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Theresa Anntionette Lucido v. Stephen Lawrence Demaine

December 20, 2012

THERESA ANNTIONETTE LUCIDO, PLAINTIFF AND RESPONDENT,
v.
STEPHEN LAWRENCE DEMAINE, DEFENDANT AND APPELLANT.



(Super. Ct. No. FL040407)

The opinion of the court was delivered by: Blease , J.

Lucido v. DeMaine CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Theresa Anntionette Lucido obtained a domestic violence restraining order against her former husband, Stephen Lawrence DeMaine. (Fam. Code, § 6200 et seq.) In this pro se judgment roll appeal from the restraining order, DeMaine asks us to reverse the restraining order because the trial court abused its discretion by denying his request for a continuance of the hearing on Lucido's petition.

We find no error and shall affirm the order.

BACKGROUND

DeMaine has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.122.) As a result, the appellate record does not include a reporter's transcript of the hearing that gave rise to the restraining order challenged in this appeal. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

Lucido and DeMaine are the parents of two school-aged boys. They are divorced, and share legal custody of the boys, who live primarily with Lucido, with DeMaine having visitation.

In August 2011 (all date references are to 2011), Lucido filed a petition for a temporary restraining order and injunction to prevent her ex-husband from harassing her and coming within 100 yards of her home, vehicle, and workplace. In support of the petition, Lucido averred that DeMaine obsessively sends multiple texts and emails each day with demands concerning their parenting arrangements. He also parks his vehicle in her driveway and sleeps there, while waiting for his visitation with the boys to begin. On another recent occasion, when DeMaine came to pick up things from the house where Lucido lives with their sons, he used obscene and profane language, "stalked [her] residence, filming and photograph[ing] with his cell phone [and] sitting in his vehicle in front of [her] home" and then made calls with threats, saying " 'if he cannot have [her] than no one else can.' " In short, Lucido averred, DeMaine's "harassing, stalking behavior" is frightening: "even though we have been divorced since 2004 he continues to interfere and believes we are still married."

The court issued a temporary restraining order and set the matter for hearing on September 7.

In his answer, DeMaine denied engaging in any harassing conduct, and denied using obscene or profane language. Moreover, DeMaine averred, Lucido is not afraid of him, and the stay away order violates his property rights because he still owns the residence where Lucido lives with the boys.*fn1

Both parties were present at the scheduled hearing on September 7; according to a declaration later submitted by Lucido, the matter was continued to November 9 with DeMaine's assent. (No transcript or minute order of that hearing is in the record on appeal.) The temporary restraining order was likewise continued until November 9.

Sometime before the November 9 hearing, DeMaine requested a continuance of that hearing, because "I have friends flying into San Diego, and staying with me in San Diego County for the ...


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