Brewster v. Clevenger (In re Brewster)

• Citation: 258 Cal.Rptr.3d 745,45 Cal.App.5th 481
• Decision Date: 19 February 2020
• Docket Number: H045050
• Court: California Court of Appeals
• Parties: IN RE the MARRIAGE OF Mary Kay BREWSTER AND Chris CLEVENGER. Mary Kay Brewster, Appellant, v. Chris Clevenger, Respondent.

45 Cal.App.5th 481

258 Cal.Rptr.3d 745

IN RE the MARRIAGE OF Mary Kay BREWSTER AND Chris CLEVENGER.

Mary Kay Brewster, Appellant,

v.Chris Clevenger, Respondent.

H045050

Court of Appeal, Sixth District, California.

Filed February 19, 2020

Attorney for Appellant, Mary Kay Brewster: Debra Gemgnani Tipton Law Offices of Debra Gemgnani Tipton, Monterey.

Attorneys for Respondent, Chris Clevenger: Joel Franklin, Monterey, Law Offices of Joel Franklin C. Micheal McClure Law Office of C. Micheal McClure.

Greenwood, P.J.

In this marital dissolution proceeding, the trial court entered judgment denying appellant Mary Kay Brewster's (Mary Kay) request for spousal support orders because she suffered criminal convictions for acts of domestic violence against respondent Chris Clevenger (Chris). In doing so, the trial court determined Mary Kay had not overcome the rebuttable presumption set forth in Family Code section 4325¹ against an award of support to a spouse convicted of domestic violence. On appeal, Mary Kay contends there is not substantial evidence to support the trial court's factual determinations, such that the court abused its discretion in denying her spousal support. We disagree and affirm the ruling.

Mary Kay also appeals the trial court's characterization of post-separation payments Chris made to her. The trial court found that Chris deposited $10,000 into a joint account for Mary Kay's use in lieu of temporary spousal support, pursuant to the agreement of the parties. She contends the trial court did not have jurisdiction over temporary spousal support at the time of the trial, and did not have jurisdiction to make retroactive orders. She does not believe substantial evidence supports the trial court's finding that the parties had an agreement regarding the payments, and asserts the trial court erred when it found the deposits taxable to her and deductible by Chris. For reasons we explain below, we reject Mary Kay's contentions and affirm the ruling.

Finally, Mary Kay contends the trial court erred in awarding the parties' Gables Land and Cattle Company/ Duck Club membership (Duck Club membership) to Chris at a value of $60,000, as the parties stipulated on the record to the value being $65,000. We agree. We will modify the judgment to reflect the parties' actual stipulation, and affirm the judgment as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties were married almost 21 years prior to separating in August 2013. Mary Kay filed for dissolution shortly after they separated.

Both parties are physicians; they met in medical school. Mary Kay had an obstetrics/gynecology practice and provided medical weight loss services; Chris had a general orthopedic surgery practice.

A. Pre-trial Proceedings and Request for Orders Related to Spousal Support

In March 2015, Chris filed a request for orders asking the court to set temporary spousal support pursuant to "guideline," commensurate with each parties' income.²

Chris stated in his request that he had been "sharing" his income with Mary Kay since separation, by depositing the income into a joint account used by Mary Kay to "cover her expenses." Chris also indicated he was paying the mortgage and property taxes on the family home where Mary Kay resided, without financial assistance from her. Although Chris asked the court to set "guideline" support, he also informed the court that Mary Kay had been charged with "several criminal counts" involving harassment against him. Based on Mary Kay's alleged actions, Chris believed he should not be required to support her. According to the trial court's register of actions, Mary Kay did not file a written response to Chris's request.

The trial court set the dissolution case for trial beginning in October 2016.³ In advance of the trial, Chris asked the court to take judicial notice of "Monterey County Superior Court Case No. CRSS142474A, People of the State of California vs. Mary Kay Brewster [Mary Kay's criminal action]," pursuant to Evidence Code section 452, subdivision (d),⁴ alleging the "above file is relevant regarding the issues concerning any award of spousal support in the [dissolution matter]." He acknowledged that his request for orders related to temporary spousal support was still pending, the court having reserved jurisdiction to order support retroactive to March 4, 2015. However, Chris also invoked sections 4320, subdivisions (i) and (n), and 4325 to argue that he should not have to pay either temporary or permanent spousal support to Mary Kay, as she was convicted of an act of domestic violence in January 2016.⁵ To the extent the court decided to award spousal support to Mary Kay, Chris argued Mary Kay was "underemployed," and had the ability and opportunity to earn more income. Chris also alleged the parties agreed the Duck Club membership would be assigned to Chris at a value of $60,000. Mary Kay did not file a brief prior to the trial.

