1

Filed 1/16/14 Marriage of Gray CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

In re the Marriage of CHRISTINE E. 

GRAY and ROBERT GRAY 

CHRISTINE E. GRAY, 

 Appellant, 

v. 

ROBERT GRAY, 

 Respondent. 

 A135328 

 (Alameda County 

 Super. Ct. No. AF11603446) 

ROBERT GRAY, 

 Plaintiff and Respondent, 

v. 

CHRISTINE E. GRAY, 

 Defendant and Appellant. 

 A135480 

 (Alameda County 

 Super. Ct. No. AF12612795) 

 Appellant Christine E. Gray (mother) appeals from orders issued by family court 

Commissioner Thomas Nixon, which resolved the separate applications of mother and 

Robert Gray (father) for permanent restraining orders under the Domestic Violence 

Prevention Act (DVPA; Fam. Code, § 6200, et seq.1

). Mother argues the commissioner 

erred in denying her request for a permanent restraining order and granting father’s 

request for a permanent restraining order. Father has moved to dismiss the appeals on the 

 

1

 All further unspecified statutory references are to the Family Code. 
2

ground of mootness, and alternatively, argues there is no substantive merit to mother’s 

appeals. We conclude the merits of mother’s appeals challenging the orders regarding 

the parents’ permanent restraining orders are properly before us. Nevertheless, mother’s 

arguments do not require reversal of those orders. Accordingly, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND2

 On January 18, 2012, mother and father filed separate applications for permanent 

DVPA restraining orders on behalf of themselves and the parties’ two teenaged children 

(then 12 and 14 years) against the other parent. In orders dated January 19, 2012, and 

filed by the court clerk on January 20, 2012, the court (Judge Ioana Petrou) granted each 

parent a temporary restraining order against the other parent until January 31, 2012, and 

issued orders to show cause scheduling an evidentiary hearing on January 31, 2012, to 

resolve both parents’ requests for permanent restraining orders. 3 

 On January 31, 2012, and continuing on February 2, 6, 8, and 16, 2012, 

Commissioner Nixon presided at an evidentiary hearing on both parents’ requests for 

permanent restraining orders. The commissioner repeatedly stated his decision would be 

based solely on the testimony and exhibits that were admitted into evidence at the 

hearing; he would not consider documents filed in support of or since the issuance of the 

 

2

 We set forth only those facts that are necessary to resolve mother’s appellate 

issues. Father filed a motion to augment the record to include certain documents that 

were filed in the superior court and not included in the clerk’s transcripts. We now grant 

the motion to augment the record and have considered the documents only to the extent 

they are necessary to resolve mother’s appellate issues. 

3

 Father’s DVPA petition was filed using the case number assigned for mother’s 

pending action for dissolution of the marriage. After Judge Petrou issued her temporary 

orders, the DVPA order in favor of mother was filed in the case assigned to her 

dissolution action (AF11603446) and the DVPA order in favor of father was filed in a 

case assigned a new number (AF12612795). Because father was in default in mother’s 

dissolution action at the time he filed his DVPA petition, mother argued father could not 

seek DVPA relief. However, both Judge Petrou and later Commissioner Nixon correctly 

ruled that father’s error in initially filing his DVPA petition using the case number for 

mother’s dissolution action did not prevent father from pursuing his request for DVPA 

relief. (See Nakamura v. Parker (2007) 156 Cal.App.4th 327, 335 [DVPA application 

“may properly be considered an independent ‘lawsuit’ ”].) 
3

temporary orders.4

 The commissioner heard testimony from mother, father, mother’s 

mother, and Piedmont Police Department Sergeant Catherine Carr. Mother claimed she 

was entitled to a permanent restraining order “because: (1) Father and the Parties’ 

therapist attempted to abduct Mother, (2) Father verbally insults Mother in front of the 

children, and (3) Father gets too close to Mother’s face during arguments.” Father 

claimed he was entitled to a permanent restraining order “because: (1) Mother is 

currently unfit to care for her children as her substance abuse results in verbal abuse in 

the presence of the minor children; ([2]) while under the influence [of alcohol], Mother 

has repeatedly berated, disrupted the peace of and verbally threatened Father, including 

making threats to physically harm him, and ([3]) in the absence of protective orders, the 

abuse will continue to occur because of Mother’s addi[c]tion[].” 

