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A Divorce Court Acts in Excess of its Jurisdiction by Entering a Mutual Restraining Order Without Making Statutorily-Required Findings of Fact that Both Parties Acted as Aggressors and that Neither Party Acted in Self-Defense

Maura Monterroso (“Wife”) and Mario Lopez Moran (“Husband”) were married and had minor children together. In August 2004, the couple separated. After their separation, Husband often drove Wife’s car. In one instance, when Wife tried to retrieve her keys, Husband grabbed her arm and left bruises. A few days later, Husband showed Wife a knife and pointed it at his body, claiming that he was going to hurt himself to show her his love for her. On January 1, 2005, Husband came to Wife’s house and began verbally abusing her. He was upset that she would not move back in with him and told her that she was “trash.” Husband took Wife’s keys, car, wallet and house-cleaning materials that she used for her job. When Wife went to retrieve her items, Husband grabbed her by the hair, dragged her into his house and told her that he was going to kill her. He then covered her face with a pillow. After she struggled to get free, he put his hand on her throat and choked her. He picked her up by her hair and hit her head on a heater and slapped her. As a result, her lip was cut and tooth was chipped. Wife was eventually able to run outside and call the police. When the police arrived, she was told that Husband had already called and accused her of trying to kill him. Husband had apparently cut his chest with a knife. As a result, both Husband and Wife were arrested. Eventually, Husband admitted that Wife had not tried to kill him. Wife was then released from custody.

As a result of the incident, Wife applied for protective orders under the Domestic Violence Prevention Act the day she was arrested. Husband then filed an answer. When the matter came before a hearing, Husband was represented by a divorce lawyer, but Wife was not. Both parties were assisted with a Spanish language interpreter. According to the divorce court, the court read Wife’s pleadings, but not Husband’s answer because Husband had been arrested and the divorce court wanted to respect his constitutional right to remain silent in case he was charged with a crime. When the parties went to conciliation court, they agreed to make the restraining order mutual. The divorce court made no findings of fact. After the mutual restraining order was granted, Wife’s divorce lawyer appealed.

Family Code section 6305 provides that a “court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.” A divorce court has no statutory power to issue a mutual order enjoining parties from specific acts of abuse described in section 6320 without the required findings of fact.

On appeal, the Court of Appeal found that there was nothing in the record that suggested that principles of estoppel barred the direct appeal from the court’s order. The Court of Appeal reasoned that there was no detailed finding that indicated both parties acted primarily as aggressors, and that neither party acted primarily in self-defense pursuant to section 6305. Furthermore, the Court of Appeal reasoned that Wife appeared at the hearing without a divorce lawyer, in need of an interpreter, and did not display any legal sophistication. The divorce court did not ask Wife if she understood that the order required a detailed finding that both parties acted primarily as aggressors and not primarily in self-defense during a prior incident. Because the divorce court did not fully explain the import of the mutual restraining order, there was no indication that Wife could appreciate all of its ramifications. Under these circumstances, it could not be said that Wife consented to the mutual restraining order such that she was estopped from seeking redress on appeal. Therefore, the Court of Appeal reversed the mutual restraining order, and directed the divorce court to rule upon the merits of Wife’s application for restraining orders against Husband.

Monterroso v. Moran (2006) 135 Cal. App. 4th 732