I remember a case I had years ago where the alleged victim of domestic violence obtained a temporary restraining order but then engaged in consensual sex with the alleged perpetrator before the hearing where the judge would decide whether to make a temporary restraining order permanent. Based on the incidence of sex, the judge dissolved the restraining order. End of case.
But a published case from California’s Court of Appeal in San Diego shows that this may not always be the outcome. In a case entitled Fregoso v. Hernandez, the wife got a temporary restraining order. But before the follow-up hearing, the wife invited the husband to a birthday party and had consensual sex with him. Husband appealed, but in a 3-0 decision, Justice Gilbert Nares, writing for the court, held that there was enough evidence of abuse for the trial court to have issued its order, which was a one year restraining order against the husband.
Also, besides the abuse that the wife testified about at the trial, there was evidence — again, from the wife — that the sex the parties had after the temporary restraining order was issued “was part of their six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence”.
Besides the abuse that the wife testified about, which included evidence of the husband’s having recently thrown her on the bed leaving her unable to breathe, the husband was hampered by the standards governing domestic violence restraining orders. The trial court has broad discretion in determining whether to grant or deny a request for a restraining order. This means that in most cases, whatever the trial court decides will be upheld on appeal unless there is “an abuse of discretion”. As the justices in this case put it, “‘”the appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court”‘”. Since all that needs to be shown is a “reasonable proof of a past act or acts of abuse” –i.e., just one act of abuse is all that is needed– and since “abuse” is broadly defined in the Family Code, it is no surprise that the husband lost this case and this appeal.
This is not to say that conduct between the temporary restraining order and the final hearing — usually a period of 21 to 25 days — is not important. If the restrained person violates the restraining order, the court will be much more likely to issue a “permanent” restraining order, which can last up to five years. If the protected party engages in conduct that seems to contradict her or his claim of fear, a court, in its discretion, could deny the request for a restraining order, at least in most cases. This is because issuing a permanent restraining order is rarely mandatory; the decision to issue a restraining order is up to the judge, unless there is absolutely no past evidence of abuse, in which case a permanent restraining order would not be proper.
Certainly, restrained parties and their attorneys can argue to the judge that consensual sex after the temporary restraining order should lead the judge, in her or his discretion, not to issue the restraining order, simply on the ground that it would not be fair, given all the circumstances. But one of the problems in the Fregoso case was the severity of the abuse (putting aside the sex). As discussed above, there was an incident where the husband apparently threw the wife on the bed. Specifically, according to the wife, he “grabbed her, pushed her hard onto a bed, and held her head down into the mattress so that she could not breathe”. Another time, the husband apparently “hit our daughter with a belt, almost 10 times”. There was also evidence that the husband had threatened the wife, saying he “‘has a godfather who is a drug trafficker in Sinaloa'”, Mexico. And, at the end of the day, the trial court, which could have issued a restraining order for up to five years, only issued one that is to last one year.
Justice Nares was joined in his opinion by Presiding Justice Judith McConnell and by Judge Ronald Prager, who is a trial court judge assigned by the Chief Justice of California to help out with appeals cases.
The trial judge was Commissioner James T. Atkins.
Because the matter was certified for publication, it is binding precedent on trial courts throughout the state of California — not just those courts here in San Diego County. Lawyers and judges may cite this case in writing arguments or opinions.
The trial court case no. is DS56882. You can go to the courthouse, in Chula Vista, Cal., and look at the case for more details.