Tuesday, April 23, 2019
Court of Appeal:
Opinion Says Violation of TRO Constitutes ‘Abuse’ Even If the Conduct Is Not Aimed At Causing Physical Injury, but Is an Attempt to Effect a Reconciliation
By a MetNews Staff Writer
A domestic violence restraining order can be issued based on a violation of a temporary restraining though no acts of domestic violence occurred, the Fourth District Court of Appeal held in an opinion certified for publication yesterday, holding that violation of a TRO is, in itself, an act of “abuse.”
The opinion was filed March 26 and designated “not for publication.” Eighteen organizations—including Bet Tzedek Legal Services, Harriett Buhai Center for Family Law, and Los Angeles Center for Law & Justice—two law professions, and Appellant Family Violence Appellate Project and the Domestic Violence Clinic at the University of California, Irvine, which represented the appellant, requested publication.
Justice Richard D. Fybel of Div. Three wrote the opinion. It comes in the case of a husband, Henry Torres, who made determined efforts to reconcile with his wife, Nitzia Torres.
His alleged conduct at child exchanges included beseeching her to talk with him, giving her presents, addressing her as “my love,” querying her as to why she was not wearing her wedding ring and if she missed him, and asking her to kiss him. On one occasion, the wife contended, he placed a note to his wife in the diaper bag of their seven-month-old daughter, C., he was returning which said: “uplift hope for the—just hoping, just praying.”
Trial Judge’s View
In denying a domestic violence restraining order, Orange Superior Court Judge Donald F. Gaffney found that a TRO had been breached, but that a domestic violence restraining order (“DVRO”) was not warranted.
The TRO, aside from proscribing use of physical force and disruptive conduct, ordered Henry Torres not to harass or stalk his wife or contact her “in any way,” except for “[b]rief and peaceful contact” with her and the two children “as required for court-ordered visitation of children, is allowed.”
Conduct, Gaffney said, “is only domestic violence if I draw the conclusion that violating a TRO is in and of itself domestic violence.” He continued:
“I cannot draw that conclusion. And the incidents which have been referred to simply don’t amount to domestic violence.”
The judge elaborated:
“All that was brought up to the court’s attention are what are, yes, technical violations of the TRO. He picked the child up early. He talked about something at the exchange other than the child.
“Are these technical violations of the TRO? Yes, they are. But just because they are technical violations of the TRO doesn’t mean they are domestic violence. I am not aware of the authority that says a violation of a TRO is in and of itself domestic violence. It is the requesting party’s burden to prove by a preponderance of the evidence that domestic violence has occurred in the relationship. That burden has not been met here.”
Family Code Provisions
Fybel saw it differently.
He noted the wife’s contention that Gaffney erred in finding that violation of a TRO is not per se “abuse” and that, if the conduct that is alleged were proven at a hearing, it would not justify issuing a DVRO.
“We agree as to both arguments,” the justice said.
He pointed to Family Code §6203, a part of the Domestic Violence Prevention Act (“DVPA”), which provides that “abuse” includes engaging “in any behavior that has been or could be enjoined pursuant to Section 6320” and specifies:
“Abuse is not limited to the actual infliction of physical injury or assault.”
Section 6320, he noted, “allows a court to enjoin, among other things, stalking, threatening, harassing, contacting directly or indirectly, or disturbing the peace of the protected party.”
Feeble said the wife put forth admissible evidence that husband had violated provisions of the TRO, adding that he “did not deny he had engaged in many of the actions of which [she] complained, but minimized them or attempted to justify them by explaining his desire to reunify with [her] and spend more time with C.”
Fybel specified that Henry Torres’s alleged acts “would have been acts of abuse without the existence of the TRO” because they would be “obvious breaches” of his wife’s “peace, and therefore would have justified the issuance of a DVRO on their own.”
“Because the court found that [Henry Torres’s] violations were technical, and further found that TRO violations did not constitute acts of abuse for purposes of the DVPA, it failed to make the necessary factual findings regarding the issuance of the DVRO. If all material evidence were undisputed, we would be able to determine this as a matter of law, and would order the trial court to enter the DVRO as requested. [Henry Torres’s] written opposition and testimony at the hearing in the trial court make this remedy impossible because we do not weigh evidence. We will therefore reverse the order denying the DVRO and remand the matter to the trial court to make the necessary findings and determine whether to issue the DVRO. If the court finds that the acts alleged by [Nitzia Torres] did, in fact, occur, then the court shall issue the DVRO.”
The case is N.T. v. H.T., 2019 S.O.S. 1890.
Div. Three on May 21, 2018, granted Nitzia Torres’s request that the parties be referred to from that point on by their initials.
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