Chirip-Riggs v. Hernandez CA4/2

Filed 11/5/26 Chirip-Riggs v. Hernandez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO AUDREY CHIRIP-RIGGS, Plaintiff and Respondent, E086202 v. (Super. Ct .No. FAMBA2402690) AARON HERNANDEZ, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Jason S. Wilkinson, Judge. Affirmed in part, reversed in part. Aaron Hernandez, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. 1  I. 1 INTRODUCTION Defendant and appellant, Aaron Hernandez (Father) appeals the trial court’s orders imposing a domestic violence restraining order (DVRO) against him and an order 2 modifying child custody under Family Code section 3044. Father contends that there was insufficient evidence to support the DVRO. He also argues that the child custody order, granting plaintiff and respondent, Audrey Julia Chirip-Riggs (Mother) sole physical and legal custody and a revised visitation schedule, violated Father’s due process rights and was an abuse of discretion. We conclude there was substantial evidence supporting the DVRO, but the trial court erred in modifying child custody because neither party requested a change of the existing child custody order and there was no notice that child custody might be changed at the DVRO petition hearing. Therefore, the order granting Mother’s petition for a DVRO against Father is affirmed, and the order modifying child custody is reversed, leaving in effect the pre-existing child custody order. 1 Both Mother and Father are not represented by counsel. Mother did not file a response to Father’s appeal. Mail sent to her at a P.O. box address was returned, indicating she may have changed her address. 2 Unless otherwise noted, all statutory references are to the Family Code. 2  II. FACTS AND PROCEDURAL BACKGROUND Mother became pregnant with N.H. in June 2023. N.H. was born in 2024. It is undisputed that Father is the biological father of N.H. Mother and Father never married each other. They lived together for approximately three months, and then separated. On November 21, 2024, in a child custody proceeding filed in 2024, the Family Court ordered joint legal and physical custody of N.H. The court further ordered Mother and Father to have alternating two-day periods with N.H., alternating weekends with him, and shared holidays. The shared child custody order was in accordance with a mediation agreement in October 2024, and a Family Court Services (FCS) recommendations report. A. Mother’s DVRO Petition On January 24, 2025, Mother filed a request for a DVRO against Father (DVRO Petition) and obtained a temporary restraining order (TRO). When Mother filed her request for a DVRO, she was not living with Father. Mother was 22 years old, Father was 36 years old, and N.H. was almost one year old. Mother stated in her DVRO petition (form DV-100) that she was not requesting that the DVRO protect anyone other than herself and her dog. Mother did not request any court order regarding child custody or visitation and did not attach a child custody form (form DV-105) to her DVRO petition, which is normally required when requesting a child custody order. In form DV-101, attached to Mother’s DVRO Petition and signed under penalty of perjury, Mother alleged that Father committed the following emotional, physical, and verbal abusive acts and provided supporting evidence, including texts and photos. 3  1. July 15, 2023 Incident On July 15, 2023, while camping near Yosemite, Father began insulting Mother and cursing, and then walked out into the dark forest. Mother realized her car keys were gone. During the evening, When Father returned, Mother asked him about the keys, and he said he didn’t have them. Mother and Father argued, and Mother begged him for her keys. He said he left the keys in the woods on a tree. Mother was scared and crying hysterically. Smiling, he refused to return her keys. Eventually, he admitted the keys had been in his pocket the whole time and gave them to Mother. Father then demanded she drive him home, which would have taken hours from Yosemite. Mother refused. When Mother told Father to put out the fire, he refused, so Mother put it out. As she walked away crying, Father grabbed her and told her to come back with him because she was making a scene. Mother pulled away and told him to leave her alone. He demanded she drive him home and she said no. Father threatened to slash her tires. Mother and Father argued and Mother cried. She offered to drive him to the nearest town where he could call someone to get him. Father grabbed her cellphone and pretended to throw it out the car window. As Mother cried hysterically, he pulled the cellphone inside the car. 2. August 25, 2023 Incident On August 25, 2023, Father got mad and threw a chair. 3. December 19, 2023 Incident On December 19, 2023, Mother went to her six-month pregnancy doctor’s appointment, which Father did not attend. During the evening after the appointment, 4 Father was angry and hostile because Mother went to the appointment without him. While Mother was standing by the bedroom door, he yelled that Mother “made him look like a damn fool,” and threw a screwdriver at Mother. He moved toward Mother angrily mumbling, punched the wall behind Mother, creating a hole. Father then punched another hole in the kitchen wall and stormed out the front door. Mother also left but decided to return to take a picture of the damage. Father tracked her location and returned. He tried to take Mother’s cellphone to prevent her from taking pictures of the damage, but she was able to take photographs of the holes in the walls, and they were entered into evidence. 