Expanding Spousal Support Denial In Cases of Domestic Violence -
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.
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
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
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
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.
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