Marriage of Tei CA2/7

Filed 8/25/20 Marriage of Tei CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of NANCY B291304
DABU TEI and TODD SHAWN
TEI. (Los Angeles County
Super. Ct. No. BD630586)

NANCY ALONZO DABU,

Appellant,

v.

TODD SHAWN TEI,

Respondent.

APPEAL from an order of the Superior Court of
Los Angeles County, Christine W. Byrd, Judge. Affirmed.
Nancy Alonzo Dabu, in pro. per., for Appellant.
Nicole Williams for Respondent.
The family court ordered Nancy Alonzo Dabu (formerly
known as Nancy Dabu Tei) and Todd Shawn Tei to share legal
and physical custody of their daughter Anna, now seven years
old. On appeal Dabu argues the court erred by failing to find Tei
had committed acts of domestic violence against her and to apply
the Family Code section 30441 presumption that it is detrimental
to the best interest of the child to award sole or joint physical or
legal custody to such an individual. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dabu and Tei’s Marital History
Dabu and Tei met in 2003 when Dabu, 13 years old,
enrolled in a martial arts class taught by Tei, who was 37 years
old.2 They became engaged when Dabu turned 18 and married
the following year. Anna was born in 2013. Dabu and Tei
separated on January 1, 2015; Anna was 18 months old.
Dabu petitioned for dissolution of the marriage on
November 20, 2015. In June 2016 Dabu and Tei stipulated on a
temporary basis for joint legal and physical custody of Anna. On
November 15, 2017 judgment was entered on the issues of the
status of the marriage, division of property and spousal support.
The parties reserved for trial issues of custody and visitation,
child support, sanctions against Tei and Dabu’s request for
attorney fees.
2. Dabu’s Allegations of Domestic Abuse
In her trial brief Dabu argued Tei was a sexual predator,
contending he began molesting her when she was 15, demanding
oral sex, and asserted he had intimidated, degraded and
psychologically abused her throughout their relationship. She

1 Statutory references are to this code unless otherwise
stated.
2 The school was owned and operated by Tei.

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identified in the more recent past specific instances in which Tei
had allegedly stalked her and threatened to kill her and to
physically harm her new boyfriend.
As pertinent to this appeal, Dabu also asserted that,
following their separation, Tei engaged in a persistent campaign
of harassing her and disturbing her peace through emails, texts
and voicemails primarily relating to custody of Anna. Typical of
the messages Dabu offered in support of this claim, Tei wrote,
“You don’t deserve having a child.” “Burn in hell.” “You are the
seed of Satan.” “You are evil, manipulating and a liar.” “You are
a horrible mother.” “You need therapy.” “I hope you rot in hell.”
“I will be just as relentless as you are nuts.”
Dabu sought application of section 3044 and requested sole
physical and legal custody of Anna with Tei limited to monitored
visitation.
3. The Trial
Trial was held over four days in November and December
2017. Both Dabu and Tei were represented by counsel. The
court heard testimony from Dabu and Tei and seven other
witnesses, including two experts on issues of deceptiveness.
Dabu testified she “felt intimidated or harassed” by many
of Tei’s messages and described them as “angry, intimidating,
harassing, and accusatory.”3 She explained that many of these

3 The court overruled Tei’s objections that Dabu was
providing improper opinion testimony, explaining, “I’ve had this
problem with so many of her answers, that she uses conclusory
terms. It’s not—she’s not an expert and so—I won’t sustain the
objection that she is giving improper opinion. On the other hand,
it is of absolutely minimal, if any, value to the Court to have
somebody come in and give such conclusory testimony. So it goes

