In re the Marriage of ANAND and MARY B. KELKAR. ANAND KELKAR, Respondent, v. MARY B. KELKAR, Appellant.
No. B247085
Second Dist., Div. One.
Sept. 10, 2014
229 Cal. App. 4th 833
Christopher Campbell for Appellant.
Mark H. Rademacher for Respondent.
MILLER, J.*—Family Code section 4325 establishes a rebuttable presumption against an award of spousal support to a spouse who has been convicted of an act of domestic violence against the other spouse.1 Here we must determine whether the family court erred in terminating spousal support to a wife where the wife pleaded no contest to and was convicted of an act of domestic violence before enactment of section 4325, but where the husband thereafter entered into a stipulated judgment providing for spousal support to the wife in ignorance of section 4325. Mary Kelkar (Mary) contends her ex-husband, Anand Kelkar (Anand), cannot assert the presumption of section 4325, arguing section 4325 should not be applied retroactively, the doctrine of res judicata prevents modification of the support provisions of the stipulated judgment, and Anand is barred from attacking the stipulated judgment by the doctrines of waiver and equitable estoppel.2 We conclude section 4325 must be given retroactive application, the stipulated judgment was modifiable, and the doctrines of res judicata, waiver, and equitable estoppel did not bar application of the presumption of section 4325. We affirm the family court‘s order terminating Mary‘s spousal support.
BACKGROUND
Anand alleges that, during their long marriage, his wife Mary physically and verbally abused him on approximately 200 occasions. Allegedly these included dozens of occasions on which Mary brandished a knife, and other times when she punched him, injured him, and attempted to push him down the stairs. In 2000, Mary awakened Anand by yelling, brandishing two 9-inch kitchen knives at him, and stabbing the water bed upon which he was lying, within inches of his body. As a result of the ensuing struggle for the knives, Anand was cut. As a consequence of the water bed incident, in 2000, Mary pleaded no contest to unlawfully using a deadly weapon in a quarrel in violation of
Section 4325 became effective January 1, 2002. (
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Although Anand complied with the terms of the stipulated judgment, Mary thereafter sent hundreds of profane and vulgar text messages to him and threatened and harassed his fiancée with disrespectful and crude phone calls and messages. His fiancée obtained a restraining order against Mary in 2007, which Mary subsequently violated. Anand obtained a restraining order against Mary in 2009, which Mary also violated.
On June 1, 2011, Mary filed an order to show cause, seeking an increase in spousal support. On September 19, 2011, Anand filed a responsive declaration, requesting termination or reduction of spousal support on the basis of section 4325, of which he had been unaware at the time he entered into the stipulated judgment.
Mary underwent medical and psychological examinations to determine whether she was disabled. The examinations resulted in findings Mary was not disabled, could return to full-time employment after receiving certain treatment for her bipolar disorder, and would benefit from returning to work.
Mary‘s former attorney in the criminal matter filed a declaration saying Anand had submitted written declarations to the police and to the trial court to the effect that Mary had not tried to hurt him during the water bed incident and that Anand had insisted he was never in danger during the incident. He explained the attorney files and court records had become unavailable in the intervening decade. Anand responded by filing a declaration denying he had signed a declaration in the criminal action, denying having stated Mary did not intend to harm him, indicating he believed Mary had intended to harm him, and asserting that, if he had not moved quickly to get away when Mary stabbed the water bed, he would have suffered severe injury.
This appeal followed.
DISCUSSION
A. Section 4325 applies retroactively here
We review the retroactive application of a statute de novo. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183 [46 Cal.Rptr.3d 49, 138 P.3d 200] (Fellows).)
The general rule is that newly enacted
1. Section 4, subdivision (h) does not bar retroactive application of section 4325
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
Subdivision (h) of section 4 provides: “If a party shows, and the court determines, that application of a particular provision of the new law or of the old law in the manner required by this section or by the new law would substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed before the operative date, the court may, notwithstanding this section or the new law, apply either the new law or the old law to the extent reasonably necessary to mitigate the substantial interference.”
