Opinion
D081846
03-26-2024
In re the Marriage of S.B. and K.K. v. K.K., Respondent. S.B., Appellant,
Law Offices of Sondra S. Sutherland and Sondra S. Sutherland for Appellant. Linda Cianciolo for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 21FL010417N Sharon L. Kalemkiarian, William Y. Wood, Judges. Affirmed.
Law Offices of Sondra S. Sutherland and Sondra S. Sutherland for Appellant.
Linda Cianciolo for Respondent.
DATO, J.
The parties to this appeal, S.B. (Wife) and K.K. (Husband), had a long-contentious marriage that led to an acrimonious divorce. After they separated and were effectively living in separate dwellings on their property, Wife filed a request for domestic violence restraining order (DVRO) under the
Domestic Violence Protection Act (DVPA) (Fam. Code, § 6200 et seq.), seeking protection from Husband. She asserted that Husband committed domestic violence primarily by harassing and controlling her through software applications in her vehicle and home automation systems on the property, as well as by causing her to fear for her safety after a particularly heated confrontation between the parties in which he allegedly got physical with her.
Further statutory references are to the Family Code unless otherwise indicated.
At the conclusion of a long cause evidentiary hearing that spanned multiple days and involved many hours of testimony, the trial court denied Wife's DVRO request. It issued a lengthy statement of decision and made voluminous findings regarding the various incidents about which Wife was complaining. In setting out its findings, the court found Wife to be less credible than Husband on most points, although it found neither party to be fully credible. Based on these credibility determinations and the other evidence presented, it concluded that no past domestic violence had occurred and no DVRO was warranted.
On appeal, Wife sets out no fewer than 20 argument headings asserting assorted contentions of error by the trial court. These include challenges to the trial court's evidentiary rulings as well as questions regarding the sufficiency of the evidence to support the court's numerous factual findings. In large part, Wife takes issue with the way the court viewed the evidence, arguing that it reached incorrect conclusions, relied on inappropriate considerations, and/or appeared to make outdated and gender-based assumptions in making its determinations. Guided by the applicable standards of review, we find ample support for the trial court's factual findings and legal rulings. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As is likely true in many cases where one party seeks a DVRO in the context of an acrimonious divorce, the disputes, poor behavior, and verbal aggressions recounted by the parties in this case are too numerous to catalog in an appellate opinion. We will therefore do our best to summarize the hours of testimony provided by the parties and other witnesses into an abridged narrative of relevant events, set out in the light most favorable to the court's order. (See, e.g., In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)
A. Background: A Deteriorating Marriage
Wife and Husband are both doctors. Wife works from home as a pathologist; Husband is an anesthesiologist and has a pain management practice. The couple met while they were in medical school and married in 2001. In 2007, they had twins.
The parties seemed to agree that they began having serious marital difficulties after the birth of their children. A nanny observed that Husband would "sometimes" get angry with how Wife handled their small children and would use "the f-word" with her in a "strong" but "soft spoken" voice. The nanny did not observe Wife respond, but she believed there was "tension" in the house. A mutual friend who had known the couple since 2001 indicated that Husband would say "things about [Wife's] mothering and how she was lazy and that she was crazy." This friend also conceded that Wife had called Husband derogatory names, acknowledging that "calling each other names was the way their marriage was."
In 2014, Wife filed for divorce but never moved out of the family home. Eventually the parties reconciled. Wife and Husband then separated in 2016, but they reconciled again. Wife claimed that the reason she wanted to leave the marriage in 2016 was that Husband was "calling [her] names all over the place," her "career was shunted [sic]," and she "felt like [she] had no agency in the marriage."
On July 24, 2023, Wife filed an unopposed request for judicial notice regarding the Register of Actions in the 2014 divorce matter. We grant the request and take judicial notice of the Register of Actions in case No. DN181014 as a record of a court of this state. (See Evid. Code, §§ 452, subd. (d) & 459.)
At some point in 2019, Husband and Wife began a major renovation of their Rancho Santa Fe home and temporarily relocated. They moved back into the Rancho Santa Fe home in June 2021. Both parties acknowledged that at about that time the marital relationship deteriorated significantly. The record demonstrates that throughout this period and before Wife sought the DVRO, the parties engaged in name-calling, threats about a possible divorce proceeding, and plenty of negative commentary directed at each other.
For example, Wife texted Husband messages such as:" 'So bring it on, bitch' ";" 'If you want to go there, I'm not afraid of you' ";" 'Whatever you think you have on me, I've got a back pocket' ";" 'Fuck you' ";" 'Let me send that to my lawyer' ";" '[A]ll bets are off ";" 'This will be my house after the divorce or neither of ours. I'm totally fine with the latter' "; and" 'Just so you know, my exit plan will take you down all the way.'" Husband said things such as "You need to be admitted" and "Your a fckng nightmare of a human being." He also called her "crazy"; "anorexic bitch"'; and "a useless fucking c[ ]." (Spelling errors in original.) These are just a sampling of the ways the parties would speak to each other, but offer a fair impression of the nature of their interactions.
Wife admitted that during this period of time she drank every day and would typically have three to five glasses of wine. She was also taking a regular regimen of Xanax, which Wife acknowledged could potentially interact with alcohol. Husband indicated that Wife's drinking increased during the COVID-19 pandemic. He recalled that between April and June 2021, Wife began to drink approximately a bottle of wine or more a night. Husband observed that Wife would become more intoxicated, and then angry, belligerent and volatile. His experience was that during the day, when Wife was not drinking, they would have "normal" conversations. But later in the day, "when she started drinking and taking Xanax, it was like a Jekyll and Hyde situation."
Husband acknowledged that during this time both parties would start arguments. Between June and October 2021, the parties mostly argued through text messages and were generally otherwise avoiding each other. Upon moving back into the family home, Wife worked from the guesthouse on the property. She began staying in the guesthouse by choice, and over time stayed there more and more. Eventually, Wife was essentially living in the guest house while Husband was living in the main house with the children. Husband observed that Wife's relationship with the children deteriorated during the period of time as her drinking increased and she spent more time in the guesthouse.
Wife testified that she felt the family had moved back to the Rancho Santa Fe residence "prematurely" because there were still workers on the property. She believed these conditions "demanded" that she move into the guest house to ensure that the dogs would not have any conflict with the workers. During this time, Wife moved many of her clothes into the guest house. She would sometimes use the main residence, particularly the kitchen and the primary bathroom.
B. The First Incident: October 17, 2021
During a joint therapy session on October 17, 2021, Husband informed Wife that he wanted "to go through with the divorce." Wife admitted she was angry with Husband about what he said during the session, but insisted it was because he had told her he wanted to take over the house, and not because he wanted a divorce.
Later that afternoon, Husband was watching television in the pool cabana with Teddy, one of the parties' dogs, when Wife came in and aggressively took the dog out of Husband's arms. Husband did not react, and instead left the cabana and went to the bedroom.
Wife ran a charity devoted to caring for at-risk dogs. At the time of these events, the couple had four dogs living with them. Both Husband and Wife had a particular affinity for Teddy, a French bulldog.
Wife drank the same amount of wine that evening as she did every evening. Husband went to bed at around 8:00 p.m. and had Teddy with him. At 9:38 p.m., Wife texted Husband," T sure am angry, no question,'" and" 'Or just don't respond, because deep down you're a coward,'" " 'Peace out, bro,'" and" T hate you.' "
Wife testified that as of October 17, 2021, she was 5' 10" tall and weighed 95 pounds.
At approximately 10:30 p.m., Wife went into the main house and began banging on the door to the bedroom where Husband was sleeping. The noise awakened Husband, but he waited in bed trying to try to avoid a conflict. Then it sounded to him as if Wife was kicking the door, and he became concerned she might break it. Husband picked up Teddy and opened the door. He saw their daughter standing outside her bedroom door. Wife came into the bedroom and the parties began arguing. Wife said, "Give me the F-ing dog" and Husband said, "Get the F out of my room." Wife was slurring her words and stumbling. She appeared more intoxicated to Husband than she had been on previous occasions. A "full screaming match ensued." Wife tried to grab Teddy from Husband. Husband refused to let Teddy go with Wife and turned away from her. Then the children came into the bedroom, telling their parents, "Stop, stop. Stop arguing." The children were crying and were "very upset."
