SUBJECT
|
CASE NAME AND BRIEF FACTS ON FAMILY LAW
|
730
evaluation
|
In
re Marriage of Laurenti
(2007) 154 Cal.App.4th 395 , filed 4-25-07. Court must
determine reasonable compensation for services before ordering
mother to pay all fees billed by subsequently disqualified court
appointed evaluator. Evaluator on custody does
conflict of interest and is removed from case by motion of wife.
Court makes her pay costs of evaluator. Trial court should have used
EC 730 and CRC 5.220(d)(1)(D) to decide how and who pays evaluator.
Remanded.
|
Accounts
joint
|
Lee
v. Yang (2003) 111 Cal.App.4th 481.
This not family law case. Man and woman move in and plan to
get married. They have joint account. Breakup occurs and she takes
the money from the account. Does she have to reimburse him?
No. page 493. There was no restriction on how much each could take
from the account and no legal obligation to return them. She had a
unrestricted to withdraw and apply the funds to her own benefit,
ownership of the funds passed to her by way of gift, within the
meaning described above.
|
Acronyms
|
There
are many acronyms and abbreviations in family law. A few are stated
below:
·
UIFSA = Uniform Interstate Family Support Act
(Family Code 4900)
·
FFCCSOA = Federal Full Faith and Credit for Child
Support Orders Act (28 U.S.C. 1738B
·
FPKPA = Federal Parental Kidnapping Prevention Act
(28 U.S.C. 1738A)
·
FSIA = Foreign Sovereign Immunities Act (28 U.S.C.
1604)
·
DPPA = Deadbeat Parents Punishment Act (18 U.S.C.
228)
·
ICWA – Indian Child Welfare Act (25 U.S.C.
1911(d))
·
UIEDVPOA – Uniform Interstate Enforcement of
Domestic Violence Protection Orders Act. (Family Code 6400 et seq.)
·
CLETS –
California
Law Enforcement Telecommunications System (Family Code 3680)
·
QDRO – Qualified Domestic Relations Order
·
QJSA – Qualified Joint Survival Annuity (After
retirement when Participant dies the Alternate Payee gets a certain
amount of money monthly for life)
·
QPSA – Qualified Pre-retirement Survivor Annuity
(BEFORE retirement and Participant dies. The Alternate Payee
receives a certain amount of money monthly for life)
·
ERISA – Employee Retirement Income Security Act
·
UPA – Uniform Parentage Act (Family Code 7600)
·
DROP – Deferred Retirement Option Program
·
QMSCO – Qualified Medical Child Support Order
(29 U.S.C. §1169)
·
COBRA – Consolidated Omnibus Budget
Reconciliation Act
·
FICA – Federal Insurance Contributions Act –
Social Security taxes
·
UIFSA – Uniform Interstate Family Support Act
·
TANF – Temporary Assistance to Needy Families
·
AFDC – Aid to Families with Dependent Children
– old name for TANF
·
MDIT – Mullti Disciplinary Child Interview Team
– Family Code 3118(b)(4)
|
Actions
|
Since
marriage dissolution jurisdiction rests on either party's domicile
in the forum state, spouses domiciled in different states
might each file dissolution proceedings in their respective states.
Similarly, family law proceedings might be pending in more than one
state where, after an action is filed in one state, either or both
parties move and attempt to invoke the new domiciliary state's
jurisdiction on the same controversy (In re Marriage of Zierenberg
(1992) 11 Cal.App.4th 1436, 1441-1442)
|
Active
concealment
|
(2)[18:12]
Estoppel defense to child support enforcement based on
custodial parent's "active concealment":
Evidence that the custodial
parent actively concealed himself or herself and the children from
the obligor parent may effectively bump the custodial parent out of
court in an action to enforce child support arrearages.
Where the children are adults at the time of the arrearages action,
such evidence may equitably estop the custodial parent from
collecting child support that accrued during the concealment period.
[Marriage of Damico (1994) 7 Cal.4th 673, 685, 29 Cal.Rptr.2d 787,
794; but see Warga v. Cooper (1996) 44 Cal.App.4th 371, 377-378, 51
Cal.Rptr.2d 684, 688--concealment defense waived if not raised
before entry of arrearages judgment]
However, this "estoppel by concealment"
defense is narrowly drawn: It does not apply where the
concealment ends during the children's minority (even if they are
adults when the enforcement action commences). [Marriage of Comer
(1996) 14 Cal.4th 504, 510, 516, 59 Cal.Rptr.2d 155, 156, 160;
Marriage of Vroenen (2001) 94 Cal.App.4th 1176, 1182-1183, 114
Cal.Rptr.2d 860, 865]
|
ADA
|
Marriage
of James and Christine C. (2008) 158 Cal.App.4th 1261. Wife bipolar
and cancer. She want continuance based on
ADA
ant CRC 1.100. Court said no but court of appeals reverses. If court
does deny continuance on
ADA
grounds it must do so on one of the three requirements of CRC 1.100.
Trial court did not do so here. Reversed.
|
Animals
|
A
court may include animals kept in a party's residence within
the scope of a family law protective order under Family Code
section 6320.
|
Appeal
|
Marriage
of Askmo, (2000) 85 Cal.App.4th 1032 filed 1-28-00. Court did not
abuse discretion by awarding to wife Spousal Support and attorney
fees while husband's appeal of default judgment set aside judgment
was pending. Ybj 111
|
Appeal
|
CRC
5.128 on appeals interlocutory.
|
Appeal
|
In
re Marriage of Dupre (2005) 127 Cal.App.4th
1517 filed 3-3-05. Sanctions order can be appealed
even if appeal is from an unsigned minute order that fails to direct
preparation of a written order and is not a dismissal of the action
under Code Civ. Proc. 581d. Also the order is appealable under Code
Civ. Proc. 904.1(a)(2)
|
Appeal
|
In
re Marriage of Lafkas (2007) 153 Cal.App.4th 1429
bifurcated trial – when appeal from bifurcated trial need
certificate of probable cause from the trial court. Also required by
Family Code 2025 also see CRC 5.180(b), et al. They can still appeal
at the end of the case on an appeal on the case.
|
Appeal
|
Department
of Child Support Services v. Winn (2008)
filed 5-27-08 Commissioner's
proposed statement of decision concluding county may order genetic
testing is not final judgment from which alleged father may appeal.
Order for genetic testing was just discovery and appeal is only from
final judgment. Court of Appeals will not treat it as a writ
petition.
|
Appeal
sanctions
|
In
re Marriage of Gong and Kwong (2008) 163 Cal.App.4th 510
filed 5-29-08 Where
it appears to reviewing court that appeal was frivolous, it may add
to costs such damages as may be just. The appeal was no merit and
just to delay. Sanctions to be paid to court clerk for costs of
appeal and other side on attorney fees.
|
Appeala
|
Marriage
of King (2000) 80 Cal.App.4th 92. filed
4-25-00. Appellate court may not review appeal of judgment when the
appeal is untimely, even if it is timely for an appeal on a motion
to set aside the motion. Ybj81
|
Appeals
|
If
one side no file an appeals brief not treat as default.
Appeals court will examine the record, appellant's brief and any
oral argument by appellant to see if it supports any claims of error
made by appellant. See CRC 17(a)(2) In re Bryce (1995) 12
Cal.
4th 226, 232-233
|
Appeals
|
In
re Marriage of Lafkas (2007) 154 Cal.App.4th 1429
filed 8-6-07 . Husband's appeal is dismissed in absence of
certificate of probably cause and court order allowing appeal on
bifurcated issue. Bifurcate on issues on the business. Court
made order. Husband appeals. They should have gotten certificate of
probably cause. Special rules when appeal bifurcated issue. Can
still appeal at the end when all issues decided.
|
appeals
|
In
re Marriage of Feldman (2007)
154 Cal.App.4th 1470 filed 7-20-07
Trial court not required to issue statement of decision. Code
Civ. Proc. 632 not apply to OSC and motion hearings. Court did issue
"Findings and Order After Hearing" that should be adequate
for an appeal. Good cites on statement of decision. At end of case.
|
Arbitration
|
Schatz
v. Allen, et al (2009) 45 Cal.4th 557
Yes, attorneys can have binding arbitration clauses in
fee retainer agreements. Can do before a dispute comes up.
|
Arbitration
award
|
IRMO
Corona (2009) 172 Cal.App.4th 1205 an order confirming the
arbitration award is not an appealable post judgment order under CCP
904.1 because . . . . – where order is silent as to statutory
basis for sanctions order, court will affirm on any basis supported
in the record. – no need Income and Expense Declaration for
Family Code 271 sanctions.
|
Arrearagea
|
This
was a modification by dad to reduce the amount retroactively. This
he cannot do. Only if mom or the state was seeking to enforce the
order against him could the court make a retroactive reduction.
Santa Clara
v.
Wilson
(2003) 111 Cal.App.4th 1324
filed 9-11-03. Comment: Hair splitting here. Dad will just
have to wait till the state or mom seeks to enforce it. Then he can
ask for retroactive modification. Really does not make that much
sense. Court lacked power to eliminate child support arrearage
that accrued before parent filed modification motion. Ybj240
|
Arrearages
|
For
mom. When the concealment is for up to when the children reach the
age of majority then the arrearages can't be collected. However when
the concealment ends when the minors are still children then it is
not a defense to back Child Support being owed. The message is that
the dad's recourse for concealment by mom lies with the remedies
provided by the legal system in going back to court and not the
extra-legal self help of just not paying Child Support. Marriage of
Vroenen (2001) 94 Cal.App.4th 1176. Only when the minors become
adults during the time support not paid is it an estoppel. Otherwise
the father must go to court to do something. Ybj158
|
Arrears
Child Support
|
IRMO
Danny C. and Shannon Hopkins (2009) 173 Cal.App.4th 281
filed 4-23-09 Levy on bank account to collect Child
Support arrears improper where father is disabled and receiving
Social Security disability insurance. Family Code 14500
discussed. His sole income is SSDI – he was paying the arrears but
it was levied on by Department of Child Support Services anyway.
That was wrong.
|
atro
|
A
unilateral elimination of the right of survivorship to property will
not violate the Automatic Temporary Restraining Orders of Family
Code 2040(a)(2) automatic TRO provided that notice of that change is
filed and served on the other spouse before it takes effect. Family
Code 2040(b)(2)
|
Attorney
|
State
bar discusses the duties of attorney who hire contract
attorneys to appear for them and the duties of contract
attorneys who advertise for, and make such appearances. CA Eth. Op.
2004-165, 2004 WL 3079030, 4-15-2005 – basically contract
attorneys held to same standard of care as the attorney.
|
Attorney
|
Wife
wins for reasons stated. Once the substitution of attorneys was
filed and she instructed the court not to grant attorney fees then
the attorneys have no power to get attorney fees from husband.
Lesson here is once that substitution is filed with the court the
attorneys had basically no power to get attorney fees from husband.
In re Marriage of Read (2002) 97 Cal.App.4th 476 ybj180
|
Attorney
bind client
|
In
re Marriage of Knabe and Brister, filed 9-6-07 (2007) 154
Cal.App.4th 1316 Stipulation
agreeing to transfer exclusive jurisdiction over Child Support is
valid and enforceable even if signed by attorneys, and not parties
themselves. Good on powers of attorneys to bind clients. If
involved substantial rights it must be signed by parties themselves.
This was a procedural matter that attorneys can stipulate to.
It is a major procedural matter but can still litigate the case in
California
. Did not settle the case or end the case which would be a
substantial right. Also he went to court in
California
earlier and did not contest the stipulation.
|
Attorney
client relationship
|
The
fiduciary relationship between the attorney and client does not
spring into existence until creation of the attorney client
relationship by some form of contract. Consequently, attorney and
prospective client are clearly free to negotiate at arm's length on
the subject of attorney compensation. Once the retainer
agreement is signed there is then a fiduciary relationship.
Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 913
|
Attorney
error
|
Nothing
in the State bar Act or the California Rules of Professional Conduct
precludes a law firm (or attorney) from representing a client who is
challenging the validity of a document that it prepared for the
client, and disqualification on that basis generally will not be
warranted. Concededly, such an "about face" may be awkward
and may create an appearance of professional impropriety, but that
does not itself support an attorney's disqualification under
California
law. Hetos Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36,
47-48
|
Attorney fee
|
Marriage of
Keech. (1999) 75 Cal.App.4th 860
Before ordering husband to
pay wife's
attorney and accountant fees trial court must consider ability
to pay and
reasonableness
of fees.
Ybj66
|
Attorney
fees
|
Soukup
v. Stock (2004) 118 Cal.App.4th 1490. Although defendant
in pro per could not recover attorney fees for own time, if assisted
by another attorney, P could be liable for those fees.
|
Attorney
fees
|
In
re Marriage of Hobdy (2004)
123 Cal.App.4th 360
filed 10-21-04 Husband may be compelled to pay wife's attorney
fees even though they were initially denied. She not get fees at
motion OSC. However one asked for a motion for reconsideration and
attorney fees were given then. That is OK.
|
Attorney
fees
|
In
re Marriage of Cueva (1978) 86 Cal.App.3rd 290. Family law case on
what court should look for in awarding attorney fees. Not just on
code sections. Temp on this 1aff.
|
Attorney
fees
|
Erickson
and Lerner filed 7-21-06. Court has jurisdiction to order husband
to pay attorney fees directly to law firm which previously
represented former wife. Read, Meadow and Borson cases
discussed. Attorneys file for attorney fees from spouse before
Substitution of Attorneys filed against them. This is OK even if the
court makes order after the Substitution of Attorneys is filed. Key
fact is that the request for attorney fees was made with the former
clients approval. If approval given then OK. Only if former client
not want attorney to get fees from other side does this prevent
getting fees.
|
Attorney
fees
|
In
re Marriage of Leonard and Jude Green (2006) 143 Cal.App.4th 1312
filed 10-13-06 Entry of marital dissolution judgment
ordering payment of attorney fees gave attorneys independent
statutory right to enforce judgment under Family Code 272.
Although an attorney's right to fees in a dissolution action
is "derivative" of the client right. Once judgment is
entered the attorney can enforce the fee award directly. Can get
interest also.
|
Attorney
fees
|
That
the party requesting the award of attorney fees has the resources to
pay his/her own attorney fees and costs is not in itself a bar to
ordering the other party to pay part or all of the fees and costs
requested. Financial resources are only one factor the court
considers in apportioning the litigation costs equitably between the
parties under their relative circumstances Family Code 2032(b) and
In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 884
|
Attorney
fees
|
Any
award of attorney fees or costs in a marital action must be based on
1. A determination of ability to pay and 2. consideration of the
party's respective incomes and needs in order to ensure each party's
access to legal representation to preserve all of his or her
frights. Family Code section 2030(a).
|
Attorney
fees
|
Musaelian
v.
Adams
(2007) 154 Cal.App.4th
481a attorney
representing himself in pro per not entitled to Code Civ. Proc.
128.7 sanctions from the
other side.
|
Attorney
fees
|
IRMO
Alan T.S. and Mary T. (2009)
filed 3-18-09 Pendente
lite attorney fee order reversed when court fails to consider all
relevant factors per Family Code 2030. – Reversed on attorney fee
award because court did not consider the "big picture" of
the income and needs of both parties. Ruled without proper evidence
shown. Family Code 2032 requires: (A) the respective incomes and
needs of the parties, and (B) any factors affecting the parties'
respective abilities to pay
|
Attorney
sanctions
|
If
sanctions against an attorney are desired, they must be sought under
Code Civ. Proc. 128.5 or Code Civ. Proc. 128.7
In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1110
|
Attorney
threats
|
Threats
to "call the district attorney's office" or otherwise
press criminal charges "to obtain an advantage in a civil
dispute" are expressly forbidden by the Rules of Professional
Conduct; and so are threats to present administrative or
disciplinary charge for an improper purpose. See
California
Professional Conduct Rule 5-100 and Nguyen v. Proton Technology
Corp. (1999) 69 Cal.App.4th 140, 152
|
Attorneys
|
There
is "quasi judicial immunity" for people who, though not
judges, are acting in a judicial or quasi judicial capacity. This
might be a psychologist doing an evaluation, attorney volunteer at a
settlement conference or judge pro tem.
Howard v. Drapkin (1990) 222 Cal.App.3d 843, 853-854
|
Avoid
Child Support
|
Cabral
v. Martins (2009) motion
to strike under anti SLAPP statute (CCP 415.16) granted where ex-wife
alleged that attorneys aided ex-husband in avoiding Child
Support payments. Father way behind in Child Support.
attorneys draw up will for his mother to leave him out so he won't
have money for Child Support. She does not have a cause of action.
Civil Code 1714.4. Child Support evasion usually used against barter
for items to avoid money, friends assist Child Support obligor by
helping then conceal assets or employers who employ them without
reporting.
|
Bankrupt
|
Wife
argues: "You filed in the wrong court. You should have filed
for an automatic stay in bankruptcy court. This is a bankruptcy core
proceeding. You could only proceed in state court on the
characterization action only by first obtaining relief from the
automatic stay in the bankruptcy court." -- Wife wins for
reasons stated. Although bankruptcy and family court have concurrent
jurisdiction it is not true in proceedings that are unique to
bankruptcy. He should have sought relief from the stay and let the
bankruptcy court let him proceed in family court to determine if the
order was in the nature of support or not. In re Marriage of Sprague
(2003) 105 Cal.App.4th 215
ybj219
|
Bankrupt
|
Under
the laws of this state (
Massachusetts
) courts are allowed to order property as a form of support. The
lengthy pay out period, my limited income and resources and other
factors indicate that this is a form of support." For Kathleen
for reasons stated. Keep in mind that this is a
Massachusetts
case. The court indicated it was a close case and that Paul should
have argued for a remand back to the lower court to spell out what
was a property division and what was support. There are other
factors here. Even if it was not for support the court could do a
balance as to "paragraph
15" on who it was more of a hardship for. Werthen
case, filed 5-27-03
ybj233
|
Bankrupt
|
In
re Marriage of Gioia (2004) 119 Cal.App.4th
272. Bankruptcy case. Husband
go bankrupt and bankruptcy court sign deed to wife. The
bankruptcy court deed was not effective. It was just to announce
that the bankrupt court had no claim. It was a formality. The deed
has no effect. Look to the family law court and Marriage as to title
to the realty.
|
Bankrupt
|
In
re Marriage of Williams (1984) 157 Cal.App.3rd 1215 – order for
wife to pay husband money as part of property settlement. She goes
bankrupt on this. Can she do so? Yes, she can do this. Family law
court can't make a new property settlement agreement taking this
into consideration. Court can't modify Spousal Support or income
from retirement to adjust for this.
|
Bankrupt
|
Rousey
v. Jacoway (2005) --- US ----. Debtors can exempt assets in their
IRA from the bankruptcy estate per 11 USC section 522(d)(10)(E)
|
Bankrupta
|
In
re Leibowitz (2000) 217 F3d 799 (9th circuit) – holds
that dad can't go bankrupt on welfare reimbursement before or after
the county sues for welfare reimbursement. It is in the nature of
Child Support. This changes previous law that said he could. Ybj126
|
Bankruptcy
|
Marriage
of Harris and Croce (2007)158 Cal.App.4th 430
filed 12-11-07 Debt incurred during marital dissolution is
discharged by debtor spouse's later bankruptcy only if conditions of
title 11 USC Section 523(a)(15) are met. Not so easy to get off
divorce debt and go bankrupt. Must consider other ex-spouse.
