BILL ANALYSIS Ó
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