 After closing arguments on February 16, 2012, the commissioner denied mother’s 

request for a permanent restraining order and granted father’s request for a permanent 

restraining order. The commissioner issued an extensive statement of decision. In 

rejecting mother’s assertions, the commissioner explained: “[T]he primary basis of 

Mother’s request is a single incident of a failed alcohol treatment intervention in June 

2010. Although this attempted intervention was ill conceived, it does [not] form a 

sufficient basis for the imposition of a permanent restraining order. The Court finds 

Mother’s additional allegations either inconsistent with her behavior, e.g., reconciliation 

and continued cohabitation since 2010, or are unsupported by the facts, e.g., vague 

allegations without the proper indicia of reliability, no third party support or documentary 

evidence. Finally, the Court believes that if any abuse did in fact occur, that it is not 

necessary to enter a permanent order to prevent future abuse.” In accepting father’s 

assertions, the commissioner explained: “Mother’s uncontrolled alcohol consumption 

poses a risk both to Father and the children necessitating Court orders to prevent the 

 

4

 Consequently, we see no merit to mother’s argument that she was prejudiced 

because prior to the hearing the commissioner failed to expressly rule on her motions in 

limine, in which she objected to “Robert Gray’s proposed evidence,” and sought “to 

strike certain [court] filings and exclude any information contained therein from 

evidence” at the hearing. 
4

recurrence of acts of domestic violence. The Court did not find credible Mother’s 

testimony that she does not have a drinking problem. Mother objected to the use of her 

doctor’s letter and had within her control the ability to prove that she does not have a 

drinking problem. She failed to do so. The Court also finds Mother’s denial of the 

various incidents as not credible. Father presented a detailed chronology with dates and 

facts. Respondent’s Exhibit E. While this exhibit was not entered into evidence, the 

Court finds Father’s presentation of fact and details credible in a manner in which it did 

not find Mother’s presentations of conclusions and allegations. Further, it is not credible 

that Mother would ‘not recall’ an incident where her daughter smashed a bottle of wine 

on the driveway in an attempt to keep Mother from drinking and driving.” The 

commissioner further found that “Mother recklessly placed the children and Father in 

reasonable apprehension of imminent serious bodily injury, including driving under the 

influence of alcohol. The evidence reflects that Mother made threats to the [F]ather, 

verbally abused Father in front of the children, and drove the children while [she was] 

intoxicated. Additionally, the Court finds that Mother physically abused Father on at 

least two occasions.” The commissioner also issued temporary orders regarding child 

custody and visitation, and granted father sole use, possession, and control of the marital 

residence. Mother now appeals from the commissioner’s orders.5

 

5

 In her notice of appeal in Case No. AF11603446, mother appeals from the 

commissioner’s proposed statement of decision filed on March 22, 2012, in which he 

gave his reasons for issuing the February 16, 2012 orders. In the absence of any 

prejudice, we shall construe the notice of appeal as a notice of appeal from the 

commissioner’s statement of decision that was confirmed by an appealable order entered 

on April 18, 2012. (See Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal must be 

liberally construed]; Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 

[reviewing court may treat a statement of decision as appealable “when a statement of 

decision is signed and filed and does, in fact, constitute the court’s final decision on the 

merits”].) In her amended notice of appeal in Case No. AF12612795, mother appeals 

from the commissioner’s February 16, 2012, orders, which granted Father’s request for a 

permanent DVPA restraining order, and resolved the related issues of custody, visitation, 

and use, control, and possession of the marital residence. 

 Mother also argues that since the issuance of the commissioner’s orders, the 

mother’s dissolution action was transferred to Family Court Presiding Judge Honorable 
5

DISCUSSION 

I. Father’s Motion to Dismiss Appeals 

Father filed a motion to dismiss on the ground that an order of September 27, 

2012, issued by Judge Pulido, has rendered moot mother’s appeals challenging the orders 

that resolve the parents’ requests for permanent restraining orders. However, mother 

correctly argues that the denial of her request for a permanent restraining order has not 

been rendered moot by any later court orders. Concededly, the permanent restraining 

order in favor of father and against mother has now expired, arguably rendering moot 

mother’s appeal from that order. Nevertheless, the expired permanent restraining order 

could have detrimental consequences to mother in a further proceeding involving 

domestic violence. Section 6306, subdivision (b)(1), provides that, before deciding 

whether to issue a domestic violence restraining order, “the court shall consider . . . any 

prior restraining order.” (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 209-210.) 

