Marriage of Valdez CA4/2 ( 2016 )

Filed 8/22/16 Marriage of Valdez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of VIRGINIA and
CESAR VALDEZ.
VIRGINIA VALDEZ,
E064773
Appellant,
(Super.Ct.No. IND1101587)
v.
OPINION
CESAR VALDEZ, JR.,
Respondent.
APPEAL from the Superior Court of Riverside County. Mickie Elaine Reed,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Sheila A. Williams for Appellant.
Law Offices of Peter R. Cabrera and Peter R. Cabrera for Respondent.
Petitioner and appellant Virginia Valdez appeals an order denying her temporary
spousal support. The order was based on Virginia’s conviction for assault with a deadly
weapon with an enhancing allegation that she personally inflicted great bodily injury on
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her estranged husband, Cesar, under circumstances involving domestic violence.1 She
contends that it was an abuse of discretion to deny her request for temporary support. We
disagree, and we will affirm the order.2
BACKGROUND
The parties were married on August 26, 1979, and separated on August 3, 2011.
Virginia filed a petition for dissolution of marriage on September 8, 2011, and filed an
amended petition on November 22, 2011. On December 3, 2011, Virginia attempted to
cut off Cesar’s penis, resulting in criminal charges for one count of infliction of corporal
injury on a spouse (Pen. Code, § 273.5, subd. (a)) and one count of assault with a deadly
weapon other than a firearm or by means of force likely to result in great bodily injury
(Pen. Code, § 245, subd. (a)(1)). Both counts carried an enhancing allegation that
Virginia inflicted great bodily injury on her spouse under circumstances involving
domestic violence in the commission of a felony, within the meaning of Penal Code
section 12022.7, subdivision (e). A criminal protective order requiring Virginia to have
no contact with Cesar was issued on January 31, 2012.
On December 12, 2014, Virginia pled guilty to the assault charge and admitted the
domestic violence enhancing allegation. The corporal injury to a spouse charge was
dismissed. On January 23, 2015, she was placed on probation for 36 months.
1 As is customary in family law cases, we refer to the parties by their first names,
for clarity and simplicity. No disrespect is intended.
2An order involving temporary spousal support is appealable. (In re Marriage of
Samson (2011) 197 Cal.App.4th 23, 26, fn. 2.)
2
On July 14, 2015, Virginia filed a request for temporary spousal support. On
August 19, 2015, the trial court denied the request. The order was entered on October 2,
2015, and on November 3, 2015, Virginia filed a timely notice of appeal.
LEGAL ANALYSIS
1.
VIRGINIA’S CONVICTION WAS FOR “AN ACT OF DOMESTIC VIOLENCE”
WITHIN THE MEANING OF FAMILY CODE SECTION 4325
Family Code section 4325 provides:
“(a) In any proceeding for dissolution of marriage where there is a criminal
conviction for an act of domestic violence perpetrated by one spouse against the other
spouse entered by the court within five years prior to the filing of the dissolution
proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the
burden of proof that any award of temporary or permanent spousal support to the abusive
spouse otherwise awardable pursuant to the standards of this part should not be made.
“(b) The court may consider documented evidence of a convicted spouse’s history
as a victim of domestic violence, as defined in Section 6211, perpetrated by the other
spouse, or any other factors the court deems just and equitable, as conditions for rebutting
this presumption.
“(c) The rebuttable presumption created in this section may be rebutted by a
preponderance of the evidence.”
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Virginia contends that the trial court abused its discretion by denying her request
for temporary spousal support. She contends that the court erred in concluding that
assault with a deadly weapon is a crime of domestic violence. However, although
denying or granting temporary spousal support is a matter within the trial court’s
discretion (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906), the
determination whether a conviction is for “an act of domestic violence” within the
meaning of Family Code section 4325 is a question of law, if the relevant facts are
undisputed. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606,
611.) Here, the relevant facts are not in dispute: About three months after filing for
dissolution of the marriage, Virginia committed an act of assault with great bodily injury
on her estranged husband. Accordingly, we determine independently whether the crime
comes within the provisions of Family Code section 4325 so as to create the rebuttable
presumption.