Our Supreme Court has characterized subdivision (h) of section 4 as codifying the rule of due process of law that “[e]ven in the face of specific legislative intent, retrospective application is impermissible if it ‘impairs a vested . . . right without due process of law.’ [Citation.]” (Fellows, supra, 39 Cal.4th at p. 189.)
That rule, of course, is qualified by the rule that “‘[v]ested rights . . . may be impaired “with due process of law” under many circumstances. The state‘s inherent sovereign power includes the so called “police power” right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals, and general well being of the people. The annals of constitutional law are replete with decisions approving, as constitutionally proper, the impairing of, and even the complete confiscation of, property rights when compelling public interest justified it.’ [¶] . . . [¶] ‘The constitutional question, on principle, therefore, would seem to be, not whether a vested right is impaired by a marital property law change, but whether such a change reasonably could be believed to be sufficiently necessary to the public welfare as to justify the impairment.’ [Citation.]” (Addison v. Addison (1965) 62 Cal.2d 558, 566 [43 Cal.Rptr. 97, 399 P.2d 897] (Addison).)
In Fellows, our Supreme Court reviewed the two groups of factors that must be analyzed to determine whether retroactive application of a new
a. The significance of the state interest served by the new law and the importance of the retroactive application of the law to its effectuation
In Fellows, a new section of the
The court in Fellows relied on In re Marriage of Bouquet (1976) 16 Cal.3d 583 [128 Cal.Rptr. 427, 546 P.2d 1371] (Bouquet), distinguished in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1212 [246 Cal.Rptr. 629, 753 P.2d 585]. In turn, Bouquet relied upon Addison, supra, 62 Cal.2d 558, both of which are instructive here. In Addison, the court addressed a change in the family law which converted certain property previously treated as the husband‘s sole property to community property. (Addison, at p. 564.) The court applied the new law retroactively, in part because providing a spouse access to such funds was an important state interest. (Id. at p. 567.) The court in Bouquet commented on the Addison holding as follows: “The application of the legislation to property acquired before its effective date clearly impaired the husband‘s vested property rights; prior to the enactment of the legislation he had been the sole owner of certain property and afterwards the property belonged to the community. Nevertheless, we deemed the retroactive application of the legislation a proper exercise of the police power. The state‘s paramount interest in the equitable distribution of marital property upon dissolution of the marriage, we concluded, justified the impairment of the husband‘s vested property rights. [Citation.]” (Bouquet, supra, 16 Cal.3d at p. 593, fn. omitted.)
The state‘s interest in implementing section 4325 was discussed in In re Marriage of Cauley (2006) 138 Cal.App.4th 1100 [41 Cal.Rptr.3d 902] (Cauley). The court emphasized the importance of the public policy against domestic violence as follows: “[W]e 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, 138 Cal.App.4th at p. 1106.) The court also noted an apparent policy reason for the new statute: Enforcement of a support agreement requiring payment of spousal support to a perpetrator of domestic violence unfairly requires the abused spouse to “finance his own abuse.” (Ibid.; accord, In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1062, fn. 1, 1068 [147 Cal.Rptr.3d 453] (Freitas); Freitas, at p. 1071 [quoting Cauley as to strong public policy behind “‘legislative determination that victims of domestic violence not be required to finance
Mary‘s due process argument that application of section 4325 will deprive her of vested rights she obtained via the stipulated judgment requires us to weigh the importance of any policy favoring the finality of the stipulated judgment against the importance of the policy that “‘granting spousal support to a convicted abuser is unconscionable and constitutes unjust enrichment‘” and potentially forces “‘victims of abuse to remain dangerously entangled in the abuser‘s web of violence and intimidation.‘” (Cauley, supra, 138 Cal.App.4th at p. 1106.) We have no difficulty in concluding that enforcing this stipulated judgment, which provides for an “unconscionable” result that “‘unjust[ly] enrich[es]‘” the abuser at the expense of the victim and entangles the victim in the abuser‘s “‘web of violence‘” (ibid.), is not as important as enforcement of the state policy that seeks to prevent that precise result. As the court observed in Bouquet, the state has a “paramount interest in the equitable distribution of marital property upon dissolution of the marriage,” so that even “vested property rights” must yield to it. (Bouquet, supra, 16 Cal.3d at p. 593.) As in Fellows, Bouquet, and Addison, the state‘s interest in applying section 4325 is great and the new law seeks to cure the “rank injustice of the former law.” (Bouquet, at p. 594.) There is “‘nothing unfair about’ ” relieving a victim of domestic violence of an obligation that he provide financial support to his abuser. (Fellows, supra, 39 Cal.4th at p. 190.) Indeed, the state has “a very substantial interest” in protecting such innocent persons. (Addison, supra, 62 Cal.2d at p. 567.)
