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Marriage of Fregoso and Hernandez Summary


Opinion published November 16, 2016


Factual Background


Marriage of Fregoso and Hernandez concerned a domestic violence restraining order (DVRO).  Husband sought a dissolution.  In response, Wife filed a request for a DVRO.  The basis, Husband grabbed, pushed, and held Wife’s head to where she could not breathe.  On one occasion Husband repeatedly hit the parties’ daughter with a belt.  In his response, Husband denied Wife’s allegations.  Instead, Wife was the aggressor.  She threw boiling water at him.  Husband never hit the parties’ daughter. The court issued a temporary restraining order (TRO)


At the hearing on Wife’s request, Wife collaborated her declaration testimony.  However, while on cross-examination, Wife conceded her and husband had sex since the court issued the TRO.  She explained this was a pattern.  Husband provided her gifts.  Then they often reconciled and had sex.  Husband instead testified Wife hit and harassed him on many occasions and sought the DVRO to retaliate for the dissolution. 


Trial Court’s Order


After hearing the parties’ testimony the court found good cause to grant the request for a permanent restraining order.  Husband appealed


Decision on Appeal


First in its analysis, the court of appeal summarized the domestic violence prevention act’s general background.  Second, it resolved to review the trial court’s order under a hybrid abuse of discretion and substantial evidence test.  Husband’s argument Wife’s lack of fearfulness (consensual sex) justified reversal was meritless.  The conclusions he drew from his own testimony were certainly not unreasonable.  However, “[w]hen 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.”  The court of appeal must credit Wife’s testimony on appeal and it alone was substantial enough to order a DVRO.  The court affirmed.

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