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Case of the Month Archive

April 2020

Wife failed to present documented evidence of being domestic violence victim herself. . .


In affirmance, Sixth District holds that trial court did not err by denying wife a spousal support award per Fam C §4325's rebuttable presumption against spousal support award to spouse who is convicted of domestic violence, or by making order re division of parties' joint account, but modifies judgment re duck club value to conform to parties' stipulation.


In re Marriage of Brewster and Clevenger

(February 19, 2020)

California Court of Appeal 6 Civil H045050, 45 Cal.App.5th 481, 258 Cal.Rptr.3d 745, 2020 FA 1925, per Greenwood, PJ (Bamattre-Manoukian and Danner, JJ, concurring). Monterey County: Whilden, J, affirmed as modified. For appellant: Debra Tipton, (831) 521-6560. For respondent: Joel Franklin, (831) 649-2545. CFLP §F.53.4.


Chris Clevenger, an orthopedic surgeon, and Mary Kay Brewster, a gynecologist and obstetrician, separated in August 2011 after 21 years of marriage. She filed for divorce. In March 2015, Chris filed a request for a temporary spousal support order, per guideline. In a supporting declaration, he stated that he had been depositing $10,000 a month into a joint account to cover Mary Kay's expenses and had been paying the mortgage and property taxes on the family home, where she was living rent free. Chris also asserted that he should not be ordered to pay any spousal support to Mary Kay because she had been charged with "'several criminal counts'" for harassing him. Mary Kay filed no response to Chris's request.


After the trial court set a disso trial date in October 2016, Chris filed a trial brief in which he asked the court to take judicial notice of the file in Mary Kay's criminal stalking case. He acknowledged that the trial court had reserved jurisdiction on his temporary spousal support request, but reiterated his assertion that he should not have to pay spousal support per Fam C §4325 [rebuttable presumption against spousal support award to spouse convicted of domestic violence] and §4320 (i) and (j) [spousal support factors re domestic violence and any other equitable factors], since Mary Kay had been convicted of domestic violence in January 2016. He also claimed that she was underemployed and could be self-supporting.


The trial court held four days of trial between October 2016 and January 2017. At the outset, the court took judicial notice of the minute orders and sentencing hearing in Mary Kay's criminal case. The parties stipulated on the record that the duck club membership would be assigned to Chris at a value of $65,000. Mary Kay testified that she had been convicted of some criminal counts, but did not specify which ones. However, in her written closing argument, she confessed to having put a non-poisonous python and several rats into the home where Chris was staying. In rebuttal of the Fam C §4325 presumption, Mary Kay testified about three incidents in which Chris had committed domestic violence against her. In the first, she claimed that he had intentionally dislocated her finger when she refused to let go of his shirt during a confrontation. In the second, she alleged, he had screamed at her, picked her up out of his chair, and had thrown her across the hallway after she confronted him about an affair at his office during business hours. In the third, she stated that she had gone to Chris's office on a Saturday, gained entry with a key she had previously purloined, and surprised him at his desk. In the ensuing conflict, Mary Kay claimed, Chris had injured her hip by throwing her down on the thinly-carpeted concrete floor, but had dissuaded her from calling the police and begged for forgiveness. She claimed that she had been bruised so badly from the first incident that people stopped her on the street to ask what had happened. In his testimony, Chris claimed that Mary Kay was the aggressor in each incident, that he had merely tried to subdue her, and that he had not noticed the bruises that she had claimed to have received.


Mary Kay also testified to having several medical conditions involving her shoulders, hands, and feet, as well as to suffering cardiac arrythmias requiring hospitalization after the last incident with Chris. She said that most of her conditions had since resolved, but she was unable to perform many of the procedures required in her OB/gyn practice. In order to supplement her practice, Mary Kay said, she had begun to offer medical weight reduction treatments. After the parties submitted written closing arguments, the trial court issued a tentative decision, and subsequent disso judgment in which it awarded the duck club membership to Chris at a value of $60,000, and determined that the $10,000 a month payments he had made were in lieu of spousal support and were taxable to Mary Kay and deductible to Chris. The lower court determined that Mary Kay had not rebutted the Fam C §4325 presumption, applied the presumption, and set spousal support at zero.


Mary Kay appealed, and after modifying the value of the duck club, the Sixth District affirmed.


Take no notice. . .
The justices first addressed Mary Kay's request to have them take judicial notice of "two volumes of transcript" of her criminal trial proceedings. They noted that the trial court had not considered any of those documents as evidence in deciding its judgment in this case. Moreover, they were not required to take judicial notice of matters that were not considered by the lower court, absent exceptional circumstances, which were not present here. Mary Kay, they noted, had failed to explain why she had not presented additional documents from the criminal case at trial and had not provided certified transcripts of the testimony, although she was given the opportunity to do so. Summing up, the panel found that the trial court had not erred in denying her request for judicial notice.


