Unpublished family law case: five year restraining order may be renewed permanently without showing of additional abuse, including modification of custody and visitation.

http://www.courts.ca.gov/opinions/nonpub/C069109.PDF

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
—-
VANI WILLIAMS,
Plaintiff and Respondent,
v.
KIRK DOUGLAS WILLIAMS,
Defendant and Appellant.
C069109
(Super. Ct. No. 06DV01011)

Defendant Kirk Douglas Williams, father, appeals in propia persona from an
August 10, 2011 restraining order entered against him pursuant to the Domestic Violence
Prevention Act (DVPA). (Fam. Code, § 6200 et. seq.)1 Father is currently serving a
sentence in state prison for a conviction on multiple counts related to domestic violence
against his ex-wife, Vani Williams, mother. Mother obtained a five-year restraining
order against father following a hearing pursuant to the DVPA, and shortly before its
1 Further undesignated statutory references are to the Family Code.
2
expiration, she applied for renewal. Following a hearing, at which defendant did not
appear, the court issued an order permanently renewing the prior restraining order against
father and enjoining him from contacting, striking, harassing, threatening, or coming
within 100 yards of mother or their two children. As part of the renewed restraining
order, the court attached a Child Custody and Visitation Order, granting mother sole legal
and physical custody of the parties’ two minor children and denying father visitation.
In his brief on appeal, father contends the trial court abused its discretion in
issuing the order denying him child custody and visitation.2 Father’s brief contends that
he did not attend the hearing on mother’s request to renew the DVPA restraining order
because he was not served with notice of the request and hearing date. However, the
Proof of Service indicates that father was served. Father further contends that he was
granted reasonable visitation during the separate marital dissolution proceedings, which
he asserts conflicts with the DVPA custody and visitation order. Yet he does not provide
any evidence to support this contention. We conclude that the trial court did not abuse its
discretion in entering a permanent restraining order against father upon mother’s
uncontested request for renewal. Nor did the court abuse its discretion in entering the
custody and visitation order.
We affirm.
2 Mother did not file a respondent’s brief. When no respondent’s brief is filed, we may
decide the appeal on the record, the opening brief, and any oral argument by appellant.
(Cal. Rules of Court, rule 8.220(a)(2).) A respondent’s failure to file a brief does not
require an automatic reversal. (In re Marriage of Davies (1983) 143 Cal.App.3d 851,
854.) Notwithstanding mother’s silence on appeal, father still has the affirmative burden
to show error. Therefore, this court reviews the record and reverses only if prejudicial
error is found. (Ibid.)
3
FACTUAL AND PROCEDURAL BACKGROUND
Father has elected to proceed with his appeal on a clerk’s transcript. (Cal. Rules
of Court, rules 8.121, 8.122.) Thus, the appellate record does not include a reporter’s
transcript of the hearings in this matter. This is referred to as a “judgment roll” appeal.
(Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083 (Allen); Krueger v. Bank of
America (1983) 145 Cal.App.3d 204, 207.)
The limited record we have establishes that mother sought a domestic violence
restraining order against father,3 and after a hearing on July 24, 2006, the trial court
issued a five-year Restraining Order After Hearing, enjoining father from contacting,
striking, harassing, threatening, or coming within 100 yards of mother or their two
children. As a part of the restraining order, the court also issued a Child Custody and
Visitation Order granting mother sole legal and physical custody of the two minor
children and denying father visitation pursuant to sections 3064, 6323, and 6346. The
court also ordered father to attend a 52-week batterer intervention program and show
written proof of completion to the court.
Father contends that at some point after this restraining order was issued, mother
filed for dissolution of the marriage in Sacramento County Superior Court case number
09FL06635. Father concedes that he defaulted in the dissolution case, and judgment was
entered in mother’s favor. However, father contends that mother’s petition requested that
he be granted reasonable visitation with the children and that “the dissolution matter
3 Although there is no reference to father’s conviction in the record or whether the
domestic violence involved the children, father concedes in his opening brief that he was
convicted of four felonies related to an episode of domestic violence: spousal abuse,
assault with a deadly weapon, false imprisonment, and making criminal threats. Father
also alleges that there was a protective order in place related to this conviction, but
mother requested that the protective order be lifted so that the children could visit father
in prison. However, the record before us does not contain evidence to support his
assertion.
4
granted reasonable visitation.” There is no evidentiary basis for these assertions in the
record before us.
On July 20, 2011, shortly before the five-year restraining order was scheduled to
expire, mother filed a Request to Renew Restraining Order, alleging that she was still
afraid of father. Father did not appear at the August 10, 2011, hearing on the renewal,
otherwise contest mother’s renewal request, or request a continuance. Following the
hearing, the trial court granted mother’s request and issued a permanent Restraining
Order After Hearing pursuant to section 6345, subdivision (a), which again included a
Child Custody and Visitation Order awarding full custody to mother and denying father
any visitation.
