Filed 5/22/15 Marriage of Lin CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re Marriage of GINA and AUGUSTIN
A. LIN.

GINA S. LIN,
                                                                       G049307
     Respondent,
                                                                       (Super. Ct. No. 10D001389)
         v.
                                                                       OPINION
AUGUSTIN A. LIN,

     Appellant.



                   Appeal from an order of the Superior Court of Orange County, Ronald
Kreber, Judge. Reversed.
                   Honey Kessler Amado and Kristin L. Smith for Appellant.
                   Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher
for Respondent.
              Augustin Lin appeals from a three-year domestic violence restraining order
issued under the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.)1
upon an application filed by his former wife, Gina Lin, on behalf of the couple’s three
minor children.2 Gina sought the domestic violence restraining order, while she had an
order to show cause (OSC) to modify custody and visitation pending, following an
incident in which Augustin struck one of the children on the head (rapping her with his
knuckles) to get her attention when she was arguing and talking back to him. The Orange
County Sheriff’s Department investigated and concluded Gina’s report of child abuse did
not warrant referral to child protective services. The Orange County Social Services
Agency (SSA) investigated and found the allegations of physical abuse unfounded and
allegations of emotional abuse unsubstantiated. Nonetheless, the trial court concluded
there was abuse warranting issuance of a three-year restraining order against Augustin.
The domestic violence restraining order included personal conduct orders prohibiting him
from hitting, striking, threatening, harassing, and disturbing the peace of the children, or
contacting them by any means including telephone. It also included stay away orders,
except as necessary for court-ordered visitation. At the same time, as both part of the
domestic violence restraining order and in ruling on Gina’s OSC to modify custody, the
court awarded Gina sole legal and physical custody of the children but ordered Augustin
would have extensive unmonitored visitation with them on weekends, during the week,
and during school holidays, permitted him to attend school events and extracurricular
activities, and allowed him to communicate with the children when he did not have them




1             All further statutory references are to the Family Code, unless otherwise
indicated.

2             “As is customary in family law proceedings, we refer to the parties by their
first names for purposes of clarity and not out of disrespect. [Citations.]” (Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

                                              2
for visits. We agree with Augustin the trial court abused its discretion by issuing the
domestic violence restraining order, and we reverse the order.
                                FACTS & PROCEDURE
              Augustin and Gina were married in 1998. The dissolution judgment
entered in January 2011 awarded them joint legal and physical custody of their three
minor children: daughters C. (then age nine) and Ca. (then age seven); and son Connor
(then age four). Augustin had custody of the children every week from Tuesday after
school until Thursday morning and alternate weekends (beginning Friday after school
and ending with the custodial parent dropping the children off at school Monday
mornings), with holidays and school breaks being divided between the parents.
              In February 2012, Gina applied for and obtained a three-year domestic
violence restraining order against Augustin protecting Gina, her fiancé, and his mother,
due to confrontations taking place during custody exchanges. Gina was awarded sole
legal custody of the children, but Augustin and Gina continued to share physical custody.
In March 2012, Gina filed an OSC to modify custody and visitation, which was
repeatedly continued. The trial court appointed Dr. Russell Johnson to be the custody
evaluator.
              On June 5, 2013, Gina applied ex parte for a second domestic violence
restraining order on behalf of the children—C. (now age 12), Ca. (now age 10), and Co.
(now age six). She alleged that on Saturday June 1, 2013, while the children were with
Augustin for the weekend, Augustin hit C. on the head and verbally abused C. and Ca.
              The incident apparently began when C. threw away cherries she believed
were not edible, but which Augustin believed were still good. Augustin later testified C.
was talking back and arguing with him about the state of the cherries so he gave her a
“‘knuckle sandwich’” hitting her on the top of the head with his knuckles to get her
attention telling her to stop arguing with him and to respect him.



