E.T. v. C.T.
Filed 3/15/13 E.T. v. C.T. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
E.T.,
Plaintiff and Respondent,
v.
C.T.,
Defendant and Appellant.
D059280
(Super. Ct.
No. EV17285)
In re the Marriage of C.T. and
E.T.
C.T.,
Petitioner,
v.
E.T.,
Respondent.
(Super. Ct.
No. D517239)
APPEAL from an order of the Superior
Court of
County, Joel R. Wohlfeil, Judge. Reversed.
I.
INTRODUCTION
E.T. and
C.T. were married until March 2010, and have two children—S.T., born in 1996,
and T.T., born in 2002.
name="_ftnref1" title="">[1] In September 2010, E.T. filed a request for a
domestic violence prevention restraining
order against C.T.
name="_ftnref2" title="">[2] In a responsive declaration, C.T. denied
E.T.'s allegations of recent abuse and stated that E.T. was permitting S.T. to
live in Australia
without his permission. At a November
2010 hearing on E.T.'s request, E.T.'s counsel acknowledged that S.T. had been
living in Australia
since June of 2010, but claimed that C.T. had given his written consent for
S.T. to do so. In response, C.T.
acknowledged that he had given his consent for S.T. to take a vacation in
Australia, but insisted that he had not given his consent for S.T. to "go
to school or to live" there.
name="_ftnref3" title="">[3] The trial court stated that its
"perception of the credibility" of the parties in connection with
respect to E.T.'s request for a restraining order would be "substantially
influenced by whether or not [C.T.] gave his permission for S.T. to live in Australia." The court continued the hearing on E.T.'s
request for a restraining order, and directed E.T. to provide the court with
evidence of C.T.'s "authorization for [S.T.] to live in Australia."
E.T. subsequently lodged with the
court a document that reflected C.T.'s consent for S.T. to "travel[]"
to Australia. At the continued hearing, E.T.'s counsel
argued that at the November hearing, C.T. had denied having given permission
for S.T. to "go to Australia." E.T.'s counsel further argued that E.T. had
produced evidence demonstrating that C.T. had not been truthful in claiming
that he had not given permission for S.T. to live in Australia,
a fact that counsel contended "should certainly weigh against [C.T.'s]
credibility." C.T. responded that
he had never denied having granted permission for S.T. to travel to Australia,
and stated that the dispute at the prior hearing had centered on whether he had
granted permission for S.T. to live in
Australia. The trial court stated that it could not
"recall the finite details" of the November hearing, but added that
it would draw "inferences adverse to [C.T.'s] credibility," and would
grant E.T.'s request for a restraining order.
On appeal, C.T. claims that the
trial court erred in granting E.T.'s request for a restraining order. C.T. argues that the court based its ruling
on the mistaken belief that C.T. had denied having granted permission for S.T.
to visit Australia,
when, in fact, the parties' dispute at the November 2010 hearing centered on
whether C.T. had granted permission for S.T. to live in Australia. C.T. also maintains that the trial court had
ordered E.T. to present evidence that C.T. had granted permission for S.T. to
and that E.T. failed to present such evidence.
We agree with C.T. that the record
unambiguously demonstrates that the trial court granted E.T.'s request for a
restraining order based on a material misunderstanding of the facts in the
case. We reverse the order granting E.T.
a permanent restraining order and remand for further proceedings.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
On September 13, 2010, E.T. filed a request for a domestic
violence prevention restraining order against C.T. In her request, E.T. asked that C.T. be
restrained from having contact with her, S.T., and T.T. In a declaration lodged with her request,
E.T. stated that C.T. had perpetrated domestic violence on her during their
marriage, including an incident in 2006 during which C.T. threatened her with a
hunting knife and threw her to the ground.
E.T. also alleged that later in 2006, while she was recovering from
abdominal surgery, C.T. forcibly removed her from a vehicle and threw her to
the ground. E.T. also alleged that C.T. had verbally
abused her approximately two days prior to her filing the request for a
restraining order. ET claimed that C.T.
yelled at her in front of T.T. after one of T.T.'s football games. E.T. stated that she attempted to walk away
with T.T., but that C.T. followed her and continued to yell E.T.'s name. E.T. stated that, upon returning home, she
contacted the police, who advised her to seek a restraining order.
Together with her request for a
restraining order, E.T. filed a request to modify a child custody order
granting C.T. and E.T. joint legal and
physical custody over S.T. and T.T.
E.T. requested that the court grant her sole legal and physical custody
of both children. In her request to
modify child custody, E.T. stated that S.T. lived with her, and that she and
S.T. had lived at the same address since March 2008.
