Marriage of Dibelka CA2/5

Filed 10/15/20 Marriage of Dibelka CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of B296485
SANDRA and JAMES
DIBELKA. (Los Angeles County
SANDRA DIBELKA, Super. Ct. No. VD092166)

Appellant,

v.

JAMES DIBELKA,

Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County, James E. Horan, Judge. Reversed and
remanded.
Law Offices of Dorie A. Rogers and Dorie A. Rogers for
Appellant.
James Dibelka, in pro. per., for Respondent.
________________________________
 Petitioner and appellant Sandra Dibelka appeals from
the portion of a dissolution judgment awarding permanent
spousal support to respondent James Dibelka.1 On appeal,
Sandra contends: (1) the family law court did not properly
consider evidence of domestic violence to reduce or preclude
an award of spousal support under Family Code section
4320, subdivision (i); and (2) the family law court was not
authorized under Family Code section 4333, subdivision (a),2
to award permanent spousal support retroactive to the filing
date of the response to the petition for dissolution. We hold
that the family law court is not precluded from awarding
permanent spousal support based on evidence of domestic
violence under section 4320, subdivision (i). Under section
4333, however, the family law court was not authorized to
award permanent spousal support retroactive to the date of
filing of the response to the dissolution petition. We must
reverse and remand the portion of the judgment awarding
spousal support.

1 Because the parties share the same last name, they
will be referred to individually by their first names for ease
of reference. No disrespect is intended.

2All further statutory references are to the Family
Code unless otherwise indicated.

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 FACTS AND PROCEDURAL BACKGROUND

Sandra and James married on January 15, 1977. They
have two adult children and owned a home in Whittier
during their marriage. James is retired and receives social
security disability. In May 2017, Sandra and her adult
daughter moved to Oregon in order to care for Sandra’s
elderly mother and avoid any negative response by James
when Sandra filed for divorce. Sandra and James separated
as of May 15, 2017.
On May 23, 2017, Sandra filed a petition for dissolution
of marriage. In October 2017, Sandra filed a notice stating
that she intended to seek reimbursement pursuant to In re
Marriage of Watts (1985) 171 Cal.App.3d 366, based on
James’s use of the family residence. On November 2, 2017,
Sandra requested a domestic violence restraining order for
herself, her adult daughter, and her elderly mother.
Sandra alleged the following incidents to support her
request for a restraining order. James was prone to rages
and unpredictable behavior during the marriage. He was
physically, emotionally, and verbally abusive. He drank
heavily, and she had to be careful not to trigger an outburst.
He lied, then made her think her memory was not correct.
He kept her isolated, because he did not like people to come
over to the house. She slept and ate in a separate room to
avoid him. She put a door stop under her bedroom door at
night, but at times, James would come into the room in the

3
middle of the night, turn on all the lights, slam drawers, and
make frightening comments.
She described an incident in 2000 when James threw a
box of CDs that hit her head and then he hit her on the side
of the head. Sandra called 911, the police took pictures of
her bruises, and she stayed in a hotel while James was
detained overnight at the police station. In 2008, James
yelled at a hotel reservation clerk and the hotel manager
required them to leave the hotel after the first night, which
was humiliating. Sandra left their home a few times during
the marriage, but returned when James promised to change.
James was less physically abusive later in their marriage.
After he agreed to separate and sell their home, he
vacillated and threatened not to leave. He often stated that
he was in control and would stay in the house as long as he
wanted. On April 29, 2018, James called 911 and accused
his adult daughter of elder abuse. After the police left,
Sandra and her daughter locked themselves in the
daughter’s room to pack boxes to move out. When James
heard the tape gun, he bellowed, “What are you doing?”
Sandra did not answer. James walked to the door and
jostled it, then yelled, “What are you doing? I am going to
break down this door!” He eventually left, but Sandra was
shaken and panicked, concerned that he would come back
and break down the door. Sandra and her daughter left to
stay with Sandra’s mother in Oregon.
On the morning of October 28, 2017, James called
Sandra in Oregon and she did not answer the telephone.

