Marriage of Schu

Filed 12/19/16 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of GENISE and 2d Civil No. B269831
DONN MICHAEL SCHU, JR. (Super. Ct. No. 1342880)
(Santa Barbara County)
GENISE J. GOMEZ, ORDER MODIFYING
OPINION
Appellant, [No Change in Judgment]
v.
DONN MICHAEL SCHU, JR.,
Respondent.
THE COURT:
It is ordered that the opinion filed herein on December 6, 2016, be
modified as follows:
1. On page 1, the paragraph is deleted and the following
paragraph is inserted in its place:
California‟s so called “No Fault Divorce” law
does not require a trial court to ignore evidence of
fault when the spouse seeking support is guilty of
domestic violence. Here, the court denied Gomez
support pursuant to Family Code section 4320,
subdivisions (i), (m), (n), and (k).1 We affirm.
2. On page 1, footnote 1, the words “unless otherwise stated” are
deleted so that the footnote reads:
All statutory references are to the Family Code.
3. On page 2, the first paragraph is deleted and the following
paragraph is inserted in its place:
Donn Michael Schu and Genise Gomez married
in 1986. They have three adult children: Aaron,
Ashley and Evan. Gomez stopped working when
Ashley was born in 1990. Schu works in the oil
industry. He now earns at least as much as he did at
the time of the parties‟ separation. He has the ability
to pay whatever spousal support the trial court may
order. Schu has been paying Gomez $500 per month
temporary spousal support.
4. On page 2, second paragraph, second sentence, the word
“rotate” is changed to “alternate” so that the sentence reads:
He would alternate between spending 28 days in
Algeria and 28 days at home.
5. On page 2, third paragraph, second sentence, the word
“while” is changed to “when” and the word “still” is deleted so
that the sentence reads:
Gomez became sexually attracted to S. when he was
a child.
6. On page 2, sixth paragraph, first sentence, the word “affair”
is changed to “sexual relationship” so that the sentence reads:
Gomez‟s children did not know about her sexual
relationship with S., but they had suspicions.
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7. On page 3, the first full paragraph, first sentence, the word
“affair” is changed to “relationship” so that the sentence
reads:
Gomez was concerned that news of the relationship
was getting out on social media.
8. On page 3, second full paragraph, the first two sentences are
combined, so the sentence reads:
Due to the situation at home, Ashley felt she was in
trouble emotionally and began to cut herself.
9. On page 4, sixth paragraph, second sentence, after the word
“mandatory,” add the words “in every case” so that the
sentence reads:
Spousal support is not mandatory in every case.
10. On page 6, the first full paragraph, first sentence, after
“section 2335,” add “and” so the sentence reads:
Gomez complains the court allowed Schu to present
evidence of misconduct in violation of section 2335
and then treated the parties‟ reaction to the
misconduct as evidence of domestic violence.
11. On page 7, first full paragraph, insert a period and a
quotation mark at end of paragraph.
There is no change in the judgment.
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Filed 12/6/16 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of GENISE and 2d Civil No. B269831
DONN MICHAEL SCHU, JR. (Super. Ct. No. 1342880)
(Santa Barbara County)
GENISE J. GOMEZ,
Appellant,
v.
DONN MICHAEL SCHU, JR.,
Respondent.
California‟s so called “No Fault Divorce” law does not
require a court to ignore evidence of fault when deciding spousal
support. This is especially the case when the spouse seeking
support is guilty of domestic violence. The trial court denied
Gomez support under Family Code section 4320, subdivisions (i),
(m), (n), and (k)1. We affirm.
All statutory references are to the Family Code unless
1
otherwise stated.
FACTS
Donn Michael Schu and Genise Gomez were married
in 1986. They have three adult children, Aaron, Ashley and
Evan. Gomez stopped working when Ashley was born in 1990.
Schu works in the oil industry. He earns at least as much as he
did at the time of the parties‟ separation. He has the ability to
pay whatever spousal support the court may order. Schu has
been paying Gomez $500 per month temporary spousal support.
Between 1995 and 2001, Schu worked in Algeria. He
would rotate between spending 28 days in Algeria and 28 days at
home.
