FACTS: Parties married in 1999 and separated in 2010, having had two children (Cs). H was ordered to pay W $10,000/mo. unallocated support and $20,000 attorney fees. H agreed to pay guideline child support (c/s), but opposed spousal support (s/s), alleging 10-yr. history of W’s “erratic and abusive behavior, including the commission of several acts of domestic violence.” H alleged that W’s acts had generated 19 written police reports, 5 arrests, 3 criminal convictions, 3 criminal protective orders, one civil TRO, and 3 probationary periods. W was then on probation as a result of a 5/08 conviction, and there was a criminal protective order currently in effect.
Trial ct. ordered $14,602/mo. c/s and noted that W’s 5/08 conviction created a rebuttable presumption under Family Code section 4325; W had “presented little in the way of mitigation” towards rebutting the presumption. Thus, court found an award of s/s would be inappropriate. W appealed, arguing the 5/08 conviction was the result of a nolo contendere plea and Penal Code section 1016 precluded it as the predicate offense under section 4325. Court of Appeal affirmed.
HELD: A DV conviction resulting from a nolo contendere plea may be the basis for a finding of domestic abuse triggering a presumption against spousal support.
The Legislature has determined that “victims of domestic violence [should] not be required to finance their own abuse.” (In re Marriage of Priem, supra, 13 D.J.D.A.R. at p. 3164.) Thus, it enacted a series of statutes providing that a criminal conviction of DV shall be considered in making or reducing temporary or permanent s/s awards in favor of the abuser. Section 4325 creates a rebuttable presumption that s/s requests are not to be granted to spouses who have been convicted of DV during the five years preceding the filing of a petition for dissolution. Here W was convicted of Penal Code section 243(e)(1) misdemeanor DV after a nolo contendere plea.
While generally pleas of nolo contendere are not deemed conclusive in subsequent civil proceedings as admissions of wrongdoing, “ ‘even in those civil actions in which a nolo contendere plea is admissible, the party is traditionally permitted to contest the truth of the matters admitted by the plea, to present all facts surrounding the nature of the charge and the plea, and to explain why the plea was entered.’ ” (In re Marriage of Priem, supra, 13 D.J.D.A.R. at p. 3164.)
First, Court of Appeal noted that family law actions are not “civil suits” as the term is used in section 1016. Second, all section 4325 does is create a presumption against s/s, which W was free to rebut.
“Thus, the plea itself does not automatically result in the denial of support to an offending spouse. Instead, he or she merely has to rebut the negative presumption created by the conviction. Accordingly, we conclude a plea of nolo contendere to a charge of misdemeanor domestic violence, made within five years prior to the filing of the dissolution proceeding, may be used as the basis for presumptively denying temporary spousal support under section 4325” (In re Marriage of Priem, supra, 13 D.J.D.A.R. at p. 3165.)
NOTES: This case not final as of closing date of this volume. Prior to citing this case, user should verify its official publication status. (See CRC, rule 8.1115.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.