Husband left the bedroom and went to the kitchen. Wife followed him, and the kids followed her. Wife took her cell phone out and began to record Husband. She walked up to him with the phone and said," 'You punched me in the face.'" Husband took the phone from her and put it down on the kitchen island. He said, "Please let's stop this for the kids'[ ] sake. Let's all go to bed. Let's not do this right now." Wife repeated that he had punched her in the face. Husband said that he had not punched her in the face, and the parties argued about it for about 30 seconds. Eventually Wife returned to the guest house and everyone else returned to their rooms.
Wife conceded that she may have called the parties' son at 11:49 p.m. that night and spoke to him for five minutes. She also called the parties' mutual friend that night, after midnight. They talked for approximately an hour. The friend thought Wife was "hysterical," and she was unable to calm down. Wife texted the friend a photograph of a mark on the right side of her nose. The following morning, the friend met Wife at a store. She looked at Wife's nose and observed a small red mark. The friend took photographs of the mark with Wife's phone.
When asked about this call at the hearing, Wife repeatedly stated that she could not recall whether she asked their son to tell the police that he witnessed Husband punch her in the face.
C. The Second Incident: October 28, 2021
Between October 18, 2021 and January 13, 2022, Husband and Wife had only two face-to-face interactions. Husband avoided in person interactions with Wife because he believed she was "trying to create an incident."
The first face-to-face interaction was on October 28, 2021. Husband and the children had planted vegetables and tomatoes in six raised planters in the yard the weekend before. On October 28, Husband returned home from work during lunch to retrieve his laptop and discovered that the backyard planters had been destroyed by the dogs. Wife was in the guesthouse with the door open. Husband asked her why she had left the dogs in the yard to destroy the garden. He was frustrated, but he stopped engaging and returned to work. Husband came to learn that on the same day, Wife had posted a photograph on Facebook. The photo showed dogs lying in planter boxes.
The parties had built a large dog run on the side of the house for the dogs' use. Wife testified that it was "well-known that [their] dogs [were] destructive."
Wife had added a caption," 'Sometimes life just isn't fair,'" accompanied by a face emoji with a tongue sticking out
Later that evening, around 9:00 or 10:00 p.m., Husband returned home. As he was walking along the pathway from the garage to the main house, Wife opened the door to the guesthouse and began yelling profanities at him. She also yelled that he was "out pussy grabbing" and stated that "she was recording [his] every move." Husband believed she was drunk, as that "was a nightly occurrence at that point or very common occurrence at that point." She appeared to be angry and belligerent. Husband said," 'If you fuck [with] me, I'm going to fuck with you harder,'" and then told Wife to" 'Go back to your cave.'" Husband was concerned there might be another incident like what had occurred on October 17, so he locked the doors to the house from approximately 11:00 p.m. until about 6:00 or 7:00 a.m. the following morning.
Wife called the police the night of October 28. The officer who responded to Wife's call understood that the call was about a "[f]amily disturbance or domestic violence." He spoke with Wife and put the information he gathered into a police report. Wife reported that she had been in an argument with Husband that day, and she also reported the incident that occurred on October 17, telling the officer that Husband had engaged in physical violence on that date. She texted the officer the photographs of her face taken after the October 17 incident. The officer asked her why she had not previously reported the October 17 incident, and Wife said she was unsure why. Wife appeared to the officer to "ha[ve] been drinking a little bit." The officer advised Wife that she could seek a restraining order, and she said at that point that she did not wish to do so.
The dispatcher reported that both parties were intoxicated; this information would have been relayed by the caller, Wife. The officer acknowledged that he never made contact with Husband that night and thus had no way of verifying whether he was intoxicated. Wife admitted during her testimony about the incident that she had been drinking that night, but denied being intoxicated.
The next morning, Wife tried to get into the main house, but it was locked. She called the police and a locksmith for help, but by the time she returned to the house with officers and the locksmith, the house was no longer locked.
D. An Uneasy End to 2021 and Start to 2022
During November and December 2021, Husband and Wife attempted to reach an agreement that would allow the children to remain in the main house, while the two of them would switch out weekly. This was envisioned as a temporary interim solution to allow time for Wife to find and purchase a new house. But no understanding was ultimately reached because the parties could not agree on how long this arrangement would last.
Between October 2021 and January 2022, Wife, without permission, accessed Husband's computer and read, downloaded, and/or took screenshots of his private text messages, which appeared on both his cell phone and computer.
There was a plan for the children to go to England to visit Wife's parents over the Christmas holiday. The trip was cancelled when Wife's parents indicated they did not want the children to visit because of a COVID variant outbreak. Husband traveled with the children to New York instead. While they were away, Wife moved from the guesthouse to the pool cabana on the property. Wife believed that her move to the cabana would upset the other members of her family because they had previously been upset when she attempted to move into the cabana on Thanksgiving. Upon returning to San Diego on New Year's Eve night, the parties' son was angry with Wife and "came banging on the [cabana] door," but she refused to open the door and speak to him.
Husband testified that he purchased two tickets for the children, but Wife never purchased a ticket for herself and apparently did not plan to accompany the children on the trip.
On New Year's Day 2022, Husband and Wife had their second face-to-face interaction. Husband knocked on the door to the cabana and entered when Wife opened the door. He was angry and said he was looking for the key to the car he typically drove and whiskey that had been removed from the main house. The children also came to the cabana and expressed anger toward Wife that day. The parties had had no contact with each other between January 2 and January 13.
Husband noticed that the car he typically drove had slight damage to the back of it and muddy pawprints inside.
E. Wife Requests a DVRO
Wife filed her request for a DVRO on January 12, 2022; a TRO was issued that day and served on Husband the following day. Wife's DVRO request initially focused on her allegation that Husband "is tracking my vehicle/stalking and keeping me under surveillance; controlling all aspects of home automation, temperature, and harassing me while at home alone." She also alleged that between October 28 and 29, 2021, after a verbal disagreement, Husband locked the doors to the main home, and Wife "feared for [her] physical safety, as [Husband] had become physically abusive just 10 days earlier while he was heavily intoxicated."
After being served with the TRO on January 13, Husband called the children, who were at home sick with COVID, to let them know he could no longer be at the home because of the restraining order. The parties' daughter decided to leave the home immediately and go with Husband, who drove to the home and stopped at the property line to retrieve her. The parties' son, however, chose to remain in his room at the family home. Wife had a former nanny with her at the home that night, and she recorded the son as he directed an explosive fit of anger at Wife.
The son chose to leave the home the next day to stay with Husband The children remained with Husband throughout the DVRO proceedings and relied on him for "basically all their needs."
After leaving the residence following service of the TRO, the children returned on two occasions to retrieve some of their belongings. On January 20, the children asked to go the house. Husband parked "very, very far up the street" and remained in the car. He instructed them to get their "stuff and get out as quickly as possible" to avoid "more chaos and drama." Husband thought the children could go back to their house, given that they were not being restrained. The following week, Husband again brought the children back to the house. On that occasion, after the parties' son left the home to walk up the street to Husband's car but before their daughter had emerged from the home, Wife came out and began walking down the street, filming Husband in his car, which was "a couple [of] houses down" from their home. Husband drove away and parked a quarter mile from the home and waited for their daughter to walk to his car. The children were eventually able to return to the home to retrieve more belongings at a later date when minor's counsel was present.
On one of these occasions, Husband asked their daughter to get him a suit and pair of shoes out of the primary bedroom closet because he was in possession of only a few clothes and personal belongings. According to Husband, Wife and her attorney would not allow him to return to the house, even with a police escort, to retrieve personal items. Husband was eventually permitted to go to the house with a police escort in late April 2022.
The parties had no physical contact outside of court hearings and no communication with each other between January 13, 2022 and the DVRO proceedings.
F. The DVRO Hearing
The multi-day hearing on Wife's DVRO request began on August 12, 2022, eight months after the request was filed. Both parties testified, as did a former nanny , a housekeeper, the parties' mutual friend, an expert witness called to testify regarding domestic violence, the officer who responded to Wife's call to police on October 28, 2021, a friend of Wife's, and an information technology consultant whom Wife had hired to help her with her internet and e-mail.
The former nanny who had been present at the home on January 13, 2022 did not testify.
In general, these witnesses testified in a manner consistent with our recitation of the factual background of this case. Unsurprisingly, however, Wife and Husband provided differing versions of many events, particularly the events that occurred on October 17 and October 28, 2021. For example, Wife testified that Husband blocked her exit out of the room, grabbed Teddy from her arms, pushed her onto the bed and punched her in the face during parties' fight on October 17. Husband denied that version of events, asserting instead that he was holding Teddy during the incident and that Wife was trying to grab Teddy from him. According to Husband, he did not come into physical contact with Wife.
