Expanding Spousal Support Denial In Cases of Domestic Violence -
Meet IRMO Gomez and Shue: No Alimony to Abusive Parents!
What Might This Mean for You?
While the language of Section 4320(i) of the Family Code (dealing with the "factors" that are used to evaluate judgment spousal support requests - and often attorney fee requests) has long provided for the possibility that a parent who is guilty of domestic violence as against a minor child can be denied the right to receive spousal support from the other parent, until now no reported California decision has squarely addressed the issue.
Please allow us to introduce you to In Re Marriage of Gomez and Shue (B269831), which was handed down on December 6, 2016, by the Second Appellate District, Sixth Division, for Santa Barbara County - a tough, no-nonsense appellate jurisdiction with some stellar family law justices, including P.J. Gilbert, who authored this decision, and Justice Yegan, who concurred with the ruling and who has himself authored a number of other published cases that have been ... well, this Court doesn't fool around or shy from spankings. We've blogged a few of them, which sometimes involved upholding sanctions against errant attorneys.
Marriage of of Gomez and Shue sets forth an extreme fact pattern, involving a wife spousal support-applicant who, it was established, had a history of having supplied her minor children, and their friends, with alcohol and pornography. Perhaps not surprisingly from these facts alone, she also commenced in a sexual affair with her son’s friend spanning from the child’s 12th year (not grade), through college. Ms. Gomez, in order to coerce her daughter, Ashley, from blabbing this information to a therapist, or from disclosing it on social media, forced her son to help her butcher Ashley's hair in an effort to demonstrate the point that there would be severe consequences if her mother's conduct came to light. Indeed, Ashley testified that she was seriously and sadly damaged emotionally. It is not clear from the decision whether this testimony came out at the criminal trial against Gomez, which resulted in a six year prison sentence, or at the support trial.
Mr. Shu, the former husband, had worked overseas in the oil industry during the implicated years and at time of trial had "the ability to pay whatever spousal support the court [might] order." It was apparently as a result of his work that Ms. Gomez had been left home alone with the minor children for extended periods.
FC Section 2335 makes evidence of "fault"
inadmissible in family law cases, but ....
The trial court found that Ms. Gomez, as a result of the parties' property settlement several years before, had sufficient assets to support herself. There was evidence from a vocational examiner that Ms. Gomez could earn an income. Which findings would have been a sufficient basis to deny her support, at least at time of trial, without more. However, at trial the Court permitted Mr. Shu to introduce evidence of fault on top of evidence of Gomez' financial condition, since Mr. Shu - no doubt - had a lot more to say on the subject of why Gomez should forever be denied the possibility of seek spousal support in the future. Gomez objected to that fault evidence - consisting of her sexual predations and physical abuse - to being admitted on the basis of Family Code section 2335, which makes"evidence of specific acts of misconduct ... inadmissible." The trial court disagreed and listened to the horror stories involving the children, denied Gomez judgment spousal support, but Gomez in an apparent fit of outrage appealed the trial court's refusal to exclude 'fault based evidence.'
Take a memo: "Dear Ms. Gomez: Sorry that if something ugly that you have done, by its very nature, points to fault and that these underlying facts will not be ignored in your divorce; your terrible behavior won't shield it from the court's consideration, albeit it would better serve your financial interests if it did! One can't be a monster and exclude evidence that proves it by hiding behind public policies that were merely intend to civilize divorce, but never to excuse atrocities."
FC section 4320 is the key
California Spousal Support Statute!
Family Code section 4320, governing what trial court's MUST consider in making findings before ordering a party to pay judgment spousal support to the other, includes subdivision (i), which identifies this factor: "Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child,..." [Italics added].
It is clear that the central reasoning supporting the holding was the abusive conduct directed towards the parties’ children - and that the Appellate Court wanted to use these egregious facts to make new case precedent that emphasizes that child abuse is an independent ground for denial of spousal support that trial courts can rightly consider. Had Gomez not appealed the decision on the "no-fault" theory, which was probably her only viable basis given the trial court's other findings, she would not have been slapped down so hard on this ground. The Appellate Court recognized that, while generally speaking California is a no-fault divorce state, elements of fault can come into play in a trial court’s analysis of spousal support. It noted that the right to order spousal support at all is permissive by a trial court, and not a mandatory entitlement. Expressly, it decided that providing alcohol and pornography to one child and cutting a child’s hair as a means of humiliation and coercion is domestic violence. This decision thereby arguably expands the types of behaviors constituting “disturbing the peace” under Family Code section 6203’s definition of abuse, and the behaviors enjoined by Family Code section 6320, by introducing new specific kinds of conduct involving a victim who is other than the hoped for payor.
As with the California Supreme Court's 2015 Davis decision, which was abrogated by the legislature by the enactment of new Family Code section 70 which goes into effect on January 1, 2017, we are seeing an appellate judicial trend that either affirms trial courts in following the plain language of statutes, or reversing them where they do not. The statutes mean what they say, even if no case has yet interpreted the various clauses in them. A word to the legal community, including family law attorneys and judges and commissioners?
Financial Consequences for Any DV Are Expanding
We may also be seeing a continuation of the Nadkarni and Nakamura line of cases that similarly expanded the reach of DV; there, it was the fleshing-out of (as opposed to the flesh-eating - ahem, maybe the same thing) kinds of conduct that constitute "abuse" within Section 6320's catch-all of ‘peace disturbing.’ Ms. Gomez' conduct, of course, far exceeds that species of Internet stalking.
Thus, the Gomez holding not only lends itself to a spousal support analysis given the "right" (or wrong) facts (which here were completely outrageous), but also to the trends in domestic violence restraining orders litigation generally. Courts are increasingly intolerant of domestic violence, and are sending the message.
But this decision may also open unforeseen doors inasmuch as it allows lawyers, who are always trying to find fault to use in spinning their cases to judges, to expand fault based evidence in other contexts. We believe that, soon, parents of children who have suffered domestic violence will be able to expand the child support obligations of perpetrators as a sword against such conduct, and all its downstream consequences, as well!And, this Court's pronouncement that fault is relevant to this part, or that part, of the California Family Code may be a harbinger of a broadening of fault theories in marital dissolution, in this increasingly divisive society. Just in time for Trump?
Based upon long experience we guarantee that another arrow has just been added to the quiver of higher-earning spouses, desperate to avoid paying spousal support, who will consider behaviors that fall far short of Ms. Gomez' as justifying resistance to spousal support applications. Which, once again, is in theory nice for family lawyers such as ourselves given the resulting potential litigation - but not so much for the consumers of divorce legal services. And, we'd prefer rationality and sanity to an excuse to advance a claim that isn't justified, just to earn a fee.
But, we may be a minority among family law attorneys - all of whom, we remind you, owe a responsibility to the public to not champion bogus causes!
Authors: Michael C. Peterson, CFLS and Thurman W. Arnold, CFLS, AAML