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Fischer v. Fischer

California Court of Appeals, First District, Second Division

May 10, 2018

DAVID FISCHER, Plaintiff and Appellant,
JOANNIE FISCHER, Defendant and Respondent.

          Pub. order 4/20/18

          San Mateo County Superior Court, No. FAM0127015, Hon. Rachel Holt Judge.

          Walzer Melcher, Christopher C. Melcher, Edward M. Lyman for Plaintiff and Appellant.

          California Appellate Law Group, Robert A. Roth, Ben Feuer for Defendant and Respondent.


         BY THE COURT:

         The opinion filed herein on March 23, 2018 is modified as follows:

         The first paragraph on page two is modified to read: “David and Joannie were married in 1999.1 They had two boys, now 16 and 12, and lived on Walsh Road in Atherton (the Walsh Road house).”

         The first sentence of footnote five on page five is modified to read: “As indicated by her answer quoted above, to help David out Joannie had been taking care of their children extra days so David could travel more easily for work.”

         This modification does not effect a change in the judgment.

         David's motion for use of anonymous names is denied.

          RICHMAN, ACTING P.J.

         A 15-year marriage between appellant David Fischer and respondent Joannie Fischer had its “ups and downs, ” one down of which was David's affair-an affair he promised was “over.” David nevertheless petitioned for dissolution; Joannie resisted; and the parties attempted reconciliation, in connection with which the trial court would later conclude David gave “conflicting messages.” Meanwhile, Joannie heard David's phone, and saw a picture of the mistress. David walked in and confronted Joannie, who slapped him, scratching his neck, and in a subsequent confrontation grappling for the phone, shoved him. David moved for a domestic violence protective order. Following a lengthy hearing in which the court heard from seven witnesses, the court denied the request, in a thoughtful and comprehensive statement of decision. We affirm.


         The General Setting

         David and Joannie were married in 1999.[1] They had two boys, N., now 16, and Z., now 12, both of whom have special needs. They lived on Walsh Road in Atherton (the Walsh Road house).

         Throughout their marriage, David and Joannie had what Joannie's brief describes as their “ups and downs.” And as the trial court would later find, neither of them always behaved in the most mature way. Thus, and as described in Joannie's brief, “Joannie admitted that one time, when she was alone and frustrated, she broke a picture frame, and that another time, also while alone, knocked over a bowl. Nobody was in the room with her on either occasion, and both incidents occurred more than eight months before the pivotal events of September 2015. [Citations.] [¶] But that was nothing compared to what the evidence revealed about David, a six-foot-one, 185-pound husband who physically pushed five-foot-five, 130-pound Joannie around when he was angry. [Citations.] He admitted as much. [Citation.] David also admitted that he has spat on Joannie when he got mad. [Citations.][] During another fight, he doused her with water. [Citation.] David acknowledges physically grabbing and moving Joannie ‘three to five times.' [Citation.] This includes an incident when David violently tossed Joannie across a bed. [Citation.]”[2]

         But one problem in the marriage was especially significant, and at the heart of the matter here-David's affair with E.D.. After Joannie learned of the affair, David admitted it, but told her it was “over and it was short lived.” As Joannie put it, David swore “a million times that the affair was over, he was never having contact with” her again. As will be seen, that was false.

         On October 20, 2014, David filed a petition for dissolution of marriage. Joannie originally refused to accept service. And when she eventually filed her response, she denied their issues were irreconcilable. Nevertheless, at some point, Joannie purchased another home in Atherton, on Fletcher Drive (Fletcher Drive home), though she did not move out of the Walsh Road home. To the contrary, Joannie kept essentially all her clothes in the Walsh Road home, in the closet she and David shared, and they often dressed there together in the mornings. And the family ate dinner at the Walsh Road home together almost every night.

         Joannie's testimony included that she and David were getting along better than they had in a while. They would give each other gifts. They would buy take-out together or, even better, cook and “pal around” in the kitchen together: She'd “make the bagels. He'd make the bacon.” In fact, in September 2015-some 11 months after David petitioned for dissolution-on a visit to the Fletcher Drive home he told Joannie “he could envision himself living there if [they] reconciled.”