                                             3
              Ca. texted Gina in the late afternoon that Augustin had been yelling at C.
about being wasteful and disrespectful, and C. was crying. There was no mention of
hitting. C. texted Gina that she had been recording Augustin on her cellphone and would
show the recording to Gina later. When Gina picked the children up from school on
Monday afternoon, the argument over the cherries was discussed, but there was no
mention of hitting. That evening, when Gina was putting the children to bed, Ca., who
did not witness the hitting event, told Gina that Augustin had “punched” C. in the head.
Gina listened to the cellphone video recording Ca. had made (there was only audio—the
video was distorted because Ca. was hiding the phone while she recorded). After
listening to the recording, Gina woke C. to ask her what had happened. C. told Gina that
Augustin hit her on the head during an argument and afterwards her head hurt and her
head and face went numb and tingly. C. broke down crying telling Gina she was afraid to
go back to Augustin.
              A transcript of Ca.’s cellphone recording of Augustin’s interaction with the
C. after C. had gone to her room crying was attaching to the domestic violence
restraining order application. It reads in relevant part:
              “Oh you . . . something. Get out of bed. I told you I could be mean. I told
you guys that. Get to work.
              “Tell me what you guys did at your mother’s house. Tell me.
              “Tell me what did she teach you guys. Except that you ____ mouth off to
me.
              “Now get up. Did you hear me? [C.] I will. Get up. I will. Don’t you
yell at me if you know what’s good for you.
              “(Mumbling [sic]. . . crying) What do you need her? She’s doing her
work. ___ [w]hat are you here for? Huh? Nothing. (Crying) I keep telling you the
older you are the worse you are getting. Where the hell are you learning respect?
Especially when I teach you things and you don’t know things. (Crying) I am tired the

                                              4
way you guys act right now. The more time you spend over there the worse you get over
there. Alright teach you guys so you know better.
              “Get up. I will. Now! I told you don’t get me mad. Things could get
worse. Learn how to respect. Learn how to talk to me right. You’re the oldest [C.] you
should be leading by example.
              “I get worse than that. You remember that. I’m tough. Tougher than you
guys—Find out how tough I am don’t test me. Just take my word for it. I got hit harder
than that when I was younger. When you guys disrespect me ever again that’s what you
get from now on. I keep telling you guys this. I keep teaching you guys this. You guys
don’t listen and you guys don’t remember. Maybe now you will remember and no way
are you going to go back to your mother and tell her what I did. It’s not going to help
you any because you guys have no discipline. Your mother doesn’t know how to
discipline you guys. How to raise kids the way that kids should be raised. You
understand me [C.]? Yes. I keep telling you don’t disrespect me. Listen to me. I’m
teaching you things.
              “Get up! Get up now before I hit you again. Did you hear me? Did you
hear me [Ca.]? (Panting) Huh? You think this is bad. It could be worse. You better
watch yourself. Don’t think you’re really good at what you do. Do you hear me? Yes.
Don’t you ever disrespect me again. You understand? Yes. What was that? Yes. What
was that? Yes. What was that? Yes. What’d I say about yelling to me. I said yes.
Huh? I said Yesses. (Crying) . . . .”
              After talking to C., Gina called the police at 3:44 a.m. She spoke with
Orange County Sheriff’s Deputy Ralph Naso who told her to come to the station to file a
report. Gina immediately took C. and Ca. to the station and filed a report. Gina also
contacted Ca.’s therapist.
              Augustin’s opposition to Gina’s ex parte application asserted Gina filed the
domestic violence restraining order application to gain advantage in the pending custody

                                             5
evaluation and OSC re modification of custody. Augustin believed the hitting incident
was nothing more than a “normal parenting” situation when the children were being rude,
disrespectful, and mouthing off to him. Augustin declared that on Saturday evening,
within a few hours of the incident, everything was resolved and they were all getting
along well, and there were no issues the next day.
              The court granted Gina’s request for a temporary domestic violence
restraining order protecting the three children, awarded Gina sole legal and physical
custody of the children with no visitation for Augustin, and scheduled a hearing on the
domestic violence restraining order application. A combined hearing on Gina’s domestic
violence restraining order application and her OSC re modification of custody and
visitation began on July 17, 2013.
              Deputy Naso testified for Augustin. He interviewed C. and Ca. when Gina
brought them to the station. At the time of the interview (about 5:00 a.m.) the girls’
dispositions seemed completely “normal,” they did not have any visible injuries, and
neither appeared to be fearful. Naso did not interview Augustin because he was not able
to get in contact with him. Naso did not believe the incident warranted a referral to
Child Protective Services (CPS), although it apparently was referred to CPS by Ca.’s
therapist.
              SSA social worker Nicole Strattman testified as to the results of SSA’s
investigation conducted by a different social worker. The investigating social worker
interviewed the parents, the three children, and the girls’ therapist Lori Breeden-Gomez.
The allegations being investigated were that Augustin struck C. on her head and she felt
numb and tingly afterwards. C. related to the social worker the incident began when she
was cleaning some cherries, throwing those away she thought had mold on them.
Augustin became angry with her and they started arguing, and he hit her on the head.
Augustin was yelling at C. about being disrespectful and complaining he was upset Gina
was not punishing C. C. related her head hurt and tingled for a few minutes. C. said it

