A Trial Court Can Make Past Spousal Support Awards on Equitable Grounds

Wife filed for divorce, and applied for a restraining order after an incident of domestic violence by her husband against her. The parties stipulated to terms of the order, including that husband would stay away from wife and their three daughters, and that he would attend counseling and a batterer’s program. Husband agreed to pay $1,145 monthly in child support as well. Criminal charges were filed against husband due to the same domestic violence incident, and the criminal court issued a protective order. Husband violated that order and plead guilty to felony spousal abuse charges. After five months in prison husband was released, wherein he and wife reconciled and lived together for just over a year. The trial court then awarded future child support payments of $377 per month. Husband’s child support arreages totaled $67,414. Settlement proceeds coming to both parties as a community asset totaled $17,437.85 per month, which went directly to a client trust account of wife’s attorney. The client trust account contained $130,950, and $20,000 was released to wife as “child support subject to reallocation by the court.” The trial court then reallocated the $20,000 as child support.  Husband appealed. He contended that there was nothing in the record which showed that the trial court considered need or ability to pay before issuing that order.

The issue was to what extent can the trial court’s consideration of a history of domestic violence influence an award of temporary spousal support. The trial court must consider and weigh all factors enumerated in Family code section 4320 when making an award of permanent spousal support, to the extend those factors are relevant to the case. Temporary spousal support orders are handled differently. Temporary support orders are subject to the trial court’s broad discretion and can be ordered in “any amount” based on the party’s needs and supporting spouse’s ability to pay. The list of factors in section 4320 includes a subdivision with language about domestic violence – subdivision (m) specifically states that the criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of spousal support. Moreover, section 4325 created a rebuttable presumption against awarding any spousal support to an abusive spouse. In terms of timing, a temporary spousal support order can be granted retroactively at least to the date of the order to show cause requesting spousal support. However, retroactive temporary support is guided by both the supporting spouse’s ability to pay and the supported spouse’s need. Thus the order should be equitable.

Here, the trial court made no findings on either wife’s need nor husband’s ability to pay. There was evidence however of husband’s incarceration, which showed an inability to pay during that time. There was also evidence that wife lost property due to lack of income to keep them going, which evidences her need. This evidence allowed the court to infer need. Introduction of domestic violence for spousal support awards is an area that actually allows evidence of fault. Thus the court of appeal affirmed the trial court – there was no abuse of discretion.

In re Marriage of MacManus (2010) 182 Cal.App.4th 330