Cal.App.4th 198, 209 [“The fundamental requirements of procedural due process are notice and an opportunity to be heard“].)
The remedy for this denial is a new hearing that comports with due process. (Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549, 554-555 [” ‘Where the unsuccessful party has been prevented from exhibiting fully his case . . . there has never been a real
However, D.S. argues that A.S.‘s petition was facially inadequate to support the issuance of a DVRO, thus requiring us to reverse the order in its entirety. We disagree with his assessment of the pleadings. We note that A.S. stated in her declaration that “[t]here have been many incidents where [D.S.] becomes aggressive and violent when under the influence.” For his part, D.S. maintained that there was no physical abuse, that both parties drink socially, and that A.S. “grossly exaggerated” his conduct.
We do not conclude that the evidence here is sufficient or insufficient as a matter of law to support the issuance of a restraining order. At oral argument, appellant conceded that we should reverse to allow a hearing at which A.S. is provided the opportunity as the moving party to present evidence in support of her request for a DVRO, and D.S. the opportunity to as the responding party to present evidence disputing her claims. “Accordingly, we will leave the protective order in force until 30 days after the issuance of this court‘s remittitur. During that time, we expect the court to hold a hearing on whether that order should extend further into the future, but in no instance shall the court approve an extension beyond the date the order under review would expire . . . .” (Ross, supra, 139 Cal.App.4th at pp. 868-869.)
III. DISPOSITION
The domestic violence restraining order is reversed and the cause remanded with directions to the trial court to hold a new hearing within 30 days after issuance of this court‘s remittitur. The court shall give notice to the
Greenwood, P. J.
WE CONCUR:
Lie, J.
Wilson, J.
D.S. v. A.S.
H049337
| Trial Court: | San Benito County Superior Court Superior Court Nos.: FL-21-00057, DV-21-00032 |
| Trial Judges: | The Honorable Margaret Johnson, The Honorable Thomas P. Breen |
| Attorneys for Appellant, D.S.: | Patrick T. Bell Lee-Mars & Bell, LLP Stephen W. Penn Law Office Of Stephen W. Penn & Associates |
| Pro Per Respondent, A.S.: | A.S. |
D.S. v. A.S.
H049337