Filed 9/8/22 Mackinga v. Mackinga CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KELLY MACKINGA, 2d Civil No. B314989
(Super. Ct. No. 17FLP-0313)
Plaintiff and Appellant, (San Luis Obispo County)
v.
DARREL MACKINGA,
Defendant and Respondent.
Appellant Kelly Mackinga appeals from the order renewing
a domestic violence restraining order (DVRO). (Fam. Code,
§ 6300 et seq.) She contends the trial court abused its discretion
when it excluded her minor children as protected parties.1 We
affirm.
1 Respondent
has not filed a responsive brief. Accordingly,
we “decide the appeal on the record, the opening brief, and any
oral argument by the appellant.” (Cal. Rules of Court, rule
8.220(a)(2).)
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Kelly Mackinga and respondent Darrel
Mackinga separated in June 2017. Their marriage was dissolved
in January 2019. They had three children together (“the
children”).
In August 2019, appellant filed a request for a DVRO. She
included a text message respondent sent her in April in which he
said, “Now just fuck off and die already.” In a series of texts in
August, respondent complained that appellant was “keeping me
out of my kids’ lives,” and used profanities. He texted, “Wish you
would just fucking die!” When she said she would call the police,
he texted, “Do it!! I can’t fucking wait!!! Looking at my tucking
[sic] gun!!!”
The request for DVRO stated the children needed
protection because respondent “cannot control his anger,” “lets
himself go” when drunk, and “is not safe for our kids to be with.”
Appellant stated that the children did not want to be with
respondent, who rarely visited with them.
In June 2020, the court issued a DVRO based on the
stipulation of the parties. The order prohibited respondent from
harassing, threatening, or assaulting appellant or the children,
destroying their personal property, or coming within 100 yards of
appellant’s person, home, or vehicle. The court ordered that
respondent and the children participate in conjoint therapy with
a licensed therapist “to help Respondent and the children
re-establish their relationships.” The order expired on May 15,
2021.
In April 2021, appellant filed a request to renew the DVRO.
She summarized the prior incidents and said she was afraid
respondent would abuse her in the future because he had abused
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her after previous temporary restraining orders had expired.
Respondent asked that the request be denied.
An evidentiary hearing was heard in August, when the
children were 12, 14, and 16 years old. Appellant testified that in
April 2021, all four tires were slashed on the eldest daughter’s
car in their driveway. The car had been obtained after appellant
and respondent separated. The same night, all four tires were
slashed on the vehicle of respondent’s ex-girlfriend in her
driveway. Appellant was afraid respondent would enter her
house, so she and the children left the house for three days.
Respondent testified the text message about his gun in
April 2019 was not a threat and denied slashing the tires. He
said he never physically abused appellant and never threatened
to use physical force against the children, followed them, or went
to their school or church.
Respondent testified that appellant “intervene[d]” and
“controlled” when he could see the children. His only means to
contact them was through the elder daughter’s phone. He
admitted occasionally calling or texting them on days not
authorized by the court. The children never responded to his
calls or texts. He complained that appellant never gave him
pictures of the children. At the time of the hearing, he was
employed and living in Oklahoma with a one-year lease.
The trial court found that respondent slashed the tires, but
the court was not convinced he knew it was his daughter’s car.
The court found that appellant had a reasonable apprehension of
future abuse. The court stated that the children were reluctant
to foster a relationship with respondent, but there was no
evidence they were threatened or had a reasonable apprehension
of future abuse. The court renewed the DVRO for five years, but
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amended it to include only appellant, and not the children, as
protected parties.
The court stated it was “trying to promote frequent and
continuing contact with the children.” The court suggested that
the younger children get their own cell phones so respondent
could contact them directly and suggested that appellant ask the
children to send respondent their pictures “[s]o they know that he
cares.” The court asked respondent’s attorney to “counsel”
respondent “to use the most extreme caution” regarding the
content of texts he sent the children.
DISCUSSION
Appellant contends the trial court abused its discretion
when it failed to include the children in the renewed restraining
order. We disagree.
Renewal of DVRO
A DVRO “may be renewed, upon the request of a party,
either for five years or permanently, without a showing of further
abuse since the issuance of the original order.” (Fam. Code,
§ 6345, subd. (a).)
“‘We review an appeal from an order denying a request to
renew a domestic violence restraining order for abuse of
discretion.’” (In re Marriage of Martindale & Ochoa (2018) 30
Cal.App.5th 54, 59 [affirming denial of DVRO renewal].) We
review factual findings for substantial evidence. (In re Marriage
of Davila & Mejia (2018) 29 Cal.App.5th 220, 226.)
Appellant relies on authority that “any violation of a
restraining order is very serious, and gives very significant
support for renewal of a restraining order.” (Lister v.
Bowen (2013) 215 Cal.App.4th 319, 335.) But the violations here
did not require renewal as to the children. Although respondent
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admitted contacting the children outside the times specified by
the court, the evidence did not establish that these violations
were harassing or abusive. Slashing the vehicle tires was a
serious violation, but substantial evidence supported the
conclusion that respondent may not have known it was his
daughter’s car.
