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The Third Time is the Charm

Two wrongs don’t make a right, but at least in a recent California domestic violence case, three appeals justices saw it differently.

Usually in domestic violence cases, a judge is not allowed to issue a restraining order against both sides by not saying who is at fault and simply declaring that “everyone should behave”. Rather, a restraining order, which can last up to five years, can only be issued in favor of both sides if each party files a formal written request for a restraining order. Even then, the court must make detailed findings of fact that both parties acted as a primary aggressor and that neither party acted primarily in self-defense.

In a recent San Diego case, Marriage of Everard, a family law judge (Hon. Tilisha T. Martin) did all of this and was affirmed 3-0 by the California Court of Appeal’s Fourth Appellate District (Division One). Admitting that “there is a dearth of authority on what constitutes ‘detailed findings of fact’, the Hon. Patricia Benke, writing for her colleagues, found that whatever that means, the judge in this case did it. Specifically, the justices said “detailed findings of fact” mean “sufficient factual findings or analysis for a reviewing court to assess the factual or legal basis for the trial court’s decision”.

The trial judge’s decision came after a multi-day hearing in which it had been revealed that both parties had, in the course of their marital relationship, been reported to Children’s Services  Although the husband (“Kyle”) was the first of the two parties to seek a restraining order, doing so on December 19, 2017 (whereas the wife made her request the next day), the evidence showed that Kyle himself had acted inappropriately in the past, even if his wife (“Valerie”) also did. It is impossible to restate everything that happened as detailed in the appellate court’s 29 page decision, but Kyle had, on multiple occasions in 2016 and 2017, “after consuming alcohol”, “used his size and weight to hold Valerie against her will and choke her with his hands and/or forearm, making it difficult for Valerie to breathe”. Valerie, who did not appeal Judge Martin’s orders (only Kyle did), did a number of scary things too, like throwing a plate of food at Kyle which ended up hitting one of their two kids, and picking up a barbeque fork “and, while holding it to Kyle’s chest, stat[ing] ‘she wished she could ‘run it through [his] fucking heart’”.

One of the problems Kyle had with the decision was that the judge admitted into evidence a 2013 police report offered by Valerie that was not properly “authenticated”. Perhaps. Getting police reports into evidence is not easy.  But the justices said that “substantial evidence in the record supports the court’s findings independent of the 2013 police report”.

Restraining orders in California can last up to five years. It is not clear how long the restraining orders were for each side in this case.  But we know that in January, 2018, one month after each side requested restraining orders in December 2017, in a hearing before Judge Martin, the parties entered into a stipulation in which they agreed to voluntarily stay away from each other; Kyle would have primary custody; and Valerie would have supervised visitation. The hearing on the ultimate disposition would not take place until August 22, 2018 and continuing for at least one more day.

What we do know is that Judge Martin summed up the evidence as “a situation where Mr. Everard appears to drink to excess at times and Ms. Everard is unable to control her anger impulses at times. Each party accuses the other of being an inappropriate caregiver for the children”. The Court was so worried about the parties’ two children, who are 11-year old twins, that it appointed a lawyer to represent their interests. Other custody and visitation orders were also made.

Interestingly enough, this March 30, 2020 opinion was the third published opinion by the Court of Appeal on the issue of domestic violence over the course of two business days stretching into last week. In the first two cases, the lower court ruling was reversed – one for granting a restraining order and one for dismissing one. Both of those cases were decided by a branch of the California Court of Appeal in Los Angeles County.

Joining Justice Benke in her decision in the San Diego case were the Hon. Joan Irion and the Hon. William Dato.

The post The Third Time is the Charm appeared first on Andy Cook Law.

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