Wife also maintained that Husband grabbed her phone from her when they were in the kitchen and then threw it at her. Husband acknowledged taking the phone, but claimed that he put it down on the counter and did not throw it at her. Wife also testified to being fearful of Husband after October 17, and stated that on October 28 she "retreated" to the guesthouse, locked the door, and "sat in the corner with a knife in [her] hand." In general, Wife's testimony tended to focus on her belief that Husband demeaned her and caused her isolation from her children and friends. Husband largely denied Wife's characterization of his conduct and certain events, while conceding that the parties spoke negatively toward each other and regularly yelled during arguments.
The evidence presented at the hearing ultimately did not support Wife's claims in the DVRO request that Husband was surveilling her or controlling various aspects of the home through smart home software applications. If anything, the evidence demonstrated that Wife was inexperienced with technology, including the phone applications used for three household systems (the parties' Nest thermostats, the Sonos music system, and a pool heater), and that there had been a plumbing problem at the home that caused a water temperature issue.
At the end of the hearing, the trial court made a very detailed set of factual findings and rulings, ultimately concluding that Wife had not established by a preponderance of the evidence that Husband had committed abuse under the DVPA. The court began by stating:
"Credibility was an issue in this case. I don't think either party was entirely truthful, to be honest with you. That's often the case. I also recognized that this was a pretty miserable union, at least since the parties moved back into the house, that there was a lot of pain and misery, and I think frankly betrayal, mostly of the children, but certainly of each other as well. But I don't think that the actions, and I'm going to go through why, are domestic violence. I think they're a lot of other things."
The court then addressed each of Wife's theories as to how Husband may have committed abuse, rejecting any finding that he intentionally or recklessly caused her bodily injury, destroyed her mental or emotional calm (either directly or by enlisting the children to do so), coercively controlled her, or abused her through his conduct after the TRO had been served when he brought the children back to the house to retrieve their own possessions.
The judge was also unconvinced that Wife demonstrated she had a reasonable apprehension of future abuse or violence.
The court went through a specific and lengthy discussion of how it viewed the evidence, stating its belief that "much of this dispute was over the house"-not as to who was going to keep the house, but rather "the [renovated] house was the expression of everything they hated about each other." It rebuked Husband for the way he spoke to Wife, calling his commentary disrespectful and inexcusable, but also noted that Wife's communications to him were similarly problematic. The court did not believe that Husband's comments constituted abuse. Rather, the judge credited the mutual friend's testimony and agreed "that [they] dished this out to each other all the time" and that the mutual negative commentary was "in fact how [they] related to each other."
The trial court expressly found that Wife lacked credibility with respect to many aspects of her testimony, particularly her assertions about the October 17 incident and her claim that Husband caused her fear and disturbed her mental calm. It determined that Wife was the aggressor on the night of October 17. The court found that Husband did not punch Wife, as she claimed, and further concluded that to the extent there may have been a physical tussle over the dog, any force Husband may have used "would have been reasonable force to get her away from him as she was drunk and storming into the room and grabbing for the dog[ ]." Thus, any resulting "mark on her nose," if it did indeed occur during the parties' argument, would have resulted only as a result of Husband using reasonable force to try to avoid Wife's aggression.
The court questioned certain aspects of Husband's testimony, particularly his assertion that he was unaware the police had been trying to reach him after Wife's call to police on October 28, 2021. In general, however, the court credited Husband's testimony to a much greater degree than it credited Wife's. It specifically determined that Wife did things she knew would provoke the other members of the family, and the court viewed her as acting out in much the same way that the rest of the household was acting out. The judge noted that Wife's actions did not appear to demonstrate that Wife had in any way "been beat down" by Husband.
The court ultimately issued a 20-page written statement of decision denying the request for a DVRO, which was fully consistent with the judge's oral comments at the end of the hearing.
DISCUSSION
A. Substantial Evidence Supported the Trial Court's Determination that Wife Failed to Establish Abuse so as to Warrant Issuance of a DVRO
Under the DVPA, a court is authorized to 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" '" upon"' "reasonable proof of a past act or acts of abuse." '" (In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225, 228 (Davila & Mejia); accord, §§ 6220, 6300.) Abuse includes "intentionally or recklessly caus[ing] or attempting] to cause bodily injury"; "[s]exual assault"; "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another"; and "engaging] in any behavior that has been or could be enjoined" under section 6320. (§ 6203, subd. (a).)
Behavior that may be enjoined under section 6320 as relevant to this appeal includes "disturbing the peace of the other party" (§ 6320, subd. (a)), which "may be properly understood as conduct that destroys [another's] mental or emotional calm." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496-1497.) "Thus, section 6320 provides that 'the requisite abuse need not be actual infliction of physical injury or assault.'" (Nadkarni, at p. 1496.)
The burden of proof in connection with a restraining order under the DVPA is preponderance of the evidence. (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90, fn. 14.)
We review the grant or denial of a DVPA restraining order for abuse of discretion, and, to the extent we are called upon to review the court's factual findings, we apply the substantial evidence standard of review. (Davila & Mejia, supra, 29 Cal.App.5th at p. 226.) In reviewing the evidence, we examine the entire record to determine whether there is any substantial evidence-contradicted or uncontradicted-to support the trial court's findings. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) In assessing the record for substantial evidence, we must accept as true all evidence supporting the trial court's findings and resolve every conflict in favor of the judgment. (Ibid.)
We note a corollary principle that is particularly important for purposes this case."' "Where . . . the judgment is against the party who has the burden of proof, it is almost impossible for him [or her] to prevail on appeal by arguing the evidence compels a judgment in his [or her] favor. That is because unless the trial court makes specific findings of fact in favor of the losing [party], we presume the trial court found [that party's] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence." '" (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067; see also Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107.)
1. The Evidence of Husband's Conduct Did Not Compel a Finding of Abuse as a Matter of Law
Focusing on various aspects of the evidence regarding Husband's conduct, Wife contends the trial court was required to conclude that she was a victim of abuse. We address each of her arguments in turn.
a. The Trial Court Did Not Err in Declining to Make a Finding of Abuse Based on Wife's "[S]mall [R]ed [M]ark" on Her Face
Wife asserts the trial court erred in failing to find that Husband committed abuse against Wife, given the fact that Wife presented evidence of a "small red mark on the right side of her face." According to Wife, this was evidence of a bodily injury, which the trial court presumably ignored.
What Wife fails to acknowledge is that her argument involves factual issues on which she bore the burden of proof. In order to prevail, Wife was obligated to show by a preponderance of the evidence that Husband intentionally or recklessly caused a small red mark on the right side of her face. Here, however, the court was unable to conclude that Husband caused the injury or that, even if a physical altercation between the parties on October 17 resulted in Wife's injury, Husband caused it intentionally and recklessly, as required under the DVPA. These factual determinations, guided by the applicable standard of proof, are supported by the record.
Importantly, the judge found Wife's testimony, particularly about the October 17 incident, not credible. The court expressly rejected Wife's contention that Husband punched her and that his punch caused the injury to her face. Specifically, it was "not believable" that a man of Husband's height and weight punching a woman of Wife's stature in the way that Wife indicated through body language during her testimony would cause only "one little red mark." The court noted Wife's testimony that Husband punched her using his right fist was generally inconsistent with the nature of her injury on the right side of her nose. In addition, the judge believed that "if he punched her [as she testified], her nose would have been all swollen up," and "[t]here would have been other damage." Also, Husband testified that he did not punch Wife, and did not push her down or otherwise touch her. Thus, the evidence left open the possibility that Wife's red mark resulted from something other than a physical struggle between the parties (i.e., it could have occurred after the incident)-which the court obviously believed was a distinct possibility.
But the court also explained its alternative determination-that even if there was physical contact between the parties, such contact was the result of Wife's aggression and Husband's justified resistance to that aggression. Husband's testimony about Wife's behavior that night, including his description of her attempt to take Teddy from him, buttress the trial court's "even if scenario. Thus, substantial evidence supports the court's conclusion that Wife failed to prove the red mark on her face was caused by any intentional or reckless conduct on Husband's part. (See § 6203, subd. (a) [abuse includes "intentionally or recklessly caus[ing] or attempting] to cause bodily injury"].)
