Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Family Law

Trial Court's Exclusion of Evidence Was Error Requiring Reversal of Order Denying Restraining Order

Judges have a lot of leeway to exclude evidence at trial. But in *Brubaker v. Andy Strum* (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought the evidence of harassment was barred by the doctrine of issue preclusion. But the judge misunderstood the doctrine of issue preclusion. That was a legal error. As a legal error was the basis of the exclusion, the exclusion order had to be reversed.

**The upshot**: Evidentiary rulings normally are difficult to challenge on appeal, being subject to the deferential abuse of discretion standard. But when an evidentiary ruling is based on an error of law, you may be entitled to something more like de novo review. That is what happened in this case.

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Renewed Restraining Order Affirmed on Appeal; Appellant Forfeited Challenge by Failing to Describe All Evidence Supporting the Order

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 on the 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.).

Reviewing a renewal of a DVRO, the court analyzed the Ritchie factors and found that findings supporting the original DVRO, a key point of the analysis, were not properly captured in the appellant's brief. So the issue was forfeited. Order affirmed.

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Family Judge's Refusal to Consider a Pre-Dissolution Mental Evaluation Is an Abuse of Discretion

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination."

Despite repeated objections by the wife that the husband's recent life-threatening injuries had caused a behavioral change and mental disturbance affecting his capacity, the family judge in In re Marriage of Hermes (D4d3 Jun. 16, 2021) no. G058623 (nonpub. opn.) had credited the husband's attorney's improvident view that the family court does not need to determine capacity issues.

In fact, yes, the family court does need to adjudicate claims of mental capacity.

In the trial court, there is much to be said for the Al Davis rule: "Just win, baby." But leading the trial court to misunderstand its legal obligations should be regarded an exception to that rule.

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Denial of Domestic Violence Restraining Order Reversed; Improper to Refuse Evidence of Recent Abuse, Appeals Court Holds

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal and evidentiary rules entirely, its rulings are entitled to no discretion at all.

That is what happened in Marriage of F.M. and M.M. (D1d1 May 28, 2021) no. A160669 (non-pub.). The trial court ruled that although the parties "definitely need to stay away from each other," the court concluded "[t]hat doesn't mean that there needs to be domestic violence restraining orders." Instead, the court ordered mother to move out of the house (even though no one asked for that).

The court also categorically refused to consider mother's testimony that father had threatened violence after the TRO was issued.

But that is not how any of this works, the First District Court of Appeal held.

Reversed and remanded.

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Spousal Support Order Reversed on Appeal for Lack of Explicit Findings

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked […]

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Family Law Appeals: The Cal. Appellate Law Podcast Episode 6

TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss family law appeals in the latest episode of the California Appellate Law Podcast. In addition to some nuts-and-bolts procedure, we […]

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