“A trial court should renew the protective order, if, and only
if, it finds by a preponderance of the evidence that the protected
party entertains a ‘reasonable apprehension’ of future abuse.”
(Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290.) The court
must consider “all relevant facts and circumstances,” including
conduct prior to the original restraining order relevant to fear of
future abuse. (In re Marriage of Brubaker & Strum (2021) 73
Cal.App.5th 525, 529, 540-541.) “Also potentially relevant are
any significant changes in the circumstances surrounding the
events justifying the initial protective order.” (Ritchie v. Konrad,
supra, 115 Cal.App.4th at p. 1291.)
Changed circumstances here included reduction in risk
based on respondent’s relocation to Oklahoma. (See Ritchie v.
Konrad, supra, 115 Cal.App.4th at p. 1293 [respondent’s move to
Nevada a changed circumstance].) There was no evidence that
respondent physically abused the children or threatened to do so.
The trial court found there was no showing the children had a
reasonable apprehension of future abuse. Substantial evidence
thus supports the conclusion that failure to include the children
would not jeopardize their safety. (Fam. Code, § 6340, subd.
(a)(1).)
Discretion to include family members
A court may issue a DVRO to enjoin a party from attacking,
threatening, harassing, or contacting “the other party, and, in the
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discretion of the court, on a showing of good cause, of other
named family or household members.” (Fam. Code, §§ 6320,
subd. (a), 6340, subd. (a)(1).) “[T]he court must consider the
totality of the circumstances” and has “discretion . . . to include
family or household members as protected parties on a showing
of good cause.” (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 643;
Fam. Code, § 6301, subd. (c).)
In J.H. v. G.H., the Court of Appeal upheld the trial court’s
exclusion of the children from the DVRO. There, J.H. threatened
to make G.H. “disappear” and “called her names in front of the
children.” (J.H. v. G.H., supra, 63 Cal.App.5th at p. 638.) He
used physical force against their son and physically abused G.H.
in the presence of their daughter. (Id. at pp. 637-638.) As a
result, both children developed emotional problems. (Id. at p.
638.) “In declining to include the children as protected parties,
the court provided two reasons: (1) it did not believe J.H.
presently posed any threat or danger to the children; and (2) it
wanted the children and J.H. to begin working on repairing their
relationship, which the court felt was in the children’s long term
best interests.” (Id. at pp. 643-644.) The appellate court
concluded that “the court’s decision to exclude the children from
the DVRO was not outside the bounds of reason.” (Id. at p. 645.)
Here, substantial evidence supported the trial court’s
conclusion that the vandalism of the daughter’s car may not have
been directed at her. And, as in J.H. v. G.H., supra, 63
Cal.App.5th at p. 645, the court acted within its discretion when
it considered furthering the children’s relationship with
respondent when it excluded them from the DVRO.
Gou v. Xiao (2014) 228 Cal.App.4th 812, upon which
appellant relies, is inapposite. There, the trial court erred when
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it applied the wrong definition of “victim” and summarily denied
a DVRO without a hearing. (Id. at pp. 817-818.) The appellate
court remanded for a hearing but “express[ed] no opinion on how
the trial court should exercise its discretion[] . . . in determining
whether or not to issue a DVRO in favor of appellant, the child,
or both.” (Id. at p. 818.)
The trial court’s request that respondent’s attorney
“counsel” him to use caution regarding texts he sent the children
does not establish that the court abused its discretion. This case
is unlike Cueto v. Dozier (2015) 241 Cal.App.4th 550, relied upon
by appellant. There, the trial court denied the motion to renew
the DVRO but inconsistently warned that respondent did not
have “‘free license to contact [the petitioner] in any way.’” (Id. at
p. 558.) The Court of Appeal stated, “The trial court’s comments
bolster our conclusion that Cueto had demonstrated a reasonable
apprehension of future abuse.” (Id. at p. 562.) But the trial
court’s comments here do not show it believed the children had a
reasonable apprehension of future abuse.
Modification of order
Appellant contends the trial court had no authority to
modify the DVRO because respondent did not move to modify or
terminate it. Appellant is mistaken.
The order did not violate subdivision (a) of Family Code
section 6345, which provides that the court may renew a DVRO
“subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party.” (Italics added.) This provision authorizes the
court to modify or terminate a DVRO after renewing it, and does
not concern modification at the time of renewal. Respondent was
not required to make a motion to modify or terminate the DVRO;
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because he opposed renewal of an expiring order, the burden was
on appellant to show “a reasonable apprehension of future
abuse.” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1504.)
This case is unlike Avalos v. Perez (2011) 196 Cal.App.4th
773, upon which appellant relies. There, the trial court erred
when it renewed a DVRO for two years because the statute
clearly limits renewal to either five years or permanently. (Fam.
Code, § 6345, subd. (a).) Neither section 6345 nor Avalos
precludes a court from renewing a DVRO as to one protected
party and not as to others.
The trial court properly acted within its jurisdiction to
grant the request in part and deny it in part by issuing an
amended order that renewed the DVRO as to appellant and
allowed it to expire as to the children.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. PERREN, J.
Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Gillett Law, Gregory F. Gillett and Heather E. Stirling for
Plaintiff and Appellant.
No appearance for Defendant and Respondent.