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In re Marriage of J.Q.

California Court of Appeal, Fourth District, Third Division

January 31, 2014

IN RE MARRIAGE OF J.Q. AND T.B.
v.
T.B., Appellant. J.Q., Appellant,

 

[CERTIFIED FOR PARTIAL PUBLICATION[1]]

Appeals from orders of the Superior Court of Orange County, Glenn R. Salter, Judge. Reversed in part, affirmed in part, and remanded with directions. (Super. Ct. Nos. 12D009260 & 12V000499)

Page 688

COUNSEL

Family Violence Appellate Project and Nancy K.D. Lemon, Jennafer Dorfman Wagner and Erin Canfield Smith, San Jose; Aitken Family Violence Clinic and Wendy M. Seiden; O'Melveny & Myers and Luann Simmons, Anna-Rose Mathieson, and Ward Penfold, San Francisco, for Appellant, J.Q.

Law Offices of Shun C. Chen and Shun C. Chen, Irvine, for Appellant, T.B.

OPINION

O'LEARY, P.J.

Page 689

J.Q.[2] and T.B. appeal from orders after the trial court denied J.Q.'s application for a domestic violence restraining order and [167 Cal.Rptr.3d 575] request for spousal support against T.B. J.Q. filed an appeal arguing the trial court erred in denying her request for spousal support pending the resolution of her application for a restraining order and in denying her application for a domestic violence restraining order. T.B. filed a cross-appeal, contending that if this court is inclined to reverse the trial court's orders, the court erred in denying his request to present evidence of marriage fraud, and this court should address whether he acted in self-defense.

As we explain below, we conclude the trial court erred in ruling it did not have jurisdiction to award spousal support until after it found whether T.B. abused J.Q., and the court did not abuse its discretion in concluding J.Q. failed to establish by a preponderance of the evidence T.B. abused her. Because of our holding, we decline T.B.'s request to address the merits of his cross-appeal.

FACTS

J.Q. and T.B. met online in September 2009. J.Q. lived in Wuhan, China, and T.B. lived in Orange County; they corresponded via e-mail.[3] T.B. visited J.Q. in China four times, and they often discussed their shared Christian faith and marriage. They communicated through interpreters and a translation device. On November 2, 2010, J.Q. and T.B. were married in China in a state ceremony followed by a religious banquet. They initiated the visa application process so J.Q. could move to the United States. After they were married, J.Q. and T.B. discussed their prior relationships further. T.B. told J.Q. that his ex-wife had reported him to the police three times. In an e-mail in August 2011, T.B. explained to J.Q. that he would divorce her for the following two reasons: infidelity; and doing something to separate him

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from his children, which included calling the police on him. After the visa was approved, J.Q. moved to the United States on January 10, 2012. [4]

Less than two months later, on March 5, 2012, J.Q. sought and obtained an emergency protective order against T.B. In her application for a domestic violence restraining order, J.Q. alleged T.B. abused her on March 4, 2012. She also asserted, however, that T.B.'s abusive behavior began [167 Cal.Rptr.3d 576] almost immediately upon her arrival in the United States. T.B. was arrested on March 5, 2012.

A complaint charged T.B. with two misdemeanors: corporal injury on a spouse (Pen.Code, § 273.5, subd. (a)), and disturbing the peace (Pen.Code, § 415, subd. (1)) ( People v. T.B. (Super. Ct. Orange County, 2012, No. 12CM* * * * *)),[5] and a trial court issued a criminal protective order.

On March 7, 2012, J.Q. filed the following ex parte requests: (1) DV-110 application for a temporary restraining order; and (2) DV-100 application for domestic violence restraining order.

In her DV-100 application for domestic violence restraining order, J.Q. alleged the following: On the morning of March 4, 2012, T.B. demanded J.Q. have sexual intercourse with him. During the sexual intercourse, T.B. held her legs high in the air and when he penetrated her, her head hit the headboard. J.Q. was in a lot of pain, and she asked him to put her legs down. When T.B. became unsatisfied, he threw her legs down, got out of bed, threw things, yelled at her, and left. When T.B. returned, J.Q. asked him to have dinner with her, but he yelled at her and told her to leave. T.B.

