Filed 9/6/18 Marriage of H.C. and C.C. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of H.C. and C.C.	H044878 (Santa Clara County Super. Ct. No. 16FL176016)
H.C., Respondent, v. C.C., Appellant.

1. INTRODUCTION

After an evidentiary hearing, the trial court granted respondent H.C.’s application for a domestic violence restraining order against her husband, appellant C.C., under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).[1] The restraining order, which is for a period of three years, also protects the parties’ minor child, who was 12 years old at the time of the hearing. The court also awarded legal and physical custody of the child to respondent with supervised visitation by appellant.

On appeal, appellant contends that factual findings by the trial court are not supported by substantial evidence, and that therefore the order protecting respondent and awarding her legal and physical custody of the child should be reversed. He also contends that the court abused its discretion in setting a three-year term for the restraining order.

For reasons that we will explain, we will affirm the order.

2. FACTUAL AND PROCEDURAL BACKGROUND

Respondent and appellant married and had one child. Respondent filed a petition for dissolution of marriage and a request for a restraining order under the DVPA.

On March 13 and 14, 2017, an evidentiary hearing was held on respondent’s request for a restraining order.[2] Respondent appeared with counsel, while appellant was a self-represented litigant at the time. As summarized by the trial court during the hearing, respondent’s allegations pertained to her unwillingness to be intimate with appellant on certain occasions and his lack of respect for her privacy. Respondent alleged that appellant had grabbed her and dragged her out of the house when she was resistant to having sexual relations with him; that he violated her privacy by removing the master bedroom door and curtains after the parties were no longer intimate and she had claimed the master bedroom as her space; that he cutoff her credit cards on at least one occasion when she left him; that he restricted her internet access at a time that coincided with him being relegated to the spare bedroom; and that in an April 2016 letter to their child sent by e-mail, he exposed the child to the conflict between the parents. The evidence at the hearing included testimony by respondent, appellant, and several other witnesses, as well as documentary evidence.[3]

At the conclusion of the evidentiary hearing on March 14, 2017, the trial court granted respondent’s request for a restraining order. The court found that appellant had committed abuse against respondent within the meaning of section 6203, and that appellant had committed domestic violence against respondent as defined in section 3044.

In finding that abuse had occurred, the trial court explained that it was “not making any findings about sexual misconduct,” and that it did not “interpret [respondent’s] allegations as amounting to sexual assault or rape.” Rather, respondent “felt pressured” and she gave in to that pressure on one occasion but it “didn’t rise to the level of actual physical coercion.” However, the court stated that in respondent’s “efforts to maintain some separation within the marital household . . . she felt that her efforts to maintain boundaries were on a consistent level being violated whether it was through the removal of the door, the removal of the curtain and efforts to photograph her while she was in private settings in the bath.” Although there was a time in the marriage where the parties enjoyed intimacy, the court found it “clear from the testimony of both sides that the parties had left those days behind them, which made that kind of breaching of boundaries problematic.”

The trial court also found that appellant’s “cutting off” of respondent’s credit card when she left the marital home on one occasion “was intended to control [her] behavior or was in some respects somewhat retaliatory.”

The trial court further found that appellant’s letter to the child was “emotionally abusive” and “entirely inappropriate.” The court found that it was “intended to cause [the child] fear and distress and by extension intended to punish [respondent].” The court did “not . . . believe [appellant’s] explanation for why [he] thought it was appropriate.”

The restraining order includes personal conduct orders that prohibit appellant from, among other actions, disturbing the peace of respondent or contacting her directly or indirectly. The order also requires appellant to move out immediately and to stay at least 100 yards away from respondent. The duration of the restraining order is three years.

The restraining order also protects the parties’ minor child. The court did not believe that appellant was a physical threat to the child, but was concerned that there was “going to be a continuation of exposure of [the child] to emotionally damaging material.” The court referred to the letter appellant wrote to the child, as well as a “[w]hol[l]y inappropriate” voicemail message that he intended for the child but that was deleted by respondent before the child could hear it.

The court also stated that it was “prepared to make temporary orders for custody and visitation.” The court immediately reiterated: “These are temporary orders only. They are intended to hold the parties through mediation and any review hearings if needed as far as compliance with the Court’s orders . . . .” The court stated that “the temporary orders will be for [respondent] to have sole legal and sole physical custody.” Appellant was given supervised visitation.

