Trial court may deny DVTRO request based on the totality of the circumstances even where petitioner has made a prima facie showing of past abuse. . .

In reversal, the Fourth District held the trial court erred in finding mother's evidence was legally insufficient to establish abuse under the DVPA; however, even when a DVRO petitioner has made a facially adequate showing of past abuse on the papers, the trial court has discretion to conclude that the circumstances do not pose enough of an immediate threat to warrant ex parte relief pending a noticed hearing.

Mother and father were married in April 2019 and had one child, born in August 2019. Mother filed a dissolution action in April 2023. In December 2023, mother and father signed a marital settlement agreement (MSA) that was incorporated into their dissolution judgment. The MSA gave mother sole legal and physical custody of the child with father to receive weekend supervised visitations. The day and duration of the weekend visit was to be mutually agreed upon by mother and father and confirmed at least two weeks in advance.

In May 2024, mother filed a request for a DVRO against father on behalf of herself and their child. Mother included a 23-page declaration describing father's alleged abuse as well as 22 exhibits with hundreds of e-mails and text messages between her and father from January 2024. Among other things, mother alleged that father shamed and guilted her into having sex, engaged in unwanted sexual conduct in presence of their child, berated her constantly, refused to abide by provisions of the MSA, and on one occasion grabbed mother forcefully. In a text exchange between the parties, mother told father, "'You're right you wouldn't physically hurt me. However, I am afraid of you emotionally and psychologically[.]'" Many of the messages included arguments between the parties about their marriage and divorce as well as the terms of the MSA.

On May 17, 2024, the same day mother filed her DVRO petition, the trial court (San Diego County's Oliver) set a hearing for the matter but denied mother's request for a DVTRO. More specifically, the trial court checked the boxes denying the DVTRO for the following reasons: (1) the facts given in the request "'do not show reasonable proof of a past act or past acts of abuse'"; and (2) the facts given in the request "'do not give enough detail about the most recent incidents of abuse, including what happened, the dates, who did what to whom, or any injuries or history of abuse.'" The trial court also checked the "'Other reasons for denial'" box and handwrote, "'Issues described center around finalizing the dissolution and child custody/visitation.'" Mother appealed, and the Fourth District reversed.

Before turning to the merits of the action, the justices decided two preliminary matters. First, they concluded that the order denying mother's request for a DVTRO is appealable. In so concluding, the justices noted that an order granting or refusing to grant an injunction is appealable. This extends to a temporary restraining order or a preliminary injunction. Second, the justices concluded that the appeal is not moot, even though the DVTRO would have expired after 25 days.

Turning to the merits of the appeal, the justices began their analysis by describing the applicable law. The DVPA defines abuse as including any behavior that could be enjoined under Fam C §6320, which includes disturbing the peace of the other party. Disturbing the peace of the other party, in turn, refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party and includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty. The justices added that per Fam C §6300(a), an order pursuant to the DVPA may be issued based solely on the affidavit or testimony of the petitioner.

Mother made a prima facie showing of past abuse. . .
The justices next held that the trial court erred in finding mother's evidence was legally insufficient to establish "abuse" under the DVPA. First, the justices noted that they must assume the truth of mother's evidence since the trial court did not make any credibility determinations and the record did not establish the trial court had any basis to doubt mother's credibility. Second, mother's sworn declaration asserted several incidents that when taken together established a prima facie showing that father disturbed mother's peace by destroying her mental and emotional calm. For example, mother submitted detailed evidence that father pressured her into having sex, belittled and berated her constantly, showed up unannounced at her residence on several occasions after the separation, and on one occasion grabbed mother forcefully.

Nevertheless, the justices concluded that "a trial court has discretion to deny a DVTRO to a petitioner who has made a prima facie showing of past abuse if it reasonably concludes based on the totality of the circumstances that a DVTRO is not necessary to protect the petitioner or others for whom the petitioner is seeking protection from further acts of domestic violence pending the noticed hearing." In reaching this conclusion, the justices relied on two pertinent statutes in the DVPA. First, Fam C §6320(a) provides that the trial court "'may issue an ex parte order' enjoining contact with the other party." And second, Fam C §6301(d) provides "'[t]he court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.'"

The justices added that when exercising its discretion to grant or deny a DVRTO, the trial court should consider (1) the seriousness and recency of the past abuse; (2) whether it was an isolated incident or pattern; (3) the likelihood of recurrence; (4) the nature of the parties' relationship; (5) the immediacy and seriousness of any threat; (6) any changed circumstances; and (7) any other relevant factors. The justices further concluded that when a trial court denies a DVTRO to a petitioner who has made a prima facie showing of abuse, its "statement of reasons must reflect consideration of the fundamental purpose of the DVPA to prevent recurring acts of domestic violence."

Trial court failed to state proper reasons for denying mother's DVTRO request. . .
With these legal principles in mind, the justices concluded the trial court abused its discretion by denying mother's request for a DVTRO by failing to state proper reasons for denying the DVTRO. The justices noted that although DVRO petitions are sometimes used for tactical purposes in family law cases, the trial court may not deny a DVTRO solely because "otherwise sufficient allegations of abuse may have arisen in the context of a family law dispute."

Accordingly, the Fourth District reversed the trial court's order denying the DVTRO and remanded the matter to the trial court for further consideration of the DVTRO based on the totality of the circumstances.