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California Family Law Report



Case of the Month (from CFLR Monthly)

November 2014

Spouse shouldn’t have to fund his abuse from supported spouse . . .


In affirmance, Second District holds that trial court did not err by determining that Fam C §4325 applies retroactively and that stipulated disso judgment could be modified as to spousal support provision husband agreed to without knowledge of that statute’s limitation on spousal support orders for spouse who inflicts domestic violence


In re Marriage of Kelkar

(September 10, 2014)

California Court of Appeal 2 Civil B247085 (Div 1) __ Cal.App.4 th __, __ Cal.Rptr.3d __, 2014 FA 1657, per Miller, J (Rothschild, PJ and Johnson, J, concurring). Los Angeles County: Endman, Commissioner, affirmed. For appellant: Christopher Campbell, (310) 493-7780. For respondent: Mark Rademacher, (626) 792-8425. CFLP §C.13.


According to Anand Kelkar, his wife, Mary, physically and verbally abused him some 200 times during their long marriage, sometimes using a knife and other times using her fists. In 2000, he awakened to Mary’s yelling at him, “brandishing two 9-inch kitchen knives at him,” and stabbing his water bed “within inches of his body.” Anand struggled with Mary for control of the knives, sustaining cuts. Mary was subsequently charged with violating PC §417(a)(1) [exhibiting deadly weapon in rude, angry, or threatening manner] in connection with that incident and pled no contest.


In July 2002, Anand filed for divorce. By that time, the Legislature had enacted Fam C §4325, effective January 1, 2002, which provides that there is a rebuttable presumption affecting the burden of proof that the trial court should not award temporary or permanent spousal support to a spouse who is convicted of domestic violence against the other spouse. Anand was apparently unaware of that law when he and Mary signed a stipulated disso judgment which, among other things, required him to pay spousal support to Mary and contained wording intended to preclude the trial court from having authority to make any support order other than the ones specified in the stipulated judgment. Although Anand complied with the requirements of the stipulated judgment, Mary bombarded him with “hundreds of profane and vulgar text messages.” She also made threatening, crude, and harassing phone calls to, and left such messages for, Anand’s fiancée. His fiancée obtained a restraining order against Mary, but Mary just ignored it. She also violated a restraining order that Anand had obtained in 2009.


In June 2011, Mary filed an OSC, seeking a spousal support increase. In response, Anand asked the trial court to terminate or reduce spousal support, based on Fam C §4325, about which he did not know when he signed the stipulated judgment. In subsequent medical and psychological examinations of Mary, it was determined that she was not disabled, contrary to a statement in the stipulated judgment. The examiners concluded that Mary was capable of full-time employment if she took her meds for bipolar disorder, and that being employed would benefit her. In a separate declaration, Mary’s attorney in the criminal case stated that Anand had submitted declarations in that case, saying that Mary had not tried to hurt him and that he had never been in any danger. Anand shot back his own declaration, denying the attorney’s contentions and asserting that Mary would have severely injured him if he hadn’t moved fast enough to avoid her blows.


After the August 2012 hearing on Mary’s OSC, the trial court concluded that Anand was not aware of Fam C §4325 when he entered into the stipulated judgment and had not waived his right to assert that statute as a defense against Mary’s mod request. In addition, the lower court found that the doctrine of laches did not preclude him from doing so. The trial court reasoned that Mary was not prejudiced by Anand’s late assertion of Fam C §4325, since she had received some $400,000 that she would not have received if he’d asserted it sooner. And, the court was not inclined to give credence to Mary’s claims that Anand hadn’t really been afraid during the water bed incident. The trial court held that per Fam C §4325, Mary’s criminal conviction raised a rebuttable presumption that she had not rebutted. Concluding that Fam C §4325 applies retroactively, the trial court terminated Anand’s spousal support obligation as of September 1, 2012.


Mary appealed, but the Second District affirmed.


What’s past is prologue . . .
The justices first considered when and if a statute, such as Fam C §4325, applies retroactively. They noted, and Mary conceded, that Fam C §4 makes newly enacted Family Law statutes apply retroactively. Mary argued that one of the exceptions to that general rule, Fam C §4(h) should apply here to preclude retroactive application. The panel explained that per In re Marriage of Fellows (2006) 39 Cal.4 th 179, 46 Cal.Rptr.3d 49, 2006 CFLR 10357, 2006 FA 1252, Fam §4(h) gives the trial court discretion to apply the former law where applying the new law “ ‘impairs a vested . . . right without due process of law.’ ” They also cautioned that vested rights may be impaired where doing so involves that state’s inherent “police power” and is necessary to protect the public welfare. The panel found that in Fellows , the Supremes had set forth two groups of factors that must be considered when a trial court determines whether retroactive application is permissible: (1) “ ‘[T]he significance of the state interest served by the law [and] the importance of the retroactive application of the law to the effectuation of that interest’ ”; and (2) “ ‘[T]he extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.’ ”


Why pay for pain . . .
Applying those factors to the facts here, the justices noted that in In re Marriage of Cauley (2006) 138 Cal.App.4 th 1100, 41 Cal.Rptr.3d 902, 2006 CFLR 10285, 2006 FA 1240, the court identified the state’s interest in implementing Fam C §4325 as strong public policy against domestic violence and its intent to relieve the abused spouse from an obligation to fund his/her abuse by paying spousal support to the abusing spouse. There, the panel reasoned that the abusing spouse would not be able to continue to fund her abusive activities if she lacked the spousal support that enabled her to continue her harassment. Here, as there, the panel believed that the abused spouse, Anand, should not have to “ ‘finance his own abuse.’ ”