Accordingly, we deny father’s motion to dismiss mother’s appeals from the February 16, 

2012 orders that resolve the parents’ requests for permanent restraining orders.6

 

II. Temporary Restraining Orders Issued by Judge Petrou 

 Mother challenges Judge Petrou’s temporary restraining orders, presenting several 

arguments including that the orders were void. Because the notices of appeal seek review 

only of the commissioner’s February 16, 2012 orders, mother has forfeited review of 

Judge Petrou’s temporary orders that expired on January 31, 2012. (Code Civ. Proc., 

 

Stephen Pulido, who issued several orders “that have invaded Mother’s privacy rights, 

denied Mother her rights to due process, and denied Mother access to community 

property funds to litigate her case and maintain the standard of living enjoyed during the 

nearly 20-year marriage.” Because mother has not filed notices of appeal from those 

rulings and orders, we lack jurisdiction to consider them at this time. (Sole Energy Co. v. 

Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) 

6

 However, we shall grant father’s motion to dismiss mother’s appeal from the 

commissioner’s other February 16, 2012 orders that temporarily granted father physical 

custody of the children and sole use, control, and possession of the marital residence, and 

granted mother visitation. Those orders have been rendered moot by Judge Pulido’s 

September 27, 2012, order, which address the same matters based on additional evidence 

considered by the court. 
6

§ 904.1, subd. (a)(6); see McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357 

[temporary DVPA orders are separately appealable].) Concededly, an order can be set 

aside at any time on the ground it is void when “the court lack[s] personal or subject 

matter jurisdiction or exceed[s] its jurisdiction in granting relief which the court had no 

power to grant.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 

1228, 1239.) However, mother’s argument that the temporary orders are void is “no 

longer available” to her because those orders have “fulfilled [their] function and [were] 

supplanted by” the February 16, 2012, orders, which were based on the evidence 

presented at the hearing before Commissioner Nixon. (City of Los Angeles v. Superior 

Court (1925) 196 Cal. 445, 449.) Accordingly, any purported appeal from the temporary 

orders would be moot. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 

859, 862-863; O’Kane v. Irvine (1996) 47 Cal.App.4th 207, 210, fn. 4.)7

 

7

 Additionally, we do not need to address mother’s complaints regarding her 

motions for reconsideration of Judge Petrou’s temporary orders. Assuming arguendo that 

the motions had not been properly considered by either Judge Petrou or the 

commissioner, an order denying a motion for reconsideration is not appealable, even 

when the motion is based on new facts or law. (See Powell v. County of Orange (2011) 

197 Cal.App.4th 1573, 1576; Tate v. Wilburn (2010) 184 Cal.App.4th 150, 159-160; 

Crotty v. Trader (1996) 50 Cal.App.4th 765, 769.) 

 Mother also complains that we should consider that the temporary orders 

prevented her from presenting relevant, admissible evidence at the hearing before the 

commissioner. However, a review of the hearing transcripts indicates the commissioner 

favorably considered mother’s concerns that she could not refute father’s testimony 

because of the prohibitions in the temporary restraining order. For example, when father 

sought to testify regarding his discussions with school officials regarding the children’s 

behavior, the commissioner sustained mother’s objection to the testimony on the ground 

that she could not refute the testimony because the temporary restraining order prohibited 

her from contacting the school or going to the school to obtain the children’s records. 

The commissioner ruled that if father was going to testify about any information he had 

received from school officials, his testimony would have to be limited to information that 

he had discussed with mother at some time. Otherwise, “there is no evidence that 

[mother] would have known about it and had the ability to obtain that information.” 
7

III. Commissioner Nixon’s Orders Resolving Parents’ Requests for Permanent 

 Restraining Orders 

Mother challenges on various grounds the commissioner’s orders that resolved the 

parents’ requests for permanent restraining orders. As we now discuss, none of her 

contentions requires reversal. 

We find no merit to mother’s contention that the commissioner committed 

prejudicial error by refusing to admit into evidence the children’s declarations. Before 

the January 31 hearing, mother’s counsel had prepared declarations based on statements 

that were made by mother to counsel about what the children had said and then the 

children allegedly signed the declarations. During mother’s direct examination, her 

counsel sought to admit into evidence the children’s declarations on the “issue of 

custody” and the removal of the children from their primary caregiver. The court refused 

to admit the declarations at that time because the children had not yet been independently 

interviewed by Family and Children’s Bureau. Without the results of those interviews, 

the commissioner believed there were questions about the authenticity and 

trustworthiness of the declarations. Until the interviews were conducted, the 

commissioner believed it was inappropriate to accept the declarations. He explained that 

“[i]t may well prove to be that these declarations [are] absolutely exactly how these 

children feel but I want them interviewed before I’m going to take them a[s] [the] truth.” 

