Salmon v. Salmon

• Decision Date: 14 November 2022
• Docket Number: E075748
• Citation: 85 Cal.App.5th 1047,302 Cal.Rptr.3d 23
• Parties: Melissa Beth SALMON, Respondent, v. Stephen SALMON, Appellant.
• Court: California Court of Appeals Court of Appeals

85 Cal.App.5th 1047

302 Cal.Rptr.3d 23

Melissa Beth SALMON, Respondent,

v.Stephen SALMON, Appellant.

E075748

Court of Appeal, Fourth District, Division 2, California.

Filed November 14, 2022

Stephen Salmon, Menlo Park, in pro. per.; Westover Law Group and Andrew L. Westover, Murrieta, for Appellant.

Steven S. Kondo, Vista, for Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

Stephen Salmon (Husband) and Melissa Beth Salmon (Wife) filed competing requests for domestic violence restraining orders against each other pursuant to the Domestic Violence Prevention Act (DVPA). ( Fam. Code, § 6200 et seq. )¹ The trial court held a joint hearing on both petitions that included live witness testimony presented over the course of multiple days. At the conclusion of the hearing, the trial court issued an order granting Wife's petition and denying Husband's petition. Husband appeals from this order.

On appeal, Husband does not challenge the sufficiency of the evidence to support the trial court's factual findings or to support the issuance of a DVPA restraining order in favor of Wife. Instead, he challenges only the trial court's denial of his petition, arguing (1) the trial court misunderstood the scope of its discretion to the extent it believed section 6305 constrained its authority to simultaneously grant both requests for protective orders in this case; (2) even if section 6305 applies, the trial court abused its discretion by choosing between two identified aggressors in order to grant relief to only one of them; and (3) the trial court abused its discretion by failing to grant Husband's request for custody of the parties' children.

We conclude that section 6305 does govern the parties' competing requests for protective orders; the statute expressly permits the trial court to weigh the acts of the parties to determine if one should be considered the dominant aggressor before issuing a mutual restraining order; and the trial court did not abuse its discretion in denying Husband's custody request. As such, we affirm the order.

II. PROCEDURAL HISTORY

On October 30, 2019, Wife filed a petition seeking a domestic violence restraining order against Husband. Wife alleged that on October 28, Husband had attempted to physically discipline one of their children with a belt; Wife had attempted to intervene; and Husband physically battered Wife as a result. Police eventually arrived at the scene and arrested Husband for domestic violence.

On November 27, 2019, Husband filed his own petition seeking a domestic violence restraining order against Wife. With respect to the October 28, 2019 incident, Husband alleged that Wife had initiated the conflict, and he only struck Wife accidentally when acting in self-defense. Husband also alleged that Wife had committed various acts of physical abuse in the past, with the most recent act of abuse occurring in April 2019. In addition to his request for a DVPA restraining order to protect himself, Husband also requested the trial court make an order awarding him sole legal and physical custody of the parties' four minor children.

The trial court held a hearing on both petitions that included live witness testimony presented over the course of multiple days. At the conclusion of the hearing, the trial court granted Wife's petition and denied Husband's petition. In a written minute order, the trial court made the following findings: (1) Husband was the primary aggressor with respect to the October 28, 2019 incident; (2) Wife was the primary aggressor with respect to the alleged April 2019 incident; (3) Wife had previously inflicted injuries to the parties' minor children that would qualify for a presumption under section 3044 ; (4) Husband was "grossly derelict" in permitting corporal punishment by Wife against their children; and (5) Husband was "grossly negligent" for leaving loaded firearms in the home accessible to the parties' children.

Other than setting forth findings of fact, the written order did not explain the reasons for the trial court's decision. However, the trial court provided an oral explanation of its reasons on the record at the hearing. The trial court explained that its findings meant that both Husband and Wife had committed acts of domestic violence within the meaning of section 3044 ; that while Wife had inflicted unnecessary and inappropriate injuries to the children, Husband had also failed to protect the children from this alleged abuse; and that the trial court believed Husband to be "the primary aggressor in this case," notwithstanding the fact that Wife had also committed acts of abuse in the past.

