In re Marriage of Rosendale 6/28/04 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G031925

Case Date: 06/28/2004

Preview:Filed 6/28/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE In re Marriage of WARREN and CAROL L. ROSENDALE. WARREN ROSENDALE, G031925 Respondent, (Super. Ct. No. 00D000542) v. OPINION CAROL L. ROSENDALE, Appellant.

Appeal from a judgment and orders of the Superior Court of Orange County, Sheila B. Fell and Francisco F. Firmat, Judges. Affirmed in part, reversed in part, and remanded. Carol L. Rosendale, in pro. per.; Domestic Law Project and Merritt L. McKeon for Appellant. Family Law Appellate Associates, Jeffrey W. Doeringer; Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Respondent. * * *

A man and a woman entered into a premarital agreement shortly before their marriage. Eight years later, the woman was in a life-shattering automobile accident. At one point pronounced dead, the woman survived the accident. However, she suffered brain damage, internal injuries and numerous broken bones. She underwent fifteen reconstructive surgeries and is slated to have many more. A couple of years after the accident, her husband decided to move on. He filed a petition for dissolution of marriage. He also filed a motion to determine the validity and enforceability of the premarital agreement. In particular, he sought a determination that the waiver of spousal support was enforceable.1 The court entered an order granting the husband's motion. The wife later sought reconsideration of the order on the basis of a newly enacted amendment to Family Code section 1612. The amendment added a new subdivision, subdivision (c), to section 1612. The subdivision provides that a premarital waiver of spousal support will not be enforced if enforcement would be unconscionable at the time sought. The court denied the wife's motion and entered judgment. The wife appeals. She contends that it is unconscionable to treat her as a "disposable spouse" -- to cast her off without spousal support once she has been damaged. She argues that it is against public policy to deny her spousal support when she is mentally and physically devastated and unable to earn a living. We agree. Family Code section 1612, subdivision (c) is a codification of existing law. A court will not enforce a premarital waiver of spousal support, whether the premarital agreement is executed before or after the effective date of Family Code section 1612, subdivision (c), The provision at issue states: "In the event that the Parties terminate their present cohabitation arrangement or initiate dissolution of marriage proceedings, neither Party shall be liable to the other for living expenses, food, shelter, medical, dental or pharmaceutical expenses, or other necessities of life except as provided in this Agreement, and each Party waives and releases all rights and claims to receive money, property, or support from the other Party." 2
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if at the time of enforcement it would be unconscionable to do so. We reverse the order enforcing the spousal support waiver and remand to the trial court. We affirm an order concerning the status of certain jewelry and an order and a portion of the judgment concerning attorney fees. I FACTS A. Carol's Condition The wife, Carol Rosendale, in her declaration dated June 29, 2001, declared in part as follows: "3. On August 23, 1997, while still married to [Warren], I suffered a horrendous automobile accident due to no fault of mine. I suffered life threatening injuries, I was unconscious for 11 days and the doctors gave me survival odds of less than 1%. I was on life support full-time for 5 days. The doctors don't even know how many bones I broke, because there were just too many to count. I suffered permanent injuries that [require] continuous reconstructive surgeries. As of today, I have medical bills [totaling] more than $1,000,000.00. [

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