Modification of Spousal and Child Support Orders During Pending Divorce Litigation Reviewed by California Appellate Court

January 10, 2013
By Thomas M. Huguenor on January 10, 2013 2:58 PM |

file0001373070796.jpgA husband appealed pendente lite orders terminating spousal support and declining to modify child support in a divorce matter. In re Marriage of Freitas, No. D060281, slip op. (Cal. App. 4th, Oct. 3, 2012). The trial court entered orders awarding child support to the wife and spousal support to the husband. It later declined to modify the child support order, holding that a recent precedent decision prohibited it from doing so, but it terminated the wife's child support obligation, citing the husband's prior conviction for domestic violence. On appeal, the husband argued that both decisions constituted error. The appellate court affirmed the spousal support order and remanded the child support order.

Christine and Kevin Freitas separated in March 2010 after more than eighteen years of marriage. The couple have two children, who were thirteen and nine at the time of the separation. The wife filed for divorce in April 2010. The husband filed an order to show cause (OSC) that August requesting spousal support and child support. The wife opposed a spousal support order, informing the court that the husband had an October 2006 conviction for battery against her, and that in July 2010, the court entered a domestic violence restraining order against the husband. After a hearing on the OSC in October 2010, the court awarded the husband $800 per month in spousal support while the divorce was pending, and awarded the wife $7 per month in child support. The court reserved jurisdiction to modify the support awards for September and October, giving the husband until January 4, 2011 to present additional evidence of her income.

After the trial court extended that deadline, the husband filed an OSC in February 2011 to modify the support awards. The court held a hearing in March 2011. It held that it did not have jurisdiction to modify the child support order retroactively based on a January 2011 decision, In re Marriage of Gruen, 191 Cal.App.4th 627 (2011), which held that a new OSC or motion to modify is required to retroactively modify a temporary support order. The court also increased the wife’s spousal support obligation to $1,100 per month. The wife later filed a response to the husband’s OSC, again citing the history of domestic violence. After a June 2011 hearing, the court terminated the spousal maintenance award.

The husband appealed both the termination of the spousal support award and the finding that the court lacked jurisdiction to modify the child support award. Regarding spousal support, the husband argued that the court erred because there were no “changed circumstances” meriting modification of the order, and the court already knew of the domestic violence when it first entered the order. The appellate court found that the trial court failed to consider California Family Code § 4325, which allows a court to consider domestic violence when deciding on spousal support, at the October 2010 hearing, but that this did not preclude it from applying that statute in June 2011. It therefore found no error.

The appellate court agreed with the husband’s argument that the trial court erred in finding that Gruen precluded it from amending the support orders, but it held that the error was harmless as to the spousal support order. It remanded the question of whether to amend the child support order retroactively based on new income evidence.

Thomas Huguenor is a divorce attorney certified by the State of California. For more than 35 years, he has represented people in San Diego finding their way through the California divorce process. Contact us today online or at (858) 458-9500 to schedule a free and confidential consultation.

More Blog Posts:

Ex-Wife's Motion to Extend Spousal Support Denied by Court, Finding Lack of "Reasonable Efforts" to Become "Self-Supporting," San Diego Divorce Attorney Blog, October 4, 2012

California Bill Would Prevent Convicted Abusers from Receiving Spousal Maintenance, San Diego Divorce Attorney Blog, March 22, 2012

California Woman Ordered to Pay Spousal Support to Abusive Ex, San Diego Divorce Attorney Blog, November 17, 2011

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