                                             6
was the first time Augustin had ever hit her—he usually gave long lectures as
punishment. C. said the incident had made her fearful of seeing Augustin
              Ca. told the interviewing social worker she heard C. say to Augustin that if
he thought the cherries were still good, then he could “eat them out of the trash.” Ca. did
not see Augustin hit C.; but heard C. go upstairs crying and heard Augustin later admit
that he had hit her. Ca. told the social worker that the year before this incident, Augustin
had one time hit her on the head with an open hand. Ca. told the social worker she did
not want to resume overnight visits with Augustin but was agreeable to daytime visits.
              An emotional abuse allegation was added to SSA’s investigation. The
social worker interviewed therapist Breeden-Gomez. The therapist told the social worker
Ca. has “child/parent” relationship issues they were working on. Both girls were very
anxious about what was going to happen in court. C. was afraid Augustin would yell at
them, felt she could not speak up because he would get angry and try to intimidate the
girls, and afraid he would retaliate against them. Ca. was also worried about what
Augustin would do. She told her therapist if Augustin enrolled in anger management
classes, she was willing to have visits with him on alternate weekends, but she did not
want to see him on weekdays because he refused to take them to their sports and other
activities. The therapist opined neither girl was diagnosed with a mental disorder. The
therapist said both girls had anxiety issues with Augustin, but she gave no indication as to
what level of anxiety they had.
              The social worker interviewed Augustin. He denied “hitting” C. He was
trying to explain to her why the cherries were still good and she was arguing with him.
He “tapped” her on the head with the back of his knuckles—what in his day was called “a
quote,‘knuckle sandwich’”— to get her attention when she was disrespectful to him. He
admitted once hitting Ca. a year earlier after she hit her brother to show her that it was
not okay to hit her brother. He denied cussing at or berating the children and said he only
yells at them. The social worker described viewing/hearing the videotape on which

                                              7
Augustin said things to C. like, “‘Get up before I hit you again[;]’” “‘Get up. You hear
me[?] I told you I could be mean. Where the hell are you learning respect[;]’” and “‘I’m
tough. Tougher than you guys. When I was younger, I had it worse . . . don’t test me.
Take my word for it. I can hit harder than that if you disrespect me again.’”
              The social worker interviewed Co., who said he saw Augustin “‘smack[]’”
his sister on the head with his knuckles closed and his thumb up. It was the first time Co.
saw his father hit his sister. Augustin had never hit Co., and Co. said he missed Augustin
and was not afraid of him.
              Strattman explained that a social worker investigating abuse allegations can
make findings the allegations are inconclusive (meaning there is insufficient evidence to
prove if the allegations are true or not), unfounded (meaning the allegations are false or
inherently improbable, or the incident could be accidental), or substantiated (more likely
than not that child abuse or neglect occurred). Although the social worker’s interview
with C. revealed she was fearful of retaliation by Augustin, the social worker found the
physical abuse of C. and risk of physical abuse to Ca. and Co. allegations unfounded, and
the emotional abuse allegation as to C. and Ca. inconclusive. The case was closed.
              Johnson testified and his custody evaluation report was admitted into
evidence. Although Augustin has not included Johnson’s report in his appellant’s
appendix, Johnson’s recommendations were adopted by the court and attached to the
domestic violence restraining order.
              Johnson testified he interviewed the children on June 12, 2013, about the
June 1, 2013, incident. C. described the force of the hit as a five or six on a scale of one
to 10. Johnson agreed his report stated C. indicated her head felt fine later, the family
went out to dinner and “things were fine and she was pretty good,” and he did not get the
impression C. had any injury “so I think she was okay.” He listened twice to the
recording of the incident, read the transcription of it, and discussed it with Augustin.
Augustin acknowledged to Johnson the voice in the recording was his. Johnson

                                              8
confirmed the girls were fearful of returning to Augustin’s custody as a result of the
incident—a “hit or tap” to C.’s head because it was a change in the kind of discipline he
meted out—he had not hit before. Johnson explained the incident made the girls
apprehensive about the style of discipline Augustin would use in response to their future
behavior. Johnson did not believe the girls feared Augustin would “beat” them, but they
were afraid he might hit them again because of his statements his own parents had done
worse to him and he might do worse to them.
              Johnson characterized the girls’ apprehension about seeing Augustin as
being “moderate.” Johnson opined there were two components to the fear the girls
expressed: The fact Augustin had hit C., which startled the girls, and his language
afterwards saying worse might happen to them in the future. The two components made
the girls feel threatened, “Like, ‘I’m not sorry I did it and I might do that or worse again,’
is what they took from that and I think that’s where the anxiety came from.” The girls
did not know how to approach a resolution with Augustin. Johnson testified the girls’
apprehension was about the kind of discipline they would receive from their father. He
did not think there was a substantial risk of the children being exposed to domestic
violence by being with their father. He testified the domestic violence risks were
between the adults (Augustin, Gina, and Gina’s fiancé) during custody exchanges based
on “a couple of incidents in the past between the adults” which was why the exchanges
now took place at school or another neutral location.
              Johnson testified Augustin had anger management problems he would not
acknowledge. He testified Augustin’s actions were not “‘normal parenting,’” because
hitting a child on the head with a knuckle even lightly would hurt, and apparently it was
painful to C. Johnson recommended Augustin get immediate counseling regarding his
parenting style, which he described as an authoritarian style that lead to other issues with
the children, and for Augustin and the children to work on their interaction and
relationships. Otherwise, the incident could negatively impact the ongoing relationship

