Abdelqader v. Abraham
| Decision Date | 10 March 2022 |
| Docket Number | D078652 |
| Parties | Hebah ABDELQADER, Plaintiff and Appellant, v. Abdo ABRAHAM, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Law Office of Melissa J. Schmitt and Melissa J. Schmitt, for Plaintiff and Appellant.
Cage & Miles and John T. Sylvester, for Defendant and Respondent.
Hebah Abdelqader appeals an order following a bifurcated trial wherein the superior court denied Hebah's request for a restraining order against her ex-husband, Abdo Abraham, and granted joint physical custody of the couple's children, A.A. and G.A.1 Hebah claims the court made multiple errors when determining she had not met her burden of proving domestic violence. In addition, Hebah asserts the court erred in failing to articulate, on the record or in writing, the reasons it found the presumption under Family Code 2 section 3044 had been rebutted.
In the unpublished portion of this opinion, we conclude that the court did not abuse its discretion in denying Hebah's request for a restraining order. However, in the published portion of the opinion, we agree that the court erred in failing to state the reasons, on the record or in writing, it found the presumption under section 3044 had been rebutted. As such, we reverse the judgment as to that issue only and remand the matter for further consideration consistent with this opinion.
Hebah and Abdo were married on March 3, 2007. They have two children together, A.A. (age 11) and G.A. (age 5). Hebah and Abdo separated on September 16, 2018. On October 26, 2018, Hebah filed a petition for dissolution.
However, before she filed a petition for dissolution, on October 10, 2018, Hebah filed a request for a domestic violence restraining order. In her request, Hebah claimed Abdo verbally abused her in August 2018, while they were riding a train from Venice to Rome. She also alleged Abdo was verbally and physically abusive during an argument at their home on September 16, 2018. Based on these allegations, the court issued a temporary restraining order against Abdo and set a hearing on October 29, 2018, to consider further action on the request.
There is no indication in the record whether a hearing took place on October 29, but the court issued another temporary restraining order on March 27, 2019 and set a hearing regarding the restraining order for September 19, 2019. On May 22, 2019, Hebah filed an ex parte application to terminate the temporary restraining order and take the related hearing off calendar. In support of her application, Hebah declared that she was "no longer in need of protection" and made the request "of [her] own free will" and had "not been coerced or threatened in any way by the restrained person or anyone else to make this request." Abdo also signed the request, attesting that he had "not coerced or threatened the protected party in any way to make this request."
On May 23, 2019, the court granted Hebah's application, terminating the restraining order, vacating the September 19, 2019 hearing date, and dismissing the action.
On March 9, 2020, Hebah filed another request for a restraining order against Abdo. The facts of the underlying abuse giving rise to Hebah's request is not in the record before us; however, the superior court issued a temporary restraining order and set a hearing on March 25, 2020. The hearing subsequently was continued to June 12, 2020.
At the June 12 hearing, the court ordered the issues of Hebah's request for a restraining order as well as custody and visitation of the children to be bifurcated and set for trial on July 8 and 9, 2020.
The court held the trial on July 8 and 9, 2020, at which both Hebah and Abdo testified.
Hebah began her testimony by offering background information about her relationship with Abdo before they were married as well as incidents of violence occurring before she applied ex parte to dismiss the temporary restraining order in May 2019. The court explained that it was focused on "what happened since the last restraining order had been dismissed" but ultimately gave Hebah wide latitude so she would "be able to tell the story the way she want[ed] to tell it." Thus, Hebah discussed incidences of domestic violence that occurred before she dismissed the restraining order.
For example, she testified about an incident that occurred on a train from Rome to Venice on August 14, 2018. Apparently, Abdo had become upset with Hebah when she did not want to be intimate with him. When they got on the train, he called her names and threatened that he would "bash [her] head in the wall when [they] got back to the hotel." Abdo also shoved Hebah with his shoulder. While next to Abdo, Hebah could not move but eventually she asked to use the bathroom and Abdo allowed her to do so. When Hebah returned, Abdo appeared asleep, so she sat four rows in front of him. When he awoke, he ordered Hebah to sit next to him. After Hebah complied, Abdo continued to berate her.