Reversed and remanded. Trial court must examine conditions of
523(a)(15) – trial court ordered him to pay directly to the
creditors on Wage Assignment. Court should have examined case under
523(a)(15) on does debtor have the ability to pay or would discharge
of the debt result in a benefit to the debtor that outweigh the
detrimental consequents to a spouse or child of the debtor. Can't
assign the debt as Spousal Support.
|
Box
checking
|
[3:277]
Compare--contested cases:
Incomplete box-checking is
not necessarily "fatal" in contested cases; due
process is satisfied by the parties' presence and opportunity to
object at a hearing where additional relief outside the pleadings is
ordered. Indeed, in nondefault matters, trial courts have wide
discretion to permit amendment of the pleadings "in furtherance
of justice" (Ca Civ Pro §§ 473(a)(1), 576; Ca Rules of Court
Rule 5.108(b)). [See Marriage of Liss (1992) 10 Cal.App.4th 1426,
1429 --due process not violated by court's sua sponte
retention of jurisdiction over spousal support for H (respondent)
even though H left spousal support request boxes blank on response,
because W present and had opportunity to object]
Of course, the trial court also has discretion to deny
amendments to pleadings when not "in furtherance of
justice." [Marriage of Liss, supra, 10 Cal.App.4th at 1429]
Hence, the safest approach is to be diligent in completing the
pleadings and properly request all conceivably desirable relief at
the outset.
|
Business
interests
|
Redevelopment
Agency of
San Diego
v. Attisha Redevelopment
Agency of
San Diego
v. Attisha (2005) 128 Cal.App.4th 357 (2005) --- Cal.App.4th
----. Trial court abused its discretion by striking
defendants expert testimony on goodwill valuation issue which should
have gone to jury.
|
Business
value
|
In
re Marriage of Winn (1979) 98 Cal.App.3d 363. A husband's Separate
Property business was bankrupted during the marriage and then was
rebuilt during marriage. The court held the final value of the
business on distribution to be entirely a Community Property asset,
requiring the husband to give the wife a promissory note to the
amount of half its value.
|
Caretaker
|
To
be distinguished, however, are the following situations:
(a)[6:33]
General rule--parent not liable to compensate other parent
who voluntarily supports child:
As a general rule, one parent is
not entitled to compensation from the other parent for those periods
during which child support was provided voluntarily without
agreement for compensation. [Ca Fam § 3951(a)]
1)[6:34]
Exception--compensation where parent fails to assume
"caretaker responsibility":
However, upon noticed motion or OSC,
the court is empowered to order "financial compensation"
for periods when a parent "fails to assume the caretaker
responsibility" contemplated by a custody (including joint
custody) or visitation order or written or oral agreement between
the parents. [Ca Fam § 3028 (also providing for mandatory attorney
fee award to prevailing party upon showing of non-prevailing party's
ability to pay)]
a)[6:35]
Effect:
Under this statute, when a parent's
failure to comply with an outstanding custody or visitation order or
agreement results in added child care costs to the other parent, the
latter parent is entitled to be reimbursed for the obligations so
incurred. [Ca Fam § 3028(a) & (b)]
Comment:
Most probably, the scenario envisioned by § 3028 is one
parent's incurring additional costs because of the other parent's
"default" under a custody or visitation order or
agreement. However, the statute is not expressly limited to parents.
(Section 3028 states in relevant part: "The court may order
financial compensation for periods when a parent fails to assume the
caretaker responsibility . . . The compensation shall be limited to
(1) the reasonable expenses incurred for, or on behalf of a child,
resulting from the other parent's failure to assume caretaker
responsibility . . ." Ca Fam § 3028(a) & (b).)
This
language leaves open the possibility that third parties--e.g.,
grandparents or other relatives who have temporary care of the child
pursuant to the parents' agreement or court-ordered visitation
rights--will have standing to proceed under § 3028. [Cf. Ca Fam
§§ 3103(g)(2) & 3104(i)(2)--notwithstanding § 3951, when
grandparent visitation is ordered pursuant to §§ 3103 or 3104,
court may order parent to pay grandparent (or vice versa)
visitation-related "support" costs (transportation, day
care, etc.)] et
al
|
Change
circumstances
|
Montenegro
v. Diaz, 2000. Stipulated custody order that was basically final
triggers the change of circumstances. Previous temporary orders and
pendente lite use best interests of the child test.
This was reversed by the California Supreme court in ybj 135
ybj92
|
Change
of circumstances
|
In
re Marriage of Mosley (2008) 165
Cal.App.4th 1375 filed
8-14-08 Reduction of
base salary constitutes change in circumstance warranting
modification of support obligations. Best to do guideline on his
base salary. Any bonus use a percentage for. Can't base support
order on future speculative bonus income. May or may not receive
bonus. – impute income look to impact on children whether Spousal
Support or Child Support. Sometimes the best interest of the
children can be promoted by one or both parents cutting their work
hours to spend more time with the children. – when one parent
unilaterally decides not to work the court must retain discretion to
impute income. Otherwise one parent can eliminate their own
responsibility to help support the children.
|
Change
of circumstances
|
Marriage of Hopwood (1989) 214
Cal.App.3rd 1604, 1608. As explained in 2 Adams and
Sevitch
,
California
Family Law Practice (7th ed. 1989) section N-97.2, "Spousal
Support changed circumstances can be found on an increased ability
to pay, [but] the supported spouse must also show that his or her
needs at the time of the separation were never met. [¶] [¶]
... Hoffmeister II teaches that you can only get an increase on
modification if the original needs of the recipient were never met.
An unmet need at trial justifies an increase if coupled with the
supporting spouse's enhanced ability to pay at the time of
modification."
The court abused its discretion
in increasing the spousal support order. Mary sought to increase her
spousal support based on Benjamin's increased income. He stipulated
his income had indeed increased, but Mary still needed to prove her
needs at the time of separation were never met. This she failed to
do. Indeed, the trial court concluded her needs were then adequately
met. fn. 2
FN 2. The court noted other
factors: the length of time Mary waited to seek a modification; her
efforts to be self-supporting; and her present needs. But as
explained, these reasons are insufficient to justify an increase
when the modification is based on the supporting spouse's increased
income.
|
Change of circumstances
|
The changed circumstances
rule is triggered only after a "final" or
"permanent" custody adjudication. The ordinary
best interest standard, without the additional changed circumstances
burden of proof, applies when the court makes an initial custody
adjudication and when it adjudicates custody following any temporary
or interim custody order. [
Montenegro
v. Diaz (2001) 26 Cal.4th 249, 256-257, 109 Cal.Rptr.2d 575, 580
& fn. 3; Marriage of Burgess (1996) 13 Cal.4th 25, 29, 37, 51
Cal.Rptr.2d 444, 452, fn. 8]
|
|
Change of circumstances
|
(1)[17:311]
Two-pronged burden in modification proceedings:
The burden is two-fold in
modification proceedings: The party seeking to change an
existing custody order assumes both the burden of (a)
persuading the trier of fact that a new custody arrangement is in
the child's best interests, and (b) putting forth sufficient
evidence of a substantial change in circumstances warranting a
modification. [Burchard v. Garay, supra, 42 Cal.3d at 535,
229 Cal.Rptr. at 802; Marriage of Burgess (1996) 13 Cal.4th 25,
37-38, 51 Cal.Rptr.2d 444, 453]
|
|
Change of circumstances
|
(e)[17:317]
Exception--de novo determination in joint physical custody
cases:
When a contemplated relocation
threatens to upset an actual (de jure) joint physical custody
arrangement, the parents essentially come to court on a "level
playing field." The trial court must approach the custody
adjudication de novo, determining anew what primary custody
arrangement is in the children's best interest--i.e., the
modification decision is not subject to the changed circumstances
rule. [Ca Fam § 3087; Marriage of Burgess, supra, 13 Cal.4th at 40,
51 Cal.Rptr.2d at 454, fn. 12; Marriage of LaMusga, supra, 32
Cal.4th at 1089, 12 Cal.Rptr.3d at 368, fn. 3]
However, this so-called "Burgess footnote 12
exception" is triggered only in cases involving substantive--i.e.,
actual--joint physical custody as the pre-move-away status quote.
Although the arrangement may have been labeled "joint physical
custody" by the court, if the contestant parent in actuality
has only "nominal" physical custody and the vast majority
of the child's time is spent with the move-away parent, the normal
Burgess burden falls upon the contestant noncustodial parent.
[Marriage of Lasich (2002) 99 Cal.App.4th 702, 714-715, 121
Cal.Rptr.2d 356, 365 (disapproved on other grounds in Marriage of
LaMusga, supra, 32 Cal.4th at 1097, 12 Cal.Rptr.3d at 374); Marriage
of Biallas (1998) 65 Cal.App.4th 755, 760, 76 Cal.Rptr.2d 717,
720--"liberal visitation rights" not enough to displace
changed circumstances rule and respective burdens pursuant thereto;
see further discussion at ¶7:573
|
|
Change of circumstances
custody
|
3.[17:295]
Basis for Modification--"Significant Change of
Circumstances":
Although the statutory scheme
governing custody adjudications only requires courts to ascertain
the child's best interest (¶17:245), the best interest standard has
an added twist once a "final" judicial custody
determination is in place: A party seeking to modify a
"permanent" custody order can do so only upon a showing of
a significant change of circumstances so affecting the child that
modification is essential to the child's welfare. Absent
such a showing, any modification would be an abuse of discretion as
denying the child the benefits of a stable home environment and thus
would not be in his or her best interest. [
Montenegro
v. Diaz (2001) 26 Cal.4th 249, 256, 109 Cal.Rptr.2d 575, 579-580;
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088, 12 Cal.Rptr.3d
356, 367; Marriage of Burgess (1996) 13 Cal.4th 25, 37, 51
Cal.Rptr.2d 444, 452-453]
|
|
Change of circumstances
custody
|
(1)[17:300.1]
Compare--changing parenting time under joint physical custody
order:
The changed circumstances rule applies when the
modification request seeks to remove custody from one parent and
give it to the other. By contrast, no change of
circumstances need be shown as a prerequisite to altering only the
parenting schedule (the amount of time the child spends in each
parent's household) under a joint custody order. Proposed changes in
"parenting time" are "not on a par with a request to
change physical custody from sole to joint custody, or vice
versa"; the only standard the moving parent must meet in such
cases is the child's best interest. [Enrique M. v. Angelina V.
(2004) 121 Cal.App.4th 1371, 1379-1380, 18 Cal.Rptr.3d 306, 312-313;
Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513, 260 Cal.Rptr.
210, 213]
So long as the original joint
custody order remains intact, the court has very broad discretion to
make a change in the "coparenting residential arrangement"
where the parents are unable to agree and call upon the court to
intervene. [Marriage of Birnbaum, supra, 211 Cal.App.3d at
1518, 260 Cal.Rptr. at 216-217]
[17:300.2]
PRACTICE POINTER:
The significant distinction here is
that custody is not in issue. Consequently, to make clear to the
trial court in cases like this that the moving party does not have a
"changed circumstances" burden, it is important not to check the box on the moving papers indicating a
desire to change "custody"; use the "visitation"
or the "other relief" boxes, specifying the intent is only
to alter parenting time (or other incident of the joint custody
order, such as the child's schooling, that will not vary the
allocation of "custody" per se). [See Enrique M. v.
Angelina V., supra, 121 Cal.App.4th at 1382, 18 Cal.Rptr.3d at 314]
|
|
Change of circumstances
kids
|
However, in modification
proceedings, assuming the child satisfies the threshold "age
and capacity" test, his or her preferences may be entitled to
greater weight than in an initial custody adjudication. Reason: When
the child has lived under a preexisting custody arrangement, his or
her past experience provides a more informed basis for the
preference. [Marriage of Rosson, supra, 178 Cal.App.3d at
1103, 224 Cal.Rptr. at 257; see detailed discussion at ¶7:324 ff.]
|
|
Changea
circumstances
|
Marriage
of Congdon. Change in shared custody arrangement required a showing
of changed circumstances. Conflict with Birnbaum
ybj50
|
Changed
circumstances
|
IRMO
Keith R. and H.R. (2009) filed
5-19-09 court used
change of circumstances rule after order on DVPA custody made. Court
of appeals holds best interest of child was the standard. A
DVPA custody order is not a final order as per Montenegro.
STANDARD
TO USE
|
LAW
– on standard for change in custody, etc.
|
Best
interest of the child – before permanent order
as per
Montenegro
|
This
is standard when making an interim custody order that has not
been intended to be a final order on custody or when making a
permanent custody determination initially. DVPA orders are
considered interim. Court looks to all the issues bearing on
the best interests of the child in divising a parenting plan.
This is where there is not yet a PERMANENT ORDER on custody
and visitation.
|
Change
of circumstances – after permanent order made
as per
Montenegro
|
Only
for a change after a
Montenegro
order has been made for a final permanent order on custody and
visitation. No de novo proceeding. Party seeking to modify a
final custody order must show a significant change of
circumstances such as to indicate that different custody
arrangement would be in the child's best interest.
|
|
Changed
circumstances
|
(a)[17:142]
Thus, if the parties agreed the occurrence of certain events
will not constitute "changed circumstances," the court has
no discretion to alter the award when those specified circumstances
occur. [Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1080-1081,
225 Cal.Rptr. 219, 224-225]
|
Child
Support
|
(a)[17:30.1]
Compare--stipulated order above formula amount:
On
the other hand, there is no concomitant provision for stipulated
child support orders above the presumptively-correct formula amount.
The "ineluctable inference" therefore is that a showing of
materially changed circumstances remains an essential predicate to a
downward modification of a child support order that was based upon a
stipulation to pay more than the guideline amount. [Marriage of
Laudeman (2001) 92 Cal.App.4th 1009, 1015, 112 Cal.Rptr.2d 378, 382;
see also "practice pointer" at ¶6:311.6]
|
|
Child
abduction
|
IRMO
Bardales and
Duarte
(2010) filed 2-8-10.
"Trial court may dismiss Hague Convention on the Civil Aspects
of International Child Abduction petition due to delayed
prosecution." - Trial court can dismiss Hague Convention
petition based on delayed prosecution. This is not specifically in
Hague Convention but is an inherent power of a court to manage its
affairs.
|
Child
molesters around children
|
Family
Code 3030 – no child molesters near child. Also rape and murder.
|
Child
Support
|
Caruthers:
15k pay off for child support The agreement is not enforceable. The
money was originally for the minor
Savannah
.
Savannah
was not represented by a guardian at time of the $15,000 settlement.
The mother cannot bargain away the support that is for the minor
child. Dad must pay child support. Shasta v. Caruthers (1995) 31
Cal.
App. 4th 1838
.
ybj 4
|
Child
Support
|
Ilas:
Dad go to medical school and want to lower child support. In re
Marriage of Ilas (1993) 12 Cal.App.4th 1630 – court said no.
ybj 15
|
Child
Support
|
Johnson:
11k child support just not enough for high earner ybj 21
|
Child
Support
|
Denial
of hardship deduction in parent's child support obligation on
statutory grounds that welfare payments were being made to child was
not unconstitutional as violation of equal protection rights. This
and Garnett are contra to Ivansco.
San Francisco
v. Freeman (1999) 71 Cal.App.4th 869
Ybj - 57
|
Child
Support
|
filed
9-27-99
San Francisco
v. Funches . City and County of San Francisco v. Funches (1999) 75
Cal.App.4th 243 Consideration of parent in maintaining financial
stability for minor's on going care is sufficient to justify
reduction in retroactive child support payment Ybj -65
|
Child
Support
|
DJ
6-8-00- Marriage of Hall (2000) 81
Cal.
App. 4th 313. Court's
discretionary child support order made in closed chambers must be
reported on the record and explained. Any variance in guideline must
be explained in writing or on record. Family Code 4056. Ybj -83
|
Child
Support
|
Marriage
of Hammer. filed 6-15-00. (2000) 81 Cal. App. 4th 712
In absence of express agreement to forego
collection of unpaid support, accepting less than court ordered
amount does not waive unpaid amount. Also if stipulation to less
than the judgment must spell out that is modifying the judgment. If
before judgment may be seen as temporary order. Ybj -85
|
Child
Support
|
In
re Marriage of
Dunmore
(2000) 83 Cal.App.4th 1, 8-29-00. Court finding that adoption may
proceed without father's consent doesn’t terminate Child Support
obligation till judgment is final. Ybj -96
|
Child
Support
|
Marriage
of Scheppers (2001) 86 Cal.App.4th 646, Life insurance proceeds not
consider income for Child Support as a lump sum. Yes, if is
considered as imputed interest from the amount. Ybj -114
|
Child
Support
|
Wilson
v. Shea (2001) 87 Cal.App.4th 887. Court must follow guideline Child
Support. If vary must state guideline and why vary from it. Court
can set up a travel fund for interstate visitation of children and
husband deduct it from Child Support. Ybj -118
|
Child
Support
|
Marriage
of Katzberg (2001) 88 Cal.App.4th 974. When follow uniform
guidelines on Child Support the court is not required to put in the
reasons for its decision. Also time share for Child Support on
Dissomaster. Look to who the Primary Physically responsible adult.
Stress that he paid for the school also. Look to see who would be
called in emergency, who pays for the school, transportation and
things like that also. Very
good list of what to look for in deciding who has the time. Ybj
–124 -
|
Child
Support
|
In
re Marriage of Laudeman. Stipulation to pay Child Support
above the statewide uniform Child Support guidelines cannot be
modified unless a material change in circumstances. Mom wins
for the reasons stated. This may hamper people from paying more than
guideline support. They could just pay it on a voluntary basis
alone. Marriage of Laudeman (2001)
92 Cal.App.4th 1009
Ybj -149
|
Child
Support
|
Guideline
Child Support calculation must be made to supporting parent's actual
income, even when supporting parent has extraordinary high income.
The son will still take classes in Japan and be a full time student.