The Proof of Service for mother’s request and the notice of hearing attests that a
Solano County Sheriff’s deputy served father by serving the Litigations Coordinator at
the California Medical Facility in Vacaville on August 3, 2011. Despite the Proof of
Service, father disputes that he was served prior to the hearing. At one point in his brief,
he asserts that he had been transferred to Salinas Valley State Prison on April 5, 2011,
and consequently, received service after the hearing. At another point in his brief, he
says he “has never had the opportunity to present his side of the events because service of
process would be given to prison officials and they would never provide the legal
documents to defendant in a timely manner where it would afford defendant time to
respond.” However, father did not file a motion to modify or terminate the order after its
issuance as expressly authorized by statute. Thus, the record before us does not provide
evidence supporting the factual assertions he makes in his brief on appeal.
DISCUSSION
I. Standard of Review and Rules of Appellate Procedure
We review the trial court’s renewal of a domestic violence restraining order under
the abuse of discretion standard to determine whether the trial court exceeded the bounds
of reason. (Lister v. Bowen (2013) 215 Cal.App.4th 319, 333.)
5
“ ‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham), original italics.)
Accordingly, we must adopt all inferences in favor of the judgment, unless the record
expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) It is an
appellant’s burden to affirmatively show error by citing an adequate record to support his
summary of the facts and legal authority to support each analytical point made;
otherwise, the point is forfeited. (See, e.g., Hernandez v. California Hospital Medical
Center (2000) 78 Cal.App.4th 498, 502.) Further, it is an appellant’s burden to provide
an adequate record of the proceedings in the trial court to assess claims of error.
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is “on the
judgment roll” (Allen, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively
presume evidence was presented that is sufficient to support the court’s findings (Ehrler
v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler)), and our review is limited to
determining whether any error “appears on the face of the record.” (National Secretarial
Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule
8.163.) These restrictive rules of appellate procedure apply to father even though he is
representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991)
234 Cal.App.3d 117, 121; see also Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
Father’s appellate brief lacks both citations to pertinent authority and a coherent
legal argument. (See Cal. Rules of Court, rule 8.204(a)(1)(B)-(C).) Although father
appears in this court without counsel, that does not entitle him to special treatment. (See,
e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) “ ‘A litigant has a right to
act as his own attorney [citation] “but, in so doing, should be restricted to the same rules
of evidence and procedure as is required of those qualified to practice law before our
6
courts, otherwise, ignorance is unjustly rewarded.” ’ [Citations.]” (Doran v. Dreyer
(1956) 143 Cal.App.2d 289, 290; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284
[“[I]n propria persona litigants are not entitled to special exemptions from the California
Rules of Court or Code of Civil Procedure.”].) “To demonstrate error, appellant must
present meaningful legal analysis supported by citations to authority and citations to facts
in the record that support the claim of error. [Citations.]” (In re S.C. (2006) 138
Cal.App.4th 396, 408 (In re S.C.).) We disregard claims perfunctorily asserted without
development. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
1830-1831, fn. 4.)
II. Domestic Violence Prevention Act
The DVPA authorizes the trial court to issue a restraining order “for the purpose of
preventing a recurrence of domestic violence and ensuring a period of separation of the
persons involved, if an affidavit…shows, to the satisfaction of the court, reasonable proof
of a past act or acts of abuse.” (§ 6300; see also § 6220.) A restraining order may issue
under the DVPA either “enjoining specific acts of abuse,” “excluding a person from a
dwelling,” or “enjoining other specified behavior,” and the order may issue ex parte, after
notice and a hearing, or in a judgment. (§ 6218.) The DVPA further authorizes the trial
court to make an ex parte order “determining the temporary custody and visitation of a
minor child” (§ 6323, subd. (a)(1)), provided the party seeking the temporary order has
established a parent-child relationship by one of the means specified in the DVPA, which
includes proof the party gave birth to the child. (§ 6323, subd. (a)(2)(B)(i).) Section
6340, in turn, authorizes the court, after notice to the party to be restrained and a hearing,
to issue “any of the orders described” in sections 6320 through 6327 and directs the court,
when determining whether to do so, to “consider whether failure to make any of these
orders may jeopardize the safety of the petitioner and the children for whom the custody
or visitation orders are sought.” (§ 6340, subd. (a).) The DVPA confers upon the trial
court “a discretion designed to be exercised liberally, at least more liberally than a trial
7
court’s discretion to restrain civil harassment generally.” (Nakamura v. Parker (2007)
156 Cal.App.4th 327, 334.)
Section 6345, subdivision (a), governs renewal of a DVPA restraining order. It
provides: “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.” (Italics added; see
also Loeffler v. Medina (2009) 174 Cal.App.4th 1497, 1503 (Loeffler); Avalos v. Perez
(2011) 196 Cal.App.4th 773, 777.) The renewal request may be brought any time within
three months before expiration of the orders. (§ 6345, subd. (a).) When the request for
renewal is uncontested by the restrained party, a protected party is “entitled to renewal of
the protective order merely upon request.” (Ritchie v. Konrad (2004) 115 Cal.App.4th
1275, 1284 (Ritchie).) “In that instance, both the protected party and the court are
entitled to assume the restrained party has a good reason for not objecting.” (Id.)
