Family Code Section 4322: Secret Weapon in High Wealth Spousal Support Cases?

• Publication year: 2024
• Citation: Vol. 46 No. 1
• Author: Written by Robert A. Roth

FAMILY CODE SECTION 4322: SECRET WEAPON IN HIGH WEALTH SPOUSAL SUPPORT CASES?

Written by Robert A. Roth^*

A statute with origins in 1872 has potentially dramatic implications for the spousal support rights of the ultra-wealthy. Family Code section 4322 states that "no [spousal] support shall be ordered or continued" when the conditions of the statute are met. Section 4322 offers an avenue for opposing support independent of the amorphous section 4320 factors and may support denial of support even when one spouse has a bigger asset base or higher earning capacity than the other. Yet, the statute is frequently overlooked by litigators and has received surprisingly little discussion in the published case law.

The power of section 4320 is illustrated by the fact that the author recently won an appeal reversing a $972,000/year Ostler-Smith spousal support award for the trial court's failure to properly consider section 4322, which ultimately will likely save our client millions of dollars.¹ This article explores the wording, history, and strategic application of section 4322 when support is at issue in high asset cases.

A. THE TEXT OF FAMILY CODE SECTION 4322

Family Code section 4322 has origins in 1872, and has existed in its present form for the past eighty years. The current text provides: In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party.

In essence, the statute's text mandates denial of support in all cases where a spouse has sufficient income or assets to provide themself with "proper support."

This article will review the historical roots of section 4322, analyze the components and requirements of the statute, and address strategic application of this formidable legislation.

B. THE STATUTORY HISTORY OF FAMILY CODE SECTION 4322

Section 4322 has its origins in California's initial Civil Code, which was enacted in 1872 to codify the then-existing common law rules.² At that time, Civil Code section 5 provided (and still provides): "The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments."

Under California common law before enactment of the Civil Code, a husband's "willful neglect," "such as leaves the wife

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destitute of the common necessaries of life, or such as would leave her destitute but for the charity of others," was an actionable ground for divorce.³ But a claim for divorce would not lie if the wife had earnings or property sufficient to provide such support for herself.⁴

The principal alimony statutes enacted with the advent of the original Civil Code in 1872 were former Civil Code sections 136, 137, 139, and 142. Former Civil Code section 139 provided that when a divorce was granted, "the Court may compel [husband] . . . to make such suitable allowance to the wife, for her support during her life, or for a shorter period, as the Court may deem just. . . ."⁵ Former Civil Code section 136 gave courts discretion to "provide for the maintenance of the wife and her children . . . by the husband," even if a fault-based divorce decree was denied.⁶

Former Civil Code section 137 recognized an independent cause of action for support "[w]hen the husband willfully deserts the wife," irrespective of whether a divorce action was filed, and provided that the court may "require the husband to pay as alimony any money necessary to enable the wife to support herself . . . ."⁷ Under section 137, a finding of "wilful neglect" would require an award of support but, as at common law, if a spouse's "earnings were sufficient to supply her with the common necessaries of life without assistance from others then she was not destitute and [her marital partner] did not wilfully neglect her."⁸

Family Code section 4322 is a revision of former Civil Code section 142, a statute that specified circumstances in which support could be denied. From 1872 through 1939, section 142 gave trial courts the discretion to deny spousal support when a spouse had "either a separate estate, or there is community property sufficient to give her alimony or a proper support . . . ."⁹ A 1939 amendment to section 142 expanded the discretionary grounds for denying spousal support to include when a spouse "is earning his or her own livelihood," or when "custody of the children has been awarded to the other party, who is supporting them."¹⁰

A 1943 amendment to former Civil Code section 142 enacted the modern version of the statute.¹¹ The discretionary provisions of the one-sentence 1939 version of the statute were left unchanged. However, the Legislature added a second sentence identifying a circumstance in which denial of spousal support is mandatory: "Where there are not children, and either party has a separate estate sufficient for his or her proper support, no allowance shall be made from the separate estate of the other party."¹²

In 1969, when the Family Law Act was enacted, former Civil Code section 142 was moved to former Civil Code section 4806.¹³

A 1970 amendment to former Civil Code section 4806 altered the second sentence of the statute to make clear that the prohibition of spousal support awards to persons who can provide their own proper support applies in modification proceedings, as well as original proceedings, and that a party's separate estate "include[es] income from employment."¹⁴ The 1970 amendment also modernized the statute's language.¹⁵

In 1992, when the Family Code was created, the first sentence of former Civil Code section 4806 was moved to Family Code section 4321 without substantive change.¹⁶ The second sentence was moved to Family Code section 4322, also without substantive change.¹⁷ Thus, the Legislature apparently separated a court's discretionary power to terminate support ("may deny support") under section 4321 from a mandatory provision prohibiting any support award ("no support shall be ordered or continued") when the statutory criteria are met.

The text of section 4322 has...