Husband [H] and Wife [W] were married in 1999. From their marriage they
had two sons, both of whom are special needs children. During their marriage
W maintained the home and took care of their sons, while H ran a successful
business. According to W, their marriage had “its ups and downs”
but was a typical marriage and needed to be preserved.
In 2014, W discovered that H had been having an affair with another woman
[AO]. They argued and H maintained that he did not love W any more, even
though his affair with AO was over. H filed for divorce, but W ignored
the paperwork. Later she filed a response claiming that the marriage had
not irretrievably broken apart. She also found another place to live for
her and their sons.
Throughout 2014 and most of 2015, W and the boys spent most of their time
with H at their old house (in fact, they left most of their possessions
there). They spent time as a family trying to keep the marriage and family
together, and H withdrew his divorce petition.
On September 27, 2015, W went over to the family home to retrieve some
clothes. She found a strange car in the driveway but entered anyway. There
she realized H was in their bedroom receiving a message. She didn’t
want to disturb him. She heard his cell phone ring while she was in the
closet. She picked it up and noticed a picture of AO. W then accessed
H’s texts and e-mails from the phone and learned that H had not
stopped his affair.
W confronted H after his message ended. They got into an argument. W was
so hurt and angry that she slapped H across the face. H told her if she
touched him again he would call 911. She pushed him to re-gain access
to his phone, and he called 911. He told the operator that he was not
in fear, but that W slapped him. Deputies came to the home and arrested
W because there was a slap mark and fingernail scrape on H’s neck.
The deputies also explained to H how to file for a restraining order.
He declined to do so. Later, W asked H to pay her bail and take her home.
He did so.
Three days later, on the advice of his attorney, H filed for a restraining
order and subsequently filed for divorce. In his divorce petition he requested
he that he be given sole custody of the children and W be denied spousal
support under the Domestic Violence Prevention Act.
At trial, H admitted that on numerous occasions he had pushed his wife,
poured water on her, spat in her face, grabbed her, and threw her on the
bed. H is 6’1” tall, 185 pounds; W is 5’5” tall
and 130 pounds. He also admitted that W had never assaulted him during
The trial court denied H’s request for a restraining order noting
“… that [W] did not commit an act of abuse as defined under
the Family Code 6203 which specifically indicates abuse being the intentional
or recklessly causing or attempting to cause bodily injury … It’s
the Court’s finding that there were a lot of mixed signals that
were being given. It’s clear that [W], by her evading being served
with the petition for divorce, even though she was living in the same
house, the fact that she disagreed that there were irreconcilable differences,
makes it clear to this Court that at least of the time of the filing,
up until the time that she discovered that the affair was still ongoing
did not want the context of domestic violence restraining orders, this
broad discretion is expressly provided by Family Code section 6320,11
which states that trial courts ‘may’ issue restraining orders
when the statutory criteria are met…”
H appealed and the Appellate Court agreed with the trial court:
“…And after seeing AO’s picture on the phone, [W} said
everything was “a blur”; she was “overwhelmed and flooded”
and she ‘lost it.’ Given the [trial] court’s credibility
finding, this evidence is sufficient to conclude that [W] was so emotionally
shocked by the events that she was not thinking or acting with presence
of mind, but rather instinctively in the heat of the moment—without
the requisite level of consciousness to constitute ‘intentional’
or ‘reckless’ behavior…”