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In re Marriag of Ann

February 25, 2010


Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed. (Super. Ct. No. 02D010919).

The opinion of the court was delivered by: Sills, P. J.



Thomas MacManus appeals from the judgment dissolving his marriage to Teresa MacManus.*fn1 He contends the trial court abused its discretion when it reallocated back child support to back spousal support without considering Teresa's need and his ability to pay. We affirm.


In November 2002, following an incident of domestic violence, Teresa filed a petition for dissolution of marriage and applied for a domestic violence restraining order. The parties stipulated to the terms of the order, which provided that Thomas would stay away from Teresa and their three daughters and would attend counseling and a batterer's program. The parties also stipulated that they owned a community property business, Pacific Drywall Systems, Inc. (PDS), from which each was to receive $3,000 per month, and that they also owned two rental properties in San Diego, known as Boise Avenue and Thomson Court. Thomas agreed to pay $1,145 per month in child support.

Criminal charges were filed against Thomas based on the same domestic violence incident, and the criminal court also issued a protective order proscribing contact with Teresa and their three daughters. In December 2002, Thomas violated the protective orders and pleaded guilty to charges of felony spousal abuse (Pen. Code, § 273.5, subd. (a)); he was incarcerated for five months. After Thomas was released from jail, the parties reconciled and lived together from May 2003 to August 2004.

Teresa filed an order to show cause in October 2004, seeking spousal and child support, attorney fees, and the division of their property. Her declaration stated that Thomas had "gutted the operations of PDS by... misappropriation and/or dissipation of corporate assets, gross mismanagement, and day trading of securities which resulted in huge losses of community property. As a consequence, IRS tax liens for non-payment of PDS employee withholding taxes have been recorded against real property owned by the parties, e.g. Boise Avenue and Thomson Court property; and further, [Teresa's] employer has received a Notice of Levy from the IRS relating to PDS' tax problem in the amount of $218,764.46." Teresa further stated that the rental income on Boise Avenue and Thomson Court was sufficient to cover the properties' expenses, but she claimed Thomas misappropriated two months of rental income to set up a new drywall company and for his personal expenses, resulting in two months of mortgage arrearages.

Teresa explained that PDS settled a lawsuit in 2003, and the settlement proceeds were being paid in monthly installments of $17,437.85. Teresa asked that she be given control of the settlement proceeds "to apply towards child and spousal support, chargeable against [Thomas's] community property interest therein, to the extent [he] fails to pay timely any child and/or spousal support ordered by the court." After a hearing, the parties stipulated that the November and December 2004 installments would be deposited directly into the client trust account of Teresa's attorney, to be held pending further order of the court. Shortly thereafter, Thomas was arrested on charges related to domestic violence; he was convicted and incarcerated from October 2004 to February 2007. The hearing on the remaining issues in the order to show cause was continued until May 2008.

At trial, Teresa testified she had made the mortgage payments on Boise Avenue for about 16 months. Tenants "destroyed" the property, and she had no money to repair it. The parties' adult daughter, Diana, had been living there since October 2005. PDS owned a piece of property, known as Poway, which was lost to foreclosure because there was no money to pay the mortgage or the taxes. The tenants in Thomson Court refused to pay rent because there were extensive leaks and mold. The property sat empty for one year before it was lost to foreclosure because Teresa was unable to pay the mortgage.

After trial, the court awarded future child support of $377 per month, based on Thomas's average monthly income of $1,800. The court found that "both parties took assets" of PDS and its successor. "On this record I cannot conclude that one party took more than the other party or that either party is entitled to any kind of a credit or charge." The court found "it is appropriate to delete from the total arrearages the child support that otherwise would have been due during the period of time that they, in fact, lived together and shared all of the assets, expenses, and income." After the deduction, the total amount of child support arrearages due was $67,414. The court found Teresa "us[ed] her best efforts, under extraordinarily difficult circumstances, to marshal the assets of the community and to use those assets to discharge community obligations and normal living expenses for the family." The court also found Teresa had not proved that Thomas received more from the settlement on the PDS lawsuit than she did; consequently, "neither party is entitled to a credit or a charge with respect to the settlement of that lawsuit."

The court stated it considered the factors in Family Code*fn2 section 4320 in determining future spousal support, including the "skills, education, and training of both parties," "periods of unemployment," and "the ability of both sides to pay spousal support, and the needs of each party." It also considered the history of domestic violence, which it found was "lengthy,... pervasive, extensive, and very severe." It awarded no spousal support to either party, finding it would be "entirely inappropriate" to order Teresa to pay Thomas "given the history of domestic violence" and it would be "a severe hardship" to order Thomas to pay spousal support.

The court indicated its intent to divide the balance of the attorney's trust account equally between the parties, which at that point was $130,950. Teresa's counsel pointed out that a different bench officer had previously ordered $20,000 released from that account to Teresa "as child support, subject to reallocation by the court," and $1,200 released to Thomas to be used towards his obligation for attorney fees. Thomas asked for credit for the $20,000 against his obligation for child support arrearages. The court stated, "I'm inclined to reallocate that as spousal support for the past. I've already given [Thomas] a significant credit against child support arrears ...

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