It will take him longer to graduate but father is still protected by
the absolute cut off at age 19. In other cases where father has not
had to reveal his income the parties agreed on Child Support. Here
they have not agreed. Case is remanded. Marriage of Hubner filed
12-5-01.(2001) 94 Cal.App.4th 175 Ybj -156
|
Child
Support
|
In
re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, filed September
2003 – Settlement conference referee recommend Child Support
reduce to 150 per month. They accept the 150 but never put into an
order signed by judge. Just recommendation. Mom wants arrearages
from the old amount. She can seek. This is not estoppel by conduct.
Just because she took less not mean she OK with it. Settlement offer
was just a recommendation.
|
Child
Support
|
In
re Marriage of Scheuerman and Hauk (2004) 116 Cal.App.4th
1140 filed
3-15-04. Arizona Child Support order has expired Statute of
Limitations ended two years ago in Arizona. Take to California where
no Statute of Limitations on Child Support. It is not valid in Cal
because is void in Arizona. Should have taken to Cal before Arizona
Statute of Limitations ended. Could then have used Cal Statute of
Limitations.
|
Child
Support
|
In
re Marriage of Leonard (2004) filed 6-15-04
(2004) 119 Cal.App.4th 546
119 Cal.App.4th 546 Court
had good cause to deny father's request to have support reduction
apply retroactively. Dad turn unemployed and file motion. Court
does not apply the reduction retroactively to file date. Rare
situation. Dad had available resources. Balance the needs of the
parties with the kids.
|
Child
Support
|
In
re Marriage of DaSilva, filed 6-25-04. (2004) 119 Cal.App.4th
1030. Court must reconsider parents' respective period of
primary physical responsibility in Child Support case. In
figuring custody time for DissoMaster must use the primary physical
responsibility. When child at school. Who takes child to and
back, who respond to medical or other emergencies, who pays school
expenses, who participates in school activities like PTA and others.
|
Child
Support
|
In
re Marriage of Hubner #2 (2005) 124 Cal.App.4th
1082 filed
11-17-04 Statutory interest on unpaid Child Support payment
accrues from due dates, even though trial court erroneously
suspended payments temporarily. Should dad have to pay Child
Support when child is foreign exchange student? Yes. They still
would have been due. Trial court in error suspended it. Appeals
court says he still has to pay and the interest also.
|
Child
Support
|
In
re Marriage of Trainotti (1989) 212 Cal.App.3rd 1072. father to pay
Child Support of $450 per month. Mom had custody. He took child into
his home and raised and provided for. Did not pay mom. Dad more than
satisfied his obligation for Child Support and should not have
to pay Child Support for those times he had daughter there.
|
Child
Support
|
Jackson
(1975) 51 Cal.App.3rd 363. Dad ordered to pay Child Support. Instead
he and wife agree that he have daughter. The old Child Support never
changed. However he had daughter stay with him. His expenses greatly
exceed the ordered Child Support. His Child Support
obligations was discharged on the basis of equitable considerations.
|
Child
Support
|
In
re Marriage of Heiner and Chandler (2006) 136 Cal.App.4th
1514 filed 2-27-06. Entirety
of unallocated lump sum personal injury settlement is not income for
purposes of calculating Child Support. Child Support as per
FC 4058 not include lump sums. Can figure interest as income
possibly. Fact that IRS not include it as taxable income is not
controlling. Irony is a structured settlement with monthly income
would be income for Child Support. NOTE
it not income if an annuity as per Rothrock case of 2008. Portion of
settlement can be considered as income the interest on it. Not all
have to be invested in income producing items. Up to the judge. –
disabled disability – argue Family Code 4057(b)(5) that
application of formula would be unjust and special circumstances.
Also argue that the money is replacement for past and future wages
and impute the amount. See old Rodgers case
|
Child
Support
|
In
re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361
filed 3-28-06 Market value of unsold share of stock
received by business owner from sale of business generally is not
income for Child Support purposes. While stock options can be
considered income because it is for past or future services to the
company. However here the business was sold and he received new
stock. This new stock was not for past or future work for the firm.
Court of appeal holds that this new stock for transfer of business
is not for income purposes, unless it was cashed in for income a
court could rule (to pay off debts – questionable reasoning here).
---- Also very high income court cannot order some the Child Support
be put into a trust for the kids unless both parties agree.
– good discussion on difference between sale of stock
and stock options for Child Support purposes. – to avoid
paying income on Child Support just reinvest the stock in income
producing assets. Cheertin is different.
|
Child Support
|
McBride
v. Boughton (2004) 123 Cal.App.4th 379. Man and woman not
married but have baby. Mom says it is his baby. He believes her and
pays Child Support for the child. Later he learns he is not the
father. He sues mom for reimbursement. He lost as against public
policy. He should have had a paternity test earlier.
|
Child
Support
|
In
re Marriage of Asfaw and Woldberhan, (2007) 147 Cal.App.4th 1407 ,
filed 2-27-07 Depreciation of rental properties may not be
deducted for purposes of calculating Child Support under FC 4058 and
4059. Depreciation cannot be used as a deduction on support.
In re Marriage of Asfaw v. Woldberhan (2007) 147 Cal.App.4th
1407 – depreciation of rental property on Schedule E is not
deductible from annual gross income in calculating Child Support.
|
Child
Support
|
Kristine
M. v. David P. (2006) 135 Cal.App.4th 783. Dad is father and
paternity established. He wants to terminate parental rights when
there is not an adoption pending. Court says no. When adoption
is not contemplated the parents cannot stipulate away their duties
and obligations. Mom OK with this but court says no. He
would not have to pay Child Support and court not want that. Other
rights child might lose like Social Security, inheritance, health
insurance, etc.
|
Child Support
|
LA
v James (2007) 152 Cal.App.4th 253 filed 6-19-07.
Erroneously declared father is not entitled to
reimbursement for Child Support payments made on child later shown
to not be his own. Default against appellant dad. FC 7648.4 has
no reimbursement for arrearages when default entered. He should have
answered the complaint in the first place. If let default enter and
later fight it can't get reimburse for past Child Support paid.
|
Child
Support
|
In
re Marriage of Tavares (2007) 151 Cal.App.4th 620, county collect
arrears. Dad argues that should be modified for time the mother
concealed the child. Denied. Even if the concealment was true it did
benefit the child because the overpaid money would still benefit the
child during his minority.
|
Child
Support
|
Brothers
v. Kern County filed 7-17-07 (2007) 154 Cal.App.4th 126
convicted murderer cannot avoid Child Support obligations
because he desires to use unearned liquidated assets to pay defense
attorney of his choice. Father convicted of crime and wants to
appeal. Pay appeal attorney over $100k. attorney kept some and put
balance in his trust account. Father says he should have defense
attorney. Court agrees but there is prior money owed to the family
for arrears. However he does not have to choose the most expensive
attorney. Money in trust account belongs to client. The previous
money owed can be used as a lien. Prior lien has control. New Child
Support is based on interest on the money left after attorney take
some.
|
Child
Support
|
Income
from public assistance programs like CalWORK and TANF can't be
considered in fixing formula Child Support and is not credited
against the court order Child Support Family Code 4058(c)
|
Child
Support
|
Parents
have the main obligation of caring for the minor child of the
marriage or relationship. Resort can be had against the child's own
resources for his/her basic needs only if the parents are
financially unable to fulfill that obligation themselves. In re
Marriage of Armstrong (1976) 15 Cal.3d 942, 947
|
Child
Support
|
A
Child Support order does not terminate at the payee's death,
even when the payer assumes custody. Rather the payer must seek
judicial termination of the order. In re Marriage of McCann (1994)
27 Cal.App.4th 102, 107
|
Child
Support
|
There
are two circumstances where Child Support may continue beyond the
normal termination date: 1. by agreement of the parties as per
Family Code 3587 and/or 2. in the case of an incapacitated and needy
child as per Family Code 3910
|
Child
Support
|
In
re Marriage of Hubner (2001) 94 Cal.App.4th 175, 189. There is no
requirement that a supported child demonstrate a good faith effort
to graduate from high school as soon as possible, nor is a parent's
duty of support conditioned on the "child's participation only
in those classes that propel him/her toward graduation at the
earliest possible date."
|
Child
Support
|
In
re Marriage of Krog (1948) 32 Cal.3d 812, 816
Child Support may be modified in later proceedings even when
the original judgment contains no provision for Child Support.
|
Child
Support
|
Plumas
County and Ame Rodriguez (2008) 161 Cal.App.4th 272
filed 3-26-08. Court properly dismissed Child Support
complaint where mother did not have support agreement with sister
who took in her son. Mom has the child live with her sister.
Sister watches the child in return for mom paying money each month.
Mom stops paying and sister goes to Department of Child Support
Services for child support. Sister can't do it. Family Code 3951(a)
states that parent is not bound to pay the relative for the
voluntary support of the child without an agreement for
compensation. Also Family Code 7641(a).
|
Child
Support
|
Marriage
of Edwards (2008) 162 Cal.App.4th 136
filed 4-22-08 child support for adult college student
over age 18. lower court applied guideline. This was not correct.
Here son was an adult in the dorms in college. Neither party had
custody. Guideline is not the correct method. If they had done a sum
certain or something like that it might be OK. Guideline involves
custody time and it was not appropriate here. See FAMILY CODE
4057(b)(5).
|
Child
Support
|
IRMO
Schopfer Barbara and Bonebrake (2010) 184 Cal.App.4th 953 filed
5-18-10 – Father can be compelled to pay Child Support to child's
stepfather absent agreement where stepfather's support was not
voluntary. – not much really new here:
1.
Father pay for the Child Support by order. He can't claim voluntary
as per Family Code 3951.
2.
Father pay Child Support
beyond age 18 when daughter still in high school. College would be
different.
3.
Father required to pay even though daughter in boarding school paid
by trust fund for her. There are still obligations the parent must
pay for. There was evidence monies being paid for her beyond the
tuition in boarding school.
|
Child
Support
|
IRMO
Schopfer on rehearing filed 7-7-10. Father can be compelled to pay
voluntarily agreed upon Child Support to child's stepfather.
Rehearing on the above case. Affirmed. Father agreed to pay Child
Support and he must till child is 19 and out of high school.
Payments to stepfather not a factor since he agreed in the first
place.
|
Child
Support
|
IRMO
Alter (2009) 171 Cal.App.4th 718
filed 2-26-09 Despite
parties' written agreement, court has power to modify Child Support
order to reduce or increase Child Support. Two major holdings:
1. As stated Family Code 3651 the
court can modify Child Support anytime the court determines it to be
necessary. Child Support can always be changed even if parties do
MSA restricting change. Spousal Support can be written so there is
no change.
2. Gifts can be considered
income for support. Family Code 4058 is very broad on income
but restrictive on exclusions. Gifts as income must be recurring.
The gifts must bear a reasonable relationship to income. In this
case man received cash gifts from his mother for over ten years.
Leave to the discretion of trial court. One time gifts not recurring.
Look for a pattern of gifts.
|
Child
Support
|
(1)[18:775.1]
Child support amount determined under California law:
Having acquired continuing,
exclusive jurisdiction over a registered child support for purposes
of modification, the California court must apply California
substantive law to determine the appropriate amount of support. [See
Ca Fam §§ 4960(b), 4917; Marriage of Crosby & Grooms, supra,
116 Cal.App.4th at 151, 10 Cal.Rptr.3d at 209]
|
Child Support
|
(a)[17:64]
Notwithstanding benefit to custodial parent:
It is immaterial that increased
child support to match a payor parent's enhanced standard of living
might incidentally benefit the custodial parent. "Child
support may . . . appropriately improve the standard of living of
the custodial household to improve the lives of the children."
[Ca Fam § 4053(f)]
|
|
Child Support
|
(c)[17:84]
Compare--no retroactive discharge of arrears by receipt of
social security death benefits:
Social security benefits paid to a child
because of the obligor parent's death do not satisfy an ongoing
child support obligation and cannot be offset against child support
arrears. The remedy is for the deceased parent's estate to seek a
modification of the court-ordered amount based on the child's
receipt of the benefits; but any such modification may operate only
prospectively. [Marriage of Bertrand (1995) 33 Cal.App.4th 437, 441,
39 Cal.Rptr.2d 151, 153-154]
|
|
Child Support
- PI money
|
Marriage
of Rothrock (2008) 159 Cal.App.4th 223
filed 1-23-08 Personal injury unallocated settlement
annuity payments are not considered income for purposes of
determining Child Support. Builds on the Heiner case. Here PI
annuity that is not broken down into lost wages, etc. is assumed all
PI and the other party has burden to determine what was lost wages,
etc. Not just lump sum is not income for Child Support but also long
term annuity is also not income for Child Support. Would be
different if could determine lost wages, etc. - – argue Family
Code 4057(b)(5) that application of formula would be unjust and
special circumstances. Also argue that the money is replacement for
past and future wages and impute the amount. – see old Rodgers
case see 1disability and gift income
Contra:
Bruner
v. Imperial Insurance (1986) 181 Cal.App.3d 14, 21
[3a]
Generally, "[w]hen statutory language is thus clear and
unambiguous there is no need for construction, and courts should not
indulge in it." (Solberg v. Superior Court (1977) 19 Cal.3d
182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].) But the plain
meaning of a statute has been disregarded when the plain meaning
"would have inevitably resulted in 'absurd consequences' or
frustrated the 'manifest purposes' of the legislation as a whole."
(People v. Boyd (1979) 24 Cal.3d 285, 294 [155 Cal.Rptr. 367, 594
P.2d 484].) [4] A remedial or protective statute should be liberally
construed to promote the underlying public policy (Hooper v.
Deukmejian (1981) 122 Cal.App.3d 987, 1003 [176 Cal.Rptr. 569];
Montessori Schoolhouse of Orange County, Inc. v. Department of
Social Services (1981) 120 Cal.App.3d 248, 256 [175 Cal.Rptr. 14]);
the same liberality is not extended to those who seek to use
penalties of a remedial statute as a sword rather than a shield
(Fitch v. Pacific Fid. Life Ins. Co. (1975) 54 Cal.App.3d 140, 148
[126 Cal.Rptr. 445]). [3b] "'"The mere literal
construction of a section in a statute ought not to prevail if it is
opposed to the intention of the legislature apparent by the statute;
and if the words are sufficiently flexible to admit of some other
construction it is to be adopted to effectuate that intention. The
intent prevails over the letter, and the letter will, if possible,
be so read as to conform to the spirit of the act." (In
re Haines (1925) 195 Cal. 605, 613 [234 P. 883].)'" (Friends of
Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104
Cal.Rptr. 761, 502 P.2d 1049]; Cory v. Poway Unified School Dist.
(1983) 147 Cal.App.3d 1158, 1169 [195 Cal.Rptr. 586].)
|
Child
Support arrearages
|
In
re Marriage of Sabine and Toshio M. (2007) 154 Cal.App.4th 1429
filed 7-31-07. Agreement in which husband only pays
portion of overdue payments does not release him from remaining
arrearages or waive future support. H owes 300k back Child
Support and Spousal Support. He offers wife to pay 100k and not owe
back for future support. She accepts. Is this valid? Court says no.
On past arrearages it is void. Accord and satisfaction only when a
disputed amount owed. This was financial extortion. He clearly owed
300k. see FAMILY CODE 3651(c)(1). There was no bona fide dispute
concerning the debt. As to future amounts will owe it is void
because he refused to pay in the time frame in their contract. Court
should just have gone off on can't waive Child Support.
|
Child
Support – equity in house
|
In
re Marriage of Williams (2007) 150 Cal.App.4th 1221 both parties
rich. Issue is if the equity in dad house should have interest
imputed for income. Court says no. Can't use the equity in his
house absent a FC 4057(b) special circumstances showing.
Distinguishes de Guigne case in that was on 40 acres and could sell
the land and still have the home.
|
Child
Support – estoppel in pleadings
|
When
both parents list in pleadings the children as children of the
marriage
and stipulate to custody then neither can later attack the orders on
the ground that the other party is merely a stepparent. In re
Marriage of Hinman (1992) 6 Cal.App.4th 711, 717-718
|
Child
Support – income in another state
|
Couple
disso in Idaho. They do MSA for
Idaho law to be used. Both move out. Dad to Cal. Oregon Good
discussion of UIFSA. The MSA clause
to use Idaho law does not control. Dad argued that Oregon cost
of living is less and the cost of living should be used there. No
evidence on this. Court implied that if there was evidence
then would use less than guideline Child Support. In re Marriage of
Crosby and Grooms (2004) 116 Cal.App.4th
201, 212, filed 2-26-04
|
Child
Support – rental value income
|
In
re Marriage of Schlafly (2007) 149 Cal.App.4th 747 In child support
case, court abused its discretion by including rental value as
income based on father's mortgage free housing. This is error.
Rental value of free housing usually only when part of payment in a
job. – on the housing here use FAMILY CODE 4057 on hardship or
deviation from Child Support. FAM §4057. Amount Established
by Formula Presumed Correct
(B) Cases in which both parents
have substantially equal time-sharing of the children and one parent
has a much lower or higher percentage of income used for
housing than the other parent.
Court
should not impute the rental value of the house as income unless is
job related. However can do so under FAMILY CODE 4057. – keep in
mind that party with kids not have imputed income from new house
that new spouse owns, but yes reduced living expenses. At page 758
the court stated: "[T]he proper course [i]s to first calculate
the guideline amount in light of the parents' incomes as revealed by
such evidence as tax returns, income and expense declarations and
pay stubs, and then, under section 4057, to adjust the amount upward
in light of the free housing benefit. Such an approach respects the
rebuttable correctness of the mechanically calculated guideline
amount, and allows child support awards to properly reflect the
parents' standard of living without doing violence to the word
'income' in a way that would make the Sheriff of Nottingham
proud."
|
Child
Support – Spousal Support
|
Meegan:
Dad become priest and lower support Ybj –14
Ex-wife lost. Spousal Support lowered to zero and no lien on
his $70k. The evidence was that he did not quit his job to avoid
Spousal Support and he was acting in good faith. Marriage of Meegan
(1992) 11 Cal.App.4th 156. The court might have decided differently
if the money was for child support rather than spousal support.
|
Child
Support – Spousal Support
|
In
re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317 filed 5-13-04
Millionaire surgeon can be ordered to pay $43k per month in Spousal
Support and Child Support. He not want to pay so much. However
with the Child Support he not meet his burden of rebutting the
presumptively correct guideline amount. No evidence not to apply the
guideline formula. – in Spousal Support the court not obligated to
use the guideline. Still no abuse of discretion. It was to maintain
the status quo which is the benchmark for temporary Spousal Support.
|
Child
Support and Spousal Support
|
In
re Marriage of Tydlaska filed 12-18-03. (2003) 114 Cal.App.4th 572
Spouse who did not file current Income and Expense Declaration was
denied request to modify support. He filed one with his motion but
was continued over 60 days in the future. San Diego local rule here
than can't be over 60 days old. Issue about what his real income was
also.
|
Child
Support arrearages
|
In
re Marriage of McClellan (2005) 130 Cal.App.4th
247 filed 5-25-05 – FC 155 was a clarification of the law
and not changes. CCP 685.030 discussed. The only installment
judgment is the original order on support. Later modifications do
not change the amount owed in the past as arrearages. CCP 685.010
|
Child
Support benefits SSI
|
Mom
wins. Guideline will be used. The court can order Child Support for
a disabled adult child. However any benefits from the state or other
source will be subtracted from the Child Support ordered. VA
benefits, SSI, or other benefits the disabled adult child receives
will be subtracted from the Child Support amount. In re
Marriage of Drake, (1997) 53 Cal.App.4th 1139.
