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Wife Convicted of Domestic Violence Not Entitled to Spousal Support

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Alimony, Divorce, Legal Cases,

 

 

A California Court of Appeals has ruled that a Trial Court was not wrong when it denied Wife a spousal support award under California Family Code Section 4325’s rebuttable presumption against spousal support award to a spouse who is convicted of domestic violence. In the case of In re Marriage of Brewster and Clevenger, Husband, an orthopedic surgeon, and Wife, a gynecologist and obstetrician, separated in August of 2011, after 21 years of marriage. Wife filed for divorce.

In March of 2015, Husband filed a request for a temporary spousal support. In his supporting declaration, Husband stated that he had been depositing $10,000 per month into a joint account to cover Wife’s expenses and had been paying the mortgage and property taxes on the parties’ family home, where Wife was living rent free. Husband also asserted that he should not be ordered to pay any spousal support to Wife because she had been charged with “several criminal counts” for harassing him. Wife filed no response to Husband’s request.

After Trial Court set a trial date for October of 2016, Husband filed a trial brief in which he asked Trial Court to take judicial notice of the file in Wife’s criminal stalking case. Husband acknowledged that Trial Court had reserved jurisdiction on his temporary spousal support request, but reiterated his assertion that he should not have to pay spousal support to Wife under Family Code Section 4325 [rebuttable presumption against spousal support award to spouse convicted of domestic violence] and Section 4320 (i) and (n) [spousal support factors regarding domestic violence and any other equitable factors] since Wife had been convicted of domestic violence in January of 2016. He also claimed that Wife was underemployed and could be self-supporting.

Trial Court held four days of trial between October of 2016, and January 2017. At the outset, Trial Court took judicial notice of the minute orders and sentencing hearing in Wife’s criminal case. The parties stipulated on the record that the duck club membership would be assigned to Husband at a value of $65,000. Wife testified that she had been convicted of some criminal counts but did not specify them. However, in her written closing argument, she confessed to having put a non-poisonous python and several rats into the home where Husband was staying.

In rebuttal of the Family Code Section 4325 presumption, Wife testified to three incidents in which Husband had committed domestic violence against her. In the first, Wife claimed that Husband intentionally dislocated her finger when she refused to let go of his shirt during a confrontation; in the second, she alleged that Husband screamed at her, picked her up out of his chair, and threw her across the hallway after she confronted him at his office during business hours about an affair; and in the third, she stated that she had gone to Husband’s office on a Saturday, gained entry with a key she had previously purloined, and surprised him at his desk. In the ensuing conflict, Wife stated that Husband had injured her hip by throwing her down on the thinly-carpeted concrete floor, but had dissuaded her from calling police and begged for forgiveness. In his testimony, Husband claimed that Wife was the aggressor in each incident, that he had merely tried to subdue her, and that he had not noticed the bruises that she had claimed to have received.

Wife also testified to having several medical conditions relating to her shoulders, hands, and feet, as well as to suffering cardiac arrythmias requiring hospitalization after the last incident with Husband. Wife said that most of her conditions had since resolved, but she was unable to perform many of the procedures required in her practice and had begun to offer medical weight reduction treatment to supplement her practice.

After the parties submitted written closing arguments, Trial Court issued a tentative decision and subsequent divorce judgment in which it awarded the duck club membership to Husband at a value of $60,000, determined that the $10,000 payments Husband made were in lieu of spousal support and were taxable to Wife and deductible to Husband, ruled that Family Code Section 4325 applied (Wife had not rebutted the presumption), and set spousal support at zero.

Wife appealed, but after modifying the value of the duck club membership, the California Court of Appeals has affirmed Trial Court’s decisions. The appellate court has ruled that (1) it must deny Wife’s request for judicial notice of documents not presented at trial and not considered by Trial Court in making its judgment; (2) Trial Court was not wrong in applying Family Code Section 4325 presumption or in concluding that Wife failed to rebut the presumption on these facts (Wife filed to introduce documented evidence that she was the victim of domestic violence and statute does not require conviction be for a violent act); (3) Trial Court was also not wrong in declining to order spousal support; (4) Trial Court was also not wrong in finding that Husband’s payments into joint account were in lieu of spousal support (Trial Court did not lack jurisdiction to make temporary support order or retroactive order; Wife was estopped from arguing that payments were not in lieu of spousal support when she took the opposite position at trial); (5) Wife waived her argument regarding taxability of payments by failing to raise that issue at trial; and (6) Trial Court was wrong by valuing duck club membership at $60,000 after parties’ stipulated that its value was $65,000. Therefore, the Court of Appeals modifies the judgment to reflect correct value of the membership and affirms the remainder of the judgment.

 

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