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James drove to Oregon and parked outside her mother’s
house. He rang the doorbell to the house several times.
When no one responded, he returned to sit in his car in front
of the house. Sandra called the police and filed a report of
trespassing against James. The police advised her to obtain
a restraining order. Sandra described incidents between
James and his children as well.
The family law court granted a temporary restraining
order as to Sandra, but denied the request as to the other
adults. On November 14, 2017, James filed a response to the
dissolution petition. He requested spousal support be paid
to him, as well as termination of the court’s ability to award
spousal support to Sandra. He asked for an award of
attorney fees as well.
In January 2018, James’s attorney requested to be
relieved as counsel of record as a result of a breakdown in
communication and in the attorney-client relationship.
James proceeded in pro per.
On January 26, 2018, Sandra filed a memorandum of
points and authorities in support of the request for a
domestic violence restraining order as to all three women
listed in the original request. The temporary restraining
order was amended to include all three women. James
obtained new counsel. On April 16, 2018, James stipulated
to a restraining order protecting Sandra, as well as their
adult daughter and Sandra’s mother, for five years.
On June 11, 2018, James filed a settlement conference
brief. He stated that he was retired and had serious health

5
conditions that prevented him from working. He requested
spousal support, payment of his attorney fees, and equal
division of property, but also the right to purchase Sandra’s
interest in their home. He asserted that Watts credits were
entirely offset by Epstein credits under In re Marriage of
Epstein (1979) 24 Cal.3d 76, 84–85. Sandra also filed a
settlement conference brief. She sought to have the home
sold and the proceeds divided, as well as the fair rental value
for use of the residence and reimbursement for payments
made on community debt.
James’s second attorney substituted out of the case and
James proceeded in pro per. On July 3, 2018, Sandra filed a
trial brief based on the same positions as her settlement
brief.
Sandra, her attorney, and James were present for trial
beginning on July 9, 2018. James requested a continuance;
he represented that he was attempting to refinance the
house through the Veteran’s Administration. Appraiser
Neal Johnson testified that the fair market value of the
property was $805,000. The fair market rental value in 2017
was $3,200 per month, which increased in 2018 to $3,300 per
month. James represented that he had obtained an
appraisal of the property for $800,000. The parties owed
approximately $125,000 on the property. Sandra’s attorney
agreed with the family law court that the best outcome
would be if James refinanced the property and paid $338,750
to Sandra, because Sandra would avoid any reduction from
the cost of sale and similar items. But Sandra’s attorney

6
argued that there were not sufficient resources in the estate
for James to purchase Sandra’s interest.
The court found the house was worth $802,500. The
family law court ran calculations and inquired about the
resources available. James represented that he needed 90
days to complete refinancing through the Veteran’s
Administration. The trial court allowed James 60 days,
until September 30, 2018, to obtain the financing necessary
to pay Sandra or move out of the home. If James could not
refinance the property, Sandra would receive exclusive use
of the property on October 1, 2018, to prepare it for sale. If
James provided proof of qualification and refinance to
Sandra’s attorney prior to October 1, 2018, then Sandra
would not take possession on October 1, 2018. The next
court date was scheduled for November 5, 2018. The family
law court warned repeatedly that the house would be
ordered sold if James had not obtained financing or could not
show that financing was imminent. The trial court also
ordered the parties to exchange lists of the 10 large
household items that each party wanted to keep.
On September 21, 2018, James filed an ex parte motion
seeking an extension of time for refinancing and to compel
Sandra to disclose community assets. He filed a declaration
in which he explained, among other circumstances, that he
did not have the physical or mental strength to vacate the
house by September 30, 2018, as required under the court
order if he was unable to obtain financing. The court found
no exigent circumstances and denied the ex parte request.