In sum, as is the case with many of Wife's arguments on appeal, what she is asking is this court to reweigh the evidence and draw a conclusion different from one reached by the trial court. That is not our role. (See, e.g., Curcio v. Pels (2020) 47 Cal.App.5th 1, 13 [appellate court does not re weigh evidence].)
b. Substantial Evidence Supports the Trial Court's Finding That Wife Lacked Reasonable Apprehension of Physical Abuse or Violence
Wife argues that while she was not required to do so, she nevertheless did "prove that [Husband] placed her in reasonable apprehension of imminent serious bodily injury" by "present[ing] reasonable proof that he intentionally or recklessly caused her bodily injury." Wife then relatedly asserts that the trial court's finding she "lacked a reasonable apprehension of physical abuse or violence ... is [therefore] not supported by substantial evidence." In this way, it appears Wife is contending that because she presented "reasonable" proof Husband caused her bodily injury, the trial court's finding that she was not in reasonable fear of further abuse was not supported by sufficient evidence. We disagree.
As we previously discussed, the court made an express finding that Husband did not intentionally or recklessly touch, let alone injure or attempt to injure, Wife The court was not sure as to whether the two parties engaged in a physical struggle over Teddy, but it was certain that to the extent any such physical scuffle occurred, it occurred because Wife was the aggressor. Thus, the court concluded that even if Husband had responded to Wife's aggression by pushing or touching her, "it would have been reasonable force to get her away from him as she was drunk and storming into the room and grabbing for the dogs."
This determination is supported by substantial evidence. Husband maintained and Wife did not dispute that she began the incident by going to the bedroom. He appeared to be sleeping when she tried to retrieve the dogs from the room. Husband testified he did not punch Wife, as she contended.
Instead, Wife attempted to grab Teddy from his arms, and he tried to shift his body to prevent her from doing so. Clearly the trial court believed Husband's version of what occurred that evening to a greater degree than it credited Wife's testimony. The court drew reasonable inferences in favor of Husband's version from the evidence, and his testimony provided substantial evidence to support its findings about what occurred during the October 17 incident. Given that the court did not believe Husband had engaged in intentional or reckless violence, it further concluded Wife lacked any reasonable apprehension that additional violence would occur.
c. The Court Did Not Err in Concluding that Husband Did Not Disturb Wife's Peace
Wife makes three separate arguments as to why, in her view, the evidence supported a different conclusion with respect to whether Husband committed domestic abuse by disturbing Wife's peace.
i. The Court Did Not Err with Respect to Its Findings Regarding the October 17 and 28 Incidents
Wife contends the trial court erred in concluding that her mental or emotional calm was not disturbed by the incidents on October 17 or 28. According to Wife, the trial court applied "improper, alarming criteria" to deny her relief by noting that she had not testified to being unable to eat, sleep or work in the days after October 17, and because she did not testify about becoming "ill," being "distraught," or having to go to the "emergency room" or" 'even take an extra Xanax'" after the October 28 incident. She argues that by focusing on the lack of any of these things, the court imposed on her a burden of proof to establish abuse that is not required by the DVPA.
We disagree that the court applied an improper standard for establishing a disturbance of mental calm. Although the court did note there was no evidence that anything in Wife's typical day-to-day routine had changed after the events in October, it is also clear that it considered a broad range of evidence in concluding that Husband neither physically abused Wife, nor disturbed her peace. For example, it weighed the fact that Wife managed to return to the guesthouse with Teddy on October 17-which had been her goal in going into the main house that night-and that she had the "wherewithal to call her friend that night and that morning to document what happened." The court specifically declined to believe Wife's testimony that she carried a knife or "was cowering on the 28th in the guest house," finding this aspect of Wife's testimony not credible. Having rejected Wife's testimony about what happened on the night of October 17 or how it affected her, the court then looked to see if she had testified to any other indications that her mental calm had been disturbed, such as whether she suffered any change in her sleeping, eating, or work habits. In the absence of such evidence, the court reasonably determined that the weight of the evidence did not support Wife's claim that her emotional calm was disturbed.
The court noted it believed Wife made these telephone calls for the purpose of documenting her version of events.
The court also felt strongly that Wife's post on Facebook near the time that Husband found the garden planters destroyed suggested that she had purposefully allowed the dogs to go into the garden with the knowledge that the dogs were destructive. It noted that rather than going to talk to a therapist, see a doctor, or even" 'take an extra Xanax'" after the events of October 17, Wife instead "had enough wherewithal to do something that was pointedly aimed at disturbing the calm of her children, as well as of [Husband]" She did not deny that she let the dogs out of the guest house; she also testified that she was aware the dogs were "destructive." The judge could not "think ... of a meaner thing to do to your kids than to let the dogs, whom they also love, destroy something they planted with their hands." And the fact that Wife then posted "something funny, on that day that the dogs destroyed the vegetable garden and were sleeping in the middle of something her children had done with their father" suggested that she had allowed the dogs into the yard intentionally. Such provocative conduct, the judge concluded, was contrary to Wife's claim that she was in fear of Husband or that he had disturbed her mental state.
Nor did the court believe that Wife's emotional calm had been disturbed by the later interaction between the parties on October 28, after she and Husband clashed as a result of the destruction of the vegetable boxes. In fact, the court asserted that Husband "walking up to her after[,] again[,] she [had] provoked the situation by releasing the dogs, and saying, without touching her, you know, don't fuck with me, again[,] reflected their relationship." In other words, in the trial court's view, Husband's statements to Wife were consistent with, and did not go beyond, their typical if lamentable verbal sparring during this time period. Again, the court was free to consider Wife's conduct, as well as the fact that she did not do anything to suggest she was distraught or fearful after this encounter, in concluding that Husband had not disturbed Wife's peace the night of October 28.
ii. The Court Did Not Err With Respect to Husband's Purported "Pattern of Verbal Abuse"
Wife next attacks the trial court's finding that Husband's negative verbal and text messages to her did not disturb her peace. In Wife's view, not only was this finding not supported by substantial evidence, but it was also irreconcilable with the court's other findings that Husband's comments to her were "inexcusable, offensive, disrespectful and unacceptable." Wife makes two arguments as to how the court erred in connection with how it handled the evidence of Husband's negative statements directed toward Wife.
Wife called Dr. Lori Love as an expert in domestic violence. She argues the trial court erred in "exclud[ing]" Dr. Love's expert opinion testimony, but the record does not support this contention. The court clearly considered Dr. Love's testimony, but concluded it was not helpful because Love was not aware of all of the relevant facts: "Dr. Love, you know, came in with very credible, very solid testimony about the effect of domestic violence on domestic violence victims. But again, I don't believe that in this circumstance[-]and she wasn't looking at the facts of this circumstance [-] the Court can find domestic violence is established."
Wife nevertheless challenges the court's assessment of Dr. Love's testimony, contending that she "didn't need to conduct a full psychological evaluation of the family," and that "the parties' communications (which she reviewed) are 'part of what we look at when assessing for domestic violence.'" But what became clear during cross-examination was that Wife's counsel may not have provided Love with a full description of Wife's communications to Husband, leaving her with a one-sided view of the matters at issue. Love also incorrectly believed that Wife was not on title to the home, a "fact" she had considered in assessing the possible effect of Husband's comments to Wife. In other words, Love was provided a restricted view of the communications between the parties and the surrounding circumstances, which rendered her opinion minimally useful to the court. As a result, the court gave Love's testimony limited weight, which it was entitled to do. We see no error.
Wife next contends that Husband's "admitted . . . pattern of derogatory, demeaning verbal attacks against Wife throughout the marriage" disturbed her peace because the verbal "attack[s]" had the effect of "unreasonably interfering with her free will and personal liberty to use her own home." (Some underscoring omitted.) She appears to take issue with the trial court's conclusion that she moved into the guesthouse voluntarily because, according to Wife, this "ignores the fact that she did so to protect herself." Wife argues that "[s]equestering oneself to a 500 [square foot] guesthouse instead of a 4,000 [square foot] luxury home is not the kind of hardship one brings upon oneself absent necessity." According to Wife, the mere fact that she moved into the guesthouse is "objective evidence that [Husband] was harassing [Wife], disturbing her peace, unreasonably isolating her, controlling her movements, daily behavior and access to the home, and compelling her by intimidation to abstain from using the home as was her legal right." This, she argues, shows the trial court failed to acknowledge that part of Wife's reaction to Husband's commentary included her moving out of the house and, thus, the court "fail[ed] to apply the 'totality of the circumstances' test," which then "led to a faulty assessment of the impact of [Husband's] words on [Wife]."
But the trial court clearly did not believe this is what occurred. Instead, it rejected Wife's contention that Husband's behavior, including his verbal and written negative commentary directed at Wife, had the effect of coercing Wife to leave the family home and move into the guest house. The court found that Wife moved into the guesthouse voluntarily-mostly because of the dogs-and that she was isolating herself. The record demonstrates that the court did, in fact, consider the totality of the circumstances and determined that Wife voluntarily chose to go stay in the guesthouse.
