In re Marriage of Mendoza & Cuellar

Filed 8/25/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of NOEMI M. MENDOZA and ELIAS R. CUELLAR.

NOEMI M. MENDOZA, G053820 Appellant, (Super. Ct. No. 14D004292) v. OPINION ELIAS R. CUELLAR,

Respondent.

Appeal from a judgment of the Superior Court of Orange County, Sherri L. Honer, Judge. Affirmed. Law Office of Worth L. Nicholl and Worth L. Nicholl for Appellant. No appearance for Respondent.

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Noemi M. Mendoza appeals the denial of her request to make a permanent spousal support order retroactive to the filing date of her petition for marriage dissolution. The trial court based its denial on Mendoza’s failure to request temporary spousal support. We agree such failure was fatal to Mendoza’s retroactivity request. Unlike with temporary spousal support, a court’s discretion to make a permanent spousal support order retroactive is limited by Family Code section 4333.1 The statute allows retroactivity only to the date of filing of the notice of motion or order to show cause regarding permanent support, not to the initiation of the action. We, therefore, affirm the judgment. FACTS In May 2014, Mendoza filed a petition for dissolution, seeking to dissolve her more than 22-year long marriage to Elias R. Cuellar. She used the relevant Judicial Council form for the petition and checked the box indicating she was seeking spousal support. Following a mandatory settlement conference, the parties came to an agreement on certain issues. Spousal support was among the few issues left for trial. Prior to the dissolution hearing, Mendoza filed a trial brief and various other documents, including some related to factors the court considers in determining whether to award permanent spousal support and the appropriate amount. The trial brief specified she was requesting “[t]he court make a permanent spousal support order, ordering [Cuellar] to pay monthly spousal support to [her] in accordance with her ‘Proposed Needs.’” Nowhere in the trial brief or in the accompanying documents did Mendoza request temporary spousal support. In mid-July 2015, the parties came to an agreement that resolved the amount of permanent spousal support Cuellar would pay Mendoza without the need for a