7
 On October 10, 2018, Sandra filed notice of her intent
to seek sanctions. Sandra had incurred attorney fees and
costs to make nine attempts to serve James documents in
the past, because he evaded service, and to obtain the
restraining order. He refused to vacate the home, in
violation of the court’s order. As a result of his conduct,
Sandra had already incurred attorney fees for a simple
dissolution matter with no minor children of more than
$41,000.
That same day, Sandra filed a request for ex parte
orders to have James vacate the house by October 12, 2018,
and for Sandra to list the home for sale. At a hearing on the
ex parte request on October 10, 2018, Sandra was not
present, but her attorney and James appeared. James
stated his understanding was that he was supposed to be out
of the home by November 1, 2018, or secure a loan. Sandra’s
attorney stated that she had spoken with the loan officer the
day before. The loan officer apparently asked James for
specific information which James did not request from
Sandra’s attorney. As far as Sandra’s attorney was
concerned, it was already past the time that the court had
given James to handle the matter, and James had failed to
take the steps necessary to secure a loan. The court granted
the ex parte request, but warned that the court would
change its order if James had attempted to get a loan and
would have been able to get a loan, but had been
undermined through Sandra’s negligent or intentional lack
of cooperation. The court also noted that James had been

8
given multiple chances, but the court could not help him
when he did not abide by the court’s orders. The court
stated that the evidence suggested James was stalling and
would not obey court orders.
On October 17, 2018, James substituted in new
counsel. On November 2, 2018, James filed a trial brief. He
requested to be allowed a final attempt to refinance, as it
would benefit both parties. He asked that no Watts charges
be assessed and described the property to be divided. He
requested spousal support of not less than $1,600 to $1,800
per month, in light of the duration of the parties’ marriage of
approximately 40 years. He also sought an award of
attorney fees. He noted that Sandra is in good health, while
he is disabled, retired, and unable to work.
He attached a letter from his attorney to Sandra’s
attorney explaining that the refinance would proceed more
quickly if the parties were divorced, or if Sandra would
provide her social security number to allow a credit check to
view her outstanding debts, which she had to date refused to
do.
A further day of trial was held on November 5, 2018.
Sandra, James, and attorneys for both parties were present.
After a discussion in chambers that was not reported, trial
was bifurcated as to status. The parties stipulated that the
date of separation was May 15, 2017. The family law court
granted judgment of dissolution as to status only, with
Sandra’s agreement to maintain health insurance for James
until the house was bought by James or sold to a third party.

9
The parties agreed to submit reserved issues on written
briefs with supporting documentation. James requested an
additional 60 days to complete refinancing of the home. The
court took his motion for reconsideration of the sale order
under consideration.
James and Sandra each filed trial briefs addressing the
remaining issues, including Watts credits, division of
property, spousal support, and attorney fees. James
continued to request support in the range of $1,600 to $1,800
per month. The parties’ briefs did not address the starting
date for payment of spousal support.
In early December, the trial court provided an
unsigned statement of decision. The court denied James’s
request to reconsider the orders of July 9, 2018, and found
James failed to timely refinance the family residence. The
existing orders regarding the sale of the home remained in
effect, but James was free to purchase the home by offering
to buy it at a price greater than the next “best offer.” The
court divided the remaining property.
The court ordered spousal support of $1,000 per month
payable from Sandra to James. The court stated, “Although
the court is aware that pendent[e] lite orders could have
been ordered effective November 15, 2017 at $1500 a month,
the court awards arrears at the amount of $1000 a month or
$12000 (December 2017 through November 2018). The
ongoing ‘permanent’ spousal award of $1000 per month shall
be reduced to $500 a month if the parties are willing/able to

10
work together to find a way to allow Respondent to refinance
the family home.
“This award is based [on] the court’s weighing of the
following factors pursuant to Family Code section 4320: [¶]
Petitioner’s income is approximately $7700 per month. [¶]
Respondent’s income is approximately $2500 per month. [¶]
The court finds that the parties lived a middle class lifestyle.
They owned their own home, had reasonable vehicles, little
to no evidence was put forward as to vacations and/or saved
assets. [¶] The earning capacity of Respondent is
insufficient to maintain the standard of living established
during the marriage. The earning capacity of Petitioner is
minimally sufficient. [¶] There was no evidence of
impairment of earning capacity of either party during the
years the parties were married to care for minor children.
[¶] There was no evidence of one spouse contributing to the
attainment of another position by the other party. [¶]
Petitioner is 63 years old and still working and is self-
supporting. Respondent is 67, in questionable health,
collecting social security and can access his retirement
accounts without penalty. This was a marriage of long
duration, over 40 years. [¶] The court has considered the
obligations and assets of each party, and relies heavily on
the notion that both sides will be receiving significant assets,
which reduces the need for support. [¶] The court finds
Respondent has stipulated to a five year domestic violence
protective order based on Petitioner’s allegations of recent
verbal and emotional abuse.