                                              9
between the children and Augustin. Johnson recommended against stepped-up contact
right away because the incident had just occurred and the children were still upset about
it—he believed some period of counseling was needed to address the children’s fears and
concerns. However, Johnson also felt the children should resume contact with Augustin.
Johnson believed it was in the children’s best interest to have contact with Augustin
“because, for the most part, things were all right between them, and [he] didn’t want to
abruptly disrupt that. Because I didn’t think that—I thought that might send them the
wrong message.” Johnson believed changing the current custody schedule in accordance
with his recommendations—with a reassessment in six months—was an appropriate way
to handle it.
                Johnson’s recommendations (which were subsequently adopted by the
court in full and are additionally discussed below), were that Gina have sole legal and
physical custody of the children. He recommended the children maintain “frequent and
continuing contact” with Augustin on a visitation schedule that included Augustin having
the children for the first, third and fifth weekend of each month (from Friday evening
through Monday morning), three hours on one weekday night each week; and holidays,
birthdays, and school and summer vacations split between the parents.
                Augustin testified and confirmed he told Johnson that he had hit C. in the
dispute over the cherries. He gave her a “‘knuckle sandwich’” on the head to get her
attention—because she was not listening to him and was instead arguing with him.
Augustin believed it was appropriate to hit C. at the time, and he admitted telling C.
sometime after the incident that things could get worse and he might hit her again. He
now realized hitting C. was not appropriate. Augustin testified he would not tap or hit in
the future. When asked if he would threaten to hit, he replied, “It’s hard to say what’s
going to happen tomorrow. But will I intend to? No.”
                Augustin testified that after the incident, he and the children had a “family
meeting” to discuss and resolve the issues. He gave the girls the option of going back to

                                              10
Gina’s, and they declined. After dinner that night, the family played a board game, and
the children were normal. On Sunday, everyone was happy and fine and there were no
lingering issues.
              Gina testified that since the temporary domestic violence restraining order
was issued, the children were in her care and custody, and had not had visits with
Augustin. She observed the girls were fearful of Augustin and apprehensive about seeing
him. Gina was aware Augustin had offered to let the girls return to her house after the
hitting incident and they declined. She believed they declined because they did not want
to say in front of Augustin that they were afraid of him.
              Gina testified both girls were in therapy and still had fear of returning to
Augustin, feared retaliation by him, and both had devised a “safety plan” with their
therapist. She conceded Co. did not express any fear of Augustin and he was not in
therapy. Gina testified Co.’s lack of fear did not make her rethink the girls’ anxiety
because Co. did not get the same type of discipline from Augustin as the girls. Gina
testified that around the time Ca. was born, Augustin had pushed her down and punched
her in the arm.
              Gina was in agreement with Johnson’s custody evaluation and his
recommendations about Augustin’s visitation including they would be with him the first,
third, and fifth weekend of every month and have a midweek visit. She felt it was
important for the children to maintain their relationship with Augustin. She believed,
however, the girls resumed visits should be “eased into” or possibly monitored at first.
Ruling
              On July 19, 2013, the court found, by a preponderance of the evidence,
Augustin was the perpetrator of domestic violence and found there was apprehension or
fear that was rational. The court stated there was threatening behavior and the children’s
fear was real. While observing Augustin was probably “a very, very good person and
probably a very good parent, but he comes from a different background, and it’s just not