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messages followed brief telephone conversations between Tei and
Anna, who was not yet four years old, after Dabu ended the call
without explanation. She gave as an example calls in February
2017: “Anna, being three and a half years old, would not want to
talk at length on the phone, and so would either refuse to talk at
all or briefly come onto the phone and say, ‘Hi, Daddy. Bye,
Daddy.’ And Todd would try to—Todd would say things like,
‘Honey, why don’t you talk to me. Please talk to me. Don’t you
want to talk to your dad?’ until such time as I hung up. And then
the usual pattern would be I would get another call and/or
voicemail and/or email.”
During his testimony Tei explained the messages were a
“reaction of frustration” to being away from his daughter while
she was with Dabu and not being allowed to speak to her. “I’m
continuously frustrated, hurt, worried, that my daughter hasn’t
spoken to me, and I want to know she’s okay and I don’t—I don’t
know how she feels. I don’t know anything because I haven’t
seen her. And I just want to say, ‘Hello. How are you? Daddy
loves you,’ and that’s it.” He continued, “I mean my frustration is
obviously in the email. They just respond right away. Because,
like, I hang-up, and I’ll send this email, and I’m just frustrated.”

to the weight but not to the admissibility, and the objection is
overruled.”

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 4. The Tentative Statement of Decision and Judgment on
Reserved Issues
The court issued a 15-page tentative statement of decision
after trial on January 24, 2018. The court found Dabu’s
testimony “not entirely credible after considering her demeanor,
bias and motives, particularly her express intent to eliminate any
significant involvement of Respondent in the child’s life.” It
found the testimony of Tei “credible in large part.” The court also
found both Dabu and Tei had an “overall commitment to the
child’s health, safety, and welfare, although they disagree on how
to ensure this goal.”
With respect to Dabu’s allegations Tei had sexually and
psychologically abused her when she was still a minor,
evaluating the testimony of Dabu and Tei, who denied any sexual
activity prior to marriage, the court found Dabu did not carry her
burden of proof, noting Dabu’s “bias and motive to fabricate were
obvious.” As for the claims of domestic violence within the
meaning of section 3044, the court rejected a stalking claim,
which it found involved Tei circling the block while looking for a
parking place; the claim Tei had threatened her because it was a
single statement without any other facts that would make it
reasonable to view as an actual threat to harm her; and a
harassment claim that consisted of Tei once pounding on Dabu’s
door and calling out to see if anyone was home on other occasions
during a time when there was no agreed schedule for visitation
and Dabu and Tei frequently blocked each other’s calls, which
meant Tei had to come to Dabu’s residence to request visitation.
Under the circumstances, the court ruled, Tei’s conduct “appears
appropriate and did not constitute harassment.”

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 The court continued, “The conduct by Todd that was not
appropriate during this period was the language used by Todd in
his communications with Nancy.” Although problematic, the
court determined Tei’s messaging did not trigger the presumption
in section 3044 because of the context in which it occurred (the
noncustodial telephone calls between Tei and Anna): “When, in
Nancy’s view, the child did not want to talk or lost interest in
talking, then Nancy simply terminated the call. Todd, who was
not physically present, had no idea why Nancy had terminated or
blocked a call, so he called again. Nancy ignored these calls,
either by not answering them at all, or she answered and
immediately hung up on him without explanation. Nancy
seemed genuinely outraged that Todd would continue to call back
again and again. She was unable and unwilling to see how her
behavior would appear to Todd, i.e., that she had, for no good
reason, terminated and blocked his communication with the
child. As Todd’s frustration grew, he sent voice messages, text
messages, and emails that were disproportionate in number and
inappropriate in language.”4
Focusing on these episodes and other instances in which
the parties’ inability to communicate was of concern, the court
concluded Dabu’s and Tei’s “inability to exercise joint legal
custody is apparent.”5 Accordingly, the court did not award joint

4 The court noted Tei’s communication skills had markedly
improved once the parties were ordered to use OurFamilyWizard,
a website for divorced and separated parents to communicate
regarding coparenting matters. (See Jane J. v. Superior
Court (2015) 237 Cal.App.4th 894, 899.)
5 The court observed that Dabu and Tei have “very different
personalities, opinions, and decision-making styles.” Dabu is “a