Ybj -217
|
Child
Support for kids having kids
|
Cynthia:
kids have kids – adult parents not have to pay Child Support for
the children. . Consensual intercourse with a minor is not
"willful misconduct" within the meaning of Civil Code
section 1714.1. There could be criminal and child support
obligations against teen dad Rodney but not his parents. Cynthia M
v. Rodney E. (1991) 228 Cal. App. 3d 1040. Keep in mind that these
were just medical bills for Cynthia and not the minor baby. Under FC
3930 the grandparents would not be liable for child support for the
grandchild when the mother is a minor.
Ybj -2
|
Child
Support -Spousal Support
|
Elsenheimer
v. Orange County Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th
1532 , filed 12-17-04. In
calculating Child Support, custodial parent's gross income does not
include Supplemental Security Income Benefits. SSI should not be
included as income. It is a form of welfare like payments. FC
4058(c) falls into this exception. SSI is like as public assistance
program based on need and not past income.
|
Child
Support subsequent spouse
|
IRMO
Knowles and Anastasi (2009) 178 Cal.App.4th 35 filed 10-6-09 Child
Support payments cannot be modified to include subsequent spouse's
share of Community Property income. – ex-husband and new
wife acquire 3 million Community Property. Court figures
interest on entire amount as part of his earnings for Child Support
previous marriage. Appeals says no. can just figure half the amount.
Can't use income from new spouse or savings total. Just use
his half.
|
Child
wishes
|
In
re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110-111 The court
should consider the wishes of the minor children but does not have
to follow them.
|
chs
|
Kern v.
Castle County of Kern v. Castle (1999) 75 Cal.App.4th 1442 . DJ
11-2-99
Inheritance
isn't gross income for child support purposes, but change in
disposable income is
to
be considered by the court. Ybj –67 The inheritance in itself is
not considered income. However the interest or money the inheritance
produces is considered income. Also the fact that the house he was
living in was paid off is a form of income, in that his cost of
living has gone down. Kern v. Castle (1999) 75 Cal. App. 4th 1442.
|
chs
|
Marriage
of Dacumos (1999) 76 Cal.App.4th 150, 155 -
Imputing rental income based on fair market rental value of
property in determining child support payments is not abuse of
discretion. Father owned two rental properties that generated higher
expenses than the amount received in rent (negative cash flow). The
trial the court imputed rental income based on the fair market
rental value of the properties and the fathers' net equity in the
properties. A broad definition of earning capacity to include income
that could be derived from income producing assets as well as from
work is in accord with legislative intent. Ybj -68
|
chs
|
Tolces v.
Trask, dj 11-19-99. Suspension of driver's license for child support
payments
neither limits parent's right to travel nor violates parent's right
to equal
protection.
Ybj –69 Also the equal
protection argument about being too poor to pay Child Support
doesn’t hold, since the amount of Child Support ordered depends on
a persons income. A low income person pays less Child Support.
Tolces v. Trask (1999) 76 Cal. App. 4th 285.
|
Civil
suit
|
In
re Marriage of Burkle III (2006) 139 Cal.App.4th 712 NOT SURE ON
CITE AND OTHER CASE. filed
10-30-06 Wife's separate civil lawsuit, filed while marital
dissolution proceeding was pending, was properly dismissed. Wife
filed civil action in reference to the dissolution property. It was
dismissed. Was sole jurisdiction of family law court. – not need
Income and Expense Declaration when attorney fees ordered as a
sanction.
|
CLETS
|
Monterroso
v. Moran (2006) 135 Cal.App.4th 732 filed 1-11-06.
Court acted in excess of its jurisdiction when it failed
to make detailed findings before entering mutual restraining order
between husband and wife. Mutual restraining orders in CLETS the
court must make detailed findings. Even if parties stipulate to
mutual restraining orders the court must still make detailed
findings that both are aggressors, etc.
|
CODE
CIV. PROC.
|
|
Cohaba
– shack up same accounts
|
Ex-husband
wins for reasons stated. If she were just a roommate renting from
the man it would not be a cohabitation. However once they start
having the other on their accounts it is more like a romantic style
living together. Family Code 4323 takes effect then. The joint
accounts alone show this. Room mates renting from each other
do not have each other on their accounts. Marriage of Bower,
filed 3-4-02 (2002), 96 Cal.App.4th 893 Ybj -167
|
Community
Property
|
In
re Marriage of Klug 2005) 130 Cal.App.4th 1389 filed 7-7-05. Lawsuit
proceeds awarded to wife arising from post separation transaction
are not Community Property but her Separate Property. Some of
the elements of her action were during the Marriage. However all the
elements of the cause of action did not accrue till after the Date
of Separation. It is her Separate Property. It was a malpractice
action against attorney who set up trust during the Marriage.
|
Community
Property
|
USA
v. Berger (2009) filed
7-31-09 Federal case. Wife's Community Property
interest is properly applied to satisfy restitution order imposed
against husband. H and W have realty. Apparently just in his name,
probably does not matter. H is involved in swindle and wife has no
knowledge or part in it. He gets jail and must pay restitution. The
Community Property realty is sold and all proceeds go to the
government for restitution. This includes her Community Property
half. Family Code 910(a) holds each spouse is responsible for debts
of the other from Community Property. All the Community
Property goes for restitution even though she not at fault.
|
Community
Property
|
In
re Marriage of Cream (1993) Trial court lacks authority in
dissolution cases to order interspousal auctions of property over
objection of a party.
|
Community
Property
|
[8:3]
Situs of property not controlling--law of marital domicile
applies:
For purposes of defining
community vs. separate property interests, the law of the parties'
marital/domestic partnership domicile controls. This
principle is consistent with the normal choice of law rule governing
personal property disputes (Ca Civil § 946--regardless of where
located, personal property "follows" the owner and
is governed by the law of owner's domicile). And it applies
as well to the determination of marital interests in real property,
notwithstanding the general choice of law rule that questions
relating to interests in real property are determined by the law of
the situs. [Barber v. Barber (1958) 51 Cal.2d 244, 247, 331 P.2d
628, 630-631; Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d
496, 505-506, 286 Cal.Rptr. 714, 719-720; see also ¶8:1276
(domiciliary state's adjudication res judicata and must be accorded
full faith and credit in situs state)]
"As a rule, marital interests in money and property
acquired during a marriage are governed by the law of the
domicile at the time of their acquisition, even when such money and
property is used to purchase real property in another state."
[Grappo v. Coventry Fin. Corp., supra, 235 Cal.App.3d at 505, 286
Cal.Rptr. at 719--Calif. law applied to determine CP vs. SP
interests in Nevada land purchased while spouses domiciled in
Calif.; see also Muckle v. Super.Ct. (Burgess-Muckle) (2002) 102
Cal.App.4th 218, 225-226, 125 Cal.Rptr.2d 303, 308]
(2)
Impact of multistate marital domiciles
[8:5]
Move from common law state to California--quasi-community
property law:
As a matter of pure property law,
the converse is also true when spouses move from a common law state
to California: Property acquired in the common law state retains its
common law (separate property) character and does not "ipso
facto" become community property simply because the parties
later become California domiciliaries. [Estate of Thornton (1934) 1
Cal.2d 1, 33 P.2d 1, 3]
|
Conceala
|
Dad
argues: "No, I should not have to pay for the time our child
was concealed. A previous case called In re Marriage of Comer held
that I would still be liable for Child Support if the child
concealment ended when the child was still a minor. Here our child
was not a minor. The child was over age 18."- . Dad wins for
reasons stated. Real hair splitting here. Court gets around the
previous Comer case. Comer case held that if the concealment ends
when the child is still a minor it is not a defense to the Child
Support arrearages. In this case it ended after age 18. That is
adequate. The fact that Child Support was still owing because the
child was still a full time high school student did not mean he
still had to pay arrearages on Child Support. Stanislaus v. Jensen
(2003) 112 Cal.App.4th 453
, filed 10-2-03, DJDAR 11189. Custodial parent who
concealed child until age of majority is barred from seeking support
arrearages.
Ybj -241
|
Conflict
|
Complex
Asbestos Litigation (1991) 232 Cal.App.3rd 572. paralegal at law
firm did work for other attorneys office in the past. Now paralegal
at new office working the other side. Under these circumstances
disqualification is appropriate unless there is written consent or
the law firm has effectively screened the employee from involvement
with the litigation to which the information relates (Chinese
Walls). Attorney can be disqualified from court under CODE CIV.
PROC. 128(a)(5) in the inherent power of court to control
litigation. – when a substantial relationship exists the courts
presume the attorney possesses the confidential information of the
former client material to the present representation.
|
Conflict
|
Jensen
v. Hartford (2003) 111 Cal.App.4th
698. ----- direct quotes.
This
court, in River West, described the substantial relationship test
as requiring the former client to "show no more than that the
matters embraced within the pending suit wherein his former attorney
appears on behalf of his adversary are substantially related to the
matters or cause of action wherein {Page 111 Cal.App.4th 707}
the attorney previously represented him, the former client." If
the former client succeeds in doing so, the court "will assume
that during the course of the former representation confidences were
disclosed to the attorney bearing on the subject matter of the
representation" and it "will not inquire into their nature
and extent." (River West, supra, 188 Cal.App.3d at pp.
1302-1303, emphasis added.) The court felt that imposing this low
threshold of proof upon the aggrieved client was the best method of
enforcing the attorney's duty of absolute fidelity and of
implementing the spirit of rule 3-310(E). (Id. at p. 1303.)
-----
We agree that the question whether an attorney should be
disqualified in a successive representation case turns on two
variables: (1) the relationship between the legal problem
involved in the former representation and the legal problem involved
in the current representation, and (2) the relationship between the
attorney and the former client with respect to the legal problem
involved in the former representation. We emphasize, however, the
significance of the latter factor in the application of the Ahmanson
formula. [6] If the relationship between the attorney and the former
client is shown to have been direct -- that is, where the attorney
was personally involved in providing legal advice and services to
the former client -- then it must be presumed that confidential
information has passed to the attorney and there cannot be any
delving into the specifics of the communications between the
attorney and the former client in an effort to show that the
attorney did or did not receive confidential information during the
course of that relationship. As a result, disqualification will
depend upon the strength of the similarities between the legal
problem involved in the former representation and the legal problem
involved in the current representation. This is so because a direct
attorney-client relationship is inherently one during which
confidential information "would normally have been imparted to
the attorney by virtue of the nature of [that sort of] former
representation," and therefore it will be conclusively
presumed that the attorney acquired confidential information
relevant to the current representation if it is congruent with the
former representation. (Ahmanson, supra, 229 Cal.App.3d at p. 1454;
see also Adams v. Aerojet-General Corp, supra, 86 Cal.App.4th at p.
1332 [personal involvement in rendering legal advice to client
requires disqualification if compared representations are
substantially related]; River West v. Nickel, supra, 168 Cal.App.3d
at p. 1302-1303.) fn. 6 {Page 111 Cal.App.4th 710} ----- On the
other hand, where the former attorney-client relationship is
peripheral or attenuated instead of direct, then the presumption
will not be applied in the absence of an adequate showing that the
attorney was in a position vis-à-vis the client to likely have
acquired confidential information material to the current
representation. In these circumstances, the relationship between the
compared representations shares equal billing with the relationship
between the attorney and the former client, and the two aspects of
the Ahmanson test are assessed in combination in determining whether
disqualification is mandated. ----- Therefore, when ruling upon a
disqualification motion in a successive representation case, the
trial court must first identify where the attorney's former
representation placed the attorney with respect to the prior client.
If the court determines that the placement was direct and personal,
this facet of Ahmanson is settled as a matter of law in favor of
disqualification and the only remaining question is whether there is
a connection between the two successive representations, a study
that may not include an "inquiry into the actual state of the
attorney's knowledge" acquired during the attorneys'
representation of the former client. (Ahmanson, supra, 229
Cal.App.3d at p. 1453; Adams v. Aerojet-General, supra, 86
Cal.App.4th at p. 1332; City National Bank v. Adams, supra, 96
Cal.App.4th at p. 327; River West v. Nickel, supra, {Page 111
Cal.App.4th 711} 188 Cal.App.3d at pp. 1302-1303.) However, if the
court determines the former attorney was not placed in a direct,
personal relationship with the former client, the court must assess
whether the attorney was positioned during the first representation
so as to make it likely the attorney acquired confidential
information relevant to the current representation, given the
similarities or lack of similarities between the two.
|
Conflicta
|
Marriage
of Egedi, filed 3-28-01. (2001) 88 Cal.App.4th 417 One attorney may
review Marriage settlement agreement on behalf of both parties if
written waiver of potential conflict of interest is obtained and he
acts as a scrivener and not giving legal advice. Ybj -122
|
consolidate
|
[3:295]
Discretionary:
Consolidation with a pending
domestic relations status action is discretionary with the family
law court; it is not a matter of right. Generally, the decision will
turn on considerations of judicial economy and the interest in
avoiding unnecessary costs or delay that would attend the
independent processing of two trials on identical or closely-related
issues. [See Ca Civ Pro § 1048] (These factors are more likely to
weigh in favor of consolidation if it is sought early in the
proceedings.)
|
Consolidatea
|
Family
court lacked jurisdiction to consolidate former wife's tort action
against former husband with their final and already closed
dissolution of Marriage action. Sosnick v. Sosnick (1999) 71
Cal.App.4th 1335 Ybj
–58 The court would be outside its jurisdiction in ordering a
consolidation since nothing was pending. Also the superior courts
jurisdiction in domestic relations cases is limited. It has
authority to inquire into and render any judgment and make orders
that are appropriate concerning marital status, custody, child and
spousal support, settlement of property rights and attorney
fees and costs. Not more. Sosnick v. Sosnick (1999) 71 Cal. App. 4th
1335. Actually the family court can do more.
|
Contempt
|
USA
v. Ballek. Imprisonment of parent under Child Support Recovery Act
for willful failure to pay child support obligations did not violate
the Thirteenth Amendment against slavery. Ybj –51 He can be sent
to jail for failure to pay the child support. His conduct was
"willful" in that he had the ability to work for more
money but did not. USA v. Ballek. Filed 3-11-99. Note: This is
important in that he is going to jail for not getting a higher
paying job. Usually the courts will just impute income to him and
order him to pay more support. Here the federal court is sending him
to jail and not just imputing income. Although this is a federal
case interpreting a federal law it may have impact in California. It
is a ninth circuit case. California is in the ninth circuit. It is
part of the growing trend of making it more difficult to avoid child
support.
|
Contempt
|
Non-custodial
parent in jail lacked ability to pay child support. Oregon v Vargas
(1999) 70 Cal.App.4th 1123
Ybj –52 . Dad
won and does not have to pay child support while in jail. Courts
look for the ability to work and the opportunity. However the
opportunity to work must be with the current circumstances. Oregon
v. Vargas filed March 24, 1999. No cite yet. Keep in mind that this
is not a contempt to make him serve more time. The request was that
he would owe the money and pay it once he got out. That was the
implied theory. Obviously the court denied the requested child
support.
|
Contempt
|
Stacy
Lynn Marcus on Habeas corpus (2006) 138 Cal.App.4th
1099 filed
4-18-06. Because visitation order that mother allegedly disobeyed
was not written order, there is no basis for contempt. Order
made on record orally in court. Judge orders one attorney to make a
written order. He does so just before wife contempt. She had no
notice of the order all agree. Contempt proceeding all based on the
oral stipulation in court. This is not valid order for contempt.
Contempt may not be based on oral ruling of the court. Need a
written order. Must be a written order or a minute order. Good
discussion of contempt issues.
|
Contempt
|
In
re Henry James Koehler (2010) filed
2-5-10. "Attorney for wife in divorce case who refused to turn
over document to third party is wrongfully held in contempt"
– Good on indirect contempt being outside judge presence. Good on
elements of contempt. For contempt each of the following must be
proven by the moving party:
·
Facts establishing court's jurisdiction (e.g.,
personal service or subpoena, validity of court order allegedly
violated, etc.)
·
Defendants knowledge of the order
·
Defendants ability to comply; and
·
Defendants willful disobedience of the order
Defendant
did not pay $10k sanctions. To hold that each day he did not pay was
a separate contempt was in error. As well as other errors. Good
elements on contempt.
|
Contempta
|
Moss:
Reverse burden on child support payments in contempt Ybj –20 Mom
wins for the reasons she stated. The importance of this case is that
the California Supreme Court reversed the burden of proof on ability
to pay the support. The new rule is that the alleged contemner
(Dad here) must prove inability to pay the money by a preponderance
of the evidence. Moss, et al (1998) 17 Cal. 4th 396.
|
Continuea
|
CRC
375. Motion or application for continuance of trial
(a)
[Trial dates are firm] To ensure the prompt disposition of civil
cases, the dates assigned for a trial are firm. All parties and
their counsel must regard the date set for trial as certain.
(Subd
(a) repealed and adopted effective January 1, 2004; amended
effective January 1, 1995.)
(b)
[Motion or application] A party seeking a continuance of the date
set for trial, whether contested or uncontested or stipulated to by
the parties, must make the request for a continuance by a noticed
motion or an ex parte application under rule 379, with supporting
declarations. The party must make the motion or application as soon
as reasonably practical once the necessity for the continuance is
discovered.
(Subd
(b) repealed and adopted effective January 1, 2004; amended
effective January 1, 1995.)
(c)
[Grounds for continuance] Although continuances of trials are
disfavored, each request for a continuance must be considered on its
own merits. The court may grant a continuance only upon an
affirmative showing of good cause requiring the continuance.
