Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645.) It is undisputed
that one of the primary purposes of section 6305 is to “hel[p] ensure that a mutual order
is the product of the careful evaluation of a thorough record and not simply the result of
the moving party yielding to the other party’s importunities or the court deciding that a
mutual order is an expedient response to joint claims of abuse.” (Conness, supra,
122 Cal.App.4th 197 at p. 204; Melissa G., supra, 27 Cal.App.5th at p. 369.) In our
view, the interpretation adopted in Melissa G. most effectively promotes this legislative
purpose. It would ensure that the trial court engages in the contemplated “careful
evaluation of a thorough record” in all cases in which parties have competing petitions
seeking DVPA restraining orders; whereas the contrary view would permit a trial court or
a party to avoid the required analysis simply by calendaring or noticing competing
petitions for separate hearings. We fail to see how the recognized legislative purpose of
section 6305 would be advanced by an interpretation that permits the parties or trial court
8
to avoid the higher evidentiary burden simply through fortuitous calendaring choices by
the clerk’s office or intentional or unintentional scheduling of hearings on each party’s
request for DVPA restraining orders on different dates or times.
Third, we find no support in the statute or case authority for Husband’s suggestion
that the Legislature intended section 6305 to apply only in situations where the parties
seek competing restraining orders based upon the same alleged incident of domestic
violence. The DVPA expressly contemplates that a single restraining order may be based
upon multiple acts of abuse. (§ 6300, subd. (a) [authorizing an order to issue based upon
“reasonable proof of a past act or acts of abuse”].) More importantly, the provision of the
Penal Code that was expressly incorporated into section 6305, states that the trial court
should consider “the history of domestic violence between the persons involved” in
determining which party should be deemed the primary or dominant aggressor. (Pen.
Code, § 836, subd. (c)(3).) This provision would be rendered entirely superfluous if
section 6305 was intended to apply only to situations in which a single incident of
domestic violence is alleged in two separate petitions. “ ‘An interpretation that renders
statutory language a nullity is obviously to be avoided.’ ” (Toulumne Jobs & Small
Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039; Scher v. Burke (2017)
3 Cal.5th 136, 146 [“we ordinarily construe enactments to avoid rendering any provision
superfluous”].) Thus, we decline to adopt Husband’s interpretation here.2
2 We also note that Husband’s position on appeal overlooks the fact that his petition expressly sought a DVPA restraining order based upon the same incident alleged as the basis for Wife’s petition. In closing arguments, Husband expressly conceded that [footnote continued on next page]
9
Finally, we do not believe that our interpretation of section 6305 creates the
hypothetical procedural conflicts suggested by Husband or the Court of Appeal in
Conness, supra, 122 Cal.App.4th 197. Husband argues that we should avoid an
interpretation of the statute that results in disparate treatment of similarly situated
litigants. We agree, but we believe it is Husband’s interpretation that creates the potential
for this result. Under Husband’s interpretation, one party could simply wait for the
issuance of an order on the opposing party’s petition, immediately file a new petition
against the opposing party, and effectively achieve the same result as a mutual restraining
order without being subject to the same level of scrutiny as if the petitions had been heard
together. In contrast, holding that competing petitions for DVPA restraining orders must
be subject to section 6305, regardless of whether they are heard together or separately
ensures that in every case the same standard is applied regardless of how the trial court
calendars the matter in any given case.
We also respectfully disagree with our colleagues in Conness that requiring
compliance with section 6305, even where petitions are heard separately, creates a
“procedural snarl” that trial courts are not equipped to unravel. (Conness, supra,
122 Cal.App.4th at p. 203.) The Court of Appeal in Conness hypothesized that a party
who had already obtained a restraining order could “thwart [the opposing party’s] effort
the most recent incident of alleged abuse upon which both petitions were based was the October 28, 2019 incident. Thus, even if we agreed with Husband’s interpretation of section 6305, the trial court would still have been required to conduct an analysis under section 6305, and its discussion of which party should be considered the “primary aggressor” would not suggest an erroneous application of the law.
