2016 begins with two helpful family law decisions

The 2nd District Court of Appeal started off 2016 publishing two helpful family law decisions.

The first, Rodriguez v. Menjivar, 2016 DJDAR 159 (Jan. 7), decided by Division Seven, instructs us once again that mental abuse and controlling behavior are alone enough to warrant a domestic violence protective order. The decision also clarifies when past incidents may be considered by the court, and not be excluded as too remote.

Beverly Rodriguez appealed from the denial of a domestic violence restraining order she sought against Randy Menjivar. Although the trial court found substantial evidence of physical violence, it concluded that Beverly had not met her burden of proof. The Court of Appeal reversed.

Beverly alleged that Randy inflicted physical injury while they were dating and exhibited controlling behavior, including calling her multiple times during the day, accusing her of cheating, and taking action to isolate her from contact with others. Beverly sought psychological help related to the resulting stress and anxiety from the relationship. She eventually broke off her relationship with Randy.

A month later, however, Beverly determined that she was pregnant and resumed the relationship. Randy enrolled in three of Beverly's four college courses, and during the one in which he was not present, he caused her to keep a telephone call open during the class so he could monitor whether she was socializing with others. He also kept a line open with her when she was at home, further monitoring her activities. Beverly told her mother she kept the lines open because she was afraid that Randy would hit her if she did not comply.

At one point, Randy told Beverly that he sliced open the neck of her teddy bear because that is what he wanted to do to her. In the same month, Beverly was diagnosed with a hemorrhage and a cyst and was advised to limit strenuous activity and stress. Despite being aware of this diagnosis, Randy practiced martial arts in close proximity to Beverly. And despite her request to stop, Randy played with a knife close to Beverly's face and threatened to beat her with a studded belt. During the pregnancy, he pulled her hair, kicked and slapped her, leaving marks. He punched Beverly with a closed fist causing bruising and pushed her head into a seatbelt holder while driving. This behavior continued for over a month, when, after experiencing abdominal pains, Beverly asked Randy to take her to the hospital. During the ride, he drove erratically, took her telephone away, and threatened to send her to jail. At the hospital, Beverly described the events to hospital staff who called the police.

Beverly stopped seeing Randy after her hospitalization, but he continued his bullying, threatening her over social media. She sought a restraining order, and the court granted a temporary restraining order, but it delayed the hearing on the permanent order until after their son was born. At the conclusion of the hearing, the court denied the request and dissolved the temporary order. The trial court ruled that the evidence of mental abuse and controlling behavior were not subject to the domestic violence protection statute, and that the physical abuse months before was too remote. The Court of Appeal reversed on both bases.

The takeaway is that mental abuse that disturbs a person's peace support the issuance of a domestic violence protection act order. Actual infliction of physical injuries is not required; nonviolent conduct may support a finding of abuse.

Marriage of Peterson, 2016 DJDAR 225 (Jan. 11), decided by Division Four, answered a legal question that has divided states across the country: When one spouse contributes to Social Security - which according to federal law is separate property - and the other spouse participates in a state or local pension plan in lieu of Social Security - which according to state law is community property - how should a state divide the parties' retirement benefits? In an opinion that may "feel" wrong to family lawyers who hope their clients obtain equitable results in divorce cases, the Court of Appeal affirmed the trial court's holding that because the husband's Social Security benefits were separate property and the wife's county benefits were community property, the Social Security benefits could not be considered, but the county benefits must be divided equally between the parties.

Both parties' were attorneys. Husband worked in private practice and wife worked for Los Angeles County as a deputy district attorney. When they separated, their respective retirement plans were close in value. The trial court rejected wife's argument that it should fashion an equitable division of her county benefits by either requiring husband to reimburse the community estate for the amount of Social Security contributions withheld from husband's pay, then divide the assets, or allocate a portion of her county benefits to her as separate property. As a third alternative, the wife asked the trial court to consider the present value of husband's Social Security benefits when dividing her county benefits, and ensure that the parties receive roughly equal retirement benefits. The trial court determined it could do none of these things under federal law.

Sadly for wife, pension benefits are community property under California law while Social Security benefits are separate property under the Federal Social Security Act. Federal law does not allow an offset of Social Security benefits on the grounds that an offset would directly infringe the federal supremacy clause, as the U.S. Supreme Court so reasoned in Hisquierdo v. Hisquierdo, 439 US 573 (1979).

Wife argued that husband's contributions to Social Security were the equivalent of using community assets (income) to contribute to the improvement of individual property (Social Security benefits), and that it was inequitable to allow community funds to be used in the economic benefit solely of husband.

The appellate court instructs, however, that Social Security withholdings from income are not optional and were never available to the community; they were removed from husband's pay before he ever received the money. Thus, the Court of Appeal concluded that since the marital estate never had the option of receiving husband's Social Security withholdings - which were intended to fund the Social Security System - characterizing them as community property is barred by Hisquierdo. The court recognized that other jurisdictions have struggled with the same issue of whether mere consideration of Social Security benefits in dividing martial estates is preempted under the reasoning of Hisquierdo. California law, however, mandates equal division of community assets. Since the county pension benefits were community assets, the trial court was required to divide them equally.

The Peterson court invites our Legislature to craft a statute directing trial courts to assign a portion of community assets to one spouse when the other spouse's retirement benefit is classified as separate property under federal law.