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 “The court is aware that had the matter proceeded in a
more orderly fashion, Respondent likely would have been
eligible for guideline support in the amount of $1000 to
$1500 a month. This amount may have been enough to
allow Respondent to refinance and thereby remain in the
family home at a ‘discounted’ mortgage amount. Both
parties would have been favorably impacted by the lower
mortgage rate and the court could not better find that
Respondent is able to minimally emerge from this
dissolution at the marital standard of living. Both litigants
should keep this in mind despite the court’s ruling (above)
that Petitioner remains free to market and sell the
community home.”
The court declined to award attorney fees or sanctions.
The court found both litigants engaged in behavior that
frustrated settlement: “Petitioner for example, immediately
asked to terminate spousal support, on a 40 year marriage,
while almost simultaneously estimating Respondent’s
income at $110 a month. She left the family home citing
domestic violence but also admits she wished to go to Oregon
to care for her ailing mother. . . . She cites Respondent’s
mental condition, which appears to be well documented and
severe, in alleging domestic violence via mental/emotional
abuse, but dismisses any suggestion that Respondent may be
[ ] less than an ideal litigant in regards to
execution/understanding of relatively complicated refinance
and/or ATROS obligations. [¶] Respondent, for his part,
appears aggressive, and inflexible. He has failed to comply

12
with court orders regarding the refinancing of the house, and
failed to move out as ordered by the court causing additional
litigation. Had he focused on the case in a more formal, less
adversarial manner, he may have been able to save his
house and reduce the cost of litigation for all.”
On December 24, 2018, both attorneys appeared
without their clients at a hearing for Sandra to obtain an
order to have an elisor sign the listing agreement for the
home, because James refused to cooperate with the sale.
The family law court noted that through incentives, the
court had strongly invited Sandra to find alternatives to
sale, but she wanted to proceed and sell the house. The
court ordered the court clerk to sign the paperwork and the
court set a hearing for sanctions. The court noted James
should strongly consider signing the paperwork, because
although the court had deep sympathy for him, the goodwill
and equity used to craft a decision that treated James as
fairly as possible without being unfair to Sandra was fast
disappearing.
The trial court issued its statement of decision on
December 26, 2018. On December 27, 2018, James’s
attorney filed a motion to be relieved as counsel based on a
breakdown in attorney/client communications. On
December 28, 2018, the family law court entered a judgment
of dissolution as to status and ordering spousal support. On
January 8, 2019, James filed a substitution of counsel and
proceeded in pro per.

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 Sandra filed objections to the statement of decision.
She also filed a motion to vacate the judgment as to the
order of permanent spousal support. James substituted in a
new attorney in February 2019. He filed a responsive
declaration to the motion to vacate. Sandra filed a reply.
A hearing was held on the objections and the motion to
vacate on March 5, 2019. The court overruled the objections
to the legal basis for the decision and findings on the issue of
spousal support. Sandra argued that the spousal support
order was contrary to the intent of the Legislature that
victims of abuse should not have to pay support to their
abusers under section 4320, subdivision (i). The court
explained, “The legislative intent was to avoid victims being
financially controlled. They’re now starting to call this
economic abuse. That is the opposite of what we have in our
case. Petitioner significantly outearns Respondent. [¶] I
did factor domestic violence into my decision. But, one, it’s
an overstatement of the law to say that, in cases where
domestic violence has occurred, spousal support is
preempted or not warranted. It is just one of many factors.
[¶] In this case, I do not see any hint of economic abuse
being perpetrated by Respondent against Petitioner. If I
were to find economic abuse in this case, which I don’t, it
would be the other way. It would be Petitioner economically
abusing the Respondent. [¶] I made a probably slightly
lower award to Respondent from Petitioner because one of
the factors included domestic violence. [¶] But under no
circumstances is it legally justifiable to leave Respondent in