There was plenty of evidence to support the trial court's findings that the derogatory verbal commentary was not one-sided, did not constitute abuse within the meaning of the DVPA, and was not the cause of Wife's decision to move into the guest house. For example, Wife's own conduct and verbal sparring with Husband also supported the trial court's conclusion that Wife was not indirectly "compelled" to live in the guesthouse by Husband's conduct or words. The evidence presented by the parties provided the court with a close-up view of the way they interacted with each other over a long period of time. The court noted that both parties talked to each other in demeaning and inappropriate ways, at one point stating, "I mean come on. It's pretty obvious to them, I hope, that these are not appropriate ways to address each other." (Italics added.) It found credible the parties' mutual friend's testimony that Husband and Wife "dished this out to each other all the time" and that the back and forth barbs and undermining of each other was "in fact how [they] related to each other." The court told both parties that their interactions were "disrespectful," and that they both "have got a lot to undo with [their] son because of what he heard" said between them.
The court found it significant that Wife did not testify Husband forced her out of the house. Instead, she chose to move into the guest house because "she felt the environment [of the main house] was unsafe" for the dogs. Wife testified that she stayed in the guesthouse because she believed the family had "moved back [to the Rancho Santa Fe house] prematurely," and noted that "one of [her] dogs had a bite history," and with "workmen all over the place," she felt that she "had to secure our dogs." As a result, she thought the construction "conditions demanded [that she and the dogs stay in the guesthouse]." Based on this evidence, the court reasonably found that Wife moved into the guest house of her own volition, and for the benefit of the dogs, not because she feared for her safety or was being controlled or coerced by Husband.
In addition, there was no evidence Husband prevented Wife from doing things with the children or from using the house (with the sole exception of less than a day on October 28, as we discuss further below), which undermined Wife's contention that Husband was the cause of her increasing isolation. The court observed that in September, Husband sent Wife a message indicating he was willing to switch roles with Wife, so that they could each would spend alternating weeks in the main house, with the children remaining in place. Yet Wife presented no evidence that she ever even responded to Husband's offer, let alone indicated a desire to live in the main house for a period of time. Husband's offer, and Wife's lack of response, weighed against a finding that Husband's conduct, including his negative verbal commentary directed at her, somehow pushed Wife to isolate in the guest house. Again, the court noted that both parties "treated each other" poorly, and the nasty comments being exchanged between them were part and parcel of their relationship.
In considering the totality of the circumstances, the court also found it relevant that although Wife argued Husband was controlling her through various means-including the parties' finances and an attempt to remove her from the mortgage, as well as through smart home features-the evidence did not support such claims. The court noted that the basis for the financial "control" argument was weak even as proposed, in that Wife merely claimed that Husband had moved her business papers at one point and that was what she believed was "control." But it found credible Husband's explanation that Wife asked him to take the papers to the bookkeeper, which is why he moved the business papers. The court also rejected Wife's contention that Husband was trying to control the house and effectively deprive her of the house, again finding believable his testimony that Wife's parents had initiated discussions about removing her from the mortgage so that she could purchase a different house. Apparently Wife did not like this idea because she "didn't want him in a $6 million home when she only had a $2 million home," and ultimately Husband did not change anything with respect to the house.
Beyond this, there was "no evidence that she didn't have control of her own spending." In addition, Wife attempted to demonstrate that Husband was using smart home applications in an attempt to annoy or harass her, but the evidence did not support her contention. Rather, each time Wife sought Husband's assistance with a software application related to the home, he provided her the passwords and/or assistance. In addition, it appeared Wife had consciously chosen not to learn how to use the technology.
iii. The Court Did Not Err in Concluding that Husband's Act of Locking Wife Out of the Main House During the Middle of the Night and His Locking of the Primary Bedroom Door Did Not Constitute Abuse
In another argument asserting that a different factual conclusion should be reached from the evidence, Wife contends that Husband's conduct in locking Wife out of the family home overnight beginning on October 28, 2021 "was controlling and regulating her movements and daily behavior in violation of Family Code section 6320, subdivision (c)." She further complains that in December 2021, he locked the bedroom door so that she "couldn't access her clothing or shower without climbing over a wall." According to Wife, Husband's conduct constituted an invasion of Wife's rights to use her property as she saw fit, and Husband's "[d]enying [Wife] access to the home was 'abuse' under the DVPA." (Italics added.)
This argument effectively asserts that we should conclude Husband's conduct meets the standard of abuse as a matter of law. We disagree. Under the circumstances of this case, a reasonable person could conclude that this conduct, while perhaps unwise, did not amount to abuse under the DVPA. A great number of factors might go into one party's decision to lock doors for a period of time, rendering a home or a portion of a home temporarily inaccessible to the other party. The trial court was entitled to credit Husband's testimony that he locked the doors to the house on October 28th, overnight-after Wife had allowed the dogs to destroy the vegetable gardens that he and the children had just planted and after already having had one argument with Wife-in order to prevent further fighting. We cannot say that where, as here, there has been a history of heated, loud arguments between the parties, particularly at night when one or both of the parties had been drinking, the locking of the house to try to prevent another incident from occurring must necessarily be considered abuse under the DVPA.
The trial court could also reasonably reject Wife's contention that Husband's locking of the primary bedroom in the main house in December constituted abuse. Both Husband and Wife testified that she had taken clothes to the guesthouse. There was no evidence that he locked her out of all access to bathrooms on the property. And, ultimately, the trial court could conclude that even ill-advised conduct such as locking access to certain locations in a house does not necessarily amount to an attempt to "control[ ]" or "regulat[e]" another person's "movements and daily behavior," contrary to Wife's contention.
d. Wife Has Not Shown Error in Connection with the Court's Consideration of Husband's Post-TRO Conduct
Wife argues the court should have concluded that Husband was using the parties' children to contact, harass, threaten or disturb her after the TRO was issued. She asserts the court "erred in concluding that Husband's post-filing abuse was irrelevant." (Some capitalization omitted.) As an initial matter, Wife's argument assumes the existence of "abuse," but the trial court obviously declined to find that Husband's conduct after the TRO was issued qualified. She also relies on a recent case for the unsurprising proposition that "[e]vidence of recent abuse or violation of a TRO is plainly relevant to whether a petitioner should be granted a protective order." (In re Marriage of F.M. & MM. (2021) 65 Cal.App.5th 106, 117.) Wife seems to argue that the trial court concluded Husband's conduct was "irrelevant." As part of this argument, she contends the trial court should have found that Husband violated the TRO and therefore committed abuse: (1) "by using the parties' son to contact, harass, threaten, annoy, and disturb [Wife] on January 13, 2022"; "coming within 100 yards of Wife and the home to pick up the children"; and (3) "using the children to enter and monitor the home." (Underscoring and some capitalization omitted.)
Contrary to Wife's claim that the court deemed the evidence of post-filing conduct irrelevant, the trial court did consider all of the evidence she offered regarding the behavior of the children, as well as Husband's conduct and communications with the children, after the TRO was in place. It did not conclude that this conduct was irrelevant. Rather, the court considered all the evidence Wife offered, but concluded it did not believe what Wife was claiming had actually occurred.
For example, the court considered when the children sent text messages to Wife in relation to the dates the parties were in court and/or when the children had been on phone calls with Husband, as well as records demonstrating the relationship between Husband's calls with the children and their visits to the house in the turbulent time period right after the TRO was filed. The court indicated that Husband's decision to take the children to the home was unwise, and he certainly risked a court finding that his conduct amounted to abuse. But in the end the court was unable to conclude that Husband's conduct was directed at Wife, or that he was using the children to bother or monitor her. Indeed, the children were not enjoined from being at the house or near Wife, and it is not clear why they should have been unwelcome at their own home or prevented from accessing their possessions. Yet Wife seems to assume that the children's conduct in entering the home to retrieve their own possessions must have been at the behest of Husband. He testified, however, that it was the children who wanted to return to the home to get their things. In addition, he denied asking his son to take photographs for him while in the house, and further denied asking the children about Wife after they had gone back to the house to retrieve their items. Husband acknowledged that the children shared with him their observations about the condition of the home, but he denied asking them for that information. He further testified that he never talked with their daughter about Wife dropping the restraining order, or about Wife's litigation strategy in the divorce.
The trial court obviously credited Husband's testimony regarding what he did and did not ask of the children, and that testimony provides a sufficient basis to reject Wife's contention that Husband was committing abuse against her by directing the children to go into and monitor the home.
