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Court of Appeal:
Court Must Consider Acts Occurring After DVRO Filing
Opinion Says Bench Officer Erred in Restricting Evidence to Events Occurring Before Application for Order; Says That Fact That Former Spouses Have Separate Residences Does Not Obviate Need for Protection
By a MetNews Staff Writer
A judge erred in denying a domestic violence restraining order against an ex-husband after limiting consideration to facts set forth in the application rather than taking into account instances of abuse allegedly occurring after the filing, and by deeming the parties having separate residences as precluding a need for relief, the First District Court of Appeal has held.
Its opinion was filed May 28 and certified for publication on Thursday. Justice Gabriel P. Sanchez of Div. One wrote the opinion which reverses an order by Alameda Superior Court Commissioner Nikki Clark.
The order for publication also contained a modification. It replaced a footnote reciting that the ex-husband had not filed a brief with one indicating that the court has been advised that he has died. The footnote says:
“Despite this development, we have exercised our discretion to resolve this matter and order publication of the opinion.”
Trial Court Proceedings
At a hearing on Monday, Dec. 16, 2019, the ex-wife, Fatima Musa, tried to tell Clark of threats against her life the previous Friday by her former spouse, Musa M. Musa. The commissioner responded:
“You need to support this request with what took place before you filed this request. What happened Friday is not relevant to this request.”
Her application for a domestic violence restraining order (“DVRO”) had been filed on Aug. 15, 2019. A temporary restraining order (“TRO”) was issued against the former husband at that time.
Fatima Musa tried to tell of an incident of abuse in October involving a physical attack on her leading to the arrest and jailing of Musa M. Musa and of threats her ex-husband had uttered in November and December, but the testimony was barred.
She said he had beat her.
Clark queried:
“You are living separately and apart, correct?...
“So, you don’t have the conflict with living with each other….
“So what is the basis for your continued request for the restraining order?”
At the end of the hearing, Clark declared that the ex-wife had failed to present corroborating evidence of the alleged beating and told the ex-husband: “[T]here’s no question that the two of you need to stay away from each other,” but added:
“That doesn’t mean that there needs to be domestic violence restraining orders.”
Sanchez’s Opinion
Clark erred in barring evidence of post-filing abuse, Sanchez said, explaining:
“While a trial court should, of course, hear and evaluate the evidence relating to incidents set forth in a petitioner’s request, evidence of postfiling abuse is also relevant, particularly when that abuse occurs after a temporary restraining order has been issued, as was the case here. The purpose of a domestic violence restraining order is not to punish past conduct, but to prevent acts of domestic violence [and] abuse’ from occurring in the future….Evidence of recent abuse or violation of a TRO is plainly relevant to whether a petitioner should be granted a protective order.”
He noted that Evidence Code §351 provides: “Except as otherwise provided by statute, all relevant evidence is admissible.”
The Domestic Violence Prevention Act, he pointed out, says the court “shall” consider the “totality of the circumstances” in deciding whether to issue a restraining order. He concluded that Clark’s “categorical refusal to consider postfiling evidence of father’s alleged abuse and violation of the TRO, based solely on the ground that the conduct had occurred after mother filed her DVRO application, was legal error and therefore constituted an abuse of the court’s discretion.”
Sanchez said Clark also erred in finding the fact of separate residences to indicate a lack of need for a DVRO, saying:
“The trial court’s use of residential separation as a substitute for a DVRO was inappropriate given that the parties still have to coparent. Because the parties have six children together, further interactions between the two are unavoidable. The record shows that even with separate residences, continuing interaction between the parties has resulted in ongoing conflict.”
The jurist aid Clark was mistaken in the notion that the applicant for a DVRO must provide corroboration of alleged acts, saying that the relevant statutes impose no such requirement and that it is expressly provided that an order may be issued “based solely on the affidavit or testimony of the person requesting the restraining order.”
Five references are made in the opinion to issues to be considered on “remand,” with the court’s recently acquired knowledge as to the ex-husband’s death not having triggered modifications other than the first footnote.
The case is In re Marriage of F.M. and M.M., 2021 S.O.S. 2440.
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