14
a position where I moved him out of his home, with a
significantly favorable mortgage, reduced his standard of
living almost down to poverty when you factor in the fact he
has to pay for a place to live, when his income and his age
and his health preclude any meaningful ability to get
additional income, all leaving him at basically a minimum-
wage-style existence, after a 40-year marriage, while
Petitioner makes 7- or $8,000 a month, two or three times
what he makes. Certainly spousal support is both allowable
and, under those facts, mandated. [¶] So that’s the reason
for the award, and I would note that I believe it was
somewhat conservative. [¶] So that’s overruled.”
Sandra’s objection to ordering retroactive permanent
spousal support in the absence of a request for temporary
support was overruled. The court noted James filed his
response no later than November 2017 and asked for an
award of spousal support, so the court concluded that was
the date of jurisdiction. James was entitled to a ruling on
spousal support, but because of the progress of the case, no
ruling was made until the case was submitted in 2018. The
pendente lite range was between $1,000 and $1,500. Rather
than go back based on a higher pendente lite, the court used
the lower figure of $1,000. James should have received a
ruling on support based in 2017 or early 2018, but did not.
As the court explained, “He was entitled to it. He certainly
should have had a hearing and been awarded that amount,
maybe also attorney’s fees. It didn’t happen. [¶] So whether
you want to call it pendent[e] lite, retroactive, or permanent

15
spousal retroactive, which apparently case law says I cannot
do, whatever the label you put on it, he was entitled to a
ruling on the matter. He had requested a ruling on the
matter. The court did not get to that issue for over a year,
and I used the conservative amount. [¶] So I would overrule
the objection.” The court denied the motion to vacate the
judgment.
On March 11, 2019, Sandra filed a notice of appeal
from the judgment entered on December 28, 2018, and the
denial of the motion to vacate.

DISCUSSION

Statutory Scheme and Standard of Review for
Permanent Spousal Support

There are two distinct types of spousal support under
California law, based on the timing and the purpose of the
award. (In re Marriage of Mendoza & Cuellar (2017) 14
Cal.App.5th 939, 942 (Mendoza).) Temporary spousal
support, also known as pendente lite support, allows the
supported spouse to maintain the living conditions of the
marriage and meet his or her litigation needs while the
dissolution or legal separation action is pending. (Id. at
pp. 942–943.) Permanent spousal support is awarded to
provide financial assistance after dissolution as part of an
equitable apportionment between the parties. (Ibid.)
Temporary support and permanent support are governed by

16
different procedures. (Ibid.) James did not request
temporary spousal support, so we address solely the law
governing permanent spousal support.
“Permanent spousal support ‘is governed by the
statutory scheme set forth in sections 4300 through 4360.
Section 4330 authorizes the trial court to order a party to
pay spousal support in an amount, and for a period of time,
that the court determines is just and reasonable, based on
the standard of living established during the marriage,
taking into consideration the circumstances set forth in
section 4320.’ [Citations.]” (In re Marriage of Blazer (2009)
176 Cal.App.4th 1438, 1442.)
“An award of spousal support is a determination to be
made by the trial court in each case before it, based upon the
facts and equities of that case, after weighing each of the
circumstances and applicable statutory guidelines.
[Citation.] In making its spousal support order, the trial
court possesses broad discretion so as to fairly exercise the
weighing process contemplated by section 4320, with the
goal of accomplishing substantial justice for the parties in
the case before it. ‘The issue of spousal support, including
its purpose, is one which is truly personal to the parties.’
[Citation.]” (In re Marriage of Kerr (1999) 77 Cal.App.4th
87, 93 (Kerr).)
“In awarding spousal support, the court must consider
the mandatory guidelines of section 4320.” (Kerr, supra, 77
Cal.App.4th at p. 93, fn. omitted.) “‘[T]he court does not
have discretion to ignore any relevant circumstance