                                             11
going to work in our day and age. He might be correct, but it’s not accepted, and it puts
too much stress on the children.” The court further commented to Augustin “you and I
may have been treated the way your parents treated you, but that’s different. We’ve got
to deal with what we have today, and there’s too much evidence about distress the
children have. They should not have stress. It’s just too short a time period to go through
that a young person has stress. So we can’t have that.” The court commented the
children and Augustin needed to remain in therapy. The court stated it would adopt
Johnson’s report and recommendations, and specifically stated it would not consider
ordering a monitor for Augustin’s visits with the children. However, the court wanted to
make sure the resumed visits got “started on the right foot” so before he could begin
having the children for the first, third, and fifth weekends of the month, Augustin needed
to complete two therapy sessions.
              The court issued a three-year domestic violence restraining order against
Augustin with C., Ca., and Co. as the protected persons. The personal conduct portion of
the domestic violence restraining order enjoined Augustin from hitting, striking,
threatening, harassing, and disturbing the peace of the children, or contacting them by
any means (including telephone). The exception of peaceful contact for court-ordered
visitation was not included in the personal conduct portion of the domestic violence
restraining order. The stay-away order portion of the domestic violence restraining order,
ordered Augustin to stay 100 yards away from the children’s residence and school, except
for peaceful contact as required for court-ordered visitation. The domestic violence
restraining order, however, also specifically permits Augustin to be present at the
children’s extracurricular school activities. The court’s domestic violence restraining
order adopted Johnson’s specific recommendations pertaining to custody, visitation, and
therapy. Gina was granted sole legal and physical custody of the children, with Augustin
being allowed unmonitored visitation after completing two sessions of therapy as
follows: the first, third, and fifth weekend of the month (Friday evening through Monday

                                            12
morning), three hours on one weekday night each week; and holidays, birthdays, and
school vacations would be split between the parents. The visitation portion of the order
allows the children to communicate freely with the non-residential parent at the
children’s discretion, and each parent may have one evening telephone call with the
children on days he or she does not have them. The court ordered an updated child
custody evaluation be conducted in six months. The court denied Augustin’s subsequent
request for a statement of decision.
              On September 18, 2013, the court entered its findings and order on Gina’s
OSC re modification of custody and visitation (hereafter the custody modification order),
which was consistent with the domestic violence restraining order. The custody
modification order directed that Augustin “shall not use corporal punishment in
disciplining the children[,]” and his unmonitored parenting time would begin after he
completed two therapy sessions. The custody modification order specified Augustin
would remain bound by the provisions of the domestic violence restraining order, but his
“peaceful contacts as provided in [the custody modification order were] excepted from
the provisions of the [domestic violence restraining order].” Augustin filed his notice of
appeal from the July 19, 2013, domestic violence restraining order on November 15,
2013. He has not appealed the custody modification order.
                                       DISCUSSION
              Augustin contends the trial court abused its discretion by issuing a three-
year domestic violence restraining order under the DVPA. We agree.
              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.” (§ 6220.) To that end, a trial court may issue a restraining order under
the DVPA upon “reasonable proof of a past act or acts of abuse.” (§ 6300.)



                                             13
              Section 6203, subdivision (a), defines “abuse” as “any of the following:
[¶] (1) Intentionally or recklessly to cause or attempt to cause bodily injury[;]
[¶] (2) Sexual assault[;] [¶] (3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another[;] [¶] (4) To engage in any behavior that
has been or could be enjoined pursuant to [s]ection 6320.” (§ 6203.)3 The behaviors
outlined in section 6320 include “molesting, attacking, striking, stalking, threatening,
sexually assaulting, battering, credibly impersonating as described in [s]ection 528.5 of
the Penal Code, falsely personating as described in [s]ection 529 of the Penal Code,
harassing, telephoning, including, but not limited to, making annoying telephone calls as
described in [s]ection 653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, coming within a specified distance of,
or disturbing the peace of the other party, and, in the discretion of the court, on a showing
of good cause, of other named family or household members.” (§ 6320, subd. (a).)
              Pursuant to section 6300, a domestic violence restraining order may be
issued upon reasonable proof based on a preponderance of the evidence of past act(s) of
abuse. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137 (Gdowski ).) The trial
court has broad discretion in determining whether to grant a domestic violence restraining
order. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420-421 (Gonzalez).)


3              The current version of section 6203, which became effective after this
domestic violence restraining order was issued, amended section 6203 to renumber
former subdivisions (a) through (d), as subdivisions (a)(1) through (a)(4), and to add a
new subdivision (b), that reads, “Abuse is not limited to the actual infliction of physical
injury or assault.” (Stats. 2014, ch. 635, § 2.) The new subdivision (b) is consistent with
existing case law concerning the definition of abuse under the DVPA (see e.g., In re
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496 (Nadkarni) [to constitute
abuse under the DVPA, conduct “‘need not be actual infliction of physical injury or
assault.’ [Citation.] To the contrary, section 6320 lists several types of nonviolent
conduct that may constitute abuse within the meaning of the DVPA . . . .”]), and the
addition of that subdivision does not affect our analysis.


