Yorba Linda man says he shouldn't have to pay spousal support because ex-wife is in domestic partnership.

A Yorba Linda man has taken his spousal-support fight to the state Court of Appeals, saying he shouldn't have to pay his ex-wife $1,250 a month when she has entered a domestic partnership with her female companion. 

In June, an Orange County Superior Court judge ruled that Melinda Kirkwood's partnership wasn't equal to marriage under state law, and ordered Ron Garber to pay support. State law generally provides for alimony to end when a former spouse remarries.

Garber's attorney, William M. Hulsy, filed an appeal with the state appellate court last week. 

Lawyers say the California Supreme Court is watching how the Orange County case unfolds. It could be considered as the Supreme Court examines whether San Francisco can allow same-sex couples to marry.

The then-Melinda Garber filed for divorce in 2004 after 18 years of marriage. 

Hulsy said when Ron Garber, now 51, signed an agreement to pay alimony the following year, Garber didn't know his ex-wife had entered a domestic partnership.

That amounts to double dipping, Hulsy contends, because Kirkwood is entitled to some spousal benefits as a registered domestic partner.

"In our particular case, Melinda Garber, because she entered into a domestic partnership, is getting better treatment than if she had entered into a marriage," Hulsy said.

Orange County Superior Court Judge Michael Naughton ruled against Garber in June, setting up the appeal.

Melinda Kirkwood's attorney, Edwin Fahlen, said it's irrelevant whether and when his client had entered a partnership.

Garber "agreed to pay for it," Fahlen said of the spousal support. "There's plenty of cases where people get married, and that doesn't affect the bargained-for provision."

The courts have no easy course to resolve the question this case poses, said Charlotte Goldberg, a law professor at Loyola Law School in Los Angeles. 

"There already have been a couple of cases that have said a domestic partnership is not exactly the same as the marriage ? though they have many of the same rights as marriage," the professor said.

In addition, according to the state's family code, "If someone starts co-habiting with someone of the opposite sex, there's a presumption that there's less of a need of spousal support. ? But it doesn't say anything about the same sex," Goldberg said. 

On the other hand, Goldberg said, domestic partners make a commitment to support each other. The law says both are responsible "for each other's living expenses. It's very complicated, and the courts are going to have to work out whether (they) are going to treat domestic partnerships like marriage, or whether they would limit those rights."

Garber's appeal doesn't mean the case has finished at the county level.

Garber has yet to pay all of the support the court has ordered, leading his ex-wife to file a contempt of court complaint against him.

"He's paid some of the support. We're still determining how we're going to respond to that," Hulsy said.

Melinda Kirkwood did not return messages.

Garber, whose company offers real-estate seminars to agents, said he hadn't expected the attention his case has received on television and in publications across the country.

"I hope it makes a difference, and they get this loophole straightened out," he said. "I feel people should be able to live in whatever partnership they choose to live in. This is not about heterosexual or gay rights. It's about making sure this is fair."

From the Orange County Register.