S. was Aaron‟s best friend and the brother of Ashley‟s
best friend. Gomez became sexually attracted to S. while he was
still a child.
On the weekends, underage children, including S.,
would gather at the parties‟ home. Gomez would provide alcohol.
Aaron and his friends would sometimes drink to the point of
vomiting. Gomez created a sexual atmosphere in her home. She
showed pornographic movies to Aaron and his friends. Gomez
sometimes watched pornography with S. alone. Aaron began
having sex with underage girls in the home.
Gomez began having oral sex with S. when he was 12
years old. It progressed to intercourse and lasted until S. was in
college. They would have sex on the weekends. It happened
mostly in Gomez‟s home and sometimes in a car. S. tried to end
the relationship, but Gomez threatened to tell his friends and
family. S. would plead and cry, but Gomez insisted on continuing
the relationship.
Gomez‟s children did not know about her affair with
S., but they had suspicions. One day Ashley came home
unexpectedly. She saw S. dressed only in a towel and her mother
in the shower. Aaron became concerned about his mother and S.
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being in the bedroom with the door locked. Evan wondered why
S. was at their house without Aaron.
Gomez was concerned that news of the affair was
getting out on social media. She demanded that Ashley provide
her with S.‟s sister‟s social media password. When Ashley
refused, Gomez told Aaron to hold Ashley down while Gomez cut
off “a big chunk” of her hair. Ashley‟s hair, which had hung down
to her lower back, was now at throat level. Ashley found it
humiliating to go to school with her hair cut.
Due to the situation at home, Ashley felt she was in
trouble emotionally. She had begun to cut herself. She asked
Gomez to send her to a counselor. Gomez told her that if she
went to a counselor, they would take her away. Ashley
understood that to mean “don‟t talk about what‟s going on at
home.”
Ashley testified she does not plan to have children.
She would not want her children to go through what she went
through. She fears she will become like her mother. Her friends
call her “mannequin” because she never has emotions or says how
she feels.
Gomez pled no contest to seven counts of unlawful
sexual conduct with a minor. She was sentenced to six years in
prison.
Finances
The trial court found Gomez has sufficient assets to
support herself. The court dissolved the parties‟ marriage in July
2012. Gomez received about $914,000 in assets. The assets
include half of Schu‟s retirement, valued at $650,000. Gomez will
incur penalties if she withdraws the retirement funds before she
is 59 1/2. In addition to $160,000 Gomez has of her own, she is
listed on five or six bank accounts with her father. One of the
accounts had approximately $200,000 in it.
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Susan Miller, a vocational examiner, testified that
Gomez could work as an event planner. Gomez told Miller that
she “would be all right no matter what.”
DISCUSSION
I
Gomez contends the trial court abused its discretion
in allowing Schu to introduce evidence of fault and by using that
evidence to deny support.
Gomez relies on section 2335. The section provides:
“Except as otherwise provided by statute, in a pleading or
proceeding for dissolution of marriage or legal separation of the
parties, including depositions and discovery proceedings,
evidence of specific acts of misconduct is improper and
inadmissible.”
Dissolution of marriage may be “no fault.” But there
is an element of fault in the award of spousal support. (See
1 Hogoboom & King, Cal. Practice Guide: Family Law (The
Rutter Group 2016) ¶ 6:824, p. 6-417 [“Notwithstanding the „no
fault‟ mandate, probative evidence „in the nature of fault‟ often
comes up in contested spousal support cases.”].)
Gomez ignores the first phrase of section 2335,
“Except as otherwise provided by statute . . . .” Section 4320
governs the award of spousal support.
Section 4320, subdivision (a) provides that the court
“may” order spousal support. Spousal support is not mandatory.
The facts and equities in a particular case may call for no spousal
support or very short-term support. (In re Marriage of Smith
(1990) 225 Cal.App.3d 469, 480-481.) Section 4320 provides that
the court “shall consider all of the following circumstances: . . .”
[Italics added.] One of those circumstances is domestic violence.
Section 4320, subdivision (i) provides: “Documented
evidence, including a plea of nolo contendere, of any history of
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domestic violence, as defined in Section 6211, between the parties
or perpetuated by either party against either party‟s child,
including, but not limited to, consideration of emotional distress
resulting from domestic violence perpetrated against the
supported party by the supporting party, and consideration of
any history of violence against the supporting party by the
supported party.”
