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Family-Law Judge Had No Authority to Order Relinquishment of Firearm, C.A. Holds
Absent Issuance of DMVO, Panel Says, Order to Surrender Weapon Can’t Be Made
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has reversed an order to a lawyer/business executive to relinquish a firearm—a command the justices said a family law judge had no authority to issue—but spurned the party’s request to invalidate a directive not to communicate with the children’s coaches or therapists.
Alhough that order is no longer in effect, the appellant argued, it could have an impact on a possible State Bar disciplinary proceeding against him.
Presiding Justice Kathleen O’Leary authored the unpublished opinion, filed Monday. She found no error in Orange Superior Court Judge Michele Bell’s denial of a domestic violence restaining order (“DVRO”) that Irvine attorney Evan William Grant sought to have imposed on his former wife, Huntington Beach lawyer Kara Elizabeth Grant, but said that because Bell also denied the bid by the ex-wife for DVRO against her former husband, the judge was powerless to make the firearm order.
Statutory Basis Lacking
O’Leary explained:
“We conclude the trial court erred by issuing the firearm order because it had no authority to do so. Under Family Code section 6218, ‘[u]pon issuance of a protective order,’ the court must order the restrained person to relinquish any firearm in his or her possession….Appellant, however, was never subject to any protective order….We are aware of no provision in division 10 of the Family Code governing DVRO proceedings…that empowers the court to order a person to relinquish a firearm without issuing a protective order.”
The presiding justice said that Family Code §3011, cited by Bell, merely lists factors to be considered in issuing custody orders and “is not a source of authority for the court to impose substantive orders on the parents.”
Bell issued the firearm order notwithstanding Evan Grant’s insistence that he no longer posssesses the weapon.
Collateral Effect
Evan Grant—who is vice president and general counsel for a Los Angeles County company that is a developer of facial recognition software—argued on appeal that an order by Orange Superior Court Judge Mary Kreber Varipapa barring “any communication” with the three children’s “school, coaches, and therapists” should not be regarded as moot, though subsequent orders nullified it. The order “if not reversed,” he contended, “may have collateral consequences for both Appellant and his former counsel.”
Notwithstanding the no-communication order, an attorney representing the former husband deposed a therapist for the children who also had been one of the youth’s school sports coaches. Kara Grant reported that attorney to the State Bar based on an alleged violation of the order and, O’Leary noted, an investigation is in progress.
She wrote:
“Initially, the possibility of disciplinary proceedings against appellant is speculative, as it appears there has been no complaint against him. This prospect therefore does not save appellant’s challenge from mootness….But even if such proceedings were likely, our review of the no-communication order on the merits would afford appellant no meaningful relief: regardless of whether the trial court erred in issuing the no-communication order, appellant was obligated to obey it while it remained in force, and any applicable ethical duties extended to that order absent his open refusal to comply.”
Although O’Leary indicated that Evan Grant’s challenge to mootness of the no-communication order lacks merit, her opinion nonetheless does not direct dismissal of the appeal as to that order. Rather, it reverses the order—as well as invalidating a superseded custody order—with instructions that the Superior Court, on remand, vacate those provisions as moot, thus rendering them nugatory without addresing the merits.
Bell had made an on-the-spot order shifting full custody to the mother, despite a previous pronouncement that the matter of custody would not be considered at the hearing on motions for DVROs.
O’Leary wrote:
“Because we have significant concerns regarding the validity of the custody and no-communication orders, we will reverse those orders and instruct the trial court to vacate them as moot.”
The case is In re the Marriage of K.G. and E.G., G062964. The parties were self-represented.
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