Opinion
I.
INTRODUCTION
Kevin D. Freitas (Kevin) appeals from several pendente lite orders of the trial court in a marital dissolution action brought by his wife, Christine B. Freitas (Christine). In April 2010, Christine filed a petition to dissolve the marriage. At an October 2010 hearing, the trial court entered a temporary spousal support award in favor of Kevin, and a temporary child support award in favor of Christine. At that same hearing, the court ruled that it would reserve jurisdiction over whether to amend the support awards, and that Kevin could submit additional evidence pertaining to Christine’s income
On appeal, Kevin contends that the trial court erred in terminating the temporary spousal support award on the basis of his prior domestic violence conviction. Kevin maintains that because the court was aware of the conviction at the time it entered the original temporary spousal support award, the changed circumstances rule
We conclude that the changed circumstances rule did not prevent the trial court from terminating the temporary spousal support award based upon the court’s application of section 4325 to Kevin’s domestic violence conviction. We further conclude that the trial court erred in its determination that Gruen precluded amendment of the original support awards. The error was harmless with respect to the spousal support award, but remand is necessary with respect to the child support award. Accordingly, we affirm the trial court’s order terminating spousal support effective July 1, 2011. We reverse the trial court’s order concluding that it lacked jurisdiction to amend the pendente lite child support award for September and October 2010, and remand the matter to permit the trial court to determine whether to amend its child support award for those months based upon Kevin’s presentation of additional evidence pertaining to Christine’s income.
FACTUAL AND PROCEDURAL BACKGROUND
Christine and Kevin married in October 1992, and separated in March 2010. They have two children together, N.F., bom in April 1996, and L.F., bom in February 2001. In April 2010, Christine filed a petition for dissolution of the marriage.
In August 2010, Kevin filed an application for an order to show cause (OSC) seeking child support, spousal support and other relief. Christine filed a responsive declaration in which she requested that the court award no spousal support. In her declaration, Christine stated that Kevin had a “history of perpetrating domestic violence against [her],” and noted that in October 2006, Kevin suffered a conviction for committing a battery against her. Christine also stated that Kevin “assaulted” her in March 2010, and noted that the trial court had entered a domestic violence restraining order against Kevin in July 2010.
On October 6, 2010, the trial court held a hearing on the OSC. At the conclusion of the hearing, the trial court awarded Kevin $800 a month in temporary spousal support and awarded Christine $7 a month in temporary child support. The court mled that both awards were effective as of August 1, 2010. The court also noted that Kevin’s counsel had contended that Christine had misrepresented her income and expenses. The trial court rejected this contention, stating, “I don’t believe she misrepresented.” However, the court reserved jurisdiction with respect to whether to amend the child and spousal support awards for the months of September and October 2010 and indicated that Kevin would have the opportunity to present evidence pertaining to Christine’s income, stating: “So this is my order. I’m going to be making an order today going with [Christine’s counsel’s] income and expense representation, with a reservation to reconsider this finding on what her income is with a timeline attached to it. This is not an indefinite timeline. But I’m going to give you so much time to bring [it] back to this court, upon review of this issue of what her actual income was during this time, September, October of 2010. [f] And if you can produce discovery that you want to lodge with the court that shows [Christine’s counsel’s] representations were inaccurate, incomplete, and not satisfactory in that regard, then I will retroactively amend my order of today to give your client those benefits.” The court stated that Kevin’s counsel had until January 4, 2011, to file additional evidence demonstrating that Christine’s income had been higher during the months of September and October 2010 than represented in her income and expense declaration. The court also directed Kevin’s counsel to prepare a final order after hearing.
On February 10, Kevin filed an application for an OSC to modify the existing child and spousal support awards. In his application, Kevin stated that his request was based on the fact that he had lost his job on January 25.
The court held a hearing on March 23. At the outset of the hearing, the trial court noted that at the October 6 hearing, it had “reserved over a determination of [Christine’s] income for the time period of October and September 2010.” However, the trial court stated that it now believed it did not have jurisdiction to consider this issue in light of this court’s January 2011 decision in Gruen. The court reasoned, “[M]y read of [Gruen] is that once an order is entered, you cannot modify it or do any retroactive modification. You have to file a new OSC.” The court indicated that it would permit the parties to file briefs addressing the effect, if any, of Gruen on whether the court could amend the October 2010 child and spousal support awards.
Also at the March 23 hearing, the court considered Kevin’s February 2011 OSC to modify the existing child support and spousal support awards. The court stated that it would increase the spousal support award to $1,100 a month effective April 1, on an interim basis, in light of Kevin’s job loss, and further stated that it would not make any changes to its prior child support award. The court specified that the spousal support award was “a temporary interim order,” pending a further hearing on Kevin’s OSC to be held on June 1.