17
enumerated in the statute. To the contrary, the trial judge
must both recognize and apply each applicable statutory
factor in setting spousal support. . . .’ [Citation.]” (In re
Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559.)
“Once the court does so, the ultimate decision as to amount
and duration of spousal support rests within its broad
discretion and will not be reversed on appeal absent an
abuse of that discretion. [Citation.] ‘Because trial courts
have such broad discretion, appellate courts must act with
cautious judicial restraint in reviewing these orders.’
[Citation.]” (Kerr, supra, 77 Cal.App.4th at p. 93.)
“[W]e review spousal support orders under the
deferential abuse of discretion standard. [Citation.] We
examine the challenged order for legal and factual support.
‘As long as the court exercised its discretion along legal lines,
its decision will be affirmed on appeal if there is substantial
evidence to support it.’ [Citations.] ‘To the extent that a
trial court’s exercise of discretion is based on the facts of the
case, it will be upheld “as long as its determination is within
the range justified by the evidence presented.”’ [Citation.]”
(In re Marriage of Blazer, supra, 176 Cal.App.4th at p. 1443;
see also In re Marriage of Ciprari (2019) 32 Cal.App.5th 83,
110.)
“However, we conduct de novo review where a question
of law is presented on undisputed facts.” (In re Marriage of
Brewster & Clevenger (2020) 45 Cal.App.5th 481, 514
(Brewster).) When interpreting a statute, we begin with the
words in the statute, applying their usual and ordinary

18
meaning and construing them in context. (Mejia v. Reed
(2003) 31 Cal.4th 657, 663.) If the plain meaning of the
statutory text is ambiguous, then we may turn to rules of
construction or legislative history. (Ibid.)

Documented Evidence of Domestic Violence

Sandra contends that the family law court, in
considering the factors for an award of spousal support
under section 4320, failed to properly weigh her evidence of
domestic violence to reduce or preclude an award of
permanent spousal support. We find no abuse of discretion
has been shown.
The spousal support provisions of the Family Code
reflect “a strong public policy against requiring a victim of
domestic violence to provide support to an abusive spouse.”
(Brewster, supra, 45 Cal.App.5th at p. 502.) Section 4320,
subdivision (i), provided at the time that judgment was
entered in this case for the family law court to consider:
“Documented evidence, including a plea of nolo contendere,
of any history of domestic violence, as defined in Section
6211, between the parties or perpetrated 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

19
violence against the supporting party by the supported
party.” (Former Fam. Code, § 4320, subd. (i).)3
Documented evidence of a history of domestic violence
is a factor that the family law court must consider under
section 4320, subdivision (i), but the court is not required to
reduce or eliminate an award of spousal support under
subdivision (i). Had the Legislature intended to mandate
that the family law court reduce or eliminate spousal
support in every case where there was documented evidence
of a history of domestic violence, it would have used
language such as it has in other provisions of the dissolution

3Effective January 1, 2019, the Legislature amended
subdivision (i) of Family Code section 4320 to provide: “In
ordering spousal support under this part, the court shall
consider all of the following circumstances: [¶] . . . [¶] (i) All
documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties or perpetrated
by either party against either party’s child, including, but
not limited to, consideration of: [¶] (1) A plea of nolo
contendere. [¶] (2) Emotional distress resulting from
domestic violence perpetrated against the supported party
by the supporting party. [¶] (3) Any history of violence
against the supporting party by the supported party. [¶] (4)
Issuance of a protective order after a hearing pursuant to
Section 6340. [¶] (5) A finding by a court during the
pendency of a divorce, separation, or child custody
proceeding, or other proceeding under Division 10
(commencing with Section 6200), that the spouse has
committed domestic violence.” (§ 4320, subd. (i), as amended
by Stats. 2018, ch. 938, § 1.)