B. Trial Proceedings

The court held four days of trial in October and December 2016, and January 2017. The parties submitted written closing arguments.

1. Stipulations and Rulings Prior to Testimony

On the first day of trial, the court addressed Chris's request for judicial notice of Mary Kay's criminal action. The court indicated it was able to obtain "a sentencing report from January and the restitution hearing minutes of May 13th"; the corresponding minute order specifies each of these documents were from 2016. After intimating that it was having difficulty obtaining the criminal records from another courthouse, the court stated, "If there are additional documents that you would like me to review, it might be helpful, if you had copies, to have a copy made for the Court. Or if there's something specific that you have in mind." The minute order from the first day states, "Court informs the parties that she has only taken judicial notice of the minute orders from May 13, 2016 regarding restitution and January 13, 2016 sentencing hearing from [Mary Kay's criminal action]. Parties inform the court they will have additional information regarding the criminal matter during the trial."

Amongst several stipulations recited by the parties on the first day of trial, the parties agreed the Duck Club membership would be assigned to Chris at a value of $65,000; Chris's attorney recited the agreement; Mary Kay and her attorney both confirmed the value.

2. Mary Kay's Criminal Convictions

During her testimony, Mary Kay admitted to having been "convicted of some criminal counts" the prior year. She did not provide specific information about the acts that led to the conviction; nor did Chris testify about the conduct that resulted in Mary Kay's conviction.⁶

The court admitted into evidence the January 13, 2016 minute order from the criminal court records, entitled "Sentencing and Report," reflecting Mary Kay's conviction on four counts: Penal Code section 646.9, subdivision (a) [stalking] (counts 1 and 3)⁷ ; Penal Code section 594, subdivision (b)(1) [vandalism] (count 4); and, Penal Code section 602.5, subdivision (a) [unauthorized entry in noncommercial residential place] (count 5). Mary Kay testified that counts 1 and 5 [stalking and unauthorized entry in a noncommercial residential place] "related to" Chris.⁸ The minute order indicated the criminal court placed Mary Kay on probation for three years. As conditions of probation, she was ordered to serve 150 days in the county jail, to pay a domestic violence fee, and to complete one year of domestic violence counseling. The criminal court issued a criminal protective order ( Pen. Code, § 136.2 ), including Chris as a protected party, and designated the matter a "[d]omestic violence case," citing Penal Code section 13700.⁹ The court also admitted into evidence the January 27, 2016 minute order from a "setting of restitution hearing," at which the court modified one of the terms of Mary Kay's probation.

During the trial, the parties did not submit into evidence any other documents relating to Mary Kay's criminal action. While cross-examining Chris on the third day of trial, Mary Kay's attorney referenced Chris's criminal trial testimony. Chris's counsel suggested Chris should be provided the transcripts of that testimony, but Mary Kay's attorney did not have certified copies available to lodge with the court. The court requested that Mary Kay's counsel move on to a different line of questioning, and revisit Chris's criminal trial testimony once he had the certified transcripts available. Mary Kay's attorney suggested he would bring the certified transcripts on the next trial day; he asked the court to reserve jurisdiction for additional cross-examination of Chris once he did so. On the fourth and final day of trial, Mary Kay's attorney did not revisit Chris's testimony during the criminal action.

3. Testimony Regarding Alleged Incidents of Domestic Violence Against Mary Kay

During trial, Mary Kay testified to three incidents that form the basis of her contention that she was the victim of domestic violence perpetrated by Chris, and thus that she rebutted the section 4325 presumption against ordering spousal support to a perpetrator of domestic violence.

a. September 2009 Incident

In September 2009, Mary Kay alleged she grabbed Chris by the shirt during a discussion about the couple's lack of intimacy. In response, Chris "grasped [her] right hand and looked [her] in the eye, as he very coldly took [her] fingers and bent them backwards until he felt one of them dislocate. It popped and you could feel it as well." Mary Kay claimed Chris bent her fingers for 20 seconds, doing it "very slowly and intentionally." Mary Kay testified that she did not let go of Chris's shirt once he grabbed her, saying, "He had to dislocate my finger to get me to let go of his shirt." Mary Kay obtained an x-ray of her finger

, which was not broken, but had soft tissue swelling; the finger relocated. She felt pain as a result of the injury for three to four days.

Chris...