In May 2011, Christine filed a responsive declaration to Kevin’s February 2011 OSC. In her declaration, Christine requested that spousal support be set at $0. In support of her request, Christine stated, “This marriage ended after years of domestic violence . . . .” Christine added, “The spousal support merely enables [Kevin] to continue to harass me and punish me.”
On June 1, the trial court continued the hearing on Kevin’s February 2011 OSC and entered a minute order that states, “Parties to address applicability of [Family Code section] 4325 factors[.] All issues from March hearing to be addressed . . . .”
“RE: COURT RESERVES OVER [CHRISTINE’S] INCOME DETERMINATION
“4. The court reserves over the determination of [Christine’s] income and findings as of the hearing of October 6, 2010 ... for a period of 90 day[s] or January 4, 2011.
“5. [Kevin’s] counsel has until January 4, 2011 to appear ex parte to calendar a review hearing from the court to address the court’s reservation over [Christine’s] income and court findings regarding [the] same.”
On June 28, the court held a hearing. At the hearing, the court heard argument on the effect of Gruen on this case. After hearing argument, the court ruled that under Gruen, it lacked jurisdiction to “go back” and reassess Christine’s income for the period of September and October 2010. The court further stated, “So, I’m not going to go back and re-address her income variations, if they do exist, for that time period.”
With respect to Kevin’s February 2011 request to modify the support awards in light of the loss of his job, the court reduced Christine’s child support award from $7 a month to $6, effective July 1. With respect to spousal support, the court stated that it had asked the parties to address the effect of section 4325 on this case. After hearing argument from both counsel concerning this issue, the court stated that it would take the issue under submission and would draft a written order concerning spousal support.
On June 30, the court entered a written order terminating temporary spousal support, effective the following day, July 1. In its order, the court took judicial notice of several case files that documented the domestic violence that Kevin had inflicted on Christine throughout their relationship. The court summarized that history as follows.
The trial court also noted that Kevin had not provided any facts that were not known at the time of the July 2010 hearing and that “no additional facts were presented to rebut the presumption set forth in [section] 4325.” The court continued: “Therefore, the Court finds that [Kevin] suffered the criminal conviction for an act of domestic violence against his spouse within [five] years prior to the filing of the dissolution. That [Kevin] was again physically violent and abusive towards his spouse, [Christine,] [seven] months after the expiration of the criminal protective order. That he has failed to rebut the presumption as stated in [section 4325]. The court denies the request to award any temporary spousal support. The support is hereby set at zero, effective July 1, 2011.”
On July 8, Kevin filed a motion to reconsider or vacate the court’s June 28 and June 30 orders. The trial court denied Kevin’s motion that same day.
Kevin filed a timely notice of appeal from the court’s June 6, June 28, June 30, and July 8, 2011 orders.
III.
DISCUSSION
A. The trial court did not abuse its discretion in terminating Kevin’s spousal support award pursuant to section 4325 based on his domestic violence conviction
Kevin claims that the trial court erred in terminating the spousal support award because there were no changed circumstances that warranted the termination.
a. Temporary spousal support awards and domestic violence
“Pending a marriage dissolution ... the court . . . may order either spouse to pay ‘any amount that is necessary’ for the other spouse’s support, consistent with the requirements of sections 4320, subdivisions (i) and (m), and 4325. (§ 3600.)”
Section 4325 provides:
“(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.
“(b) The court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
*1068 “(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.”
In Cauley, supra, 138 Cal.App.4th at pages 1106-1107, the Court of Appeal held that the strong public policy against domestic violence embodied in section 4325 rendered unenforceable a provision in a marital settlement agreement that precluded modification or termination of the spousal support provided for in the agreement. The Cauley court reasoned in part: “Though there is a strong public policy in favor of enforcing the spousal support provisions of the parties’ settlement agreement and appellant would forfeit a substantial amount of spousal support if there were no enforcement, the parties could not have reasonably expected that respondent would finance his own abuse by appellant. Balanced against these factors, we note that there is a significant public policy against domestic violence. As was noted in the analysis from the Assembly Judiciary Committee, ‘granting spousal support to a convicted abuser is unconscionable and constitutes unjust enrichment. . . . [S]pousal support orders in such domestic violence cases potentially force victims of abuse to remain dangerously entangled in the abuser’s web of violence and intimidation.’ (Assem. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 1221 (2001-2002 Reg. Sess.) as amended Aug. 23, 2001, p. 3.) Refusal to enforce the spousal support provision will further this policy against domestic violence, because appellant will have fewer financial resources to continue her harassment of respondent.” (Cauley, supra, at p. 1106.)
