Brubaker v. Strum (In re Brubaker)

• Decision Date: 10 December 2021
• Docket Number: B307887
• Citation: 73 Cal.App.5th 525,288 Cal.Rptr.3d 256
• Parties: IN RE MARRIAGE OF Betsey BRUBAKER AND Andy STRUM. Betsey Brubaker, Appellant, v. Andy Strum, Respondent.
• Court: California Court of Appeals Court of Appeals

73 Cal.App.5th 525

288 Cal.Rptr.3d 256

IN RE MARRIAGE OF Betsey BRUBAKER AND Andy STRUM.

Betsey Brubaker, Appellant,

v.Andy Strum, Respondent.

B307887

Court of Appeal, Second District, Division 7, California.

Filed December 10, 2021

Fernandez & Karney and Mark H. Karney for Appellant.

Feinberg Mindel Brandt & Klein, Gregory A. Girvan, Los Angeles, and Collette Torunyan for Respondent.

SEGAL, Acting P. J.

INTRODUCTION

Betsey Brubaker appeals from an order denying her request to renew a restraining order against her former husband, Andy Strum, under the Domestic Violence Prevention Act (the Act) ( Fam. Code, § 6200 et seq. ).¹ Because the trial court erroneously considered only whether Strum committed acts of domestic violence during a narrow window of time when the original restraining order was in effect, and not whether Brubaker had a reasonable fear of future abuse in light of all relevant facts and circumstances, we reverse the order denying the request to renew the restraining order and direct the trial court to hold a new hearing on the request and allow Brubaker to introduce the evidence the court erroneously excluded.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brubaker Obtains a Domestic Violence Restraining Order Against Strum

Brubaker and Strum married in 2009 and had twins in 2015. On October 6, 2017 Brubaker filed a petition for dissolution of the marriage, which, according to Brubaker, Strum opposed.

On October 13, 2017 Brubaker filed a request for a domestic violence restraining order against Strum. Brubaker alleged Strum threatened to strangle and kill her, stalked her, and told her he would make her life "a living hell" if she continued to pursue a divorce. Brubaker alleged that in 2014, after Brubaker failed to quickly find their destination in a smart phone application, Strum left her on the side of the road, forcing her to walk 20 miles home. Brubaker alleged that in April 2017 Strum, with the children in the car, drove erratically and threatened to hit a group of cyclists he felt was slowing traffic. Brubaker alleged Strum threatened violence against her several other times but did not follow through on his threats.

On November 3, 2017 Brubaker and Strum entered into a stipulated temporary protective order. The order required Strum to remain 100 yards from Brubaker (except during school events, extracurricular activities, and when exchanging the children for visitation), prevented Strum from contacting Brubaker except in connection with custody and visitation matters, and established a temporary custody schedule for the children.

On January 25, 2018 Brubaker filed another request for a domestic violence restraining order, alleging Strum violated the stipulated protective order on multiple occasions and committed additional acts of abuse. Brubaker alleged Strum stalked her, monitored her actions using a "nanny cam," threatened to report her to child protective services, and harassed her verbally and in written communications. Brubaker again alleged Strum said he wanted to strangle and kill her. Brubaker claimed Strum's behavior was "triggered by anger regarding the normal divorce proceedings, which he was against and uses to lash out ...."

Following a hearing on February 22, 2018, the family law court (Judge Hank M. Goldberg) issued a two-year domestic violence restraining order against Strum. The court found that Strum placed Brubaker "in reasonable apprehension of imminent or serious bodily injury" by threatening violence against her and that Strum had violated the stipulated protective order. The court also found Strum's violations of the stipulated protective order amounted to "disturbing the peace" under the Act and showed, through "conduct and in words," that Strum would "do whatever [he] want[ed] to do," regardless of whether there was a restraining order in effect. The court found Strum had "a very significant anger management issue" and an "explosive temper." The court described the abuse as "situational" and stated a two-year order would give the parties sufficient time to "finish the divorce case" with the restraining order in place.

The domestic violence restraining order prevented Strum from coming within 100 yards of Brubaker, her home, or her vehicle, and from contacting Brubaker directly or indirectly. The court made an exception for "brief and peaceful contact" required to facilitate Strum's court-ordered visitation with the children and ordered the parties to communicate using Our Family Wizard (OFW), an online platform designed to facilitate communications for co-parenting. The court also granted Brubaker sole physical and legal custody of the children.

