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August 17, 2015
New Developments Under the DVPA – Part 1 of 2

In Marriage of Evilsizor v. Sweeney (2015) 237 Cal.App.4th 1416, the 1st Appellate District Court extended the Domestic Violence Protection Act just a bit farther than I think it should have gone, and this may have long-lasting results in our Family Law courts.  It’s worth taking a moment to think about the implications of this decision.   

The Family Law courts have been struggling – as has much of the legal establishment – with the implications of the rapid advances of the past ten years in electronic and telecommunications technology.  These advancements have rapidly outpaced the legislature’s ability to foresee and address problems with lawmaking; as a result the courts are in a position of trying to reconcile the intent of a variety of laws meant to protect the citizenry with the invasiveness, and indeed pervasiveness, of what amounts to a microcomputer (aka, a “smartphone”) in nearly every hand in the country.  

In Marriage of Evilsizor v Sweeney (hereafter Evilsizor), the trial court was dealing with exactly that confluence of technology, availability, and lack of guidance from California’s legislature.  The result is, in fact, consistent with law passed recently in some states which criminalizes an ex-lover or ex-spouse, who received photos given to him/her by the lover/spouse during the relationship, for publishing those photos electronically after the relationship is over. 

That isn’t exactly what happened in Evilsizor, though.  In this case, Mr. Sweeney had downloaded a series of text messages from Ms. Evilsizor’s phone, and he used those text messages as exhibits for a pleading he filed with the Court.  Ms. Evilsizor responded by seeking a restraining order under the Domestic Violence Protection Act, seeking only to prohibit him from disseminating these text messages any further. 

Let me preface my following comments with this:  Mr. Sweeney’s behavior may have been reprehensible; I don’t know the content of the text messages he provided to the Court. I do find the remedy chosen by the trial court, and endorsed by the Appellate Court, to be concerning. These aren’t photos of Ms. Evilsizor, and the Court used the catch-all phrase[1],  “disturbing the peace of” the other party to bootstrap this use of her downloaded text messages into the DVPA in the absence of any violence or threat whatsoever.  More disturbing, still, is that the Appellate Court upheld this ruling over some very good defenses. 

I have always considered “disturbing the peace of” another person to be a dangerous overstatement of precisely what may constitute domestic violence.  For some spouses, simply knowing their ex is alive and breathing “disturbs” their “peace.”  To think that Mr. Sweeney, in this case, actually had a restraining order issued against him for filing a document with the Court – which is supposed to have its own protections from libel, slander, etc. – appears to me to be a dangerous step indeed. 

However, there are several arguments Mr. Sweeney’s attorney did not make in his defense, at trial or at the appellate level.  I won’t include them here, but I am considering sending a letter off to my state senator.   You should consider doing the same. 


[1] Domestic Violence Restraining Orders prohibit a party from any of the following:  harassing, attacking, striking, threatening assault (sexually or otherwise), hitting, following, stalking, molesting, destroying personal property, disturbing the peace, keeping under surveillance, or blocking movements of the other party.

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