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legal custody; nor did it award sole legal custody to one parent.
Instead, “in order to keep both parents involved in the child’s life
while minimizing the need for communication between the
parents, the Court awards each parent sole legal custody on
certain issues, with the other parent entitled to have full access
to records and personnel.” The court awarded sole legal
authority on all health issues to Tei; all legal authority on
educational decisions to Dabu. The court additionally adopted a
physical custody schedule that allowed each parent weekend time
and also weekday time to exercise his or her separate legal
authority. As the court explained, under the parenting schedule
Tei would have a physical custody timeshare of 31 percent.
Dabu filed objections to the proposed statement of decision
on February 5, 2018. In addition to challenges directed to the
court’s rejection of her claims Tei had abused her when she was a
minor, Dabu argued the court had not adequately addressed her
contention Tei’s emails, texts and voicemails constituted domestic
violence in the form of disturbing the peace. Dabu also asked the
court to modify its findings to state that many of Tei’s

strong, independent, ‘take-charge’ person who makes quick
decisions that she believes are the best for the child and is
impatient of the need for consultation and joint agreement with
Todd. She is convinced that Todd preyed on her when she was a
child and finds it impossible to trust him as a parent of their own
child or to give his views consideration.” Tei is a “slower decision-
maker who becomes easily frustrated and has vented his anger at
Nancy inappropriately in e-mails and other communications. He
recognizes that Nancy is trying to push him out of the child’s life
and so he is suspicious of her motives in any decision.” These
differences, the court concluded, “make joint decision-making
impossible.”

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inappropriate messages were “sent without provocation.” Tei
also filed objections, asking the court to revise its decision to
award Dabu a custody timeshare of more than 50 percent.
The court rejected all objections and declined the request
for additional or different findings. With respect to Dabu’s
objections related to her claims that Tei’s communications
following separation disturbed her peace and constituted
domestic violence, the court reiterated that Tei’s
“communications were very troublesome but, after considering all
the evidence, the Court reached the conclusion set forth in its
statement of decision.”
Judgment on Reserved Issues was entered May 17, 2018,
awarding Tei sole legal authority on all health decisions with
additional details regarding notice to Dabu. Dabu was awarded
sole legal authority on all educational decisions. Decisions on
issues not specifically addressed in the judgment were to be made
by the parent with custody at that time, “provided that the
decision does not interfere with the custodial time of the other
parent.” The judgment’s physical custody/parenting plan
specified Anna would be with Tei every first, third and fifth
weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m. and
every Tuesday from 2:00 p.m. or the end of school to Wednesday
at 5:00 p.m. Anna was to be with Dabu all times not designated
as Tei’s custodial time. The judgment also resolved the issues of
child support, sanctions and attorney fees.
Dabu filed a timely notice of appeal.6

6 Shortly after Dabu’s notice of appeal was filed, the
Los Angeles County Department of Children and Family Services
filed a petition on Anna’s behalf pursuant to Welfare and
Institutions Code section 300. The juvenile court sustained an

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 DISCUSSION
1. Governing Law
“California’s statutory scheme governing child custody and
visitation determinations is set forth in the Family Code . . . .
Under this scheme, ‘the overarching concern is the best interest
of the child.’ [Citation.] [¶] For purposes of an initial custody
determination, section 3040, subdivision (b) [now
subdivision (c)7], affords the trial court and the family ‘“the
widest discretion to choose a parenting plan that is in the best
interest of the child.”’ [Citation.] When the parents are unable to
agree on a custody arrangement, the court must determine the
best interest of the child by setting the matter for an adversarial
hearing and considering all relevant factors, including the child’s
health, safety, and welfare, any history of abuse by one parent
against any child or the other parent, and the nature and amount
of the child’s contact with the parents.” (In re Marriage of Brown

amended petition and declared Anna a dependent of the court.
On August 9, 2019 the juvenile court terminated dependency
jurisdiction, stating, “The Court reverts back to the original
family law decision—no Juvenile Custody Order is required for
this case.” Tei’s contention this order moots Dabu’s appeal is not
well taken, as we indicated when we denied Tei’s motion to
dismiss the appeal.
7 Former section 3040, subdivision (b), was redesignated
without change as subdivision (c), effective January 1, 2013. (See
Stats. 2012, ch. 845, § 1.) It provides, “This section establishes
neither a preference nor a presumption for or against joint legal
custody, joint physical custody, or sole custody, but allows the
court and the family the widest discretion to choose a parenting
plan that is in the best interest of the child.”

