Last v. Super. Ct.
G060943
Cal. Ct. App.Aug 2, 2023Background
- Peter and Debra Last married in 2002 after signing a premarital agreement that waived Debra’s right to spousal support in exchange for scheduled cash payments and other property arrangements.
- Debra filed for dissolution in June 2021 and requested temporary spousal support; Peter opposed based on the premarital waiver and asked to bifurcate the enforceability issue.
- At the September 2021 hearing the court awarded Debra temporary spousal support of $8,511/month, denied interim attorney fees, and set a bifurcated trial on the Premarital Agreement’s validity.
- The trial court made no written or on-the-record findings under Family Code §1615(c) (the statutory checklist that overcomes a presumption the agreement was not executed voluntarily).
- The court stated it would reallocate or give credits if the premarital agreement were later found enforceable, and Peter appealed; the Court of Appeal treated the matter as a writ proceeding and denied the petition.
Issues
| Issue | Plaintiff's Argument (Peter) | Defendant's Argument (Debra) | Held |
|---|---|---|---|
| Can the trial court award temporary spousal support despite a premarital waiver? | The premarital agreement facially satisfies §1615(c) so the waiver is presumptively enforceable and bars temporary support. | Because the court made no §1615(c) findings, the agreement is presumed not voluntarily executed and does not bar temporary support. | The court may award temporary support when §1615(c) findings have not been made; absence of findings means agreement is deemed involuntarily executed. |
| What is the effect of Fam. Code §1615(c)? | (Peter) §1615(c) does not prevent immediate enforcement of a facially compliant waiver. | (Debra) §1615(c) creates a presumption the agreement was not executed voluntarily unless the court makes required findings. | §1615(c) creates a presumption of involuntary execution; the trial court must make specific findings in writing/on the record to rebut that presumption. |
| May the trial court modify the temporary support retroactively or order reimbursement if the agreement is later found enforceable? | Peter contends recovery would be impractical and he should have been protected from paying. | Debra argues the court’s temporary award stands until adjudication, but the court can address equities later. | The court reserved jurisdiction and may retroactively modify/support reimbursement if the premarital agreement is later found enforceable; remedies (accounting, reimbursement, enforcement) are available. |
| Is the temporary support order appealable / how should appellate review proceed? | Peter argues immediate review is appropriate; reservation of jurisdiction might make the order nonfinal. | Debra did not contest appellate treatment; court may treat as writ. | Although reservation could make the order interlocutory, the Court of Appeal exercised discretion to treat the appeal as a writ of mandate and resolved the merits. |
Key Cases Cited
- Pendleton v. Fireman, 24 Cal.4th 39 (premarital spousal-support waivers are not per se unenforceable)
- Wittgrove, 120 Cal.App.4th 1317 (purpose and standard for temporary spousal support)
- Cadwell-Faso & Faso, 191 Cal.App.4th 945 (explaining §1615(c) presumption and evidentiary burden)
- Gruen, 191 Cal.App.4th 627 (limitations on retroactive modification absent reservation of jurisdiction)
- Freitas, 209 Cal.App.4th 1059 (retroactive modification and reservation-of-jurisdiction principles)
- Spector, 24 Cal.App.5th 201 (distilled rule on reservation of jurisdiction and retroactivity)
- Skelley, 18 Cal.3d 365 (collateral order doctrine and appealability of temporary support orders)
- Morehart v. County of Santa Barbara, 7 Cal.4th 725 (appellate discretion to treat an appeal as writ of mandate)
- Olson v. Cory, 35 Cal.3d 390 (standards for invoking writ jurisdiction in appellate court)
- Palmquist v. Palmquist, 212 Cal.App.2d 322 (accounting and reimbursement of improper support payments)
- Farner, 216 Cal.App.3d 1370 (use of writ of execution to enforce family law monetary orders)
- Bonner v. Superior Court, 63 Cal.App.3d 156 (court power to sell property to satisfy equalizing or enforcement obligations)