4. April 1, 2024 Incident On April 1, 2024, Mother decided to move out of Father’s parents’ home where she had been staying with Father and N.H., because she was not comfortable there. Father’s house was under construction and not safe for an infant, so she decided to move into her parents’ home with N.H. Later, Mother left N.H. with her parents and returned to Father’s parents’ home to retrieve her belongings. Father blocked Mother from getting her belongings, pushed her, and held her back in the kitchen. His mother (PGM) grabbed Mother’s wrist as she tried to walk away. After she was released and went outside, Father and PGM blocked her from going out the front gate. Father slammed into Mother as he tried to grab her shoulders and hold her back. Mother’s cellphone fell to the ground, breaking the cellphone case. Mother cried and demanded Father let her go. After she was released, she gathered her belongings and left. A couple of days later, she reported the incident to the police. 5  5. July 13, 2024 Incident On July 13, 2024, Mother and Father were planning to go to Father’s parents’ home. Before leaving to visit Father’s parents, while in the bedroom, Mother told Father they should plan to get back in time for N.H.’s bath and bedtime. Father got angry, called Mother names, and yelled in her face. Father took N.H. from her, who was four months old, and while holding him, violently yanked the diaper bag from Mother, causing N.H. to be jerked around. Mother asked for N.H., who began crying. Father left the room with N.H. When Mother threatened to call the police, Father returned N.H. to Mother, who put him in his car seat on the bed, while Father berated and yelled at her. Father grabbed her by the shoulders and, when Mother tried to leave, backed her up against the wall, causing her head to hit the wall. Father tried to force Mother, who was crying, to look at him and she refused. Finally, Father allowed Mother to leave. She grabbed N.H. and fled in her car. Father tried to get in her car as she was driving away. 6. November 21, 2024 Incident On November 21, 2024, after Mother and Father’s child custody hearing, while heading to the FCS office to schedule mediation, Father tried to push past Mother to the receptionist, who asked Mother if she wanted Zoom or in-person mediation. When Mother said she wanted Zoom mediation, Father interrupted, stating that they would mediate in person together. Father continued interrupting Mother. The receptionist noticed and suggested Mother request by email separate mediation. Outside in the hallway, Father’s parents and Mother’s friend, Cory, got into an altercation and were yelling. When Cory and Mother tried to leave, Father’s father (PGF) got into a verbal 6 altercation and Father yelled at Mother across the parking lot. B. Father’s Response to the DVRO Petition On February 14, 2025, Father filed a response to Mother’s DVRO petition (form DV-120). Father stated that there were no pending court cases or restraining orders other than the pending child custody case and TRO. Father disagreed with Mother’s DVRO petition allegations requesting a DVRO against Father and Mother’s allegations that Father abused her. However, he agreed with the existing child custody and visitation order. Neither party requested it be changed. Father noted that form DV-125 (Response to Request of Child Custody and Visitation Orders) was not attached to his DVRO petition response, most likely because Mother did not request modification of child support in her DVRO petition. Father further stated in his DVRO petition response that he had not done anything wrong. Mother and Father lived together for only three months and then separated. He stated that his life revolved around N.H. and that Mother and Father had numerous insignificant arguments. Father maintained that Mother was “always making up things,” which made co-parenting difficult. Father requested that Mother get a psychological evaluation and therapy for her mental health and anger issues. He described her as “confrontational, demanding, harassing, and malicious” toward Father and N.H. Father said he took parenting and anger management classes. Father attached to his response evidence of text messages and photographs supporting his allegations. In Father’s attached statement responding to Mother’s allegations of abuse, Father alleged that Mother’s statements that he abused her were false. 7  C. DVRO Petition Hearing During the hearing on Mother’s DVRO petition on February 18, 2025, Mother, Father, and PGM testified. At the beginning of the hearing, the court stated that two issues were before the court: (1) Mother’s request for a DVRO, and (2) child support and tax implications for the parties. The court noted a TRO had been in effect since January 24, 2025, and then proceeded with the first issue, the DVRO request. Mother testified consistently with the statements in her DVRO petition. She added that, during the incident on August 25, 2023, when Father got mad and threw a chair, she was pregnant. PGM was present during the incident. During the December 19, 2023, incident, Father threw a screwdriver toward Mother and punched two holes in the wall, one behind Mother by the bedroom door and the other in the kitchen wall. When the court entered the two photographs of the holes into evidence, Father stated that everything Mother said was false. According to him, the holes were made on a different day for wiring for the dryer, which was being relocated. Mother responded that Father repaired the wall the next day and had tried to take Mother’s cellphone so she could not take photographs of the damage. As to the April 1, 2024, incident, Mother testified that Father and PGM tried to block Mother from leaving. In text messages from Father, he admitted he restrained Mother. Mother testified that Father was disabled. He therefore could not hurt her physically but continued to be verbally