                                             14
Accordingly, we review the trial court’s grant of a restraining order for abuse of
discretion, which occurs only if the court’s ruling exceeds the bounds of reason, fails to
apply correct legal standards, or is without substantial support in the evidence. (S.M. v.
E.P. (2010) 184 Cal.App.4th 1249, 1264-1265 (S.M.) [“‘[j]udicial discretion to grant or
deny an application for a protective order is not unfettered’”]; see Gonzalez, supra, 156
Cal.App.4th at p. 420.)
              When the parties do not request findings of fact, we assume the trial court
made the factual findings necessary to sustain its order. (Michael U. v. Jamie B. (1985)
39 Cal.3d 787, 792-793, superseded by statute on another ground as stated in In re
Zacharia D. (1993) 6 Cal.4th 435, 448; Fladeboe v. American Isuzu Motors, Inc. (2007)
150 Cal.App.4th 42, 48 (Fladeboe).) We review the court’s express and implied factual
findings for substantial evidence. (Richardson v. Superior Court (2008) 43 Cal.4th 1040,
1046, fn. 4; Fladeboe, supra, 150 Cal.App.4th at p. 59.)
              We conclude that issuance of a three-year domestic violence restraining
order against Augustin as to his children exceeded the bounds of reason and, thus, was an
abuse of discretion. The evidence of abuse under the DVPA is lacking and, more
significantly, issuance of the restraining order was completely inconsistent with, and in
conflict with, the custody and visitation orders made at the same time.
              As to the evidence of abuse, section 6203, subdivision (a)(1), requires
evidence of intentionally or recklessly causing or attempting to cause bodily injury. The
undisputed evidence is that Augustin used corporal punishment on C.—the first time such
punishment had ever occurred with C.—in response to her arguing with him about
whether the cherries were edible and her telling him he could eat them out of the trash if
he thought they were still good. It is undisputed Augustin hit C. on the head with the
back of his knuckles and it caused brief transitory and short-lived pain—her head felt
numb and tingly for a few minutes. She had no physical injury—no bump, knot, or
bruise—resulting from the single hit. Deputy Naso interviewed C. and Ca. about the

                                             15
incident. He found the girls had perfectly normal demeanor, C. had no visible injury, and
he concluded the incident did not warrant further investigation. The investigating social
worker found the physical abuse and risk of physical abuse allegations unfounded. The
custody evaluator agreed C. had no injury.
              Section 6203, subdivision (a)(3), also allows a finding of abuse if the
children were placed in reasonable apprehension of imminent serious bodily injury from
their father. Here, the youngest child, Co., expressed absolutely no fear or concern about
being with his father, missed him and wanted to resume visits. (See In re C.Q. (2013)
219 Cal.App.4th 355, 364 [abuse of discretion to include children as protected persons in
mother’s restraining order absent evidence indicating their safety might be in jeopardy
absent their inclusion in restraining order].) Although the girls expressed fear of seeing
their father, there is no evidence it was reasonable fear of imminent serious bodily injury,
as opposed to apprehension and anxiety about the level of disciple he might use in the
future. Johnson testified the girls did not express fear Augustin would “beat” them, but
they were afraid he might be angry with them and might use harsher punishment in the
future than he had in the past. (See People v. Clark (2011) 201 Cal.App.4th 235, 251
[permissible use of reasonable corporal discipline by parent].) Despite expressing some
anxiety, Ca. indicated she wanted to resume visits on the weekends. She did not want
weekday visits because they interfered with her extracurricular activities. 4
              Gina argues Augustin’s conduct falls within section 6202,
subdivision (a)(4) [“behavior that has been or could be enjoined pursuant to
[s]ection 6320]” because he hit C.—something he had never done before—and, during
the argument threatened he might use corporal punishment in the future if she continued
to argue and disrespect him, and thus he “disturb[ed] the peace of the [children]” by
making them fearful of him.


