California Justices Say Man can talk about his Divorce on Facebook
Are you allowed to talk about your California divorce case on social media? After a published case from the Court of Appeal, the answer apparently is yes unless the judge restricts you from talking on social media about the divorce to your own children or from using social media to disparage your spouse.
We learned all of this today, with the publication of the case of Marriage of Molinaro, in which a three-judge panel, led by the authoring justice, the Hon. Anne Harwood Egerton, ruled unanimously that the trial judge was wrong to tell a husband that he was prohibited “from posting ‘anything about the case on Facebook'”. The justices said that this prohibition violated the constitutionally protected right of free speech held by the husband (“Michael”). But the same three judge panel affirmed the decision of the trial judge to impose a three-year domestic violence restraining order against Michael, who had apparently sent the police to the wife’s house to do a wellness check on the parties kids (a 13-year-old and a 17-year-old) and who had said that the wife (“Bertha”) was “crazy and having hallucinations”. He even ended some emails to her and her attorney with “F.O.A.D”, which is slang for “fuck off and die”. Michael also had exhibited threatening behavior towards her at an earlier hearing. Then there was the time when Bertha was moving out of the family home and Michael got into a verbal altercation with her and some of the family members and used his car to block the moving truck from exiting the property. There were also two other times when Michael had restricted Bertha from leaving the home. Bertha had put locks on her bedroom door because she was scared, and Michael responded by threatening to throw a chair through the bedroom window.
Based on this evidence, and the decision by Michael not to cross-examine Bertha or call any witnesses of his own, the court granted a three year restraining order. The court also ordered Michael not “to post anything on Facebook . . . in regards to this action”.
The court was probably right when it granted the restraining order, because when the judge asked him if he understood the order, Michael responded “[n]o, I don’t. I think you’re insane. I don’t understand a word you are saying. It lacks reason, Your Honor. There was no evidentiary foundation for your order”. I mean, who says that to a judge? Who calls the person in the black robe “insane”? Michael also was screaming when he was talking, and when Bertha suggested the parties go to mediation to work out a visitation plan for the children, the judge said that might not be productive at the moment, in view of Michael’s behavior.
The judge also ordered monitored visits with the children in a neutral setting. The judge ordered Michael to work with Bertha’s lawyer to find a professional monitor. Michael told the judge, “No, I’m not”.
It doesn’t end there. The judge also ordered Michael to attend anger management classes. The judge tried to mitigate the effect of what she was ordering by telling Michael that it was just an anger management program, not a 52-week batterer’s intervention program. Michael still wasn’t happy, telling the judge, “[w]hy don’t you put me behind bars[?]” and adding “How fast can I commit contempt of court by going to none of them, Your Honor”?
The Court of Appeal found the evidence was sufficient to show conduct that constituted “disturbing the peace of the other party” which, under California law, counts as “domestic violence”. As to the social media part of the ruling, the justices said that while divorce courts may constitutionally order parents to refrain from disparaging their former spouse in front of their children, a court may not stop one adult from speaking to another unrelated adult, outside the presence of the children, about the divorce. In looking at this case, the justices noted that past Facebook posts of Michael “were not specifically directed to the minor children, but in many cases invited comments from Michael’s adult friends and extended family, some of whom urged him not to dwell on the divorce, while others suggested he seek legal representation”. His posts “did not directly disparage Bertha or openly seek to alienate her from the children”.
One can hardly blame the judge for issuing a restraining order, which in California divorce cases can last as long as five years without having to renew them. While Michael did not hit his wife, the law in California is that domestic violence includes things other than physical violence. Simply behavior that is “annoying” may count as abuse and be the basis for a restraining order. And if there was any doubt that Michael needed to be ordered to stay away from his wife, his behavior in the courtroom sunk whatever hope he had of emerging unscathed.
Domestic violence orders are serious. During the pendency of the order, the restrained person is not allowed to have, own, or use any guns or other types of firearms. And, where children are involved, a restraining order creates a presumption that sole or even joint custody for the restrained person is not in the best interests of the children and therefore should not be allowed. This in turn affects the amount of child support that will be ordered and could affect spousal support as well. The winning side also may be entitled to attorney fees. This is why folks who find themselves on either side of a domestic violence issue should have a lawyer representing them. The stakes are too high to go at it alone.
But free speech is free speech, and, at least on this one point, Michael, who represented himself before the Court of Appeal, emerged the winner. But as most attorneys will tell you, talking about your case on social media is not a smart thing to do, even if you are allowed to do it.
The Molinaro case, which, as stated above, was certified for publication, is now precedent in California, which means it must be followed by judges and lawyers throughout the state.