BILL ANALYSIS                                                                                                                                                                                                    



                                                                      SB 28


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          Date of Hearing:   June 16, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          28 (Wieckowski) - As Amended May 13, 2015


          SENATE VOTE:   36-0


          SUBJECT:  Spousal support factors: domestic violence


          KEY ISSUE:  SHOULD A PLEA OF NO CONTEST TO A DOMESTIC VIOLENCE  
          CHARGE BE INCLUDED IN THE HISTORY OF DOMESTIC VIOLENCE THAT A  
          COURT MUST CONSIDER WHEN DECIDING WHETHER TO AWARD SPOUSAL  
          SUPPORT?


                                      SYNOPSIS


          When parties in a divorce proceeding request spousal support,  
          the court may order either spouse to pay for the support of the  
          other party for a period of time that the court considers just  
          and reasonable based on the standard of living established  
          during the marriage.  In determining the amount of support that  
          should be paid, the court is required to take into account many  
          factors, including evidence of any history of domestic violence  
          between the two parties.  In addition, there is a rebuttable  
          presumption that spousal support should not to be granted to a  
          spouse who has been convicted of domestic violence during the  
          five years preceding the date when the petition for dissolution  








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          was filed.  This non-controversial bill clarifies that a plea of  
          no contest to a domestic violence offense involving the parties  
          to a dissolution or their children is documented evidence of  
          domestic violence that a court must consider when deciding  
          whether to award spousal support.  This bill is supported by  
          domestic violence groups and the Los Angeles District Attorney's  
          Office, and has no opposition.


          SUMMARY:  Provides that a plea of nolo contendere to a domestic  
          violence offense constitutes documented evidence of domestic  
          violence that a court must consider when deciding whether to  
          order spousal support.  Specifically, this bill provides that a  
          plea of nolo contendere is included in the documented evidence  
          of any history of domestic violence between the parties or  
          perpetrated by either party against either party's child, as  
          provided, that a court must consider when deciding whether to  
          award spousal support.


          EXISTING LAW:    


           1)Allows a court to order one party to a dissolution or legal  
            separation to pay spousal support to the other party for a  
            period of time that the court determines is just and  
            reasonable, as provided.  (Family Code Section 4330.  Unless  
            stated otherwise, all further statutory references are to that  
            code.)
          2)Requires the court, when determining whether to award spousal  
            support, to consider specified factors and circumstances,  
            including a documented history of domestic violence.  In  
            addition to the specified factors, authorizes the court to  
            consider any other factors that the court determines are just  
            and equitable in determining a spousal support award.   
            (Section 4320.)


          3)Creates a rebuttable presumption against an award for  








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            temporary or permanent spousal support to a spouse convicted  
            of domestic violence against the other spouse within five  
            years of filing for dissolution of the marriage, or any time  
            thereafter.  (Section 4325.)


          4)In addition to any other remedy, prohibits a spouse who is  
            convicted of attempting to murder the other spouse, or  
            soliciting the murder of the other spouse, from receiving any  
            temporary or permanent award of spousal support, medical, life  
            or other insurance benefits or payments from the injured  
            spouse.  (Section 4324.)


          5)Prohibits an award of spousal support to a spouse who has been  
            convicted of a violent sexual felony against the other spouse,  
            if the dissolution proceeding is filed within five years of  
            the conviction or time served, as specified.  (Section  
            4324.5.) 


          6)Provides that the legal effect of a plea of nolo contendere to  
            a misdemeanor is the same as a plea of guilty and that, upon a  
            plea of nolo contendere, the court shall find the defendant  
            guilty.  Provides that the plea may not be used against the  
            defendant as an admission in any civil suit based upon or  
            growing out of the act upon which the criminal prosecution is  
            based.  (Penal Code Section 1016.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  When parties in a divorce proceeding request spousal  
          support, the court may order either spouse to pay for the  
          support of the other party for a period of time that the court  
          considers just and reasonable based on the standard of living  
          established during the marriage.  (Section 4330.)  In  








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          determining the amount of support, the court is required to take  
          many factors into consideration, including evidence of any  
          history of domestic violence between the two parties.  (Section  
          4320.)  In addition, there is a rebuttable presumption that  
          spousal support is not to be granted to a spouse who has been  
          convicted of domestic violence during the five years preceding  
          the filing of a petition for dissolution.  This bill clarifies  
          that a plea of nolo contendere (no contest) to a domestic  
          violence charge is indeed documented evidence of domestic  
          violence that the court must consider when deciding whether to  
          award either party spousal support.  


          In support of the bill, the author states: 


               Unfortunately, California statute is silent on whether  
               a nolo contendere, or "no contest," pleading  
               constitutes a criminal conviction for purposes of  
               awarding spousal support.  In an effort to clarify how  
               no contest pleas should be treated in a subsequent  
               dissolution proceeding, SB 28 ensures that a person  
               who abuses his spouse and subsequently pleads "no  
               contest" does not unjustly receive spousal support by  
               adding a pleading of nolo contendere into the factors  
               that a judge must consider before making an award for  
               spousal support.    


