Molinaro v. Molinaro

The court denied the request for a temporary restraining order and set a January 26, 2017 hearing to receive further evidence on the application. In denying the temporary restraining order, the court checked a box on Form DV-109 indicating: "The facts as stated in form DV-100 do not show reasonable proof of a past act or acts of abuse."

On January 26, 2017, Michael filed a request to continue the hearing. The parties appeared before Judge Thomas Trent Lewis the same day. Bertha did not oppose the request, but asked that Michael "please stop posting everything about the case on Facebook," and "stop giving the children all of my pleadings." Michael responded that he had only given the children copies of "the domestic violence restraining order, not of the divorce petition." When the court asked, "what makes it okay to give the 13-year-old and the 17-year-old copies of the court papers," Michael answered, "My best judgment, Your Honor."

her former husband's new wife to anyone except certain specified professionals. ( Id . at p. 720, fn. 3, 40 Cal.Rptr.2d 299 .) The Candiotti court recognized that courts "are given broad authority to supervise and promote the welfare of children" and may constitutionally order parents to refrain from disparaging their former spouse in front of their children. ( Id . at p. 725, 40 Cal.Rptr.2d 299 .) However, the court observed the challenged order "went further, actually impinging on a parent's right to speak about another adult, outside the presence of the children." ( Ibid . ) The court held the order was overbroad in this respect and constituted an undue prior restraint of speech under the California Constitution, reasoning the order "would prevent [the mother] from talking privately to her family, friends, coworkers, or perfect strangers about her dissatisfaction with her children's living situation." ( Ibid. ) Although the trial court "certainly ha[d] the power to prevent [the mother] from undermining [the father's] parental relationship by alienating the children from [the stepmother]," the Candiotti court found the challenged order to be "much more far-reaching, aimed at conduct that might cause others, outside the immediate family, to think ill of [the stepmother]." ( Id. at p. 726, 40 Cal.Rptr.2d 299 .) The court explained: "Such remarks by [the mother] may be rude or unkind. They may be motivated by hostility. To the extent they are

In a supporting declaration, Bertha asserted the following: On January 1, 2017, Bertha began to move out of the family home with the help of her siblings and other family. After a verbal altercation with Bertha and some of the family members, Michael moved his car to block the moving truck from exiting the home's driveway. Bertha called the police, who eventually detained Michael. Later that day, she removed the rest of her belongings from the house. Michael had physically restricted Bertha from leaving the home on two other occasions-once by blocking the front door and another time by blocking her car in the home's carport. Before filing for divorce, Bertha had installed locks on her bedroom door "because [Michael] was acting erratic and [she] was afraid of him." Michael threatened to "throw a chair though the bedroom window" if she did not remove the locks.

Bertha declared she was "afraid of what Michael might do in retaliation for my moving out." She continued, "I wanted to keep my address confidential but he found out where I moved to and he is now posting on social media derogatory comments about me and he posted a picture of my new residence and he included the address. He is angry at me for moving out and I am afraid for my safety and the safety of my children."

The application requested a domestic violence restraining order (and a temporary restraining order in advance of a hearing) commanding Michael to stay at least 100 yards away from Bertha and their three children-their 18-year-old daughter and their two sons, then ages 17 and 13, respectively. She also asked the court to order Michael to attend a batterer intervention program. On a separate Form DV-105, Bertha requested legal and physical custody of the couple's two minor sons, and no visitation for Michael until the hearing.

The court explained to Michael that it intended to "issue an order against you today that precludes you from discussing the matter with the 13-year-old and the 17-year-old," warning him that courts may "consider parents insinuating children into the court process" in making custody determinations. Michael objected to the order, arguing Bertha had "emptied [their] home equity of $ 250,000 [ sic ]" and "relocated [his] children to a mystery house without informing [him]." The court acknowledged the objection, but asked Michael to confirm he understood the terms of the order. Michael responded, "Okay. I understand the what. I question the sanity." The court clarified the order did not preclude Michael from posting on Facebook, except to the extent those postings "would otherwise violate the no-discussion order."

On the parties' stipulation, the court continued the hearing to February 15, 2017. Judge Lewis's written order stated, "Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook postings [about the] subject case matter."

