BILL ANALYSIS Ó SB 28 Page 1 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 SB 28 Page 2 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 SB 28 Page 3 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 SB 28 Page 4 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' SB 28 Page 5 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 SB 28 Page 6 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 SB 28 Page 7 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) SB 28 Page 8 Opposition None on file Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334