Circumstances that may indicate good cause include:
(1)
The unavailability of an essential lay or expert witness because of
death, illness, or other excusable circumstances;
(2)
The unavailability of a party because of death, illness, or other
excusable circumstances;
(3)
The unavailability of trial counsel because of death, illness, or
other excusable circumstances;
(4)
The substitution of trial counsel, but only where there is an
affirmative showing that the substitution is required in the
interests of justice;
(5)
The addition of a new party if:
(A)
the new party has not had a reasonable opportunity to conduct
discovery and prepare for trial, or
(B)
the other parties have not had a reasonable opportunity to conduct
discovery and prepare for trial in regard to the new party's
involvement in the case;
(6)
A party's excused inability to obtain essential testimony,
documents, or other material evidence despite diligent efforts; or
(7)
A significant, unanticipated change in the status of the case as a
result of which the case is not ready for trial.
(Subd
(c) adopted effective January 1, 2004.)
(d)
[Other factors to be considered] In ruling on a motion or
application for continuance, the court must consider all the facts
and circumstances that are relevant to the determination. These may
include:
(1)
The proximity of the trial date;
(2)
Whether there was any previous continuance, extension of time, or
delay of trial due to any party;
(3)
The length of the continuance requested;
(4)
The availability of alternative means to address the problem that
gave rise to the motion or application for a continuance;
(5)
The prejudice that parties or witnesses will suffer as a result of
the continuance;
(6)
If the case is entitled to a preferential trial setting, the reasons
for that status and whether the need for a continuance outweighs the
need to avoid delay;
(7)
The court's calendar and the impact of granting a continuance on
other pending trials;
(8)
Whether trial counsel is engaged in another trial;
(9)
Whether all parties have stipulated to a continuance;
(10)
Whether the interests of justice are best served by a continuance,
by the trial of the matter, or by imposing conditions on the
continuance; and
(11)
Any other fact or circumstance relevant to the fair determination of
the motion or application.
|
Courts
|
There
is no separate "family court" per se.
Rather family court refers to the activities of the
superior court handling litigation arising under the Family
Code. The family court is not a separate court with special
jurisdiction, but is instead the superior court performing one if
its general duties. In re Marriage of Rubenstein (2000) 81
Cal.App.4th 196, 200
|
CP
|
In
re Marriage of Levin and Ligon, filed 6-30-06, Settlement of
legal malpractice action in which husband asserted loss of Community
Property assets estopped him from claiming Community Property
interest in assets. Husband sues former attorney for loss of
Community Property assets. He cannot then go into family court and
ask to have the assets divided.
|
CP
|
Life
Insurance of North America v. Cassidy (1984) 35 Cal. 3rd 599 – H
has life insurance with W as beneficiary. In MSA they waive all
interest in each others property, etc. Court holds that general
language of MSA will not be construed to include an assignment or
renunciation of the expectancy interest conferred on the named
beneficiary of a life insurance policy or a will UNLESS IT CLEARLY
appears that the agreement was intended to deprive either spouse of
such a right.
|
CRC
|
|
Custody
|
Wiss:
Change child religion Ybj –5 . Mom wins. A parent will not
be prevented from involving the child in the parents religious
activities absent a clear affirmative showing of harm. The
pre-nuptial written agreement is not enforceable. It violates the
United State Constitution's first amendment in that a person is free
to change their religion. Keep in mind this was both joint legal and
joint physical custody. If child was with one parent most of the
time the ruling might be that the party with physical custody could
establish religious upbringing. Marriage of Weiss (1996) 42 Cal.
App. 4th 106
|
Custody
|
Urband:
Religions beliefs Jehovah Witness
Ybj –38 Mom keeps custody. All the evidence was that she
was a devoted mother. There is no compelling evidence that her
beliefs will be harmful for the children. Marriage of Urband (1977)
68 Cal. App. 3d 796. This was a very short opinion on only three
paragraphs.
|
Custody
|
DJ
Shalit and Coppe 9-14-99. Child abduction case. the wrongfulness of
the parents conduct is governed by the law of the child's habitual
residence. Ybj –62 – can't find this case anywhere.
|
Custody
|
Lester
v. Lennane. Filed 10-31-00 No gender bias when court does not follow
the mediation recommendation of 730 expert. No evidence of bias in
what the judge said. Also no appeals on temporary orders. They
should have used a writ but the court heard it anyway. filed
10-31-00. Ybj -103
|
Custody
|
Just
because mom has child in day care does not mean she not a good mom.
Mom wins custody. Courts can't rely on economic circumstances of the
parties. Child support should be an equalizing factor. Many mothers
are working parents. It is usually the mother who is criticized for
not being in the home. The same holds true of the father. In
determining custody courts are not to measure based on income or
that one parent has to use day care for the child. Marriage
of Burchard (1986) 42 Cal.3d 531, 540.
See also Loyd childcare child care Ybj -159
|
Custody
|
Palmore:
Interracial Marriage does not effect custody on constitutional
grounds race negro Ybj
-32
|
Custody
|
Carney:
Physical handicap does not in itself mean no custody. Wheel chair
Ybj -36
|
custody
|
Rosson:
Children state custody preference to the judge
In re Marriage of Rossson (1986) 178 Cal.App.3d 1094, 1103
stated: "To the extent the court decides consideration should
be given to preferences of children as to custody, such preferences
are entitled to greater consideration in a modification proceeding,
as here, than would be appropriate in an initial custody
determination. In the latter circumstance there will usually be
considerable uncertainty as how a future arrangement will work out,
while in the former the child has lived with the arrangement
and can have a more informed basis for his or her preference."
Ybj -43
|
Custody
|
Dad
wins for reasons stated. If
the order was a "final judicial custody determination"
then dad would have the burden of showing a change of circumstances
in her moving. However when, as here, there is no final
judicial custody determination then the court must have a new
hearing to determine the best custody and visitation arrangement.
This relates to the previous Montenegro case. In re Marriage of Rose
and Richardson, filed 10-8-02 (2002) 102 Cal.App.4th 941 Ybj -202
|
Custody
|
The
court should not rely so much on the fact that mom can stay at home
and watch the kids more. A custody determination must be based upon
a true assessment of the emotional bonds between the child and
parent and not so much on the assumption that a working parent
cannot provide such care for a child For dad for reasons stated. Just
because he will keep the children in day care it is no reason by
itself that he is not as good a parent. There must be other
specific evidence that being with mother is better for the children
and his work schedule damaged the children. In re Marriage of Loyd,
filed 1-30-03. (2003) 109 Cal.App.4th 754 Burchard see and Two
parent family concept. Court improperly considered parent's work
obligations in awarding custody to the other parent. Child care
childcare Ybj -221
|
Custody
|
In
re Marriage of Jensen filed 12-18-03. (2003) 114 Cal.App.4th 587
parents of autistic child cannot require court to
adjudicate child's personal interests once child turns age 18.
Child was autistic and in Thailand with mom. Parties stipulate that
she return to California after age 18. Court says even if parents
stipulate, it can't be enforced since she is an adult. Family Code
3910 on Child Support for adult child not apply. It is just
for support and that is all. It is up to the adult child to come to
California or not.
|
Custody
|
In
re Marriage of Enrique M. 121 Cal.App.4th 1371 filed 8-31-04 parties
had joint custody. Joint legal and physical. Father wants to modify.
No change of circumstances rule. No request a
change in custody. Just visitation. Where court order does
not change custody, but rather alters a parenting schedule, the
changed circumstances rule does not apply. Court failed to spell out
how much time share would be joint physical custody. Here about 35%
|
Custody
|
In
re Marriage of Heath (2004) 122 Cal.App.4th 444 filed 9-15-04. Court's
finding that separating autistic child from his brother was in the
children's' best interest was not supported by sufficient evidence.
Court splits up children. The younger child appeared to be mimicking
the older autistic child. No expert evidence to back this up.
Appellate court stresses that 1. sibling bond should be
preserved whenever possible and 2. that disability mental or
physical is never to be presumed as a barrier to individual rights.
The decision ignored these principles. Need better record for the
court to make such an order like expert testimony or 730 evaluation.
Also separate counsel must be appointed for each child. All very
expensive. Brothers
|
Custody
|
Neumann
v. Melgar (2004) 121 Cal.App.4th 152
Court committed legal error in failing to consider
evaluator's report, interview 10 year old, and consider whether
child needed independent counsel. If counsel required, retrial
required. Family Code 7894 does not preclude court from granting new
trial motion.
|
Custody
|
In
re Marriage of David and Martha M. (2006) 140 Cal.App.4th
96. filed 5-15-06. Exit
order from juvenile court. W&I Code 302(d) say family law
court may change but must show significant change of circumstances
before can modify. Family law court makes order based on
best interests of the children. This was error. Must show change of
circumstances.
|
Custody
|
An
incarcerated parent is entitled to a hearing to
determine his/her visitation rights, and the court is encouraged to
devise alternative means to provide meaningful access to prisoners
who cannot personally appear in court. Hoversten v. Superior Court
(1999) 74 Cal.App.4th 636, 642
|
Custody
|
In
re Marriage of Camacho (1985) 173 Cal.App.3d 214, 219 visitation
rights may not be conditioned on timely payment of Child Support.
|
Custody
|
Family
Code 3140 when other party not served or appear must have certified
copy birth certificate for orders unless good cause shown for not
having it.
|
Custody
|
Family
Code 3028(a) financial compensation when one parent not exercise
visitation or other parent interfere with it.
|
Custody
|
In
re Marriage of Wellman (1980) 104 Cal.App.3d 992, 998-999
it is an abuse of discretion to require that mother or father
with custody have no nonmarital overnight visitation with
member of the opposite sex in children's presence.
|
Custody
|
In
re Marriage of Rossson (1986) 178 Cal.App.3d 1094, 1103 stated:
"To the extent the court decides consideration should be given
to preferences of children as to custody, such
preferences are entitled to greater consideration in a
modification proceeding, as here, than would be appropriate
in an initial custody determination. In the latter circumstance
there will usually be considerable uncertainty as how a future
arrangement will work out, while in the former the child has lived
with the arrangement and can have a more informed basis for his or
her preference."
|
Custody
|
Custody
must be awarded according to the child's best interest (Family Code
section 3040(a)). It may not be awarded by reference to the
parents' interest or to achieve equity between the parents.
In re Marriage of Stoker (1977) 65 Cal.App.3d 878, 881.
|
Custody
|
Marriage
of Jackson (2006) 136 Cal.App.4th 980.
2-15-06 Trial court did not err in declaring a stipulated
order void that terminated parental rights of mother under and
agreement of the parties, or in denying father's request to vacate
that order declaring it void. Public policy prevents stipulated
orders terminating parenting rights unless some evidence is taken.
Mom agree in court to give up parental rights. Granted. She later
change mind. She can since the give up parental rights agreement
void. Court should have taken testimony on this. Even better would
be an adoption. Usually terminate only when drugs, violence, etc.
Just a stipulation contra to public policy.
|
Custody
|
Marriage
of Lucio (2008) 161 Cal.App.4th 1068
filed 4-8-08 when parent seeks to modify visitation not
allocation of custody between parents, court considers whether
modification is in child's best interests. Mom had physical
custody. Dad had supervised visitation. He wanted non-supervised
visitation. Lower court said he not show change of circumstances.
Appeals court says change of circumstances not necessary since
custody not being changed. Only the visitation. Mom keeps
custody. Just change in parenting visitation schedule just look to
best interests of children. Query is where to draw the line between
visitation changes and custody changes. When does the percentage
time share be high enough for both to equal joint custody?
|
Custody
|
Enrique
M and Angelina V. (2009) filed
6-10-09 – Strict scrutiny does not apply in custody related
dispute between parents concerning choice of school for child. –
No strict judicial scrutiny between parents in custody related
dispute between parents. Parenting is a fundamental right
subject to strict judicial scrutiny but not in reference to custody
disputes between parents themselves.
|
Custody
visitation
|
Family
Code 3102 grandparent visitation.
|
Custody
Hague
|
Marriage
of Weatherspoon (2007) 155 Cal.App.4th 963
filed 9-27-07 Mom in army in Germany. She has custody. She
send kids to dad and wants them back. Court granted it but appeals
reverses. She did make out a prima facie case for custody to
Germany. However court did not consider if a return would do great
harm to the children. Also there was the issue of consent. That is
if she consented that the children be with dad on permanent basis.
|
Custody
to other than parents
|
E.S.,
H.S. v N.S. filed 5-8-09 – using preponderance of evidence to
show de facto parent status for rebuttable presumption of
detriment depriving parent of permanent custody is not
unconstitutional. Custody granted to maternal grandparents – what
is burden for taking child from parents it is clear and convincing
but if others have been de facto parents there is a presumption that
they stay with de facto parents unless parent show a preponderance.
See Family Code 3041
|
Custody
visitation.
|
Family
Code 3101 on Stepparent visitation.
|
Custodya
|
Birdsall:
gay dad Ybj -3
|
DA
|
Yuba
v. Savedera. Filed 2-16-00. Court must enforce proposed child
support order and not have default hearing on earnings of dad in
welfare case. Ybj -77
|
DA
|
Riverside
v. Nevitt (2001) 87 Cal.App.4th 415. Inheritance by father paying
AFDC Child Support can be considered income. If mom is on welfare
and dad not pay enough to support the child then consider the
inheritance as income. If not on welfare and the current amount of
Child Support was adequate then they would probably follow Castle
and just use the interest. ORDERED DEPUBLISHED Ybj -117
|
DA
|
Not
entered YBJ: County of Orange v. Rosales. (2002) 99 Cal.App.4th 1214
Filed 6-28-02. Trial court properly released father from child
support judgment based on county's failure to bring case to trial
within five years of complaint. CCP 583.310 and 583.360. CCP 583.161
five year rule applies to dissolution cases also. Ybj -187
|
DA
|
For
father. The state that the order is from must make a request to have
the order enforced. If not that state then the mother. There is no
authorization in the documents from the receiving state or the
mother to enforce the order. IRMO Codoni (2002) 103 Cal.App.4th 18,
filed 10-25-02. County lacked standing to bring enforcement
action against father who owed back Child Support. Ybj -207
|
DA
|
BFSO
wins for reasons stated. Child Support Collection Agencies do not
have to give the notice and other requirements of 15 USC 1681b(a)(4)
when they seek enforcement of a Child Support order and not to
determine his capacity to pay and the amount of Child Support.
Hasbun v. L.A., filed 3-20-03. Comment: Real hair splitting here. Agency
may obtain credit report of parent who is behind on Child Support
payments. Ybj -225
|
DA
|
DeLeon
v. Jenkins (2006) 143 Cal.App.4th 118 filed 9-21-06. New Mexico
order on Child Support registered in Cal. It not mention any
arrears. Later arrears is added and he objects. Under
Family Code 4954, 4955 and 4957 the mom can later add in arrears.
|
DA
|
IRMO
Willmer (2006) filed 10-18-06
Order confirming registration of foreign judgment for
child and Spousal Support is proper where Germany is reciprocating
state. Default judgment from Germany on Child Support and
Spousal Support is good in Cal. United States Secretary of State has
not declared Germany a Reciprocating state. However California DA
and Attorney General has. Is enforceable under UIFSA. He had
attorney in Germany and they negotiated about issues.
|
DAa
|
Riverside v. Burt. Dj 11-19-99.
Child support ordered to reimburse county for welfare
benefits paid to support child
may be retroactive to date welfare benefits commenced
and not just back to the filing
of motion date. Ybj -71
|
Date
of Separation
|
IRMO
Geraci (2006) 144 Cal.App.4th 1278
filed 11-20-06 Where evidence was insufficient to prove
general partnership existed between husband and wife, post
separation earnings were not Community Property. Husband set
up partnership with wife as partner. She did not even know of this.
After Date of Separation he make money. Court rules it is his
Separate Property even though she listed as partner. She can't be a
partner when not even know of this "partnership". Also
2640 reimbursement. His Separate Property house but he not have
evidence as to value when transmute to Community Property and no
evidence on what he contributed. No tracing. On Spousal Support the
court must go down the list on Spousal Support issues. Can't just
say the section numbers.
|
Date
of Separationa
|
Remanded
back to lower court. The Date of Separation should not be June.
Appeals court outlines factors for a valid separation. First one
must spouse must have the subjective intent to end the Marriage and
there must be objective evidence of conduct following through on
that intent. Usually, but not all the time, the parties must not
live in the same residence. MARRIAGE OF Norviel (2002) 102
Cal.App.4th 1152
. filed 10-15-02. Good case in spelling out requirements of
valid separation. Date of Separation occurs when husband and
wife live separate and apart, residing in
different places usually. In Moreno Valley many
people going through a dissolution still stay in the same house.
Very common. Probably actually filing from the dissolution would be
a valid Date of Separation. Ybj -208
|
Death
|
Either
party's death dissolves their marriage or domestic partnership as a
matter of law.
[Ca Fam § 310(a); see also Ca Fam §§ 298.5(c), 299.3(a)]
Consequently, a party's death after the commencement of a
dissolution (or legal separation) action but before entry of
judgment terminating their marital or domestic partnership status
abates the proceeding and divests the court of all further
jurisdiction with respect to marital/domestic partnership status, as
well as all other as yet unadjudicated issues raised by the
pleadings (property rights, support, custody, attorney fees and
costs). [Marriage of Shayman (1973) 35 Cal.App.3d 648, 651; see
Estate of Blair (1988) 199 Cal.App.3d 161, 166-167 --family court's
jurisdiction to divide spouses' joint tenancy property as
presumptive CP abated by spouse's intervening death before marital
status judgment]
(But the intervening death does not affect orders already
entered in the case. The family court retains jurisdiction to take
action to enforce rights adjudicated before the spouse's death. See
Marriage of Lisi (1995) 39 Cal.App.4th 1573, 1575-1576
(a)[3:20]
Compare--death after status judgment:
On the other hand, the family
court's subject matter jurisdiction is not impeded by a party's
death after entry of judgment terminating marital/domestic
partnership status and reserving jurisdiction to decide the
remaining issues (i.e., bifurcated "status only" judgment;
see Ca Fam § 2337(d)).