10
to obtain a second, ‘mutual,’ order by the simple expedient of failing to appear”; that a
trial court would have difficulty retroactively applying section 6305 to an order that had
already been issued; or that difficulties might arise when a subsequent petition is filed in
a different county. (Conness, at pp. 202-203.) However, we believe the trial court is well
equipped to deal with any such concerns.
DVPA restraining orders are not permanent orders. Instead, they are “subject to
termination or modification by further order of the court,” either upon stipulation or after
a noticed hearing (§ 6345, subds. (a), (d)); and, such a termination or modification is
proper “upon a showing that there has been a material change in the facts upon which the
injunction or temporary restraining order was granted . . . or that the ends of justice
would be served by the modification or dissolution of the injunction or temporary
1495, 1503-1504 [Code of Civil Procedure section 533 applies to the dissolution or
modification of DVPA restraining orders.]). Moreover, when petitioning for a DVPA
restraining order, a party is required to disclose the existence of any other restraining
orders currently in place as well as any other court cases involving the parties (Jud.
Council Form DV-100).
Thus, to the extent a DVPA restraining order has already been issued in favor of
one party, the trial court need not do any more than provide notice that the hearing on the
subsequently filed petition will also address modification or termination of that prior
order to avoid the perceived procedural hurdles envisioned in Conness, supra,
122 Cal.App.4th 197. At the hearing, the trial court can then evaluate the competing
11
petitions under section 6305 and, if necessary, terminate a prior order, issue a new mutual
restraining order, and make the necessary findings of fact in support of such an order.
Notice of the intent to consider modification or termination of the prior order also seems
sufficient to dissuade any party from willingly refusing to appear. While it is true that the
failure of one party to appear would prevent the issuance of a mutual restraining order,
the absent party would risk termination of any prior order and issuance of a new order in
favor of the opposing party. (§ 6345, subd. (d).) Under such circumstances, the incentive
for a party to attempt to hold the proceedings hostage by refusing to appear would seem
minimal.
Finally, to the extent a prior DVPA restraining order has already been issued by a
trial court in a different county, the trial court is already empowered to issue an order to
show cause why the matter should not be transferred to the court that issued the original
order. (Williams v. Superior Court (1989) 216 Cal.App.3d 378, 386 [trial court may
order transfer of action after “a noticed motion or order to show cause”].) While transfer
of the cause to a different county may represent an inconvenience to the subsequent
petitioner, it represents no greater inconvenience than that imposed by the DVPA’s
provisions for renewal of orders. (§ 6345 [providing for renewal of protective order after
noticed motion].)
For the above reasons, we agree with Melissa G. that section 6305 should apply to
all cases in which parties present competing petitions for DVPA restraining orders,
regardless of when the petitions are filed or calendared for hearing. Interpreting the
statute in this manner promotes the legislative purpose of section 3605 by ensuring that
12
mutual restraining orders are not issued absent the careful scrutiny envisioned by the
Legislature; ensuring that all parties similarly situated have their requests evaluated under
the same standards; and avoiding the very conflicts identified by Husband that might
arise as the result of different methods of calendaring used by different courts. Thus, we
find no error in the trial court’s application of the law to the extent it believed it was
constrained by the provisions of section 6305 in this case.
C. Section 6305 Permits the Trial Court to Designate One Party the Dominant
Aggressor
Alternatively, Husband argues that, even if section 6305 applies, the trial court
abused its discretion in applying the statute. In making this argument, Husband does not
challenge the trial court’s factual findings or the sufficiency of those findings to support
granting a DVPA restraining order in favor of Wife. Instead, Husband only argues that
under section 6305, once the trial court determined both Husband and Wife to be
aggressors, it was not permitted to choose between the two in granting relief to only one
of them. We disagree.