However, where the restrained party contests the renewal request, a protected party is not
entitled to renewal merely because she desires that the protective order be renewed;
rather, the trial court may renew the protective order only if it finds by a preponderance
of the evidence that the protected party entertains an objectively “ ‘reasonable
apprehension’ of future abuse.” (Id. at pp. 1290-1292 [discussing relevant factors in
determining whether the reasonable apprehension test is satisfied].) Whether the request
is contested or not, the protected party need not show that any abuse has occurred since
issuance of the initial protective order. (Ibid.; see also § 6345, subd. (a).) Additionally,
the existence of the initial restraining order “is relevant and the underlying findings and
facts supporting that order often will be enough in themselves to provide the necessary
proof to satisfy” the reasonable apprehension test. (Ritchie, at p. 1291.)
Although an order issued upon a renewal motion can be characterized as
permanent, it remains “subject to termination or modification by further order of the court
8
either on written stipulation filed with the court or on the motion of a party.” (§ 6345,
subd. (a).) As we have noted, father did not file a motion in the trial court to terminate or
modify the renewal order.
III. Analysis
Father contends the trial court erred in awarding mother sole legal and physical
custody of the parties’ minor children and denying him visitation. Specifically, he argues
that: (1) he did not receive proper notice of the hearing on mother’s renewal request; (2)
the renewed Child Custody and Visitation Order conflicts with a prior visitation order in
the marriage dissolution judgment and accordingly, mother should have been barred from
relitigating the issue of visitation by collateral estoppel; (3) he has had no contact with
mother since the first restraining order “that would support or sunstantiate [sic] the need
to renew the restraining order”; and (4) the Child Custody and Visitation Order denying
father visitation with the parties’ children violates his right to due process.4 Father’s
factual allegations are not supported in the record and his legal arguments miss the mark.
First, father did not file a motion to modify or terminate the order after its issuance
(§ 6345, subd. (a)) on the ground that he was not served. Instead, he filed the instant
appeal. Consequently, the record before us does not support his factual allegations
regarding service and thus, father fails to rebut the presumption that he was properly
served with notice of the hearing on the renewal request as evidenced by the Proof of
Service. (Floveyor Internat., Ltd. v. Super. Ct. (1997) 59 Cal.App.4th 789, 795 [Filing a
proof of service that complies with statutory standards creates a rebuttable presumption
4 Father also asserts various claims of error related to his criminal conviction and the
marriage dissolution proceedings, which are not properly before us in this appeal (e.g.,
that he was denied the right to call his son as a witness in the criminal trial). Therefore,
we do not review these claims. Additionally, father’s factual allegations regarding
mother’s parenting and potential child endangerment are not properly before this court
where these allegations were not presented in the trial court below.
9
that service was proper.].) The Proof of Service, dated August 3, 2011, attests that a
deputy sheriff served father by serving the Litigations Coordinator at the California
Medical Facility. This is valid service. (See Sakaguchi v. Sakaguchi (2009) 173
Cal.App.4th 852, 858-859 [service of process by wife on the litigation coordinator at
Avenal State prison where husband was incarcerated was valid service under Code Civ.
Proc., § 415.30, and Pen. Code, § 4013, subd. (a)].) While father contends he was
transferred to Salinas Valley State Prison in April and did not receive service in time to
attend the hearing, the record contains no evidence showing the date of his transfer.
Consequently, father fails to rebut the presumption that he was properly served with
notice of the hearing.
Second, father does not supply the trial court record related to the marriage
dissolution case in which he says he was granted reasonable visitation.5 Accordingly, we
must disregard his argument about the purportedly conflicting order and his claim of
collateral estoppel related to the dissolution case because there is no evidentiary basis for
us to conclude that father was awarded visitation rights or that the trial court made factual
findings that somehow barred mother from requesting renewal of the custody order
related to the restraining order. Notably, even if the marriage dissolution judgment does
include a final judicial custody determination providing father with reasonable visitation
5 We note that when considering custody or visitation issues, trial courts are strongly
“encouraged” to make a “reasonable effort” to ascertain whether any protective order or
restraining order is in effect that concerns the parties or the minor children. (§ 3031,
subd. (a).) Additionally, courts are “encouraged” not to make a custody or visitation
order that is “inconsistent with” any restraining order unless it finds: (1) the custody or
visitation order cannot be made consistent with the restraining order; and (2) the custody
or visitation order is in the children’s best interests. (Ibid.) Because the original
restraining order was in effect during the dissolution proceedings, between July 24, 2006,
and July 24, 2011, the court that addressed the dissolution likely would have made a
reasonable effort to find restraining orders pertaining to the parties in the same court in
accordance with section 3031, subdivision (a).
