Filed 12/27/17 Dudley v. Williams CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




MICHELE DUDLEY,

Plaintiff and Appellant,

v.

GRADY WILLIAMS,

Defendant and Respondent.
C082965

(Super. Ct. No. 14DV01956)



Appellant Michele Dudley filed an affidavit of contempt against respondent Grady Williams, accusing him of repeatedly violating a domestic violence restraining order (DVRO). Williams sought to modify the DVRO, and Dudley opposed the modification and sought the DVRO’s extension.
Following a contested trial, the court found Williams not guilty of contempt and granted the modification, but declined to renew the DVRO.
Dudley appeals, arguing the trial court erred in denying her request to renew the DVRO and in modifying it over her objection. We conclude the court applied the correct legal standard and did not abuse its discretion in denying the request to extend the DVRO. Because the DVRO has expired by its own terms, we need not address the propriety of the decision to modify. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Dudley and Williams were married with a daughter J.W., and lived in Fairfield. They also each had a child from a previous relationship. In March 2014 Dudley filed for legal separation from Williams in Solano County.
The 2014 DVRO
In July 2014, Dudley filed a request for a DVRO against Williams in Sacramento County. She named herself and J.W. as protected parties. In support of her request, Dudley claimed that Williams had sent her harassing texts and called and threatened her. She also alleged past physical violence and injury by Williams.
After a contested hearing on August 8, 2014, the trial court issued a two-year DVRO that covered only Dudley (not J.W.). In addition to other standard provisions, the DVRO required Williams to stay 100 yards from Dudley, her home, her job or workplace, and her vehicle as well as J.W.’s school. (CT 21) The DVRO did not prohibit Williams from contacting Dudley, or from serving her with court papers, and did not require Williams to attend a batterers’ intervention program. No specific findings were made; the court merely wrote that after hearing testimony, the evidence was sufficient to issue the DVRO. Williams moved out of the Fairfield home on August 20.
2014 Contempt Allegations
On December 15, 2014, Dudley filed an order to show cause and affidavit for contempt alleging Williams violated the DVRO by destroying property in the home when he moved out. She claimed that he removed built-in ceiling speakers, leaving holes and wires behind, that he removed several ceiling fans, that he dismantled the automatic garage door opener, and that he fashioned mounds of dirt in the backyard. She also alleged harassing communications in November 2014. She provided the court with copies of text messages as well as photographs of her phone log and the alleged damage to the property.
Williams responded and denied any destruction of property. He claimed that when the parties moved into the home, there were already holes in the ceiling from previously installed speakers; he replaced those speakers with his own and then removed those speakers when he moved out. He admitted removing three ceiling fans he had installed, but denied causing any damage. He denied placing mounds of dirt in the backyard or damaging the garage door opener.
Williams admitted he had contacted Dudley in November 2014, but denied the contact violated the DVRO. The text messages related only to financial matters (checks received at his former address and returned to sender) and information about and from J.W. (their daughter).
2015 Custody Order
On December 3, 2015, the Solano County Superior Court awarded Dudley sole legal and physical custody of J.W. with significant unsupervised visitation time for Williams. The court found that Williams had not overcome the presumption in Family Code section 3044 against awarding joint custody to a parent who had been found to have perpetrated domestic violence on the other parent within the preceding five years. However, the court also found that Dudley’s “decision to not agree to modify the restraining order regarding [Williams’s] dropping off (or pick-up) the child at school also harms the child.” The court opined that forcing Williams to drop J.W. off 100 yards from the edge of a rural school on a country road with busy school traffic did not benefit J.W. or Dudley, and found that it could not rely on Dudley to make decisions on behalf of J.W. that were in her best interest. The court noted that it “underst[ood] that some of its order may require communication or contact between the parties that could be violations or could induce violations of the DVRO restraining orders issued by Sacramento County” and it “urge[d] the parties to address this issue with the court in Sacramento County.”
Request to Modify DVRO
On March 2, 2016, Williams filed a request for order to modify the DVRO to exclude J.W.’s school, appointments, treatments, and other events from the 100-yard stay-away order. Williams attached the Solano County custody order to his request.
2016 Contempt Allegations
On April 11, 2016, Dudley reasserted the contempt violations she had originally alleged in 2014 for property damage and harassing texts, phone calls, and e-mails, and added two new alleged violations. The new charges were that Dudley alleged Williams violated the DVRO by coming within 100 yards of J.W.’s school when he dropped her off and that Williams, his girlfriend, and his family members stalked, harassed, and took pictures of her.
Dudley requested that the court extend the DVRO for five years and filed opposition to Williams’s request to modify. In an attached declaration to the opposition, Dudley made numerous claims of past harassment and abuse by Williams. Williams filed a declaration denying these additional allegations and in May 2016 filed a response to Dudley’s order to show cause and affidavit for contempt. Williams denied the violations.
The Contested Hearing
