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Court of Appeal:
Extension of DVRO May Not Be Denied Based Solely on Retaliatory Motive, C.A. Holds
Opinion Says ‘Anger and Fear Are Not Mutually Exclusive’
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that a judge, in declining a woman’s motion to extend an order to the man who fathered their children to stay away from her, misapplied the law by inferring that that she did not actually fear further violence on his part because it appeared that she wanted to retaliate against him.
Even if retaliation was a motive, Justice Martin N. Buchanan said in an opinion filed May 9 and certified for publication on Friday, that, in itself, did not justify the conclusion that relief was not warranted.
“The mere existence of a retaliatory motive still would not negate the compelling evidence” that the woman “had a reasonable basis” to fear the man who had visited violence on her on the past, Buchanan said, declaring:
“Anger and fear are not mutually exclusive; they often go hand in hand.”
2018 DVRO
The opinion reverses an order by San Diego Superior Court Judge Shereen J. Charlic denying a motion by a woman identified as “Robin J.” to extend the three-year domestic violence restraining order (“DVRO”) that was imposed in 2018 on “Michael M.” The parties, who were not married, cohabitated from 2001-10.
Buchanan—although saying that even if Robin J. did have a retaliatory motive, that factor was not determinative—found that Charlic had an insufficient basis for concluding that such a motive did trigger the motion. He set forth:
“[T]he trial court erred by inferring a retaliatory motive from the mere timing of Robin’s renewal request—and rejecting her claim of genuine fear on that basis alone. The DVRO statute required Robin to file her renewal request within three months before the DVRO’s expiration….She filed her renewal request within this statutory window period, four days before the DVRO was set to expire.”
The jurist continued:
“If Robin had filed her renewal request earlier, while the parties were still litigating Michael’s application for emergency child custody orders, she could well have been accused of doing so for strategic purposes to influence the custody dispute. Considering the totality of the record, the mere fact that Robin waited to file her renewal request until after the court had ruled on Michael’s custody request is not sufficient to support the trial court’s finding of a retaliatory motive.”
No Recent Abuse
Charlic also relied upon the lack of a showing by Robin J. of any recent violence on the part of Michael M., minimizing anonymous telephone calls and text messages that were attributed to him. She told Robin J. at the Oct. 8, 2021 hearing:
“I find that in the past several years, other than that one text message, which it’s not necessarily custody related, and it was not necessary, but I’m exercising my discretion to find it really isn’t a violation in this court’s view. I do not find that your fear is reasonable….
“I am finding that your fear isn’t credible because I find there are other circumstances that prompted this renewal, and I am aware of them. With the history of this case, I am denying this request.”
Family Code Section
Finding error, Buchanan said:
“Family Code section 6345, subdivision (a) provides that a DVRO shall have an initial duration not exceeding five years, but ‘may be renewed, upon the request of a party, either for five or more years, or permanently, at the discretion of the court, without a showing of further abuse since the issuance of the original order....The request for renewal may be brought at any time within the three months before the expiration of the orders.’ (Italics added.)
“The legal standard for renewal of a DVRO is whether the protected party entertains a reasonable apprehension of future abuse.”
Knife Incident
The jurist also wrote:
“The trial court’s restrictive focus on recent events also caused it to disregard Michael’s assault on Robin with a knife in February 2019, five months after the DVRO was issued….A violation involving a knife to the victim’s throat is particularly disturbing. Such an incident could reasonably be expected to give rise to a long-lasting fear of the perpetrator that could continue for many years. Yet the trial court found it unnecessary to consider anything ‘other than that one text message’ of October 2, 2021 because it deemed everything else to be too remote in time.”
With respect to that text message, Buchanan remarked:
“This text—which accused Robin of being ‘corrupt’ and ‘sick’—was a clear violation of the DVRO….The trial court had no ‘discretion’ to treat an unquestionable violation of the DVRO as if it were not ‘really’ a violation.”
The case is Michael M. v. Robin J., 2023 S.O.S. 1849.
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