III. DISCUSSION

A. General Legal Principles and Standard of Review

"Pursuant to the Domestic Violence Prevention Act (DVPA) ( § 6200 et seq. ), a court may issue a protective order to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved." ( S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264, 109 Cal.Rptr.3d 792.) The trial court may issue such an order " ‘if the party seeking the order "shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." ’ " ( K.L. v. R.H. (2021) 70 Cal.App.5th 965, 977, 285 Cal.Rptr.3d 563 ( K.L. ).) A trial court is also empowered to make visitation or custody orders in conjunction with a DVPA restraining order. ( § 6323 [custody orders authorized on ex parte basis upon showing of immediate harm to child]; § 6340 [custody orders authorized after notice and hearing].)

However, the statutory scheme also constrains the trial court's ability to issue a mutual protective order. Section 6305 provides that "the court shall not issue a mutual order enjoining the parties from specific acts of abuse" unless it makes "detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense." (Id. at subd. (a).) "[I]n determining if both parties acted primarily as aggressors, the court shall consider the provisions concerning dominant aggressors set forth in [ Penal Code section 836, subdivision (c)(3) ]." ( § 6305, subd. (b).) In turn, Penal Code section 836, subdivision (c)(3), explains that "[t]he dominant aggressor is the person determined to be the most significant, rather than the first, aggressor" and specifies various factors to consider in making such a determination, including: "(A) the intent of the law to protect victims of domestic violence from continuing abuse, (B) the threats creating fear of physical injury, (C) the history of domestic violence between the persons involved, and (D) whether either person involved acted in self-defense." ( Pen. Code, § 836, subd. (c)(3).)

"We review DVPA orders [citation] and custody and visitation orders [citation] for abuse of discretion." ( K.L., supra , 70 Cal.App.5th at p. 979, 285 Cal.Rptr.3d 563.) However, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review." ( Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, 76 Cal.Rptr.3d 250, 182 P.3d 579.) Thus, " ‘ "[t]he question of ‘whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review.’ " ’ " ( K.L. , at p. 979, 285 Cal.Rptr.3d 563 ; see In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 116, 279 Cal.Rptr.3d 522 [" ‘The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review.’ "].) "[T]o the extent we are called upon to review the court's factual findings, we apply the substantial evidence standard of review." ( Curcio v. Pels (2020) 47 Cal.App.5th 1, 12, 259 Cal.Rptr.3d 912 ; see K.L. , at p. 979, 285 Cal.Rptr.3d 563.) Finally, with respect to the trial court's application of the law to the facts, " ‘[a]n abuse of discretion occurs when the ruling exceeds the bounds of reason.’ " ( Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 396, 206 Cal.Rptr.3d 873 ; see In re Marriage of G. (2017) 11 Cal.App.5th 773, 780, 218 Cal.Rptr.3d 200.)

In this appeal, Husband expressly concedes the evidence is sufficient to support the trial court's factual findings. Thus, the only questions presented involve whether the trial court applied the correct legal standard, which we review de novo, and whether the trial court's application of the law to the undisputed facts exceeded the bounds of reason. As we explain, we find no abuse of discretion on this record.

B. Section 6305 Governs the Granting of Separate Orders That Have the Effect of a Mutual Protective Order

Husband's primary contention on appeal is that section 6305 does not apply when two competing petitions allege different incidents of domestic violence as the basis for seeking a protective order under the DVPA. Husband believes that in such cases "each petition for protection must be determined on its own merits and independent of the other," regardless of whether the petitions are heard separately or together. Thus, according to Husband, the trial court misunderstood the scope of its discretion to the extent it believed section 6305 constrained its ability to grant both Husband's and Wife's competing petitions in this case.

We acknowledge that the limited published decisions addressing this point are divided. In Conness v. Satram (2004) 122 Cal.App.4th 197, 18 Cal.Rptr.3d 577 ( Conness ), the First Appellate District concluded two orders entered close in time to each other, but following separate hearings on different days, did not fall under the definition of a mutual order for purposes of section 6305, despite the fact the orders together resulted in a restraining order in favor of each party to the dispute. ( Id. at pp. 202-205, 18 Cal.Rptr.3d 577.) However, more recently, in Melissa G. v. Raymond M. (2018) 27...