9
& Yana (2006) 37 Cal.4th 947, 955-956; accord, F.T. v. L.J. (2011)
194 Cal.App.4th 1, 14; see § 3011, subds. (a) & (b).)
Notwithstanding this broad discretion, section 3044 creates
a rebuttable presumption that sole or joint physical or legal
custody of a child should not be given to a parent who has
perpetrated domestic violence: “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 . . . 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.” (§ 3044, subd. (a).) “The legal effect of the
presumption is to shift the burden of persuasion on the best
interest question to the parent who the court found committed
domestic violence.” (Celia S. v. Hugo H. (2016) 3 Cal.App.5th
655, 662; accord, S.Y. v. Superior Court (2018) 29 Cal.App.5th
324, 334.)
Section 3044, subdivision (c), provides an expansive
definition of the phrase “perpetrated domestic violence” for
purposes of the subdivision (a) presumption: “[A] person has
‘perpetrated domestic violence’ when the person is found by the
court to have intentionally or recklessly caused or attempted to
cause bodily injury, or sexual assault, or to have placed a person
in reasonable apprehension of imminent serious bodily injury to
that person or to another, or to have engaged in behavior
involving, but not limited to, threatening, striking, harassing,
destroying personal property, or disturbing the peace of another,

10
for which a court may issue an ex parte order pursuant to
Section 6320 to protect the other party seeking custody of the
child or to protect the child and the child’s siblings.”
“Disturbing the peace” of another within the meaning of
California’s domestic violence statutes means “conduct that
destroys the mental or emotional calm of the other party.” (In re
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497; accord,
Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820; see
Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853 [“‘“the plain
meaning of the phrase ‘disturbing the peace’ in section 6320 may
include, as abuse within the meaning of the DVPA [Domestic
Violence Prevention Act], a former husband’s alleged conduct in
destroying the mental or emotional calm of his former wife”’”];
Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146
[same].)
Once the court finds a party seeking custody of a child has
perpetrated domestic violence, section 3044, subdivision (b), sets
forth detailed criteria that must be evaluated before the court
may find the presumption mandated by subdivision (a) has been
rebutted.8 Subdivision (f) requires the court, in determining the

8 Section 3044, subdivision (b), provides, “To overcome the
presumption set forth in subdivision (a), the court shall find that
paragraph (1) is satisfied and shall find that the factors in
paragraph (2), on balance, support the legislative findings in
Section 3020. [¶] (1) The 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. In determining the best
interest of the child, the preference for frequent and continuing
contact with both parents, as set forth in subdivision (b) of
Section 3020, or with the noncustodial parent, as set forth in

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presumption has been overcome, to make specific findings on
each of the factors listed in subdivision (b) (§ 3044, subd. (f)(1))
and to state its reasons in writing or on the record (§ 3044,
subd. (f)(2)).
“The clear terms of section 3044 require that a court apply
a presumption that it is detrimental to the best interest of the
child to award joint or sole physical or legal custody to a parent if
the court has found that that parent has perpetrated any act of
domestic violence against the other parent in the preceding five
years. The presumption is rebuttable, but the court must apply
the presumption in any situation in which a finding of domestic
violence has been made. A court may not ‘“call . . . into play” the
presumption contained in section 3044 only when the court
believes it is appropriate.’” (In re Marriage of Fajota (2014)
230 Cal.App.4th 1487, 1498; see Celia S. v. Hugo H., supra,

