FAMILY LAW COURT ORDER NOT ENOUGH TO ESTOP WIFE FROM SUING EX FOR DOMESTIC VIOLENCE

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If he continuously commits acts of violence against his ex wife, she should be able to go after him with a legal vengeance.  And the California appellate courts agree.  In its wisdom, the Golden State’s highest court has held that despite the fact Wife went after Husband in family law court, and was awarded spousal support, she is not collaterally estopped (prevented) by res judicata from filing a tort action against her former Husband based on his alleged acts of domestic violence against her. In the case of Boblitt v Boblitt (2010) 190 CA4th 603, 118 CR3d 788, Wife, at the couple’s divorce trial, claimed that her Husband had been physically and mentally abusive for decades, from the time before they were married up until after the dissolution was filed.  She further claimed that injuries resulting from the abuse had impaired her ability to work. The trial judge indicated that he considered her allegations in reviewing the factors set forth in Family Code §4320 affecting spousal support and stated in his statement of decision that he had trouble with Wife’s credibility relating to some of the alleged incidents.  The family court judge then went on to state that, although Wife had also requested she be repaid for “past medical bills, future medical bills, counseling and alleged pain and suffering,” he felt her spousal support award was appropriate.  When a judgment on reserved issues was entered in the family law court, the wife requested reconsideration and then, when that was unsuccessful, appealed the judgment. In a civil action, Wife later sued Husband for damages based on domestic violence, assault and battery, and negligent and intentional infliction of emotional distress, as well as other causes of action.  Husband moved for judgment on the pleadings, claiming that all of Wife’s claims had been or could have been tried in the family law case and that the family law court had denied Wife most of the relief she had requested there. Wife opposed Husband’s motion, first by arguing that the family law judgment, being on appeal, was not a final judgment, and second, by arguing that the domestic violence cause of action was “not tried in the dissolution action.”  The trial court in the tort action granted Husband’s motion based on collateral estoppel or res judicata. The appellate court reversed.  It found Wife to be correct on both counts in her tort action.  The panel pointed out that even had the family law judgment on reserved issues been final, Wife’s second argument remained valid.  The appellate court found that Wife’s tort action was based on “the primary right to be free from personal injury,” while the right to spousal support from a former spouse was based on the trial court’s consideration of numerous factors, one of which is a history of domestic violence.  Also, the family law judge’s failure to award Wife some of the relief she requested, such as for past and future medical bills, counseling, and alleged pain and suffering, did not have a preclusive effect, because that judge had no power to award such relief in a divorce case.

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UNDER CAL. FAMILY CODE RESTRAINING ORDER MUST RENEW TO 5 YEARS

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Another important case has recently been handed down that affects the way restraining orders are issued.  In Avalos v. Perez (2011) 196 CA4th 773, 127 CR3d 106, California’s appellate courts held that a trial court should have renewed a restraining order that was supposed to expire after two years for a full 5 years under the authority of California Family Code §6345(a). Factually, the case involved a woman who had obtained a two-year restraining order against her former boyfriend in 2008.  In 2010 she petitioned the court for a 5-year extension of that order, claiming that the boyfriend now knew where she worked and that she feared he might again contact her.  Her motion to renew the order went unopposed, yet the trial court renewed the order for only two years.  The plaintiff did not object thereto at trial, but appealed afterwards. In its wisdom, California’s court of appeal held that the trial court should have renewed, under the authority of Family Code §6345(a), the restraining order for a full 5 years.  The code mandates that such orders be renewed, on a party’s request, “either for five years or permanently, without a showing of any further abuse since the issuance of the original order.” In the case at hand, although plaintiff did not object at trial to the 2-year extension and ordinarily would have forfeited her right to appeal that issue, the appellate court determined that it had discretion to address the appeal if there was only a question of law involved or the matter involved public interest or policy.  The case was remanded by the appellate court back to the trial court with instruction to extend the order to a date certain in 2015.

CHILD SUPPORT ORDER SURVIVES DISSOLUTION OF TEMPORARY RESTRAINING ORDER

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Another important case was recently decided by the California Appellate courts which declared that the trial court’s jurisdiction to make child support orders survives the dissolution of a temporary restraining order.  The facts behind Moore v. Bedard (DCSS) (2013) (Cal.App.4th) are as follows:

Wife requested domestic violence restraining orders to protect her from her Husband who was the father of their three (3) children.  Her request for DVPO’s also asked for child custody, visitation, and child support orders that would modify orders previously entered.  A TRO was entered but never served.  When the matter came on for hearing the parties stipulated to orders that dissolved the temporary restraining order.  The stipulation also resolved child support issues and other monetary issues.