On February 15, 2017, the parties appeared before Judge Amy M. Pellman. The court clerk swore both Bertha and Michael. Bertha testified Michael had "showed up uninvited to the house" where she and the couple's children were living, had posted on Facebook "about the divorce, about everything that's happening," and had sent police to the house "to do a wellness check on the kids" when she was at her teaching job. Bertha said Michael "posted to Facebook that [she] stole $ 250,000 from [their] home equity line, that [she] used it all and ran away with it." She continued, "He says that I'm crazy and having hallucinations." Bertha said Michael had concluded some emails to her and her attorney with "F.O.A.D." She looked the acronym up and it "stands for fuck off and die." Bertha testified she "wasn't sure" if the "F.O.A.D." comment was directed at her or her lawyer, but noted that Michael had called her "a bitch a few times." Bertha said Michael's "name calling" was "unsettling" and "very stressful." She also testified the couple's sons were "both depressed" and their daughter "was particularly upset because she had to go back to the house to visit her dogs and [Michael] ... threatened to euthanize the dogs."

Bertha testified she "fear[ed] for her safety and [Michael's] conduct [was] just getting worse and worse." She said Michael's behavior toward her at the earlier hearing was "threatening." She repeated,

productive at the moment, in view of Michael's "behavior." Michael interrupted the court, demanding to know "[w]hat behavior." The bailiff asked Michael not to "scream," and the court

compelling, the prior restraint is necessary and would be effective in promoting this interest, and less extreme measures are unavailable. (See Hobbs, supra, 397 F.3d at p. 149 ; see also Nebraska Press, supra, 427 U.S. at pp. 562-568, 96 S.Ct. 2791 .) A permissible order restraining future speech "must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order." ( Carroll v. President & Com'rs of Princess Anne (1968) 393 U.S. 175 , 183-184, 89 S.Ct. 347 , 21 L.Ed.2d 325 .)

The California Constitution is more protective of free speech rights than the federal Constitution, and California courts require "extraordinary circumstances" before a prior restraint may be imposed. ( Wilson v. Superior Court of Los Angeles County (1975) 13 Cal.3d 652 , 658-661, 119 Cal.Rptr. 468 , 532 P.2d 116 ; In re Marriage of Candiotti (1995) 34 Cal.App.4th 718 , 724, 40 Cal.Rptr.2d 299 ( Candiotti ).) Nonetheless, in determining the validity of a prior restraint, California courts engage in an analysis of various factors similar to the federal constitutional analysis ( Aguilar, supra, 21 Cal.4th at pp. 145-146, 87 Cal.Rptr.2d 132 , 980 P.2d 846 ), and injunctive relief restraining speech under the California Constitution may be permissible where the relief is necessary to "protect private rights" and further a "sufficiently strong public policy" ( id . at p. 167, 87 Cal.Rptr.2d 132 , 980 P.2d 846 (conc. opn. of Werdegar, J.) ).

Applying these principles, the court in Candiotti held a custody order limiting a parent's right to communicate with third parties about matters related to the custody proceeding was an unconstitutional prior restraint. ( Candiotti, supra, 34 Cal.App.4th at pp. 724-726, 40 Cal.Rptr.2d 299 .) There, the order prohibited a mother from disclosing negative information about

libelous, they may be actionable. But they are too attenuated from conduct directly affecting the children to support a prior restraint on [the mother's] constitutional right to utter them." ( Ibid . )

The same reasoning applies to the part of the restraining order prohibiting Michael from posting information about the case to Facebook. The record shows Michael's Facebook posts were not specifically directed to the minor children, but in many cases invited comments from Michael's adult friends and extended family, some of whom urged him not to dwell on the divorce, while others suggested he seek legal representation. Moreover, although the trial court plainly had the power to prohibit Michael from disparaging Bertha in the children's presence (see In re Marriage of Hartmann (2010) 185 Cal.App.4th 1247 , 1251, 111 Cal.Rptr.3d 242 ), the order here, like the order in Candiotti , was "much more far-reaching," proscribing speech only peripherally related to the case and speech that might, at worst, "cause others, outside the immediate family, to think ill" of Bertha. ( Candiotti, supra, 34 Cal.App.4th at p. 726, 40 Cal.Rptr.2d 299 .) Indeed, most of Michael's earlier posts were of this variety-they expressed his apparent despair about the divorce and his separation from the children, but did not directly disparage Bertha or openly seek to alienate her from the children. Posts of this sort are "too attenuated from conduct directly affecting the children to support a prior restraint on [Michael's] constitutional right to utter them." ( Ibid . )

"It is certainly in the best interests of any children of divorce that the adults in their lives act in a mature and courteous manner" ( Candiotti, supra, 34 Cal.App.4th at p. 726, 40 Cal.Rptr.2d 299 ); however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests. The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test. We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order. ( Id. at pp. 724-726, 40 Cal.Rptr.2d 299 .)

is directed to strike the provision from the order. The restraining order is affirmed in all other respects. Each party will bear his and her own costs on appeal.

We concur:

LAVIN, Acting P.J.

DHANIDINA, J.