California Divorce Blawg

Guilty Until Proven Innocent

Here are the facts of a disturbing case out of Los Angeles County.  It is not a divorce case per se, but the story emanates from a divorce.

The opinion deals with Jon suing his ex-wife Alice for her filing of a false police report against him.  Alice was trying to get the case thrown out, but was unsucessful.  It is the facts behind the false police report that are stunning.

Jon and Alice married in August 1995; they have two minor children. Over a period of years prior to August 2005, Alice began reading books on the subjects of divorce and money, including at least one book which included information about using false criminal accusations against a spouse in a divorce proceeding. During the same time period, Alice and Toothman conspired to bring false criminal accusations against Jon. On August 17, 2005, in furtherance of the conspiracy, Alice reported to a sheriff deputy that Jon had recently threatened to kill her and their children, and Toothman confirmed Alice’s criminal report to the deputy.

On August 26, 2005, authorities with the Sheriff’s Department, acting in reliance upon the criminal reports from Alice and Toothman, filed a criminal case against Jon, charging him with a violation of Penal Code section 422, making a criminal threat. The charge was tried to a jury and Jon was found not guilty.

At the time of the verdict, the jurors, acting of their own volition, selected the jury foreperson to read the following statement into the record:

“We, the jury, believe that the absence of any real investigation by law enforcement is shocking and we agree that this appears to follow a rule of guilty until proven innocent. There was no credible evidence supporting the indictment. We believe prosecuting this as a crime was not only a waste of time, money, and energy, for all involved, but is an affront to our justice system. This jury recommends restitution to the defendant for costs and fees of defending himself against these charges. This jury requests that our collective statement be made available in any [future] legal action relating to these parties. . . .”

The judge who presided over Jon’s criminal trial granted Jon’s motion for a finding of factual innocence pursuant to Penal Code section 851.8, subdivision (e).

Really people?  Wow!  Shame on Alice and the police and District Attorney.  Not much more that I can say.  Download Lefebrve.

Please click here to visit the Harding & Associates website, and for more information on California family law.

Service of Process Rules for Domestic Violence Restraining Orders

An unpublished opinion out of Los Angeles County gives us a refresher on serving domestic violence restraining orders on the defendant.

Shaun got  an ex parte domestic violence restraining order against Mark.  The requisite follow-up hearing was scheduled for January 21, 2010.  Shaun served the orders and notice of hearing on Mark on January 19, 2010.  Mark did not appear at the January 21st hearing.  On the 21st the court continued the hearing to February 5.  There was no adequate proof that Mark was ever served with notice that the new hearing date was February 5th (the record is also unclear as to whether or not the court reissued the restraining orders at the January 21st hearing).  Mark did not appear at the February 5th hearing, and the court made the temporary orders permanent.

Mark then appealed the issuance of the permanent restraining order.  He argued that he had not been timely served with the orders and notice of the January 21st hearing, and that he had not been served with notice of the continued February 5th hearing.  The Court of Appeal agreed and reversed the restraining order. The decision was based on the fact that temporary restraining orders must be served on the defendant at least five hays before the hearing, and that the defendant must have been served with notice that the January 21st hearing was continued to February 5th.  Mark was served with the restraining orders only two days before the January 21st hearing, and he received no notice of the continuance of the January 21st hearing to February 5th.

Please click here to read the original opinion from the Court of Appeal.

Another interesting note about this case.  Look at the relevant dates:  January and February of 2010.  The appellate decision reversing did not get issued until April 11, 2011.  A full 1 year and 2 months later.  Presumably Mark was forced to endure an unlawful restraining order for 14 months while the case worked its way through the appellate process.  Talk about frustrating!

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

 

Due Process in Domestic Violence Cases

An unpublished opinion out of Place County provides important information regarding what is required at a domestic violence hearing before the Court renews a permanent domestic violence restraining order.

Mother applied for the renewal of a restraining order against father.  During a short cause hearing the Court denied father's counsel's request for an evidentiary hearing.  No oral testimony was allowed at the hearing.  Relying only on the arguments of counsel and the written motion filed by wife, the trial court renewed the restraining order.  Father appealed, and won. The Court of Appeals writes:

Renewal of DVPA restraining orders is governed by section 6345.[1]  The statutory construction of section 6345 was addressed in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie).  Ritchie involved an order granting renewal of a DVPA restraining order.  The appellate court reversed the renewal of the restraining order on grounds that the trial court erroneously concluded that renewal was required upon mere request of a protected party.  (Id. at p. 1284.)  Ritchie held that when the restrained party contests the extension, “[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.”  (Id. at p. 1290.). . . .

Even so, the restrained party is entitled to adduce evidence addressing whether there are “significant changes in the circumstances surrounding the events justifying the initial protective order.  For instance, 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?”  (Ritchie, supra, 115 Cal.App.4th at p. 1291.)

