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California Family Law Report


Case of the Month Archive

October 2017

Judges decline to treat disso petition as notice of motion for Fam C §4333 purposes . . .


In affirmance, Fourth District holds that wife was not entitled to permanent spousal support order retroactive to date of filing disso petition because she failed to request temporary spousal support; Fam C §4333 allows retroactivity only to date of filing motion or OSC


In re Marriage of Mendoza and Cuellar

(August 25, 2017)

California Court of Appeal 4 Civil G053820 (Div 3) 14 Cal.App.5 th 939, 222 Cal.Rptr.3d 420, 2017 FA 1804, per Thompson, J (Bedsworth, Acting PJ and Aronson, J, concurring). Orange County: Honer, J, affirmed. For appellant: Worth Nicholl, (949) 552-0524. For respondent: no appearance. CFLP §F.52.12.


When Noemi Mendoza filed a disso petition to end her 22-year marriage to Elias Cuellar in May 2014, she used an appropriate Judicial Council form and checked the box for a spousal support request. She and Elias were able to settle most issues during a settlement conference, but not spousal support. In her trial brief, Noemi stated that she was seeking an award of monthly spousal support, but she did not specifically request temporary support. In July 2015, the couple was able to agreed that Elias would pay Noemi $800 a month for spousal support, starting July 1, 2015, and that the trial court would determine the issue of retroactivity at a subsequent hearing.


The trial court subsequently asked each party to submit a written brief on the retroactivity issue. In her brief, Noemi contended that the trial court should make spousal support retroactive to the date that she filed her disso petition, per Fam C §4333, which authorizes a trial court to make a permanent spousal support order retroactive to the date of filing a notice of motion or OSC. Elias countered that the trial court could not make a permanent spousal support order retroactive to the date of filing the petition because Noemi failed to seek an award of temporary spousal support. After a hearing, the trial court found that Noemi’s failure to seek a temporary spousal support order precluded its ordering permanent spousal support retroactive to the date of filing the disso petition. When the lower court issued the parties’ disso judgment, it incorporated the stipulated spousal support order it previously made.


Noemi appealed, but the Fourth District affirmed.


Nothing else like it . . .
The justices began by explaining the difference between the purpose served by an award of permanent spousal support and the purpose served by a temporary spousal support order. They reasoned that a temporary spousal support order is intended to permit the requesting spouse to continue to maintain the marital standard of living and provide funds for attorney’s fees until the case is concluded, while a permanent spousal support award is “intended to make an equitable apportionment between the parties.” And, since Noemi admitted that she had not requested temporary spousal support, the panel found that the controlling statute was Fam C §4333, which places a restriction on retroactivity that is “unique to permanent spousal support.”


Literal language . . .
Noemi contended that the justices should treat her disso petition as a notice of motion for Fam C §4333 purposes, but they declined to do so. They pointed out that the statute specifies the filing date of a notice of motion or order to show cause as the date from which retroactivity can be pegged. And, they thought that the Legislature could have included the filing of the disso petition in its provisions if it had intended to do so. Besides, the panel continued, the facts here showed that Elias and Noemi had stipulated to the spousal support award; thus, there was no filing of a notice of motion or OSC to set a date for retroactivity.


Step by step . . .
The justices also reasoned that a disso petition serves a different function than a notice of motion; it “is a document that simply initiates an action,” and precedes “certain steps [that] must be taken before the court makes an order or grants any relief.” As to spousal support, the panel noted, “the required steps include, among others, filing and serving a request for order and an income and expense declaration.” That request, the justices said, “acts as the noticed motion referenced in section 4333.” Moreover, the panel thought that treating the disso petition as a notice of motion would “largely eviscerate the distinction between” temporary and permanent spousal support orders and “confound their unique purposes” by having the effect of making spousal support orders retroactive to the filing of the petition “in every case.” (Emphasis in opinion.) Summing up, the panel held that the trial court had not erred in ruling that Noemi’s failure to seek temporary spousal support precluded her from being awarded spousal support retroactive to the date she filed her disso petition.





The justices may have come to the proper conclusion in this case, but some of their reasoning seems a little off. We aren’t convinced that a disso petition “simply initiates an action,” as a civil complaint does. A disso petition is far more detailed than the usual civil complaint in describing its purpose and the relief requested. Moreover, a careful reading of the petition shows that it contains the following wording: “Petitioner requests that the court make the following orders” and that the petition goes on to enumerate the orders requested, including spousal support. Given that, it doesn’t seem so much of a stretch to treat the petition as a notice of motion, as Noemi argued. Besides, it’s difficult to see how doing that would “eviscerate the distinction between temporary and permanent spousal support and confound their unique purposes.” The distinction between the two lies in the purpose that each serves, as the justices have carefully explained, not in the possibility of a retroactive order.



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