Woo v. Woo

 

 

 

 

 

 

 

 

 

 

Filed 12/12/13  Woo v. Woo CA1/5

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FIRST APPELLATE
DISTRICT

 

DIVISION FIVE

 

 

 
>

SUZANNE SIMS WOO,             Plaintiff and Respondent,                         v. ALAN WOO,             Defendant and Appellant.

A137279               (>San Mateo> County             Super. >Ct.> No. FAM0105651)

 

            Alan
Woo appeals from the trial court’s order renewing for five years a domestic
violence restraining order against him, arguing the trial court employed the
wrong legal standard and the evidence did not support the renewal.  We reject his arguments and affirm.

BACKGROUND

            In
2009, Suzanne Sims Woo sought a domestic violence restraining order against
Alan Woo, her then husband and the father of her child.href="#_ftn1" name="_ftnref1" title="">[1]  In February 2010, the parties commenced a
multi-day hearing on the restraining order; around the same time, according to
Suzanne, the parties’ case was “converted” to a dissolution of marriage action.  At the restraining order hearing, Suzanne
testified to two incidents involving physical force: In January 2009, Alan
grabbed and twisted her forearms; and in August 2009, Alan poked her in the
chest with his finger.  Alan admitted
placing his hands on Suzanne’s forearms and brushing his raised finger against
her, but denied using force or aggression in either incident.  In March 2010, at the conclusion of the
hearing, the court issued a two-year restraining order against Alan, which was
subsequently modified in nonmaterial respects in June 2010.  The restraining order expressly permitted
contact related to Alan’s visitation rights with their child.

            Suzanne
subsequently sought permission to relocate with their child to the east
coast.  A multi-day trial on the issue
took place over the course of many months. 
In May 2012, the trial court issued a tentative decision granting
Suzanne leave to relocate to the east coast and awarding Alan certain
visitation rights.

            Meanwhile,
in March 2012, Suzanne filed a request to renew the restraining order against
Alan.  Suzanne did not contend Alan had
used physical force against her since the issuance of the original order.  Instead, she cited the ongoing and
contentious litigation over her requested relocation and certain behavior she
characterized as “bullying.”  A hearing
on the renewal request was held before the same judge who presided over the
hearing on the initial restraining order and the relocation trial.  As part of the hearing, the court took
judicial notice of the testimony and exhibits from the hearing on the initial
restraining order.

            In
June 2012, after hearing testimony and argument, the trial court announced from
the bench its decision to grant Suzanne’s renewal request.  The court found none “of the [new] contact
that was alleged to be abusive.”  
However, it relied upon evidence from the hearing on the original
restraining order that the court “did find to constitute domestic violence
including the finger hitting [Suzanne] in the chest and the twisting of the
arms.”  The court also considered the
current circumstances, including that “[t]here is a move away order
contemplated.”  The court concluded,
“[Suzanne’s] fear in this case is well beyond that which you would expect in a
case given the incidents that have occurred; however, the incidents that the
court found were such that a reasonable person would be concerned, would have
reasonable apprehension that given the situation occurring, given the situation
of arguing in the future that, yeah, that might occur again.”  The restraining order was renewed for five
years.href="#_ftn2" name="_ftnref2" title="">[2]  However, the court specifically noted Alan
“may move for a modification for termination of the restraining order once the
move-away is either finalized or [Suzanne] decides not to move away.”

DISCUSSION

            “A
trial court should renew [a domestic violence restraining order], if, and only
if, it finds by a preponderance of the evidence that the protected party
entertains a ‘reasonable apprehension’ of future abuse,” meaning “the evidence
demonstrates it is more probable than not there is a sufficient risk of future
abuse to find the protected party’s apprehension is genuine and reasonable.”  (Ritchie
v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).)  Such a finding
may be made “without a showing of any further abuse since the issuance of the
original order.”  (Fam. Code,
§ 6345, subd. (a).)  “[T]he trial
judge ordinarily should consider the evidence and findings on which [the] initial
order was based in appraising the risk of future abuse should the existing order
expire.”  (Ritchie, supra, at p. 1290.)  Indeed, “the underlying findings and facts
supporting that order often will be enough in themselves to provide the
necessary proof to satisfy [the reasonable apprehension of future abuse] test.”  (Id.
at p. 1291.)  “Also potentially
relevant are any significant changes in the circumstances surrounding the
events justifying the initial protective order.  For instance, have the restrained and
protected parties moved on with their lives so far that the opportunity and
likelihood of future abuse has diminished to the degree they no longer support
a renewal of the order?  Or have there
been no significant changes or even perhaps changes that enhance the
opportunity and possibility of future abuse?” 
(Ibid.)  Finally, the burdens the restraining order
imposes on the restrained party are not relevant “where the protected party has
a ‘reasonable apprehension’ of future physical
abuse,” but may become relevant if the threat is of “lesser forms of abuse — unwanted
telephone calls or mail, for example.”  (>Id. at p. 1292.)