Mary also argues that public policy supports enforcement of the stipulated judgment because the “parties agree that Mary is permanently disabled” and the state has an interest “in not having to support someone who is totally disabled such as Mary.” Mary‘s premise is false, as the record establishes that two experts rendered opinions to the effect that Mary is not disabled and that an early return to work will benefit her.
Mary‘s argument that section 4325 “substantially changed the legal consequences of Mary‘s 2000 nolo plea” also lacks merit. The cases speak of due process as the loss of a “‘vested . . . right.‘” (Fellows, supra, 39 Cal.4th at p. 189; see Addison, supra, 62 Cal.2d at p. 566.) Mary has cited no authority for the proposition that she had a vested right to plead no contest to an act of domestic violence with impunity. In fact, at the time of her plea, applicable law directed the family court to consider “documented evidence of a history of domestic violence” before ordering spousal support. (
Mary‘s reliance on In re Marriage of Howell (2011) 195 Cal.App.4th 1062, 1071 [126 Cal.Rptr.3d 539], quoting Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 [44 Cal.Rptr.3d 223, 135 P.3d 637], for the broad proposition that “‘a statute might not apply retroactively when it substantially changes the legal consequences of past actions, or upsets expectations based in prior law‘” is not persuasive in light of the case law specifically addressing retroactivity and section 4325. Indeed, the statement upon which Mary relies is dicta, as the court in Howell found the Legislature did not intend to allow retroactive enforcement of the law discussed there (Howell, at p. 1074), and the court in Carter found the statute there merely clarified existing law, so that retroactivity was not at issue (Carter, at p. 930).
Section 4, subdivision (h) does not bar retroactive application of section 4325.
b. The extent of reliance on the former law
The second prong of the test the court is required to apply to determine whether an exception should be made to the general rule that
Here, Mary argues she had no notice that her plea in her criminal case “would have acted as a permanent and total bar to her receiving spousal support in the event she and Anand divorced.” Mary overstates her case, as
In the same vein, Mary appears to argue that “her willingness to enter” a plea of no contest “would have been significantly impacted” if section 4325 had existed at the time of the plea. Mary has not asserted that her willingness to enter a plea of no contest actually was impacted or brought to our attention any declaration stating that it was.
In addition, Mary argues that Anand was not in danger or fearful during the water bed incident, and consequently, she was not guilty of wielding the knives in a “threatening manner.” This argument is unsound. Her plea was to an offense whose elements included exhibiting a weapon “in a . . . threatening manner.” (
Mary further claims she relied to her detriment upon the stipulated judgment for ongoing support. The family court disagreed and substantial evidence supported its determination.
Mary‘s alleged reliance is insufficient to preclude retroactive application of section 4325.
2. Section 4, subdivision (f) does not bar retroactive application of section 4325
Section 4, subdivision (f) provides: “No person is liable for an action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and the person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences.”
Without citing supporting authority, Mary argues, “the term ‘liable’ . . . means that a new law shall not subject a person to significantly and substantively different consequences than would have been the case prior to the enactment of the law” and contends without supporting factual declarations that she might not have pleaded no contest to violating
Section 4, subdivision (f) does not bar retroactive application of section 4325.
B. The stipulated judgment was modifiable
We interpret a written instrument de novo unless there is an issue of fact or credibility raised by extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839].) De novo review is appropriate here. The family court‘s decision to terminate spousal support is reviewed for abuse of discretion. (Freitas, supra, 209 Cal.App.4th at p. 1073.)
