In Fischer v Fischer. (March 18, 2018)
In affirmance, First District holds wife did not intentionally or recklessly cause husband bodily injury, and wife did not abuse husband by reading and disclosing text messages.
Facts of the case:
Father was married to Mother in 1999, where they had two sons, both of which were special needs. Throughout the marriage they experience highs and lows, and some of those lows were documented for the court. Examples include, Father being physically abusive, pushing around mother or even spitting on her, and mother taking out those frustrations by breaking household items like dinnerware or picture frames. The marriage was severely tested when Mother found out Father was having an affair. After being confronted, the Father assured Mother that this was in the past, and that the affair had already been over at that time. Due to the conflict which stemmed from this, Father files for divorce in October 2014. Although the Mother attempted to deny there were any irreconcilable differences, she ended up buying a house not to far from the one she shares with her spouse and kids. This results in distance between Father and Mother, and during this time Mother believes their relationship is getting better and is even hopeful of a full reconciliation with Father. Weeks later, on Mother’s birthday, she drives over to their shared family home to pick out an outfit to wear. She finds that her husband is getting a massage, and noticed several messages from a certain "famous male actor". She decided to take a look at who that was, which is when she found out that Father's affair was still underway. After this, Father comes down and snatches away his phone, and Mother starts hitting, scratching, and pushing him away. Father responds by stating he will call 911 if Mother continues to hit him. Father attempts to go upstairs into his office, where he is followed by Mother who is still physically hitting Father. Father calls 911, which prompts police to now take over the situation. Upon arrival, Mother admits to physically abusing Father, and the police decide Mother is the primary aggressor and promptly arrest her. Father denied any emergency protective order after Mothers' arrest.
After being processed, Mother phones Father and asks him to post bail and pick her up, which he does. He then drives them to their shared house, where they have a birthday party for Mother. The next day, Mother phones four close friends and confides in them the crazy events that happened the day previous, highlighting the incriminating texts between the Father and the women he was having an affair with. Time passed and Mother finally realized her marriage is over, attempts to move on. Father had other plans though, and in September of the same year, filed a request for a 5 year DVPA restraining order against Mother. If passed, Mother would not be allowed within 100 feet of Father, or of their children's school. The trial court issued a TRO and scheduled a hearing. After a drawn out two day hearing, the trial court found that Mother had not committed an act of abuse as defined by Fam C §6203.
Rulings of the case:
The courts found that Mothers actions did not constitute as abuse and found that her behavior was normal for someone finding out about that deep of betrayal. They also decided that by denying that restraining order, Fathers safety and the safety of their kids would not be in jeopardy and that Mother was emotionally stable now. They also decided that Mothers physical actions towards father was a singular incident, and not one that inferred it would repeat itself. David appealed this decision, but the First Courts affirmed the trial courts' findings. The first court essentially agreed on four select points which the trial courts found in the original hearing, and used those points in order to explain their reasons for affirmance. First was that Mother had not committed an act of abuse defined by Fam C §6203, second was that Mothers actions of informing her friends about the text messages were not a form of harassment towards Father, third that denying the restraining order would not jeopardize Fathers safety, and lastly that denying the restraining order would not jeopardize the safety of their sons. Father attempts to appeal some of these different points, but in the end is not awarded the restraining order. In short, despite evidence and confession of physical abuse, Mothers actions were seen by the courts as a slip up, one that any normal person could have when being confronted with the information that their spouse is having an affair, and that she has not proven she would be a threat to Father or their children in future meetings.
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Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) 5:69