A Protected Party Seeking a Renewal of a Domestic Violence Restraining Order Need Not Have a Fear of Future Physical Abuse

Pamela Ubboe and Baldwin Eneaji divorced in May 2010. During their divorce proceedings, Ubboe’ divorce lawyer filed a request for a domestic violence prevention restraining order (“DVRO”) against Eneaji. Approximately three years later, Ubboe’s divorce lawyer filed a request for a permanent renewal of the DVRO. The divorce court denied the renewal request. The divorce court reasoned that the last incident of abuse occurred about one and a half years before the renewal request was made, and that there was no “reasonable apprehension of future physical abuse” as articulated in Ritchie v. Konrad. Ubboe’s divorce attorney then filed a timely appeal from the order denying her request.

A divorce court should renew a DVRO “if, and only if, it finds by a preponderance of the evidence that the protected party entertains, a ‘reasonable apprehension’ of future abuse.” The issue is whether “the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” In assessing the risk of future abuse, the divorce court “ordinarily should consider the evidence and findings on which the initial order was based.” The existence of the order and its underlying findings and facts “often will be enough in themselves to provide the necessary proof to satisfy that test.” In addition, the divorce court should consider any significant change in circumstances. The divorce court should also consider whether the circumstances have enhanced the opportunity and possibility of future abuse. The burdens imposed do not justify denial of a renewed protective order where the “reasonable apprehension” is of future acts of physical violence.

The Court of Appeal held that the divorce court erred in finding that there was no “reasonable apprehension of physical abuse” in the future. First, the divorce court erred in concluding that the denial was appropriate because nothing had happened in the three years since the restraining order, since family code section 6345 states that a restraining order “may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order.” Second, the divorce court incorrectly concluded that the Ritchie standard required a “reasonable apprehension” of future “physical” abuse. The definition of abuse was not limited to physical injury under the applicable Family Code. For these reasons, the Court of Appeal agreed with Ubboe’s divorce lawyer and reversed the order denying the renewal request.

Eneaji v. Ubboe (2014) 229 Cal. App. 4th 1457