The court explained that it did not see any evidence linking the children's visits to the home, and even their conduct while there, to Husband asking them or putting them up to doing it. Further, the court watched the video of the parties' son taken by the nanny who was present on January 13, 2022, but ultimately, after hearing from the parties and reviewing all the evidence, the judge did not believe that the video of the parties' son yelling and screaming at Wife supported "the idea that [Husband] was telling the children to do things to disturb their mother." Again, Wife's arguments seek to reframe the evidence in a different light, and she essentially asks this court substitute its own view of that evidence for the that of the trial court. As we have already stated, that is not our role.
2. The Trial Court Did Not Err in Considering Various Relevant Aspects of Wife's Conduct
a. The Court Did Not Improperly Rely on In re Marriage of G. (2017) 11 Cal.App.5th 773 in Concluding That Wife Was the Aggressor on the Night of October 17
Wife takes issue with the trial court's finding that she was the aggressor on October 17, and that any physical response by Husband was a reasonable use of force to defend himself from her aggression. According to Wife, the trial court "improperly relied on In re Marriage of G. (2017) 11 Cal.App.5th 773 (Marriage of G.) to conclude it would have been reasonable for [Husband] to 'push or touch' [Wife] to get away from her because she was drunk and (purportedly) 'storming' into the room and grabbing for the dogs." She asserts that Marriage of G. "is inapposite" because Husband "was not the victim of physical aggression by [Wife], and the court did not think he was a victim of domestic violence."
The court expressly found, however, that Husband was the victim of Wife's aggression. The fact that the court made no express finding that he was a victim of "domestic violence"-especially given that Husband did not request such a finding-does not undermine the judge's determination that "if he pushed her, if he touched her, it would have been reasonable force to get her away from him as she was drunk and storming into the room and grabbing for the dogs."
In setting out this contention, Wife also challenges other aspects of the trial court's findings. For example, she quarrels with the court's description of her conduct as" 'storming into the room,'" and contends there is "[n]o evidence [that] supports" such a characterization. We disagree. Clearly the court was using the word" 'storming into the room'" to reflect that Wife made a loud commotion to gain entry into the bedroom where Husband was sleeping that night and that her behavior in entering the room was aggressive. The judge explained, "She goes, she stormed into the bedroom [at night on October 17]. I'm using that word on purpose," as Wife was "bang[ing] on the door, loudly"-indeed, so loudly that "the children are awakened in the middle of the night. It's late at night."
The record fully supports the court's characterization of Wife's conduct. Husband testified that he was asleep when Wife arrived, he heard Wife "banging" on the door, with Wife loudly saying, "[L]et me in." The noise woke him from a deep sleep. Wife's banging on the door escalated to her "kicking" the door, to the point that Husband was concerned she might break it. When he opened the door, he saw that their daughter was standing in the hallway, outside her room, watching the scene. He also described Wife as being "heavily intoxicated"; he believed she was "drunk" because "she was being very aggressive [in] her speech, and she was slightly stumbling," in addition to "mildly slurr[ing]" her words. According to Husband, he had seen Wife intoxicated prior to that night, and in his estimation, she was "more [intoxicated that night] than [he] had seen her previously."
Wife acknowledged that she had been drinking that evening. Her text messages to Husband indicated that before she arrived at the door to the primary bedroom, she was angry. When Husband opened the door, she said, "[G]ive me the F-ing dog." After Husband questioned why she was "doing this" at that time of the morning, "a full screaming match ensued." Given all of this, the trial court could reasonably conclude that Wife's entrance into the bedroom that night involved high emotion and aggression, and thus could fairly be described as "storming" into the room.
Wife also asserts that "[Husband] could have easily avoided the tussle by letting [Wife] take the dog, consistent with the parties' practice." It is unclear why she attempts to place the responsibility of "avoiding] the tussle" on Husband, when the trial court clearly found her to have been the aggressor that night and the person who initiated the incident by attempting to take the dog. As the evidence demonstrated and the court found, both parties were bonded with Teddy and both parties sought his company. Husband testified, "[Teddy] had slept with me since he was a little puppy." Wife conceded that Teddy would sleep with Husband sometimes. Wife even acknowledges in her appellate briefing that Teddy was a" 'family dog[ ],'" and that the parties "have an equal right to manage and control" him. She seems to suggest, however, that this should mean she was somehow entitled to retrieve him from Husband at any time and under any circumstances, and that her conduct in this regard could not lead to a finding that she was the one who precipitated the October 17 dispute. For example, she asserts that because Teddy slept "variously" with her and Husband, "it was reasonable for her to retrieve [him] from [Husband]."
We disagree with Wife's position. It is unclear why it was at all "reasonable" for Wife to demand possession of Teddy, late at night after Husband and Teddy were already sleeping, when Wife admits that Husband had an equal right to control Teddy and Teddy was already under his control at the time of the incident. Nor is it clear why she places the duty to "avoid[ ] the tussle" on Husband by asserting that he should have given over Teddy merely because she demanded he do so. Obviously, the trial court rejected Wife's description of the incident, and there is abundant evidence to support that determination.
b. The Court Did Not Err With Respect to Its Discussion of Wife's Use of Joint Property in Concluding That Some of Wife's Conduct Was Intended to Provoke Others
Wife takes issue with the fact that the court considered her behavior in assessing whether Husband's conduct warranted the issuance of a DVRO. Specifically, she contends that the trial court's finding she "provoked" the family through certain of her actions was "inappropriate and not supported by substantial evidence." Wife argues that by referring to certain of the items she took as being Husband's items, the court "harken[ed] back to pre-1974 when husbands had exclusive management and control of the community estate." We disagree with this reading of the record and the court's comments.
The court did explain that it found some of the actions Wife took over the Christmas holiday while Husband and the children were in New York to have been "passive-aggressive." While the court referred to Wife using "his [i.e., Husband's] car," for example, the court was not suggesting that Wife did not have a right to use it, but was instead merely describing the car as the one that Husband typically drove and took care of. Both parties testified that Husband typically drove that car, while Wife typically drove a different vehicle. Further, the court noted that Wife used it while Husband was in New York, and during her use, she "scratche[d] it up [and] let[ ] the dogs in it" after Husband had just had it detailed, which upset him. The court was merely observing that Husband's reaction was, under all the circumstances, not a surprising one. The court added that Wife kept the keys with her, rather than leaving them in a neutral location, which meant that when Husband went to use the car, he had to go searching for them.
Wife testified she "dr[o]ve the [parties'] 4Runner" and referred to that vehicle as "my car."
The court was not suggesting that Wife did not have a right to use their joint property. She did not testify that she was ever denied access to the car, or that she requested more equal use and he refused. Rather, as seems typical in many families, the testimony indicated that these parties each tended to use a particular vehicle on a daily basis, and Wife's actions appeared to have been taken with knowledge they would likely cause Husband frustration. Similarly, the court noted that while Wife had an equal right to drink the valuable wine and whiskey that the couple had collected over time, she was undoubtedly aware that drinking it by herself when Husband was away would be likely to upset Husband, given his unique interest in their wine and whiskey collection.
We see nothing in the court's discussion to suggest that the court viewed the car or whiskey as solely belonging to Husband, or that the ruling reflects gender bias, as Wife suggests. Instead, the court viewed Wife as having intimate knowledge of the things that mattered to Husband such that her use (or misuse) of those particular things would be likely to bother him, irrespective of their genders. This was simply part of the court's responsibility to assess the evidence and decide who did what and why it was done. It was free to conclude that Wife did these particular things not simply because she wanted to, but because she knew that by doing so she would irritate Husband. The court was free to assess Wife's motivation and decide that her conduct was intended to exacerbate an already difficult situation rather than try to reduce the friction between the parties.
Nor was it improper for the court to conclude that it was "strange" for Wife to put of large prints of herself in the family home while Husband and the children were in New York. This was the family home, and the only photos that Wife put up while the others were away were very large prints of herself. A reasonable fact-finder could conclude that this conduct was out of the ordinary and not helpful in the context of this family's relationship difficulties. We also find no fault in the court's reliance on Wife's printing out a September message from Husband to her about the possibility of them taking turns staying in the main house and leaving it in the children's rooms upon their return from New York to be evidence that the "occupancy of the house was a central problem" between Wife and Husband. In sum, the trial court considered all of the various factors that led up to Wife's seeking a DVRO, including those that weighed against its granting. Certainly, Wife's conduct throughout this time period was relevant to the court's assessment of whether a DVRO was necessary, and we therefore reject Wife's contention that considerations of this nature were "improper criteria" for the court to rely on.
c. The Court Did Not "[I]mproperly [F]ault[]" Wife for Her Delay in Seeking Help and Then Also "[F]ault" Her "[W]hen [S]he [D]id"
Wife complains the trial court held it against her that she waited eleven days after the October 17 incident to contact law enforcement, and then waited another two months before seeking a restraining order. At the same time, she asserts, the court faulted her for documenting and recording various interactions, believing her conduct to have been motivated by a desire to make Husband look bad in court. In her view, the court was applying inconsistent standards.