Section 6211 defines “„[d]omestic violence‟” as “abuse
perpetuated against . . . (e) a child of a party . . . .”
Gomez‟s conduct in providing her son with alcohol to
the extent he drank himself sick and forcibly cutting her
daughter‟s hair qualifies as “domestic violence” by any reasonable
definition of the term. But the trial court went farther. It
applied the definition of “abuse” found in section 6203 to its
finding of domestic violence. Section 6203 is part of the Domestic
Violence Prevention Act. (DVPA; § 6200, et. seq.)
Section 6203, subdivision (a) provides in part “For
purposes of this act, „abuse‟ means any of the following: . . . (4) To
engage in any behavior that has been or could be enjoined
pursuant to section 6320.” Among the behaviors listed in section
6320 is “disturbing the peace of the other party.” The trial court
relied on In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483for the meaning of disturbing the peace. In Nadkarni the court
said disturbing the peace of the other party means “conduct that
destroys the mental or emotional calm of the other party.” (Id. at
p. 1497.) The trial court concluded that section 4320, subdivision
(i) applies because Schu and the children had been subject to
emotional abuse for years.
Gomez argues that the definition of domestic violence
adopted by the trial court is too broad. Gomez claims that under
the court‟s approach, having an extramarital affair, or refusing to
help around the house, or buying too many shoes or refusing to
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engage in sex could be considered domestic violence. These
quotidian examples pale in comparison to what happened here.
Gomez physically and emotionally abused her children to
facilitate molesting a child.
Gomez complains the court allowed Schu to present
evidence of misconduct in violation of section 2335 then treated
the parties‟ reaction to the misconduct as evidence of domestic
violence. This, Gomez argues, is circular reasoning.
But section 4320, subdivision (i) mandates that the
trial court consider domestic violence. To fulfill this requirement,
the court must allow evidence of misconduct. There is no conflict
with section 2335, because that section begins, “Except as
otherwise provided by statute . . . .”
In addition, as a separate and independent ground,
the trial court relied on section 4320, subdivision (n) which
requires the trial court to consider “[a]ny other factors the court
determines are just and equitable.” Gomez argues that we
should read the subdivision as containing an exception for the
fault of a party. But the subdivision contains no such exception.
We need not consider here what role the fault of a
party may have on the award of spousal support in the ordinary
case. This is far from the ordinary case. Here, in order to molest
S., Gomez provided her son and other children with alcohol and
pornography, and assaulted her daughter. When Gomez‟s
daughter tried to obtain help for the psychological damage Gomez
caused, Gomez threatened her daughter with the warning she
would be removed from her home. In addition, Gomez‟s
children‟s testimony made it clear that their sense of humiliation
and betrayal caused by Gomez‟s arrest and conviction was
psychologically devastating. Finally, the harm Gomez caused to
S. and his family cannot be calculated. In this case the trial court
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was more than justified in denying Gomez spousal support under
Section 4320, subdivision (n).
The trial court also took into account the “balance of
the hardships to each party.” (§ 4320, subd. (k).) Gomez had
assets of her own, including $160,000 and five or six bank
accounts she holds with her father. By Gomez‟s own admission,
she “would be all right no matter what
Gomez claims it is speculation that she has any
interest in the bank accounts she holds with her father. But it is
not speculation. It is reasonable to conclude that a person whose
name is on a bank account has a beneficial interest in that
account.2
DISPOSITION
The judgment (order) is affirmed. Costs are awarded
to respondent.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
2 Because section 4320, subdivisions (n) and (k) are a
sufficient basis for denying support, we need not consider
subdivision (m).
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Colleen K. Stern, Judge
Superior Court County of Santa Barbara
______________________________
Griffith & Thornburgh and Bruce D. Glesby;
Ferguson Case Orr Paterson and Wendy C. Lascher for
Appellant.
Law Offices of Ralph B. Wegis, Ralph B. Wegis, Barry
E. Rosenberg and Edward Gordon; Wilson & Pettine and Paul
Pettine, III for Respondent.
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