Page 691

grabbed her collar and threw her to the floor. After T.B. closed the blinds, he repeatedly picked J.Q. up and threw her to the floor. After T.B. went upstairs, J.Q. followed him to talk to him, but he was still angry and verbally attacked her. T.B. threw her on the ground, and closed the blinds and turned off the lights. He grabbed her legs and tried to throw her out, and he threw her against the wall. J.Q. grabbed the bed, but T.B. threw her out of the room and locked the door. J.Q. stated she had visible injuries to her face, arm, and ankle, and she went to church for help. J.Q. said T.B. has several guns.

J.Q. also claimed T.B. had abused her on other occasions. After explaining T.B. did not let her go anywhere by herself, call anyone, let her learn English, give her any money, or buy her a cellular telephone, J.Q. claimed the following past abuse: T.B. demands " rough sex" with her every day. He " shov[ed] her around" and " hit [her] hard on [her] body but [he did] not leave any bruises except for the first beating around the beginning of February." T.B. threatened to have J.Q. deported if she told anyone he hit her. She also filed an income and expense declaration. Judge Beatriz M. Gordon granted the temporary restraining order effective until a hearing on March 27, 2012.

T.B. filed a response. In his response, T.B. attributed their misunderstandings to language, cultural, and legal differences. T.B. said J.Q. " has made many false statements in regards to [his] relations with her." T.B. explained that a few days before J.Q. arrived in the United States, his house burned down. He claimed J.Q. was impatient with him on a variety of issues, including finding a new church, having a child, and managing the family's finances. He also claimed she verbally attacked him concerning child support payments, his friends, and his spirituality. T.B. denied threatening her with deportation or violence. T.B. opined J.Q. does not understand the seriousness of the charges she has made.

With regard to the night of March 4, 2012, T.B. stated J.Q. began arguing with him when he did not have dinner with her. T.B. explained that to escape " her constant verbal assaults," he went upstairs but she followed him upstairs and began to argue with him again. T.B. claimed he again [167 Cal.Rptr.3d 577] tried to escape by walking out of the bedroom and J.Q. followed him. T.B. said he quickly tried to " jump[ ] back into the room and attempted to close" the door but " [J.Q.] quickly turned and threw herself between the door and the jamb to prevent [him] from closing it." T.B. believed this is what caused her injuries. T.B. said he let go of the door because he did not want to injure her. T.B. said that when J.Q. continued to verbally attack her, he told her that he was going to

Page 692

remove her from the room, a statement he immediately realized was a mistake. T.B. admitted he grabbed J.Q.'s coat and tried to move her towards the door. T.B. said that when J.Q. grabbed the footboard, the bed broke, and they fell on the bed. T.B. said he lifted J.Q. by the jacket and carried her headfirst out of the bedroom. T.B. explained that as he carried her headfirst, she swung her arms and legs, perhaps causing some of her injuries. T.B. claimed he gently sat her down and asked her not to follow him back into the bedroom. When she ignored his request, T.B. admitted he placed his hand over her head to prevent her from getting up.

At the March 27, 2012, hearing, Judge Gordon found there was good cause to continue the matter [167 Cal.Rptr.3d 578] and the temporary restraining order because of the pending criminal case. Judge Gordon continued the matter to May 15, 2012, and denied J.Q.'s oral motion for financial support. On April 23, 2012, J.Q. amended her DV-100 request for domestic violence restraining order to request spousal support.

One week later, J.Q. amended her DV-100 application for domestic violence restraining order a second time to clarify some translation inaccuracies in the original petition and supplement the petition with information concerning the criminal case. J.Q. added that items not discussed in the amendment " remain true and correct." J.Q. alleged the following: On the morning of March 4, 2012, T.B. demanded J.Q. have sexual intercourse with him and forcefully began to have sex with her. During sexual intercourse, T.B. held her legs high in the air and when he penetrated her, her head hit the headboard. J.Q. said that when she asked T.B. to put down her legs because she was in pain, he threw her legs down, got out of bed, yelled at her, threw things, and left. When T.B. returned later that evening, J.Q. asked T.B. to have dinner with her. T.B. became angry, told her to leave, closed the blinds and turned off the lights, grabbed her collar, and repeatedly threw her on the floor. After T.B. went upstairs, she followed him to try to talk with him. J.Q. claimed T.B. verbally attacked her, telling her she was a bad wife and she did not satisfy him sexually. After T.B. turned off the lights and closed the blinds, he threw her to the floor, against the walls, and onto the bed. J.Q. grabbed the bed, and T.B. broke the bed. T.B. grabbed her by the legs and dragged her ...


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