As California family law lawyers, we’re trained to tell our clients that California is a no-fault state. And that’s true. You can get a divorce for just about any reason, provided either you or your spouse has lived in California for at least six months and the county of filing for at least three months. Indeed, Family Code section 2335 provides “[e]xcept as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible”.
But fault may be considered regarding the issue of spousal support. This was brought to light in a published decision issued today by the California Court of Appeal in Santa Barbara. Ruling 3-0, the justices in Gomez v. Schu affirmed a lower court judge who denied the woman spousal support, even though the facts were the husband “has the ability to pay whatever spousal support the court may order”. In other words, he makes a lot of money.
But the mother behaved badly. Very badly. The parties had three children. They’re all adults now. One of the children, a boy, had a best friend named “S.”. The mother started having oral sex with S. when he was 12 years old. This progressed to intercourse and continued until S. was in college. S. tried to end the relationship, but the mother threatened to tell his friends and family.
One day another of the parties’ children, a daughter, came home and found her mother in the shower and S. outside the bathroom with nothing on but a towel.
Meanwhile, the mother was concerned that news of the affair was getting out on social media. She demanded that the daughter provide her with S.’s sister’s social media password, but she refused. Accordingly, the mother made her son — the one who was friends with S.– hold his sister down while the mother cut off a big chunk of her hair. The daughter found it humiliating to go to school with her hair cut and wanted to see a counselor. The mother said that if she did that, “they” would take her away.
The mother also provided alcohol to her son (S.’s friend). Other underage children, including S., would gather at the mother’s home and would sometimes drink to the point of vomiting. The mother showed pornographic movies to the son and his friends. While the mother had an affair with S., the son had sex with underage girls in the home.
As a result of all of this, the mother pled no contest to seven counts of unlawful sexual conduct with a minor and was sentenced to six years in prison.
At trial, which apparently took place in July 2012, the judge divided the estate and the mother got half of $914,00000 in assets. She was also found to have an account with her father with $200,000.00 in it and perhaps another account with $160,000.00 in it. A vocational evaluator testified that the mother could work as an event planner and “would be all right no matter what”. Based on all of this, the judge, the Hon. Colleen K. Stern, found that the mother had sufficient assets to support herself.
Mother’s first problem with respect to spousal support is that, at least according to this case, spousal support is not mandatory (although in certain cases to deny it would probably be an abuse of discretion; just not this one). What a court is supposed to do is consider all of the factors under Family Code section 4320. One of those factors is any “[d]ocumented evidence, including a plea of nolo contendere, of any history of domestic violence . . . . between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party”. Most importantly, “domestic violence” is widely defined under California law and includes “abuse perpetuated against . . . a child of a party”. The term “abuse”, meanwhile, is broadly defined and includes, among other things, “disturbing the peace of the other party”. In this case, the judge found that the father “and the children had been subject to emotional abuse for years”.
Although the mother hung her hat on that statute that prohibits consideration of misconduct in a general sense, Family Code section 2335 (see the beginning of this post), the Gomez court noted that Family Code section 4320 “mandates that the trial court consider domestic violence. To fulfill this requirement, the court must allow evidence of misconduct”. And, the justices added, there is a separate part of section 4320 that requires a court to look at “any other factors the court determines are just and equitable”.
From this vantage point, it is easy to see why the trial judge and the three justices ruled against the mother. No casual observer (i.e., a member of the public) would think a woman like this deserved spousal support, and, in any event, it looked like she wasn’t going to starve anyway.
The Gomez opinion was authored by Justice Arthur Gilbert, who was joined by Justices Kenneth Yegan and Steven Perren. Because the case was certified for publication, it may be cited as precedent by judges and lawyers throughout California, including San Diego, even though the matter originated in Santa Barbara County.
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