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Court of Appeal:
Court Lacked Power Under DVPA to Order Husband to Undergo Mental Health Exam
Judge Criticized for Turning Into Amateur Psychoanalyst, Proclaiming the Cause of Husband’s Behavior
By a MetNews Staff Writer
An Orange County judge who, in essence, undertook to psychoanalyze a husband in a dissolution of marriage case, acted improperly, Div. Three of the Fourth District Court of Appeal has observed, reversing a portion of an order requiring that he undergo a psychiatric evaluation in connection with his anger over his wife’s affair.
The court, in Tuesday’s unpublished opinion by Presiding Justice Kathleen O’Leary, affirmed the Aug. 11, 2022 order to the extent that it granted the wife, Lindsy Jennings, a domestic violence restraining order (“DVRO”). The husband, Reid Jennings, had made threats that he would kill her and had engaged in other oppressive conduct.
O’Leary wrote:
“The trial court made numerous observations of Husband which were a basis for its concern. But we would suggest caution when taking the next step and opining what the underlying causes may be for the behavior. This is best left to mental health professionals.”
Trial Judge’s Comments
Orange Superior Court Judge Carmen Luege told the husband:
“The way that you testified to me, you have this monotone tone to it. I looked at you, you never made any eye contact with me. Even when I asked you questions, you didn’t make any eye contact.
“It speaks to me of someone who is controlling the anger but afraid that the anger be seen. So you have this very monotone control approach, and I think that behind that is all the anger that you’re carrying because you do feel victimized by the affair, and I’m not here to tell you [that you] shouldn’t feel victimized. But I am going to tell you [that you] need to deal with those feelings.”
She said that he is “someone what is suffering and not coping well with that suffering.”
Luege, who was appointed as a judge on March 25, 2021, and was a commissioner before then, remarked to the husband’s lawyer:
“I’m telling you that I see now enough people and I’ve seen enough people over the years I’ve been on the bench since 2009, I have a sense when I see a certain type of demeanor that’s concerning. I’ve done civil harassment hearings, I have a plethora of experience and I’m not comfortable with the way [Reid Jennings] acts and has been acting. I think you need to get help for him.”
Order Made
Although the wife had not requested a mental health evaluation, Luege announced at the conclusion of the hearing:
“Frankly, at this point I want a mental assessment....I want an assessment of his mental health by a professional. And I want a plan of action to deal with whatever mental issues he’s dealing with as a result of the affair.”
There would be no child visitation until it was found safe for it to take place, she ruled, setting a hearing for Nov. 18, 2022, stating:
“The court expects five days prior to that hearing to receive the psychiatric assessment and a plan of therapy if the psychiatric finds it necessary.”
The hearing was not held. On Oct. 11, 2022, the husband filed a notice of appeal.
Husband’s Contentions
Reid Jennings protested in his opening appellate brief that the order for a mental health examination was “not grounded in statute or case law.” He contended that it was “based on insufficient evidence,” pointing out:
“There was no testimony or allegations regarding mental health issues….The ruling was based on the findings and reporter’s transcript in a separate Gun Violence Restraining Order (GVRO) hearing and on the court[’]s prior experience observing the demeanor of defendants.”
He argued:
“The reporter’s transcript of the GVRO was not admitted into evidence.
“The Judge’s own prior experience was not evidence.”
Wife’s View
The wife’s brief maintained that if there was any procedural error in ordering a mental health examination, it was harmless, reasoning:
“The issuance of the order sprung forward the presumption under Family Code § 3044, that it is presumed not to be in the best interest of the children to award a perpetrator of domestic violence, joint custody of the children.
“Since the Court expressed severe concern about the safety of the children, the court could have simply denied Reid any visitation with the children and shifted the burden on Reid to come back to the court and attempt to rebut the presumption.
“Reid could have simply refused to undergo the mental health assessment since the only punishment attached to this order was his ability to spend custodial time with the children. Reid did not sustain substantial injury, in fact he was given the opportunity to come back to the court within a short period of time to demonstrate that he did not pose a danger to himself, the children or Lindsy.”
O’Leary’s Opinion
O’Leary wrote that “we agree with Husband that the assessment order was an abuse of discretion.”
A “trial court enjoys broad discretion” under the Domestic Violence Prevention Act (“DVPA”), she said, but “there is no provision in it permitting the court to order a mental health assessment.”
The only provision under which counseling can be mandated, O’Leary noted, is Family Code §6343 which says that “the court may issue an order requiring the restrained party to participate in a batterer’s program approved by the probation department….” Allegations against Reid Jennings did not include commission of a battery.
O’Leary said that “a psychiatric assessment may be advisable in a family law case to determine custody,” but that an order for such an assessment “can and must adequately safeguard a party’s rights,” commenting that “this is best done by procedures formulated and delineated by the Legislature.”
She pointed to Family Code provisions that are not contained in the DVPA. O’Leary wrote that §3190 authorizes an order to parents to undergo “outpatient counseling” if required by a child’s interest but that Luege “did not mention section 3190 and made none of the specific findings required by it,” and that §3111 permits appointment of a “child custody evaluator where the court feels it is in the best interest of the child” but the judge did not determine the parents’ ability to pay for it, as required by §3112.
Appointment of Expert
Evidence Code §730 permits the appointment of an expert to conduct an investigation, which would include designating an expert to conduct a to conduct a psychiatric evaluation if necessary to decide child custody issues, O’Leary said, but took note that Luege “did not appoint the provider to ensure the opinion it would receive would be focused and worthy of reliance.”
Instead, she told the husband’s Long Beach lawyer, Martha Virginia Iturrioz:
“I mean, you have to choose someone to do this….[Y]ou’re the one what has to set this up.”
O’Leary added that Luege “made no written findings as to the need for an evaluation, or the duration of any treatment that might be needed” and did not “make a provision for the psychiatrist or psychologist’s compensation.”
The opinion reverses the order for a mental health examination and remands the matter “for the trial court to fashion an appropriate mental health assessment order that complies with existing statutory procedures.”
Not participating in the case was Justice Maurice Sanchez who, in October 2021, while a judge of the Orange Superior Court, denied Lindsy Jennings’s first application for a DVRO that was based on her husband having wielded a gun while uttering a death threat. Luege acted on a subsequent request, supported by additional facts.
Reid Jennings was arrested by Mission Viejo police on Oct. 12, 2021 in connection with the gun incident and, while he was not prosecuted, the Orange County Sheriff’s Department in March 2022 obtained the GVRO.
The case is L.J. v. R.J., G061890.
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