Three years later, the Riverside County DCSS filed a substitution of payee form designating it as the payee of child support.  In 2010 and early 2011, various enforcement actions, including a bank levy, were undertaken and several hearings were held.  Two years after that, Husband filed a request for a hearing to modify child support.  There, the trial court found there were no restraining orders in place and dismissed the case.  Regarding child support, the court referred the parties to DCSS, and it ordered the entire action to be dismissed.

DCSS then moved to vacate the order dismissing the action, noting Husband had taken the position that there was no valid support order because the entire action had been dismissed.  At the hearing, the trial court concluded that it had lost jurisdiction 5 years earlier when the requested restraining order was not issued.  The trial court “voided” the parties’ stipulation and the orders entered the previous year.  The trial court ruled it had lost jurisdiction to make a child support order because it did not issue a restraining order.

Nevertheless, the trial court set aside the order of dismissal on the ground DCSS was not represented at the hearing.  DCSS appealed and it was reversed.  The appellate court ruled it to be an error to dismiss the action for a lack of jurisdiction.  The court had jurisdiction to make child support orders, and such jurisdiction survived the “dissolution” of the TRO.

TWO CASES THAT HELP DEFINE DOMESTIC ABUSE IN CALIFORNIA

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An important case has come down that helps clarify the necessary elements to be plead by the aggrieved party in a domestic violence case.  In Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, a California appellate court reversed a lower court’s ruling to dismiss a mother’s application for restraining orders under the Domestic Violence Prevention Act (DVPA).  Upon determining the pleaded facts to be insufficient in constituting abuse within the meaning of the DVPA, the trial court granted father’s motion for judgment on the pleadings.

In its assessment of whether mother pled facts sufficiently, the appellate court adopted the Oxford English Dictionary Online definitions of “disturb” and “peace”, as in “disturbing the peace of the other party,” which is conduct subject to restraint pursuant to the Domestic Violence Prevention Act.  The appellate court concluded that disturbing the peace means “conduct that destroys the mental or emotional calm of the other party.”  Based on that definition, mother’s pleading was in fact sufficient.

Another important case in this area is S.M. v. E.P. (2010) 184 Cal.App.4th 1249).  In this case, the California appellate court confronted the issue of whether a trial court’s finding that father badgered mother was legally sufficient to support issuance of a restraining order.  The appellate court concluded it was not and reversed.

SURRENDER TO ALL THAT IS WHEN IT COMES TO FAMILY

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There is no greater relief in life than to surrender to all that is.  It is a way to bring to an end all the personal suffering.  It provides the opportunity to quit fighting whatever it is we’re in denial of.  It gives us the chance to move forward in a positive light, rather than dwelling on the negativity that can plague and hamper us.  And there is no greater arena than family when it comes to applying this golden law of acceptance.

In essence, yes, we’re talking about raising the white flag to whatever troubles us or our family peace.  If it’s the wife who seems to go off the deep end every time we leave our underwear in the wrong place, then so be it.  Or if it’s a child’s inability to sit down and do the work that we require them to do, we must learn to accept that too.  Surrendering means that we take whatever falls our way, and we accept it, without judgment or limitation.

We stop fighting whatever it is our ego has dug into and readied for battle.  This allows us to then eliminate all the negative energies we spend in trying to correct a situation that is beyond our ability to control.  For parents, surrender allows us to begin again in communicating with our children in an effort to resolve our differences.  We do so without butting the heads of our egoic minds.  When we operate from the ego, it’s usually out of a place of unhappiness or dissatisfaction.  We’ve made a judgment that a situation or condition is untenable, and we battle it, according to our built-in emotional and mental reaction patterns.

We’ve all experienced this.  Where a little disagreement will set us off in an emotional frenzy.  Where our pent up angers are used to fix a situation, yet, they instead generate more turmoil than the original problem had.  The key with surrendering is that it allows us to keep our highest energies in reserve for problem solving times.  Most of us fight our problems with ill will and reserved anger, which only creates more problems, and more negative energy to deal with.

Children also need to learn to accept the fact that parents might be aggressive, loudmouthed, or perpetual drunks.  They can’t fight it head-to-head with their own negative emotions, because things then begin to spiral out of control in a very negative manner.  Feelings or bodies get hurt.  The family structure begins to crumble.  And violence and anger and negative reaction patterns are used to deal with all issues, creating more problems for all concerned. Like their parents, kids too need to learn to allow for the fact that a parent may be way off base, and then learn to use their best energies in trying to solve the problem.  They need to surrender to what is, and apply only the highest vibrating qualities when they attempt to resolve whatever ails them.