     In presenting evidence to oppose renewal of a DVPA restraining order, the trial court may not bar the restrained person from introducing witness testimony.  (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 (Ross).)  The Ross court reversed the renewal of a DVPA restraining order after the restrained person was not given the opportunity to adduce oral testimony prior to the renewal.  (Id. at pp. 865-866.)  As the Ross court explained, the lack of an evidentiary hearing with oral testimony failed to comport with the restrained person’s due process rights.  (Ibid.)  Because Ross involved the informal proceedings often conducted when all parties are self-represented, the appellate court admonished that “the referee should have advised [respondent] he could provide oral testimony . . . .”  (Id. at p. 866.)  As the Ross court noted, respondent “certainly could have testified himself and raised questions to be posed to Ross, had the referee advised him of his right to do so.”  (Ibid.)

Here, both mother and father were represented by legal counsel who acted zealously to protect the rights of their clients.  Nonetheless, father’s due process rights entitled him to an evidentiary hearing in which he could present oral testimony and documentary evidence in opposition to mother’s renewal request. [emphasis added]  (Ross, supra, 139 Cal.App.4th at p. 866.)

The appellate court makes clear:

When a party is entitled to an evidentiary hearing, a court may not substitute declarations for the testimony of witnesses.  As the California Supreme Court noted, in a case in which the trial court “called for the admission of declarations in lieu of direct testimony at trial,” “[i]t is well established . . . that declarations constitute hearsay and are inadmissible at trial . . . .”  (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 (Elkins).)  As the Elkins court went on to explain, “Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact.  (See Evid. Code, §§ 711, 780; Code Civ. Proc., §§ 2002, 2005.) . . .

The Court of Appeals then order the case back to the trial court for a full evidentiary hearing.

Please click here to read the original, unpublished opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

 

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[1]  In pertinent part, section 6345 provides:  “(a) 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 under this article may have a duration of not more than five years, 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.  These orders 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.  [¶]  (b) Notwithstanding subdivision (a), the duration of any orders, other than the protective orders described in subdivision (a), that are also contained in a court order issued after notice and a hearing under this article, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects.”

Spouse Who Is Awarded Spousal Support Because Of Domestic Violence Can Also Sue For Tort Damages

Linda and Steve got a divorce.  During the divorce Linda proved that she was the victim of domestic violence at the hand of Steve.  In part because of the domestic violence finding, the family law judge order Steve to pay spousal support to Linda.  Linda then filed a personal injury lawsuit against Steve, arising from the domestic violence.  Steve tried to block the personal injury suit by arguing that Linda had already been compensated through the award of spousal support in the dissolution action (for all you lawyers out there he argued "res judicata/claim preclusion").

According to the Court of Appeals Steve's argument fails.  The two claims were separate and distinct.

A tort action like the present one is based on “the primary right to be free from personal injury” (no matter how many different tort theories may be alleged). (Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, 399.) “It is clearly established that ‘. . . there is but one cause of action for one personal injury [which is incurred] by reason of one wrongful act.’” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) There is no sound basis, however, for concluding that a claim for spousal support in a marital dissolution proceeding is also based on “the primary right to be free from personal injury,” even if one of the circumstances the family court considers in adjudicating that claim is domestic violence between the parties.

The Family Code recognizes that a person has a right to spousal support from his or her former spouse under certain circumstances. Specifically, subdivision (a) of Family Code section 4330 provides that “[i]n a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320).” One of the many circumstances set forth in Family Code section 4320 is “[d]ocumented evidence of any history of domestic violence . . . between the parties.” (Fam. Code, § 4320, subd. (i).)

In our view, this provision, which requires a family court to consider evidence of domestic violence in determining whether an award of spousal support is appropriate, and if so, how much support is just and reasonable, does not seek to vindicate the primary right to be free from personal injury, as a tort action for domestic violence does. Rather, subdivision (i) of Family Code section 4320 is just one of many provisions that exist to vindicate the primary right of a party in a marital dissolution (or legal separation) proceeding to obtain spousal support from the other party if the circumstances justify such support.

Because the same primary right does not underlie a request for spousal support in a marital dissolution proceeding and a tort action for damages, the doctrine of claim preclusion does not preclude a person from offering evidence of domestic violence in connection with a request for spousal support in a dissolution proceeding, then suing for damages for domestic violence, or vice versa. Accordingly, a judgment in a dissolution proceeding where claims of domestic violence were (or could have been) litigated with relation to a claim for spousal support does not preclude a later tort action for domestic violence.

Please click here the read the Court's opinion.

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California Courts Maintain Stellar Divorce Self-Help Website

There is an abundance of good, free family law information on the internet.  If you have questions about the process in California, one of the best resources that I have come across is the California Courts Self-Help Center.  This site covers the California process from A to Z, and is definitely worth your time.

Click here to visit the site.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Accessing spouse's e-mail is grounds for Domestic Violence Restraining Order

Husband was found to have accessed wife's e-mail account, used information from that account to keep track of her, and publicly disclosed confidential information that he had gotten from the e-mail account.  The court determined that this conduct was sufficient to support the issuance of a restraining order under California's Domestic Violence Prevention Act.

Please click here to read the Court Opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.