In response to mother’s counsel’s recitation of certain portions of the Family Code, the 

commissioner stated he intended to follow section 30428

 “to the letter,” but the issue then 

 

8 Effective January 1, 2012, section 3042 was amended to read, in pertinent part: 

“(a) If a child is of sufficient age and capacity to reason so as to form an intelligent 

preference as to custody or visitation, the court shall consider, and give due weight to, the 

wishes of the child in making an order granting or modifying custody or visitation. [¶] . . . 

[¶] (c) If the child is 14 years of age or older and wishes to address the court regarding 

custody or visitation, the child shall be permitted to do so, unless the court determines 

that doing so is not in the child’s best interests. In that case, the court shall state its 

reasons for that finding on the record. [¶] (d) Nothing in this section shall be interpreted 

to prevent a child who is less than 14 years of age from addressing the court regarding 

custody or visitation, if the court determines that is appropriate pursuant to the child’s 

best interests. [¶] . . . [¶] (f) To assist the court in determining whether the child wishes to 
8

before him was whether the declarations should be admitted into evidence “without the 

children being present and when [he] is not aware completely of the facts . . . or why [the 

declarations were] signed.” The commissioner again stated that although the declarations 

might be true, he wanted Family and Children’s Bureau to provide him “with information 

as to where this is coming from. Certainly under [section] 3042 specifically as to the 

old[er] [child] the [c]ourt must at least consider [the child’s] wishes and the court actually 

intends to consider both of the children’s wishes but one must also keep in mind that 

[section] 3042 does not require the court to follow those wishes if it feels it’s not in the 

best interest of the children but they must be heard. I intend on having them heard.” 

Thereafter, at the February 6, 2012, hearing the commissioner indicated the children had 

been interviewed and he had received a report from Kathleen Hargin of Family and 

Children’s Bureau. At the next hearing on February 8, 2012, mother’s counsel indicated 

she had read the report “that was done by the mediator” who “spoke with the children.” 

However, at no time thereafter did mother or her counsel renew the request for the 

admission of either child’s declaration or make a request to call either child as a witness 

to testify at the hearing. Consequently, we cannot conclude the commissioner abused his 

discretion in the absence of a specific timely request made by mother or her counsel for 

the admission of the children’s declarations or their testimony after the court received the 

report of the children’s court-ordered interviews.9

 

express his or her preference or to provide other input regarding custody or visitation to 

the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides 

recommendations to the judge pursuant to Section 3183 shall indicate to the judge that 

the child wishes to address the court, or the judge may make that inquiry in the absence 

of that request. A party or a party’s attorney may also indicate to the judge that the child 

wishes to address the court or judge.” 

9

 After the children were interviewed, father asked the commissioner how he was 

going to consider the report of the children’s interviews because father “objected to the 

procedure through which Family Court Services solicited information from the children.” 

The commissioner replied that it was his understanding “that the children were 

interviewed only for purposes of an assessment.” The commissioner further explained 

that the interviews were “to determine whether or not the [commissioner] felt that the 

children need[ed] to have some type of counseling services provided to them,” but the 
9

 We also see no merit to mother’s argument that the commissioner committed 

reversible error by failing to grant a calendar preference and complete the hearing within 

25 days of the issuance of the temporary restraining orders. (§§ 242, 244, 24510.) As 

noted, Judge Petrou scheduled the hearing on both parents’ separate petitions for 

 

commissioner did not intend to use the interviews to determine visitation. Contrary to 

mother’s contentions, we see nothing in the commissioner’s statements that would have 

precluded her from renewing her request to have the commissioner consider the 

children’s declarations or making a request for the admission of the children’s testimony 

after their court-ordered interviews. Indeed, despite the commissioner’s statements, 

mother’s counsel argued in closing that the commissioner should consider that the 

assessment reports showed that “the children say they want their mother. That’s what 

they said to the court. They said we want to be with our mother. They said father’s 

never home.” 

