Telling Estranged Wife That She Is "Fat," "Lazy," and "Trailer Trash" Doesn't Justify Restraining Order

From H.B. v. F.K., decided Monday by the California Court of Appeal (Superior Court Judge Ruth Ann Kwan, joined by Justices Victoria Chavez & Brian Hoffstadt):

H.B. obtained a domestic violence restraining order (DVRO) against her estranged husband, appellant F.K., pursuant to the Domestic Violence Prevention Act (DVPA). The trial court issued the DVRO on the grounds that appellant "called the mother of his children 'fat,' 'lazy,' 'trailer trash.'" The trial court misinterpreted the purpose and scope of the DVPA, which "prevent[s] acts of domestic violence, abuse, and sexual abuse." Puerile name-calling by a spouse is lamentable but does not warrant a DVRO. We reverse….

The purpose of the DVPA "is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." The DVPA is broadly construed to accomplish its purpose.

A DVRO may issue if an affidavit or testimony "shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." Abuse includes bodily injury, sexual assault, or causing "reasonable apprehension of imminent serious bodily injury." It "is not limited to the actual infliction of physical injury or assault." Violation of a DVRO is punishable as a misdemeanor.

A court may enjoin "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering," false impersonation, harassing, annoying telephone calls, destroying personal property, contacting, approaching, and disturbing the peace of the other party. Disturbing the peace is conduct that "destroys the mental or emotional calm of the other party." It includes "coercive control" that "unreasonably interferes with a person's free will and personal liberty" such as isolating the person; withholding basic necessities; controlling or monitoring movements, behavior, communications, finances, resources or access to services; or compelling conduct by force or intimidation….

Courts have acknowledged that the DVPA may apply without infliction of physical injury or assault. In N.T., a husband was subject to a temporary restraining order forbidding him from harassing, stalking, or contacting his wife, or disturbing her peace: While the TRO was in effect, he tried to discuss their relationship; refused to relinquish their child after visits; sought physical intimacy; followed her; placed a letter to her in a diaper bag; and came to her confidential location despite being prohibited from obtaining her address. The appellate court wrote that these actions "would have been acts of abuse without the existence of the TRO" because they are "obvious breaches" of the wife's peace.

A DVRO is warranted if a spouse publicly discloses confidential e-mails to control, harass and abuse the petitioner by damaging her business and personal relationships, which "destroys the mental or emotional calm of the other party." After a relationship ends, subjecting someone to ongoing electronic and personal contact, despite requests to stop, is a disturbance of her peace.

A DVRO may issue where a petitioner shows a course of misconduct (instances of physical violence and emotional abuse) and testifies that her male partner is "an aggressive person capable of violence." In Perez, a partner texted and called the petitioner "hundreds of times," said she was "going [to] pay" and broke into her home, causing her to fear for her safety and that of her children.

By contrast, calling someone names—when there is no history of physical abuse, threats of harm or ongoing harassment—does not justify a DVRO. A DVRO is unsuitable for a former partner who called the petitioner a "'cold bitch'" and "'spoiled brat,'" where the trial court found he was excitable, frantic or agitated and needed "to calm down" but found that no threats were made. The trial court described the behavior as involving "'a very negative comment, … an argument, and essentially he wouldn't stop and was badgering her.'" The appellate court concluded that this was not abuse….

The DVPA Does Not Apply Here

The record does not show bodily harm, sexual assault or apprehension of imminent serious bodily injury. Nor does it contain evidence that appellant molested, attacked, struck, stalked, or threatened H.B. or disturbed her peace. The trial court believed appellant's testimony that he did not engage in lewd behavior or cause H.B. fear by blocking her movements. We defer to the court's credibility assessment of the witnesses. H.B. conceded that appellant "never put his hands on me." The court did not find that appellant engaged in financial abuse or coercion.

The sole basis for the DVRO was the [trial] court's finding of "harassment in this matter, and that is based on [appellant's] own admission that he has called the mother of his children 'fat,' 'lazy,' 'trailer trash.'"

The DVPA addresses abuse, not rudeness. Appellant's name-calling was ill-mannered or mean but did not amount to abuse under the DVPA…. [N]o abuse is shown by "'a very negative comment'" during an argument or "'badgering.'" If intemperate words between spouses and partners were grounds for a DVRO, the courts would be overcome by litigants seeking to control uncouth language or judicially suppress opinions that a spouse is, perhaps, overweight or could do a better job of house cleaning. This is untenable.

H.B. did not show a course of misconduct—including a history of physical violence—or an onslaught of hundreds of harassing calls and texts that caused extreme fear. Nor did H.B. present evidence that appellant waged an "e-mail campaign" to friends and employers or made "alarming, annoying and harassing" sexual accusations about her to her children, causing so much emotional distress that one child required care at a mental health facility.

Neither the plain language of the DVPA nor the case law interpreting it support the issuance of a DVRO. The court elevated a garden-variety spat and hurt feelings into a case of domestic violence and abuse exceeding the scope of the DVPA….

Although a DVRO is unwarranted for mere name-calling, the court has at its disposal means to ensure that the children are not exposed to bad behavior, which was the court's primary concern. "It is certainly in the best interests of any children of divorce that the adults in their lives act in a mature and courteous manner." (In re Marriage of Candiotti (Cal. App. 1995) [former spouse has a First Amendment right to disparage her children's stepmother to other adults, if it does not directly affect the children].)

"In family law cases, courts have the power to restrict speech to promote the welfare of the children. Thus courts routinely order the parties not to make disparaging comments about the other parent to their children or in their children's presence." (In re Marriage of Hartmann (Cal. App. 2010); Molinaro v. Molinaro (Cal. App. 2019) [the court may prevent spouses from disparaging each other in front of the children but prohibiting a spouse from posting about the divorce on-line is an unconstitutional prior restraint].) In this instance, the court may order the parties to refrain from disparagement or name-calling in the presence of their children, without the need for a DVRO.

Congratulations to Yury Galperin (Galperin & Hensley), who represents the husband.