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In re Marriage of Evilsizor Summary


Opinion publishd 6-25-2015


Factual Background


In In re Marriage of Evilsizor, Husband and Wife married in 2010.  Wife gave birth to a daughter two years later.  Husband then grew suspicious the child was not his.  His suspicions arose from a message he read on his stepson’s phone (Wife’s son from a prior marriage).  To gain more information, Husband downloaded the contents from Wife’s two phones and examined it.  He obtained thousands of text messages and Wife’s diary. 


Around three months later, Husband disclosed sensitive information to Wife’s father.  Wife was “very upset and shocked.”  The parties soon separated and dissolution proceedings commenced.  In opposition to Wife’s request for support, Husband attached text messages to strengthen his position.  Wife filed for a DVPA restraining order in response.  Husband’s digital snooping caused Wife extreme embarrassment.  She also alleged Husband sought to gain an advantage in the dissolution with threats to disclose more information.  The issue was set for trial.  Husband later disclosed further sensitive information to a child custody evaluator.   


Trial Court’s Ruling


 Trial commenced in April 2014.  Wife described the emotional toll Husband’s actions took on her.  When Husband disseminated Wife’s personal information it caused her sleepless nights, embarrassment, and made her sick to her stomach.  The court did not reach the question whether Husband’s access was illegal.  However, the court found it was authorized to enjoin further disclosure to protect Wife’s “peace of mind.”  A protective order issued.  Husband appealed. 


Decision on Appeal


The Court of Appeal found Husband’s actions constituted abuse under the DVPA.   To reach its decision the court examined the act.  Section 6320 prescribed enjoinable behavior as that which “disturbs the peace of the other party.”  Further, the plain meaning of “disturbs the peace” is conduct which destroys “mental or emotional calm.”  When Husband disseminated details of Wife’s private life he committed abuse as defined in the DVPA.  The court rejected Husband’s argument a finding of past physical abuse was required to enjoin his behavior under Nadkarni.  It also rejected Husband’s invitation to reweigh credibility.


Husband additionally argued the restraining order was an improper prior restraint on free speech.  His argument was not persuasive.  The court noted in Husband’s favor that prior restraints on free speech were the most serious and least tolerable infringement on First Amendment rights and that injunctions on speech were classic prior restraints.  However, the right to free speech was not absolute.  The trial court implicitly found Husband’s speech imparted no exposition of ideas, was of slight social value, and clearly outweighed by social order and morality.  The Court of Appeal declined to disturb the trial court’s exercise of discretion.  Husband’s attempt to place his case in the same apple cart as cases with great social importance was unavailing.  Finally, Husband was afforded an entire trial.  It was not like cases where speech was restrained prior to trial. 


The Court of Appeal affirmed the trial court’s order.  Wife was awarded costs.


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