The court held a contested hearing encompassing the contempt violations, Dudley’s request to extend the DVRO, and Williams’s request to modify it.
Coming within 100 Yards of J.W.’s School
A police officer testified about the allegation that Williams had come within 100 yards of J.W.’s school. He acknowledged his report only estimated the distance was approximately 80 yards from the school. He testified that Dudley had pressured him to call it a violation. The trial court found Williams not guilty.
Stalking and Harassment
Dudley’s 22-year-old daughter testified about the alleged stalking incident. She claimed she and J.W. had encountered Williams’s sister and niece at a restaurant where they were meeting Dudley. She assumed Williams’s relatives were “following [her]”; she testified that Dudley told her she went outside and took pictures of Williams’s family videotaping her. On cross-examination, the daughter admitted that Dudley had been served with contempt papers in the Solano County action while at the restaurant.
Dudley also admitted that she had been served with legal papers at the restaurant. She claimed Williams’s relatives threw the papers at her, while his girlfriend videotaped her. Dudley opined that this incident qualified as stalking, as Williams’s family followed Dudley’s, and the videotaping was harassment.
The trial court found Williams not guilty of contempt and no violation of the DVRO for having Dudley served with legal papers at the restaurant.
Destruction of Property
Dudley testified that Williams removed items from the home and left it in a state of disrepair. The court found that taking ceiling fans or speakers did not constitute destruction of property, although it might require reimbursement to the community property estate. After hearing testimony from Williams that the garage door opener had been broken for months before he moved out, which Dudley claimed was “absolutely false,” the court found Williams not guilty of destroying property. The court acknowledged that, “at the core of it, we have two witnesses that are telling different stories . . . based on how they testified, what they testified to, I have a reasonable doubt.”
Telephone Calls and Messages
Dudley and Williams both testified that Dudley had returned checks sent to Williams at his former address to their sender, and Williams had texted her to determine where the checks were. Williams denied calling Dudley.
The trial court found that Dudley returned the checks to the sender to hurt Williams financially. It concluded that Williams’s texts were polite and not threatening, and that any phone calls that may have been made did not establish a pattern of harassment. The court therefore found Williams not guilty of communications in violation of the DVRO and not guilty of contempt.
Extension and Modification of the DVRO
At the conclusion of the contempt hearing, Dudley’s counsel argued that there were still “continuing issues” between the parties and that the DVRO should be extended for five years to ensure Dudley’s safety and protection. The court disagreed, observing that Williams also had an “OSC re contempt” pending against Dudley in Solano County and that both parties were trying to “put each other in jail” instead of co-parenting J.W., observing that “everything that has been presented today certainly doesn’t provide any basis for the extension of this domestic violence restraining order.”
The parties then addressed Williams’s request to modify the stay-away provision from J.W.’s school so that he could drop off J.W. and attend school events. The trial court eliminated the restriction from the DVRO, but directed the parties to work out Williams’s interactions with J.W. at school with “the [Solano County] custody judge.” The court issued a new DVRO with the requested modification; as before, the order was set to expire August 7, 2016. Dudley timely appealed from the resulting findings and orders, issued July 1, 2016.
DISCUSSION
Dudley first contends the trial court “applied incorrect legal standards” in declining to renew the DVRO. Alternatively, she argues that the court abused its discretion in declining to renew it. We disagree with both assertions.
A. The Law
The Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) exists “to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (§ 6220.) Under the DVPA, a court may restrain a person to prevent a recurrence of domestic violence upon reasonable proof of past acts of abuse. (§ 6300.)
A DVRO “may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.” (§ 6345, subd. (a).)
Importantly, the test for renewing a restraining order is objective. (Lister v. Bowen (2013) 215 Cal.App.4th 319, 332 (Lister); Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) “A trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.” (Ritchie, at p. 1290.)
“When contested, a request to renew a restraining order should not be granted pursuant to section 6345 simply because the requesting party has ‘a subjective fear the party to be restrained will commit abusive acts in the future.’ ” (Lister, supra, 215 Cal.App.4th at p. 332; Ritchie, supra, 115 Cal.App.4th at p. 1288.) “ ‘The “apprehension” those acts will occur must be “reasonable.” That is, the court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is male) in the same circumstances would have a “reasonable apprehension” such abuse will occur unless the court issues a protective order.’ ” (Lister, at p. 332; Ritchie, at p. 1288.)
In determining whether to renew a DVRO, the trial judge “ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire.” (Ritchie, supra, 115 Cal.App.4th at p. 1290.) In some instances, “the underlying findings and facts supporting [the initial] order often will be enough in themselves to provide the necessary proof to satisfy the test.” (Id. at p. 1291.) The restrained party, moreover, “is not permitted ‘to challenge the truth of the evidence and findings underlying the initial order.’ ” (Lister, supra, 215 Cal.App.4th at p. 333.)
