Marriage of Gray
Filed 1/16/14 Marriage of Gray CA1/3
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
In re the Marriage of CHRISTINE E. GRAY and ROBERT GRAY
CHRISTINE E. GRAY,
Appellant,
v.
ROBERT GRAY,
Respondent.
A135328
(
Super. Ct. No.
AF11603446)
ROBERT GRAY,
Plaintiff and
Respondent,
v.
CHRISTINE E. GRAY,
Defendant and
Appellant.
A135480
(Alameda County
Super. Ct. No. AF12612795)
Appellant Christine E. Gray (mother)
appeals from orders issued by family court
Commissioner Thomas Nixon, which resolved the separate applications of mother
and Robert Gray (father) for permanent restraining orders under the Domestic
Violence Prevention Act (DVPA; Fam. Code, § 6200, et seq.
denying her request for a permanent restraining
order and granting father’s request for a permanent restraining order. Father has moved to dismiss the appeals on the
ground of mootness, and alternatively, argues there is no substantive merit to mother’s
appeals. We conclude the merits of
mother’s appeals challenging the orders regarding the parents’ permanent
restraining orders are properly before us.
Nevertheless, mother’s arguments do not require reversal of those orders. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 18, 2012, mother and father filed separate applications for permanent DVPA
restraining orders on behalf of themselves and the parties’ two teenaged
children (then 12 and 14 years) against the other parent. In orders dated January 19, 2012, and filed by the court clerk on January 20, 2012, the court (Judge Ioana Petrou) granted each parent a
other parent until January 31, 2012, and
issued orders to show cause scheduling an evidentiary hearing on January 31, 2012, to resolve both parents’ requests for permanent restraining
orders.
On January 31, 2012, and
continuing on February 2, 6, 8, and 16, 2012, Commissioner Nixon presided at
an evidentiary hearing on both parents’ requests for permanent restraining
orders. The commissioner repeatedly
stated his decision would be based solely on the testimony and exhibits that
were admitted into evidence at the hearing; he would not consider documents
filed in support of or since the issuance of the temporary orders.
The commissioner heard testimony from mother,
father, mother’s mother, and Piedmont Police Department Sergeant Catherine
Carr. Mother claimed she was entitled to
a permanent restraining order “because: (1) Father
and the Parties’ therapist attempted to abduct Mother, (2) Father verbally
insults Mother in front of the children, and (3) Father gets too close to Mother’s
face during arguments.†Father claimed
he was entitled to a permanent restraining order “because: (1) Mother is currently unfit to care for
her children as her substance abuse results in verbal abuse in the presence of
the minor children; ([2]) while under the influence [of alcohol], Mother
has repeatedly berated, disrupted the peace of and verbally threatened Father,
including making threats to physically harm him, and ([3]) in the absence
of protective orders, the abuse will continue to occur because of Mother’s
addi[c]tion[].â€
After closing arguments on February 16, 2012, the commissioner denied mother’s request for a permanent
restraining order and granted father’s request for a permanent restraining
order. The commissioner issued an
extensive statement of decision. In rejecting
mother’s assertions, the commissioner explained: “[T]he primary basis of Mother’s request is a
single incident of a failed alcohol treatment intervention in June 2010. Although this attempted intervention was ill
conceived, it does [not] form a sufficient basis for the imposition of a
permanent restraining order. The Court
finds Mother’s additional allegations either inconsistent with her behavior,
e.g., reconciliation and continued cohabitation since 2010, or are unsupported
by the facts, e.g., vague allegations without the proper indicia of
reliability, no third party support or documentary evidence. Finally, the Court believes that if any abuse
did in fact occur, that it is not necessary to enter a permanent order to prevent
future abuse.†In accepting father’s assertions,
the commissioner explained: “Mother’s
uncontrolled alcohol consumption poses a risk both to Father and the children
necessitating Court orders to prevent
the recurrence of acts of domestic violence.
The Court did not find credible Mother’s testimony that she does not
have a drinking problem. Mother objected
to the use of her doctor’s letter and had within her control the ability to
prove that she does not have a drinking problem. She failed to do so. The Court also finds Mother’s denial of the
various incidents as not credible. Father
presented a detailed chronology with dates and facts. Respondent’s Exhibit E. While this exhibit was not entered into
evidence, the Court finds Father’s presentation of fact and details credible in
a manner in which it did not find Mother’s presentations of conclusions and
allegations. Further, it is not credible
that Mother would ‘not recall’ an incident where her daughter smashed a bottle
of wine on the driveway in an attempt to keep Mother from drinking and
driving.†The commissioner further found
that “Mother recklessly placed the
reasonable apprehension of imminent serious
driving under the influence of alcohol.
