Wife Attacks Husband but Restraining Order is Denied

You would think that a woman who slapped her husband twice in their home and then pushed him and scratched his neck, before grabbing his cell phone out of his pocket and walking or running away before being arrested, would have a domestic violence restraining order entered against her for up to five years. At the very least, you would think a judge would consider this “abuse” within the meaning of California’s Family Code. However, you would be wrong on both counts.

That is the message from the Court of Appeal in San Francisco, which upheld the decision of the Hon. Rachel Holt of the San Mateo Superior Court to deny a restraining order that the husband had sought. That was the message even though the wife, Joannie, had admittedly in the past broke a picture frame and another time had knocked over a bowl.

However, there are two sides to every story. The husband, David, was having an affair with someone named E.D. Life was already stressful enough for the couple, who had two boys, now 16 and 12, with special needs. David finally filed for divorce, but the couple got along after that and on the day before the incident described above, David bought Joannie flowers. The day of the incident was actually Joannie’s birthday, but David was scheduled to be out of town on business.

The problem occurred when Joannie walked in on David and found him getting a massage. Somehow, before the altercation began, David actually paid the masseuse. After the fight, David called the police who determined that Joannie was the primary aggressor and arrested her. It should be noted, however, that the police offered David an emergency protective order, but he declined the offer. Then he bailed Joannie out of jail, although that is quite common in domestic cases where an arrest results. Finally, the local prosecutor decided not to go forward with the criminal case.

A California judge is under no obligation to issue a restraining order even if he or she finds a past history of abuse, but in this case, the judge found that the actions of Joannie on September 27 did not constitute abuse in the first place. Indeed, Judge Holt’s statement of decision began with the assertion that “Ms. Fischer did not commit an act of abuse as defined under the Family Code 6203 (sic) which specifically indicates abuse being the intentional or recklessly causing or attempting to cause bodily injury.”

On appeal, David’s attorney argued that “[s]lapping and pushing a spouse are acts of abuse as a matter of law.” Additionally, it was stated, “[t]he question was not why she slapped and pushed David, but if she did any of those things. The denial of the DVRO was based on an erroneous understanding of the law and consideration of improper legal criteria, so it was an abuse of discretion.”

Not so, said the justices. They noted “the evidence is sufficient to conclude that Joannie was so emotionally shocked by the events that she was not thinking or acting with presence of mind, but rather instinctively in the heat of moment-without the requisite level of consciousness of constitute ‘intentional’ or ‘reckless’ behavior.”

The problem with this analysis, of course, is that the wife’s actions were not committed in self-defense or in defense of others. Certainly, the events surrounding Joannie’s actions constitute mitigating factors. However, as in any criminal case, hitting someone is prima facie evidence of a battery. Even in the less serious arena of football, it is not a defense to unnecessary roughness to say that the other guy hit you first. To not call Joannie’s actions for what they were is to look for a way not to grant a cheating husband a domestic violence restraining order that he admittedly probably did not deserve.

However, the trial court’s statement of decision went further and so affirming the decision on appeal was probably correct. First, the issuance of restraining orders are in the broad discretion of the court (which after all “may” grant injunctive relief but is not required to do so), and this court found the incident to be “a singular incident.” That finding is in concert with Family Code section 6301, subd. (c), which gives courts the authority to consider “the totality of the circumstances” when making the decision on an application for a restraining order.

In addition, in Fischer, the court did “not find that the denial of the restraining order will jeopardize the petitioner’s safety” because there was already an equal time sharing plan in place for the parties’ two children. Also, the wife had moved out and “she at this point has not only accepted that the marriage is over but is at a point where that is freeing.”

Another judge could have seen the same facts and granted a restraining order, but this judge did not do so. Moreover, the Court of Appeal was in a foul mood, criticizing David’s well-respected attorney in a lengthy footnote (fn. no. 2) for his “recitation of the claimed facts in his brief, which violates settled principles of appellate review by setting forth a version of facts favorable to him. We said in In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 153 that such conduct is ‘not to be condoned.'” The justices were not done, as they noted that David’s “brief also ignores the precept that all evidence must be viewed most favorable to [Joannie] and in support of the [decision].” The panel linked this offense to “misstatements, misrepresentations and/or undo material omissions of the relevant facts of law,” which certainly cast doubt on the writer’s credibility and could draw sanctions. Ouch, was that really necessary?

Memo to file: if common sense indicates that a restraining order would be unfair, but the law suggests that it is legally tenable, and if you lose at the trial level, do not appeal. The Fisher case was certified for publication (footnote 2 and all), which meant that it was binding precedent on trial judges and attorneys throughout California. (Of course, abuse of discretion has its limits, and if a person, though understandably provoked, were to stab someone, you would think that it would be an abuse of discretion not to grant a restraining order. However, that is not what happened here.) UPDATE: Not too long after this case (and this blog) came out, the Supreme Court ordered the “depublishing” of the case, which means the result stands but it can no longer be cited as precedent.

The Court of Appeal opinion was authored by Acting Presiding Justice James Richman, who was joined by Justices Therese M. Stewart and Marla J. Miller.

The California Appellate Law Group, led by attorneys Robert A. Roth and Ben Feuer, were the successful appellate attorneys.