 In support of her argument regarding the commissioner’s failure to consider the 

children’s declarations, mother asks us to also consider evidence that was neither 

proffered nor admitted into evidence at the hearing before the commissioner. However, 

as an appellate court we are “limited to a consideration of the matter contained in the 

record” of the proceedings before the commissioner. (People v. Siplinger (1967) 252 

Cal.App.2d 817, 825.) To now consider this evidence would be “ ‘in contravention of the 

general rule that an appellate court generally is not the forum in which to develop an 

additional factual record . . . .’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 952-953.) 

10 Section 242 provides, in pertinent part, that “[w]ithin 21 days, or if good cause 

appears to the court, 25 days from the date that a temporary [DVPA restraining] order 

. . . is granted or denied, a hearing shall be held on the petition.” (§ 242, subd. (a).) “If a 

hearing is not held within the time provided in subdivision (a) [of section 242], the court 

may nonetheless hear the matter, but the [temporary] order is unenforceable unless 

reissued under Section 245.” (§ 242, subd. (b).) Section 245 reads: “(a) The court may, 

upon the filing of a declaration by the petitioner that the respondent could not be served 

within the time required by statute, reissue an order previously issued and dissolved by 

the court for failure to serve the respondent. The reissued order shall remain in effect 

until the date set for hearing. [¶] (b) The reissued order shall state on its face the date of 

expiration of the order. [¶] (c) No fee shall be charged for the reissuance of the order 

unless the order has been dissolved three times previously.” Section 244 reads: “(a) On 

the day of the hearing, the hearing on the petition shall take precedence over all other 

matters on the calendar that day, except older matters of the same character, and matters 

to which special precedence may be given by law. [¶] (b)The hearing on the petition 

shall be set for trial at the earliest possible date and shall take precedence over all other 

matters, except older matters of the same character, and matters to which special 

precedence may be given by law.” 
10

permanent restraining orders for the same day, January 31, 2012, which was within 20 

days of the issuance of the temporary orders. As the commissioner explained, he then 

“allowed testimony from both cases at the same time in order to expedite. The court 

believes that there has been testimony on both of the matters and that, therefore, even 

though 25 days has elapsed the matter has been ongoing. There is nothing in the statute 

that says that the matter must be resolved within 25 days only that it must be begun. The 

court believes that it has been begun. We’ve had five days of . . . testimony on this 

matter. We have done everything we can to try to fit this [matter] in within the period of 

time that the parties are allowed. This court has personally moved three separate trials of 

other people’s cases so that this matter could be heard in an expedited fashion. It has 

done the best [it] can under those circumstances.” The commissioner further explained 

that the matters “did flow into one another rather than being separated as I would have 

perhaps liked to do it but I do not believe it was so prejudicial as to result in a need to in 

any way terminate proceedings or to find that” there was a failure to comply with the 

statutory requirements. We see no error or abuse of discretion in the commissioner’s 

ruling.11

 

11 Contrary to mother’s contention, Estate of Mitchell (1999) 76 Cal.App.4th 1378 

(Mitchell) and In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 (Nadkarni) do 

not support her argument that a hearing for a permanent DVPA restraining order must be 

concluded within 25 days of the issuance of the temporary restraining order. In

Nadkarni, the appellate court determined only that Darshana Nadkarni’s application for a 

DVPA restraining order had sufficiently alleged abuse to support issuing an order to 

show cause (OSC) for a hearing on the matter. (173 Cal.App.4th at pp. 1495, 1498-

1499.) The court further held only that a hearing date on the OSC must be set within 20 

to 25 days of the application; the court did not hold that the hearing must be concluded 

within 25 days of the issuance of the OSC. (Id. at pp. 1494-1495.) In Mitchell, the 

appellate court was concerned with a violation of a temporary restraining order. (76 

Cal.App.4th at p. 1387.) To the extent the court discussed the initial issuance of the 

temporary restraining order, it held only that an ex parte temporary restraining order 

“may remain in effect for not longer than 25 days. (Fam. Code, § 242.)” (Mitchell, 

supra, at p. 1387; italics added.) Relevant here, the court went on to note that “[e]ven if 

the ex parte restraining order has expired, however, the trial court may hold a hearing on 

the OSC and issue a similar preliminary injunction. (See Fam. Code, § 242, subd. (b).)” 

