A trial judge abused her discretion when she granted a wife seeking a divorce a domestic violence restraining order (DVRO) and ordered her husband to get an assessment of his mental health. On appeal, the court ruled that the trial judge’s order was not issued according to statutes, and the underlying reasons for the husband’s anger about his wife’s affair “is best left to mental health professionals.”

The case of L.J. v. R.J. refers to the marriage dissolution of Lindsey Jennings, the wife, and Reed Jennings, the husband. It is unclear when their relationship began to “deteriorate,” but L.J. filed for divorce in 2021 while simultaneously asking for a DVRO against R.J. who had “wielded a gun and threatened to kill her.” The trial judge, Carmen R. Luege of the Superior Court of Orange County, initially denied the DVRO, but granted it a year later, after the wife convinced her that R.J. ’s behavior endangered her children.

However, while granting the order, Luege also ordered R.J. to undergo a mental health assessment. R.J. appealed both orders to a three-justice panel of Division Three of California’s Fourth District Court of Appeal, which unanimously agreed with the DVRO, but remanded the part of the order concerning the mental health section of Luege’s order. Presiding Justice Kathleen O’Leary authored the opinion.

O’Leary’s unpublished opinion begins with a recitation of the facts that led to both the DVRO and the mental health assessment order. It recounted that the Jennings’ marriage began to deteriorate in 2021 when R.J. caught his wife and her personal trainer “in a compromising position.” According to L.J., her husband said he was “going to get a gun and kill us all,” a threat he had also made previously. The wife called the police who arrested her husband and led to an emergency protective order. L.J.’s request for a permanent DVRO, however, was denied because the judge found that a video of the husband’s actions during the “gun incident…did not appear to threaten anyone.”

In March 2022, the Orange County Sheriff’s Department issued a gun violence restraining order (GVRO) against R.J. He had to surrender his gun for a five-year period. Friends and relatives began to take sides and make disparaging comments about both parties. In July 2022, L.J. requested a permanent DVRO, which Luege granted for a three-year period, while also saying that she “wanted a mental health assessment before (she) would consider allowing Husband any visitation with his children.”

The Fourth District’s opinion was then divided into a discussion of two issues: the DVRO and the request for a mental health assessment. Regarding the DVRO, O’Leary wrote that the question is “whether substantial evidence supports the court’s finding, not whether a contrary finding might have been made.” She concluded, “We accept as true all evidence tending to establish the correctness of the trial court’s findings and resolve every conflict in favor of the judgment.” The GVRO, issued by the Sheriff, provided persuasive evidence that R.J. “posed a danger to others.”

A discussion of the key issue and the reason for the appellate court’s remand of Luege’s mental health assessment order followed. The order was issued at L.J.’s request that her husband “complete a batterer intervention program and seek help for anger management.” When issuing her order, Luege said, “I don’t know how to look at this evidence and not walk away thinking this is not a close case... The way that you testified to me, you have this monotone tone to it. I looked at you, you never made any eye contact with me. Even when I asked you questions, you didn’t make any eye contact."

“It speaks to me of someone who is controlling the anger but afraid that the anger be seen. So you have this very monotone control approach, and I think that behind that is all the anger that you’re carrying because you do feel victimized by the affair, and I’m not here to tell you need to deal with those feelings.” Luege also admonished the couple for their failure to attend to the co-parenting therapy she had ordered.

R.J. appealed the judge’s mental health assessment order on five grounds: the court’s lack of authority to issue the order; the vagueness and unconstitutionality of the order; the lack of evidence that he had a mental health condition; the lack of notice about the procedure; and the ‘improper shift” of the burden from the trial court to himself to seek out and obtain the assessment.

O’Leary agreed that Luege’s order was “erroneous.” Citing §6346 of the Domestic Violence Prevention Act (DVPA), she said the law did not “permit the court to order a mental health assessment,” unless the court was ordering a “batterers intervention program.” Here, O’Leary concluded, “The trial court made numerous observations of Husband which were a basis for its concern. But we would suggest caution when taking the next step and opining what the underlying causes may be for the behavior. This is best left to mental health professionals.” She concluded that Luege’s order was “outside the DVPA’s authority.”

Luege also failed to apply or cite §3190 of the DVPA, which would have allowed the family court to order parents to participate in outpatient counseling that would be in the best interests of their children. Nor did the trial judge hire a “child custody evaluator” under the authority of §3111 and §3112. These flaws, the opinion concluded, “did not comport with any of these statutory authorities.” Nor did the court “appoint a provider to ensure the opinion it would receive would be focused and worth of reliance.” There also were no “written findings as to the need for an evaluation, or the duration of any treatment that might be needed.”

In conclusion, O’Leary said the mental health assessment order was reversed and remanded to the trial court where it needed to “fashion an appropriate mental health assessment order that complies with existing statutory procedures.”