Marriage of Marvin and Angela A.













Filed 3/20/17 Marriage of Marvin and Angela A. CA4/1






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re the Marriage of MARVIN and ANGELA A.


MARVIN A.,

Respondent,

v.

ANGELA A.,

Appellant.

D070208


(Super. Ct. No. DN175065)

APPEAL from an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed.
Angela A., in pro. per., for Appellant.
No appearance for Respondent.

Angela A. appeals from an order denying her request to renew a domestic violence restraining order against her ex-husband, Marvin A. Angela argues: (1) the trial court utilized an improper standard by requiring her to establish further abuse since issuance of the original restraining order, and (2) the trial court abused its discretion by allowing Marvin to have joint legal custody of their children after the court issued the original restraining order against him. We reject Angela's arguments and affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2015, the trial court granted Angela a restraining order against Marvin for a period of one year, expiring on February 27, 2016. The trial court based the restraining order on findings that Marvin used Angela's personal information without her consent to obtain a loan and communicated with her through voicemail and text messages in a manner designed to harass and disturb her. For example, either Marvin or his fiancé sent Angela a text message stating they knew she was in their neighborhood and they left Angela a voicemail message stating they knew her whereabouts. At the time the court granted the restraining order, it also ordered Angela and Marvin would have joint legal custody of their three children.
In November 2015, Angela requested the court renew the restraining order against Marvin for a period of five years. Angela alleged Marvin continued to harass and stalk her even after the court issued a restraining order against him. For example, Angela claimed Marvin tried to provoke a confrontation with her brother. Further, Angela continued to receive credit card offers and loan offers she did not seek. Angela was also receiving text messages regarding Web sites she did not recognize. Lastly, Angela stated she was scared because Marvin had a key to her car and she believed he had entered the car without her permission.
Marvin testified he had never violated the restraining order and had tried to distance himself from Angela. He had moved to Arizona, remarried, and had a child with his new wife. Marvin alleged Angela had violated the court's orders regarding the manner in which they communicated and exchanged their children.
The trial court denied Angela's request to renew the restraining order, finding she had not met her burden to show she objectively had a reasonable fear of Marvin. The court considered Marvin had moved to Arizona, remarried, has a new family, and was attempting to move on with his life. The court concluded it did not have any evidence before it that Marvin was engaging in the type of stalking behavior that led the court to issue the original restraining order.
DISCUSSION
I. Standard to Renew Restraining Order
Family Code section 6345 authorizes the renewal of a domestic violence protective order.[1] Section 6345, subdivision (a) states: "These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party." (Italics added.)
To prevail on a motion to renew the order, a protected party has the burden to show by a preponderance of the evidence that a reasonable person would have a " 'reasonable apprehension' " of future abuse. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) "It is not enough [that the protected] party entertain a subjective fear the party to be restrained will commit abusive acts in the future." (Id. at p. 1288.) Rather, "in California, as in the rest of the country, an objective test must be satisfied before a protective order is renewed in contested cases." (Id. at p. 1290.) The court need not "find it is more likely than not future abuse will occur if the protective order is not renewed." (Ibid.) Instead, the court may renew a restraining order where "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." (Ibid.)
"In assessing the risk of future abuse, the trial court 'ordinarily should consider the evidence and findings on which [the] initial order was based.' [Citation.] The existence of the order and its underlying findings and facts 'often will be enough in themselves to provide the necessary proof to satisfy that test.' [Citation.] In addition, the trial court should consider any significant change in circumstances such as whether the parties have moved on with their lives. [Citation.] The trial court should also consider whether the circumstances have enhanced the opportunity and possibility of future abuse." (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463 (Eneaji).)
"The trial court's ruling on a request to renew a domestic violence prevention restraining order is reviewed for an abuse of discretion. [Citation.] An abuse of discretion occurs when the ruling exceeds the bounds of reason. [Citation.] But, the exercise of discretion is not unfettered in such cases. [Citation.] … 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.] … 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." (Eneaji, supra, 229 Cal.App.4th at p. 1463.)
II. The Trial Court Applied the Correct Legal Standard
and Acted Within its Discretion

Angela argues the trial court erroneously required her to prove Marvin had perpetrated further abuse since issuance of the original protective order. Based on our independent review of the record, we conclude the trial court applied the proper legal standard when it denied Angela's request to renew the restraining order against Marvin.
During the hearing on the matter, the trial court questioned Angela about whether Marvin had engaged in prohibited conduct since the issuance of the original restraining order. However, the court's questioning did not suggest Angela had to produce evidence of further abuse to renew the restraining order. Instead, based on the entirety of the record, it appears the court was evaluating the risk of future abuse to determine if Angela's fear was reasonable, which was a proper consideration. (Ritchie, supra, 115 Cal.App.4th at p. 1290.) The court was concerned Angela did not present evidence linking Marvin to the things that made her fearful. Importantly, after hearing the evidence, the trial court clearly stated Angela did not meet her "burden to show that it is an objectively reasonable fear that she has regarding [Marvin]."
Further, the court appropriately took into consideration that circumstances since the original restraining order had changed. (Ritchie, supra, 115 Cal.App.4th at p. 1291; Eneaji, supra, 229 Cal.App.4th at p. 1463.) For example, Marvin had moved out of state, remarried, and had a child with his new wife. The court believed Marvin had moved on with his life.
Based on the foregoing, we reject Angela's contention the trial court erred by requiring her to present evidence of further abuse since the issuance of the original restraining order. The record clearly shows the court was well aware of and applied the appropriate criteria to determine whether Angela had an objectively " 'reasonable apprehension' " of future abuse. (Ritchie, supra, 115 Cal.App.4th at p. 1290.)
To the extent Angela argues the trial court abused its discretion in denying her request to renew the restraining order, we conclude the trial court acted within its discretion. As we previously stated, the trial court considered the evidence Angela presented regarding her fear and evidence concerning whether there had been a change in circumstances since the original restraining order. The record supports the trial court's assessment that Angela did not meet her burden to establish she had objectively reasonable fear. Angela did not present evidence connecting Marvin to the items that made her fearful, such as text messages with unknown Web sites and financial solicitations she received in the mail. Further, the record indicates Marvin has moved on with his new family and lives out of state approximately 400 miles away from Angela. Based on the record, we conclude the trial court considered relevant factors, applied the proper legal standard, and acted within its discretion in denying Angela's request to renew the restraining order against Marvin because Angela did not demonstrate she had an objectively reasonable apprehension of future abuse.
III. Custody Order
Angela argues the trial court abused its discretion by granting Marvin joint legal custody of their children after it issued the original restraining order in 2015. Specifically, Angela contends the court's award of joint legal custody violated section 3044, stating: "there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child."
We have no jurisdiction to consider Angela's arguments. Angela did not appeal from the trial court's 2015 custody order. "If a party fails to appeal an appealable order within the prescribed time, [the reviewing] court is without jurisdiction to review that order on a subsequent appeal." (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; accord Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953.) Further, as Angela points out, the trial court has modified the legal custody order at least twice since the 2015 order giving Angela and Marvin joint legal custody of their children. Even if we had jurisdiction to consider Angela's arguments, no effective relief can be afforded to her because subsequent events in this matter make her arguments moot. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315–1316.)


DISPOSITION
The order is affirmed. Each party to bear their own costs on appeal.


MCCONNELL, P. J.

WE CONCUR:



NARES, J.



HALLER, J.

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[1] All further statutory references are to the Family Code unless otherwise indicated.