          Spousal Support and Domestic Violence.  In California, spousal  
          support is awardable without regard to the merits or procedural  
          posture of the case, and torts and criminal acts are dealt with  
          in their respective courts.  (See Marriage of Askmo (2000) 85  
          Cal.4th 1032.)  Courts are instead required to order spousal  
          support in an amount, and for a period of time, that the court  
          determines is just and reasonable, based on the standard of  
          living established during the marriage.  In making spousal  
          support awards, the court is required to consider, among other  
          factors, the marketable skills of each party, the parties'  








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          ability to pay spousal support, the needs of each party, the  
          assets of each party, the ability of each party to engage in  
          employment considering the interests of dependent children, and  
          any other factors that the court determines are just and  
          equitable.  Of particular relevance here, the court is also  
          required to consider documented evidence of any history of  
          domestic violence between the parties.  As a result of the  
          complexity of the factors that the court must consider and the  
          individual circumstances of the parties and families involved,  
          courts are given broad discretion in determining spousal support  
          awards.


          For the most part, spousal support is discretionary.  However,  
          existing law specifically restricts a court's ability to award  
          spousal support in a few situations.  First, when a spouse is  
          convicted of attempted murder of the other spouse, no award of  
          spousal support is available to the convicted spouse.  Second,  
          when a spouse is convicted of a violent sexual felony against  
          the other spouse, as specified, the convicted spouse is  
          prohibited from receiving spousal support.  Third, when a spouse  
          is convicted of domestic violence against the other spouse,  
          there is a presumption against the award of spousal support to  
          the convicted spouse, although the presumption may be overcome.   
          Finally, as discussed above, when ordering a spousal support  
          award, a court must consider documented history of domestic  
          violence, including but not limited to emotional distress or  
          violence, committed by one spouse against the other or by one  
          spouse against the children of the other spouse.  


          Effect of a No Contest Plea.  A plea of nolo contendere or no  
          contest is treated like a guilty plea in the criminal  
          proceedings.  (See People v. Yartz (2005) 37 Cal.4th 529.)   
          However, a no contest plea generally may not be used as an  
          admission of guilt in a subsequent civil suit based on the  
          criminal conviction.  (Penal Code Section 1016.)  Even in civil  
          actions where a no contest plea is admissible, the party who  
          enters the plea may be permitted to contest the truth of the  








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          matters admitted by the plea, to present all facts surrounding  
          the nature of the charge, and to explain why the plea was  
          entered.  (4 Witkin, Cal. Crim. Law (2014) Pretrial Section  
          292.)


          Recent Appellate Case Holds That No Contest Plea in Domestic  
          Violence Case Creates a Presumption Against Spousal Support.  A  
          recent appellate court found that a no contest plea to a  
          domestic violence offense by one spouse against the other spouse  
          within the previous five years, like a guilty plea or a  
          conviction, creates a rebuttable presumption that spousal  
          support should not be awarded to the abusive spouse.  In that  
          case, In re Marriage of Priem (2013) 214 Cal. App. 4th 505, one  
          spouse had a history of domestic violence against the other  
          spouse, including multiple protective orders and several  
          criminal convictions including a criminal conviction within the  
          previous five years to which the spouse had pleaded no contest.   
          The appellate court agreed with the trial court that the  
          conviction based on the no contest plea created a presumption  
          that spousal support would not be awarded to the abusive spouse  
          under Section 4325.  The court noted that the no contest plea  
          only created a presumption against spousal support which could  
          be rebutted by the spouse seeking support.  Thus, the convicted  
          spouse could explain to the court why he or she had pled no  
          contest to the domestic violence charge, contest the truth of  
          the matters admitted in the pleas, and, depending on that  
          explanation, overcome the presumption against spousal support.  


          This Bill Simply Requires the Courts Consider a No Contest Plea  
          When Deciding on Spousal Support.  This bill does not go quite  
          as far as In re Marriage of Priem, simply stating that a no  
          contest plea to a domestic violence offense is documented  
          evidence of domestic violence that a court must consider when  
          deciding whether to order spousal support.  Thus, this bill  
          simply clarifies that a court must consider the no contest plea,  
          but does not create a presumption against the award of spousal  
          support based upon that plea.  This ensures that courts continue  








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          to have broad discretion in deciding when to award spousal  
          support, but also ensures that courts consider relevant issues  
          when making that decision.


          ARGUMENTS IN SUPPORT:  In support of the bill, the Los Angeles  
          District Attorney's Office writes:  "We believe that a person  
          who has plead[ed] 'no contest' to domestic violence should have  
          to explain to a judge why he or she deserves spousal support in  
          later divorce proceedings, just as a person who pleaded or was  
          found guilty, of domestic violence."


          Adds the California Partnership to End Domestic Violence:  "This  
          change will protect survivors from having to pay spousal support  
          to their abusers."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Asian Americans for Community Involvement


          California Partnership to End Domestic Violence 


          Los Angeles District Attorney's Office


          Safe Alternatives to Violent Environments (SAVE)











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          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916)  
          319-2334