There was no inconsistency in the trial court's analysis. Indeed, this is yet another attempt to ask this court to reweigh the evidence. There can be no real dispute that some victims of domestic violence delay reporting the violence or do not report it at all. But the role of the trial court is to evaluate the evidence before it, which includes assessing the demeanor and testimony of witnesses and determining credibility. In doing so, the court may conclude, as it did here, that a particular complaining party's delay was not based on a fear of retaliation or history of abuse, but was instead due to the individual not considering the conduct worthy of a report until it was clear the parties would be adversaries in court. As should be evident by now, it is not the role of this court to second-guess the trial court's assessment of Wife's credibility-or lack, thereof-or to assume that we can determine, better than the trial court, why Wife waited to report the purported abuse.
Further, while there is no doubt that an individual may take measures to record or document negative interactions, the trial court here seemed bothered not by Wife's recording and documenting certain incidents, but by her apparent motivation for doing so and the manner in which she did it. The gist of the trial court's findings was that Wife did not appear to be documenting Husband because she was in fear of what he might do or because she believed his actions were intended as a true threat, but instead that she was collecting evidence for future use as a sword rather than a shield. For example, the court believed Wife's recording of Husband after the TRO had been issued-when he was parked down the street from the home-involved taunting.
The court noted that she was "taunting" Husband by yelling "violation, violation" while holding up her phone to show that she was recording the situation.
Elsewhere, the court rejected Wife's claim that she had a former nanny with her after the TRO was served on Husband "to see if she could help [Wife] calm the children." It found this explanation unbelievable, noting that Wife was very deliberate when she was on a phone call, saying, "[Y]es, [the nanny] has it," and then she turned to the nanny and asked, "[Y]ou got it [i.e. video of the parties' son acting out in anger]?" The court specifically rejected Wife's claim as to the former nanny's reason for being there, saying, "Really? You calm the children by having the nanny filming them? Nobody tried to calm [the parties' son]." Again, the trial court is the ultimate arbiter of facts, and the record clearly contains abundant contextual evidence surrounding Wife's recording of certain events that supports the trial court's conclusions. We will not second-guess the trial court's assessment in this regard.
d. The Court Did Not Err in Relying on Wife's Failure to Produce a Video That Both Parties Agreed She Had Recorded
Wife complains that the court faulted her under Evidence Code section 412 for failing to produce a video taken while the parties were in the kitchen toward the end of the October 17 incident. She contends that rather than blame her for the missing video, the court should have instead found that Husband's conduct in grabbing the phone interfered with her legal right to record the exchange. She further argues that the court "identified no particular evidence it distrusted but instead applied [Evidence Code] section 412 vaguely and broadly as meaning [Wife's] failure to produce the video could be considered in concluding that [Wife] hadn't met her burden of proof."
This argument misses the mark because the court clearly distrusted Wife's testimony regarding what occurred in the kitchen. Evidence Code section 412 provides: "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." The recording that Wife claims she took that night could have provided the best evidence of what occurred during the portion of the incident that was recorded, yet Wife failed to produce it. Thus, it was reasonable for the court to conclude that Wife's testimony about what happened in the kitchen on October 17 should be viewed with skepticism.
e. The Court's Finding that Wife Was "[D]runk" on October 28 is Supported by Substantial Evidence
Wife contends there is insufficient evidence to support the trial court's finding that she was "drunk" during the October 28 incident. Wife points to her own testimony that she was not intoxicated, even though she had been drinking, as well as the fact that Husband assumed she was "drunk," but did not know for sure. Wife contends that absent Husband's personal knowledge of her state of inebriation, his testimony was nothing more than pure speculation.
But Wife's discussion of the evidence ignores the fact that the court also relied on the police sergeant's report that Wife was inebriated, which the court found to be significant. The officer included in the report that both parties were inebriated, which apparently had been reported by the caller. In other words, Wife, who was the caller, had indicated to the dispatcher that both she and Husband were inebriated. The officer testified, as well, that Wife appeared to have been drinking that night. Consistent with this evidence, Wife conceded that during this period of time, she was regularly drinking three to five glasses of wine a night and was taking Xanax daily. Husband also testified that Wife being intoxicated was "a nightly occurrence at that point or very common occurrence at that point." Wife's behavior that Husband observed, including standing in the doorway to the guesthouse yelling obscenities and other things at him, was consistent with the "angry" and "belligerent" outbursts to which he had become accustomed as Wife's drinking increased. He testified that he believed she was drunk on October 28. All of this is substantial evidence to support the trial court's determination that Wife was, in fact, inebriated on the night of October 28.
f. The Court Did Not "[I]mproperly [B]lame[]" Wife for Damage the Parties' Dogs Did to the Planter Boxes
According to Wife, the court should not have drawn the conclusion that she "left the guesthouse door open so the dogs would destroy property." She argues that the court's finding was "apparently based on Husband's belief about what occurred, but "[b]elief is meaningless" and "[b]elief is not fact. She argues that there was "no substantial evidence that [Wife] intended the dogs to damage the children's plant box[es]." We disagree. The court could infer from the evidence, and in particular Wife's knowledge of the dogs' destructive nature, that Wife knew the dogs were very likely to cause damage to the yard. In fact, the parties had built a separate dog run, knowing the dogs' proclivity for being destructive. Yet Wife released the dogs into the yard where the newly-planted planter boxes were located, and then posted a "joke" photograph of dogs in planters with a comment about life not being fair. Wife's Facebook post suggested that she did not feel remorse for the damage that had resulted from her decision to leave the door to the yard open for the dogs. And one could further infer from Wife's lack of remorse that the damage the dogs caused was in fact a result that Wife had anticipated and perhaps sought. Wife simply wants this court to draw different factual inferences from the evidence. But that is not our function. Because the evidence supports the court's conclusions, we cannot second-guess the trial court's assessment of Wife's intentions and motivations.
B. Wife's Evidentiary Contentions Do Not Compel Reversal of the Judgment
1. The Court Did Not "[R]el[y] on [I]mproper [M]aterial and [I]mproper [C]riteria" in Denying Wife Relief
Wife argues that the trial court "improperly treated [the Child Welfare Services (CWS) records] as though hearsay statements therein are true, quoting them to support its conclusion that Husband was not 'enlisting the children.'" She contends the court took judicial notice of the CWS records, and asserts that where" 'courts take judicial notice of a report, they take judicial notice of the fact that the reports were made, and of their contents,'" but" 'do not, however, take judicial notice that everything said therein is true.'" However, the record supports the conclusion that the court admitted the CWS records exhibits and relied on the statements within those records without objection. For example, the court asked at one point, "[D]id we admit the child welfare service records . . . ?" Attorneys for both parties answered in the affirmative. The court then stated, "I wanted to review them and [minors' counsel] - counsel, take a look at them tonight. There are a lot of statements from the kids. [I've] found them helpful as I was reading it through, because it gives me context, and actually as the parents have described so far what's been happening is supported by what the kids have said. But I want counsel to read through it, because if you have objections to the statements in the CWS report, I need to know that, okay?" Neither attorney, nor minors' counsel, registered an objection at that time or the following day. In the absence of an objection to the court's consideration of the children's statements in the reports, Wife's appellate contention that the trial court should not have relied on the children's statements in the reports has been forfeited. (See, e.g., Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1020.)
Further, to the extent that Wife contends the trial court relied on the children's interest in living in the family home to reach the conclusion that no abuse had occurred, we reject that contention. The court did not discuss the children's interest in going back to their home until after the court had completed its findings regarding the DVRO and moved on to other matters, such as the temporary custody orders and an order allowing Husband to return to the house.