In October 2010, C.T. filed an
answer to E.T.'s request. In an
accompanying declaration, C.T. denied E.T's allegations of recent abuse
solely on past events." C.T. also
stated that "[i]t should be noted that in her declaration [E.T.] does not
even tell the court my daughter [S.T.] is no longer living in the country and
has been sent to live with relatives in Australia[,] but states both children
reside with her." C.T. also alleged
that E.T.'s request was "obviously retaliation to my insistence that I be
allowed access to my children in conformity with a legitimate court order and
my protest to my daughter being sent to Australia to live with
relatives." With respect to S.T.'s
current residence, C.T. stated:
"My daughter [S.T.] was sent to Australia back in
June by her mother [E.T.]. The
representation at the time was [S.T.] was to only go for a vacation and return
before the start of the next school year in August 2010. [S.T.] flew out to Australia in June and her
mother and brother were to fly out a month later to meet her. At the end of July my daughter called me and
informed me her mother was leaving her in Australia with her grandmother, and
my son [T.T.] and his mother were flying back [to] the States without her. [¶] I
did not agree to my daughter living in Australia. I tried to talk to E.T. about my protests and
bringing my daughter back, but she refused to talk to me about the
matter."
C.T. requested that the court deny
E.T.'s request for a restraining order, that the existing joint custody order
remain in effect, and that S.T. be ordered to return to San Diego.
On November 2, 2010, the trial court held a
hearing on E.T.'s request for a restraining order. The trial court began the substantive portion
of the hearing by asking E.T.'s counsel where S.T. was currently living. E.T.'s counsel responded that S.T. had been
living in Australia since June 20, 2010.
The trial court asked E.T.'s counsel whether there was a written
agreement executed by C.T. reflecting C.T.'s authorization for S.T. to live in
Australia. E.T.'s counsel indicated
that he believed that there was such a document. C.T. acknowledged having given his consent
for S.T. to travel to Australia for a vacation, but insisted that he had not
consented to S.T. living in Australia.
The trial court stated that there
was a "material conflict" with respect to the parties'
representations as to whether C.T. had granted his consent for S.T. to live in
Australia, and that the court's "perception of the credibility by [
either party in connection with . . . [E.T.'s]
application for [a] permanent restraining order . . . will
be substantially influenced by whether or not [C.T.] gave his permission for
[S.T.] to live in Australia." The
court continued the hearing and directed E.T. "to provide the court with
evidence of [C.T.'s] authorization for [S.T.] to live in Australia."
On November 10, the court received
from E.T. an "Overseas Passport Application," signed by C.T. The application states in relevant part,
"I consent to . . . [S.T.] travelling
internationally."
On December 7, 2010, the trial
court held another hearing on E.T.'s request for a restraining order. At the hearing, E.T.'s counsel stated that at
the last hearing, "there was some question about whether [C.T.] had
granted permission for [S.T.] to go to Australia" and that C.T. had denied
having given permission for S.T. to go to Australia. E.T.'s counsel further argued that E.T. had
lodged with the court a document that reflected that C.T. had granted such
permission. In response, C.T. argued
that he had not given permission for S.T. to live in Australia, and that he had
given permission only for S.T. to visit relatives there.
The trial court indicated that it
could not "possibly recall the finite details of how it unfolded,"
but asserted that C.T. had previously denied signing a passport
application. The court stated that it
would therefore draw "inferences adverse to [C.T.'s] credibility,"
and would grant E.T.'s request for a restraining order. The court added that "the only party who
is to be protected on the restraining order is [E.T.]," and that
"[t]he court specifically does not include the children as protected
parties." With respect to E.T.'s
request to modify custody, the court ruled that the parties were to
"continue to practice the terms and conditions of their existing parenting
plan," which provided for "[v]isitation . . . [to] be arranged by
mutual agreement of the parties."
The court stated that it would set a follow up hearing for the purpose
of "develop[ing] a detailed parenting plan on when the parties are to have
the children in their care."
name="_ftnref6" title="">[6] (RT 15, 18-20)!
That same day, the trial court
entered a domestic violence prevention restraining order, prohibiting C.T. from
having any contact with E.T. for a period of three years. The restraining order permits C.T. to have
"brief and peaceful contact as required for court-ordered visitation of
children. . . ."
In January
2011, C.T., through counsel, filed a motion for reconsideration. The record on appeal does not contain a
ruling on C.T.'s motion for reconsideration.
In February 2011, C.T. timely
appealed the December 7, 2010 restraining order.
III.
DISCUSSION
The trial court abused its discretion by granting E.T.'s request for a
restraining order based on a material misunderstanding of the facts in the case
C.T. argues that the trial court abused its discretion
in granting E.T.'s request for a domestic violence prevention restraining
order.
A.