Continuation through personal representative or successor in
interest:
Here, the proper procedure is to
substitute the personal representative of the deceased party's
estate or, if none, the decedent's successor in interest, as a party
to the still-pending action (Ca Civ Pro §§ 377.31, 377.32,
377.41), whereupon the reserved issues are properly decided under
the Family Code. [Marriage of Hilke (1992) 4 Cal.4th 215, 220
--spouse's death after bifurcated disso judgment does not abate
family court's jurisdiction to decide reserved property issues under
Ca Fam CP principles; see Marriage of Drake (1997) 53 Cal.App.4th
1139, 1151 --W's post-judgment child support modification action
properly continued after her death through her executors and
trustees of trust set up to care for her disabled adult son]
Compare--death after submission for decision but before
judgment:
One case goes further, upholding a
family court's continuing jurisdiction although a spouse's death
occurs before entry of the marital status judgment and even before
the court announces its decision. The family court still has
authority to enter judgment nunc pro tunc on all issues the parties
submitted for decision before the death. [Marriage of Mallory (1997)
55 Cal.App.4th 1165, 1167 --judgment properly entered nunc pro tunc
on marital status and property issues where H died after issues
taken under submission]
Compare--death pending post-dissolution child support action:
Because a parent's statutory
child support duty runs to the child, it is not extinguished by the
other parent's death. A custodial parent's post-judgment
modification action to increase child support therefore
"survives" his or her death and is properly continued by
the deceased parent's personal representative or successor in
interest. [Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151-1152]
|
Death
|
Estate
of Troy McDaniel (2008) 161
Cal.App.4th 458 filed
3-27-08 Since marital property rights terminated during Marriage
dissolution proceeding, decedent's former wife is not
"surviving spouse" and cannot inherit from decedent's
estate. Parties go through dissolution proceeding and divide all
the Community Property (marital property). They do not follow
through on the dissolution. He dies. Wife is not a surviving spouse
because of Probate code section 78(d). This is because all marital
property was disposed of. She was legally his wife but not his
surviving spouse as per Probate Code 78(d).
|
Declaration
|
Kulshrestha
v. First Union Commercial (2004) 33 Cal.4th 601 declarations signed
under penalty of perjury outside Cal do not satisfy CCP 2015.5, and
are not admissible in court or other authorized proceedings if
contents are not certified as true "under the laws of the
state of California."
|
Declaration
of Disclosure
|
IRMO
McLaughlin (2000) 82 Cal.App.4th 327. similar to IRMO Jones. Here
judgment entered even if no final Declaration of Disclosure or
waiver. The moving party failed to show prejudicial error so
it stands. Court committed error but not prejudicial error to one
party.
|
Declaration
of Disclosure
|
IRMO
Jones (1998) 60 Cal.App.4th 685. judgment entered even though no
final Declaration of Disclosure. Family Code 2106 requires a final
Declaration of Disclosure. Court says it is OK because it was a
procedural error in entering judgment and was harmless as moving
party failed to show how was prejudiced by it.
|
Declarationa
|
DJ 9-15-99 Marriage of DeRoque.
In declarations can't do motion to strike if not like
what is being said. Just too
bad. If party believed them to be true and are relevant is
the issue. Ybj -63
|
Declarations
|
IRMO
Elkins and Superior Court (2007) 41 Cal. 4th 1337 filed 8-6-07. Local
rule precluding oral testimony and disposing of contested marital
property "quasi by default" through written hearsay
declarations violates state law in reference to trials in family law.
County has rule that in FL trials they are adjudicated on basis of
declarations. Cal
Supremes say can't do at trial. Yes, at OSC but not trial. Must have
testimony unless parties stipulation to declarations.
|
Deeds
|
With
a grant deed there are implied warranties. They are unwritten guarantees. The
grantor is in effect warranting that: 1. he has not already conveyed
the title to the property to any other person and 2. that the estate
conveyed is free from encumbrances, except for those disclosed to
the grantee. A grant deed also convey any after acquired title, if
any such is involved. A quitclaim deed is when the
grantor merely gives up any right or claim he has in the property.
There are no implied warranties in a quitclaim deed. It guarantees
nothing, not even that the grantor owns the property or has any
interest in it. It does not convey after acquired title.
|
Deeds
– trans
|
Founding
Members, et al (2003)
109 Cal.App.4th 956 –
Cal has objective theory of contracts. Under which it is the objective
intent as evidenced by the words of the contract, rather
than the subjective intent of one of the parties, that controls
interpretation of the contract. The parties undisclosed intent or
understanding is irrelevant to contract interpretation.
|
deedsa
|
Dissolution
judgment lien on land. Husband used two names. Escrow officer knew
but did not reveal the information. The purchaser of the land takes
the loss since mom can do a writ of execution. Mom wins. She can get
a writ of execution on the land. The person at fault is the escrow
officer. She should have notified the title company of the
different names used. The buyer had constructive knowledge
because the escrow officer knew and should have alerted buyer and
the title company. Marriage of Cloney (2001) 91 Cal.App.4th 429 Ybj
-142
|
Default
set aside
|
a)
The case of Rappleya v. Campbell (1994) 8 Cal. 4th
975 had the following quotes on CCP 473 requests:
i)
(at page 980) There is little question we would
have found an abuse of discretion if relief had been denied within
the six-month period governed by section 473. [1] Because the law
favors disposing of cases on their merits, "any doubts in
applying section 473 must be resolved in favor of the party seeking
relief from default [citations]. Therefore, a trial court order
denying relief is scrutinized more carefully than an order
permitting trial on the merits." (Elston v. City of Turlock
(1985) 38 Cal.3d 227, 233 see also Miller v. City of Hermosa Beach
(1993) 13 Cal.App.4th 1118, 1136.
ii)
(at page 981-982) When a default judgment
has been obtained, equitable relief may be given only in exceptional
circumstances. "[W]hen relief under section 473 is available,
there is a strong public policy in favor of granting relief and
allowing the requesting party his or her day in court. Beyond this
period there is a strong public policy in favor of the finality of
judgments and only in exceptional circumstances should relief be
granted." (In re Marriage of Stevenot,
154 Cal.App.3d 1051 at p. 1071; see Aheroni v. Maxwell (1988)
205 Cal.App.3d 284, 291.
b)
In the case of Rappleyea v. Campbell (1994) 8 Cal.
4th 975, page 982 and following, the court set out the grounds for
equitable relief (keep in mind Rappleya was after the six months of
CCP 473):
i)
Is there a satisfactory excuse for not filing and
answer or response? [we feel there is in that Mr. ---- had serious
health problems and was representing himself]
ii)
Does the response have merit? [We feel it does.
The declaration of Mr. ----- lists the values of the properties in
the judgment. It is blatantly not fair]
iii)
Was there prejudice to the petitioner? [There is
not. The property has not been sold. It can easily be adjudicated]
iv)
Did the defendant act diligent? [Mr. ----- did
once his health problems were over. There is no real prejudice to
the petitioner by setting aside the default at this time]
|
Delinquenta
Child Support
|
Dad
wins. The court has a great deal of discretion. The time for making
the motion is vague and the Judicial Council forms say that the
penalty may be imposed. IRMO De Prieto (2002) 104 Cal.App.4th 748,
filed 12-20-02. This is the first time the court of appeal cited the
Judicial Council forms for authority. It is almost like they don’t
like the penalty and want to bend over backwards so the trial courts
don’t have to enforce it. Court has discretion to reduce
penalties imposed on delinquency Child Support payments as per
Family Code 4720 and 4722
Ybj -213
|
Disability
|
Disability
payments. Only excess of disability over retirement benefits
is Separate Property Mansell v Mansell (1989) 490 US 581
|
Disability
|
Disability
income QDRO are tax free IRS code 104. Tax savings from
disability pension are Separate Property. Community Property
entitled to its share of what pension would have been, after tax.
IRMO Higinbotham (1988) 203 Cal.App.3rd 322
|
disability
|
- IRMO Elfmont (1995) 9
Cal.App.4th 1026 held that disability benefits are Separate
Property where policies were renewed after Date of Separation
with separate funds.
IRMO
Costco (1984) 156 Cal.App.3d 781 holds that military
disability pay converted after retirement is not divisible as
Community Property. This is what almost all branches of
military hold which is favorable to the military personnel. IRMO
Costco (1984) 156 Cal.App.3d 781 holds that military disability pay
converted after retirement is not divisible as Community Property.
This is what almost all branches of military hold which is favorable
to the military personnel.
- Remedy is to consider
specifying a dollar amount and/or including a waiver of any
disability in excess of the original 10% rating. Remember that
the 10% rating is automatic for all military members who apply
to the VA for a disability rating.
|
Disability
|
Disability
benefits received in lieu of matured and vested longevity benefits
are Community Property. IRMO Stenquist (1978) 21 Cal.3d 779 – IRMO
Stenquist (1978) 21 Cal. 3rd 779 – on disability pension. Only the
excess of the "disability" pension rights over the
alternative "retirement" pension represented additional
compensation to husband's disability; the balance of the pension
rights acquired during Marriage are Community Property.
|
Disability
and 2640 reimbursement
|
IRMO
Rossin (2009) 17 Cal.App.4th 725
filed 3-24-09 Private disability benefits paid during
marriage are Separate Property where right to benefits was acquired
before marriage – Wife purchase disability insurance prior
to marriage and disability starts before marriage. She claims it
Separate Property and wants reimbursement for what paid with her
Separate Property. For wife. It is her Separate Property since all
before marriage. Even though get after marriage is still her
Separate Property. Implication is that she can get reimbursement for
Separate Property used for Community Property purposes, etc.
|
Disabilitya
|
Fisk:
Workers compensation permanent disability Ybj -41
|
Disc
|
No
breach of fiduciary duty were there is insufficient evidence of
husband's refusal to provide information about which wife did not
inquire. Husband wins. There was no evidence she actively sought
information on the investments and no evidence he never provided the
information. There is no duty of due care to make only conservative
investments. He lost money also. They were married and living
together. Divorce was not yet part of the picture. There is no duty
for him to make only conservative investments. Marriage of Duffy,
filed 5-31-01 (2001) 91 Cal.App.4th 923. Involved Family Code 1100
and 721 Ybj
–145 – THIS IS SUPERSEDED BY FAMILY CODE 721 This § holds that
the fiduciary relationship between spouses includes all of the same
rights and duties in the management of Community Property as the
rights and duties of unmarried business partners managing
partnership property as per 16403, 16404 and 16503 of corporations
code.
|
Disc
|
Marriage
of Loh, filed 10-29-01. Photos of ex-spouse lifestyle cannot justify
increase in Child Support without tax returns. (2001) 93 Cal.App.4th
325. Court should first figure guideline Child Support and
then figure other things like untaxed income and benefits.
Ybj -152
|
Disc
|
Dad
in debtor creditor exam. He refuse to answer questions or bring
documents claiming the fifth amendment because he behind in
payments. The court has to balance the rights here. The privilege
against self incrimination and the need for support. The court
determines that just the tax return is the only document that dad
will have to produce. He will also have to answer questions about
it. Family Code 3552 and 3665 both provide for tax return
information. A final note is that any money earned, even through
criminal acts, is to be reported on the tax return. Marriage of
Sachs (2002) 95 Cal.App.4th 1144 – guidelines for contempt. Ybj
-170
|
Disc
|
Harry
wins. The case was adjudicated four years ago after ample discovery.
She cannot go back to court later under Family Code 2556 and not
have any idea of other assets. She must have some evidence or
indication that there are other assets that have not been
adjudicated. IRMO Hixson, filed 9-5-03 (2003) 111 Cal.App.4th 1116.
Ybj -238
|
Disc
|
IRMO
Chakko (2004) 115
Cal.App.4th 104 - filed 1-22-04. Because father continually
abused discovery process, court properly entered order declaring his
income at 40k per month. Dad not comply with discovery. Wife
presents loan application he had filled out and not signed by him
list his income 40k per month. Because dad not comply with discovery
this credit application can be used as his income. Mortgage loan
application.
|
Disc
|
IRMO
Steiner (2004) 117 Cal.App.4th 519
filed 4-5-04. Trial where there was no final Declaration of
Disclosure by either side. This does not entitle the parties to a
new trial. Family Code 2101 says that "failure to comply with
the disclosure requirement does not constitute harmless error."
However nobody brought it up at trial. State constitution at Article
VI section 13 says that any error of a matter of procedure the
court shall examine the record for miscarriage of justice.
This trumps the Family Code. Appealing party here cannot identify
any part of the judgment where she has suffered because of the
non-exchange of final Declaration of Disclosure.
|
Disc
|
IRMO
Michaely (2007) 150 Cal.App.4th 802 , filed 4-16-07. Wife awarded
$21 million in dissolution proceedings where husband sanctioned for
egregious conduct during discovery. Husband really bad in
discovery and not cooperate at all. No abuse of discretion for
sanctions. He very rich man.
|
Disca
|
Marriage
of McLaughlin (2000) 90 Cal.App.4th 34. Trial court OK the
stipulated judgment even though no Preliminary Declaration of
Disclosure. It was error, but not reversible error. For it to be reversed
must show some sort of prejudice or a more favorable outcome but for
the lack of a Preliminary Declaration of Disclosure. Ybj -87
|
Domestic
partner
|
Velez
and Smith (2006) 142 Cal.App.4th 1154
filed 9-12-06. California Domestic Partner Rights and
Responsibilities Act required registration with state as
prerequisite for pursuing dissolution action. To use domestic
partnership act in court must be registered domestic partner with
state of California. Just like to use dissolution courts must be
married. Otherwise use Marvin action. Contra is IRDP Ellis and
Arriaga see below.
|
dos
|
IRMO
Manfer (2006) 144 Cal.App.4th 925
filed 11-9-06. Date of Separation test is whether at least
one party intended to end marital relations, as objectively
determined by their conduct. Parties agree to end Marriage but
want to keep secret from children. They still see each other, etc.
Ultimate question is if parties considered their Marriage over.
Presentation to the world may not matter. What were their actions
and statements. Public perception is not that important. They did
live separately. -
|
Double
dip
|
IRMO
Blazer (2009) filed
8-25-09 in valuing business the excess earnings approach was used. H
says that he received the business and equal assets to wife. The
income from the business should be his Separate Property and not
considered for support. Court says no. As per White case
Spousal Support considerations are separate and distinct from
property division concepts. – in valuing the business it
was as it was then with goodwill and all. He received all of that.
She gave up all of the business. At no time in the evaluation of the
business did the court find part of the value to be future earnings.
– earnings from passive income should be considered just
like interest from monies or rental value of realty, etc.
|
Drug
test
|
Deborah
M. v. San Diego (2005) 128 Cal.App.4th
1181 (filed 4-29-05) parents in custody proceedings cannot be
ordered to submit to drug testing through hair follicles. Mom
ordered to take hair follicle test for drugs under Family Code
3041.5(a). This Family Code section sunsets in 2008. This Family
Code was a reaction to Wainwright case. Mom not have to take because
there is a clause that uses the federal government standards. Those
standards are only for urine tests. Hence cannot order for hair
follicle since federal standards are only for urine tests. Yes, can
order urine test but that is all.
|
Drug
test
|
A
court's statutory authorization under Family Code section 3041.5 to
required drug and alcohol tests in custody proceedings has been
extended so that its sunset date is now January 1, 2013.
|
Drug
tests
|
Family
Code 3041.5 involves drug tests. This will sunset January 2013
unless extends that date. –
FAM
§3041.5. Court May Order Testing for Drug and/or Alcohol Use
[Editor's
Note: Per subdivision (b), this section shall remain in effect only
until January 1, 2013, and as of that date is repealed, absent prior
legislative action to the contrary.]
(a) In any custody or visitation
proceeding brought under this part, as described in Section 3021, or
any guardianship proceeding brought under the Probate Code, the
court may order any person who is seeking custody of, or
visitation with, a child who is the subject of the
proceeding to undergo testing for the illegal use of
controlled substances and the use of alcohol if there is a
judicial determination based upon a preponderance of evidence that
there is the habitual, frequent, or continual illegal use of
controlled substances or the habitual or continual abuse of alcohol
by the parent, legal custodian, person seeking guardianship, or
person seeking visitation in a guardianship. This evidence may
include, but may not be limited to, a conviction within the last
five years for the illegal use or possession of a controlled
substance. The court shall order the least intrusive method of
testing for the illegal use of controlled substances or the habitual
or continual abuse of alcohol by either or both parents, the legal
custodian, person seeking guardianship, or person seeking visitation
in a guardianship. If substance abuse testing is ordered by the
court, the testing shall be performed in conformance with procedures
and standards established by the United States Department of Health
and Human Services for drug testing of federal employees. The
parent, legal custodian, person seeking guardianship, or person
seeking visitation in a guardianship who has undergone drug testing
shall have the right to a hearing, if requested, to challenge a
positive test result. A positive test result, even if
challenged and upheld, shall not, by itself, constitute grounds for
an adverse custody or guardianship decision. Determining the
best interests of the child requires weighing all relevant factors.
The court shall also consider any reports provided to the court
pursuant to the Probate Code. The results of this testing shall be
confidential, shall be maintained as a sealed record in the court
file, and may not be released to any person except the court, the
parties, their attorneys, the Judicial Council (until completion of
its authorized study of the testing process) and any person to whom
the court expressly grants access by written order made with prior
notice to all parties. Any person who has access to the test results
may not disseminate copies or disclose information about the test
results to any person other than a person who is authorized to
receive the test results pursuant to this section. Any breach of the
confidentiality of the test results shall be punishable by civil
sanctions not to exceed two thousand five hundred dollars ($2,500).
The results of the testing may not be used for any purpose,
including any criminal, civil, or administrative proceeding, except
to assist the court in determining, for purposes of the proceeding,
the best interest of the child pursuant to Section 3011, and the
content of the order or judgment determining custody or visitation.
The court may order either party, or both parties, to pay the costs
of the drug or alcohol testing ordered pursuant to this section. As
used in this section, "controlled substances" has the same
meaning as defined in the California Uniform Controlled Substances
Act, Division 10 (commencing with Section 11000) of the Health and
Safety Code.
(b) This section shall remain
in effect only until January 1, 2013, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2013, deletes or extends that date.
|
Drugs
|
Hooper
case. Spouses of convicted drug dealers are not entitled to
Community Property share of forfeited proceeds. ybj 99
|
Drugs
|
Family
Code 3041.5 courts can order drug or alcohol testing of parents
|
Drugsa
|
Wainwright.
Family Code 3011(d) does not have sufficient procedural safeguards
to protect party taking drug test. Family court cannot require
parent to take drug test in child custody case. Ybj –1-2 – NO
LONGER LAW. SEE Family Code 3041.5
|
Dv
|
IRMO
Sabbah filed 5-30-07, Trial court properly rules Family Code 3044
is inapplicable in case of father accused of domestic violence.
– Family Code 3044 states: (f) In any custody or restraining order
proceeding in which a party has alleged that the other party has
perpetrated domestic violence in accordance with the terms of this
section, the court shall inform the parties of the existence
of this section and shall give them a copy of this section prior to
any custody mediation in the case. [Added 1999 ch. 445; Amended 2003
ch. 243.] – this just applies to mediation. The parents must be
notified of the presumption and information on 3044 before
mediation.
|
DVPA
|
Trial
court's denial of restraining order because victim's children lived
in Mexico is contrary to DVPA. For Maria. The judge was clearly prejudice
against her. The fact that the children are in Mexico has nothing to
do with the order. The Judge showed his prejudice also. Even if the
court disagrees with Maria's life style she is still entitled to the
protection of the law. Quintana v. Guijosa (2003) 107 Cal.App.4th
1077 ,
filed 3-13-03 Ybj -226
|
DVPA
|
Ritchie
v. Konrad (2004) 115 Cal.App.4th
1275, 1288, 1290 in DVPA reasonable proof is equated to
preponderance of the evidence, the basic civil standard that applies
generally to family law proceedings.
|
DVPA
|
Family
Code 6345 says that restraining orders may now be renewed for
three years or permanently, without a showing of any further
abuse since the issuance of the original order.
|
DVPA
|
Gonzalez
v. Munoz (2007) 156 Cal.App.4th 413. Court issues restraining order
preventing father from coming near mother. However court does not
protect the child and no custody orders on child. This was error.