paragraph (1) of subdivision (a) of Section 3040, may not be used
to rebut the presumption, in whole or in part. [¶] (2) Additional
factors: [¶] (A) The perpetrator has successfully completed a
batterer’s treatment program that meets the criteria outlined in
subdivision (c) of Section 1203.097 of the Penal Code. [¶]
(B) The perpetrator has successfully completed a program of
alcohol or drug abuse counseling, if the court determines that
counseling is appropriate. [¶] (C) The perpetrator has
successfully completed a parenting class, if the court determines
the class to be appropriate. [¶] (D) The perpetrator is on
probation or parole, and has or has not complied with the terms
and conditions of probation or parole. [¶] (E) The perpetrator is
restrained by a protective order or restraining order, and has or
has not complied with its terms and conditions. [¶] (F) The
perpetrator of domestic violence has committed further acts of
domestic violence.”

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3 Cal.App.5th at p. 661 [“[t]his presumption is mandatory and
the trial court has no discretion in deciding whether to apply it”].)
2. Standard of Review
On appeal custody orders are generally reviewed for an
abuse of discretion (In re Marriage of Burgess (1996) 13 Cal.4th
25, 32 [“[t]he precise measure is whether the trial court could
have reasonably concluded that the order in question advanced
the ‘best interest’ of the child”]), and the family court’s factual
findings under the substantial evidence standard. (Id. at pp. 31-
32; accord, Montenegro v. Diaz (2001) 26 Cal.4th 249, 255;
see In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089;
Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.)
Here, however, it was for Dabu to establish in the first
instance that section 3044’s presumption applied. Because the
family court determined Dabu failed to present sufficient
evidence Tei had perpetrated domestic violence within the
meaning of the statute, the question on appeal is not whether
substantial evidence supports the court’s finding (see Juen v.
Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978;
Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal.App.4th 828, 838), but whether a finding in Dabu’s favor
on this issue is compelled by the record. (Almanor Lakeside
Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769
[“[o]n appeal from a determination of failure of proof at trial, the
question for the reviewing court is ‘“whether the evidence
compels a finding in favor of the appellant as a matter of law”’”];
see Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 647.)
“‘“Specifically, the question becomes whether the appellant’s
evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial

13
determination that it was insufficient to support a finding.’”’”
(Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc.
(2018) 19 Cal.App.5th 258, 270; accord, Petitpas v. Ford Motor
Co. (2017) 13 Cal.App.5th 261, 302-303.)
3. The Evidence Does Not Compel a Finding That Tei
Committed Domestic Violence
This court has previously emphasized section 3044’s
important role in requiring family courts, when making custody
decisions, to seriously evaluate the destructive impact of domestic
violence: “Presumptions are used in this context because courts
have historically failed to take sufficiently seriously evidence of
domestic abuse. [Citation.] [¶] ‘Without such assumptions, it
has been too easy for courts to ignore evidence of domestic abuse
or to assume that it will not happen again. As with the
limitations on consideration of the gender of a parent or child,
presumptions function to counteract the proven tendency of some
courts to make judgments based on ignorance or stereotypes.’”
(Jaime G. v. H.L., supra, 25 Cal.App.5th at p. 806.)
As discussed, for the presumption to apply, the family court
must first find a party seeking custody has perpetrated domestic
violence. Largely disbelieving Dabu, the family court found
Dabu’s evidence insufficient to establish she had been abused by
Tei within the meaning of section 3044. Dabu does not challenge
the family court’s determinations regarding her allegations of
sexual abuse when she was a minor or her claims Tei stalked and
threatened her. She limits her argument on appeal to the court’s
failure to find Tei’s inappropriate emails, text messages and
voicemails disturbed her peace and, therefore, constituted
domestic violence.