(Mitchell, supra, at p. 1387; italics added.) Mitchell supports the commissioner’s ruling 
11

 We also see no merit to mother’s argument that the commissioner committed 

prejudicial error by allowing father to call Officer Carr to testify out of order during 

mother’s case in chief over her objection. Because there was a dispute as to which parent 

first filed their DVPA request on January 18, 2012, the commissioner allowed mother to 

present her case in chief first to be followed by father’s case in chief. When it appeared 

the matter would not be completed on January 31, at the conclusion of mother’s 

testimony that day, the commissioner granted father’s request to call Officer Carr to 

testify out of order because the officer had been subpoenaed to appear that day and the 

commissioner had “a limited amount of time.” On this record, we see no abuse of 

discretion in the commissioner’s ruling. (See Rayii v. Gatica (2013) 218 Cal.App.4th 

1402, 1413 [“trial court acted within its discretion by allowing the witnesses to testify out 

of order so as to avoid having to continue the trial date, force the witnesses to cancel their 

vacation plans, or forego their testimony”].) In all events, mother’s claims of prejudice 

are unavailing. Mother asserts Officer Carr’s testimony “was not favorable” to her and 

the commissioner’s ruling prevented mother from concluding her case in chief and 

securing a ruling on her request for a permanent restraining order on January 31. 

However, the substance of Officer Carr’s testimony would not have been different had 

the officer not been called to testify until after mother had concluded her case in chief and 

father had called the witness in his case in chief. Additionally, even if mother had 

concluded her case in chief on January 31, the commissioner would not have then ruled 

on her request for a permanent restraining order against father. Instead, as later 

confirmed by the commissioner, father would have been allowed to present his case in 

chief and the commissioner would have then taken both parents’ petitions for permanent 

restraining orders under submission for judicial determination. 

 Relying on isolated portions of the record, mother also argues that the 

commissioner (1) “accept[ed] uncorroborated testimony of alcohol abuse and abuse of 

 

in this case. Judge Petrou’s temporary orders expired on January 31, 2012. At the end of 

each hearing date, the commissioner reissued a temporary restraining order that was 

effective only until the next hearing date. 
12

children [in violation of her] rights to due process” and “allowed over objection 

testimony from Father as it relates to levels of drinking,” (2) “heard extensive testimony 

from Father while on cross-examination by his attorney about the efforts and behaviors of 

the children and allegations of [Mother’s] alcohol abuse,” and (3) “allowed over 

objection extensive testimony regarding [Mother’s] DUI conviction . . . that occurred 17 

years ago.” However, pertinent statutes and case law demonstrates the commissioner’s 

challenged rulings do not warrant reversal. First, the commissioner was free to accept 

father’s testimony even if not corroborated concerning mother’s habitual or continual 

alcohol abuse and his personal observations of the effect of mother’s conduct on the 

children’s behaviors. (§ 3011, subd. (d) [before considering allegations of parent’s 

habitual or continual abuse of alcohol court “may first require independent corroboration” 

of the allegations (italics added)]; see Wainwright v. Superior Court (2000) 84 

Cal.App.4th 262, 268 [court is “empowered,” but not required, to request independent 

corroboration of allegations of a parent’s alcohol abuse]; In re Marriage of Slivka (1986) 

183 Cal.App.3d 159, 163 [“ ‘ “[t]he testimony of a witness, even the party himself, may 

be sufficient” [to support a judgment]’ ”]; People v. Williams (1988) 44 Cal.3d 883, 914 

[lay witness may testify as to opinion with regard to alcohol-induced intoxication and 

sobriety if “ ‘rationally based on the perception of the witness’ ”]; see also Margolis v. 

Teplin (1958) 163 Cal.App.2d 526, 532-533 [“the error in the admission of some hearsay 

evidence (in an action tried by the court without a jury) is not prejudicial error, where 

there is otherwise enough competent evidence in the record to support the findings”].) 

Second, the commissioner could allow father’s counsel to make father his own witness 

and question him regarding matters which were not brought out during father’s 

examination by mother’s counsel. (Evid. Code, § 772, subd. (c); 12

 see Figari v. Olcese

(1921) 184 Cal. 775, 782; Bitsekas v. Parechanian (1924) 67 Cal.App. 148, 154.) Third, 

 

12 Evidence Code section 772, subdivision (c), reads, in pertinent part: “[A] party 

may, in the discretion of the court, interrupt his cross-examination . . . of a witness, in 

order to examine the witness upon a matter not within the scope of a previous 

examination of the witness.” 
13

we see no prejudicial error in the commissioner’s admission of evidence of mother’s 