Husband’s argument was recently addressed and rejected in K.L., supra,
70 Cal.App.5th 965. As explained in that case, “in making [the findings required by
section 6305,] the court ‘shall consider’ both the intent of the law protecting domestic
violence victims and the specific circumstances of the history of domestic violence in the
case before it. [Citation.] Specifically, the statute mandates that the court determine
which of the parties is the ‘most significant’ aggressor. [Citation.] Such a determination
requires that the acts of the parties be weighed against each other. As a result, in
13
deciding whether mutual restraining orders should issue, the trial court must consider the
parties’ respective alleged acts of domestic violence in concern, and not separately . . . .”
(Id. at p. 979.) We agree with K.L. that the plain words of the statute clearly contemplate
the trial court will: weigh the acts of the parties; determine whether one of the parties
should be considered the primary or dominant aggressor; and issue a mutual restraining
order only in the event neither party can fairly be characterized as the primary aggressor.
In reply, Husband acknowledges the holding in K.L., supra, 70 Cal.App.5th 965,
but claims that even if a trial court is permitted to weigh the acts of the parties, the trial
court in this case still abused its discretion by failing to make factual findings with
respect to each of the factors identified in section 6305. However, this argument ignores
the fact that section 6305 acts only to limit the issuance of a mutual restraining order.
The presence of the statutory factors and requirement of detailed factual findings are
necessary prerequisites to a grant of mutual relief. (§ 6305, subd. (a); K.L., supra,
70 Cal.App.5th at p. 979 [“[T]he language of the statute makes clear that mutual
restraining orders are the exception, and ‘shall not issue’ unless the trial court makes
specific findings . . . .”].) Nothing in the statute mandates the issuance of a mutual
restraining order. Nor does the statute require detailed findings of fact when the court
declines to issue a mutual restraining order.
In this case, the trial court granted Wife’s petition for a DVPA restraining order
and denied Husband’s competing petition. While it was appropriate for the trial court to
consider the factors set forth in section 6305 in order to determine whether granting
mutual relief would be appropriate, the trial court was not required to make detailed
14
factual findings because it ultimately decided not to grant mutual relief. Because section
6305 does not impose any requirements when denying relief, the trial court was required
only to follow the general rule applicable to all petitions and provide “a brief statement of
the reasons for the decision in writing or on the record.” (§ 6340, subd. (b).) The trial
court clearly did so here, expressly stating on the record that it considered Husband to be
“the primary aggressor in this case,” notwithstanding the fact that it also believed Wife
had been a primary aggressor with respect to one of the alleged incidents.
Thus, the trial court did not abuse its discretion by considering whether Husband
should be considered a dominant or primary aggressor within the meaning of
section 3605. Nor did the trial court abuse its discretion by failing to make detailed
factual findings on all factors referenced in section 3605, since such findings are not
required where the trial court does not grant mutual relief.
D. Denying Husband’s Custody Request Was Not an Abuse of Discretion
Finally, Husband contends that, separate from the issue of whether a DVPA
restraining order was appropriate, the trial court abused its discretion in denying his
request for custody of his children. According to Husband, the trial court was mandated
by section 6304 to consider the children’s welfare when denying his petition but failed to
do so. We disagree.
Initially, we note that Husband has conflated two separate issues on appeal,
arguing that the trial court abused its discretion because it “did not consider whether the
issuance of a protective order, to protect the children from Wife’s domestic violence, was
appropriate” and thereafter repeatedly arguing that the trial court should have, at the very
15
least, issued a protective order to protect his children from Wife. However, the question
of whether the trial court should have issued a protective order for the purpose of
protecting the children from Wife is distinct from the question of whether the trial court
should have issued a custody order in Husband’s favor.
With respect to the first question, the record shows that Husband never asked the
trial court to issue a restraining order for the purpose of protecting his children. His
petition requested a restraining order only to protect himself, despite having the option to
include his children as part of his request. Even at the time of the hearing, Husband
expressly acknowledged in his closing argument that his request for a restraining order
did not include his children. Thus, Husband never raised the issue in the trial court
proceedings, and we decline to consider whether such an order would have been
appropriate in this case. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d
124, 143 [“Appellate courts generally will not consider matters presented for the first
time on appeal.”]; Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657,
699 [same].)