Governing
law and standard of review
In S.M. v. E.P., supra, 184 Cal.App.4th at page 1264, this court
outlined the law governing the issuance of a domestic violence prevention
restraining order:
"Pursuant to the Domestic Violence Prevention Act (DVPA) ([Fam.
Code,] § 6200 et seq.), a court may issue a protective order to restrain any
person for the purpose of preventing a recurrence of domestic violence and
ensuring a period of separation of the persons involved. [Citation.]
perpetrated against enumerated individuals, including a former spouse or
cohabitant. [Citation.] 'Abuse' means any of the following: [¶] (a)
Intentionally or recklessly to cause or attempt to cause bodily injury[;] [¶]
(b) Sexual assault[;] [¶] (c) To place a person in reasonable apprehension of
imminent serious bodily injury to that person or to another[;] [¶] (d) To
engage in any behavior that has been or could be enjoined pursuant to [Family
Code] Section 6320.[
name="_ftnref9" title="">[9]]' [Citation.]"
The S.M. v.
E.P. court also outlined the applicable standard of review to be applied by
this court on appeal:
"
'A grant or denial of injunctive relief is generally reviewed for abuse of
discretion. [Citation.] This standard applies to a grant or denial of
a protective order under the DVPA.
[Citation.]' [Citation.] However, '[j]udicial discretion to grant or
deny an application for a protective order is not unfettered. The
being applied by the court, i.e., in the " 'legal principles
governing the subject of [the] action. . . .' " ' [Citations.]" (S.M. v. E.P., supra, 184 Cal.App.4th at pp. 1264-1265.)
Our
recognition in S.M. v. E.P. that a
trial court's discretion to grant a domestic violence prevention restraining
order is not unlimited, is consistent with the more general principle that,
" '[A]ll exercises of legal discretion must be grounded in reasoned
judgment and guided by legal principles and policies appropriate to the
particular matter at issue' [citation]."
(People v. Superior Court (
977.) In other words, the abuse of
discretion standard "asks in substance whether the ruling in question
'falls outside the bounds of reason' under the applicable law and the relevant
facts [citations]." (
Cal.4th 148, 162.)
"In conducting our review for
an abuse of discretion, we
determine 'whether the court's factual determinations are
supported by substantial
evidence and whether the court acted reasonably in exercising its
discretion.' [Citation.]" (In re
Marriage of Bodo (2011) 198 Cal.App.4th 373, 384.) "A discretionary
ruling predicated on a required
finding of fact is necessarily an abuse of discretion if no substantial
evidence supports the fact's existence.
[Citations.]" (
33 Cal.4th 523, 531.) More generally, a
trial court's ruling constitutes an "abuse of
it." (In re Andrew J. (2013) 213 Cal.App.4th 678, 692.)
B.
The record unambiguously
demonstrates that the trial court granted E.T.'s request for a restraining
order based on a fundamental misconception as to the nature of the parties'
dispute at the November 2010 hearing and the state of the evidence. At the November 2010 hearing, C.T.
acknowledged having given permission for S.T. to travel to Australia for a vacation, but denied that he had given
permission for S.T. to
court ordered E.T. to present evidence that C.T. "gave his permission for
[S.T.] to live in
Australia." (Italics added.) In response to the court's order, S.T.
submitted evidence that C.T. had granted permission for S.T. to merely "
the trial court improperly found that E.T. had complied with the court's
order based on the court's mistaken belief that C.T. had
denied having given permission for S.T. to travel
to Australia.
title="">[11] Neither the trial court's finding that E.T.
complied with the court's order to provide a document demonstrating that C.T.
"gave his permission for [S.T.] to live
in Australia" (italics added) nor its finding that C.T. had denied
granting S.T. permission to travel to
Australia is supported by substantial evidence.
Further, the record indicates that the court expressly granted E.T.'s
request for a restraining order based on the unsupported adverse credibility
determination that the court drew.
Under these circumstances, we
conclude that the trial court abused its discretion in issuing the restraining
order. We remand the matter to the trial
court for a reevaluation of E.T.'s request for a restraining order, in light of
a full reconsideration of all of the relevant facts, including those discussed
in the preceding paragraph.
IV.
DISPOSITION
The trial
court's December 7, 2010 domestic violence restraining prevention order is
reversed. The matter is remanded to the
trial court with directions to conduct further proceedings consistent with this
opinion. C.T. is entitled to costs on
appeal.
AARON, J.
WE CONCUR:
O'ROURKE,
Acting P. J.
IRION,
J.
name="_ftn1" title="">[1] In
accordance with our customary practice of protecting the identity of minors
involved in appellate court proceedings, we refer to the individuals involved
in this case by their initials.
name="_ftn2" title="">[2] The
trial court consolidated the domestic violence proceeding (case No. EV17285)
with the parties' pending child custody proceeding (case No. D517239).