4             Section 6203, subdivision (a)(2) [sexual assault], is inapplicable.

                                             16
              In Nadkarni, supra, 173 Cal.App.4th at page 1497, the court explained
“‘disturbing the peace of the other party’” as used in section 6320 “may be properly
understood as conduct that destroys the mental or emotional calm of the other party.” In
Nadkarni, the wife made a facially sufficient showing of abuse within the meaning of the
DVPA by alleging her former husband had destroyed her mental or emotional calm by
“accessing, reading, and publicly disclosing the content of [her] confidential e-mails.”
(Nadkarni, supra, 173 Cal.App.4th at pp. 1498-1499.)
              In Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140 (Burquet), after
plaintiff broke up with defendant, and despite her repeated requests he leave her alone,
defendant kept contacting plaintiff beseeching her to renew their intimate relationship
and would become angry when she turned him down. When he showed up unannounced
at her residence, he became angry when she would not let him in and told him to leave.
Plaintiff became fearful as to what defendant might do because on two prior occasions
during their relationship when he had gotten angry he became physical with her. (Id. at
pp. 1142-1143.) The appellate court found the facts sufficient to support the trial court’s
finding defendant disturbed the peace of plaintiff and thus committed an act of “‘abuse’”
under the DVPA. (Id. at p. 1147.)
              But unlike Nardkarni and Burquet, the fear and emotional upset in this case
is about parenting style and discipline. As Johnson testified, Augustin had an
authoritarian parenting style that led to issues in his relationships with the children. He
testified the “moderate” apprehension the girls had about Augustin pertained to the kind
of discipline they might receive in the future. They were apprehensive because Augustin
had not used corporal punishment in the past—he disciplined them by lecturing them.
And although Ca. and Augustin both reported that a year earlier he one time hit Ca.—
there is absolutely nothing in the record as to the circumstances or severity of that
incident. Here, in ruling, the trial court underscored its decision was more about
disapproval of Augustin’s authoritarian parenting style and the stress it placed on his

                                             17
daughters, than about concerns of domestic violence. The court emphasized its belief
that Augustin was most likely “a very, very good person and probably a very good
parent,” but that “he comes from a different background, and it’s just not going to work
in our day and age. He might be correct, but it’s not accepted, and it puts too much stress
on the children.”
               As Augustin points out, the terms of the domestic violence restraining order
itself underscore that its issuance was an abuse of discretion. Gina does not address this
argument. Although a trial court is not required to find there is a probability of future
domestic violence before issuing a domestic violence restraining order under
section 6300 (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 783), the purpose of a
domestic violence restraining order is to prevent a recurrence of domestic violence and
ensure a period of separation between the parties. (§ 6300.) Augustin points out the
domestic violence restraining order does virtually nothing in this regard.
               S.M., supra, 184 Cal.App.4th 1249, is instructive. In that case, the trial
court found abuse and issued a domestic violence restraining order following an
argument between mother and father in which he repeatedly badgered her about not
taking their child out of state, which caused mother to become afraid. (Id. at p. 1262.) In
its comments upon ruling, the trial court also stated it did not believe father was in any
way inappropriate for custody or visitation with the child, and thus the restraining order
was not the “kind” that would invoke the section 3044 presumption against awarding
custody to a parent who had been found to have perpetuated domestic violence against
the other parent. (Id. at p. 1262.) The appellate court found the evidence sufficient to
support the finding of abuse. The appellate court further found “[t]he trial court’s attempt
to limit the legal effect of the restraining order further illustrates that the issuance of the
order was an abuse of discretion.” (Id. at p. 1266.) The trial court’s comments suggested
it “did not believe that the facts of this case supported issuing a restraining order under
section 6300.” (Id. at p. 1267.) Because a finding of abuse “sufficient to support a

                                               18
DVPA restraining order necessarily triggers the presumption in section 3044. By stating
that, in its view, the presumption of section 3044 should not be imposed against [father],
the trial court suggested that the court was not making a finding of domestic violence
sufficient to trigger the presumption. If the court did not intend to make a finding that
[father] had committed an act of domestic violence sufficient to trigger the presumption
of section 3044, then the court could not have found that [father] had engaged in
domestic violence sufficient to support issuance of a restraining order under section
6300.” (Id. at pp. 1267-1268.)
              Courts are “encouraged” not to make custody or visitation orders that are
“inconsistent with” any restraining order. (§ 3031, subd. (a); 6223.) Here, the restraining
order’s inconsistency with visitation order contained therein in terms of achieving the
purposes of a domestic violence restraining order support the conclusion issuance of the
domestic violence restraining order was an abuse of discretion. The court issued a
three-year domestic violence restraining order against Augustin with his children as the
protected persons. In the personal conduct portion of the form domestic violence
restraining order, Augustin is required to refrain from hitting, striking, threatening,
harassing, and disturbing the peace of the children, or contacting them by any means
(including telephone). The stay-away portion of the form domestic violence restraining
order orders Augustin to stay 100 yards away from the children’s residence and school,
except for peaceful contact as required for court-ordered visitation. But at the same time,
the court also ordered that Augustin may be present at the children’s extracurricular
school activities and it adopted all of the custody evaluator’s recommendations pertaining
to custody, visitation, and therapy. Although Gina was granted sole legal and physical
custody of the children, Augustin was given extensive unmonitored visitation with the
children contingent only upon his first completing two therapy sessions. The prior
custody order had gave Augustin parenting time every week from Tuesday after school
until Thursday morning, alternate weekends (Friday after school until Monday morning),

