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Family Code 6340, 6321, & 6324 Allows a Domestic Violence Prevention Order to Force Move Out of Restrained Party Even if They’re on Title

The California Appellate Court’s 2020 decision in Braithwaite  affirmed a Los Angeles County Superior Court ruling that the Domestic Violence Prevention Act (DVPA) and Family Code § 6340, 6321, and 6324 authorize a court to order the restrained party to move out of property and allow the protected party to use and possess the property.

Specifically, the Braithwaite court reasoned that, “While ownership of the property will be determined in the pending civil suit, the trial court had authority to make orders about the use and possession of the property. It properly did so.” (Nicole G. v. Braithwaite (2020) 49 Cal.App.5th 990).

After a trial on both parties’ domestic violence restraining order (DVRO) requests, the trial court denied Braithwaite’s requested DVRO and granted Nicole’s requested DVRO against Braithwaite. Braithwaite appealed, arguing that the trial court erred by ordering him to move out of the property and by awarding use and possession of the property to Nicole.

As part of the DVRO protecting Nicole, the trial court ordered Warren to move out of the property, allowing Nicole to move back in and resume her residence there. Meanwhile, the parties are involved in a civil suit for partition and quiet title in Los Angeles Superior Court regarding the issue of title to the property.

Braithwaite appealed from the DVRO issued against him, arguing that the trial court erred by ordering him to move out of the property and by awarding use and possession of the property to Nicole. He contended the issue of ownership and possession of the property should be handled by the ongoing civil suit, and a DVRO is “not a tool to dispute ownership and control of property.”

Braithwaite further contended on appeal that Nicole “left the property long before the matter came to trial” and all “available testimony” demonstrated Braithwaute and his sister were the occupants of the property at the time of the proceedings; based on the foregoing, Braithwaite argued the trial court erred in granting Nicole exclusive use of the property because the “mere fact that [Nicole] resided on the Subject Property at one time in the past does not entitle her to current possession and control.” The denial of Braithwaite’s request for a DVRO against Nicole was not appealed.

Nicole G. v. Braithwaite - Domestic Violence Move Out Order family law attorney california 2020

California Family Code 6321 Gives the Court Authority to Issue a Move Out Order Regardless of Which Party Holds Title to the Property

(a) The court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.

(b) The court may issue an order under subdivision (a) only on a showing of all of the following:

(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.

(2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.

(3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.

Family Code 6324 Allows the Family Court to Make An Emergency [Temporary] Move Out Order

The court may issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect.

Family Code 6340 Allows the Family Court to Issue an Exclusion Order

Family Code § 6340 provides in relevant part:

(a) (1) The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. If the court makes any order for custody, visitation, or support, that order shall survive the termination of any protective order. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision…

(c) The court may issue an order described in Section 6321 excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.

In its legal discussion, the Braithwaite court reasoned that the Domestic Violence Protection Act (DVPA) “authorizes a court to issue a restraining order excluding a person from the ‘family dwelling’ or ‘common dwelling of both parties’ (§§ 6321, 6218, subd. (b)), ‘on the conditions the court determines.’ (§ 6321, subd. (a).) The court may issue an exclusion order only on a showing that: 1) the party who will stay in the dwelling has a right under color of law to possess the property; 2) the party to be excluded has assaulted or threatens to assault the other party; and 3) physical or emotional harm would otherwise result to the other party. (§ 6321, subd. (b)(1)-(3); § 6340, subd. (a)(1).) And finally, the court also has authority to issue orders determining the temporary use, possession, and control of real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect. (§ 6324.)”

Braithwaite explained: “Nicole was paying for the mortgage and property taxes for the Property. Her decision to move-out of the shared Property to escape further abuse and stalking amidst the filing of her DVRO request does not bar a trial court from using its authority to award a protected party with temporary use, control, and possession of a Property as part of a DVRO. We offer no opinion on the parties’ pending civil action over title to and ownership of the Property. But until that case concludes, Nicole has temporary possession and use of the Property pursuant to the terms of the November 27, 2018 DVRO granted by the trial court.”

In the civil matter, should either party claim that the equitable owner of the real property differs from the title owner, according to Evidence Code § 662, such would need to be proven by clear and convincing evidence.

The takeaway from the Braithwaite case has to do with the crossover of a civil action and a family court action regarding a single piece of real property. The Braithwaite court addressed the crux of this crossover issue as follows:

In satisfaction of Section 6321 (b)(1), there was evidence the ‘party who will stay in the dwelling’ (i.e., Nicole) has a right under color of law to use and possess the property. Here, Nicole stated in her declaration in support of the DVRO request that she purchased the Property as her sole and separate property, and currently owns it in joint tenancy with [Braithwaite]. [Braithwaite] himself testified Nicole had purchased the Property as her sole and separate property and currently co-owned the Property.

Stated simply, the ultimate issue of title to and ownership of the property will be decided in the partition/quiet title civil action, but there was sufficient evidence that Nicole had right under color of law to use and possess the property for the trial court to issue the order for Nicole to resume residence at the property as part of the DVRO.

Consult an Experienced Domestic Violence and Partition Attorney to Obtain the Best Result

If you or someone you love is currently engaged in family court proceedings regarding domestic violence, it is strongly advised that you contact a domestic violence attorney to consider all of your options. If you own real property with someone who has committed acts of domestic violence against you, it is important to work with an experienced partition attorney to end the co-ownership relationship. Call the experienced family law attorneys at Talkov Law at (951) 888-3300 or contact us online for a free consultation about your case.