“Also potentially relevant are any significant changes in the circumstances surrounding the events justifying the initial protective order.” (Ritchie, supra, 115 Cal.App.4th at p. 1291.) For example, “have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order? Or have there been no significant changes or even perhaps changes that enhance the opportunity and possibility of future abuse?” (Ibid.) The seriousness and degree of risk, such as whether it involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities, are also relevant. (Lister, supra, 215 Cal.App.4th at p. 333; Cueto v. Dozier (2015) 241 Cal.App.4th 550, 560 (Cueto).) The physical security of the protected party, however, “ ‘trumps all of these burdens the original or renewed protective order may impose on the restrained party.’ ” (Lister, at p. 333.)
We review an appeal from an order denying a request to renew a domestic violence restraining order for abuse of discretion. (Lister, supra, 215 Cal.App.4th at p. 333.) “ ‘ “When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ ” (Ibid.) The question of “ ‘whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review.’ ” (Cueto, supra, 241 Cal.App.4th at p. 560.)
B. Analysis
1. Legal Standard
Dudley first argues that the trial court applied an incorrect legal standard when evaluating her DVRO renewal request by: 1) requiring proof of a DVRO violation; 2) failing to properly assess the reasonableness of her fear of future abuse; and 3) “limiting the definition of abuse.” None of her arguments are persuasive.
At the outset, we note (as does Williams) that much of Dudley’s briefing recites events that by her own admission do not appear in the record, specifically, events alleged to have occurred in the years preceding the 2014 issuance of the DVRO. As we noted ante, the transcript of the 2014 hearing is not in the record and the trial court made no specific findings in issuing the original DVRO. Notably, after hearing testimony, the court reduced the term of years from three (sought) to two (issued), reduced the protected parties from two (Dudley and J.W.) sought to one (Dudley) issued, and did not order Williams into a batterers’ treatment program despite allegations of violence in the original application for the DVRO. Nor did the issuing court prohibit contact generally between the parties. We disregard Dudley’s uncited and unsupported allegations contained throughout her briefing, and rely only on the record before us.
Dudley specifically cited the trial judge to the correct legal standard in support of her request for the DVRO’s extension. Section 6345 and Avalos v. Perez (2011) 196 Cal.App.4th 773 discuss the requirements announced in Ritchie for granting a renewed DVRO. In short, the trial court should renew a protective order if “ ‘it finds by a preponderance of the evidence that the protected party entertains a “reasonable apprehension” of future abuse.’ ” (Avalos, at p. 776, citing Ritchie, supra, 115 Cal.App.4th at p. 1290.) We see no indication that the trial court here disregarded that standard after he was expressly advised of it.
Furthermore, while it is true that “a trial court errs when it requires a party to show a violation of the restraining order as a condition to renewing that order” (Cueto, supra, 241 Cal.App.4th at p. 561; Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464), the record does not support Dudley’s contention that the trial court imposed this requirement. Dudley had filed an affidavit of contempt against Williams alleging multiple violations of the 2014 restraining order. It was in that context that the trial court considered whether Williams had violated the DVRO and found he had not.
After acquitting Williams on all the contempt charges, the trial court separately considered the request to renew the DVRO after announcing it would “move on to the next issue.” Dudley’s attorney argued that the evidence presented during the trial had established “the need for a restraining order for [Dudley’s] safety and [] protection and the need for it to be continued” to which the trial court responded, “I don’t find that.” This was a separate finding from the acquittals and the record does not reflect that the trial court inappropriately tied the first finding to the second.
Nor does the record support Dudley’s claim that the trial court erred in evaluating the reasonableness of her fear. Under the applicable objective standard, which we have described ante, the trial court had ample information to conclude that it was not reasonable for Dudley to be in fear of Williams. The court heard and considered all of the circumstances to which Dudley refers. She and Williams had very different views of the circumstances, and the court was entitled to decide which version it found most credible. Although the court did not explicitly recite the test, it found that “everything that ha[d] been presented [during trial] certainly [did not] provide any basis for the extension of th[e] domestic violence restraining order.”
Where, as here, the record lacks express findings of fact or a statement of decision all intendments favor the ruling below and we must assume the trial court made any findings of fact necessary to sustain its order if there is supporting evidence in the record. (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 215.) We are thus bound to assume that after considering all of the evidence the trial court implicitly found that Dudley’s fear of future abuse, even if genuine, was not reasonable under the circumstances. Although Dudley claims in passing that the trial court helped Williams by questioning her about the text messages and phone calls at trial, in reality the exchanges demonstrate the court was trying to evaluate whether Dudley was genuinely and reasonably in fear--the very task required for determining whether to renew a DVRO. (Ritchie, supra, 115 Cal.App.4th at p. 1290.)