3. DISCUSSION

1. The Standard of Review

A restraining order issued under the DVPA is in the nature of an order granting an injunction and is therefore appealable. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503; S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1257-1258 (S.M.); Code Civ. Proc., § 904.1, subd. (a)(6).) We review a restraining order issued under the DVPA for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495 (Nadkarni).) “The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)

2. The DVPA

Under the DVPA, the trial court may issue an order to restrain a person in order “to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved” (§ 6220) upon “reasonable proof of a past act or acts of abuse” (§ 6300). Domestic violence is abuse against a spouse, among others. (§ 6211.) Abuse “is not limited to the actual infliction of physical injury or assault.” (§ 6203, subd. (b).) Rather, under the DVPA, abuse includes “any behavior that has been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(4).) Behavior that may be enjoined pursuant to section 6320 includes “stalking, threatening, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (§ 6320, subd. (a).) The phrase “disturbing the peace of the other party” (§ 6320, subd. (a)) means “conduct that destroys the mental or emotional calm of the other party” (Nadkarni, supra, 173 Cal.App.4th at p. 1497).

A restraining order issued under the DVPA may enjoin specific acts of abuse, exclude a person from a dwelling, or enjoin other specified behavior. (§ 6218; Nadkarni, supra, 173 Cal.App.4th at p. 1494.) “In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing . . . may have a duration of not more than five years” and “may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse . . . .” (§ 6345, subd. (a).) The DVPA further provides that the duration of other orders, such as orders for custody and visitation, “shall be governed by the law relating to those specific subjects.” (§ 6345, subd. (b).)

3. Presumption Regarding Child Custody Upon a Finding of Abuse Under the DVPA

Section 3044 provides for a rebuttable presumption that it is detrimental to the best interest of a child to award custody of the child to a party who has “perpetrated domestic violence” against the other party within the previous five years. (§ 3044, subd. (a).) “[A] finding of domestic abuse sufficient to support a DVPA restraining order necessarily triggers the presumption in section 3044” because the “DVPA restraining order must be based on a finding that the party being restrained committed one or more acts of domestic abuse.” (S.M., supra, 184 Cal.App.4th at p. 1267.) The presumption under section 3044 may be rebutted by a preponderance of the evidence. (§ 3044, subd. (a); see also id., subd. (b) [setting forth seven factors that a court is required to consider in determining whether the presumption has been overcome].)

4. Analysis

Appellant contends that certain factual findings by the trial court are not supported by substantial evidence, and that therefore the restraining order protecting respondent and the orders awarding her legal and physical custody of the child should be reversed. He also contends that the three-year duration of the restraining order is “unreasonably long” and thus the court abused its discretion in issuing the order.

1. Sufficiency of the evidence

We first address appellant’s contention that certain factual findings by the trial court are not supported by substantial evidence. In conducting our appellate review, we presume that a judgment or order of a lower court is correct. “[E]rror must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) In this case, we determine that appellant fails to meet his burden to show error.

First, to show error, an appellant must, among other things, “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).)[4] “ ‘The appellate court is not required to search the record on its own seeking error.’ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)

In this case, appellant fails to provide record citations for nearly all the facts asserted in his brief. Where, as here, “ ‘a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]’ [Citations.]” (Nwosu, supra, 122 Cal.App.4th at p. 1246.)

Second, if an appellant challenges the sufficiency of the evidence, “the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise. [Citation.]” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368 (Baxter Healthcare).) “[A] general unsupported denial that any evidence sustains the findings is not the ‘demonstration’ contemplated under the rule.” (Green v. Green (1963) 215 Cal.App.2d 31, 35.) Moreover, a recitation of only the appellant’s evidence is inadequate to demonstrate error. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark Corp.).) The appellant is “required to set forth in [the appellant’s] brief all the material evidence on the point and not merely [the appellant’s] own evidence. Unless this is done the error is deemed to be waived.’ . . . [Citations.]” (Id. at pp. 881-882; accord, Nwosu, supra, 122 Cal.App.4th at p. 1246; Baxter Healthcare, supra, at p. 368; see rule 8.204(a)(2)(C).)