1995 DUI conviction. (Evid. Code, §§ 351, 352, 35313.) When mother’s counsel first 

objected to the admission of the evidence, the commissioner explained that evidence of 

the DUI conviction would be allowed on the ground that it was probative of whether 

mother was abusing alcohol, but that the weight of the evidence would be “based upon 

anything that I see beyond that. The mere fact that someone may have gotten a DUI 17 

years ago does not make them an alcoholic today.” When mother’s counsel renewed her 

objection to the evidence, the commissioner again explained that the evidence was 

“probative of whether [mother] has a drinking problem,” and could be “considered in 

terms of [a] pattern of the situation.” The commissioner “fully expect[ed]” that in 

closing argument mother’s counsel would argue that the conviction was “such a remote 

moment in time as to have no probative value.” 

 Lastly, we reject mother’s contention that the commissioner committed prejudicial 

error by admitting into evidence over her strenuous objections an unsigned “letter” dated 

June 12, 2010, which was “allegedly written by Mother’s cosmetic doctor, who has no 

history of being an Expert as it relates to alcohol abuse.” 14 When the letter was proffered 

 

13 Evidence Code section 351 reads: “Except as otherwise provided by statute, all 

relevant evidence is admissible.” Evidence Code section 352 reads: “The court in its 

discretion may exclude evidence if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” 

Evidence Code section 353 reads, in pertinent part: “A verdict or finding shall not be set 

aside, nor shall the judgment or decision based thereon be reversed, by reason of the 

erroneous admission of evidence unless: (a) . . . (b) The court which passes upon the 

effect of the error or errors is of the opinion that the admitted evidence should have been 

excluded on the ground stated and that the error or errors complained of resulted in a 

miscarriage of justice.” 

14 The unsigned letter dated June 12, 2010 purports to be from a physician with the 

credentials of “MD, MPH,” without reference to any specialty, is addressed to the 

medical referral department of an insurance company, describes the results of a physical 

examination of mother and certain laboratory analysis and imaging studies, and 

concludes with the physician’s recommendation “at this point that [mother] enter 

inpatient treatment for her alcohol addiction.” Mother asks us to consider that since the 

hearing before the commissioner “it has come to light that the information contained in 
14

by father, the commissioner sustained mother’s objections to its admission on the 

grounds of hearsay and potential physician-patient privilege, and indicated the letter 

would not be admitted for the truth of the medical information contained in it. The letter 

was admitted into evidence “only to the extent” the letter showed why father took certain 

actions after he received the letter from mother’s physician. We presume - and mother 

does not present a cogent argument to the contrary - that the commissioner considered the 

letter for the limited purpose for which it was admitted into evidence, and for no other 

reason. “ ‘As an aspect of the presumption that judicial duty is properly performed 

[(Evid. Code, § 664)], we presume . . . that the court knows and applies the correct 

statutory and case law [citation] and is able to distinguish admissible from inadmissible 

evidence, relevant from irrelevant facts, and to recognize those facts which properly may 

be considered in the judicial decisionmaking process.’ [Citations] Stated another way, a 

trial court is presumed to ignore material it knows is incompetent, irrelevant, or 

inadmissible.” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526.) 

“Clearly, the mere fact that the court heard or read the evidence is not sufficient to 

overcome the presumptions. [Citations.] [¶] These presumptions, we conclude, are 

dispositive” of mother’s contentions. (Id. at pp. 1526-1527.) 

DISPOSITION 

 The April 18, 2012, statement of decision, construed as an appealable order, 

denying Christine E. Gray’s request for a permanent DVPA restraining order (Case No. 

AF11603446), and the order filed on February 16, 2012 granting Robert Gray’s request 

for a permanent DVPA restraining order (Case No. AF12612795) are affirmed. Appeals 

 

the letter[ ] is in fact false, based on the physical examination of Mother and blood tests.” 

In support of her contention, mother has attached to her opening brief as exhibits the 

2010 laboratory analysis and imaging study reports that are purportedly referred to in the 

June 2010 letter. However, because those medical reports were neither proffered nor 

admitted into evidence at the hearing before the commissioner, we have not considered 

them in addressing her appellate contention. 
15

from all other February 16, 2012 orders issued by Commissioner Thomas Nixon in Case 

No. AF12612795 are dismissed. Robert Gray is awarded costs on appeal. 

 _________________________ 

 Jenkins, J. 

We concur: 

_________________________ 

Pollak, Acting P. J. 

_________________________ 

Siggins, J.