Monday, April 23, 2018
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Court of Appeal:
Wife Slapping Husband Didn’t Call for Restraining Order
Justice Richman Says Wife Who Lost Control Upon Learning Her Spouse Was Engaged in an Affair Did Not Act ‘Intentionally’ or ‘Recklessly’ by Administering Two Open-Handed Blows to His Face
By a MetNews Staff Writer
The First District Court of Appeal has affirmed the denial of a domestic violence protective order by a six-foot-one, 185 lb. husband whose five-foot-five, 130 lb. wife slapped him on the face two times and shoved him after just seen text messages on his phone to and from the “other woman” and a photo of her.
Div. Two’s opinion, filed March 23, was certified for publication Friday. Acting Presiding Justice James A. Richman was the author.
Seeking the order was David Fischer, vice president of business and marketing partnerships at Facebook. According to his wife, Joannie Fischer, a former senior editor for U.S. News and World Report, her husband admitted prior to the incident in question to having been unfaithful but swore “a million times that the affair was over” and had been “short lived.”
That, Joannie Fischer discovered, upon looking at the cellphone, was a lie. It was immediately after she saw the messages that her husband confronted her.
Wife Arrested
After she slapped him, he phoned 911, but immediately hung after being connected. Nonetheless, pursuant to policy, a police operator phoned back and spoke to both spouses; officers were dispatched; they arrested Joannie Fisher.
The incidents took place on Sept. 27, 2015. It was Joannie Fischer’s 48th birthday.
Although David Fischer had filed for a dissolution of marriage, his wife lived part of the time in the same house with him, spending other time in her own home. It was three days after the slapping that the husband’s divorce counsel persuaded his client to seek a restraining order.
Trial Court’s Decision
The opinion affirms the decision of San Mateo Superior Court Rachel Holt who said, in denying the requested order:
“First of all, that no criminal case was filed; second of all, that Mr. Fischer did not request the Emergency Protective Order at the time of the alleged incident. The Court also considered the fact that Mr. Fischer bailed Ms. Fischer out of custody, that he went to the Fletcher home, celebrated her birthday with her and with the children, and then spent that night with her and the children….
“This case strikes the Court as being, quite frankly, a singular incident, although it’s clear that this relationship had been perhaps unhealthy for quite some time, and there was some inappropriate, perhaps immature, behavior going both ways.
“Ultimately the Court has decided the following: The request for the restraining order is denied. The Court finds that Ms. Fischer did not commit an act of abuse as defined under the Family Code 6203 which specifically indicates abuse being the intentional or recklessly causing or attempting to cause bodily injury.”
Section 6203(a)(1) provides that to “intentionally or recklessly cause or attempt to cause bodily injury” constitutes “abuse.”
Argument on Appeal
On appeal, David Fischer’s attorney argued that “[s]lapping and pushing a spouse are acts of abuse as a matter of law,” and that Holt abused her discretion in failing to issue the order sought under the Domestic Violence Prevention Act.
Agreeing with Holt, Richman said:
“Joannie had been trying hard to reconcile and testified to several events that would lead her to think that it was succeeding, events that, in the words of the trial court, gave off ‘conflicting messages’ or ‘mixed signals.’ And after seeing E.D.’s picture on the phone, Joannie said everything was ‘a blur’; she was ‘overwhelmed and flooded’ and she ‘lost it.’ Given the court’s credibility finding, this evidence is sufficient to conclude that Joannie was so emotionally shocked by the events that she was not thinking or acting with presence of mind, but rather instinctively in the heat of the moment—without the requisite level of consciousness to constitute ‘intentional’ or ‘reckless’ behavior.”
Ancillary Argument
He continued:
“In a brief argument, David states that Joannie’s “reading and disclosure of David’s private text messages was also abuse,” that it was “disturbing the peace under the” Act. The argument is based on Joannie’s admitted reading through some 20 text messages, and her talking to her four close friends about them. The trial court found this was not harassment. Properly so.”
The case is Fischer v. Fischer, A148482.
Copyright 2018, Metropolitan News Company