The evidence reflects that Mother made threats to the [F]ather, verbally
abused Father in front of the children, and drove the children while [she was]
intoxicated. Additionally, the Court
finds that Mother physically abused Father on at least two occasions.†The commissioner also issued temporary orders
regarding child custody and visitation, and granted father sole use,
possession, and control of the marital residence. Mother now appeals from the commissioner’s
orders.
DISCUSSION
Father filed a motion to dismiss on the ground that an order of September 27, 2012, issued by Judge Pulido, has rendered moot mother’s appeals
challenging the orders that resolve the parents’ requests for permanent
restraining orders. However, mother
correctly argues that the denial of her request for a permanent restraining
order has not been rendered moot by any later court orders. Concededly, the permanent restraining order
in favor of father and against mother has now expired, arguably rendering moot mother’s
appeal from that order. Nevertheless, the
expired permanent restraining order could have detrimental consequences to mother
in a further proceeding involving domestic violence. Section 6306, subdivision (b)(1), provides
that, before deciding whether to issue a domestic violence restraining order,
“the court shall consider . . . any prior restraining order.†(See In
re Cassandra B. (2004) 125 Cal.App.4th 199, 209-210.) Accordingly, we deny father’s motion to
dismiss mother’s appeals from the February 16, 2012 orders that resolve the parents’ requests for permanent restraining
orders.
Mother challenges Judge Petrou’s temporary
restraining orders, presenting several arguments including that the orders were
void. Because the notices of appeal seek
review only of the commissioner’s February 16, 2012 orders, mother has forfeited review of Judge Petrou’s temporary orders
that expired on January 31, 2012. (Code Civ. Proc., § 904.1, subd. (a)(6);
see McLellan v. McLellan (1972) 23
Cal.App.3d 343, 357 [temporary DVPA orders are separately appealable].) Concededly, an order can be set aside at any
time on the ground it is void when “the court lack[s] personal or subject
matter jurisdiction or exceed[s] its jurisdiction in granting relief which the
court had no power to grant.†(
(1998) 67 Cal.App.4th 1228, 1239.) However,
mother’s argument that the temporary orders are void is “no longer availableâ€
to her because those orders have “fulfilled [their] function and [were]
supplanted by†the February 16, 2012, orders,
which were based on the evidence presented at the hearing before Commissioner
Nixon. (City of Los Angeles v. Superior Court (1925) 196 Cal. 445,
449.) Accordingly, any purported appeal
from the temporary orders would be moot. (Consol.
etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 862-863;
III. Commissioner
Nixon’s Orders Resolving Parents’ Requests for Permanent Restraining Orders
Mother challenges on various grounds the commissioner’s orders that
resolved the parents’ requests for permanent restraining orders. As we now discuss, none of her contentions
requires reversal.
We find no merit to mother’s contention that the commissioner committed
prejudicial error by refusing to admit into evidence the children’s declarations. Before the January 31 hearing, mother’s counsel
had prepared declarations based on statements that were made by mother to
counsel about what the children had said and then the children allegedly signed
the declarations. During mother’s direct examination,
her counsel sought to admit into evidence the children’s declarations on the
“issue of custody†and the removal of the children from their primary
caregiver. The court refused to admit
the declarations at that time because the children had not yet been
independently interviewed by Family and Children’s Bureau. Without the results of those interviews, the
commissioner believed there were questions about the authenticity and trustworthiness
of the declarations. Until the interviews
were conducted, the commissioner believed it was
inappropriate to accept the declarations.
He explained that “[i]t may well prove to be that these declarations [are]
absolutely exactly how these children feel but I want them interviewed before I’m
going to take them a[s] [the] truth.†In response to mother’s
counsel’s recitation of certain portions of the Family Code, the commissioner
stated he intended to follow section 3042
“to the letter,†but the issue then before him was whether the declarations
should be admitted into evidence “without the children being present and when [he]
is not aware completely of the facts . . . or why [the declarations
were] signed.†The commissioner again
stated that although the declarations might be true, he wanted Family and
Children’s Bureau to provide him “with information as to where this is coming
from. Certainly under [section] 3042
specifically as to the old[er] [child] the [c]ourt must at least consider [the
child’s] wishes and the court actually intends to consider both of the
children’s wishes but one must also keep in mind that [section] 3042 does not
require the court to follow those wishes if it feels it’s not in the best
interest of the children but they must be heard. I intend on having them heard.†Thereafter, at
the February 6, 2012, hearing the
commissioner indicated the children had been interviewed and he had received a
report from Kathleen Hargin of Family and Children’s Bureau. At the next hearing on February 8, 2012, mother’s counsel indicated
she had read the report “that was done by the mediator†who “spoke with the
children.†However, at no time thereafter
did mother or her counsel renew the request for the admission of either child’s
declaration or make a request to call either child as a witness to testify at
the hearing. Consequently, we cannot
conclude the commissioner abused his discretion in the absence of a specific
timely request made by mother or her counsel for the admission of the
children’s declarations or their testimony after the court received the report
of the children’s court-ordered interviews.
