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In re Marriage of Kelkar

California Court of Appeals, Second District, First Division

September 10, 2014

In re the Marriage of ANAND and MARY B. KELKAR. ANAND KELKAR, Respondent,
MARY B. KELKAR, Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, No. BD373325 James D. Endman, Commissioner.

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[Copyrighted Material Omitted]

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Christopher Campbell for Appellant.

Mark H. Rademacher for Respondent.

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Family Code section 4325 establishes a rebuttable presumption against an award of spousal support to a spouse who has been convicted of an act of domestic violence against the other spouse.[1] Here we must determine whether the family court erred in terminating spousal support to a wife where the wife pleaded no contest to and was convicted of an act of domestic violence before enactment of section 4325, but where the husband thereafter entered into a stipulated judgment providing for spousal support to the wife in ignorance of section 4325. Mary Kelkar (Mary) contends her ex-husband, Anand Kelkar (Anand), cannot assert the presumption of section 4325, arguing section 4325 should not be applied retroactively, the doctrine of res judicata prevents modification of the support provisions of the stipulated judgment, and Anand is barred from attacking the stipulated judgment by the doctrines of waiver and equitable estoppel.[2] We conclude section 4325 must be given retroactive application, the stipulated judgment was modifiable, and the doctrines of res judicata, waiver, and equitable estoppel did not bar application of the presumption of section 4325. We affirm the family court’s order terminating Mary’s spousal support.


Anand alleges that, during their long marriage, his wife Mary physically and verbally abused him on approximately 200 occasions. Allegedly these included dozens of occasions on which Mary brandished a knife, and other times when she punched him, injured him, and attempted to push him down the stairs. In 2000, Mary awakened Anand by yelling, brandishing two 9-inch kitchen knives at him, and stabbing the water bed upon which he was lying, within inches of his body. As a result of the ensuing struggle for the knives, Anand was cut. As a consequence of the water bed incident, in 2000, Mary pleaded no contest to unlawfully using a deadly weapon in a quarrel in violation of Penal Code section 417, subdivision (a)(1) (exhibiting a deadly weapon in a rude, angry, or threatening manner). The record does not contain any denial by Mary that the water bed incident or the plea occurred.

Section 4325 became effective January 1, 2002. (§ 4325, added by Stats. 2001, ch. 293, § 3, p. 2346.) Anand filed a petition for dissolution of marriage in July 2002.

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Anand and Mary entered into a stipulated judgment filed in 2004. Among other things, the stipulated judgment stated: “The purpose of this Judgment is to make a final and complete settlement of rights and obligations arising out of the Parties’ marriage, including their respective property rights and support rights.” The stipulated judgment required Anand to pay a certain amount of spousal support monthly, to cease on the death of Anand or Mary or on the remarriage of Mary, contained an annual cost-of-living increase provision, and also stated, “[Mary] is permanently disabled.” The stipulated judgment advised: “The provisions of this Judgment are intended to comply with the requirements of In re Marriage of Vomacka (1984) 36 Cal.3d 459 [204 Cal.Rptr. 568, 683 P.2d 248], and In re Marriage of Brown (1995) 35 Cal.App.4th 785 [41 Cal.Rptr.2d 506], to make clear that no court shall have authority to provide for support of any amount at any time, except as specifically provided in this Judgment.” The stipulated judgment did not state specifically in the paragraph addressing spousal support or elsewhere that spousal support could not be modified or terminated.

Although Anand complied with the terms of the stipulated judgment, Mary thereafter sent hundreds of profane and vulgar text messages to him and threatened and harassed his fiancée with disrespectful and crude phone calls and messages. His fiancée obtained a restraining order against Mary in 2007, which Mary subsequently violated. Anand obtained a restraining order against Mary in 2009, which Mary also violated.

On June 1, 2011, Mary filed an order to show cause, seeking an increase in spousal support. On September 19, 2011, Anand filed a responsive declaration, requesting termination or reduction of spousal support on the basis of section 4325, of which he had been unaware at the time he entered into the stipulated judgment.

Mary underwent medical and psychological examinations to determine whether she was disabled. The examinations resulted in findings Mary was not disabled, could return to full-time employment after receiving certain treatment for her bipolar disorder, and would benefit from returning to work.

Mary’s former attorney in the criminal matter filed a declaration saying Anand had submitted written declarations to the police and to the trial court to the effect that Mary had not tried to hurt him during the water bed incident and that Anand had insisted he was never in danger during the incident. He explained the attorney files and court records had become unavailable in the intervening decade. Anand responded by filing a declaration denying he had signed a declaration in the criminal action, denying having stated Mary did not intend to harm him, indicating he believed Mary had intended to harm him, and asserting that, if he had not moved quickly to get away when Mary stabbed the water bed, he would have suffered severe injury.

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The hearing on the order to show cause proceeded on August 29, 2012. The family court determined Anand was unaware of section 4325 and had not waived his right to assert section 4325 as to future spousal support payments to Mary. The court rejected Mary’s argument that Anand was barred by laches from asserting section 4325, concluding Mary had not been prejudiced by Anand’s delay in the assertion of the statute because “she came out 400-some-odd thousand dollars to the good, because if he had raised it originally, she would have gotten zero for the last seven years.” Further, the court found Anand had not executed a declaration attesting that Mary had not attempted to harm him. It also found Anand was indeed afraid during the water bed incident. In addition, the court held Mary had not been prejudiced by the unavailability of documents from the criminal action purportedly showing she did not act in a threatening manner, essentially finding her plea to an offense requiring her to act in a threatening manner could not be contradicted in a later proceeding by extrinsic evidence the act was not done in a threatening manner. The court held Mary’s conviction of a violation of Penal Code section 417, subdivision (a)(1) raised the presumption of Family Code section 4325, which Mary had not rebutted. The court concluded Family Code section 4325 was retroactive. The court ordered spousal support to be terminated as of September 1, 2012.

This appeal followed.


A. Section 4325 applies retroactively here

We review the retroactive application of a statute de novo. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183 [46 Cal.Rptr.3d 49, 138 P.3d 200] (Fellows).)

The general rule is that newly enacted Family Code sections apply retroactively. (§ 4, subd. (c); Fellows, supra, 39 Cal.4th at pp. 182–186.) Mary concedes section 4325 is required to be applied retroactively if it is not covered by an exception to the general rule. Mary’s contention, however, is that section ...

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