            We
review the trial court’s order renewing the restraining order “under an abuse
of discretion standard, to determine ‘ â€œwhether the trial court exceeded
the bounds of reason. . . .” â€™  [Citation.]” 
(Lister v. Bowen (2013) 215
Cal.App.4th 319, 333 (Lister).)

            As
an initial matter, Alan contends the trial court failed to issue a statement of
decision.  If a “trial is concluded
. . . in less than eight hours over more than one day,” “the request
[for a statement of decision] must be made prior to the submission of the
matter for decision.”  (Code Civ. Proc.,
§ 632.)  The hearing on the renewal
request lasted less than eight hours over the course of two days.  (See In
re Marriage of Gray (2002) 103 Cal.App.4th 974, 980 [trial time for
purposes of Civ. Proc. Code, § 632 “means the time that the court is in
session, in open court, and also includes morning and afternoon recesses when
the parties remain at the courthouse.  It
does not include time spent by the judge off the bench without the parties
present — lunch, for example — except for such routine recesses as occur during
the day”].)  The matter was submitted on June 18, 2012 (see Cal. Rules of
Court, Rule 2.900, subd. (a)(2)) and the order issued on June 19, but Alan did
not request a statement of decision until June 27.  As his request was untimely, the trial court
had no obligation to issue a statement of decision.  (In re Marriage
of Gray, at p. 980.)

            In
any event, the trial court did announce the reasons for its decision on the
record before the parties in what it likely intended to be the statement of
decision.  (See Code Civ. Proc.,
§ 632 [“when the trial is concluded . . . in less than 8 hours
over more than one day, the statement of decision may be made orally on the
record in the presence of the parties”].) 
As explained below, we affirm even assuming this constitutes a statement
of decision to which we look “to determine whether the court’s decision is
supported by the facts and the law.”  (>In re Marriage of Rising (1999) 76
Cal.App.4th 472, 477, fn. 7 [considering document “that the trial court
clearly intended . . . be a statement of decision under Code of Civil
Procedure section 662”].)

            Alan
next contends the trial court improperly used a subjective rather than
objective standard.  To the contrary, the
trial court explicitly stated the evidence was “such that a >reasonable person would be concerned,
would have reasonable apprehension
that [the physical abuse] might occur again.” 
(Italics added.)  That the trial
court also found Suzanne’s “fear in this case is well beyond that which you
would expect” is not in conflict with this finding.  For example, Suzanne implied she feared a
fatal attack from Alan.  Even if the
trial court could find such a fear was not objectively reasonable, a fear of
nonfatal physical abuse was.

            Finally,
Alan argues the evidence does not support the trial court’s conclusion that
Suzanne had a reasonable apprehension of future abuse.  In so concluding, the trial court relied on the
evidence underlying the initial restraining order, specifically, “facts I did
find to constitute domestic violence including the finger hitting [Suzanne] in
the chest and the twisting of the arms.” 
Alan argues no statement of decision issued after the >initial restraining order hearing,
despite Alan’s timely request.  Any error
in failing to issue a statement of decision has been forfeited as Alan did not
appeal the original restraining order. 
(8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial
Court, § 10, p. 593 [“where prior orders are independently appealable
and become final by lapse of time, an attack on them in an appeal from the
judgment or from some later order is collateral”].)  The absence of a statement of decision in the
initial order did not preclude the trial court from reviewing the >evidence underlying the initial
order.  The trial court’s consideration
of this evidence was proper.  (>Ritchie, supra, 115 Cal.App.4th at
p. 1290.)

            The
trial court also properly considered the current circumstances of the
parties.  The ongoing litigation
involving Suzanne’s relocation request placed the parties in adversarial
positions.  The trial court’s statement that
it would consider a request by Alan to terminate the restraining order once
Suzanne’s move was either finalized or canceled indicates an understanding that
this litigation was particularly contentious and increased the possibility of
heated arguments.  The trial court
considered this a “change[] that enhance[d] the opportunity and possibility of
future abuse,” an appropriate consideration in assessing a renewal
request.  (Ritchie, supra, 115 Cal.App.4th at p. 1291.)

            The
trial court found no additional harassment had occurred since the initial
restraining order issued, but nonetheless concluded Suzanne had a reasonable
apprehension of future abuse.  In light
of the trial court’s finding of physical abuse from the hearing on the initial
restraining order and the ongoing litigation over Suzanne’s relocation request,
we cannot say the trial court’s conclusion “ â€˜exceeded the bounds of
reason.’ â€  (Lister, supra, 215 Cal.App.4th at p. 333.)href="#_ftn3" name="_ftnref3" title="">[3]

DISPOSITION

            The
judgment is affirmed.  Suzanne is awarded
her costs on appeal.