Instead of seeking a restraining order for the protection of his children, Husband’s
petition requested the trial court change the current custody arrangement between the
parties in order to award him sole legal and physical custody of his children. Thus, the
only issue the trial court was called upon to decide with respect to the children was
whether awarding Husband sole custody of his children was appropriate. The trial court
denied Husband’s custody request; referred the matter for the relevant child welfare
services agency to conduct an investigation; and set the matter for a hearing on the issue
16
of custody pursuant to section 3027.3 It is this decision that we review on appeal and, as
we explain, the record clearly shows the trial court did not abuse its discretion.
Following an extensive evidentiary hearing, the trial court made affirmative
findings that Husband committed domestic violence within the meaning of section 3044.
It also made findings that, even assuming Wife had committed acts of domestic abuse
against the children in the past, Husband had been “grossly derelict” in failing to take any
action to protect his children at the time of these events. Finally, the trial court found that
Husband had been “grossly negligent” for leaving loaded firearms within access of his
minor children. Husband expressly concedes the evidence was sufficient to support these
findings on appeal. Given these findings, the trial court could reasonably conclude that
Husband, as the party requesting a change of custody, had not met his burden to show
that such an order was in the children’s best interest. (In re Marriage of Mehlmauer
(1976) 60 Cal.App.3d 104, 109 [“[T]he moving party [bears] the burden of showing that
the best interests of the child require[s] the sought custody change.”].)
While Husband complains that the trial court also made findings that Wife had
previously abused the children, he ignores the fact that the trial court expressly referred
the matter to the relevant child welfare agency for further investigation and set the matter
for a further hearing to consider any necessary orders upon completion of that
investigation. This procedure is expressly authorized by statute whenever the trial court
3 Section 3027, subdivision (b), provides in pertinent part: “If allegations of child abuse . . . are made during a child custody proceeding, the court may request that the local child welfare services agency conduct an investigation of the allegations . . . . Upon completion of the investigation, the agency shall report its findings to the court.”
17
develops concerns regarding a child’s safety during a custody hearing (§ 3027) and
Husband has not explained why such an order was insufficient to address any perceived
safety concerns in this case. As such, Husband has failed to show the trial court abused
its discretion in denying his custody request.
IV. DISPOSITION
The order is affirmed. Respondent to recover her costs on appeal.
FIELDS J. We concur:
McKINSTER Acting P. J.
SLOUGH J.
18
Filed 12/6/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MELISSA BETH SALMON,
Plaintiff and Respondent, E075748
v. (Super.Ct.No. DVHE1906683)
STEPHEN SALMON, ORDER CERTIFYING OPINION FOR PUBLICATION Defendant and Appellant.
ON THE COURT’S OWN MOTION
The nonpublished opinion filed November 14, 2022, meets the standards for publication
as specified in California Rules of Court, rule 8.1105(c)(4), (5), and (6).
IT IS SO ORDERED that said opinion be certified for publication pursuant to California
Rules of Court, rule 8.1105(b).
FIELDS J. We concur:
McKINSTER Acting P. J.
SLOUGH J.
1
AI Brief
AI-generated · verify before citing
Holding. The court held that Family Code section 6305 governs competing domestic violence restraining order petitions regardless of whether they are heard together or separately, and that the statute permits a trial court to weigh acts of violence to designate a dominant aggressor. The court further held that the trial court did not abuse its discretion in denying the appellant's custody request.
Issues
Does Family Code section 6305 apply to competing domestic violence restraining order petitions heard at different times?
Does section 6305 permit a trial court to designate one party as the dominant aggressor to grant relief to only one party?
Did the trial court abuse its discretion in denying the appellant's request for child custody?