California Court of Appeals, First District, Second Division
Mateo County Superior Court, No. FAM0127015, Hon. Rachel Holt
Melcher, Christopher C. Melcher, Edward M. Lyman for
Plaintiff and Appellant.
California Appellate Law Group, Robert A. Roth, Ben Feuer for
Defendant and Respondent.
MODIFYING OPINION AND DENYING MOTION; NO CHANGE IN
opinion filed herein on March 23, 2018 is modified as
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
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.”
modification does not effect a change in the judgment.
motion for use of anonymous names is denied.
RICHMAN, ACTING P.J.
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
and Joannie were married in 1999. 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).
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.]”
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.
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.
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.”
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. 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.
then came September 27.
Events on September 27, 2015
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.
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
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
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
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.
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.”
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.” 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
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. The police asked David if he would
like an emergency protective order, explaining to him what it
was. David declined.
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
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 ...