Marriage of Johnson

Filed 5/17/06  Marriage of Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Federico Castro, Judge.  Affirmed.

            Chad Johnson appeals from an ordering granting a restraining order pursuant to Family Code section 6300 et seq. in favor of his wife Tonya Johnson.  Chad argues the trial court abused its discretion in granting the order because there was no reasonable proof of a past act or acts of abuse.

BACKGROUND

            On December 3, 2004, Tonya filed an ex parte request for a temporary restraining order against her husband Chad under the Domestic Violence Prevention Act (DVPA).  (Fam. Code, §  6200 et seq.)  The order sought protection for herself, her two children (one was Chad's son) and her mother.  The request also sought orders concerning child custody, visitation and support.

            By declaration Tonya stated that on November 18, 2004, Chad telephoned her and stated he was mad because she was keeping him from his son.  Chad told Tonya he would come and get the child and she would never see him again.  Chad called Tonya obscene names and threatened to hurt both her and her mother.  Tonya stated she understood this to mean he would badly injure both women.

            Also by declaration, Tonya related the next most recent act of abuse.  She stated that on July 24, 2001, Chad came home and became angry and verbally abusive when she asked where he had been.  Chad called her names.  When she again asked where he had been, he pushed her against a wall, put his hands around her neck and stated:  " 'I could kill you so easily and there would be nothing you could do.' "   When Tonya began to struggle, Chad pushed her away and left the house.  Tonya stated that on August 1, 2001, Chad went overseas and was gone for three years.  He recently returned and began to harass and threaten her again.

            The temporary restraining order was issued and the matter set for hearing.

            On January 21, 2005, Chad, represented by counsel, filed an answer to the temporary restraining order.  By declaration Chad stated that he and Tonya were separated since August 2001, when he was deployed by the Army, first to Europe and then to Iraq.  In October 2003 Tonya moved with their son from their home in Texas to California.  Chad returned to the United States in September 2004.  In October he petitioned for divorce in Texas.  He stated that since his return he was living in South Carolina and was not in California except to appear for the hearing on Tonya's petition for a restraining order.

            While admitting he was mad at Tonya for keeping him from his son, Chad denied calling Tonya and threatening her.  Chad also denied Tonya's claim of an earlier physical confrontation.  He noted she made no report of the incident to the police and there was no corroboration of her allegation.  Chad stated Tonya was not worthy of belief, noting in the past she complained to his superiors that he was not paying her support.  Chad stated the claim was untrue and attached to his declaration letters from his superiors indicating an investigation did not substantiate her complaint.  Chad also noted that while Tonya made numerous calls to his sergeant, she never claimed Chad threatened her.  Chad asked the restraining order be dismissed.

            On March 3, 2005, Tonya filed a responding declaration, stating that her early statements concerning threats and physical abuse were correct.  She also stated appellant called their son's school for information and Tonya believed this was done to assist Chad in taking the child from California.  Tonya also stated she was harassed by Chad's girlfriend.

            A hearing was held on March 8, 2005.  Both parties were represented by counsel.  Tonya was present.  Chad, who was then stationed with the Army in South Carolina, was not present.  Chad's counsel, noting the same evidence and factors and making essentially the same arguments made in Chad's responding declaration, argued Tonya's abuse claims were not supported by the evidence and asked that the restraining order be denied.

            The trial court, noting that most domestic violence does not occur in the presence of witnesses, granted a restraining order for three years.  In addition, the court resolved various custody, visitation and support issues.

DISCUSSION

            Chad argues that Tonya, angry with him for a host of reasons, fabricated her claims of abuse.  He argues Tonya was not worthy of belief and the evidence was insufficient to support the trial court's finding of abuse.  Chad argues the trial court abused its discretion in granting the restraining order.

            Family Code section 6300 states:  " An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of past act or acts of abuse."

            It is for the trial court to evaluate credibility.  This court does not reweigh the evidence.  Our only task is to determine whether there is substantial evidence, contradicted or uncontradicted, which supports the finding of fact.  (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)  The direct evidence of one witness who is entitled to credit is sufficient to prove any fact.  (Evid. Code, §  411.)  We view the evidence in the light most favorable to the findings of fact.  (People v. $9,632.50 United States Currency (1998) 64 Cal.App.4th 163, 175.)

            In the context of the DVPA, " abuse" means " [i]ntentionally or recklessly to cause or attempt to cause bodily injury" or " [t]o place a person in reasonable apprehension of imminent serious bodily injury to that person or another."   (Fam. Code, §  6203, subds. (a), (c).)

            As the trial court noted, it is often the case in matters dealing with personal relationships that the trier of fact is faced with contradictory claims supported by little if any corroborating evidence.  There is simply no basis for this court to reject the credible determination made below.  Tonya's declarations provide substantial evidence of domestic abuse by Chad and the restraining order was properly granted.

            The order granting a protective order is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

      IRION, J.

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