Vinson v. Kinsey

93 Cal.App.5th 1166

311 Cal.Rptr.3d 628

Onika VINSON, Plaintiff and Appellant,

v.Edric KINSEY, Defendant and Respondent.

A166582

Court of Appeal, First District, Division 2, California.

Filed June 27, 2023

Certified for Partial Publication.^*

Latham & Watkins, Nicole C. Valco, Ward A. Penfold, and Tara A. McCortney ; Family Violence Appellate Project, Jody Lewis Arati Vasan, and Jennafer Dorfman Wagner, for Plaintiff and Appellant.

Patricia Cyr and Jane Stoever for the University of California, Irvine School of Law, Domestic Violence Clinic as Amicus Curiae on behalf of Plaintiff and Appellant.

No appearance for Defendant and Respondent.

STEWART, P.J.

Onika Vinson appeals from the denial of her request for a domestic violence restraining order (DVRO) under the Domestic Violence Protection Act (DVPA) ( Fam. Code, § 6200, et seq.¹ ) against Edric Kinsey, her former boyfriend and the father of two of her children. She contends the trial court used an improper standard in evaluating whether threats Kinsey made constituted abuse, failed to consider evidence of other forms of abuse and failed to consider the totality of the circumstances as required by the DVPA. She also argues the trial court erred in granting Kinsey unsupervised visitation without complying with statutory requirements for the order. For the reasons explained in this opinion, we will reverse the order denying the DVRO, conditionally reverse the visitation order and remand for further reconsideration.²

BACKGROUND

On April 25, 2022, Vinson filed a request for a DVRO against Kinsey to protect herself, the two children she shares with Kinsey (then 6 and 10 years old) and her child from a different relationship (then 19 years old). Vinson also sought orders for legal and physical custody of the two younger children, with no visitation for Kinsey.

Vinson's request listed "March of 2022" (March incident) as the date of the most recent abuse. She stated that on that occasion, Kinsey asked her to take him to the grocery store and while they were talking in the car, he became "irate," "began threatening to beat my face in" and "stated that he would kill me." Vinson also described an incident in June 2020, when Kinsey took her phone out of her hand and, as she went to retrieve it, "he punched me in my face and pushed me on the floor," leaving her with a bruise on the left side of her face and on her left arm. Vinson stated that Kinsey had abused her "verbally, mentally, and physically for many years," from January 2010 to present; "continues to verbally abuse me"; "has threatened to kill me on numerous occasions"; and "shows up at my house unannounced any time he chooses"; that she was "in fear of my life because I don't know when he will show up"; and that she did not have specific dates of abuse because she could not remember them all. Vinson described the injuries she had suffered as "[b]lack eyes, [b]ruises, [m]ental injuries."

Vinson further stated that her children needed protection because Kinsey "has a history of violence towards me," "they are my children and they live with me," and her eldest son had "witnessed a lot of verbal abuse from [Kinsey]" and "seen injuries caused to me after some of the physical altercations." Vinson stated that Kinsey has anger issues, she had tried coparenting with him and "he never follows through," and he "has threatened to take the children from me every time he becomes angry with me."

In support of her DVRO request, Vinson submitted signed "sworn statement[s]" from relatives and a friend. Most of these statements related having witnessed Kinsey verbally abusing Vinson and having seen Vinson's injuries; one witness observed Kinsey punching holes in Vinson's wall and breaking her furniture. The statements asserted that Kinsey had been uninvolved in his children's lives.³

Vinson also submitted numerous texts from Kinsey to document threats to hurt or kill her. For example, Kinsey's texts included, "I know what it is u dint want me to find out who it is bcuz when i do that will be your last breath on this earth"; "No u dont u no nothing of me u assume so much it makes me wanna slap u"; "Ima kill u before this world ends mark my words dont matter how its done you will feel every inch of pain u cause me"; "Na im 4real ur dead to me bare hands an all"; "Should've snapped your neck ..."; "Just know at this point in life i will kill u and any nigga that stops me from being a dad to my kids period ... Im not taking NO or leave for a answer im coming for what I created"; "Na how bout ima beat yo ass for lying to me." After texts from Vinson referring to Kinsey having hit her in the mouth while she was driving, punched her in the side of her head "over a broad" when they were "sitting at Alex school," and "fractured [her] nose on Mother's Day," Kinsey responded, "No i hit you bcuz u keep talkin sht like u know everything i do and when im speaking what really happen stop over talking me with bitch BS."