DVPA orders should include custody and visitation. Lower court
should have issued orders protecting the child and an order on
temporary custody to mom.
|
DVPA
|
Pugliese
v. superior court (2007) 146 Cal.App.4th 1444, DVPA litigant
entitled to seek recovery for all acts of domestic abuse occurring
during domestic relationship so long as litigant proves continuing
course of abusive conduct. Continuing tort doctrine applies.
|
DVPA
|
Marriage
of Nakamura and Parker (2007)
filed 10-22-07 Facially adequate allegations of domestic
violence divest court of discretion to summarily deny application
for temporary protective order against former husband. Woman
made DVPA claim against ex-spouse. Valid points. He violent and in
declaration. Court denies it summarily. Court denied it without any
reasons and not set a hearing. When valid like this the court should
have had a hearing or granted it. court in error. Abuse of
discretion by court.
|
DVPA
|
Marriage
of Cauley (2006) 138 Cal.App.4th 1100 4-24-06
– If a recipient spouse is convicted of domestic
violence against the payor, not err to terminate Spousal Support
pursuant to Family Code 4325 even where MSA or judgment stipulated
no modification or termination. – Non modifiable Spousal
Support ordered. Former wife very violent and convicted of DVPA
criminal. Court can terminate Spousal Support as to her. There is a
strong public policy against domestic violence. FAMILY CODE 4320 not
considered when 4325 is applied.
|
DVPA
|
IRMO
Nadkarni (2009) 173 Cal.App.4th 1483
filed 4-24-09 Former husband's public disclosure of former
wife's private emails constitutes abuse under DVPA. – He
gets into former W E-Mail. Is the DVPA the proper remedy. Appeals
says yes. Family Code 6200 does cover this.
FAM §6203. Abuse
For purposes of this act,
"abuse" means any of the following:
(a) Intentionally or recklessly to
cause or attempt to cause bodily injury.
(b) Sexual assault.
(c) To place a person in reasonable
apprehension of imminent serious bodily injury to that person or to
another.
(d) To engage in any behavior
that has been or could be enjoined pursuant to Section 6320.
FAM §6320. Conduct Subject to Restraining Order
(a) The court may issue an ex parte
order enjoining a party from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, annoying telephone calls
as described in Section 653m of the Penal Code, destroying personal
property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or
disturbing the peace of the other party, and, in the
discretion of the court, on a showing of good cause, of other named
family or household members.
(b) On a showing of good cause, the
court may include in a protective order a grant to the petitioner of
the exclusive care, possession, or control of any animal owned,
possessed, leased, kept, or held by either the petitioner or the
respondent or a minor child residing in the residence or household
of either the petitioner or the respondent. The court may order the
respondent to stay away from the animal and forbid the respondent
from taking, transferring, encumbering, concealing, molesting,
attacking, striking, threatening, harming, or otherwise disposing of
the animal.
(c) On or before July 1, 2009, the
Judicial Council shall modify the criminal and civil court forms
consistent with this section.
This
does disturb her peace and good under DVPA. DVPA not strictly
limited to violence.
Court
of appeals looks up "disturbing the peace" in dictionary
and can do so. See Wasatch Property Management v. Degrate (2005) 35
Cal.4th 1111, 1121-1122. Can also cite this case on use of regular
dictionary.
|
DVPAa
|
Oriola
v. Thaler 84 Cal.App.3d 397. Casual dating is not a dating
relationship as per the DVPA. Must have real dating closer. Ybj -108
|
eal
files
|
IRMO
Nicholas and Los Angeles Times (2010)
filed 7-29-10 Newspaper wants to find out about financial
records in dissolution case. The previous judge made certain sealing
of file orders. Next judge on the case modifies them. Can the second
judge modify the previous seal order? Yes. The latest judge can
modify the seal order.
|
Education
- reimburse
|
IRMO
Watt (1989) 214 Cal.App.3d 340. On educational reimbursement under
2641 the reimbursable Community Property expenditure for the student
spouse's education generally does not include ordinary
living expenses. Just for books, tuition, etc. –
This is different from the Community Property reimbursement Watts at
(1985) 171 Cal.App.3rd 366. – at Watt at page 354 it states:
"The CLRC comment to section 4800.3 explains that the purpose
of the provision is to authorize reimbursement of community
expenditures for educational expenses that have benefited primarily
one party to the marriage. It goes on to state: "Subdivision
(a) does not detail the expenditures that might be included within
the concept of 'community contributions.' These expenditures would
at least include cost of tuition, fees, books and supplies, and
transportation." (Cal. Law Revision Com. com., West's Ann. Civ.
Code, § 4800.3 (1989 pocket supp.) p. 95 [Deering's Ann. Civ. Code,
§ 4800.3 (1989 pocket supp.) p. 102].)
From this comment, as well as the
definition of community contributions to education or training, it
is evident that the thrust of section 4800.3 is to require
reimbursement for expenses that are related to the education
experience itself. The married couple would incur ordinary
living expenses regardless of whether one spouse is attending
school, staying home, or working." --- 4320 on Spousal Support
provides other remedies for expenses during the school time. Family
Code 4320 (b) (b) The extent to which the supported party
contributed to the attainment of an education, training, a
career position, or a license by the supporting party.
|
Educationa
|
Mike
argues: "Family Code 2641(c) provides that where the community
has benefited from the education then that should be a factor. This
is true even if the educational loans were from before
Marriage. The trial judge refused to even consider this. The
judge should have to consider the benefit to the community from my
educational debts." --- For Mike. The debts were Separate
Property debts. The Community Property usually will be reimbursed
one half for payments made during Marriage. However Mike may be able
to show that the community benefited from his education (in terms of
higher pay) and that should be considered by the court. IRMO Weiner
filed 1-10-03 (2003) 105
Cal.App.4th 235 Ybj -214
|
Estoppela
|
Husband
who is not biological father of child may be compelled to pay
support under doctrine of parentage by estoppel. Wife argues: "He held himself out to the
public and the minor that he was the father. He did this for years.
It is such that it would now be difficult to locate the biological
father. He should be the father by estoppel." For wife for
reasons stated. A line of cases holds that the conduct of a husband
with no biological ties to a child may nonetheless estop the husband
from avoiding parental responsibilities even after the husband's
Marriage to the child's mother is dissolved. IRMO Pedregon (2003)
107 Cal.App.4th 1284. filed 4-21-03. Ybj -227
|
Ethics
|
Rico
v. Mitsubishi (2007) 42 Cal. 4th 807 What to do when you receive
privileged document inadvertently produced by your opponent?
Answer is that once the attorney knows the document is privileged
he/she must stop reading and call opposing counsel or risk
sanctions.
|
Ethics
|
Selten
v. Hyon (2007) 152 Cal.App.4th 463. lawyer did work when the
contract was unenforceable by law (part of paralegal or capper or
something like that) at page 472-473 "When
services are rendered under a contract that is unenforceable as
against public policy, but the subject of services are not
themselves prohibited, quantum meruit may be allowed . . . "
cites and other information following.
|
Evidence
code
|
|
Expert
testimony
|
IRMO
Rosen (2002) 105 Cal.App.4th 808, 820. Just because an
experts testimony is not contradicted does not make it binding on
the court. Court can not believe the expert.
|
FAMILY
CODE
|
|
Federal
preemption
|
)[8:56]
Federal savings bonds
must be treated as the separate
property of the person in whose name the bonds are registered (or
that person's heirs) even if purchased with community funds. [Free
v. Bland (1962) 369 U.S. 663, 666-669, 82 S.Ct. 1089, 1092-1093;
Yiatchos v. Yiatchos (1964) 376 U.S. 306, 307, 84 S.Ct. 742, 744]
(a)[8:57]
Limitation--fraud or breach of trust:
But this is not to say that either spouse can, with impunity, defeat
the other's CP interest. A spouse who transfers community property
into savings bonds registered in his or her own name or that of a
third party, without the other's consent and without valuable
consideration, breaches the fiduciary duty owed between spouses (Ca
Fam §§ 721(b), 1100(e)) and must account to the other for the
amounts so spent (Ca Fam § 1101, see ¶8:612 ff.). [Estate
of Bray (1964) 230 Cal.App.2d 136, 143, 40 Cal.Rptr. 750, 754; Free
v. Bland, supra, 369 U.S. at 670-671, 82 S.Ct. at 1094]
(2)[8:58]
Military insurance policies
under the NSLIA or SGLIA programs
are the separate property of the veteran insured, regardless of the
source of the premium payments. The service member has the sole
right to designate the beneficiary of the policy proceeds, and state
domestic relations laws or judgments cannot alter that result. [Wissner
v. Wissner (1950) 338 U.S. 655, 658-659, 70 S.Ct. 398, 399-400;
Ridgway v. Ridgway (1981) 454 U.S. 46, 55-57, 102 S.Ct. 49,
55-56--Maine divorce decree ordering insured husband to keep SGLIA
policy in force for benefit of children could not supersede H's
subsequent change of beneficiary to his new wife; nor could the
proceeds be diverted to children by means of a constructive trust
(but dictum indicates the result might be otherwise if a case of
fraud or breach of trust had been made out)]
(a)[8:59]
Distinguish--no preemption once converted to individual
policy:
However, there is no issue of
federal preemption if a military group policy has been converted to
a civilian individual policy (see 38 USCA § 1977(e)). Community
property principles may be applied to the converted policy.
[Marriage of Gonzalez (1985) 168 Cal.App.3d 1021, 1023, 214 Cal.Rptr.
634, 636 (distinguishing Wissner and Ridgway, supra)]
(3)[8:60]
Federal employee benefits
(military retirement pay, civil
service pensions, etc.) are preempted only when congressional intent
is clear. But, in any event, ownership rights in federal benefits
are subject, at least in the first instance, to governing federal
statutes. See ¶8:220 ff.
(4)[8:61]
Social security benefits
are preempted by the Social
Security Act and thus must be treated as the employee's separate
property. See ¶8:255.
|
Fiduciary
|
Marriage
of Rossi (2001) 90 Cal.App.4th 34. Wife who fails to disclose
lottery winnings during divorce must give entire amount to
husband. Fraud in fiduciary relationship as per Family Code 1101(h)
Ybj -130
|
Fiduciary
|
IRMO
Haines (1995) 33 Cal.App.4th 277
at 293 A transmutation is an interspousal transaction
or agreement which works a change in the character of the property.
– The presumption that the advantage was gained by the exercise of
undue influence continues until it is dispelled.. The burden of
dispelling the presumption rests on the party advantaged by the
transaction at page 297 – EC 662 on clear and convincing evidence
when it conflicts with the presumption of undue influence stemming
from family fiduciary duty statues. Thus, after a refinance a non
owner spouse who signed a deed waiting any interest in the property
can avoid the EC 662 presumption by establishing that the
transaction was obtained by undue influence. Undue influence
trumps 662.
|
Fiduciary
|
Trial
court didn't abuse discretion in setting aside judgment and marital
settlement agreement based on mistake. Even when going through a
divorce the parties are in a fiduciary relationship with each other
in the eyes of the law. She should have made greater efforts
to find the value since it was her plan and she was better able to
find the value. Just because she mentioned the plan in the
pleadings does not mean she can just list "unknown" She
should have found the value since it was a defined contribution plan
that had a value certain. Marriage of Brewer and Federici, Filed
11-28-01 (2001) 93 Cal.App.4th 1334 Ybj -155
|
Fiduciary
|
Husband
wins for reasons stated. Undue influence was used here by one spouse
getting an unfair advantage over the other. There is a fiduciary
relationship between spouses. Also she never really waived her
Family Code 2640 reimbursement rights. The note is not valid. IRMO
Lange, filed 9-23-02 (2002) 102 Cal.App.4th 360. Promissory
note, secured by deed of trust on residence for wife's Separate
Property contributions, is unenforceable because of advantage
provided to wife. She got interest and never waived Family Code 2640
Ybj -201
|
Fiduciary
|
Where
parties in a confidential relationship engage in a transaction
between them by which one of them benefits, the transaction is
presumed void for undue influence. The burden of producing
evidence to overcome the presumption is on the spouse who claims the
validity of the transaction. The primary consequence of designating
a relationship as fiduciary in nature are that the parties owe
a duty of full disclosure and that a presumption arises that
a party who owes a fiduciary duty, and who secures a benefit through
an agreement, has done so through undue influence 1 Witkin Summary
of Cal Law 9th edition contracts section 425, 426
|
Fiduciary
|
Interspousal
fiduciary duties apply in five area of family law:
1.
Premarital agreements – Usually not before Marriage but may have
de facto under Haines at page 297 de facto key word
2.
General presumption of confidential relationship when man and woman
married – Family Code 721
3.
Management and control of Community Property –Family Code 1101,
2102, 721
4.
Presumption of confidential relationship in interspousal
transactions – Family Code 721,
5.
Post separation fiduciary duties – Family Code 2101
|
Fiduciary
|
IRMO
Walker (2006) 138 Cal.App.4th 1408, filed 4-27-06.
Amended Family Code section 721 should not be applied retroactively
to penalize wife. Wife take money out of husbands Separate Property
and Community Property IRA. Court says that the fiduciary duty yes
does apply to Separate Property of the other spouse. – New Family
Code 721 requires other spouse to reveal business interests
"without demand" for this information. Before it
was only "upon demand". If he not demand information then
no breach of fiduciary duty. Her actions took place before the new
Family Code 721 provision of without demand.
|
Fiduciary
|
IRMO
Burkle (2006) 139 Cal.App.4th 712,
filed 5-18-06. Court's order finding post-marital agreement
valid was proper where there was no presumption of undue influence
from execution of agreement. During Marriage reconciliation
the parties do post marital agreement on assets. Both have attorneys
and work out a deal. Four years later they split and she feels not
fair. Full discovery for both sides. After events show he did better
but not clear at the time. As per FAMILY CODE 721 any advantage the
other side gets must be an "unfair advantage". Just
advantage not sufficient to set aside. Fiduciary relationship
between husband and wife is like business partners. Not like a
trustee and beneficiary. Presumption of undue influence look to see
if no or insufficient consideration.
|
Fiduciary
duties
|
IRMO
Feldman (2007) 154 Cal.App.4th 1470
filed 7-20-07 Sanction upheld where husband breaches
fiduciary duty to disclose material facts and produce documents
regarding assets in which community may have interest. Nothing
really new. Husband did not fill out Declaration of Disclosure on
major assets. His excuses were minimal. He gets sanctioned. –
This is an important case on
Declaration of Disclosure. Case is a powerful warning that mere
failure to voluntarily disclose any significant change is itself
sanctionable behavior. Don’t need
to show damages. Must fully reveal assets and debts, etc. even if no
harm of injury has been done can still be sanctioned. Big time
sanctions here.
|
Fiduciary
duties
|
)[8:1351]
Duty unimpeded by separation in anticipation of dissolution:
The full bundle of
intraspousal fiduciary obligations with regard to the community
estate continues postseparation until the particular community item
is divided and distributed. [Ca Fam §§ 721(b), 1100(e),
2102; see Marriage of Brewer & Federici (2001) 93 Cal.App.4th
1334, 1348, 113 Cal.Rptr.2d 849, 858-859--spouse who is in superior
position to obtain information from which asset can be valued and
who can reasonably do so must acquire and disclose such information
to other spouse; compare Marriage of Heggie (2002) 99 Cal.App.4th
28, 35, 120 Cal.Rptr.2d 707, 712-713--no fiduciary obligation to
update other spouse on market value of fully-disclosed securities
where valuation information readily obtainable publicly]
|
Fiduciarya
|
Rubenstein
case. Rubenstein case (2000) 81 Cal.App.4th 1131.
Filed
6-29-00. Under FAMILY CODE 2122 on relief from judgment the other
party has one year from discovery or should have discovered the
fraud in hiding assets. Just a suspicion on hiding assets is not
enough. Parties in fiduciary relationship with one another even
in dissolution. Ybj -86
|
Final
order
Custody
|
Mom
wins. The change of circumstances rule is still valid. However for
it to take effect there must be a clear and affirmative showing that
the parties intend that it be a final order and for a modification
there must be a change of circumstances shown. This case involved a
stipulated custody agreement. However, the court implies, that it
would also apply to an order obtained via litigation. Marriage
of Montenegro and Diaz, filed 7-30-01 (2001) 26 Cal. 4th 249
Supreme court case here. Must be showing in litigation and/or
stipulation that the parties intend it to be a final order.
Ybj -136
|
Foreign
judgment
|
IRMO
Lyustiger (2009) 177
Cal.App.4th 1367 filed
9-29-09. British order requiring and ex husband to pay
attorney fees is unenforceable where the order constituted
"support" under the Uniform Foreign Money Judgments
Recognition Act. – act amended in 2007. mostly in CCP 1724. –
British court ordered him to pay money for her attorney fees. This
is in the nature of support and the act prohibits money judgments
for dissolution type proceedings.
|
foundation
|
Parlier
Fruit Co. v. Fireman's etc. (1957) 151 Cal.App.2d 6: Defendants
contend that his testimony that the fire shown therein under the
floor could have started on top is based upon his assumption that
there was a single floor. Wolfe saw the photographs which were taken
of the fire as it progressed. The evidence is not clear as to
whether the witness knew or did not know of the double floor.
Defendants' only objection to questions asking Wolfe's opinion as to
the nature of the fire was that no foundation was laid for the
question. At no time did defendants complain that any question
omitted any claimed necessary fact or that the witness did not have
before him any necessary fact. Defendants should have pointed out
the specific defects, if any, so that the court could have ruled
upon them. (Howland v. Oakland C. St. Ry Co., 110 Cal. 513 [42 P.
938].) If an objection is that the question omits essential
facts, those facts should have been pointed out in the objection.
(Dameron v. Ansbro, 39 Cal.App. 289 [178 P. 874].)
|
Fraud
|
The
lower appeals court decision in this is at YBJ 17. The Supremes hold
that the UFTA does apply to property divisions in dissolutions.
