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Perez v. Torres-Hernandez Summary

 

Opinion published June 9, 2016

 

Factual Background

 

Perez v. Torres involved Mother’s request to renew a domestic violence restraining order against Father.  Mother filed her original request for a DVRO back in 2010 and requested protection for herself and children.  Father said he was going to kill her and take the children away, yelled in front of the children, and broke into Mother’s house multiple times.  The court issued a three-year restraining order.  The court later modified the order to limit Father’s contact with the children after he physically abused them.

 

A few years passed.  Mother then requested the court renew the restraining order permanently.  Even with the prior order in place, Father continued to threaten her.  He also abused the children.  Father responded the criminal case for his conduct against his daughters had been dismissed because his daughter was too scared to testify against him. 

 

Mother sought to testify regarding Father’s abuse towards the children.  The court stated the testimony was irrelevant but permitted her to testify nonetheless.  She stated Father hit the children, harassed her, and Mother feared for her safety. 

 

Trial Court’s Order

 

The trial court denied Mother’s renewal request.  Father did not perpetrate actual abuse against her since the original restraining order.  If there was any abuse, Father directed it towards the children, not Mother.  Abuse towards Mother was what was relevant.  Although Father did phone and text Mother, that did not rise to the level of abuse.  Finally, the court did not consider Mother’s request to modify the DVRO to include the children. 

 

Decision on Appeal

 

        Renewal of a DVRO did not require proof of abuse since last order

 

The Court of Appeal employed the abuse of discretion test on appeal.  The failure to apply the proper legal standard was an abuse of discretion.  In analyzing whether such abuse occurred, the court first cited Family Code section 6345 in great length.  In part, that section stated, “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. . .”  (italics in original.)

 

In light of section 6345, the trial court erred when it required Mother to provide evidence of actual acts of abuse committed after the original order whet into effect.  “A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit of past abuse.”  The focus was properly upon whether the protected party had a reasonable fear of future abuse.

 

        Abuse is not restricted to physical violence but may include harassment and annoyance

 

The trial court erred in a second respect as well.  It believed only physical violence inflicted against Mother could sustain a renewal.  That was incorrect.  The DVPA was much broader and enjoined annoying or harassing an individual.  Father’s repeated phone calls and other behavior fell well within harassing behavior. 

 

        Evidence of abuse against the children is relevant

 

Finally, the trial court erred a third time when it determined Father’s abuse of the children was irrelevant.  The Court of Appeal did not agree.  Abuse of the children is certainly germane when the statute itself defined abuse as “placing ‘a person in reasonable apprehension of imminent serious bodily injury to that person or to another.’ ” (emphasis in original.)  Here, Father abused the children and that was enough to issue a restraining order and certainly relevant.

The Court of Appeal reversed and remanded for the trial court to determine whether a five year or permanent restraining order was appropriate.   

 

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(858) 274 3538

 

Dennis Temko, Esq.

Law Office of Stephen Temko
750 "B" Street Suite 2100
San Diego CA, 92101

 

 

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