B. Brubaker Alleges Strum Violated the Domestic Violence Restraining Order, and the Family Law Court Issues a Final Statement of Decision in the Divorce Proceeding

On May 22, 2018 Brubaker asked for an order limiting Strum's use of OFW. The family law court (Commissioner Doreen Boxer) found Strum had violated the domestic violence restraining order by using OFW to "scold, admonish, [and] reprimand" Brubaker and by "using the children as a pretext to further harass" her. The court modified the restraining order by limiting the scope of permitted OFW communications.

On July 23, 2019 the family law court (Judge Lawrence Riff) entered a final statement of decision in the dissolution action, ruling the court would award Brubaker sole physical and legal custody of the children. The court stated a "principal issue for trial" was whether Strum rebutted the presumption under section 3044 that " ‘an award of sole or joint custody to a perpetrator of domestic violence "is detrimental to the best interest of the child." ’ " (See § 3044, subd. (a).) The court found Strum had not carried his burden to rebut the presumption because Brubaker was "and still is damaged on account of [Strum's] abuse" and because Strum's "inability to control his explosive temper and aggressive behavior, with [Brubaker] as a target, has ... been in the past detrimental to the children." The court also found that Strum "continue[d] palpably to radiate anger and agitation ... during the Court proceedings," and that, "in a less structured environment," Strum's issues with anger management "are likely to be more pronounced."

The family law court also ruled that, even if Strum had rebutted the presumption under section 3044, the court would not grant Strum physical or legal custody of the children because there was "no prospect" of Strum and Brubaker co-parenting effectively. The court found giving Strum joint custody "would require him and [Brubaker] to interact with a high likelihood ... of [Brubaker] being further abused." The court found, however, Strum had "complied with the terms of the permanent restraining order" and had "not committed any further acts of domestic violence since that order was issued." The court did not address Commissioner Boxer's finding Strum had violated the terms of the restraining order, but the court did relax the restrictions Commissioner Boxer had imposed on Strum's use of OFW. The court entered a judgment of dissolution on November 8, 2019.

C. Brubaker Files a Request To Renew the Domestic Violence Restraining Order

Meanwhile, on October 1, 2019 Brubaker filed a request to renew the two-year domestic violence restraining order, which otherwise would expire on February 22, 2020² Brubaker alleged she had a reasonable apprehension of future abuse based on Strum's past abuse and his violations of the existing restraining order. Specifically, Brubaker alleged Strum continued to use OFW to harass her, manipulated volunteer opportunities at the children's school so he could be within 100 yards of her, and insisted on exchanging the children at each other's front door instead of at the street curb or driveway, which Brubaker claimed gave Strum the opportunity to "attack [her] unprovoked with accusations [and] assertions in a highly charged verbal manner in the clear view of [the] children." Brubaker also alleged Strum "hurl[ed] accusations at [her] in an unreasonably loud and aggressive tone" during an exchange of the children on August 30, 2019.

Strum opposed the request to renew the restraining order and filed two motions in limine. One motion sought to exclude the OFW messages exchanged between the parties prior to May 24, 2018. Strum claimed that, prior to that date, counsel for Brubaker "wantonly violated the rules of professional conduct" by communicating directly with Strum through OFW without Strum's knowledge. Brubaker stipulated to the relief requested in Strum's first motion in limine.

Strum's second motion in limine sought to exclude Brubaker from "proffering any evidence regarding any allegations of abuse or violations of the Domestic Violence Restraining Order by [Strum] prior to February 13, 2019," which was the last date the parties presented evidence in the marriage dissolution trial. Strum argued that, because Judge Riff found Strum had not committed any acts of domestic violence or abuse since Judge Goldberg issued the restraining order in February 22, 2018, the doctrines of issue preclusion and estoppel precluded the trial court in this proceeding (Judge Michael R. Powell) from considering that evidence or any other evidence of domestic violence or abuse occurring before the dissolution trial. Strum also asked the trial court to take judicial notice of the family law court's final statement of decision because "the matter of violations of the protective order since its issuance ... through the last day of trial ... has already been adjudicated." Strum's motion in limine did not mention Commissioner Boxer's earlier finding Strum violated the restraining order.

D. The Trial Court Grants Strum's Second Motion in Limine and Denies Brubaker's Request To Renew the Restraining Order

The trial court considered Strum's second motion in limine at the beginning of the July 10, 2020 hearing on Brubaker's request to renew the restraining order. Counsel...