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New Case on Putative Spouses, Fiduciary Duties, Spousal Support, and “Documented Evidence” of Domestic Violence


Just before the start of 2024, California’s Court of Appeal issued a new family law opinion regarding many different things including (1) the rights of a putative—i.e., not legal—spouse and (2) consideration of evidence regarding domestic violence when setting a spousal support order. (See Marriage of Gilbert-Valencia and McEachen (2024) 2024 DJDAR 132.)

In this case, the parties obtained a marriage certificate in 2008 despite the fact that husband (“Daniel”) had not finalized his divorce with his previous spouse until 2011. The “new” wife (“Kate”) was unaware Daniel was still married to his previous spouse. However, after Daniel finalized his divorce from the previous spouse, Kate and Daniel had another ceremony in July 2011, under the guise that Daniel wanted a second ceremony so that he could change his last name. Thus, from the initial invalid marriage in 2008 until the second ceremony in July 2011, Kate believed she was legally married to Daniel, and therefore, she was Daniel’s “putative spouse” for purposes of dividing the parties’ property.

The timeframe where Kate was Daniel’s putative spouse is significant to this case, because in 2009 Daniel purchased a house under his own name as an unmarried man with a Veterans Affairs home loan. Unrelated to the holding of this case, Kate agreed to purchase the house in this fashion because she believed the purchase otherwise (given the times) could lead to Daniel being discharged from the Air Force once the Air Force discovered Daniel, as a transgender man, had married a woman, thereby jeopardizing the parties’ economic future.

The parties separated and Daniel filed his divorce petition in 2016, and over Kate’s protestations (and despite the family court’s automatic temporary restraining orders (“ATROS”)), sold the house in May 2017 and used the proceeds from the sale for his personal use.

In early 2018, Daniel stipulated to plead no contest to four counts of contempt regarding his initial declaration of disclosure required in family law cases and failure to obey a deposition subpoena. However, Kate agreed to waive all other counts of contempt she alleged (or could have alleged), including Daniel’s failure to abide by the trial court regarding the proceeds from the sale of the house he unilaterally sold in 2017 in violation of the ATROS.

In October 2019, the trial court ultimately concluded that Kate was Daniel’s putative spouse, and so, the house was quasi-marital property subject to division by the family court. The trial court further ruled that Daniel sold the home in violation of his fiduciary duty to his putative spouse, Kate, and in violation of the ATROS, and thus, awarded 100 percent of the proceeds from the sale to Kate due to those breaches pursuant to Family Code section 1101, subdivision (h). The trial court also ordered Daniel to pay spousal support to Kate.

Daniel appealed the rulings, contending first, that the trial court should not have awarded 100 percent of the house proceeds to Kate because his previous stipulation, where he plead no contest to the to four counts of contempt (and all other charges or possible charges were waived by Kate), prevented him from being punished again for his breach of fiduciary duty regarding the house and because the trial court made no findings of oppression, fraud, or malice by Daniel. Daniel also appealed the spousal support award, arguing the trial court failed to consider evidence of Kate’s domestic violence against Daniel when ordering Daniel to pay spousal support to Kate.

As for Daniel’s contention that his previous stipulation with Kate and plea of no contest to contempt prevented the trial court from punishing him again regarding the sale of the home, Daniel argued that the stipulation resolved wife’s contempt charges against him, and Kate’s waiver of the pending or possible contempt charges gave him a “clean slate” on all prior acts. However, the appellate court disagreed, reasoning that the stipulation the parties entered into made no mention of division of property and only intended to give Daniel a “fresh start” as to matters of contempt, which is a type of criminal proceeding.

As for Daniel’s contention that the trial court incorrectly awarded Kate 100 percent of the house proceeds because Daniel breached his fiduciary duty in selling the property, the justices sided with Daniel, explaining the law in this area as it pertains to a putative spouse. The justices reasoned: (1) a party to an invalid marriage, who believed in good faith that the marriage was valid, is a putative spouse under Family Code section 2251, subdivision (a)(1); and (2) property acquired during the putative marriage is “quasi-marital property”, and thus, subject to division by the trial court as if the putative spouse had been a legal spouse had there been a valid marriage. Up to this point, the justices agreed with the trial court’s ruling.

The justices explained that Kate was entitled to the division of the home as if she were a legal spouse. The justices further explained that community property must be divided equally (unless the parties agree otherwise) unless the trial court finds good cause that the interest of justice requires unequal division. Further, if a breach of fiduciary duty by one spouse is oppressive, fraudulent, and/or malicious, Family Code section 1101 requires that property be divided unequally against the offending spouse. In other words, a spouse’s breach of his or her fiduciary duty to the other spouse does not prevent the family court from dividing the property 50-50, but if the offending spouse not only breaches his or her fiduciary duty but does so oppressively, fraudulently, and/or maliciously, then, and only then, the court is empowered to award 100 percent of the asset to the nonoffending spouse.

The justices sided with Daniel in his argument finding that although Daniel breached his fiduciary duty to Kate and violated the ATROS, there was no finding that Daniel’s breach or violation constituted oppression, fraud, or malice to empower the trial court to award Kate more than her 50 percent share of the proceeds from the sale of the home.

As to the spousal support issue, which Daniel also appealed, he argued that the trial court incorrectly excluded evidence (a videotape) of Kate’s domestic violence against him when weighing the factors to determine if a spousal support order should be granted, and how much a spousal support order should be.

Prior to the trial for the divorce, both parties sought competing domestic violence restraining orders (DVRO) against each other. However, Daniel dismissed his DVRO with prejudice pursuant to an agreement between the parties. Daniel’s DVRO dismissal request was later admitted into evidence at the trial for divorce with Kate’s attorney’s consent. At the trial for divorce, Daniel tried to introduce a videotape showing Kate perpetrating domestic violence against him and tried to describe Kate’s domestic violence twice while testifying. However, the trial court prevented the videotape from being introduced and sustained Kate’s attorney’s objection as to Daniel’s testimony because the trial court was “not going to have a domestic violence hearing,” which had presumably already been resolved.

In rendering its decision, the trial court acknowledged both parties filed competing DVRO requests, but that there was never a finding of abuse by either party, and no evidence was submitted for the trial court to determine who was the primary aggressor, an analysis the trial court must undergo in situations of competing DVRO requests.

However, the justices disagreed with the trial court’s approach and ruling. The justices reasoned that one of the factors to consider in setting spousal support was whether there was any “documented evidence of any history of domestic violence . . . between the parties . . ..” The justices held that “documented evidence”—for purposes of Family Code section 4320, includes video recordings—but excludes testimony—pursuant to Evidence Code section 250. So, since the trial court erred in excluding the videotape Daniel offered into evidence and failed to consider Daniel’s DVRO dismissal request, which was already admitted into evidence without objection, the trial court’s ruling on spousal support was reversible error.

Thus, the justices reversed the trial court as to its rulings (1) awarding Kate 100 percent of the proceeds from the sale of the residence and (2) the spousal support order without proper analysis regarding “documented evidence” of domestic violence. Therefore, the justices remanded the matter back to the family court to reconsider these issues.

Authored by Kevin A. Alexander II, Esq. on January 9, 2024

The post New Case on Putative Spouses, Fiduciary Duties, Spousal Support, and “Documented Evidence” of Domestic Violence appeared first on Andy Cook Law.

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