We
also see no merit to mother’s argument that the commissioner
committed reversible error by failing to grant a calendar preference and complete
the hearing within 25 days of the issuance of the temporary restraining orders. (§§ 242, 244, 245
As noted, Judge Petrou scheduled the
hearing on both parents’ separate petitions for permanent restraining orders for
the same day, January 31,
2012, which was within 20 days of the issuance
of the temporary orders. As the
commissioner explained, he then “allowed testimony from both cases at the same
time in order to expedite. The court
believes that there has been testimony on both of the matters and that,
therefore, even though 25 days has elapsed the matter has been ongoing. There is nothing in the statute that says
that the matter must be resolved within 25 days only that it must be begun. The court believes that it has been
begun. We’ve had five days of
. . . testimony on this matter.
We have done everything we can to try to fit this [matter] in within the
period of time that the parties are allowed.
This court has personally moved three separate trials of other people’s
cases so that this matter could be heard in an expedited fashion. It has done the best [it] can under those
circumstances.†The commissioner further
explained that the matters “did flow into one another rather than being
separated as I would have perhaps liked to do it but I do not believe it was so
prejudicial as to result in a need to in any way terminate proceedings or to
find that†there was a failure to comply with the statutory requirements. We see no error or abuse of discretion in the
commissioner’s ruling.
name="_ftnref11" title="">[11]
We also see no merit to mother’s
argument that the commissioner committed prejudicial error by allowing father
to call Officer Carr to testify out of order during mother’s case in chief over
her objection. Because there was a
dispute as to which parent first filed their DVPA request on January 18, 2012, the commissioner allowed mother to present her case in chief first
to be followed by father’s case in chief.
When it appeared the matter would not be completed on January 31,
at the conclusion of mother’s testimony that day, the commissioner granted father’s
request to call Officer Carr to testify out of order because the officer had
been subpoenaed to appear that day and the commissioner had “a limited amount
of time.†On this record, we see no
abuse of discretion in the commissioner’s ruling. (See Rayii
v. Gatica (2013) 218 Cal.App.4th 1402, 1413 [“trial court acted within its
discretion by allowing the witnesses to testify out of order so as to avoid
having to continue the trial date, force the witnesses to cancel their vacation
plans, or forego their testimonyâ€].) In
all events, mother’s claims of prejudice are unavailing. Mother asserts Officer Carr’s testimony “was
not favorable†to her and the commissioner’s ruling prevented mother from
concluding her case in chief and securing a ruling on her request for a
permanent restraining order on January 31.
However, the substance of Officer Carr’s testimony would not have been
different had the officer not been called to testify until after mother had
concluded her case in chief and father had called the witness in his case in
chief. Additionally, even if mother had
concluded her case in chief on January 31, the commissioner would not have
then ruled on her request for a permanent restraining order against father. Instead, as later confirmed by the
commissioner, father would have been allowed to present his case in chief and
the commissioner would have then taken both parents’ petitions for permanent
restraining orders under submission for judicial determination.
