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In re Marriage of Freitas

October 3, 2012

IN RE THE MARRIAGE OF CHRISTINE B. AND KEVIN D. FREITAS.
CHRISTINE B. FREITAS, RESPONDENT,
v.
KEVIN D. FREITAS, APPELLANT.



APPEAL from orders of the Superior Court of San Diego County, Lisa C. Schall, Judge. (Super. Ct. No. D521936)

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

CERTIFIED FOR PUBLICATION

Affirmed in part; reversed in part; and remanded with directions.

I.

INTRODUCTION

Kevin D. Freitas (Kevin) appeals from several pendente lite orders of the trial court in a marital dissolution action brought by his wife, Christine B. Freitas (Christine). In April 2010, Christine filed a petition to dissolve the marriage. At an October 2010 hearing, the trial court entered a temporary spousal support award in favor of Kevin, and a temporary child support award in favor of Christine. At that same hearing, the court ruled that it would reserve jurisdiction over whether to amend the support awards, and that Kevin could submit additional evidence pertaining to Christine's income for the period of September and October 2010. In June 2011, the trial court determined that in light of this court's January 2011 opinion in In re Marriage of Gruen (2011) 191 Cal.App.4th 627 (Gruen), it lacked jurisdiction to amend the support awards for the months of September and October 2010. In Gruen, this court concluded that a trial court lacked jurisdiction to retroactively modify a pendente lite support order to any date earlier than the date on which a proper pleading seeking modification of such order is filed. (Id. at p. 631.) Also in June 2011, the trial court terminated the temporary spousal support award, effective July 1, 2011, pursuant to Family Code section 4325, in light of Kevin's 2006 domestic violence conviction.*fn1

On appeal, Kevin contends that the trial court erred in terminating the temporary spousal support award on the basis of his prior domestic violence conviction. Kevin maintains that because the court was aware of the conviction at the time it entered the original temporary spousal support award, the changed circumstances rule*fn2 precluded modification of the award based on this conviction. Kevin also contends that the trial court erred in concluding that Gruen barred the court from reconsidering the support awards because, unlike in Gruen, the trial court in this case specifically reserved jurisdiction to make such a determination.

We conclude that the changed circumstances rule did not prevent the trial court from terminating the temporary spousal support award based upon the court's application of section 4325 to Kevin's domestic violence conviction. We further conclude that the trial court erred in its determination that Gruen precluded amendment of the original support awards. The error was harmless with respect to the spousal support award, but remand is necessary with respect to the child support award. Accordingly, we affirm the trial court's order terminating spousal support effective July 1, 2011. We reverse the trial court's order concluding that it lacked jurisdiction to amend the pendente lite child support award for September and October 2010, and remand the matter to permit the trial court to determine whether to amend its child support award for those months based upon Kevin's presentation of additional evidence pertaining to Christine's income.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Christine and Kevin married in October 1992, and separated in March 2010. They have two children together, N.F., born in April 1996, and L.F., born in February 2001. In April 2010, Christine filed a petition for dissolution of the marriage.

In August 2010, Kevin filed an application for an order to show cause (OSC) seeking child support, spousal support and other relief. Christine filed a responsive declaration in which she requested that the court award no spousal support. In her declaration, Christine stated that Kevin had a "history of perpetrating domestic violence against [her]," and noted that in October 2006, Kevin suffered a conviction for committing a battery against her. Christine also stated that Kevin "assaulted" her in March 2010, and noted that the trial court had entered a domestic violence restraining order against Kevin in July 2010.

On October 6, 2010, the trial court held a hearing on the OSC. At the conclusion of the hearing, the trial court awarded Kevin $800 a month in temporary spousal support and awarded Christine $7 a month in temporary child support. The court ruled that both awards were effective as of August 1, 2010. The court also noted that Kevin's counsel had contended that Christine had misrepresented her income and expenses. The trial court rejected this contention, stating, "I don't believe she misrepresented." However, the court reserved jurisdiction with respect to whether to amend the child and spousal support awards for the months of September and October 2010 and indicated that Kevin would have the opportunity to present evidence pertaining to Christine's income, stating:

"So this is my order. I'm going to be making an order today going with [Christine's counsel's] income and expense representation, with a reservation to reconsider this finding on what her income is with a timeline attached to it. This is not an indefinite timeline. But I'm going to give you so much time to bring [it] back to this court, upon review of this issue of what her actual income was during this time, September, October of 2010. [¶] And if you can produce discovery that you want to lodge with the court that shows [Christine's counsel's] representations were inaccurate, incomplete, and not satisfactory in that regard, then I will retroactively amend my order of today to give your client those benefits."

The court stated that Kevin's counsel had until January 4, 2011 to file additional evidence demonstrating that Christine's income had been higher during the months of September and October 2010 than represented in her income and expense declaration. The court also directed Kevin's counsel to prepare a final order after hearing.

On January 3, 2011, Kevin filed an ex parte application to extend the time within which the court could consider the issue of Christine's income for "the time period of September and October 2010," until 60 days after the resolution of various discovery disputes. The trial court granted the application.

On February 10, Kevin filed an application for an OSC to modify the existing child and spousal support awards. In his application, Kevin stated that his request was based on the fact that he had lost his job on January 25.

The court held a hearing on March 23. At the outset of the hearing, the trial court noted that at the October 6 hearing, it had "reserved over a determination of [Christine's] income for the time period of October and September 2010." However, the trial court stated that it now believed it did not have jurisdiction to consider this issue in light of this court's January 2011 decision in Gruen. The court reasoned, "[M]y read of [Gruen] is that once an order is entered, you cannot modify it or do any retroactive modification. You have to file a new OSC." The court indicated that it would permit the parties to file briefs addressing the effect, if any, of Gruen on whether the court could amend the October 2010 child and spousal support awards.

Also at the March 23 hearing, the court considered Kevin's February 2011 OSC to modify the existing child support and spousal support awards. The court stated that it would increase the spousal support award to $1,100 a month effective April 1, on an interim basis, in light of Kevin's job loss, and further stated that it would not make any changes to its prior child support award. The court specified that the spousal support award was "a temporary interim order," pending a further hearing on Kevin's OSC to be held on June 1.

In May 2011, Christine filed a responsive declaration to Kevin's February 2011 OSC. In her declaration, Christine requested that spousal support be set at $0. In support of her request, Christine stated, "This marriage ended after years of domestic violence . . . ." Christine added, "The spousal support merely enables [Kevin] to continue to harass me and punish me."*fn3

On June 1, the trial court continued the hearing on Kevin's February 2011 OSC and entered a minute order that states, "Parties to address applicability of [Family Code section] 4325 factors[.] All issues from March hearing to be addressed . . . ."

On June 6, 2011, the trial court entered an order entitled, "Findings and Order After Hearing," pertaining to matters raised at the October 6, 2010 hearing. The court determined Christine's income and awarded child and spousal support as stated at the hearing. The order also specifically referred to the ...


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