         Joannie's birthday was September 27, a day on which David was scheduled to travel to New York for a conference. On September 26, David went to the Fletcher Drive home and brought Joannie a birthday card with a note from him and some flowers.[3] In short, as the trial court would later find, at the very least David was sending mixed signals about whether the marriage was truly over.

         And then came September 27.

         The Events on September 27, 2015

         As noted, September 27 was Joannie's birthday, and a celebration was planned for 11:00 a.m. As also noted, Joannie was still living “at least for part of the time” at the Walsh Road home, and most of her clothing was still there. So, Joannie went to the Walsh Road home to pick up clothes to wear to her party. She did not tell David she was coming because she thought he was out of town. When she arrived, she noticed a car in the driveway. She entered through the kitchen door, not announcing herself or asking if anyone was there. And she clomped around loudly.

         Joannie soon heard music from a back room, and realized that David was there and having a massage, so she quieted down and made her way to the closet to avoid disturbing him. Standing in the closet, Joannie heard a buzz. She looked down and saw David's mobile phone signaling a text message, a message that indicated it was from a famous male singer. This was puzzling, so Joannie tapped the phone, to see on the screen the face of E.D. Joannie grabbed the phone and for some three minutes skimmed through 20 or so text messages that revealed, despite David's promises to her, that the affair was ongoing.[4]

         Joannie was asked, “How did that make you feel? What were you feeling at that exact moment when you were reading those text messages?” She answered: “I was so heartbroken. You know, I had been suspicious, but I had hoped so much that it wasn't true. David had sworn a million times that the affair was over, he was never having contact with this woman again, that I was taking extra custody days for him left and right so that he could travel. He agreed that he wasn't going to be seeing her while he traveled. [¶] And so to discover that every-all yearlong he had been lying and that this had been going on constantly just set my mind racing.” “10, 000 questions” were racing through Joannie's mind. She had been trying hard to make things better, and “hoped so much” that his affair was truly over and that they were on a path to reconciling.[5]

         This was the setting when David came into the closet-“burst” through, Joannie said-moving quickly toward her, and hovering less than a foot from Joannie's face. David snatched the phone out of Joannie's hand, saying, “What are you doing with my phone?”

         “[R]eading text messages with [your] girlfriend, ” Joannie said. “What the fuck.... You're so much a liar, ” she added, and then slapped David twice and pushed him, scratching his neck. David said that if she did that again he would call 911.

         David left the closet to pay the masseuse. Joannie met up with him again in the office, and reached over and grabbed the phone out of David's pocket. Joannie “tried to leave the office with the cell phone, ” and “was trying to go to another part of the house, ” but David grabbed her, pried open her fingers, and yanked the phone out of her hands. Joannie then hit David. Asked why she acted as she did, Joannie testified, “I had just lost it, ” “I hadn't calmed down yet, ” “I was so overwhelmed and flooded, and all kinds of realizations kept hitting me... [and] each thing kept occurring to me.”

         After Joannie hit him, David called 911 on his phone but immediately hung up. Because of official policy, the Atherton police operator re-dialed the number, and David answered. The operator asked to speak to Joannie, who said, “I found out my husband is having an affair.”[6] The operator asked if anyone was harmed, and Joannie said, “No, [David] hasn't done anything to me, ” “I was pushing him.” And Joannie told the operator, “It's going to be fine. There's no problems or violence.”

         David, by contrast, told the operator that Joannie had “done things” to him, so the operator stayed on the line until the police arrived. The police interviewed both Joannie and David, and she admitted she slapped and pushed David in response to discovering his ongoing infidelity and deception. Ultimately the police made a “call” that Joannie was the primary aggressor and placed her under arrest.[7] The police asked David if he would like an emergency protective order, explaining to him what it was. David declined.

         En route to jail, Joannie began to realize the situation, telling the arresting officer, “I didn't realize it was so severe. In the movies they slap their husbands.” At trial, Joannie explained that she was not dismissing the magnitude of the situation: “I was kind of looking down and laughing and thinking what a shame that our culture teaches us to cheer when the wife finally slaps her husband.”

         The police processed Joannie at the county jail, after which she called David from there and asked if he would post bail and pick her up. He agreed. David drove there, alone, picked Joannie up, and let her sit next to him in the front seat as he drove. He was not worried for his safety. They drove to the Fletcher Drive home, where, along with the children, David had a birthday party for Joannie, at which they blew out candles, ate cake, and ...

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