Divorces are messy. Physical and emotional abuse can cause lasting harm to both parties. To prevent physical violence or harassing behavior, a person in danger from someone with whom they have a close relationship can call for help from law enforcement who will investigate and, if warranted, request an Emergency Protective Order from a judge. Sometimes, the restrained party may want to reciprocate. A California appellate court has clarified when this “turnabout is fair play” strategy will succeed.

L.T. (the husband) and Y.L. (the wife) were married in 2010 and divorced in 2020. Prior to their divorce, each had filed a request for a temporary domestic violence restraining order (DVRO) against the other. These cross-requests were adjudicated in 2018. The trial court ruled that Y.L. was “not a primary aggressor at any time,” but the wife’s order restraining L.T. was granted. L.T. appealed, but a three-judge panel from the Sixth Appellate District of the California Court of Appeal rejected his request for a reciprocal restraining order because his legal arguments are not supported by the Domestic Violence Prevention Act (the Act.)

In a unanimous unpublished opinion written by Justice Cynthia C. Lie, the appellate court affirmed the trial court’s ruling on November 1.

Justice Lie’s opinion began by recounting the facts of their troubled marriage. Beginning in 2016, Lie wrote, L.T. began electronically tracking his wife’s movements and surreptitiously accessing her text messages. She was a constant target of his verbal abuse, often in front of their two children. In addition to disparaging her parenting, he accused her of having an affair with a co-worker in the start-up company where she worked. Her husband, an engineer, wanted her to move to Singapore, and he used various tactics to get her to agree. On one occasion, for example, he locked her in her car. On another, she got out of their car on the freeway to escape his abuse.

At the same time, L.T. began complaining that Y.L was committing physical abuse against him. He submitted a picture of scratches she put on his arm as evidence of her physical abuse. He also visited a doctor after another physical altercation, but he did not file a police report. Their cross-requests for DVROs came a few months after their legal separation in 2019. The wife’s request was granted and the husband’s denied.

L.T.’s appeal is based on his contention that the court should have issued a restraining order against Y.L., just as it had issued one for him. The appellate court said it found “no legal or evidentiary defect in the trial court’s finding that Y.L was not a primary aggressor.” L.T.’s argument rests on his contention that the trial court abused its discretion when it made this finding.

Lie explained that “where the trial court’s exercise of discretion turns on a disputed question of law,” the court’s independent judgment would be applied. The court then reviewed the trial court’s findings as they applied to the Domestic Violence Prevention Act. In doing so, the opinion quickly ruled that L.T.’s contention that he is entitled to a restraining order as a matter of law is a “misreading of the Act,” which clearly grants the trial court “discretionary authority.”

The court stated that under the Act, the court “may” issue a restraining order. It does not say it “shall” issue the order. The court has “broad discretion” based on a determination of whether the order is “necessary to prevent recurrence of past abuse.” Lie said that mutual restraining orders are the exception, not the rule. They must also be based on a finding that both parties were primary aggressors, not actors in self-defense. When the definition of “aggression” under the Penal Code was applied, the court found this was not the case here. The Penal Code requires the court to weigh the historical facts of the parties’ relationship when making an ultimate determination about who has been a primary aggressor.

After reviewing all of L.T.’s precedents, the court found that none of his cited cases “rehabilitates (his) fundamental legal error.” He did not meet the required standard of proof about his ex-wife’s reactions to his “unwelcome physical contact.” As the court reviewed each party’s physical and verbal acts during their contentious marriage, the appellate court consistently found that L.T. failed to meet his burden of proof concerning his wife’s responses to his words and actions.

In summary, the husband L.T. failed to convince the court that his wife was a primary aggressor. Instead, his numerous acts of “unremitting and intrusive surveillance,” which include disparagement of her in front of their children, making comments that endangered her life so much that she exited his car on the freeway, disclosures of her alleged adultery to her parents, and several more acts “leave us with no reason to doubt that the trial court would find L.T. to fall short in his effort to paint Y.L. as a primary aggressor.”

The denial of the husband’s request for a restraining order was affirmed. The court seems to be telling L.T. that it’s time for him to be Movin' On, as the Rascal Flatts song and many others advise.