and emotionally abusive, including in N.H.’s presence. During PGM’s testimony, she stated she was present during all of N.H.’s visitation drop-offs and pick-ups. She also witnessed the alleged incidents either by cellphone or 8 was physically present. PGM testified consistent with Father’s version of the incidents. PGM stated that regarding the December 19, 2023, incident, that Father did not punch holes in the wall. PGF made the holes in the wall with a hammer for pulling up wires for installing a dryer and washer. PGF testified that during the December 19, 2023 incident, PGM and Father held Mother back to prevent her from leaving, because Mother was hysterical. Father testified that everything Mother said was false. He stated that his proof that Mother was lying was in the text messages and recordings he provided the trial court. His recordings were excluded from evidence because he did not provide transcripts of the recordings. Father claimed that Mother was the aggressor and said he believed that Mother would hurt herself physically. When Father began criticizing Mother’s care of N.H. when sick, the court reminded Father that the issue before the court was the DVRO, not child custody. After considering the evidence, the trial court found that a DVRO was necessary against Father on the grounds he was disturbing Mother’s peace, that is, her mental and emotional calm. He also was coercive and controlling. Contrary to Father’s assertion, the court found that Mother was not using the DVRO as a tactic to increase her child custody and visitation. The trial court explained that it could not award joint legal or physical custody upon granting a DVRO against Father. Therefore the court granted Mother sole legal and physical custody of N.H. under section 3044, but granted Father unmonitored visitation because the court found he did not pose a danger to N.H. The court further stated that it 9 found that PGM was not a credible witness, in part, because she testified the holes in the walls were made with the end a hammer for pulling wire, whereas the photographs of the holes did not support such a finding. After granting Mother’s request for a DVRO against Father, the court stated that it was required under the section 3044 presumption to award Mother sole legal and physical child custody. The court noted it could not award Mother and Father a 50/50 time share with N.H. under section 3044, because then Mother would not have sole legal and physical custody. Therefore, the court modified the pre-existing 50/50 custody order by striking the alternating weekends visitation and ordering that Father was to have visitation from Sunday morning to Tuesday morning. The court adopted and incorporated into the modified child custody order the previous FCS’s child custody recommendations. In addition, the court ordered the parties to attend FCS again for further recommendations on the court’s orders. The written DVRO order entered on February 18, 2025, states that the court granted child custody and visitation orders regarding N.H., which are included on attached form DV-140. Form DV-140 states that the court awarded Mother sole legal and physical child custody, and that Father was awarded unsupervised visitation, as specified in form DV-140. On April 18, 2025, Father filed a petition for changing child custody and visitation back to that ordered on November 21, 2024, and for reconsideration of the court’s order on February 18, 2025. On May 22, 2025, Father filed a notice appeal of the February 18, 10 2025 order, and on May 27, 2025, the court dismissed Father’s request for reconsideration. III. SUFFICIENCY OF EVIDENCE SUPPORTING DVRO Father contends there was insufficient evidence supporting the trial court’s DVRO because Mother did not demonstrate specific conduct by him that qualified as an act of abuse under the Domestic Violence Protection Act (§§ 6200 et seq.; DVPA). We disagree. A. Applicable Law Under the DVPA, the family court may issue a restraining order after a noticed hearing to prevent acts of domestic violence or abuse if an affidavit or testimony shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (§§ 6220, 6300, subd. (a), 6340; In re Marriage of M.P. & M.C. (2025) 116 Cal.App.5th 1096, 1106.) “The DVPA requires a showing of past abuse by a preponderance of the evidence.” (K.T. v. E.S. (2025) 109 Cal.App.5th 1114, 1127.) Abuse is bodily injury or threat of injury, stalking, or sexual assault, or behavior that can be enjoined under section 6320, such as disturbing the peace of the other party. Section 6320 lists several types of nonviolent conduct that may constitute abuse within the meaning of the DVPA. Abuse does not have to be actual infliction of physical injury or assault. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496.) “‘[D]isturbing the peace of the other party’ refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party,” 11 and it may include “coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.’” (§ 6320, subd. (c).) The phrase “‘disturbing the peace of the other party’” in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party. (In re Marriage of Nadkarni, supra, 173 Cal.App.4th at p. 1497). The court must “consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” (§ 6301, subd. (d); see In re Marriage of G.E. & I.D. (2026) 121 Cal.App.5th 1103, 1117.) The DVPA constitutes a comprehensive statutory response to domestic violence, which should be broadly construed to accomplish its purpose of preventing acts of domestic violence. (In re Marriage of G.E. & I.D., supra, 121 Cal.App.5th at p. 1117.) We apply an abuse of discretion standard when reviewing an order granting or denying a DVRO. (Id. at p. 1118.) We review de novo the issue of whether a trial court applied