Family Code section 4325 permits a judge to deny a spousal support award to an abusive spouse. A recent appellate court case addressing the issue determined that this rule also apples to an abusive spouse who pleads no contest in a criminal case.
The case in question In re Marriage of Priem [full text] (3/13/13) 1 Civ A130791, Div 1 (Dondero) 2013 WL 951154 contained the following facts:
Husband and wife were married in 1999 and later had two sons. Wife and mother (M) filed for divorce and sought child and spousal support, plus award of attorney’s fees. The judge ordered husband and father (F) to pay temporary support and monies toward M’s attorney’s fees. The court referred both parties to mediation for custody issues and ordered both M and F to complete an anger management program.
F claimed that M had engaged in “erratic and abusive behavior” and acts of domestic violence during the past 10 years. The trial court awarded sole legal and physical custody of the children to F, and set up a visitation schedule under which the children would be with M for the first half of each week and with F for the second half.
In a responsive declaration, F agreed to pay child support per the guideline, but asked to end temporary spousal support payments, based on M’s 2008 misdemeanor conviction for spousal battery. F recited M’s history of domestic violence and alleged that M had been arrested 5 times, had 3 criminal convictions, was the subject of 3 criminal protective orders and a civil restraining order, and had 3 probationary periods including the current one.
After a hearing on temporary support and attorney’s fees, F was ordered to pay child support to M. The judge declined to award spousal support, finding that per Fam C §4325, M’s 2008 conviction raised a rebuttable presumption that awarding temporary spousal support would not be appropriate. M appealed the denial of spousal support based on the claim that she was protected by her no contest plea in the criminal proceedings.
The appeals court agreed that PC §1016 provides that a no contest plea to a misdemeanor may not be used against a defendant as admission in any civil suit based on an act that was basis for criminal prosecution, but the appellate judges determined that a family law spousal support hearing is not a civil proceeding based on a criminal act.
The appellate court held that a no contest plea to a charge of misdemeanor domestic violence, made within 5 years prior to filing a divorce may be used by a judge as a basis for denying an award of temporary spousal support to the convicted abuser under Family Code§4325.
In unpublished parts of the opinion, the appellate court found sufficient evidence of M’s domestic violence to support the family law judge’s ruling to justify blocking her request for spousal support.
In this case, F was a high earner and the primary breadwinner in this family. M’s abusive and criminal conduct shut the door on an award of spousal support that would normally have been granted had there been no domestic violence. Also noteworthy from this decision is the fact that the court will not tolerate domestic violence no matter what gender the abuser may be.