## Facts

- A husband and wife, married about 15 years with two sons, were in dissolution proceedings after long-running marital conflict, including the husband’s extramarital affair.
- During attempted reconciliation, the trial court found the husband sent conflicting messages about the relationship and the affair’s status.
- The wife previously engaged in isolated property-damaging conduct when frustrated (e.g., breaking a picture frame, knocking over a bowl).
- The husband admitted prior physical aggression toward the wife, including pushing her, spitting on her, dousing her with water during an argument, grabbing and moving her multiple times, and violently tossing her across a bed.
- In September 2015, the wife discovered an image of the other woman on the husband’s phone; a confrontation followed.
- The wife slapped the husband, scratching his neck, and later shoved him during a struggle over the phone.
- The husband sought a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA), alleging the slap, scratch, shove, and related conduct constituted “abuse” and harassment.
- After a multi-day evidentiary hearing with multiple witnesses, the family court denied the request for a DVPA restraining order.
- The husband appealed, arguing the evidence required issuance of an order and the trial court misconstrued the DVPA.

## Issues

1. Whether the trial court erred in finding the wife’s slap and shove, viewed in context, did not constitute “abuse” under the DVPA (Fam. Code § 6203 and related provisions).
2. Whether, even if abuse were shown, the trial court abused its discretion by denying a DVPA restraining order as unnecessary under Fam. Code § 6340(a).
3. Whether the trial court erred in rejecting claims that the wife’s communications with third parties about the marital conflict constituted actionable DVPA harassment and that denial jeopardized the husband’s or children’s safety.

## Decision

- The Court of Appeal affirmed the order denying the DVPA restraining order.
- The court held substantial evidence supported the trial court’s factual findings, including the determination that the challenged conduct did not amount to DVPA “abuse” in the circumstances presented.
- The court held the trial court properly exercised discretion under Fam. Code § 6340(a) to deny relief where it found an order was not necessary to prevent recurrence or to protect the parties or children.
- The court upheld findings that the wife’s third-party communications were not unlawful harassment under the DVPA on this record.
- The court upheld the trial court’s determination that denying the order would not jeopardize the husband’s safety or the children’s safety and welfare.

## Legal Principles

- DVPA “abuse” includes intentional or reckless bodily injury or attempts, placing a person in reasonable apprehension of imminent serious bodily injury, and conduct enjoinable under Fam. Code § 6320 (including disturbing the peace and certain forms of harassment).
- Appellate review is deferential: factual findings are reviewed for substantial evidence, and issuance or denial of DVPA restraining orders is reviewed for abuse of discretion.
- Fam. Code § 6340(a) is discretionary; a court may deny a protective order even when some qualifying conduct is shown if it finds an order is not necessary to prevent recurrence, ensure separation, or protect safety.
- In DVPA determinations, the trial court may consider context, history between the parties, relative credibility, and the likelihood of future harm when assessing whether conduct constitutes “abuse” and whether relief is necessary.
- Communications to friends or confidants about marital conflict, without a showing of targeted conduct meant to disturb the other party’s peace or otherwise qualify as enjoinable harassment, may be found non-abusive under the DVPA.

## Conclusion

The Court of Appeal affirmed the denial of a DVPA restraining order, holding that the trial court’s no-abuse findings were supported by the record and that, in any event, the court acted within its statutory discretion to deny relief after finding an order was not necessary to prevent future harm or protect the parties or children.


Fischer v. Fischer, 22 Cal. App. 5th 612 (Ct. App. 2018)