On September 16, 2018, Abdo walked into the bedroom and found Hebah reading on her smartphone. Abdo asked what she was reading, and Hebah responded that she was reading an article about unwanted pregnancies and birth control. Abdo became upset and threw a bottle of shampoo at Hebah (but did not hit her). When Hebah tried to leave the room, Abdo charged at her, hit her in the back, grabbed her arm, dragged her to the back of the room, and then hit Hebah's back and head into the bedroom wall. Hebah was afraid and asked Abdo to let her go, but he did not do so until Hebah asked again. Hebah left the room; however, Abdo took her phone. Abdo followed Hebah downstairs and continued to call her names. Hebah returned upstairs and locked herself in the bedroom.3 Hebah testified that she did not call the police because Abdo had previously threatened to harm her if she reported any domestic violence to the authorities. Also, Hebah did not want her children to see their father dragged out of their home by the police, and, in the village from which the couple came, it was taboo for a wife to call the police on her husband.
The next day, Hebah went to the Family Justice Center to seek help. From September 18 through September 27, 2018, she locked herself in the bedroom every evening. However, on September 27, Abdo left for Florida and did not return until October 9. After Abdo's return, Hebah slept separately from him, with her room locked. The following day, Hebah filed for a restraining order. Hebah was notified that the sheriff's office had served Abdo with the restraining order that same day.
At trial, Hebah discussed why she dismissed the restraining order in May 2019. She admitted that she was feeling pressure from her family as well as Abdo's family to settle her dispute with Abdo. In addition, Hebah was experiencing financial pressure because she was "tens of thousands of dollars into the case" and was in a "lot of debt." Hebah also said that Abdo was pressuring her to dismiss the restraining order. While the restraining order was in place, Abdo and Hebah talked on the phone multiple times, with Abdo asking her to dismiss her request for a restraining order. They even met in person, and Abdo again told Hebah "to drop the restraining order."
Hebah admitted that she voluntarily traveled to court on May 22, 2019, to seek dismissal of her request for a restraining order. Before she arrived at court, she contacted Abdo to let him know what she was doing. Hebah testified that she chose to dismiss her request because she wanted "peace for [their] family" and "what's best for [their] children." That said, Hebah also claimed that she did not "think [she] was in [her] right mind" at that time.4
Hebah admitted that after she dismissed the restraining order action there was no further physical violence from Abdo. Nevertheless, she pointed out other instances that she believed warranted a new restraining order.
For example, during a February 29, 2019 telephone call with the children, Abdo "flat-out threatened" Hebah (the call was conducted on speaker phone).5 Also, on March 6, 2019, Hebah had coffee with another parent of a student at A.A.'s school. After coffee, she dropped the friend off at the school parking lot. At that time, she did not see Abdo in his car. However, when she was pulling out, she saw Abdo parked in the school parking lot. When Abdo saw Hebah leaving the lot, he sped off in his car over a cement block.6
On March 9, 2019, Hebah filed for, and was granted, a temporary restraining order.
In addition, beginning in July 2019, Hebah started seeing Abdo driving by her home. Because he had previously threatened her, Hebah testified that seeing him driving by her house frightened her.
Hebah also testified about an incident that occurred in August 2019 at an urgent care facility. One of their sons, A.A., was injured in a BMX accident and was taken to urgent care. While at urgent care, Abdo was verbally abusive toward Hebah. Abdo, however, claimed he was being harassed by Hebah's family because one of the family members was recording him. Ultimately, Abdo called the police. The police allowed Hebah to leave with A.A. and told Abdo to wait for Hebah to leave before he left.
In addition, Hebah testified about an incident that occurred at A.A.'s school on December 19, 2019 wherein Abdo and his mother approached Hebah's car outside the school. Both G.A. and Hebah's sister were in the car. Abdo and his mother were making a video recording of the car and asking Hebah's sister questions. Abdo also was on the phone with the police. Hebah, at this time, was not in the car. However, Hebah's sister called Hebah. Hebah took G.A. from the car and took him to the playground. G.A. was upset. Abdo and his mother followed them to the playground, and Abdo's mother continued to record them. Hebah explained that she felt unsafe and afraid for her children. Hebah and...
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