BILL ANALYSIS                                                                                                                                                                                                    



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          SENATE THIRD READING


          SB  
          28 (Wieckowski)


          As Amended  May 13, 2015


          Majority vote


          SENATE VOTE:  36-0


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |10-0 |Mark Stone, Wagner,   |                    |
          |                |     |Alejo, Chau, Chiu,    |                    |
          |                |     |Gallagher,            |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |Cristina Garcia,      |                    |
          |                |     |Holden, Maienschein,  |                    |
          |                |     |O'Donnell             |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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          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  








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          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.  
          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.  


          3)Creates a rebuttable presumption against an award for  
            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.  


          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.  


          5)Prohibits an award of spousal support to a spouse who has been  
            convicted of a violent sexual felony against the other spouse,  








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            if the dissolution proceeding is filed within five years of  
            the conviction or time served, as specified.  


          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.  


          FISCAL EFFECT:  None


          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.  In 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.  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.  


          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.  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  








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          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'  
          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.  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.  Even in civil actions where a no  








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          contest plea is admissible, the party who enters the plea may be  
          permitted to contest the truth of the matters admitted by the  
          plea, to present all facts surrounding the nature of the charge,  
          and to explain why the plea was entered.  


          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 existing law.  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.




          Analysis Prepared by:                                             
                          Leora Gershenzon / JUD. / (916) 319-2334  FN:  
          0000950