Few cases shatter the familial landscape like domestic violence. Apart from the obvious physical damage, domestic violence hurts our emotional health, and it can injure the social and emotional health of children as well. This is why courts take the issue so seriously, and it’s rare when an appellate court overrules a family court trial decision which names a person guilty in such a matter.
Recently, Pasadena attorney Donald Schweitzer and associate attorney Stephanie Trabanino discussed a domestic violence case on the firm’s online broadcast series, “Exhibit A.”
It was a case which on its face, seemed open and shut, but in reality, even in the courtroom, looks can be deceiving.
“Jennifer K” and “Shane K” were in a romantic relationship. Though they never married, they had a daughter together. Then, ten years after the relationship ended, she requested a restraining order against him, based on three separate allegations.
The first was an allegation of rape, which claimed that the pair’s child was the product of the rape. Jennifer K also alleged that Shane slammed her into a door, and the third allegation was that he punched a refrigerator near her head, intending to hit her.
As Schweitzer clarified, the allegations were eight to ten years old. Stephanie further noted, “She wasn’t really alleging anything new.”
The public court decision was voluminous, however, far longer than most similar cases, because as Trabanino noted, each side called more than a dozen witnesses over six days of hearings, and the judge considered every witness’ testimony as he made his decision.
According to Trabanino, the judge allowed about 13 witnesses and, “Essentially, each witness corroborated Dad’s story of the events.”
The mother was the one that was very volatile and controlling and angry, said Trabanino, “so it became a credibility issue,” she said.
And, added Trabanino, “The witnesses who did vouch for her, said ‘Oh I don’t know that she’s never mentioned that he was controlling or abusive,’ and they would say, ‘She’s a great mom type of thing,’ and he was a little bit of a maybe an angry guy or something like that.”
Schweitzer also pointed out that no one actually had witnessed the alleged abuse, and perhaps the damning evidence was that he had an eyewitness who testified that she witnessed that he did not slam the door on her instead he pushed her body in between the door and the wall to try to get into the home.
“This sounds like a very violent act,” said Schweitzer, but the judge opined that if a reasonable person had experienced a violent act like that, more than likely they would have told someone right after it happened.
In this case, however, Jennifer K actually picked up Shane K’s sister from the airport right after the incident, and mentioned nothing about it.
“The judge basically said he believed the boyfriend’s story over Jennifer’s story,” said Schweitzer.
In considering the allegation that he forced himself on her sexually while they were in her apartment, Schweizer noted that the judge mentioned that he thought it was odd that she didn’t make a police report or that she hadn’t really told anyone this had happened, “and that became a whole claim about gender bias and about not believing rape victims or alleged rape victims,” Schweitzer said.
‘In this case,” said Schweitzer, “they went to drink beers together after the incident, and they still had a sexual relationship.”
“She allowed him to move into her apartment for many years, so the judge thought that her behavior was inconsistent with a victim of rape,” said Schweitzer.
And said Schweitzer, Jennifer filed the application for a restraining order about 10 years after the alleged incidents, “so that huge time gap was kind of a credibility issue as well.”
Schweitzer acknowledged that studies have shown that victims of domestic violence do hold back from revealing violent incidents, but the appellate court said, “If that is over a long passage of time, then the court could use it towards credibility, among other things.”
The appellate court also stated that they knew that there was a syndrome where victims still befriended their alleged abusers and in that type of situation, the court would want to see statements from witnesses that the victim said something to someone about the incident.
Addressing the refrigerator punching incident, Jennifer claimed that they were in an argument in the kitchen and that Shane was angry and he wanted to punch her, but instead he punched the fridge, which happened to be right next to her head and she was very fearful that he was going to hit her, Trabanino explained.
“Shane testified, “I hit the fridge. I punched the fridge. It was one of the worst moments of my life, and before I punched the fridge, I stepped away from her, and I punched the fridge and then I exited the home.”
The court opined that he did not intentionally or recklessly intent on punching her, it was more of a rage or fit type of situation.
As Schweitzer offered, “I think that him coming forward and being truthful about that was significant in the trial.”
Jennifer brought in testimony that Shane used to be a boxer and that he had actually killed someone in the ring, using that as evidence to support a contention that maybe he intended on hurting or killing her, said Trabinino, but that evidence was refuted.
As Trabanino recalled, “He took the stand he said, ‘No I never killed anybody,’ and the owner of the boxing ring testified that he used to just work out there and no (coach) wanted to take him because he didn’t have that much skill.”
“The Court of Appeals eventually opined that it was not an intentional punch trying to hurt her; it was not reckless; and that a reasonable person would not be in fear of being punched, because he did step away from her and towards the fridge,” Schweitzer noted.
I think this is important,” Schweitzer added. “We know that the consequences are severe with regard to findings of domestic violence, so that creates a strong presumption against joint custody in family court. It could also impact spousal support so every family law attorney worth their salt is looking at that.
Schweitzer also noted that appellate courts will defer to trial courts and their conclusions as to witness credibility.
“It’s really not an appealable thing, so if a judge says, ‘I find that he’s more credible than her,’ the appellate court’s not going to retry the case.
So what lessons do we learn from this case, Schweitzer asks?
Credible witnesses are key, he says, as well as the passage of time.
“The passage of time is a huge thing,” he explained. “You can’t wait ten years to report some sort of domestic allegation or abuse allegation. In this case the witnesses corroborated his story, and that’s why the judge opined that he was more credible than she was.”