A Criminal Conviction of Domestic Violence Shall be Considered by a Divorce Court in Determining The Amount of a Spousal Support Award Order

In a dissolution proceeding, wife’s divorce lawyer requested temporary spousal support and the divorce court denied wife’s request. Husband agreed to pay guideline child support obligations but requested the divorce court not order temporary spousal support due to wife’s misdemeanor conviction for battery committed against him. Husband’s divorce lawyer outlined a history of domestic abuse by mother including nineteen police reports, five arrests, and three criminal convictions. The divorce court ordered husband to pay $14,602 per month in child support. The divorce court additionally, determined that a temporary spousal support order would be inappropriate due to the wife’s history of domestic violence. The divorce court explained that wife’s conviction for domestic violence created a rebuttable presumption that an award of spousal support would be inappropriate. The divorce court ordered husband to pay $20,000 towards wife’s attorney’s fees. Wife’s divorce attorney appealed.

The divorce court explained that a criminal conviction of an abusive spouse shall be considered in either reducing or eliminating a spousal support award. The underlying rational is to prevent abused spouses from financing their own abuse. The divorce court explained that if a spouse has been convicted of domestic abuse against the other spouse within five years of the proceeding there is a rebuttable presumption that spousal support should not be awarded. The wife contested the divorce court’s decision because she had pleaded nolo contendere to the misdemeanor, which the presumption was based on.

On appeal, the Court explained that a plea of nolo contendere should require the divorce court to examine the case on a specific fact basis, since there are many reasons for an individual to plea nolo contendere. However, the Court determined that the divorce court had appropriately applied the presumption in favor of husband. The purpose of the presumption is not to punish wife, but instead to ensure that husband will not be compelled to reward the perpetrator of abuse for her behavior. Thus the Court held that a plea of nolo contender to misdemeanor domestic violence, made within five years of the divorce, may be used as the basis for denying spousal support awards. The Court found that mother failed to rebut the presumption and consequently held in favor of husband.

In re Marriage Priem (2013) 214 Cal. App. 4th 505