Monday, November 3, 2025
Page 3
Court of Appeal:
No Conflict Between Two Laws Governing Post-Death Support
Opinion Says Order Requiring One Divorcing Spouse to Create $3 Million Trust to Support Other After He Dies Is Not Precluded by Family Code Section Providing That Obligations Terminate Upon Demise of Either Party
By Kimber Cooley, associate editor
Div. Three of the Fourth District Court of Appeal has held that an order in marital dissolution proceedings requiring that an elderly husband establish a $3 million trust to provide for the support of his wife, 13 years his junior, after he dies is authorized under the Family Code and is not precluded by a separate provision that specifies that alimony obligations terminate upon the death of either party.
At issue is the interplay between two Family Code provisions—§4360, which provides that a judge may order one spouse “to establish a trust to provide for the support of the supported spouse, so that the supported spouse will not be left without means of support in the event that the…support is terminated by the death” of the other party, and §4337, which establishes that “the obligation…for the support of the other party terminates upon…death.”
Acting Presiding Justice Eileen C. Moore authored Thursday’s opinion, joined in by Justice Maurice Sanchez and Orange Superior Court Judge Julianne Sartain Bancroft, sitting by assignment, rejecting the assertion that the two sections are in conflict. Moore wrote:
“Section 4337 provides that ‘the obligation of a party under an order for the support of the other party terminates upon the death of either party,’ but this is not in conflict with section 4360, which does not state otherwise. Rather, section 4360 allows the court to order the purchase of an annuity, the maintenance of life insurance, or the establishment of a trust while the supporting spouse is still alive. Section 4360 does not create a separate support obligation for the estate, for example, in a manner that might bring it into direct conflict with section 4337.”
Divorce Proceedings
Appealing the trial court’s order was Glen Nelson, who filed for divorce from Kathy Schroeder Nelson in April 2021, after 36 years of marriage. He was 78 years old at the time of the ensuing trial in October 2022, residing in an assisted living facility, and had net assets that exceeded $24 million.
Kathy Nelson had an active CPA license but had not worked full-time since 1989, opting instead to act as a homemaker and caregiver for the couple’s child and her husband’s parents before they died. The parties had entered into a premarital agreement a few days before their 1984 wedding, and they stipulated in the divorce proceedings that the contract was valid except for the spousal support provision.
Temporary Orange Superior Court Judge Nancy Wieben (a retired jurist for the court serving as a private judge) presided over the matter, which was submitted to JAMS for trial. In June 2023, Wieben ordered Glen Nelson to pay Kathy Nelson $20,000 a month until the death of either party, absent changed circumstances.
Wieben noted significant health differences between the parties and opined that “[t]he circumstances of this case render a Family Code section 4360 order just and reasonable” due to the fact that “Kathy will need to rely on spousal support the rest of her life” as she “has no capacity to…support herself at or near the marital standard of living.”
A statement of decision was issued, incorporating a partial judgment. It provides:
“The Court orders security for spousal support…in the form of a trust….The trust shall have assets, upon the death of Husband to provide monthly spousal support payments at the Court-ordered amount until statutory terminating conditions shall occur, eliminating the obligation….In light of the support amount ordered in this Judgment and Wife’s potential lifespan, the initial asset value should not be less than $3 million.”
Termination Upon Death
On appeal, Glen Nelson argued that the spousal support order violates Family Code §4337, saying in his opening brief:
“Missing from the lower court’s order is a provision for termination upon Glen’s death. There is further no agreement of the parties waiving termination of spousal support upon Glen’s death. The lower court’s spousal support order violates Family Code Section 4337 in that it does not terminate upon the death of Glen.”
Unpersuaded, Moore noted that where statutes conflict, the more specific provision will be deemed to take precedence, remarking:
“Here, it could not be more evident that section 4337 is the more general statute and section 4360 is the specific one. Were we to find a conflict, the more specific statute would control.”
Saying that there was no actual conflict, however, she pointed to commentary to the Family Code provided by The Law Review Commission, which interpreted §4337 as requiring an “insurance policy, annuity, or trust” as “part of the support order at the time it is issued.” Agreeing with that view, she concluded:
“In short, the two statutes operate together, and there is no conflict.”
Just, Reasonable Order
As to Wieben’s finding that the order was just and reasonable under the facts of the case, Moore wrote:
“The court had substantial evidence to support its conclusion that Kathy required spousal support for the remainder of her life….
“Due to the premarital agreement, there was little in the way of community property except for a partial interest in the family home. While Glen had a net worth exceeding $24 million, Kathy’s assets were comparatively ‘minimal.’ She had roughly $1.2 million in investments. An IRA, her sole retirement account, was worth $127,000.”
The jurist acknowledged that case law applying §4360 is sparse, commenting:
“Section 4360 does not often appear in case law, but this is not particularly surprising. Only rare dissolution cases involve a litigant with a net worth exceeding $24 million and a marital standard of living of over $29,000 a month.”
However, she added:
“Glen also claims the paucity of case law on this issue legally establishes that section 4360 is a ‘rare, drastic, and unusual remedy.’ He offers no citations to authority for the implication that either the trial court or this court must therefore make special or additional findings before applying the code as written. Any such implication would be incorrect. The only requirements of section 4360 are set forth in the statute—the court must find that an order under the statute ‘is just and reasonable in view of the circumstances of the parties.’…The court, as we explained above, did so here.”
The case is Marriage of Nelson, 2025 S.O.S. 3092.
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