2. The Court Did Not Commit Prejudicial Error in Its Handling of Wife's Discovery Requests
Wife argues that she should have been permitted to have her discovery motions heard on shortened time, or the hearing on her request for a DVRO should have been continued to allow for discovery to be conducted. She claims discovery was necessary because her inability to depose Husband or obtain requested telephone records, texts, and videos prevented her from presenting all relevant evidence. In setting out her argument, Wife appears to rely solely on Judge Wood's ruling in a July 8, 2022 minute order denying Wife's ex parte motion to have a motion to compel heard on a shortened time or to continue the DVRO hearing in which the court stated that "neither party is entitled to discovery related to the DVPA request." She asserts that it was "prejudicial error to deny [Wife] discovery based solely on a need to expedite when time had been waived [by Husband] and the discovery would have enabled [Wife] to present all relevant evidence of [Husband's] abuse."
Judge Wood had apparently been handling some of the other matters in the parties' divorce proceedings and he heard Wife's request to shorten time and/or to continue the DVRO hearing that was set for August 12, 2022. Wife was seeking to depose Husband and obtain additional records from him. Judge Wood denied Wife's request, concluding that the DVRO hearing should not be further delayed (it had already been delayed many months). In support of his ruling, the judge cited S.A. v. Maiden (2014) 229 Cal.App.4th 27 for the principle that neither party was entitled to discovery. (See id. at pp. 40-41.)
Wife argues we must reverse Judge Kalemkiarian's denial of her request for a DVRO because of Judge Wood's statement in his July 8, 2022 minute order. She even highlights that she is relying on Judge Wood's minute order by asserting that Husband's response to her argument "confuses Judge Wood's denial of any discovery related to the DVPA proceeding on July 8, 2022 [citation] with [Wife's] Code of Civil Procedure section 1987 notice requesting text messages [citation], which Judge Kalemkiarian addressed at a hearing August 5 [citation]."
Husband, however, was not confused in his briefing. Rather, he was pointing out that Wife was ultimately not denied all discovery in this DVRO proceeding, despite Judge Wood's statement in the July 8 minute order, and on that basis argued that she failed to show prejudice resulting from Judge Wood's order. Indeed, the record supports his argument and demonstrates that Wife did ultimately obtain certain records that she sought through those discovery motions, including certain of Husband's text messages to the children. In fact, during a hearing that took place a week before the DVRO proceeding began, Judge Kalemkiarian-who proceeded over the entire DVRO hearing-expressly discussed the documents that Husband would have to produce to Wife, and even explained how the court would be willing to review texts or messages in camera to determine whether particular documents/messages were responsive to Wife's requests.
Further, the transcript from the August 5, 2022 hearing before Judge Kalemkiarian demonstrates that she was discussing with the parties' attorneys various requests for discovery that they were seeking in connection with the DVRO, including Wife's subpoena of certain documents in Husband's possession and Husband's request for records relating to Wife's interactions with the police officer on October 28, 2021. In other words, even though Judge Wood had ostensibly ruled that neither party was entitled to discovery, Judge Kalemkiarian considered on its merits Wife's subsequent motion to compel "pursuant to [n]otice in [l]ieu of [s]ubpoena" regarding various items of discovery Wife sought, and ordered Husband to provide certain text messages to Wife. Then at the beginning of the DVRO hearing the following week, after Wife's counsel questioned whether Husband had produced sufficient records in response to requests for documents, Judge Kalemkiarian specifically ordered Husband to "produce everything that's responsive." She further indicated she would "do an in-camera review to see what's been redacted and determined whether that should be redacted or not." Thus, the record makes clear that Wife obtained much of the discovery she sought.
It appears that Wife would like this court to comment on the legal accuracy of Judge Wood's statement that the parties were not entitled to discovery in a DVPA proceeding. But Wife was not denied all discovery in this matter, as she seems to contend in her argument. Nor does she identify any specific discovery she sought, or information she could have acquired through a deposition of Husband, that she was unable to obtain as a result of Judge Wood's order denying her ex parte request. Further, the record demonstrates she was permitted at least some of the discovery at issue. As a result, she has not demonstrated how she suffered prejudice as a result of Judge Wood's July 8, 2022 order. Absent a showing of prejudice from the challenged order, Wife is not entitled to reversal. (See Soule v. General Motors Corp. ("1994) 8 Cal.4th 548, 580 ["No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party."].)
Given that we may assume error with respect to Judge Wood's order because Wife has not demonstrated prejudice from the claimed error, we decline to comment on the extent to which the parties may (or may not) be entitled to discovery-or the permissible limitations on discovery-in DVPA proceedings. In this case, Judge Wood's order stating that the parties were not entitled to any discovery was not given effect, as the parties were able to engage in some discovery, and therefore it did not affect the result.
For this reason, we need not consider the legislative materials that are the subject of Wife's request for judicial notice filed on October 26, 2023. In any event, it is not necessary to seek judicial notice of published legislative history materials, as "[c]itation to the material is sufficient." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45, fn. 9.)
3. The Court Did Not Abuse its Discretion in Declining to Admit the Substance of the Children's Text Messages to Wife
Wife contends that the trial court's blanket refusal "to consider the children's replies" to Wife's text messages prevented her from being able to "present[ ] all relevant evidence that [Husband] was weaponizing the children to violate that TRO and to harass her and disturb her peace." We disagree.
Wife fails to cite the standards applicable to a claim that a trial court improperly excluded certain evidence, but it is clear that a court is vested with broad discretion to admit or exclude evidence, and thus we review a trial court's evidentiary rulings for an abuse of that discretion. (People v. Young (2019) 7 Cal.5th 905, 931.)
The trial court in this case clearly did not believe that the substance of the children's messages to Wife was sufficiently probative on the question of whether Husband was "weaponizing" the children against her, as she claimed. The court already had an understanding that the children were saying unkind and angry things to Wife during this time period. For example, it stated, "I['ve] got a picture of what's going on here in terms of how the kids were acting [toward Wife]." The judge also clearly understood the nature of the messages: "I am not questioning the impact [of the children's communications] on [Wife] I'm not questioning that. I don't need to see these to say that must have been horrifying as a mom. I will look at them. But the impact on her is not the nature of the [domestic violence,] it may be for custody purposes and they may be very relevant for custody and visitation proceeding[s]. The link that has to be made as per the case law is whether [Husband] is using the children to disturb her peace."
The court had already considered when the text messages were sent in relation to the dates the parties were in court and/or when the children had been on phone calls with Husband. Yet it did not view the evidence as demonstrating that Husband was directing the children to make negative statements at their mother or to engage in "spying" on her. Rather, the court expressly stated it found credible Husband's testimony on this issue, thus believing him when he stated that he was not directing the children to yell at or say things to Wife, or to spy on her, and he was not trying to turn them against her.
The court also considered a variety of other evidence that it believed was consistent with its determination that the children's views about Wife were not the result of Husband actively enlisting them to hurt their mother or turning them against her, but were instead due to things over which Wife had control. For example, it noted that after the parties moved back to their Rancho Santa Fe residence, Wife had not taken much of a role in the children's lives. She had testified only to taking the son to dinners and to the yacht club where he sailed. Husband had testified that he tried to encourage the children to go to England to visit Wife's parents over the Christmas holiday, but then the trip never happened. Significant to the court was evidence that Wife never bought herself a ticket to go, indicating that even before the trip was cancelled she had declined the opportunity to spend this time with the children. Husband also offered for Wife to take the children on Thanksgiving that year, but it was uncontroverted that she "didn't take him up on that."
Given all of these circumstances, the court found that the problems Wife was having in her relationships with her children were not a result of Husband "turning the kids against her." Instead, the judge believed "her relationship with the children very, very tragically has been greatly damaged by their marriage. But I think they're both responsible for that. I don't think that's just [Husband's] job. And I think it's this fighting and this hatred and this disrespect that was shown to each other. . . . But I don't believe that [Husband] was on a campaign, as the father in M.S. [v. A.S. (2022) 76 Cal.App.5th 1139] was, to turn the kids against her." To the court it was "clear . . . that there wasn't a whole lot going on between her and the kids even before" December, which is when Wife contended the kids had been turned against her.
Given this, there is no reason to think that the admission of the substance of additional negative text messages from the children to Wife would have altered the court's view as to why those messages were being sent. The court was well aware that the children's relationship with Wife was damaged, and that the children were acting out and directing extremely hurtful comments to her while also saying negative things about her. Thus, it could reasonably exclude the substance of the children's text messages, as it likely would have been cumulative of the evidence of which the court was already aware, particularly where both parties had agreed to try not to involve the children in the litigation between them. Wife has not demonstrated that this evidentiary decision was an abuse of the court's discretion.
DISPOSITION
The trial court's order denying Wife's request for a DVRO against Husband is affirmed. Husband is entitled to costs on appeal.
WE CONCUR: O'ROURKE, Acting P. J., BUCHANAN, J.