b. The changed circumstances rule
“ ‘As a general rule, courts will not revise a child support order unless there has been a “material change of circumstances.” . . .’ [Citation.] The majority view is that the same general rule applies to temporary spousal support. [Citation.]” (Gruen, supra,
“[T]he reason for the change of circumstances rule is to preclude relitigation of the same facts.” (In re Marriage of Baker (1992)
One rationale for applying the changed circumstances rule to temporary spousal support orders is that such orders “share the ‘finality’ attribute of a spousal support judgment in that they are immediately appealable as ‘collateral final orders.’ ” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2012) f 17:139, p. 17-35 (rev. # 1, 2011) (hereafter Hogoboom & King); see Murray, supra,
The changed circumstances rule is not to be applied mechanistically or without exception. (See Baker, supra,
For example, in In re Marriage of Stanton (2010)
On appeal, the San Diego County Department of Child Support Services (the Department), acting as an intervener to defend the trial court’s orders, contended that this court should affirm the orders on the “sole ground [the
2. Application
At the outset, we assume for purposes of this decision that the changed circumstances rule generally applies to temporary spousal support orders, notwithstanding the conflicting case law on this issue. (See Gruen, supra,
To begin with, it is undisputed that Kevin suffered a qualifying domestic violence conviction pursuant to section 4325, and that there is no indication in the record that the trial court considered section 4325 at any time prior to June 1, 2011, when the court asked the parties to be prepared to address the applicability of the statute at the next hearing. Further, it is clear from the trial court’s June 30, 2011 order that, if the court had considered section 4325 at the October 2010 hearing, it would have found the statutory presumption unrebutted, and would have refused to award Kevin any temporary spousal support.
In addition, the circumstance upon which the trial court terminated temporary spousal support, i.e., Kevin’s domestic violence conviction, is one that the Legislature has identified in section 4325 as warranting special attention. The Cauley court summarized the public policy underlying the statute by stating, “Section 4325 embodies a legislative determination that victims of domestic violence not be required to finance their own abuse.” (Cauley; supra,
As noted above, the chief reason for the changed circumstances rule is to “preclude relitigation of the same facts.” (Baker, supra,
We reject Kevin’s primary argument for applying the changed circumstances rule in this case, namely, that “even if the trial court had not considered the domestic violence . . . when it made the October 6, 2010 order, Christine could have appealed the order, but she did not.” While some courts have suggested that the fact that temporary spousal support orders are appealable supports the conclusion that the changed circumstances rule should apply to such orders (Stanton, supra,
Finally, Kevin argues that the trial court’s “sudden termination” of temporary spousal support constituted an abuse of discretion because it upset his settled expectations that he would receive the amount that the court had previously ordered. We acknowledge that courts have occasionally referred to a reliance-based justification for the changed circumstances rule. (See Smith, supra,
Accordingly, we conclude that the trial court did not abuse its discretion in terminating Kevin’s temporary spousal support award.
B. The trial court erred in concluding that it was precluded from amending the original child and spousal support awards, under Gruen
Kevin contends that the trial court erred in concluding at the June 28 hearing that it lacked jurisdiction to reconsider Christine’s income during the months of September and October 2010 for purposes of awarding pendente lite child and spousal support. Specifically, Kevin maintains that the trial court erred in concluding that Gruen precluded it from reconsidering Christine’s income for these months because, unlike in Gruen, the trial court in this case specifically reserved jurisdiction to make such a determination. Kevin’s contention raises a question of law, which we review de novo. (Gruen, supra,
1. Governing law
In Gruen, supra,
In concluding that the trial court had erred in retroactively modifying its August 1, 2008 order, the Gruen court noted that the August 1 order was
The Gruen court also concluded that even prospective modification of the order was improper under the circumstances of that case, stating, “[E]ven to the extent the modifications of the August 1, 2008 order were prospective, they exceeded the court’s jurisdiction since they were not based on any pending motion or OSC for modification.” (Gruen, supra,
2. Application
Gruen is premised on two basic principles, neither of which precludes amendment of the trial court’s original spousal support award in this case. The original support award at issue in Gruen was “final” and “directly appealable.” (Gruen, supra,
In contrast, in this case, the trial court expressly reserved jurisdiction to amend its original support awards as to September and October 2010 based on further consideration of evidence pertaining to Christine’s income. Thus, unlike in Gruen, in the present case, the parties’ clear expectation was that the original support awards were not final as to these months. (Cf. Gruen, supra,
In addition, the Gruen court concluded that the trial court lacked jurisdiction to modify the original support order at issue in that case because the husband had taken his original OSC off calendar and there was no pending motion to modify the support order. (Gruen, supra,
Notwithstanding the trial court’s error in concluding that it lacked jurisdiction to amend the support awards for the months of September and October 2010, it is clear that any such error was harmless with respect to spousal support. We concluded in part III.A., ante, that the trial court’s order terminating spousal support made clear that the court would not have awarded Kevin any spousal support if the court had considered section 4325 at the October 2010 hearing as required, and that the changed circumstances rule did not prohibit the court from subsequently terminating spousal support based on the court’s belated consideration of the statute. In this part, we concluded that the trial court’s original spousal support award was not final with respect to the amounts of spousal support to be awarded for the months of September and October 2010. Under these circumstances, there is no basis for concluding that the trial court would (or even could) have exercised its discretion to award additional spousal support beyond that which it awarded originally in October 2010 without due consideration of section 4325. Accordingly, we conclude that the trial court committed harmless error in determining that Gruen precluded it from amending the original spousal support order to award Kevin additional temporary spousal support.
