IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 7, 2010
IN RE THE MARRIAGE OF JANET AND CURTIS CARTER. JANET CARTER, RESPONDENT,
CURTIS CARTER, APPELLANT.
Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge.
The opinion of the court was delivered by: O'leary, Acting P. J.
Marriage of Carter CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Reversed and remanded with directions.
A judgment of dissolution of the marriage of Janet Carter and Curtis Carter was entered in April 2009.*fn1 In this appeal, Curtis appeals from a domestic violence restraining order (the restraining order) issued against him on February 24, 2010. He argues (1) the family court was biased against him and favored Janet because she is a "Caucasian licensed Family Law attorney" who is "practicing law in the same jurisdiction as the lower court" and was biased against his religious beliefs, and (2) before making its ruling, the family court reviewed in camera a folder of documents submitted by Janet without permitting him to review them.
Although we find no evidence of bias, we conclude the family court erred if it reviewed documents in camera without expressing a legitimate reason for not letting Curtis see them. We therefore reverse and remand with directions set forth in the Disposition. The domestic violence temporary restraining order, issued on January 29, 2010 (the temporary restraining order), is ordered reinstated until disposition after remand of Janet's application for a domestic violence restraining order.
FACTS AND PROCEEDINGS IN THE FAMILY COURT
Janet and Curtis were married in October 1999. Janet is an attorney and the principal shareholder of The Advocate's Legal Center Inc. Curtis is a writer and at the time of trial was employed part time by LA Fitness International, LLC. Janet filed for legal separation in March 2008. In April 2009, a judgment of dissolution was entered.
On January 29, 2010, Janet sought and was granted the temporary restraining order against Curtis pending a hearing on her application for a domestic violence restraining order. The application was supported by a lengthy declaration. Curtis answered the temporary restraining order and submitted his declaration, another declaration, and other evidence in opposition to the application for a restraining order.
A hearing on the application for a domestic violence restraining order was conducted on February 24, 2010. Janet and Curtis apparently testified, but no reporter's transcript was requested.
After the hearing, the court entered a minute order stating: "The court finds the pleadings do not contain intent to commit acts of domestic violence but the emails sent are disturbing and do fall within the conduct for a restraining order to be issued. This ongoing conduct is a methodology to continue on with a relationship that is over. [¶] The court finds acts of domestic violence have occurred and the moving party is the victim and the responding party is the perpetrator and did not act in self-defense. The court finds good cause to issue restraining orders in accordance with the Restraining Order After Hearing signed and filed his date. The restraining orders shall remain in effect through 2/24/12." Curtis timely appealed.
Here, as in Curtis's appeal from the order on an order to show cause regarding modification of spousal support filed by Janet (Carter v. Carter (Dec. 7, 2010, G043030) [nonpub. opn.]), Curtis argues the family court was biased against him and in favor of Janet because she is Caucasian and a practicing attorney in the family court. Curtis is African-American. Curtis also asserts the family court was biased against him for his Christian religious beliefs. We treat those assertions quite seriously.
We have reviewed at length the appellate record and have found no evidence of bias. The fact the family court ruled against Curtis does not indicate bias, even if that ruling were erroneous.
Curtis also asserts the family court erred by considering in camera a folder of documents submitted by Janet without permitting Curtis to see them. A reporter's transcript was not prepared and the minute order, entered February 24, 2010, does not mention an in camera review of documents. Janet tacitly concedes, however, she did submit documents for the court's review without giving Curtis the opportunity to see them. In her short respondent's brief, Janet states, "Respondent also offers to the Court of Appeal the opportunity to review the same documents 'in camera' that were provided to the Honorable Michael Naughton for 'in camera' review prior to rendering the Trial court's ruling(s) in this matter."
The family court erred if it did consider documents without permitting Curtis to see them and without expressing a legitimate reason for doing so. (Cf. In re Marriage of Dunn (2002) 103 Cal.App.4th 345 [trial court erred by handling motion for postjudgment modification order in chambers, with no formal hearing].) Canon 3B(7) of the California Code of Judicial Ethics states in part, "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding." Reviewing in camera documents from one party, without letting the other party see them, might constitute an ex parte communication from one party if the court does not express a legitimate reason for keeping the documents confidential.
The documents presented to the family court appear to have been printed copies of e-mails that Curtis sent to Janet. Neither Janet's moving papers nor Curtis's opposition papers include copies of e-mails sent by Curtis. Yet, in its minute order, the family court stated, "the e-mails sent are disturbing and do fall within the conduct for a restraining order to be issued." Janet has offered to submit to us the documents she submitted to the family court for an in camera review. We decline the offer in order to avoid an ex parte communication with this court.
We therefore reverse and remand. After remand, the family court shall have the opportunity to confirm whether it reviewed in camera any documents submitted by Janet and to reinstate the restraining order if it did not do so. If the family court did review Janet's documents in camera and without giving Curtis an opportunity to review and respond to them, then the case shall be transferred to a different judge and a new hearing held on Janet's application for a domestic violence restraining order.
When the temporary restraining order was issued on January 29, 2010, it was to remain in effect until the hearing on Janet's application for a domestic violence restraining order. Curtis has not challenged the issuance of the temporary restraining order, the purpose of which was to restrain him until the application for a domestic violence restraining order could be heard. To effectuate that purpose, we will order the reinstatement of the temporary restraining order forthwith until the time, following remand, of the disposition of Janet's application for a domestic violence restraining order.
The restraining order entered February 24, 2010 is reversed and the matter is remanded with the following directions:
1. The family court is to confirm whether, at the hearing on Janet's application for a domestic violence restraining order on February 24, 2010, the court considered in camera documents submitted by Janet without affording Curtis the opportunity to see and respond to those documents.
2. If the family court did consider such documents, then the matter shall be transferred to different judge for a new hearing on Janet's application for a domestic violence restraining order.
3. If the family court judge did not consider such documents, or permitted Curtis to review and respond to them, the restraining order against Curtis may be reinstated.
4. The temporary restraining order, issued on January 29, 2010, is ordered reinstated and shall remain in effect until disposition after remand of Janet's application for a domestic violence restraining order.
Appellant shall recover costs incurred on appeal.