the correct legal standard and the interpretation of a statute. (Ibid.) B. Discussion of the Sufficiency of the DVRO Evidence We conclude there was substantial evidence, consisting primarily of Mother’s testimony, text messages, and photographs, supporting her allegations that Father repeatedly committed acts of abuse which disturbed Mother’s peace by his threats and abusive verbal and physical conduct. Mother testified that in July 2023, during a trip to Yosemite, Father intentionally terrified her by leaving her alone at night at the campground while pretending to dispose of her car keys in the forest. He also grabbed her when she was crying hysterically and 12 threatened to slash her tires. When she drove him that night to the nearest town, he pretended to throw her phone out the car window, again causing her to cry hysterically. During an incident in August 2023, Father got mad at her and threw a chair. In December 2023, when Mother was six months pregnant, Father got angry at her at their apartment, threw a screwdriver toward her, approached her angrily and punched the wall behind her, and then went to the kitchen and punched another hole in the wall. Father tried to take Mother’s cellphone to prevent her from taking photographs of the two holes. The photographs were introduced into evidence. During an incident in April 2024, when Mother and N.H. were moving out of Father’s parents’ home, Father blocked Mother from getting her belongings, pushed her, and held her back in the kitchen. After she got outside, Father and PGM blocked her from going out the front gate, and Father slammed into her and tried to hold her back. During the July 2024 incident, Father got angry at Mother, called her names, yelled in her face, grabbed N.H. from her, and violently yanked the diaper bag from her. This caused N.H., who was four months old, to be jerked around while being held by Father. Father continued to berate and yell at Mother, grabbed her by the shoulders, and when she tried to leave, backed her up against the wall, causing her head to hit the wall. Father tried to force Mother, who was crying, to look at him and she refused. Finally, Father allowed Mother to leave but tried to get in her car as she was driving away. During the most recent incident in November 2024, after a child custody hearing, Father tried to push past Mother at the FCS office and interrupted Mother while she was 13 speaking to the receptionist. Afterwards, outside, Father yelled at her across the parking lot. The trial court reasonably found that Father’s and PGM’s testimony was not convincing. Father testified that Mother was lying about most everything and that none of the abuse happened. PGM also testified that Father did not commit any of the alleged abuse. PGM’s testimony was consistent with Father’s version of what occurred, including the incident involving the two holes in the wall. Father and PGM testified the holes were made on another day with a hammer for the purpose of pulling wire needed to relocate the dryer. The trial court reasonably found that Father and PGM’s testimony was not credible. The court explained that the photographs of the holes did not appear to have been made by a hammer. Based on the totality of the evidence, the trial court reasonably found that there was substantial evidence of acts of abuse committed by Father and a pattern of behavior, which destroyed the mental and emotional calm of Mother through use of force, threats, coercion, harassment, and verbal and physical abuse. We therefore conclude that substantial evidence supports the DVRO order, which we affirm. IV. ORDER MODIFYING CHILD CUSTODY Father contends the trial court abused its discretion in awarding Mother sole physical and legal custody of N.H. and reducing his time with N.H. under section 3044. Father argues that the court modified his and Mother’s existing, agreed-upon, and court- ordered 50/50 timeshare and visitation schedule without Mother or Father requesting 14 modification of child custody and without any notice that child custody would be subject to modification or was at issue during the hearing on Mother’s DVRO petition. We agree. “We review custody and visitation orders for an abuse of discretion, and apply the substantial evidence standard to the [trial] court’s factual findings. [Citation.] A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child. [Citation.] A court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions.” (In re Fajota (2014) 230 Cal.App.4th 1487, 1497; see also Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 662.) We conclude the trial court abused its discretion by modifying child custody based on incorrect legal assumptions. The trial court erroneously assumed it was required to modify child custody based on the section 3044 presumption, which did not apply. “Family Code section 3044 establishes a rebuttable presumption that prevents a trial court from awarding sole or joint physical or legal custody of a child to a parent who commits an act of domestic violence against the other parent, unless the offending parent establishes by a preponderance of the evidence that an award of custody to that parent is in the child’s best interest.” (Celia S. v. Hugo H., supra, 3 Cal.App.5th at pp. 657-658.) Section 3044, subdivision (a) provides in relevant part: “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 . . . , there is a rebuttable presumption that an award of sole or joint physical or legal 15 custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to [s]ections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.” (Italics added.) Here, neither party requested the court to order child custody or modification of an existing child custody or visitation order, and Mother did not list