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statutes. By comparison, subdivision (m) of section 4320
expressly directs the family law court to consider a criminal
conviction of an abusive spouse “in making a reduction or
elimination of a spousal support award in accordance with
Section 4324.5 or 4325.” Section 4325, subdivision (a)(1),
establishes a rebuttable presumption that an award of
spousal support from the injured spouse to a spouse with a
criminal conviction for a domestic violence misdemeanor
entered within five years or during the course of the
dissolution proceeding is prohibited. (§ 4325, subd. (a)(1).)
Under the plain language of section 4320, documented
evidence of a history of domestic violence is a factor that
must be considered and weighed in the determination of
spousal support. The record reflects that the family law
court considered and weighed the evidence of domestic
violence in this case. The court’s discussion of the concept of
economic abuse did not indicate that the court
misunderstood or unreasonably limited the scope of the
evidence of domestic violence to be considered under section
4320, subdivision (i). There was no criminal conviction in
this case that required the trial court to apply subdivision
(m) of section 4320 or the rebuttable presumption against an
award of spousal support under section 4325. In denying the
motion to vacate the judgment, the family law court
specifically stated that the court had factored Sandra’s
evidence of domestic violence into the decision and reduced
the award of spousal support to James based on the history
of domestic violence. We are not persuaded that the family

21
court misapplied a factor in the weighing process or abused
its discretion.

Retroactivity

Sandra contends the family law court was not
authorized under section 4333 to order spousal support
retroactive to the date that James filed his response to the
petition for dissolution. We agree.
Prior to 1985, former Civil Code section 4801,
subdivision (a), allowed retroactive orders to modify spousal
support, but was silent about the retroactivity of original
support orders.4 In 1985, the Legislature amended former
Civil Code section 4801, subdivision (a), to extend

4 Civil Code section 4801, subdivision (a), formerly
provided in pertinent part: “In any judgment decreeing the
dissolution of a marriage or a legal separation of the parties,
the court may order a party to pay for the support of the
other party any amount, and for any period of time, as the
court may deem just and reasonable. . . . Any order for
support of the other party may be modified or revoked as the
court may deem necessary, except as to any amount that
may have accrued prior to the date of the filing of the notice
of motion or order to show cause to modify or revoke. At the
request of either party, the order of modification or
revocation shall include a statement of decision and may be
made retroactive to the date of filing of the notice of motion
or order to show cause to modify or revoke, or to any date
subsequent thereto.” (Former Civ. Code, § 4801, subd. (a), as
enacted by Stats. 1984, ch. 1661, § 3 pp. 5980–5981.)

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retroactivity to original orders of permanent spousal support
as follows in pertinent part in italics: “Any order for support
of the other party may be modified or revoked as the court
may deem necessary, except as to any amount that may have
accrued prior to the date of the filing of the notice of motion
or order to show cause to modify or revoke. Any order for
spousal support may be made retroactive to the date of filing
of the notice of motion or order to show cause therefor, or to
any subsequent date. At the request of either party, the
order of modification or revocation shall include a statement
of decision and may be made retroactive to the date of filing
of the notice of motion or order to show cause therefor, or to
any subsequent date.” (Former Civ. Code, § 4801, subd. (a),
as enacted by Stats. 1985, ch. 1358, § 3 pp. 4821–4822,
italics added.)
At the same time, the Legislature made substantially
similar amendments to former Civil Code section 4700,
subdivision (a), to allow child support orders to be made
retroactive.5 The Legislative Counsel’s digest for Senate Bill
No. 476 (SB 476), which amended sections 4700 and 4801,
noted that orders combining child and spousal support in

5 Civil Code section 4700, subdivision (a), formerly
provided in pertinent part: “Any order for child support, as
well as any order of modification of revocation of such an
order, may be made retroactive to the date of the filing of the
notice of motion or order to show cause therefor, or to any
subsequent date . . . .” (Former Civ. Code, § 4700, subd. (a),
as enacted by Stats. 1985, ch. 1358, § 1 p. 4820, italics
added.)

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one undivided amount are known as family support. (Legis.
Counsel’s Dig., SB 476 (1985–1986 Reg. Sess.) at p. 1.) SB
476 extended the existing law allowing modification orders
to be made retroactive to the date of filing the notice or order
to show cause to modify, to allow all orders for child or
spousal support to be made retroactive as specified. (Ibid.)
Whether the Legislature intended to allow original
spousal support orders to be made retroactive to the date of
the original complaint is not clear from the legislative
history. (See Sen. Com. On Judiciary, Analysis of Sen. Bill
No. 476 (1985–1986 Reg. Sess.) as amended April 8, 1986,
pp. 1–2 [stating SC 476 provides for retroactive support
orders “from the date of filing the original support action,”
but also stating it grants authority for retroactive orders “to
the date of filing the notice of motion or order to show
cause”].)
In 1992, the Legislature repealed former Civil Code
section 4801 and enacted Family Code section 4333 in its
place. (See Stats. 1992, ch. 162, § 3, p. 464 [repealing Civil
Code]; Stats. 1992, ch. 162, § 10 [enacting Family Code
section 4333].) Section 4333 continues the fourth sentence of
former Civil Code section 4801, subdivision (a) without
substantive change, stating, “An order for spousal support in
a proceeding for dissolution of marriage or for legal
separation of the parties may be made retroactive to the date
of filing the notice of motion or order to show cause, or to any
subsequent date.” (§ 4333.)