Relying on isolated portions of the
record, mother also argues that the commissioner (1) “accept[ed]
uncorroborated testimony of alcohol abuse and abuse of children [in violation
of her] rights to due process†and “allowed over objection testimony from Father
as it relates to levels of drinking,†(2) “heard extensive testimony from Father
while on cross-examination by his attorney about the efforts and behaviors of
the children and allegations of [Mother’s] alcohol abuse,†and (3) “allowed
over objection extensive testimony regarding [Mother’s] DUI conviction
. . . that occurred 17 years ago.â€
However, pertinent statutes and case law demonstrates the commissioner’s
challenged rulings do not warrant reversal. First, the commissioner was free to accept father’s
testimony even if not corroborated concerning mother’s habitual or continual alcohol
abuse and his personal observations of the effect of mother’s conduct on the children’s
behaviors. (§ 3011, subd. (d) [before
considering allegations of parent’s habitual or continual abuse of alcohol court
“may first require independent
corroboration†of the allegations (italics added)]; see Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 268 [court
is “empowered,†but not required, to
request independent corroboration of allegations of a parent’s alcohol abuse];
Cal.App.3d 159, 163 [“ ‘ “[t]he testimony of a witness, even the
party himself, may be sufficient†[to support a judgment]’ â€];
914 [lay witness may testify as to opinion with regard to alcohol-induced
intoxication and sobriety if “ ‘rationally based on the perception of the
witness’ â€]; see also Margolis v. Teplin
(1958) 163 Cal.App.2d 526, 532-533 [“the error in the admission of some hearsay
evidence (in an action tried by the court without a jury) is not prejudicial
error, where there is otherwise enough competent evidence in the record to
support the findingsâ€].) Second, the
commissioner could allow father’s counsel to make father his own witness and question
him regarding matters which were not brought out during father’s examination by
mother’s counsel. (Evid. Code,
§ 772, subd. (c);
name="_ftnref12" title="">[12]
see Figari v. Olcese (1921) 184 Cal. 775, 782;
Cal.App. 148, 154.) Third, we see no
prejudicial error in the commissioner’s admission of evidence of mother’s 1995
DUI conviction. (Evid. Code, §§
351, 352, 353
title="">[13].) When mother’s counsel first objected to the
admission of the evidence, the commissioner explained that evidence of the DUI conviction
would be allowed on the ground that it was probative of whether mother was
abusing alcohol, but that the weight of the evidence would be “based upon
anything that I see beyond that. The
mere fact that someone may have gotten a DUI 17 years ago does not make them an
alcoholic today.†When mother’s counsel
renewed her objection to the evidence, the commissioner again explained that
the evidence was “probative of whether [mother] has a drinking problem,†and
could be “considered in terms of [a] pattern
of the situation.†The
commissioner “fully expect[ed]†that in closing argument mother’s counsel would
argue that the conviction was “such a remote moment in time as to have no
probative value.â€
Lastly, we reject mother’s
contention that the commissioner committed prejudicial error by admitting into
evidence over her strenuous objections an unsigned “letter†dated June 12, 2010, which was “allegedly written by Mother’s cosmetic doctor, who has
no history of being an Expert as it relates to alcohol abuse.â€
commissioner sustained mother’s objections to its admission on the grounds of
hearsay and potential physician-patient privilege, and indicated the letter
would not be admitted for the truth of the medical information contained in it. The letter was admitted into evidence “only
to the extent†the letter showed why father took certain actions after he
received the letter from mother’s physician.
We presume ‑ and mother does not present a cogent argument to the
contrary ‑ that the commissioner considered the letter for the limited
purpose for which it was admitted into evidence, and for no other reason. “ ‘As an aspect of the presumption that
judicial duty is properly performed [(Evid. Code, § 664)], we presume
. . . that the court knows and applies the correct statutory and case
law [citation] and is able to distinguish admissible from inadmissible
evidence, relevant from irrelevant facts, and to recognize those facts which
properly may be considered in the judicial decisionmaking process.’ [Citations]
Stated another way, a trial court is presumed to ignore material it knows
is incompetent, irrelevant, or inadmissible.†(In re
Marriage of Davenport
(2011) 194 Cal.App.4th 1507, 1526.) “Clearly, the mere fact that the court heard
or read the evidence is not sufficient to overcome the presumptions. [Citations.] [¶] These presumptions, we
conclude, are dispositive†of mother’s contentions. (Id.
at pp. 1526-1527.)
The
April 18, 2012, statement of decision, construed as an appealable order, denying
Christine E. Gray’s request for a permanent DVPA restraining order (Case No.
AF11603446), and the order filed on February 16, 2012 granting Robert Gray’s request for a permanent DVPA restraining order
(Case No. AF12612795) are affirmed. Appeals from all other February 16, 2012 orders issued by Commissioner Thomas Nixon in Case No. AF12612795 are
dismissed. Robert Gray is awarded costs
on appeal.
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting
P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] All further
unspecified statutory references are to the Family Code.
those facts that are necessary to resolve mother’s appellate issues. Father filed a motion to augment the record
to include certain documents that were filed in the superior court and not
included in the clerk’s transcripts. We
now grant the motion to augment the record and have considered the documents
only to the extent they are necessary to resolve mother’s appellate issues.