N.H. as a protected party. Also, neither party attached to their DVRO petition or opposition, form DV-105, required for a child custody and visitation order. Furthermore, the trial court acknowledged that the issue of child custody was not before the court. During the DVRO hearing, the court told Father, when he mentioned custody, that custody was not at issue and that he needed to focus on the DVRO issue. Although the issue of child custody was not properly before the court, the trial court erroneously concluded it nevertheless was required to modify child custody by applying the section 3044 presumption. The court therefore modified the existing custody order by granting Mother sole legal and physical custody but nevertheless granting Father unsupervised visitation. The court stated it was granting Father visitation because the court found that Father did not pose a risk of harm to N.H. The court also stated it was granting visitation in an amount that was not quite as much time as permitted under the previously ordered 50/50 timeshare child custody order. The court noted it was avoiding violating section 3044’s mandate that Mother receive sole physical and legal custody by awarding Father slightly less than his previous 50/50 timeshare order. (See Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 658.) 16  The trial court’s remarks during the DVRO hearing reflect that the court erroneously assumed that the section 3044 presumption automatically applied, even though neither party requested modification of child custody, and even though Father was not given the opportunity to refute the presumption by showing it was in N.H.’s best interest to continue child custody and visitation in accordance with the existing child custody order and schedule. We conclude the section 3044 presumption did not apply because neither party requested modification of child custody, and Father, as well as Mother, did not receive notice that child custody would be subject to modification at the DVRO hearing. As a consequence, Father did not have an opportunity to rebut the section 3044 presumption by demonstrating that giving joint physical and legal custody of N.H. to Father was in N.H.’s best interest. In In re Marriage of Willis & Costa-Willis (2023) 93 Cal.App.5th 595, 605 (Willis), the court held that the section 3044 presumption does not arise when no party is requesting custody or modification of custody. The Willis court rejected the mother’s contention that her request for a DVRO and supporting documents provided the father with adequate notice that his acts of domestic violence would trigger the section 3044 rebuttable presumption and cause a change in custody. The court in Willis stated that in the mother’s DVRO request and supporting documents, she never requested modification of custody, which was necessary for the presumption of section 3044, subdivision (a) to apply. (Willis, supra, at p. 605.) The father argued that because the presumption of section 3044, subdivision (a) did not apply the court of appeal should reverse the family court’s order vesting sole legal 17 and physical custody with the mother. The Willis court agreed. (Willis, supra, 93 Cal.App.5th at pp. 605-606.) The court explained that, “[f]or both joint legal custody and physical custody, the dispositive question is whether the rebuttable presumption of section 3044[, subdivision] (a) arose or not. Our conclusion that the presumption of section 3044[, subdivision] (a) never arose in these DVRO proceedings means the family court . . . did err by granting [the mother] sole physical custody.” (Willis, supra, 93 Cal.App.5th at p. 606.) The Willis court also concluded that justice required it to reverse the award of sole legal custody, “[c]onsidering the importance of legal custody and power that sole legal custody gives to [the mother].” (Ibid.) Likewise, in the instant case we conclude the trial court erroneously determined that it was required to apply the section 3044 presumption without holding a noticed hearing on child custody modification and without allowing Father an opportunity to rebut the presumption. The court did not have authority to modify child custody because modification was not requested by either party, there was no notice of the possibility of child custody modification, and section 3044 did not require modification of custody under the circumstances. We therefore conclude the trial court abused its discretion in modifying the pre- existing child custody order under section 3044 and violated Father’s due process rights to a noticed hearing on modifying child custody. (In re Jesusa V. (2004) 32 Cal.4th 588, 601 [“[d]ue process guarantees ‘“notice and opportunity for hearing appropriate to the nature of the case.”’ [Citation.]”]; Boddie v. Connecticut (1971) 401 U.S. 371, 377- 379.) Justice thus requires us to reverse the order modifying child custody, including the 18 order awarding Mother sole physical and legal custody. (Willis, supra, 93 Cal.App.5th at p. 606.) V. DISPOSITION The order granting Mother’s request for a DVRO is affirmed. The order modifying child custody is reversed. The parties shall bear their own costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON _____________________________________________________________________________________________________________________________ _________________________________________ J. We concur: McKINSTER _____________________________________________________________________________________________________________________________ _________________________________________ Acting P. J. FIELDS _____________________________________________________________________________________________________________________________ _________________________________________ J. 19