Virginia is correct that assault with a deadly weapon in violation of Penal Code
section 245, subdivision (a)(1), is not necessarily a crime involving domestic violence, in
that it does not specify that the victim must have any particular status or relationship to
the defendant. However, for purposes of Family Code section 4325, the question is not
whether the spouse committed a “crime of domestic violence” but whether he or she was
convicted of an “act of domestic violence” against the other spouse. (Fam. Code, § 4325,
subd. (a).) Virginia’s admission that she personally inflicted bodily injury on Cesar
within the meaning of Penal Code section 12022.7, subdivision (e), brings the assault
within the provisions of Family Code section 4325. Penal Code section 12022.7,
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subdivision (e), provides: “Any person who personally inflicts great bodily injury under
circumstances involving domestic violence in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for three, four, or five years. As used in this subdivision, ‘domestic violence’
has the meaning provided in subdivision (b) of Section 13700.” As pertinent here, Penal
Code section 13700, subdivision (b), provides: “‘Domestic violence’ means abuse
committed against an adult or a minor who is a spouse, former spouse, cohabitant, former
cohabitant, or person with whom the suspect has had a child or is having or has had a
dating or engagement relationship.” Accordingly, Virginia’s offense qualifies as “an act
of domestic violence perpetrated by one spouse against the other spouse,” pursuant to
Family Code section 4325, subdivision (a).
Virginia next contends that the court abused its discretion because it “used the
terms of [her] probation, and not the actual crime convicted of” as the basis for denying
her request for support. The basis of this contention is the trial court’s statement that
Virginia’s probation contained “DV” terms, and that if any crime has “DV” terms
attached, that renders it a domestic violence crime conviction. However, the court later
said, “This was a conviction for an act of domestic violence which implicates the
presumption.” Accordingly, the court correctly determined that Virginia’s conviction
was for an act of domestic violence within the meaning of Family Code section 4325,
subdivision (a).
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2.
VIRGINIA HAS NOT SHOWN THAT THE COURT ABUSED ITS DISCRETION BY
FINDING THAT SHE DID NOT REBUT THE PRESUMPTION
Family Code section 4325, subdivision (b), provides: “The court may consider
documented evidence of a convicted spouse’s history as a victim of domestic violence, as
defined in Section 6211, perpetrated by the other spouse, or any other factors the court
deems just and equitable, as conditions for rebutting this presumption.”
Virginia contends that she rebutted the presumption. We disagree. The factors
Virginia presented to the trial court to rebut the presumption were that she was 73 years
old and was unemployed and unlikely to be able to find employment because she had lost
her nursing license as a result of the felony conviction. Her attorney also explained that
Virginia’s criminal attorney made an agreement for her to plead guilty to the assault
charge rather than the charge of corporal injury to a spouse precisely in order to avoid the
domestic violence presumption provided for in Family Code section 4325. The court
responded that it understood Virginia’s financial situation, but said that many of
Virginia’s expenses were related to the criminal conviction and that Cesar should not
have to subsidize that. The court referred to the public policy principle that a victim of
domestic abuse should not have to subsidize the person who had abused him or her. (See
In re Marriage of Kelkar (2014) 229 Cal.App.4th 833, 841-842.) The court then said it
would “have to” deny the motion.
Even if the court arguably could have relied on the factors Virginia asserted to
deem the presumption rebutted, Virginia makes no persuasive argument as to why it was
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an abuse of discretion not to do so. In reviewing the exercise of discretion for abuse, we
consider whether or not the trial court “exceeded the bounds of reason, all of the
circumstances before it being considered.” (In re Marriage of Connolly (1979) 23 Cal.3d
590, 598.) The burden is on the complaining party to establish abuse of discretion.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) The showing on appeal is insufficient if it
presents a state of facts that affords only an opportunity for a difference of opinion. (In
re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230.) Here, the trial court clearly
did not exceed the bounds of reason by finding Virginia’s circumstances insufficient to
outweigh the public policy underlying the presumption.3
3 In her reply brief, Virginia argues that the court failed to give her the
opportunity to rebut the presumption by presenting evidence of Cesar’s domestic
violence against her. We do not ordinarily address an issue raised for the first time in a
reply brief because doing so deprives the opposing party of the opportunity to respond.
(REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
Accordingly, we will not address the merits of this contention. We note, however, that
the court did give Virginia the opportunity to address it personally. Virginia informed the
court that her husband had given her sexually transmitted diseases and that she “was
raped in the most horrible manner.” She stated that she had assaulted him to defend
herself. She did not, however, state that she had any documentation that she had been
abused, as required by Family Code section 4325, subdivision (b).
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DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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