IV.
DISPOSITION
The trial court’s June 30, 2011 order terminating spousal support effective July 1, 2011 is affirmed. The trial court’s June 28, 2011 order is reversed insofar as the court concluded that it lacked jurisdiction to amend the pendente lite child support award for September and October 2010. The court may consider on remand whether to amend the child support award for September and October 2010 based on Kevin’s presentation of additional evidence pertaining to Christine’s income. Each party to bear his or her own costs on appeal.
Huffman, Acting P. J., and Irion, J., concurred.
Appellant’s petition for review by the Supreme Court was denied December 19, 2012, S206560.
Notes
Unless otherwise specified, all subsequent statutory references are to the Family Code. Generally speaking, section 4325 establishes “a rebuttable presumption that an award of spousal support not be made to a spouse who has been convicted of intraspousal domestic violence.” (In re Marriage of Cauley (2006)
The changed circumstances rule is a principle of family law that provides that courts generally will not revise a prior order absent a material change of circumstances. (Gruen, supra,
Kevin failed to include Christine’s declaration in the record on appeal. On our own motion, we order that the record on appeal be augmented with the superior court file. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
These files are not contained in the appellate record. However, Kevin does not dispute the trial court’s summary of their contents.
Penal Code section 242 defines the crime of battery, and Penal Code section 243 specifies the punishment for that crime.
Kevin’s claims on appeal focus on the court’s June 30 order terminating spousal support and the court’s June 28 order concluding that it lacked jurisdiction to amend the child and spousal support awards for the months of September and October 2010.
Kevin also contends that the trial court lacked jurisdiction to terminate the spousal support award on June 30, 2011, because there “was no pending OSC” and “[n]either party filed a new OSC or motion after the March 23, 2011 order.” We reject this claim. As noted in part II., ante,
Kevin also contends that the trial court abused its discretion in declining to modify the child support award in light of the January 25, 2011 termination of his employment. However, as noted in part II., ante, on June 28, 2011, the trial court did modify the child support award in light of Kevin’s job loss, by reducing Christine’s child support award from $7 a month to $6, effective July 1. To the extent that Kevin contends that the court should have reduced his child support obligation at the March 23 hearing, he fails to present any argument that the court was required to implement such a de minimis change on an interim basis prior to the continued hearing on Kevin’s February 2011 OSC to modify the child and spousal support awards in June 2011.
In 2001, the Legislature amended section 3600 to require that a trial court consider any documented history of domestic violence when making a temporary spousal support award. (In re Marriage of MacManus (2010)
This is clear from the fact that the court’s June 30, 2011 order terminating spousal support was based on the same set of facts as existed as of the time of the October 2010 hearing awarding such support. The court terminated spousal support based on Kevin’s 2006 battery conviction and the fact that “no additional facts were presented to rebut the presumption set forth in [section 4325].” The court also stated, “[Kevin] has not provided any information that was not already known and considered at the time of [the July 2010 domestic violence temporary restraining order] trial.”
Subdivisions (i) and (m) of section 4320 and section 4325 all pertain to domestic violence. (See pt. m.A.l., ante.)
Kevin states in his brief that the section 4325 issue “was raised by the court without any party mentioning it.”
The trial court directed Kevin’s counsel to prepare an order after the October 6, 2010 hearing, and the minute order from the October 6 hearing expressly states as much. The trial court entered the order after the October 6 hearing, on June 6, 2011. Under these circumstances, it is clear that the October 6, 2010 minute order was not appealable. (See County of Alameda v. Johnson (1994)
The June 6 order constituted a final and appealable temporary spousal support order (see In re Marriage of Skelley (1976)
We recognize that in light of the likely de minimis nature of any potential adjustment in Kevin’s child support obligations for September and October 2010 (as noted above, Christine was originally awarded just $7 a month in child support for these months), Kevin may choose not to pursue this matter further. In that event, the trial court shall enter a final order stating that Christine is to be awarded $7 a month for the months of September and October 2010.