Mary‘s argument that the stipulated judgment was not modifiable fails because the public policy promoted by section 4325 renders even expressly nonmodifiable stipulated judgments modifiable. In Cauley, the husband and wife signed a stipulated judgment which expressly declared it was not modifiable, unless the wife cohabitated with a partner or the husband suffered loss of income due to disability or job loss. (Cauley, supra, 138 Cal.App.4th at p. 1103.) Following the stipulated judgment, the wife engaged in extreme harassment of the husband and ultimately pleaded guilty to felony aggravated stalking. The Court of Appeal determined that, even though the stipulated judgment contained specific language prohibiting modification,
Freitas also affirms the propriety of modifying a judgment, where, as here, the order terminating spousal support postdates the domestic violence conviction but section 4325 has not been considered previously. (Freitas, supra, 209 Cal.App.4th at p. 1070.) The court there rejected the husband‘s argument that the order of spousal support could not be modified absent a material change of circumstances occurring after the support order. The court noted the husband undisputedly had suffered a qualifying domestic violence conviction in 2006 and the family court had not considered section 4325 at the time it ordered temporary spousal support in 2010. (Freitas, at p. 1071.)3
Waiver is an issue of fact tested on appeal under the substantial evidence standard. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1052-1053 [68 Cal.Rptr.2d 758, 946 P.2d 427], abrogated on other grounds as stated in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668 [85 Cal.Rptr.2d 292, 976 P.2d 843].) The court here found that no waiver had occurred. Therefore, we must affirm unless the decision is not supported by substantial evidence.
The essence of Mary‘s waiver argument is that Anand impliedly waived his right to assert a right he did not know about by failing to assert it. In other words, she claims that, by paying spousal support for 10 years, Anand gave up the right to stop paying when he learned he could. Mary also argues that the right was waived because Anand had an attorney who could have informed him of his rights but failed to do so.
In support of these arguments, Mary cites authority that finds waiver when a party‘s conduct “‘is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.‘” (Italics added.) “‘All case law on the subject of waiver is unequivocal: “Waiver always rests upon intent.“‘” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].) We fail to see how anyone could reasonably believe Anand intended to relinquish a right he did not know about by failing to assert it.
The fact that Anand‘s lawyer failed to advise him of the existence of section 4325 does nothing to show Anand intended to waive the right to assert it.
D. Anand was not equitably estopped to assert the presumption of section 4325
Where, as here, the facts are disputed, we test determinations as to equitable estoppel based on the substantial evidence standard. (E.g., City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 483-484 [81 Cal.Rptr.3d 72].)
“Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 [61 Cal.Rptr. 661, 431 P.2d 245].) The family court found as a matter of fact that Mary was not prejudiced by any delay by Anand in asserting his rights. Substantial evidence supported the court‘s finding. Moreover, a party‘s reliance is required to be reasonable. (E.g., City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 489 [91 Cal.Rptr. 23, 476 P.2d 423].) As we have concluded previously, if there had been reliance by Mary, it would have been unreasonable, as the husband‘s was in Fellows, supra, 39 Cal.4th 179. Therefore, Mary has failed to establish the elements of equitable estoppel.
Mary also contends Anand is equitably estopped to assert the presumption of section 4325, as it would be “unconscionable” to allow him to do so. As our discussion of the state interest in enforcing section 4325 reveals, Anand is the party viewed by the state‘s public policy as having been subjected to an unfair and unconscionable burden in paying support to an abusive spouse. The equities therefore do not favor Mary over Anand.
Nor does the fact that Anand was represented by counsel who failed to tell him about section 4325 diminish the equities favoring Anand.
Mary‘s equitable estoppel argument is untenable.
The family court‘s August 29, 2012 order terminating Mary Kelkar‘s spousal support effective September 1, 2012, is affirmed. Anand Kelkar is to recover his costs on appeal.
Rothschild, P. J., and Johnson, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied November 25, 2014, S222045.