The trial court issued a temporary restraining order and child custody order pending a hearing set for May 12, 2022.

The parties appeared in propria persona at the hearing, which was held remotely. The court first questioned Vinson about the March incident described in her application, when she and Kinsey were going to a grocery store. Vinson explained that Kinsey would share his monthly food stamps with her "for the kids to give the kids food" and she would take him to the grocery store because he did not have a vehicle. She testified that while the two of them were sitting in the car in front of his house before going to the grocery store, Kinsey got mad and threatened to "beat [her] face in" and to kill her, as he had on other occasions. The court asked why, if he had threatened her numerous times, she would "even go around him" and be alone in a car with him, and she explained, "he plays on my sympathy. And he'll start crying. And I have—and I have a soft heart. I mean, you know. And we do have children together. I mean, that's my stupidity."

Vinson did not remember the date of the incident but testified it was at the beginning of March, and the court asked why she waited until April 25 to file her request for a restraining order. Vinson responded that Kinsey treated her and the children to an outing he had planned for their daughter's March 30 birthday but afterward they got into a verbal altercation. The court interjected, "[l]et me make sure I understand this ... [¶] He threatened to kill you ... [¶] multiple times ... [¶] but you let him in your car in early March? ... [¶] And you said for the sake of the children, but no children were present. [¶] And then because it was your daughter's birthday at the end of March and he made plans that you wanted to benefit from, either you or your child or both, that you decided to wait to file a request for a restraining order until April; is that correct?" Vinson responded, "No. No. No. [¶] He and I had got into it again afterwards. The threats come in—I have this documented, the threats coming in of killing me. And then he—he was supposed to do something for his children, which he did not because his—as always, he's never consistent with his kids. He's never around them. His friends is priority over his children." The court asked if she was saying Kinsey had not taken the children for the outing as planned and Vinson said, "No. We went together—he doesn't do anything with them. I'm the sole caretaker and provider. He's never done anything outside of me with his children. Nothing."

At this point, the court asked Kinsey for his response to the allegations that he threatened to kill Vinson and "beat her face in." Kinsey testified, "during the time of that threat, I can recall that .... I was dealing with something very personal within myself, and at the time me and [Vinson] have moments where—or pocket moments where me and her, we kindle each other's time .... [¶] I did not threaten to beat her face in. I said—I specifically told her—I said— this is the type of stuff that will make me react this way, but I'm not directly telling you that I'm going to do this to you." The court asked if he threatened to kill her and Kinsey replied, "No. I have not threatened to kill her multiple times. [¶] I said that when the death of my mother came and she abandoned me .... [T]hese allegations about me threatening her all come from after my mom died. [¶] My mom died four or five years ago .... [¶] The only time ... she utilizes this to explain it to me is when she has another relationship. She utilizes the fact that I'm cheating on her. I don't understand how I'm cheating on her if we're not together. I don't understand how I'm a deadbeat when I've been trying to reach out to her to spend time. I can't help it that I go out here to bust my back to get a job that's not going to pay me enough money to provide for my kids."

Regarding the March incident, which Kinsey said was on March 7, Kinsey testified, "We get in front of the grocery store. After we leave my house, we get in front of the grocery store. We have positive talks. We're laughing. Everything is going good. [¶] I reach out to her about wanting my family back. I reach out to her about me wanting to do more and trying to do more by supporting. She told me that she don't love me no more. She don't care about me no more. That— that—that technically me expressing myself never matters to her. [¶] So right now she's moved on. She don't care about what I have going on. If I'm struggling, so—well, so be it. I'm just going to take the kids and leave." The court asked how this made Kinsey feel and Kinsey replied, "It hurt. It hurts. It will make me upset. It breaks my heart."

When the court asked if they had an argument, Kinsey testified, "Yeah. We had the argument about the—it's the lies of you telling me one moment we're going to do this together. And I work myself up or go get a job or arrange my time to want to do these things. Then when I actually have...