10
rights as father alleges, mother would still be entitled to seek modification of the
visitation and custody order based on changed circumstances. (See Keith R. v. Super. Ct.
(2009) 174 Cal.App.4th 1047, 1053-1054.) In any case, because father does not provide
any evidence in the record supporting his contention and because there is no evidence the
trial court was made aware of this purportedly conflicting family court order when it
issued the orders father challenges on appeal, we cannot conclude that the court abused
its discretion in issuing the Child Custody and Visitation Order.
Third, father’s argument attacking the trial court’s decision to renew the
restraining order is both legally and factually flawed. In his brief, father asserts, “there is
no evidence to demonstrate that [mother] has a reasonable apprehension of future abuse
nor was there any evidence presented that [father] made any threats or that [father]
perpetrated any domestic violence after issuance of the restraining order made several
years prior in 2006.” Under section 6345, subdivision (a), a DVPA restraining order may
be renewed “without a showing of any further abuse since the issuance of the original
order.” (Loeffler, supra, 174 Cal.App.4th at p. 1503; Ritchie, supra, 115 Cal.App.4th at
pp. 1282-1283.) Additionally, as we have noted, a trial court may grant renewal on the
protected party’s request without any showing where the restrained party does not contest
renewal. (Ritchie, at p. 1284.) Moreover, because of father’s failure to provide an
adequate record, we cannot say mother presented no evidence of “reasonable
apprehension.” She may very well have done so. In any event, given the state of the
record, we must conclusively presume evidence was presented that is sufficient to
support the court’s findings. (Ehrler, supra, 126 Cal.App.3d at p. 154.) As for the
custody and visitation order, section 3044 provides that when there has been a finding by
the court that a person seeking custody has perpetrated domestic violence against the
other parent, the child, or the child’s siblings within the past five years, there is a
rebuttable presumption that a sole or joint physical or legal custody award to the
perpetrator would be detrimental to the child’s best interest. This presumption may only
11
be rebutted by a preponderance of the evidence. Since father failed to contest mother’s
renewal request or present evidence to rebut the statutory presumption under section 3044
that awarding custody to a person who has perpetrated domestic violence would be
detrimental to the children, there is no evidentiary basis for us to conclude that the court
abused its discretion in issuing the custody and visitation order. (See ibid.)
Fourth, father contends that the DVPA custody and visitation order violates his
right to due process. He presents disjointed and conclusory arguments in support of his
view. The due process clause guarantees “ ‘ “ ‘notice and opportunity for hearing
appropriate to the nature of the case.’ ” [Citation.]’ [Citation.]” (In re Marriage of
Nadkarni (2009) 173 Cal.App.4th 1483, 1500, original italics.) We have already
concluded that father has failed to rebut the presumption that he was properly served and
since the restraining order remains “subject to termination or modification by further
order of the court…on the motion of a party,” due process is not implicated here.
(§ 6345, subd. (a).) In the absence of father providing any meaningful legal analysis, we
reject his conclusory due process argument. (Denham, supra, 2 Cal.3d at p. 564; In re
S.C., supra, 138 Cal.App.4th at p. 408.)
IV. CONCLUSION
Father made no attempt to seek modification or termination of the trial court’s
order on the ground that modification was in the interest of justice because he had not
been served. (§ 6345, subd. (a)); see Loeffler, supra, 174 Cal.App.4th at pp. 1502-1508
[holding that the standard for determining a motion to terminate a renewed protective
order is the same as that required to dissolve an injunction pursuant to Code of Civil
Procedure section 533].)6 Had father done so, he could have made a record supporting
6 At oral argument, father said he filed a motion to set aside the “default” (presumably
under Code of Civil Procedure section 473), which was denied. He did not provide the
record on that motion; nor does he assert error in the denial of that motion in this appeal.
12
the factual contentions he makes on appeal. Instead, father filed the instant appeal
without a record and apparently expects us to rule in his favor based on the factual
assertions he raises in his brief. This, we cannot do.
DISPOSITION
The court’s issuance of the permanent restraining order, including the Child
Custody and Visitation Order, is affirmed.
MURRAY , J.
We concur:
HULL , Acting P. J.
DUARTE , J.

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