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 Tei’s angry messages were unquestionably inappropriate,
as the family court stated. But a finding they constituted
“disturbing the peace” and, therefore, domestic violence within
the meaning of section 3044 required not only an evaluation of
Tei’s conduct but also an assessment of its impact on Dabu—did
the stream of messages destroy Dabu’s mental or emotional calm?
(See, e.g., Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 579-580
[affirming trial court’s restraining order issued under the
Domestic Violence Prevention Act (DVPA); “Ervin’s distribution
of information about Altafulla’s affair, which she plainly did not
want to share with her coworkers, relatives, and friends, did
cause and no doubt was calculated to cause, Altafulla grave
emotional distress”]; In re Marriage of Nadkarni, supra,
173 Cal.App.4th at pp. 1498-1499 [reversing trial court order
dismissing application for a restraining order on the ground the
alleged conduct was insufficient to constitute abuse within the
meaning of the DVPA; “[w]e assume, without deciding the truth
of Darshana’s allegations, that Datta’s conduct . . . caused her to
suffer ‘shock’ and ‘embarrassment,’ to fear the destruction of her
‘business relationships,’ and to fear for her safety. In other
words, Datta’s conduct with respect to Darshana’s e-mail account,
as stated in her declaration, allegedly caused the destruction of
her mental or emotional calm and could, if found to be true,
constitute ‘disturbing the peace of the other party’”].)
Here, based on the nature of the parties’ contentious
relationship regarding Anna, which provided the backdrop for
Tei’s communications, as well as the court’s serious doubts as to
Dabu’s credibility, the family court concluded the impact of Tei’s
messages, troublesome as they may have been, did not reach the
threshold required to constitute domestic abuse. As discussed,

15
after observing Dabu’s testimony, the court found her “not
entirely credible,” noting her bias and motive to fabricate in an
effort to win sole legal and physical custody of Anna. And
specifically with respect to Dabu’s conclusory assertions she felt
harassed and intimidated by Tei’s messages, the court stated her
testimony was “of absolutely minimal, if any, value” to the court.
The significance of the circumstances in which Tei’s messages
were sent and Dabu’s credibility in describing her reaction to
them are not matters for us to judge in the first instance. (In re
Marriage of Oliverez (2019) 33 Cal.App.5th 298, 319 [“‘“[t]he trier
of fact is the sole judge of the credibility and weight of the
evidence”’”]; accord, In re Marriage of Greenberg (2011)
194 Cal.App.4th 1095, 1099; see In re Marriage of Falcone & Fyke
(2012) 203 Cal.App.4th 964, 979 [“As the trier of fact in this case,
the trial judge was the exclusive judge of the credibility of the
evidence. [Citation.] In that role, the judge may reject any
evidence as unworthy of credence, even uncontradicted
testimony”].) Although the evidence could have supported a
finding of domestic violence, the record did not compel such a
finding as a matter of law.9
Dabu’s additional argument the family court erred by
creating a “no-provocation requirement” that improperly excused

9 Citing this court’s decision in Jaime G. v. H.L., supra,
25 Cal.App.5th at page 805, which held the family court must
make specific findings about each of the seven factors identified
in section 3044, subdivision (b), before finding the subdivision (a)
presumption has been rebutted, Dabu urges us to find the family
court erred by failing to make equally specific findings when
ruling she failed to establish Tei had committed domestic
violence. The statute contains no such requirement.

16
Tei’s abusive messages is misplaced. The court’s tentative
statement of decision did no such thing. Fairly read, the court’s
discussion of the context in which Tei sent angry emails and text
messages to Dabu was a necessary aspect of its determination
that those messages, however problematic, did not destroy Dabu’s
mental or emotional calm. Far from creating an additional,
nonstatutory requirement for proof of domestic violence,
established caselaw requires the family court to evaluate all the
circumstances in which the allegedly abusive conduct took place
to determine if it disturbed the peace of another. (See Altafulla v.
Ervin, supra, 238 Cal.App.4th at pp. 579-580.)
DISPOSITION
The family court’s order is affirmed. Tei is to recover his
costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

DILLON, J.*

* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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