Malinowski v. Martin

February 16, 2024

Wife filed for dissolution of marriage from Husband. While the case was pending, Wife filed a request for a domestic violence restraining order (DVRO). The trial court issued a temporary restraining order, which included the parties’ minor children as protected parties and “no-contact” and “stay away” provisions.  The trial court later modified the temporary DVRO to allow Husband contact with the parties’ children that was consistent with a previously entered visitation order in the dissolution case. Mother appealed, arguing that the trial court should not have modified or changed the temporary DVRO because there was not a noticed evidentiary hearing or a showing of changed circumstances required by Code of Civil Procedure section 533. The Court of Appeal disagreed with Mother because a “court may modify or terminate a temporary restraining order” if it grants a continuance. In some cases, the trail court may still need to hold a hearing on the modification request. In this case a noticed hearing was not necessary because Mother had received notice based on arguments made in review hearings and the visitation order was already in effect in the dissolution case when Father asked the court to modify the temporary restraining order. For these reasons, the trial court had discretion to modify the temporary DVRO without a hearing.

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