Filed 12/6/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of GENISE and 

DONN MICHAEL SCHU, JR.

2d Civil No. B269831

(Super. Ct. No. 1342880)

(Santa Barbara County)

GENISE J. GOMEZ,

 Appellant,

v.

DONN MICHAEL SCHU, JR.,

 Respondent.

California’s so called “No Fault Divorce” law does not 

require a court to ignore evidence of fault when deciding spousal 

support. This is especially the case when the spouse seeking 

support is guilty of domestic violence. The trial court denied 

Gomez support under Family Code section 4320, subdivisions (i), 

(m), (n), and (k)1. We affirm.

 

1 All statutory references are to the Family Code unless 

otherwise stated.
2

FACTS

Donn Michael Schu and Genise Gomez were married 

in 1986. They have three adult children, Aaron, Ashley and 

Evan. Gomez stopped working when Ashley was born in 1990. 

Schu works in the oil industry. He earns at least as much as he 

did at the time of the parties’ separation. He has the ability to 

pay whatever spousal support the court may order. Schu has 

been paying Gomez $500 per month temporary spousal support.

Between 1995 and 2001, Schu worked in Algeria. He 

would rotate between spending 28 days in Algeria and 28 days at 

home.

S. was Aaron’s best friend and the brother of Ashley’s 

best friend. Gomez became sexually attracted to S. while he was 

still a child. 

On the weekends, underage children, including S., 

would gather at the parties’ home. Gomez would provide alcohol. 

Aaron and his friends would sometimes drink to the point of 

vomiting. Gomez created a sexual atmosphere in her home. She 

showed pornographic movies to Aaron and his friends. Gomez 

sometimes watched pornography with S. alone. Aaron began 

having sex with underage girls in the home.

Gomez began having oral sex with S. when he was 12 

years old. It progressed to intercourse and lasted until S. was in 

college. They would have sex on the weekends. It happened 

mostly in Gomez’s home and sometimes in a car. S. tried to end 

the relationship, but Gomez threatened to tell his friends and 

family. S. would plead and cry, but Gomez insisted on continuing 

the relationship.

Gomez’s children did not know about her affair with 

S., but they had suspicions. One day Ashley came home 

unexpectedly. She saw S. dressed only in a towel and her mother 

in the shower. Aaron became concerned about his mother and S.
3

being in the bedroom with the door locked. Evan wondered why 

S. was at their house without Aaron.

Gomez was concerned that news of the affair was 

getting out on social media. She demanded that Ashley provide 

her with S.’s sister’s social media password. When Ashley 

refused, Gomez told Aaron to hold Ashley down while Gomez cut 

off “a big chunk” of her hair. Ashley’s hair, which had hung down 

to her lower back, was now at throat level. Ashley found it 

humiliating to go to school with her hair cut.

Due to the situation at home, Ashley felt she was in 

trouble emotionally. She had begun to cut herself. She asked 

Gomez to send her to a counselor. Gomez told her that if she 

went to a counselor, they would take her away. Ashley 

understood that to mean “don’t talk about what’s going on at 

home.” 

Ashley testified she does not plan to have children. 

She would not want her children to go through what she went 

through. She fears she will become like her mother. Her friends 

call her “mannequin” because she never has emotions or says how 

she feels. 

Gomez pled no contest to seven counts of unlawful 

sexual conduct with a minor. She was sentenced to six years in 

prison. 

Finances

The trial court found Gomez has sufficient assets to 

support herself. The court dissolved the parties’ marriage in July 

2012. Gomez received about $914,000 in assets. The assets 

include half of Schu’s retirement, valued at $650,000. Gomez will 

incur penalties if she withdraws the retirement funds before she 

is 59 1/2. In addition to $160,000 Gomez has of her own, she is 

listed on five or six bank accounts with her father. One of the 

accounts had approximately $200,000 in it.
4

Susan Miller, a vocational examiner, testified that 

Gomez could work as an event planner. Gomez told Miller that 

she “would be all right no matter what.” 

DISCUSSION

I

Gomez contends the trial court abused its discretion 

in allowing Schu to introduce evidence of fault and by using that 

evidence to deny support.

Gomez relies on section 2335. The section provides: 

“Except as otherwise provided by statute, in a pleading or 

proceeding for dissolution of marriage or legal separation of the 

parties, including depositions and discovery proceedings, 

evidence of specific acts of misconduct is improper and 

inadmissible.”

Dissolution of marriage may be “no fault.” But there 

is an element of fault in the award of spousal support. (See

1 Hogoboom & King, Cal. Practice Guide: Family Law (The 

Rutter Group 2016) ¶ 6:824, p. 6-417 [“Notwithstanding the ‘no 

fault’ mandate, probative evidence ‘in the nature of fault’ often 

comes up in contested spousal support cases.”].)

Gomez ignores the first phrase of section 2335, 

“Except as otherwise provided by statute . . . .” Section 4320 

governs the award of spousal support.

