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Judge at Hearing on DVRO Application Must Consider Entire Record—Appeals Court
Opinion Says Judge May Give Guidance to Pro Per Litigant
By a MetNews Staff Writer
A judge erred in assuming he could only consider evidence adduced in live testimony before him in deciding whether to issue an anti-harassment order, the Fifth District Court of Appeal has held, declaring that the entire record in the case is to be considered.
The opinion filed Friday, and not certified for publication, reverses a decision by Kern Superior Court Judge Kenneth R. Green denying a request by Melissa Huth for a domestic violence restraining order (“DVRO”) against Christian Huth. The proposed order would have extended to the parties’ daughter as well as to the ex-wife’s daughter from a previous relationship.
Green said at the hearing that he could not grant the application, explaining:
“I say that based upon the evidence presented at this hearing. I have been participating in this case I think it was, I remember signing a judgment or I remember reviewing a judgment and recognizing that it was my signature and remembering the terms and conditions. I read through all of the statements. I reviewed all of the exhibits that were submitted both in the initial request for domestic violence restraining order and then the supplemental request.
“Had those come into evidence, the Court in all likelihood would have granted this request. The items contained in the declaration and the exhibits accompanying caused the Court great concern, but I am limited to only those things which are presented at this hearing; therefore, I cannot grant the request for a [DVRO].”
Per Curiam Opinion
The per curiam opinion, signed by Acting Presiding Justice Jennifer R.S. Detjen and Justices Donald R. Franson Jr. and Thomas DeSantos, says:
“This view of the scope of the evidence that could be the basis for a DVRO is contrary to law. Application of this erroneous view was a prejudicial abuse of discretion.”
The opinion points to Family Code §6301(c) which provides that “[t]he court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” It observes:
“The trial court impliedly interpreted the statutory requirement that it “shall consider the totality of the circumstances” to mean the totality of the circumstances as shown by the evidence presented at the hearing.”
Disagreement Expressed
The justices disagreed with that interpretation, saying: “We conclude this interpretation is too narrow because section 6300, subdivision (a) states that a court may issue a DVRO ‘based solely on the affidavit... of the person requesting the restraining order.’ No language in the statutes expressly states or impliedly suggests that the phrase “based solely on the affidavit” loses its effect once an evidentiary hearing is held.
“In the absence of such language, we apply the principle that the [Domestic Violence Protection Act] should be construed broadly to accomplish its purpose of preventing acts of domestic violence…and conclude the phrase ‘based solely on the affidavit’ remains in full force and effect even when an evidentiary hearing has been held. Therefore, any affidavits or declarations, along with accompanying exhibits, properly filed and served may be considered by the trial court when deciding whether to grant or deny a request for a DVRO. Indeed, pursuant to mandatory language in the DVPA, the court must consider affidavits, declarations and accompanying exhibits to fulfill its obligation to ‘consider the totality of the circumstances.”
Assistance Is Appropriate
Melissa Huth complained that Green did not help her along, given that she was unrepresented, in putting on her case. The justices expressed agreement with two decisions of this district’s Court of Appeal, both from Div. Seven, commenting that such assistance is appropriate in DVRO cases given the court’s purpose: to provide protection.
The Fifth District jurists expressed agreement with “the principles set forth” in those cases “for handling self-represented litigants in proceedings under the DVPA and conclude those principles apply in a case where, as here, one party is self-represented and the other is represented by counsel,” adding:
“Those principles limit the trial court’s discretion and place affirmative obligations on the trial court that are different from the limitations and obligations generally applicable in civil proceedings.”
The case is M.H. v. C.H., F082268.
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