Filed 8/16/18 Marriage of Gracheva and Alherech 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of KSENIA GRACHEVA and WISSAM ALHERECH.
KSENIA GRACHEVA,

Respondent,

v.

WISSAM ALHERECH,

Appellant.

G054713

(Super. Ct. No. 16D008550)

O P I N I O N
Appeal from an order of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Ahrony Graham & Zucker, Thomas Ian Graham and Michael Lambrose for Appellant.

Law Offices of Athar A. Khan and Athar A. Khan for Respondent.

* * *

Wissam Alherech appeals from an order granting his wife, Ksenia Gracheva, a restraining order pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq., all further statutory references are to the Family Code, unless otherwise indicated.) He also challenges the constitutional validity of section 6230. Finding no error, we affirm.

FACTS

Gracheva and Alherech are married and have a son together. They argued over finances, religious practices, and Alherech’s discipline of their son. The couple separated in September 2016, when Gracheva filed for a Domestic Violence Restraining Order (DVRO) against Alherech for acts of domestic violence.

At the DVRO hearing, Gracheva testified to several incidents of alleged domestic abuse. She testified the first incident occurred in March 2016. Gracheva stated Alherech “ripped” a beanbag chair out from beneath their son because Alherech was angry. Alherech, on the other hand, testified that he was playing with their son at the time of the incident and he was not angry. The same night, Alherech spanked their son with an open hand. Alherech testified both parents had spanked their son in the past and spanking as a form of discipline had never been an issue before.

Gracheva testified that in May of 2016, while on a shopping trip, Alherech pinched their son on his ribcage to discipline him, making him cry. Alherech denied pinching the boy. Gracheva testified when she tried to pick her son up, Alherech tried to rip him out of her hands. She further testified when the family left the shopping center to go home, Alherech drove roughly 95 miles per hour and refused to slow down despite her many requests. Alherech countered that he had never driven 95 miles per hour and did not try to intimidate Gracheva by driving at such a speed.

Gracheva testified about several incidents in September 2016. She stated on approximately September 1, Alherech became angry with her for wearing shorts outside of their home, asking “‘what the fuck are you wearing?’” and stating “‘if your husband doesn’t like something, you don’t do it.’” When Gracheva stated Alherech was treating her like a dog, he replied “‘when I start throwing food on the floor for you, that’s when you can say that I’m treating you like a dog.’” Alherech stated he was not upset with Gracheva, that she was usually a conservative person, and he was merely curious why she was wearing shorts outside.

On September 3, 2016, Gracheva said Alherech became angry with their son and hit him with a pillow. Alherech claimed it was a pillow fight. Gracheva became upset and told Alherech she was taking their son out of the house for the rest of the day. When she entered her vehicle, she noticed a bulge under the floor mat on the driver’s side. Gracheva lifted the floor mat and discovered a large kitchen knife. She testified Alherech was the only other person with a key to her car but he claimed he had lost the key. Gracheva sent a photograph of the knife to her mother. Alherech testified he did not place the knife in Gracheva’s car and he did not have keys to her vehicle.

Gracheva further testified on September 7, 2016, Gracheva, Alherech, and Alherech’s mother discussed their marriage while the mother was visiting. Alherech became upset with Gracheva because she spoke with his mother about their marriage problems. Alherech stated he was upset because Gracheva was not practicing their faith and said their marriage was a lie. Gracheva said he told her in his mother’s presence, “‘I’ve compromised enough with you. You eat pork. You drink alcohol. You put up a Christmas tree in our fucking house.’” Gracheva testified she was afraid Alherech might hit her, so she stood next to his mother.

On September 11, 2016, Gracheva testified Alherech got upset with their son on a shopping trip and ripped a chocolate milk out of the boy’s hands. Alherech stated he took his son’s milk away because he was spilling it. Gracheva stated as the cashier was ringing them up, Alherech told her “‘why the fuck are you just standing there fucking daydreaming? Pack the bags.’” When the family returned home, Alherech complained Gracheva had spent too much money on their son’s clothes, and the discussion expanded into one about the family’s finances. Gracheva told Alherech they should separate, which made him angry. That same night, Gracheva went to the police station, but ultimately returned home because she feared what would happen if she was not home by the time Alherech arrived. Gracheva and Alherech fought after she returned home. Alherech said he was concerned because Gracheva and their son were out past the son’s bedtime, and Gracheva gave vague responses as to where they had been.

On September 12, 2016, Gracheva stayed in a motel with her mother and son. The next day, Gracheva filed for a restraining order against Alherech.

The trial court granted the requested order against Alherech and included both Gracheva and the couple’s son on the protective order. The court determined Alherech engaged in “controlling, intimidating, and abusive behavior” toward Gracheva. The court concluded Alherech committed acts of domestic violence against Gracheva. The trial court determined there was no evidence of physical violence by Alherech against Gracheva. It also found there was no child abuse by Alherech against his son.

The court explained domestic violence need not involve a “showing of physical harm” or “physical violence” and that “just because . . . there’s no physical violence doesn’t mean [Alherech] did not perpetrate domestic violence against [Gracheva].” The court also found Gracheva to be credible, but experienced “difficulty with respect to credibility” of Alherech based upon the discrepancy between his testimony and other evidence at the hearing.

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion in Issuing the DVRO

Alherech contends the trial court erred by granting the DVRO because there was no finding he committed acts of domestic violence against Alherech. We find no error.