Here, appellant challenges the sufficiency of the evidence regarding the trial court’s findings concerning him cancelling respondent’s credit card and regarding a letter he wrote to his child and its impact on the child, but he fails to recite all the material evidence on these points, including the evidence presented by respondent. Even regarding the letter he wrote to his child, appellant fails to set forth the entirety of its content. On a substantial evidence challenge, where, as here, the appellant fails to set forth all the material evidence on the point, “ ‘the error is deemed to be waived.’ ” (Foreman & Clark Corp., supra, 3 Cal.3d at p. 881; accord, Nwosu, supra, 122 Cal.App.4th at p. 1246; Baxter Healthcare, supra, 120 Cal.App.4th at p. 368.)

Third, an appellant’s summary of material evidence must be “limited to matters in the record.” (Rule 8.204(a)(2)(C).) In this case, appellant’s appendix contains 12 documents that he identifies as “Trial Exhibit[s]” in the index to the appendix He relies on, and specifically cites, two of those documents in his opening brief. Respondent disputes that any of the 12 documents were marked or admitted into evidence in the trial court. Indeed, it does not appear from the record that the 12 documents that appellant characterizes as trial exhibits were admitted into evidence at the hearing.

Fourth, even assuming we considered the substance of appellant’s challenge, he fails to demonstrate error. On appeal, in reviewing a trial court’s factual findings for substantial evidence, “we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630 (Howard).) “The testimony of one witness, even that of a party, may constitute substantial evidence. [Citation.]” (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703.)

Here, appellant’s challenges to the trial court’s findings regarding the cancelling of the credit card and the letter to his child are essentially an attack on the inferences that were drawn by the trial court. However, “[i]t is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.” (Howard, supra, 72 Cal.App.4th at pp. 630-631.)

Moreover, in determining that appellant had committed abuse against respondent, the trial court referred not only to appellant’s cancellation of the credit card and the “emotionally abusive” letter to the child, but also to appellant’s removal of the door and the curtain from the bedroom where respondent was staying, his photographing of respondent while she was trying to bathe, and the “[w]hol[l]y inappropriate” voicemail message he intended for the child to hear. Appellant fails to recite these factual findings by the trial court, let alone persuasively articulate why the court erred in finding abuse under the DVPA. In sum, appellant fails to demonstrate error warranting reversal of the restraining order issued under the DVPA.

Fifth, regarding the order awarding child custody to respondent, the trial court stated that its custody and visitation orders were temporary orders only. Temporary custody orders are not appealable. (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1090.) Even assuming the child custody order is appealable, appellant fails to demonstrate that the order should be reversed. Appellant contends that, because he did not engage in domestic violence, the order granting sole physical and legal custody to respondent should be reversed as well. As we have explained, however, appellant fails to demonstrate error in the court’s finding of abuse under the DVPA. Having failed to demonstrate error in this regard, he also fails to demonstrate that the trial court erred in awarding legal and physical custody of the child to respondent. (See S.M., supra, 184 Cal.App.4th at p. 1267 [“a finding of domestic abuse sufficient to support a DVPA restraining order necessarily triggers the presumption in section 3044” that it is detrimental to the best interest of the child to award custody to the perpetrator of the abuse].)

2. Duration of the restraining order

We similarly determine that appellant fails to demonstrate error in the trial court’s issuance of a restraining order for a duration of three years. First, appellant’s contention that a three-year duration was an abuse of discretion is based on his assertions concerning the facts in this case. He fails, however, to provide record citations for the asserted facts (rule 8.204(a)(1)(C)), and he has therefore waived the argument. (Nwosu, supra, 122 Cal.App.4th at p. 1246.) Second, appellant fails to recite, let alone address, all the factual findings by the trial court in its determination that abuse had occurred, and instead focuses only on the purportedly isolated instances of him cancelling respondent’s credit card and writing a letter to his child. Further, as to these two incidents, appellant seeks to have this court draw inferences different than that drawn by the trial court. As we have stated above, however, “if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact,” and “[w]e must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.” (Howard, supra, 72 Cal.App.4th at p. 631.) In sum, appellant fails to meet his burden to show error and otherwise fails to persuasively articulate a basis for concluding that the trial court erred in issuing a three-year restraining order.

5. Sanctions

Respondent requests sanctions against appellant for filing a frivolous appeal. A party seeking sanctions must do so in a separate motion to this court. (Rule 8.276(b).) We therefore do not consider this issue.

4. DISPOSITION

The March 14, 2017 order is affirmed.