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Court of Appeal:
Judge Acting on DVRO Request Should Have Taken Limited Note of Conduct in China
Panel Declines to Decide if Acts Committed Outside California Should Be Taken Into Account Where They Bear No Resemblance to What Respondent Allegedly Did Here
By a MetNews Staff Writer
Div. Four of the First District Court of Appeal has held that a judge, in deciding whether a wife needed protection from her husband, erred in rejecting evidence of purported abuse when the couple resided in China in 2018-22, but declined to decide, for now, whether incidents there that don’t bear a resemblance to ones that allegedly took place when they returned to California can be considered.
An unpublished opinion by Presiding Justice Tracie L. Brown, filed Wednesday, reverses an order by Sonoma Superior Court Judge James G. Bertoli denying a domestic violence restraining order (“DVRO”) sought by Xiaoiuan Ke in favor of herself and the couple’s child, a minor. Bertoli had questioned whether his court had any jurisdiction as to events in a foreign nation.
Brown pointed to Family Code §6301(d), a portion of the Domestic Violence Prevention Act (“DVPA”), which says that in determining whether to issue a DVRO, the judge “shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” She noted, also, that §6320(c) of that code says that “ ‘disturbing the peace of the other party’ refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party.”
Limited Purpose
The jurist said that in light of those statutes, Bertoli “should have considered the totality of the circumstances, including evidence of the incidents in China”—but only for a limited purpose, under the circumstances. Such evidence should have been taken into account, she wrote, in gauging whether plaintiff/respondent Michael Phillip Collette’s “more recent conduct in California constituted abuse in the form of disturbing” Ke’s “peace” and in making a “ ‘totality of the circumstances’ assessment in determining whether to grant or deny” the “petition based on acts of abuse in California.”
Brown continued that “[a]s to the question of whether conduct that occurred wholly in China while both parties were living there itself constitutes ‘abuse’ under the DVPA, we find this issue forfeited,” explaining that Ke “did not support her argument with comprehensible legal analysis with citations to pertinent authority.”
Though represented by counsel on appeal, she had appeared in pro per in the trial court.
Some conduct that allegedly took place in China involved physical abuse while there was no claim that such acts occurred here.
Misunderstanding of ‘Abuse’
The presiding justice also questioned whether Bertoli grasps what constitutes “abuse” under the DVPA. She quoted him as saying:
“What sticks out in our discussion today is that the vast, vast majority of this discussion has been regarding custody and visitation issues and that being the foundation of the dispute between the parents.
“And while there may be disagreements with the parents regarding custody and visitation, parenting time, et cetera, that doesn’t fall under the definition of what is domestic violence. This is a dispute over custody and visitation, and obviously, that plays into the initial denial of the temporary restraining order request.”
Brown noted that “disturbing the peace of the other party” is “itself a broad category of abuse under the DVPA.”
She said that Bertoli “was free to discredit” Ke’s evidence, but hadn’t, and “denied the DVRO expressly because” he “considered this to be merely a dispute over custody and visitation that did not ‘fall under the definition of what is domestic violence.’ ” Brown commented that the judge botched it “either by applying an erroneous definition of abuse under the DVPA, or by improperly denying the DVRO because the allegations of abuse occurred in the context of a marital dissolution action involving custody and visitation, or both.”
The presiding justice instructed that on remand, “the court is to consider the evidence of abuse presented by” Ke, “to apply the proper definition of ‘abuse’ under the DVPA, and to assess whether it should exercise its discretion under the DVPA to issue a DVRO.”
The case is X.K. v. M.C., A170020.
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