We review a trial court’s issuance of a restraining order under the DVPA for abuse of discretion. (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975.) Under that standard, the appropriate test ‘“is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)

A court may issue a domestic violence restraining order if the applicant shows “to the satisfaction of the court” that there has been “a past act or acts of abuse” (§ 6300.) Alherech contends the court abused its discretion in finding that he “disturbed the peace” of Gracheva, and thereafter in using that finding as a basis for granting the DVRO.

The trial court’s decision did not involve an abuse of discretion as it did not exceed the bounds of reason. Ample evidence, including extensive testimony, was provided during the three-day trial. In delivering its decision, the court emphasized that it was “not a close call” in favor of Gracheva. The court did not base its ruling only on Alherech “disturbing the peace” of Gracheva, but also on Alherech’s “controlling, intimidating and abusive behavior . . . that clearly r[o]se to the level of domestic violence under the law.” The trial court concluded that Alherech’s “verbal, emotional, manipulative control over [Gracheva]” created an “intimidating pattern of behavior.”

Alherech argues a close reading of S.M. v. E.P. (2010) 184 Cal.App.4th 1249 (S.M.) demonstrates the trial court abused its discretion. Not so.

In S.M., the respondent mother and the petitioner father had one child together. (S.M., supra, 184 Cal.App.4th at p. 1253.) After their relationship ended, the mother threatened to move with their child to Iowa. She later called police, who responded and spoke to both parties before arresting the father. (Id. at p. 1254.) On other occasions, the father would “badger” the mother, use profanity towards her, and call her derogatory names. (Id. at p. 1258.) On one occasion, the father ripped the covers away from the mother and said “I’ll kill you.” (Id. at p. 1258.) The trial court specifically declined to find the father made a threat to kill the mother, stating, “I’m not making a finding there was a death threat.” (Id. at p. 1265.)

In reversing the trial court’s issuance of a DVRO, the Court of Appeal ruled that “[b]ecause the court specifically did not find that [the father] had made a threat toward [the mother], the only remaining conduct on [the father’s] part that could support the issuance of the restraining order is what the trial court referred to as ‘badgering.’” (S.M., supra, 184 Cal.App.4th at p. 1265.) The Court of Appeal concluded that, under the facts of that case, such “badgering” was insufficient to support the issuance of a DVRO. (Id. at p. 1268.)

In contrast, the trial court here determined Alherech’s “controlling, intimidating and abusive behavior . . . clearly r[o]se to the level of domestic violence under the law.” It described appellant’s “verbal, emotional, manipulative control over [Gracheva]” as an “intimidating pattern of behavior.” While Alherech used profanity towards Gracheva, he also sought to control what she wore, where she went, how much money she spent, and what she ate. This is more than “badgering.” Although the trial court did not make a specific finding that Alherech threatened Gracheva by placing the knife in her car, there was a strong inference the court believed that was what happened. Furthermore, unlike the S.M. trial court, the court here detailed all of the incidents of intimidation that amounted to domestic violence. Critically, the court also found Gracheva credible, while it questioned Alherech’s credibility. We find no error in the court’s decision.

2. Section 6320 Is Not Unconstitutionally Vague

Alherech next argues section 6320 is void because the phrase “disturbing the peace of the other” is unconstitutionally vague. We disagree.

As an initial matter, Alherech failed to raise this argument at the DVRO hearing. As a matter of principle of judicial restraint, “‘we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.’” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230.) ‘“Even a constitutional right must be raised at the trial level to preserve the issue on appeal [citation].’ [Citation.] In civil cases, constitutional questions not raised in the trial court are considered waived.” (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) Due to Alherech’s failure to raise his constitutional challenge in the trial court, he has forfeited that claim on appeal.

Nevertheless, because the parties have fully briefed the issue, we address Alherech’s argument. The “void for vagueness” doctrine bars enforcement of a statue that “fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” (Johnson v. U.S. (2015) 135 S. Ct. 2551, 2556.) The doctrine “‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,’ and a statute that flouts it ‘violates the first essential of due process.’” (Id. at p. 2557) “A statute is void for vagueness if persons of common intelligence must guess as to its meaning and differ as to its applications.” (Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, 1206.)

Alherech claims the phrase “disturbing the peace of the other” in section 6320 is unconstitutionally vague because it fails to give adequate notice of what conduct is being proscribed, thus, inviting arbitrary enforcement. Not so. In In re Marriage of Nadkarni, (2009) 173 Cal.App.4th 1483, the court engaged in a thorough statutory analysis of the phrase “disturbing the peace of the other party.” The court determined the plain meaning of the phrase by referencing the dictionary: “The ordinary meaning of ‘disturb’ is ‘[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.’ [Citation.] ‘Peace,’ as a condition of the individual, is ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquility.’ [Citation.] Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” (Id. at p. 1497.) The Nadkarni court also determined the phrase comported with the legislative intent of the DVPA because it “had a ‘protective purpose’ that was ‘broad both in its stated intent and its breadth of persons protected.’” (Id. at p. 1498.)

Assuming without deciding Alherech preserved his constitutional argument for appeal, and that he would have standing to challenge the statute, his claim does not pass muster. The meaning of the phrase “disturbing the peace of the other party” can be reasonably ascertained. Persons of common intelligence need not guess as to the meaning of the phrase or its applications. The statute is not void for vagueness.

DISPOSITION

The order is affirmed. Gracheva is awarded her costs on appeal.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.