Willis v. Costa-Willis (In re Willis)

93 Cal.App.5th 595

311 Cal.Rptr.3d 175

IN RE the MARRIAGE OF Ricky Allan WILLIS, Jr., AND Shauna COSTA-WILLIS.

Ricky Allan Willis, Jr., Respondent,

v.Shauna Costa-willis, Appellant.

G061528

Court of Appeal, Fourth District, Division 3, California.

Filed July 14, 2023

Quinn & Dworakowski, David Dworakowski and Stephane Quinn, Irvine, for Appellant.

Law Office of Paul D. Toepel Jr., and Paul D. Toepel Jr., for Respondent.

OPINION

SANCHEZ, J.

INTRODUCTION

Family Code section 3044, subdivision (a) ( section 3044(a) )¹ creates a rebuttable presumption that an award of sole or joint physical custody or legal custody of a child to "a party seeking custody" who has perpetrated domestic violence against "the other party seeking custody" within the past five years is detrimental to the child's best interests. The issue presented by this appeal is whether the presumption of section 3044(a) arises in a proceeding for issuance of a domestic violence restraining order (DVRO) when neither party is seeking custody or a modification of a custody or visitation order.

We conclude the presumption of section 3044(a) does not arise in that situation. Our conclusion is based on the plain language of section 3044(a), which by its terms applies only when a party is seeking custody of the child and is reinforced by other statutory provisions.

In the present case, Shauna Willis appealed from an order granting her request for a DVRO against her ex-husband, Ricky Willis.² She contends the family court erred under section 3044(a) because the court maintained joint physical custody by keeping in place a visitation order which had granted each approximately equal custody time with their child, T.W. Based on our construction of section 3044(a), we affirm the order keeping the visitation order in place because neither Ricky nor Shauna requested a modification of custody. Because the presumption of section 3044(a) did not arise, the family court erred by awarding Shauna sole legal and physical custody of T.W. Although Ricky did not appeal, we reverse that part of the order in the interest of justice.

FACTS AND PROCEDURAL HISTORY

Ricky and Shauna were married in June 2010. They have one child, who was born in 2011. In November 2017, Ricky filed a petition for dissolution of their marriage, and a judgment of dissolution (the judgment) was entered in March 2022. In section 4 of the judgment, entitled "Child Custody and Visitation," (some capitalization omitted), Ricky and Shauna were granted joint legal and physical custody of T.W. In subsection 4.2 of the judgment entitled "Physical Custody," the judgment provides a detailed "custodial timeshare" schedule specifying when each party would have "physical custody" of T.W. The judgment does not set forth a visitation schedule separate from the specified custodial timeshare schedule. The visitation schedule granted Ricky and Shauna each about the same amount of custody time with T.W.

In May 2022, Shauna filed a request for a DVRO against Ricky. She sought a no contact order, a stay away order, an order for batterer's intervention program, and attorney fees. In a declaration attached to the request for a DVRO, Shauna stated that since the judgment of dissolution was entered, Ricky had "launched a relentless campaign of harassment" against her that included hundreds of abusive text messages and "countless talking parent messages." Shauna declared that Ricky had appeared at T.W.'s extracurricular activities during Shauna's custodial time, referred to Shauna as "Sugar Tits," and repeatedly told her to "f*** off" and "go f*** herself."

On the request for a DVRO, Shauna did not check the box to indicate she wanted the court to change child custody. She did not mention custody in either her declaration or memorandum of points and authorities in support of her request. Shauna did not request that the DVRO protect T.W.

On May 27, 2022, the family court issued a temporary restraining order against Ricky. On the order, next to "Child Custody and Visitation," the box for "Not requested" was checked. The court scheduled a hearing on June 15, 2022, to determine whether a permanent DVRO should issue.

Ricky filed a response to the request for DVRO. He denied ever having abused, harassed, or disturbed Shauna. In a supporting declaration, Ricky stated that Shauna's declaration contained many false allegations and misstatements and took his text messages out of context.