                                              19
with holidays and school breaks being divided between the parents. The new visitation
order allows Augustin to have the children, unmonitored, the first, third, and fifth
weekend of the month (Friday evening through Monday morning), three hours on one
weekday night each week; and holidays, birthdays, and school vacations would be split
between the parents. Moreover, although the personal conduct portion of the domestic
violence restraining order prohibits Augustin from contacting the children, the visitation
portion of the order allows the children to freely initiate communication with the non-
residential parent, and allows Augustin to telephone the children on his non-visitation
days.
              The inherent inconsistency between issuing a three-year domestic violence
restraining order against Augustin as a result of the incident, while issuing visitation
orders giving him extensive completely unmonitored continuing parenting time, compel
the conclusion issuance of the domestic violence restraining order was an abuse of
discretion. While we do not condone Augustin’s action in response to his daughter’s
behavior, the concerns arising from the incident were better handled by way of the order
modifying custody and visitation. We observe our reversal here pertains only to the July
19, 2013, domestic violence restraining order. The trial court’s subsequent order ruling
on Gina’s OSC re modification of custody and visitation was not appealed. Thus, as a
practical matter, custody and visitation remain unaffected by our ruling.




                                             20
                                     DISPOSITION
             The trial court’s July 19, 2013, restraining order is reversed. Appellant is
awarded his costs on appeal.




                                                O’LEARY, P. J.
I CONCUR:



MOORE, J.




                                           21
BEDSWORTH, J., Concurring:




              “Pursuant to [Family Code] section 6300, a domestic violence restraining
order may be issued upon reasonable proof based on a preponderance of the evidence of
past act(s) of abuse. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137 (Gdowski).)
The trial court has broad discretion in determining whether to grant a domestic violence
restraining order. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420-421 (Gonzalez).)
Accordingly, we review the trial court’s grant of a restraining order for abuse of
discretion, which occurs only if the court’s ruling exceeds the bounds of reason, fails to
apply correct legal standards, or is without substantial support in the evidence. (S.M. v.
E.P. (2010) 184 Cal.App.4th 1249, 1264-1265 (S.M.) [“‘[j]udicial discretion to grant or
deny an application for a protective order is not unfettered’”]; see Gonzalez, supra, 156
Cal.App.4th at p. 420.)” (Maj. opn., p. 15.)
              “[Family Code] section 6203, subdivision (a), defines ‘abuse’ as ‘any of the
following: [¶] (1) Intentionally or recklessly to cause or attempt to cause bodily injury[;]
[¶] (2) Sexual assault[;] [¶] (3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another[;] [¶] (4) To engage in any behavior that
has been or could be enjoined pursuant to [s]ection 6320. [Fn. omitted.]’ The behaviors
outlined in [Family Code] section 6320 include ‘molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, credibly impersonating as described in
[s]ection 528.5 of the Penal Code, falsely personating as described in [s]ection 529 of the
Penal Code, harassing, telephoning, including, but not limited to, making annoying
telephone calls as described in [s]ection 653m of the Penal Code, destroying personal
property, contacting, either directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the other party, and, in the discretion of

                                               1
the court, on a showing of good cause, of other named family or household members.’
([Fam. Code,] § 6320, subd. (a).)” (Maj. opn., p. 14., italics added.)
              So under Family Code section 6203, subdivision (a)(4), any conduct that
could be enjoined under Family Code section 6320 qualifies as abuse. Family Code
section 6320 provides that striking can be enjoined. All parties agree Augustin struck C.,
enjoinable conduct which therefore qualifies as abuse. That seems to me – at least
according to the letter of the law – to support a domestic violence restraining order. I am
therefore unable to join in an opinion that finds an abuse of discretion in issuance of a
domestic violence protective order on the facts of this case.
              But I can find an abuse of discretion in issuing such an order and then
granting the restrained party unmonitored visitation with the child who’s been struck. I
agree with my colleagues that this part of the order is inherently inconsistent. (See S.M.,
supra, 184 Cal.App.4th 1249.) I can only conclude the trial judge had one of those
moments of disconnect that afflict us all. On that basis, I join in my colleagues’
conclusion the court’s order must be reversed.




                                           BEDSWORTH, J.




                                              2
