DOMESTIC violence is abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, a girlfriend, a boyfriend, the mother or father of your child, your child. Family Code Section 6211. Abuse is not limited to the actual infliction of physical injury or assault. Family Code, § 6203(b). A court may issue an order enjoining specific acts of “abuse” (§ 6218, subd. (a)), which are defined as, among other things, behavior that could be enjoined under section 6320. (§ 6203, subd. (d).) Section 6320, in turn, permits a court to enjoin a party from engaging in various types of behavior, including “disturbing the peace of the other party.” (§ 6320, subd. (a).) “[T]he 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.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497, 93 Cal.Rptr.3d 723 (Nadkarni ).) The phrase includes “destroying the mental or emotional calm of [a former spouse] by accessing, reading and publicly disclosing her confidential e-mails.” (Id. at p. 1498, 93 Cal.Rptr.3d 723.) The expansion of the term “disturbing the peace” to cover accessing, reading, and publicly disclosing electronic communication has profound effect in every divorce and family law case.
In Nadkarni, a former wife alleged that her ex-husband had accessed her private e-mail account while she was away on a business trip, then attached copies of the e-mails to documents filed in proceedings regarding custody of their teenaged children. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497, 93 Cal.Rptr.3d 723. She sought a permanent restraining order, but the trial court denied it without a hearing after finding that the DVPA did not cover situations in which there was no physical harm alleged. The appellate court reversed and remanded the matter to the trial court for a hearing. It held that the definition of abuse under the DVPA is not limited to the infliction of physical injury or assault. Id. at pp. 1498, 1501, 93 Cal.Rptr.3d 723.
In Marriage of Evilsizor and Sweeney, husband’s actions in releasing and threatening to release personal data downloaded from wife’s cell phone constituted “disturbing the peace of the other party” and thus “abuse” which warranted restraining order. In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416 [189 Cal.Rptr.3d 1], reh’g denied (June 24, 2015), review denied (Sept. 9, 2015) Phrase “disturbing the peace of the other party” in injunction provision of the Domestic Violence Prevention Act (DVPA) includes destroying the mental or emotional calm of a former spouse by accessing, reading and publicly disclosing her confidential e-mails. Cal. Fam. Code § 6320. In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416 [189 Cal.Rptr.3d 1], reh’g denied (June 24, 2015), review denied (Sept. 9, 2015) Husband’s actions in releasing and threatening to release personal data downloaded from wife’s cell phone constituted “disturbing the peace of the other party” and thus “abuse” which warranted restraining order under the Domestic Violence Prevention Act (DVPA). Cal. Fam. Code §§ 6218(a), 6300, 6320(a). In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416 [189 Cal.Rptr.3d 1], reh’g denied (June 24, 2015), review denied (Sept. 9, 2015)
In Evilsizor, Ms. Evilsizor testified that it had been “incredibly incredibly difficult to deal with” the dissemination of her personal information, stating, “I have sleepless nights. I’m sick to my stomach. My friends are mad at me, embarrassed as if I let him. I didn’t know he was even doing any of this. My parents are upset, you know. Why did I marry him? I didn’t know that things were going—I didn’t know. Yeah. It’s been incredibly challenging to live with.” She further testified that she had suffered shock and embarrassment and feared for her safety because of the disclosure. Evilsizor also was concerned about Sweeney’s threats to reveal information to the Internal Revenue Service about “things [she] didn’t do.” The court concluded in the Evilsizor case that even if Sweeney legally obtained Evilsizor’s information, an issue left unresolved, it was authorized under the DVPA to enjoin the disclosure or threats of disclosure of the information to protect Evilsizor’s peace of mind. The court ordered Sweeney be “prohibited from using, delivering, copying, printing or disclosing the messages or content of [Evilsizor’s] text messages or e-mail messages or notes, or anything else downloaded from her phone or from what has been called the family computer except as otherwise authorized by the court.” Sweeney also was prohibited from trying to access or otherwise interfere with Evilsizor’s internet-service provider accounts or social-media accounts.
Text messages, E-mails, Social media, and other electronic communication has become a common and inseparable part of today’s lifestyle. Accessing, reading, and publicly disclosing electronic communication of an ex, spouse, or sgnificant other has profound effect in every divorce and family law case. A finding of domestic violence against a party can affect the rulings on custody and spousal support issues. If your divorce or family law matter involves your ex, spouse, or significant other downloading and disclosing confidential electronic communication, one has to consider taking appropriate action in the case to be protected from conduct which is regarded as abuse under the California domestic violence statute.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
