In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review of factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a forfeiture of the issues on the appeal in *Ashby v. Ashby* (D4d3 Aug. 5, 2021) 2021 WL 3413092 no. G058474 (nonpub. opn.).
The appellant challenged an order renewing a domestic violence restraining order (DVRO) in favor of his wife, from whom he has been separated for several years. These are tough to challenge because they are reviewed for abuse of discretion, and related factual findings are reviewed for substantial evidence. But the appellant thought he had a good idea to challenge it. Unfortunately, it was only half a good idea.
The appellant did have a valid reason to believe the DVRO should not have been ordered renewed for another five years, which represents a serious limitation of the appellant's rights, including his right to the firearms he and his wife both owned and used and of which he had already been deprived for five years. Besides, the appellant already lives 1,000 miles away from wife.
At the hearing, the wife spent most of her testimony explaining why she and the appellant couldn't get along, citing events leading up to the first DVRO, and seemed to struggle to provide any basis why the appellant still posed a risk of abuse today. The court seemed to rely on the wife's testimony that the appellant was withholding money, and that the wife felt the appellant still held a lot of hostility against her.
In fairness to the appellant, this does seem a rather paltry showing. But it was enough for the judge, who renewed the DVRO for another five years.
The appellant challenged the order as lacking evidence after the issuance of the original DVRO supporting its renewal.
Legal Standard on Renewal of DVROs:
Family Code section 6345, governing renewals of DVROs, provides at subdivision (a) that a DVRO “may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order ....” (Italics added.) The Second District in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1283 (Ritchie), explained that this means the renewal of the DVRO requires a reasonable apprehension of future abuse if the initial order expires. “[S]ection 6345 makes it unnecessary for the protected party to introduce or the court to consider actual acts of abuse the restrained party committed after the original order went into effect."
The Ritchie factors the trial court must consider in renewing a DVRO are:
Appellant Forfeited His Challenge by Failing to Exhaustively Describe and Cite to All Evidence Supporting Renewal of the DVRO:
As commented above, the wife's showing of new circumstances — the second Ritchie factor — was rather scant. So the appellant challenged this and argued the trial court abused its discretion in failing to consider this factor. (After all, failing to consider a required factor may itself be an abuse of discretion.)
But in this, the appellant overlooked the first Ritchie factor: the evidence supporting the initial DVRO. And this failure resulted in a forfeiture. That is because the appellant's challenge to sufficiency of evidence supporting the renewed DVRO is reviewed for substantial evidence, which imposes on the appellant the burden to demonstrate the record lacks evidence to support a finding of fact. Here is a good statement of the standard to clip-and-save:
“That burden is a heavy one: ‘ “A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]” [Citation.] “[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.” ’ [Citation.]” (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487.)
Here, the appellant "improperly refutes the factual basis" for the original DVRO, gives short shrift to the factual history, "ignores significant events" in the case, "omits the reasons why" the trial judge denied the appellant's request to modify or terminate the DVRO, and generally provided a "one-sided narrative of events."
Specifically as to the appellant's focus on the lack of recent events to support renewal of the DVRO, the court said this emphasis "turns our standard of review on its head." That is because, on review for substantial evidence, the court does not review the evidence to see if there is substantial evidence to support the losing party's version of events. Rather, the court looks solely to whether there was substantial evidence in the winning party's favor. That is why the appellant is required to set forth, discuss, and analyze both the favorable and unfavorable evidence. “ ‘ “Unless this is done the error is deemed to be waived.” ’ [Citation.]” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.)
Would Having Requested a Statement of Decision Changed the Outcome?
Apparently anticipating the appellate presumptions against him, the appellant made an interesting evasive maneuver. He argued that the trial court's minute order granting the renewed DVRO should be construed as a statement of decision. And if there was a statement of decision, then the appellate court should not infer the trial court made any other findings against the appellant — including a finding that the evidence supporting the original DVRO supported the renewal.
Even in the best case there is reason to doubt this approach would work. But the court offered three procedural reasons for rejecting this gambit: (1) it is a new argument raised for the first time in the reply brief, (2) the record reflects the trial court did not intend for its minute order or statements on the record to be a statement of decision, and (3) the appellant did not request a statement of decision.
But had the appellant timely requested a statement of decision, requested a finding on each of the Ritchie factors, and then objected if any findings were missing, then this likely would have changed the appellate analysis. Whether it would change the result, however, is another question.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.