The record also belies Dudley’s contention that the court improperly limited the definition of abuse to physical or mental abuse. While it is true that the DVRO’s definition of abuse encompasses acts beyond physical or mental abuse (§§ 6203, subd. (a)(4), 6320, subd. (a)), the record does not show that the court narrowed the definition. Dudley contends there was undisputed evidence that Williams destroyed property as part of his abusive conduct, but this “evidence” was presented at trial and was not undisputed. As the trial court noted, “at the core of it, we have two witnesses that are telling different stories . . . .”
The court considered Dudley’s testimony and other evidence and found no proof of destruction of property by Williams. On appeal, we do not resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence. (In re Stephen W. (1990) 221 Cal.App.3d 629, 642.) We do not substitute our opinion as to the credibility of the witnesses for that of the trial court. (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254.) And, “ ‘[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.’ ” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850.)
Likewise, as we have described ante, the record shows the court thoroughly considered the evidence Dudley presented regarding the text messages she received from Williams and his family’s “stalking” and “harassing” of her and rejected this characterization. “Absent any evidence to the contrary, we presume that the trial court applied the correct legal standard.” (Cueto, supra, 241 Cal.App.4th at p. 561.) We see no evidence to the contrary here.
2. Abuse of Discretion
Dudley next argues that even if the trial court applied the correct legal standard, it nevertheless abused its discretion in denying the renewal. She argues that each of the Ritchie factors--the facts underlying the original restraining order, changes in circumstances, and the burden on the restrained party--all militated in favor of renewing the DVRO. But although Dudley argues that evidence of Williams’s violent past demonstrated she had a reasonable apprehension of future abuse, the evidence taken by the court before issuing the 2014 DVRO is not in the record and was not undisputed in any event. Dudley cites only to the 2014 order itself in her briefing, which does not support her claims of proven physical abuse. As we have discussed, there is no transcript of the 2014 hearing and the trial court made no specific findings in issuing the original DVRO. The DVRO actually issued suggests that the facts argued in Dudley’s briefing were not found; it was a two-year order of limited scope that did not prohibit contact or require batterers’ program attendance.
To the extent that Dudley argues any facts that were actually raised in the 2016 hearing, these facts were disputed and, as we have discussed, it was not unreasonable for the trial court to credit Williams’s evidence over Dudley’s. We assume that the court impliedly did so. (Phillips v. Campbell, supra, 2 Cal.App.5th at pp. 849-850 [appellate court resolves all factual conflicts and questions of credibility in favor of the prevailing party]; In re Stephen W., supra, 221 Cal.App.3d at p. 642 [appellate court does not resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence].)
Dudley next argues against changed circumstances, asserting that because she and Williams live within 50 miles of one another and have to co-parent their minor daughter, that opportunities to harass her still abound. The evidence showed, however, that the parties’ marital home had been sold, that they no longer lived in the same city, and that they often relied on family members and friends to assist in custody exchanges. Dudley even presented evidence that their child exchanges “went well.” She also testified that she and Williams no longer spoke. We cannot say that the court’s implied finding of changed circumstances was unreasonable. (See Ritchie, supra, 115 Cal.App.4th at p. 1293 [court should have considered changed circumstances in determining whether to grant renewal request; three years after the order’s initial issuance both parties were married to other people and one party had moved out of state].)
Dudley finally contends that any burden on Williams was irrelevant since she had a reasonable apprehension of physical abuse. (See Ritchie, supra, 115 Cal.App.4th at p. 1292 [“the physical security of the protected party trumps all of these burdens the original or renewed protective order may impose on the restrained party”].) She adds that Williams never cited to any burden resulting from the DVRO.
As we have discussed, the trial court implicitly found that Dudley’s apprehension of physical abuse was unreasonable, and substantial evidence in the record supports that finding. Assuming Dudley was physically secure from Williams, the court could properly consider the obvious burden on Williams pertaining to his relationship with J.W. when deciding whether to renew the order. (Ritchie, at p. 1292 [“Where the worst ‘danger’ the protected party must fear is a few unwanted calls or letters or email messages, the court may have to weigh the seriousness as well as the degree of the risk against the significance of the burdens the restrained party will experience if subjected to a continuing protective order”].)
But even if the burden on Williams was a non-factor, it was within the trial court’s discretion to conclude that the other Ritchie factors did not favor renewing the DVRO.
We find no abuse of discretion.
3. Modification
The DVRO has now expired by its own terms, and we have concluded the trial court was within its discretion to decline to renew it. The claim that the modification was error is therefore moot, and we do not address it here. (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 [“an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events”].)
DISPOSITION
The order denying Dudley’s request to renew the domestic violence restraining order is affirmed.


/s/
Duarte, J.

We concur:



/s/
Mauro, Acting P. J.



/s/
Murray, J.