Tempers often flare between divorcing spouses. Unfortunately, that can sometimes lead to a physical confrontation. But is an angry slap in the face simply a foolish emotional act, or is it abuse that warrants a protective order?

In the Spring of 2018, the Court of Appeal decided a case exploring the legislative intent underlying the Domestic Violence Prevention Act, and the scope of trial court discretion in such matters, in Fischer v. Fischer.

The Fischer decision is unpublished, but although it is not citable law, the case has far-reaching implications for future litigation.

In October of 2014, David Fischer filed a petition for dissolution of marriage from his wife Joannie. However, the parties continued to live together in the family residence along with their two children, even having family dinners most nights.

In mid-2015, Joannie Fischer purchased a nearby residence, but did not move out of the family home. She kept essentially all her clothes at the home in a large closet she and David shared, and they often dressed there together in the mornings.

September 27th was Joannie’s birthday. By then, the parties were getting along better than they had in a while, and Joannie had hopes of a reconciliation, while David was giving Joannie “mixed signals” regarding the potential for reconciliation, according to the trial court.

That morning, while David was in another part of the house, Joannie went to the closet to get some clothing and noticed that David had left his cell phone there. A text massage arrived, and when Joannie touched the display she saw a photo of a woman with whom David had had an affair.

David had repeatedly assured Joannie that the affair was over, but as Joannie scrolled through the texts she could see that David had been continuing the affair over a lengthy period of time. At that moment, David approached, grabbed the phone out of her hands, and demanded to know what she was doing with his phone. According to the court record, Joannie responded: “Reading text messages from your girlfriend. What the f***. You’re so much a liar.”

Joannie then slapped David twice and pushed him, scratching his neck. An argument ensued, the police arrived, and Joannie was arrested for domestic violence, although all charges ultimately were dropped. The police asked David if he wanted an emergency protective order; he declined.

After being processed at county jail, Joannie called David and asked if he would post bail and give her a ride home. He did so, and testified later that he picked her up alone and let her sit next to him in the front seat, with no concern for his safety. David and the children then held a birthday party for her. Afterward, David and Joannie spent the night at the family residence.

Three days later, after meeting with his divorce lawyer, David filed a request for a five-year domestic violence restraining order against Joannie. The court entered a temporary restraining order. After a trial, the court denied David’s request for a permanent restraining order.

The trial court ruled that Joannie’s act was “a singular incident,” and that she “did not commit an act of abuse as defined under the Family Code 6203,” which, it noted, defines abuse as “to intentionally or recklessly cause or attempt to cause bodily injury.”

The court said denying David the restraining order would not jeopardize his safety or that of the children. David then appealed.

David’s primary argument on appeal focused the difference between the definitions of abuse found in two sentences of Family Code Section 6203.

As noted above, Section 6203(a)(1) defines abuse as bodily injury caused “intentionally or recklessly.” That requires a showing of mens rea, meaning an intention or knowledge of wrongdoing.

Just a few lines later, Section 6203(a)(4) defines as abuse “any behavior that…could be enjoined pursuant to Section 6320” of the Family Code. Section 6320(a) lists 14 different acts that can qualify as grounds for an injunction. These include attacking, stalking, battering or sexually assaulting another, as well as “striking” another party. Mens rea is not required.

David contended that because “striking” is among the prohibited acts for which intent or other mens rea is not specified, Joannie’s slap of David was “striking” and thus by definition was “abuse,” irrespective of any mens rea requirement for “caus[ing] bodily injury.”

He contended that the trial court erred in concluding that Joannie “did not commit an act of abuse,” because a slap is unquestionably a “strike.”

The Court of Appeal disagreed. It said David’s position was contrary to the intent of the legislature, which required that an act result from a conscious, deliberate decision to be considered abuse.

The Court said the evidence showed that Joannie “was so emotionally shocked by the events that she was not thinking or acting with presence of mind, but rather instinctively in the heat of the moment – without the requisite level of consciousness to constitute ‘intentional’ or ‘reckless’ behavior.”

At oral argument, the appellate justices intimated that David appeared to be pursuing the restraining order to seek an advantage in child custody and spousal support litigation, not out of a well-founded fear for his safety.

Although the Fischer ruling is not citable, the appellate court’s reasoning does provide some guidelines for family law counsel and parties who find themselves in domestic violence proceedings.

First, it is crucial to consider the prospective nature of the alleged acts of violence. The Court of Appeal’s opinion emphasized the deference usually given to a trial court’s discretion over whether to issue a domestic violence restraining orders. It noted that overcoming that discretion on appeal is “a daunting challenge.”

The appellate court held that the exercise of discretion in the domestic violence context is measured against “two explicit statutory purposes enshrined directly in the Act, both referencing the future.” Past acts of abuse may provide evidence to support a domestic violence restraining order, but the purpose of such an order is prospective: to “prevent acts of domestic violence [and] abuse” in the future to the persons involved, according to the Domestic Violence Prevention Act.

Second, it is still an open question whether the 14 acts listed in Family Code section 6320(a) and incorporated into section 6203(a)(4) require a showing of mens rea to constitute actionable “abuse.” As the Court of Appeal noted, such a requirement could result in “the absurd result” of an act causing bodily injury being treated as abuse under one section of the code if mens rea is shown, while under another section, “molesting, attacking, striking … sexually assaulting [and] battering” would constitute abuse even without a showing of mens rea.

Depending on whom they represent, trial advocates might advocate for a strict construction of the statutes and contend there is no mens rea requirement for the 14 specified acts, or conversely they might argue that a mens rea requirement has to be inferred to avoid “absurd” results.

The Fischer case points out the need for attorneys to analyze whether any of the 14 acts incorporated into the definition of “abuse” through section 6320(a)(4) apply to a litigant’s case, and to consider the strategic implications. For example, nearly every instance of “molesting, attacking, striking … sexually assaulting, [and] battering” (subdivision (a)(4)) involves “caus[ing] or attempt[ing] to cause bodily injury” (subdivision (a)(1)).

Does a mens rea requirement apply to these subdivision (a)(4) acts because they all “cause or attempt to cause bodily injury” (subdivision (a)(1))? In other words, does someone seeking a restraining order have to meet the requirements of both subdivision (a)(1) and subdivision (a)(4) when acts like this are at issue, in order to prove that “abuse” has occurred?

The Fischer case provides an important reminder of the complicated nuances of domestic violence litigation in family law matters and the importance of obtaining counsel who can navigate these legal issues.

By Kayla Horacek