24
 In County of Santa Clara v. Perry (1998) 18 Cal.4th
435, 443–444 (Perry), the California Supreme Court
examined the legislative intent behind SB 476 to allow
retroactivity of original support orders. The Perry court
noted the legislative analyses had blurred the distinction
between filing a complaint and filing a motion. (Id. at
p. 444.) Because it was not unreasonable or absurd to
require filing a noticed motion or an order to show cause, the
Perry court concluded that child support orders under former
Civil Code section 4700, current Family Code section 4009,
could be made retroactive only to the filing date of the notice
of motion or order to show cause for support, not to the filing
date of the original complaint. (Perry, supra, 18 Cal.4th at
p. 446.) A year after the decision in Perry, the Legislature
amended section 4009 to clarify that “[a]n original order for
child support may be made retroactive to the date of filing
the petition, complaint, or other initial pleading.” (§ 4009, as
amended by Stats. 1999, ch. 653, § 8.)
In Mendoza, supra, 14 Cal.App.5th at p. 941, the
appellate court held that a permanent spousal support order
could be made retroactive under section 4333 only to the
date of filing of the notice of motion or order to show cause
regarding permanent support, not to the date of filing of the
original action. In Mendoza, the wife had filed a petition for
dissolution requesting spousal support, but did not request
temporary spousal support. (Id. at pp. 941–942.) The
Mendoza court held that since there was no noticed motion
or order to show cause concerning permanent spousal

25
support, there was no date to which the trial court could
make the spousal support order retroactive under section
4333. The Mendoza court noted that the Legislature could
have provided for original support orders to be made
retroactive to the filing date of the initial pleading, as it did
expressly in the statute governing child support orders and
as it did implicitly in the statute governing temporary
support orders by not including any limitation. (Mendoza,
supra, 14 Cal.App.5th at p. 943.) The Mendoza court also
noted the ways that a petition for dissolution is functionally
different from a notice of motion. (Ibid.)
A response to a petition for dissolution is not
equivalent to a notice of motion or an order to show cause
concerning permanent spousal support. It is clear that
under current California law, the family law court could not
order spousal support retroactive to the filing of the response
requesting an award of spousal support. The portion of the
judgment awarding spousal support must be reversed.
On remand, the family law court is directed to enter a
new spousal support order, to run from the date of the
December 28, 2018 judgment. At the time of rendering the
December 28, 2018 judgment, the family law court may or
may not have determined that the lump sum in retroactive
support James would receive had a material effect on the
amount of monthly support that was appropriate to order,
and would be applied prospectively. If on remand, in the
discretion of the court, and based on the record at the time of
the December 28, 2018 judgment, the amount of monthly

26
support awarded in the original order should remain the
same, regardless of James not receiving the previously
contemplated amount of retroactive support, the court may
simply modify the spousal support order to accrue as of the
date of its prior judgment. If, however, in the discretion of
the court, a different amount of monthly support is
appropriate based on that record in the absence of James
receiving the amount of retroactive support previously
contemplated, then the court may enter a new monthly
support order, to run from the time of the December 28, 2018
judgment.

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 DISPOSITION

The portion of the judgment awarding spousal support
is reversed and the matter is remanded for the trial court to
enter a new order of monthly support that runs prospectively
from the time of its prior judgment, and for the court to
exercise its discretion to determine the amount of that
monthly support based on the record at the time of its prior
judgment. In the interests of justice, the parties are to bear
their own costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.

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