At the outset of the hearing on June 15, 2022, the court announced, "I have this on calendar today for a request for a domestic violence restraining order." Ricky and Shauna testified. At no point during the hearing did Shauna or her counsel request a modification of custody or visitation. At the conclusion of the hearing, the court found that Ricky "was the perpetrator of domestic violence" and that Shauna "was the victim of the domestic violence." The court issued a one-year DVRO that included a no-abuse order, a stay-away order, a no-contact order, and an order that Ricky attend a 52-week batterer intervention program.

After reciting its ruling, the court stated: "The minor was not listed as a protected person. I haven't heard any testimony that makes me believe that [Ricky] poses a threat to the minor child. So it would be my inclination not to modify the visitation order at this time." Shauna's counsel expressed his understanding that the presumption under section 3044 "kicks in about fitness," a hearing would have to be held for Ricky to overcome that presumption, and that "[n]o evidence has been presented regarding custody." The court stated it was dealing with visitation and section 3044 relates only to custody. Ricky's counsel argued that Shauna had not requested a change in custody, "[i]t's not before the court," and "if she wants to request a modification to the [custody] order, she needs to bring a motion to the court to do it."

The family court concluded the presumption under section 3044(a) arose and for that reason, sua sponte granted Shauna sole legal and physical custody of T.W. After hearing argument and comments by counsel, the court stated: "There's no box checked regarding custody and visitation modifications. But a presumption has arisen under [ section] 3044 as it relates to legal custody.... I think I'm obligated under the code to modify custody at this point to the sole legal custody to [Shauna] until [Ricky] overcomes the presumption." The court also modified the custody order to grant Shauna sole physical custody of T.W. but stated, "The visitation order is going to remain." The DVRO orders visitation in accordance with the judgment.

DISCUSSION

I. Standard of Review

We review orders granting or denying a DVRO, as well as custody and visitation orders, under the abuse of discretion standard. ( Salmon v. Salmon (2022) 85 Cal.App.5th 1047, 1054, 302 Cal.Rptr.3d 23.) Whether the trial court applied the correct legal standard in exercising its discretion is a question of law subject to de novo review. ( Ibid. ) Interpretation of a statute is a legal question subject to de novo review. ( People v. Ollo (2021) 11 Cal.5th 682, 687, 279 Cal.Rptr.3d 668, 487 P.3d 981.)

II. Section 3044 (a )

Section 3044(a) states: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child's siblings, or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence." (Italics added.)

For the presumption to be overcome, the court must make two findings. First, the court must find "[t]he perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020." ( § 3044, subd. (b)(1).) Second, the court must find the factors in section 3044, subdivision (b)(2) "on balance, support the legislative findings in Section 3020." (Id. , subd. (b).) If the court determines the presumption has been overcome, the court must make "specific findings" in writing or on the record "on each of the factors in subdivision (b)." (Id. , subd. (f)(1) & (2).)

III. The Presumption of Section 3044 (a ) Does Not Arise When No Party Is Seeking Custody or a Modification of Custody

The family court found Ricky was a perpetrator of domestic violence yet maintained the visitation order, which gave Ricky and Shauna each about equal parenting time. Shauna argues the family court erred by failing to modify the judgment's visitation provision because that failure had the effect of maintaining joint physical custody.

It has been held that "an arrangement authorizing children to spend roughly equal time with each parent [has been called] a joint physical custody arrangement." ( Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 658, 207 Cal.Rptr.3d 756 (Celia S. ).) However, we need not decide whether the effect of the family court's decision in this case was to maintain joint physical custody. The court did not err, even if it effectively maintained joint physical custody, because no party sought a change in or modification of custody and, therefore, the presumption of section 3044(a) never arose.

Whether the presumption of section 3044(a) arises when no party is seeking custody or a change in custody is a matter of statutory interpretation. "We first consider the words [used in section 3044(a) ], as statutory language is generally the most reliable indicator of legislation's intended purpose." ( McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th...