Mooney v. Thomas

Decision Date09 November 2021
Docket NumberE072598
PartiesDENISE MOONEY, Plaintiff and Appellant, v. GARY EVERETT THOMAS II, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No FAMMS1900061 John W. Burdick, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Law Offices of Ernest Calhoon and Ernest Calhoon for Plaintiff and Appellant.

Gary Everett Thomas II, in pro. per, for Defendant and Respondent.

OPINION

FIELDS J.

I. INTRODUCTION

Plaintiff and appellant Denise Mooney (Mother) and defendant and respondent Gary Everett Thomas II (Father) are the parents of L.T. (daughter). Mother and Father have been litigating custody issues related to their daughter for years in the superior courts of Ventura, Orange, Los Angeles, and now San Bernardino Counties. In November 2017, a final custody order and judgment was entered following proceedings before the Superior Court of Los Angeles County. In December 2018, the case was transferred to the Superior Court of San Bernardino County; and, on January 31, 2019, Mother filed a petition pursuant to the Domestic Violence Prevention Act (Fam. Code § 6200 et seq.), [1] seeking a domestic violence restraining order (DVRO) against Father.

Mother's petition alleged that their daughter recently returned from Father's custody with a head injury, and that Father refused to explain how the injury occurred. Father filed a responsive declaration in which he denied causing any injury to their daughter, explained that their daughter fell while playing on a playground, and attached a copy of a message sent to Mother via their court-ordered, third-party Internet communication platform, contemporaneously disclosing the incident to Mother. Following a hearing in which Mother's counsel was unable to identify any additional evidence or testimony regarding recent acts of alleged abuse, the trial court denied Mother's request for a DVRO, and Mother appeals. We find no abuse of discretion in the record before us, and we affirm the order.

II. FACTS AND PROCEDURAL HISTORY
A. Procedural History

Mother and Father have been litigating custody issues related to their daughter for years in the superior courts of Ventura, Orange, Los Angeles, and now San Bernardino Counties. They currently share custody of their daughter pursuant to a final custody order and judgment issued in 2017, following a trial held in the Superior Court of Los Angeles County. The judgment provides for Mother's sole custody of their daughter, with Father entitled to visitation with their daughter on specified weekends each month. The judgment further provides a detailed schedule for custody on holidays and school breaks; designates the time and place for exchange of custody; sets forth procedures for reimbursement of shared childcare expenses; and awards a monthly amount of child support to Mother.

In August 2018, Mother filed a series of requests for orders with the Superior Court of Los Angeles County, [2] including a request for a DVRO ordering that Father stay 100 yards away from Mother, her family, and her home, as well as prohibiting Father from communicating with her except in emergencies. She alleged that since entry of the child custody judgment, Father abused her by stalking her during custody exchanges and calling her derogatory names during these exchanges. Mother also alleged that on one occasion, Father took a toy from their daughter and threw it on the ground during a custody exchange. Finally, Mother alleged that Father was harassing her by sending her text messages, and that she attached various messages purportedly documenting this harassment.[3]

On October 16, 2018, the trial court held a hearing on Mother's requests for orders. The trial court denied Mother's request for an order that Father stay 100 yards away from her, and it further ordered the parties to utilize a third-party Internet communication platform as their primary means of nonemergency communication. The trial court otherwise continued the hearing on Mother's request for a DVRO. Months later, Mother requested dismissal of the DVRO petition without prejudice, and the trial court granted her request.

In December 2018, the family law case was transferred to the Superior Court of San Bernardino County.

B. Mother's New Request for a DVRO

On January 31, 2019, shortly after transfer of the case to the Superior Court of San Bernardino County, Mother filed a new request for a DVRO. She requested the court issue an order prohibiting Father from engaging in acts of abuse, prohibiting Father from directly or indirectly contacting her, requiring Father to stay at least 100 yards away from her, and permitting Mother to record any unlawful communications. In support of this new request, Mother alleged their daughter was abused because she noticed abrasions to their daughter's head following a custody exchange, and Father refused to explain the cause of the injury. As evidence of past abuse, Mother simply incorporated the allegations of her 2018 DVRO petition by reference.

The petition was accompanied by a declaration of counsel, who declared: Father had caused their daughter to test positive for drugs; there was "substantial information" on the Internet detailing Father's history of drug use; Father had repeatedly violated prior court orders; and law enforcement had to intervene in past child custody exchanges as a result of Father's actions. Counsel did not provide the factual basis for any of these allegations and did not indicate how he would have personal knowledge to attest to any of these matters.

Mother's petition was also accompanied by various exhibits. The exhibits included medical records indicating their daughter had been examined for abrasions and a possible closed head injury, but showing their daughter was discharged that same date with general instructions to keep her abrasions clean, to monitor her for potential signs of a closed head injury, and to follow up with her doctor in a couple of days. The exhibits also included a copy of the order transferring the case to the Superior Court of San Bernardino County, a copy of the 2017 child custody judgment, and a copy of the entire DVRO petition previously filed by Mother in 2018.

C. Father's Opposing Declaration

Father filed a declaration in opposition to Mother's petition. According to Father, Mother has repeatedly accused him of abuse and domestic violence in court proceedings, and all of Mother's prior requests for restraining orders have been denied. Father attached a copy of the 2017 order and judgment in the family law proceeding, as well as October 2018 minute orders on Mother's prior requests for orders.[4] Finally, Father expressly denied causing any harm to their daughter or engaging in any violent acts against their daughter. He attached a January 20, 2019 communication sent on the third-party communication platform, wherein he informed Mother that their daughter had fallen while running on the playground. The communication also indicated that Mother had viewed the communication that same date.[5] D. Hearing on DVRO Petition

The trial court denied Mother's request for a temporary restraining order on an ex parte basis and, instead, set the matter for hearing.

On February 26, 2019, the trial court held a hearing on Mother's petition. The transcript of oral proceedings regarding this hearing was not included as part of the record on appeal. Following the hearing, the trial court ordered the parties to direct all communication regarding their daughter through a third-party Internet communication platform; ordered that each party may record exchanges of custody to document any unlawful conduct; and granted permission for Father to communicate with their daughter directly through an Internet communication service. According to the minutes, the parties agreed to set the matter for a further review hearing.

On March 26, 2019, the trial court held a review hearing. At the outset of the hearing, Mother's counsel handed the trial court a written brief, which mirrored the allegations made in the declaration counsel submitted with Mother's DVRO petition. The trial court then asked Mother to describe how exchanges of custody had been proceeding since the last hearing. Before Mother could respond, her counsel interjected and stated, "That's really not what the issue is that's before the Court . . . . This is here on a DV restraining order application."

In response, both the trial court and Father expressed the belief that the domestic violence issue had already been resolved at the prior hearing. The trial court specifically stated:" [W]e were previously here on a request for DV restraining orders. And that impacts the custody and visitation because the parties share a child. And, therefore, custody and visitation is an ancillary issue on any DV request. And the DV was based upon an injury to child, which I found there was not sufficient evidence to support DV orders." Mother's counsel did not dispute the trial court's recollection but instead argued that the injury to their daughter was not the only issue raised in Mother's petition, and that the trial court did not make any findings with respect to the allegations of past abuse.

The trial court reviewed the minute order from the February 2019 hearing and agreed that the minute order was ambiguous. The trial court explained that the minute order did not make clear whether there was a final determination on the issue of domestic violence restraining orders; as a result, the court stated, "I'll make the finding that I did not completely address the request for DV orders," and offered to hear any remaining issues...

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