Policy prevails . . .
Mary argued that retroactive application of Fam C §4325 would impair vested rights that she acquired in the stipulated judgment. The justices pointed out that per Cauley , granting spousal support to abusing spouses is “ ‘unconscionable and constitutes unjust enrichment’ ” and forces the abused spouse “ ‘to remain dangerously entangled in the abuser’s web of violence and intimidation.’ ” Moreover, the panel continued, Fam C §4325 was enacted to combat the injustice of forcing an abused spouse to pay for his or her own abuse. The justices “ha[d] no difficulty in concluding that enforcing this stipulated judgment, which provides for an ‘unconscionable’ result the ‘unjustly enriches’ the abuser at the expense of the victim and entangles the victim in the abuser’s ‘web of violence’ is not as important as enforcement of the state policy that seeks to prevent that precise result.” Finding Mary’s other contentions meritless, the panel concluded that Fam C §4(h) did not preclude the trial court from applying Fam C §4325 retroactively.


Assorted arguments . . .
The justices then looked to see whether Mary’s reliance on former law should act as a bar to retroactive application. She contended that she had no notice that her plea in her criminal case could act as a bar to receiving further spousal support and that she might not have been willing to plead no contest if she had known. The justices reasoned that Mary’s plea did not act as a bar to future support, but simply raised a rebuttable presumption. Moreover, they thought she would have been prudent to consider pleading not guilty, given the state of the law regarding domestic violence. The panel found that Mary hadn’t shown that her willingness to plead no contest was actually affected by Fam C §4325, and her contention that Anand was never fearful or in danger was simply unsound. Summing up, the justices determined that Mary failed to show sufficient reliance on former law to preclude retroactive application of §4325. And, her contention that Fam C §4(f) [no liability for action taken under old law that would be improper under new law] was similarly unconvincing.


No joy here either . . .
Mary’s last contention was that the stipulated judgment was specifically stated to be nonmodifiable. The justices reminded her that they had previously determined that specific language prohibiting modification was trumped by the strong public policy against domestic violence. They noted that the parties in Cauley had also signed a stipulated judgment, which was similarly trumped. As for Mary’s assertion that Anand had impliedly waived his right to assert Fam C §4325 by failing to raise it earlier, paying spousal support for 10 years, and having an attorney who failed to inform him of his rights. The panel “fail[ed] to see how anyone could reasonably believe Anand intended to relinquish a right he did not know about by failing to assert it.” In addition, his attorney’s failure to inform him had no bearing on whether Anand intended to waive his rights under §4325. As for Mary’s argument that Anand should be equitably estopped to assert that statute, the panel found that she failed to show how she was prejudiced by the delay. Besides, on these facts, the equities favored Anand, not Mary. Accordingly, the justices concluded that neither waiver nor estoppel precluded Anand from asserting Fam C §4325 as a defense.





The justices’ findings and conclusions in this case are backed up by statutory provisions and existing case law. Yet, there is more than just a whiff of “have result, need reasoning” in this opinion.


The spousal support provision in the parties’ stipulated judgment ordered Anand to pay specified amounts of spousal support until his death, Mary’s death, or her remarriage, and contained a provision for an annual cost of living increase; it also stated that Mary was permanently disabled. The judgment also stated that its provisions were intended to comply with the requirements of In re Marriage of Vomacka (1984) 36 Cal.3d 459, 204 Cal.Rptr. 568, 1984 CFLR 2522, 1984 FA 123 [trial court has jurisdiction to extend spousal support beyond date to which right to request support is specified] and In re Marriage of Brown (1995) 35 Cal.App.4 th 785, 41 Cal.Rpr.2d 506, 1995 CFLR 6737, 1995 FA 703 [jurisdiction to extend support need not be explicit and may be inferred] “ ‘to make clear that no court shall have authority to provide for support of any amount at any time, except as specifically provided in this Judgment.’ ” However, as the justices point out, the judgment did not specifically state that spousal support could not be modified or terminated. In a footnote, the panel reasoned that the judgment likely cited those cases in an attempt to preclude a trial court from increasing Mary’s spousal support payments beyond the annual cost of living increases. However, they find that those cases are inapposite because they apply to cases involving an attempt to extend spousal support beyond a stated termination date, and their citation does not constitute a prohibition against modification. This reasoning also shoots down Mary’s contention that the stipulated judgment was res judicata as to the spousal support payments, since the modifiability of the payments means that the judgment is not final as to them.


It’s clear that Fam C §4 makes Fam C §4325 retroactive. What may be less clear is exactly why that matters. After all, the trial court did not (and could not) terminate Mary’s spousal support payments retroactively, only as of September 1, 2012. It matters because the act of domestic violence on which Anand seeks to base his §4325 defense occurred before that statute was enacted. Thus, the justices finding of retroactivity means that domestic violence that occurred prior to its enactment may still be the basis for a §4325 defense.


This case also reminds us, once again, that even a stipulated disso judgment may be modified where domestic violence (or some other issue that carries a high degree of public policy) rears its head.

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