Section 4320, subdivision (a) provides that the court 

“may” order spousal support. Spousal support is not mandatory. 

The facts and equities in a particular case may call for no spousal 

support or very short-term support. (In re Marriage of Smith

(1990) 225 Cal.App.3d 469, 480-481.) Section 4320 provides that 

the court “shall consider all of the following circumstances: . . .” 

[Italics added.] One of those circumstances is domestic violence.

Section 4320, subdivision (i) provides: “Documented 

evidence, including a plea of nolo contendere, of any history of 
5

domestic violence, as defined in Section 6211, between the parties 

or perpetuated 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 violence against the supporting party by the 

supported party.” 

Section 6211 defines “‘[d]omestic violence’” as “abuse 

perpetuated against . . . (e) a child of a party . . . .”

Gomez’s conduct in providing her son with alcohol to 

the extent he drank himself sick and forcibly cutting her 

daughter’s hair qualifies as “domestic violence” by any reasonable 

definition of the term. But the trial court went farther. It 

applied the definition of “abuse” found in section 6203 to its 

finding of domestic violence. Section 6203 is part of the Domestic 

Violence Prevention Act. (DVPA; § 6200, et. seq.)

Section 6203, subdivision (a) provides in part “For

purposes of this act, ‘abuse’ means any of the following: . . . (4) To 

engage in any behavior that has been or could be enjoined 

pursuant to section 6320.” Among the behaviors listed in section 

6320 is “disturbing the peace of the other party.” The trial court 

relied on In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483

for the meaning of disturbing the peace. In Nadkarni the court 

said disturbing the peace of the other party means “conduct that 

destroys the mental or emotional calm of the other party.” (Id. at 

p. 1497.) The trial court concluded that section 4320, subdivision 

(i) applies because Schu and the children had been subject to 

emotional abuse for years.

Gomez argues that the definition of domestic violence 

adopted by the trial court is too broad. Gomez claims that under 

the court’s approach, having an extramarital affair, or refusing to 

help around the house, or buying too many shoes or refusing to 
6

engage in sex could be considered domestic violence. These 

quotidian examples pale in comparison to what happened here.

Gomez physically and emotionally abused her children to 

facilitate molesting a child. 

Gomez complains the court allowed Schu to present 

evidence of misconduct in violation of section 2335 then treated 

the parties’ reaction to the misconduct as evidence of domestic 

violence. This, Gomez argues, is circular reasoning.

But section 4320, subdivision (i) mandates that the 

trial court consider domestic violence. To fulfill this requirement, 

the court must allow evidence of misconduct. There is no conflict 

with section 2335, because that section begins, “Except as

otherwise provided by statute . . . .”

In addition, as a separate and independent ground, 

the trial court relied on section 4320, subdivision (n) which 

requires the trial court to consider “[a]ny other factors the court 

determines are just and equitable.” Gomez argues that we 

should read the subdivision as containing an exception for the 

fault of a party. But the subdivision contains no such exception.

We need not consider here what role the fault of a 

party may have on the award of spousal support in the ordinary 

case. This is far from the ordinary case. Here, in order to molest 

S., Gomez provided her son and other children with alcohol and 

pornography, and assaulted her daughter. When Gomez’s 

daughter tried to obtain help for the psychological damage Gomez 

caused, Gomez threatened her daughter with the warning she

would be removed from her home. In addition, Gomez’s 

children’s testimony made it clear that their sense of humiliation 

and betrayal caused by Gomez’s arrest and conviction was 

psychologically devastating. Finally, the harm Gomez caused to 

S. and his family cannot be calculated. In this case the trial court 
7

was more than justified in denying Gomez spousal support under 

Section 4320, subdivision (n).

The trial court also took into account the “balance of 

the hardships to each party.” (§ 4320, subd. (k).) Gomez had 

assets of her own, including $160,000 and five or six bank 

accounts she holds with her father. By Gomez’s own admission, 

she “would be all right no matter what

Gomez claims it is speculation that she has any 

interest in the bank accounts she holds with her father. But it is 

not speculation. It is reasonable to conclude that a person whose 

name is on a bank account has a beneficial interest in that 

account.2

DISPOSITION

The judgment (order) is affirmed. Costs are awarded 

to respondent.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

 

2 Because section 4320, subdivisions (n) and (k) are a 

sufficient basis for denying support, we need not consider 

subdivision (m).
8

Colleen K. Stern, Judge

Superior Court County of Santa Barbara

______________________________

Griffith & Thornburgh and Bruce D. Glesby; 

Ferguson Case Orr Paterson and Wendy C. Lascher for 

Appellant.

Law Offices of Ralph B. Wegis, Ralph B. Wegis, Barry 

E. Rosenberg and Edward Gordon; Wilson & Pettine and Paul 

Pettine, III for Respondent.