The female of the species. . .
The panel then turned to Mary Kay's contention that the lower court erred by denying her a spousal support award. The justices noted that it was undisputed that she had been convicted of domestic violence; the question was whether she had rebutted the presumption that as a perpetrator of domestic violence, she was not entitled to a spousal support award. The panel pointed out that no prior case had explained what evidence Mary Kay had to introduce to successfully rebut the presumption. All of the prior cases had determined, as the lower court had here, that the domestic violence perpetrator had not done so. When they reviewed the language of the statute, the justices saw that it allowed the court to find that the presumption was rebutted where "'documented evidence'" shows that the convicted spouse was a victim of domestic violence at the hands of the other spouse. After reviewing dictionary definitions of "documented" and "document", they reasoned that "documented evidence means written evidence in the form of a 'writing' within the meaning of Evidence Code section 250 proving by a preponderance his or her history as a victim of domestic violence in the relationship." Here, the panel found, Mary Kay had chosen to show her victimhood through her own testimony, not through any written evidence that documented the incidents she relied on. Therefore, the justices concluded, the trial court had correctly determined that she failed to rebut the statutory presumption in Fam C §4325.


She's seen worse. . .
The justices found that the statute also permits the trial court to rely on any other factors that it deems just and equitable in determining whether the presumption has been rebutted, as the trial court had done here. They then looked to see whether the factors that Mary Kay had raised were, in fact, sufficient to rebut the presumption. Mary Kay had argued that the things she had done were not violent and did not result in bodily harm to Chris; therefore, they were distinguishable from the facts in In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, where the wife had physically attacked the husband and had repeatedly threatened his life, along with destroying his landscaping with sprayed herbicide, killing his fish, and thrown various personal items of his into the bay. The panel agreed that "the facts in Cauley were particularly egregious," but reasoned that Fam C §4325 applied in cases whose facts were not that extreme and did not involve violent acts, such as the stalking behavior for which Mary Kay had been convicted. Given that, the justices concluded that the trial court was not required to distinguish her behavior from that of the spouse in Cauley. The panel also declined to reassess Chris's behavior to see whether they agreed with the lower court's determinations; that was for the trial court to determine. And, they did not find it necessary to address Mary Kay's assertion that Chris's "'adultery and betrayal'" was a form of domestic violence because it caused her emotional distress, as she had not presented that argument at trial. In conclusion, the justices found that the lower court had carefully considered and weighed all of the evidence and had properly determined that Mary Kay was not entitled to an award of spousal support because she failed to rebut the Fam C §4325 presumption.


Winner and losers. . .
Turning to Mary Kay's other contentions, the justices found that contrary to her assertion, the lower court had jurisdiction to make a temporary support order or retroactive order. In addition, they determined that the lower court properly concluded that the payments that Chris made into the joint account were in lieu of spousal support. Besides, they said, Mary Kay was estopped from arguing that the payments were not such because she took the opposite position at trial. Moreover, she had waived her contentions regarding the taxability of the payments by failing to raise that issue at trial. However, the justices at last found an issue she could win on, the value of the duck club membership. At trial, the parties had stipulated that its value was $65,000, not the $60,000 that the lower court specified in its judgment. Accordingly, the panel modified the judgment to reflect that correct value, $65,000, and affirmed the judgment as modified.





Here we have another "hell hath no fury," case. However, the justices decline to analyze the case for Fam C §4325 purposes by comparing the facts here to those in other cases such as Cauley; In re Marriage of Kelkar (2014) 229 Cal.App.4th 833 [wife physically and verbally abused husband some 200 times during marriage and threatened him after the disso]; and In re Marriage of Priem (2013) 214 Cal.App.4th 505, [wife's abuse of husband resulted in three criminal convictions and several protective orders]. Instead, they give us a rule to follow re the evidence needed to rebut the Fam C §4325 presumption, which will be more helpful in the long run.

The justices tell us that "documented evidence" includes (but is not limited to) voicemail messages, text messages, social media posts, cellphone recordings, police reports and 911 calls, medical records, photos, employment records, and court records from criminal prosecutions reflecting convictions for domestic violence offenses. They caution that there are requirements of evidentiary authentication or admissibility that go along with submitting such evidence and need to be addressed before submitting the listed documents to the court. Still, we now know that in cases like these, it will no longer be enough to have each spouse testify as to what happened and then let the judge decide which one is the more credible.



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