However the UFTA does not apply to future Child Support owed. The
future Child Support owed should not be considered a debt under the
UFTA. Mejia v. Reed, filed 8-14-03 (2003) 31 Cal. 4th 657. Transfer
or property during marital dissolution may be set aside under
Uniform Fraudulent transfer Act. Ybj -237
|
·
Frauda
|
·
Wife wins. There was clear and convincing evidence
that husband and his girlfriend were using the law to defraud the
wife. Girlfriend was paying some of husband's debts even though she
had not legal obligations to do so. As punishment for this fraud the
court orders husband to pay wife the entire proceeds of the house.
IRMO Murray, filed 8-26-02. Proceeds from home sale which were
attached to illegitimate debts constitute fraud upon the community.
IRMO (2002) 101 Cal.App.4th 581 Ybj -196
|
Gifta
– Q
|
Gift
from employer. Question is if it is a gift in recognition of
services during Marriage. Downer v. Bramet (1984) 152 Cal.App.3d 837
|
Gifts
in deed
|
Error
in family make deed out to both and meant just one.
A literal application of the Code would appear to give each spouse
an undivided one-half (separate property) interest in gifts given to
them jointly (i.e., holding as tenants in common); but inquiry
into the donor's intent or the parties' mutual understanding may
show the gift to be otherwise. [See, e.g., Marriage of
Camire (1980) 105 Cal.App.3d 859, 865, 164 Cal.Rptr. 667, 670--gift
in joint tenancy held to be W's SP following donor's testimony it
was intended for W only; compare Marriage of Gonzales (1981) 116
Cal.App.3d 556, 564,172 Cal.Rptr. 179, 183-184--gift from W's
father held gift to both spouses (but father did not testify at
trial); Marriage of Milse (1986) 182 Cal.App.3d 203, 208, 227
Cal.Rptr. 70, 73--gift from W's parents held "family gift"
even though handed by parents to H]
|
Goodwill
|
IRMO
Iredale and Cates (2004) 121 Cal.App.4th 321 filed 8-3-04. Court
may value attorney spouse's goodwill by comparing compensation of
similarly situated professionals. Goodwill of attorney. None in
the partnership since all that goodwill belongs to the partnership.
However her goodwill can be compared to excess earnings using
another attorney employed like her and not a salaried individual.
"average salaried person" is not the only measure.
|
Goodwill
|
IRMO
McTierman and Dubrow (2005) 133 Cal.App.4th
1090 filed 10-28-05 Business and professions code endow
business and not person with capacity to generate goodwill. Husband
is film director that is very specialized and based on his skills.
Excess earnings approached used as to what regular director would
make compared to him. His skill, reputation and experience cannot be
considered a business for goodwill. No natural person, as distinct
from a business, can generate goodwill. The fact that a CPA can do
the calculations does not convert husband's skill and reputation
into a business and does not transmute unique and idiosyncratic
talents into property that can be sold or transferred.
|
Goodwill
|
IRMO
Ackerman (2006) 140 Cal.App.4th 191 (2006) filed 12-27-06.
Court may apply its "common sense view" to
expert's goodwill valuation methodology to determine valuation of
self employed spouse's sole proprietorship. Good sources on
incomes for doctors. Compensation surveys may be used for
determining compensation.
|
goodwilla
|
The
lower court was wrong. You don't basis goodwill based on the
one best year of income. You must look to other years also and
average them out. The formula is in footnote 14 of another
case: "Pursuant to this method:
A.
one first determines a practitioner's average
annual net earnings (before income taxes) by reference to any period
that seems reasonably illustrative of the current rate of earnings.
B.
One
then determines the annual salary of a typical salaried employee who
has had experience commensurate with the spouse who is the sole
practitioner or sole owner/employee.
C.
Next,
one deducts from the average net pretax earnings of the business or
practice a "fair return" on the net tangible assets used
by the business.
D.
Then,
one determines the "excess earnings" by subtracting the
annual salary of the average salaried person from the average net
pretax earning of the business or practice remaining after deducting
a fair return on tangible assets.
E.
Finally,
one capitalizes the excess earnings over a period of years by
multiplying it by a factor equal to a specific period of years,
discounted to reflect present value of the excess earnings over that
period. The period varies according to factors such as the type of
business, its stability, and its earnings trend."
IRMO Rosen, filed 1-23-03. IRMO Rosen (2003) 105 Cal.App.4th 808 Ybj
-216
|
Gp
|
Lopez
v. Martinez (2000) 85 Cal.App.4th 279 filed 12-6-00. Once the minor
child adopted by new father the grandparents have no visitation
rights under the law unless parents want them to visit. Ybj -106
|
Gp
|
Kyle
O. v. Donald R. (2000) 85 Cal.App.4th 848 - filed 12-21-00. Court
ordered visitation for grandparents unconstitutionally infringes
rights of father. Mother of child died and her parents wanted
extensive visitation even though dad was doing a good job of raising
the minor child. Ybj112
|
Gp
|
Ho
and Punsley (2001) 87 Cal.App.4th 1099.. Grandparents of dead son
seek visitation with his children. Family Code 3102. Mother found to
be fit and great discretion should be given her decision. She not
cut off visitation but just limit it. The court should have presumed
her decision best and the burden of proof on grandparents that she
was wrong. Ybj119
|
Gp
|
Grandparents
must show by clear and convincing evidence that parent's opposition
to visitation is detrimental to a child. Mom wins. There is a presumption that fit
parents act in the best interests of the minor child in their
custody. To overcome this presumption the grandparents must show by
"clear and convincing evidence" that the parents decision
for them not to visit would be detrimental to the child. Marriage of
Harris, filed 9-24-01, 92 Cal.App.4th 499. Ybj148
|
Gp
|
Steph
wins for reasons stated. The trial judge went off on his own. The
judge felt that Steph was not a good parent because she did not want
to grant grandparent visitation. He gave no weight to her child
raising decision. The basic test is what is in the best interest of
the child. Greater weight should be given to the child rearing
parent. The case is sent back to court to a different judge.
Zasueta case, filed 10-17-02 (2002) 102 Cal.App.4th 1242 Visitation
order granted to grandparents infringes upon parent's fundamental
right to exercise care, custody and control over minor children. Ybj205
|
Gp
|
For
grandparents. Under Family Code 3102 the law makes a special
exception when a parent dies. The grandparents do have a right of
visitation as long as it is in the best interests of the minor
child. Obviously special weight is given to the rights of the new
parents. However the courts still have the power to order
grandparent visitation when a natural parent of the child dies. Fenn
v. Sherriff (2003) 109 Cal.App.4th 1466
, filed 6-25-03 Ybj234
|
Gp
|
IRMO
Ross (2003) 114 Cal.App.4th 130 filed 12-10-03. Court abused its
discretion by denying paternal grandparents stipulated visitation
based on erroneous legal conclusions. Even though stipulated to the
court believe that Troxel says he cannot order any visitation. Not
true. Troxel was unconst. as applied in the circumstances of that
case.
|
Gp
|
IRMO
James and Claudine W. (2003) 114 Cal.App.4th 68 filed 12-9-03. Court
order permitting child's visitation with stepfather despite
opposition of biological parents is unconst. Psychologist want
stepfather to visit even though both parents against it. There is a
presumption favoring parental decisions. That presumption was not
overcome and so visitation should not have been ordered.
|
Gp
|
IRMO
Harris, supreme court of California. This is above at 148. filed
8-23-04. (2004) 34 Cal. 4th 210 Affirms the court of appeal. However
the record indicated the trial judge did not consider the rebuttable
presumption that grandparent visitation is not best for the child
when the custodial parent objects. Indications are that the
trial judge just used the best interest of the child standard.
Grandparents have the burden of proof on this. Lots of dissents and
concurring opinions. Really not seem to matter that much. Child now
age 10.
|
Gp
|
Miller
v. Cal Department of Social Services (9th Circuit 2004)
355 F.3d 1172 – Grandparents, who were also de facto parents, had
no substantive due process right to visit grandchildren when they
were dependents of court, and CPS and children's mother agree
visitation should cease.
|
Gpa
|
DJ
6-6-00 – Troxel v. Granville. Supreme Court of the United States.
Statute from Washington State allowing any person to petition for
visitation at any time, and authorizing courts to grant such rights
is unconstitutional. Ybj84
|
Hague
|
IRMO
Forrest and Eaddy (2006) 144 Cal.App.4th 1202 child move to
Australia with mom with dad consent. Child come to visit dad for
summer and dad wants to keep child. Dad claims harm based on Hague
Convention. Cal court says no. He must return child to Australia.
|
Hague
|
Child
of Ceullar and Joyce (2010) federal
filed 2-19-10 Abducted child (K.C.) must be returned to her country
of habitual residence for custody determination, absent narrow grave
risk of harm exception. – USA Dad goes to Panama and has baby with
woman there. She has baby for 19 months. She is poor. He abducts the
child and takes child to USA. Fact that she is poor and lives
with no running water and dirt floors is not grave risk of harm.
Young girl was healthy but poor. Being poor is not a grave risk of
harm under Hague. Otherwise people in USA would be able to take kids
easily because our standard of living is higher. The child must be
returned to Panama.
|
Hardship Child Support
|
But the granting of a
statutory hardship deduction is not automatic. Even though
the Code recognizes the circumstance as a "hardship," the
court must look to the facts of each case and consider the alleged
"hardship family's" income as well as itspurported
expenses. What may cause a "solid, middle-class family" to
experience "extreme financial hardship" probably would
have little (if any) economic impact on a "Donald Trump, J.
Paul Getty, or Bill Gates." [Marriage of Paulin (1996) 46
Cal.App.4th 1378, 1382-1383, 54 Cal.Rptr.2d 314, 317--hardship
deduction reducing H's child support obligation upon birth of twins
from new marriage affirmed]
|
|
hardshipa
|
IRMO
Henry and Reismueller filed 1-28-05 – Family Code 4070 and
71 hardship not mandatory and only when only unusual circumstances.
It is discretionary. Not automatic on birth of child. Not in
standard deductions of Family Code 4059. Usually only when the
reasonable living expenses are unusually high in context of the
family income. If current husband has job perhaps not figure in.
|
Health
care
|
6:339
If both ordered to carry health insurance the primary plan
responsibility generally follows custody. Inter valley Health v Blue
Cross (1993) 16 Cal.App.4th 60, 66-67
|
Healtha
insurance
|
Husband
wins for reasons stated. This is a form of fringe benefit that the
courts should not have to divide. A health insurance subsidy is not
the type of asset to be divided in a dissolution. Retirement health
insurance subsidy can't be divided by the court.
IRMO Ellis (2002) 101 Cal.App.4th 400
Ybj194
|
Hearsay
|
People
v. Williams (1992) 3 Cal.App.4th 1535, 1542 – utility bill, two
bills and fishing license in persons residence are not hearsay that
he lives there. It is circumstantial evidence that he lives there. Good
way to get around hearsay.
Admissible for showing residency and not hearsay.
|
Home
|
IRMO
Weaver (2005) 127 Cal.App.4th 858,
filed 3-21-05. Property help by husband and wife as joint tenants
is Community Property though husband testified that wife was
included on deed by mistake. Two issues: Husband put his
Separate Property money into down payment on house before Marriage
into joint tenancy. He is still entitled to reimbursement of
the Separate Property interest he put in as to what the value was
then, even though they were not married at the time. IRMO
Rico (1992) 10 Cal.App.4th 706.
the court is authorized to order and equitable compensatory
adjustment to compensate the parties for their respective use of
Separate Property funds to purchase and improve the residence.
Issues two: Husband had house in his and his parents name.
His father died and mother and he deed house over to mother, son and
his wife. They claim wife put on by accident. They
lose on this issue. Rather complicated. He had ownership
first as his Separate Property and then he deeded over and part
Separate Property and part Community Property. See case for details.
Other good information on Neal,
Anderson and other cases when refinance and sign over house to joint
tenancy and it is a valid transfer. Good Points and Authorities for
transfer in escrow.
|
Home
|
IRMO
Sherman (2005) 133 Cal.App.4th 795 filed 7-20-05. Court must
value Community Property interest in husband's residence as of date
of trial absent showing of increased value by individual efforts.
Moore-Marsden discussed when here he owned the house years before
Marriage. Bono v. Clark distinguished.
|
Home
sale
|
Marriage
of Montgomery and Harwood (2008)
161 Cal.App.4th 745 filed 4-1-08
Husband should pay wife her remaining share of proceeds
for sale of family residence pursuant to terms of marital settlement
agreement. Stipulation judgment that wife have use of the house.
Once house sold proceeds split 50-50. Orders on Child Support also. Husband
pay wife more than the Child Support to help her out. She
make out quitclaim deed to him for sale of house. He sell house and
give her half the proceeds, less the excess monies he paid to her
when she lived in the house. Appeals court says he can't deduct the
excess he paid her. It was a gift. Not an accord and
satisfaction here. Accord and satisfaction need:
1.
Bona
fide dispute between the parties.
2.
The
debtor send a certain sum on the express condition that acceptance
of it will constitute full payment, and 3. the creditor so
understand the transaction and accepts the sum. This can be implied
by the surrounding circumstances. Those circumstances did not exist
here. He cannot deduct the excess money as a gift from the house
proceeds.
|
Home
title
|
IRMO
Ruelas (2007) 154 Cal.App.4th 339. Parents purchase house and make
payments. House in daughters name. Daughter intended to take title
for her parents. H in dissolution claims it is Community Property.
All evidence is that it is a resulting trust. Resulting trust
is when transfer of realty is made to one person, and the
consideration therefore is paid by or for another. A trust is
presumed to result in favor of the person by or for whom cash
payment is made. The trust is presumed to result from this situation
is a resulting trust.
Constructive trust is
to rectify fraudulent behavior. Can still have resulting trust even
if the money payments came after the transfer and not before. That
is to say the parents made the monthly mortgage payments after she
had the house in her name.
House belongs to the parents on
resulting trust theory.
|
House
|
Orapallo:
Foreclose and want deficiency judgment.
Ex-husband wins. California has a unique law in C.C.P.
580d. She had the choice and took it. Once she wants a non-judicial
foreclosure she is bared from suing for the rest of the money. She
cannot "have her cake (non-judicial foreclosure) and eat it too
(get deficiency judgment)." Marriage of Oropallo (1998) 68 Cal.
App. 4th 997. It is common for parties to do a note secured by a
deed of trust to secure a debt in family law. This is a warning that
it could backfire with the real estate market in a down situation.
Ybj28
|
House
|
IRMO
Neal (1984) 153 Cal.App.3d 117
Put house in joint tenancy even for refinance makes it a
Community Property house. Here wife has Separate Property
house prior to Marriage. Refinance after Marriage and put in both
names because lender insists. It is Community Property presumption
absent written agreement. She only entitled to Separate Property
reimbursement. Family Code 2641 her only remedy. Deed
|
house
|
IRMO
Gale filed (2004)122 Cal.App.4th 1388 10-6-04 Petition for
dissolution which does not mention specific real property does not
support lis pendens notice filing. Petition filed listing assets
as "such assets as may be discovered at a later date or the
full nature and extent of Community Property is unknown at this
time. This is not adequate for a lis pendens. Must be able to
ascertain from the pleadings what the realty is. Specific
address need in pleadings filed. Declaration of Disclosure just
putting it in there will not do. Must be in pleadings themselves.
|
House
Creditor
or lender intent.
|
IRMO
Grinius. (1985) 166 Cal.App.3rd 1179 – Loan proceeds during
Marriage are presumed to be Community Property. Can be rebutted by
showing that the lender relied solely on the Separate Property of
the owner spouse. It is difficult to make such a showing largely
because the owner spouse is required to list and verify his or her
spouse's income and other assets that are Separate Property.
Loan proceeds acquired during Marriage are presumptively
Community Property; however, this presumption may be overcome by
showing the lender intended to rely solely upon a spouse's Separate
Property and did in fact do so. Without satisfactory evidence
of the lender's intent, the general presumption prevails.
See Family Code 910 also.
|
House
|
IRMO
Stoner (1983) 147 Cal.App.3rd 858 holds that a spouse executing a
quitclaim deed waives any Community Property interest in ownership
of the property, loan proceeds realized in the transaction and an
accrued Moore-Marsden interest in the property. --- IRMO Branco
(1996) 47 Cal.App.4th 1621
while rejecting the Stoner ruling as it pertained to a Moore/Marsden
waiver, accepted the Stoner ruling as it applied to waiver of a
Community Property interest in the loan proceeds.
|
House
|
IRMO
Moore (1980) 113 Cal.App.3rd 22, 27 – The burden of proving a
waiver of rights in property by clear and convincing evidence
includes the obligation to prove that the party allegedly waiving
the rights has full knowledge of the rights which he or she
purportedly waived. –
The burden required to validate an alleged waiver includes that the
waiving party knowingly waived rights after full knowledge of those
rights. Thus where a party is unaware of the rights allegedly
waived, there can be no valid waiver. Roesch v. DeMota (1944) 24
Cal. 2nd 563 at 572
|
House
- trans
|
Husband
deed over his interest in the house to her. They agree that his
retirement is his Separate Property but not put in writing. FAMILY
CODE 852 requires transmutations to be in writing. However this part
performance of his signing over to her takes it out of the statute
of frauds. MARRIAGE OF Benson (2003) 114 Cal.App.4th 835. Part
performance may be applied in proper cases and exempt oral marital
transmutation agreements from the application of 852. – Supreme
court of Cal reversed this.
|
House
Separate Property
|
Subsidies
for mortgage payments made by spouse's employer are Separate
Property following marital separation. Wife wins for reasons stated. The housing
allowance was a form of income. It was to be sure that she continued
in the job. After the Date of Separation it is a form of Separate
Property income and is hers alone. IRMO Doherty, filed 11-18-02
(2002) 103 Cal.App.4th 895. This case involved a house.
Ybj210
|
Housea
|
Hokanson:
Wife camp out in house and it goes down in value - ."
Ex-husband argues: "She delayed the sale, the market kept going
down and the Realtors advised her of this. I should receive a credit
against any monies owed her as an equalization payment in the
divorce. The credit she should pay me is what my share would have
been had the house sold before she started the delays.
Ybj25
|
Immunitya
|
For
Psychologist for reasons stated. Policy reasons confer
quasi-judicial immunity to neutral third persons who are engaged in
mediation or evaluation or similar dispute resolution efforts. There
is also a privilege as to what is said in the report. Even though
the psychologist did a lousy job she cannot be sued by one of the
parties. Howard v. Drapkin (1990) 222 Cal.App.3d 843. Psychologist
Robin argues: "Vickie should not be able to sue me. I am
entitled to immunity as a quasi judicial officer participating in
the judicial process. Just as a judge cannot be sued in a case
concerning the judges ruling, so also I should not be sued because
of judicial immunity. There is also a litigation privilege that
protects me." Ybj228
|
impute
|
Current
law is that Child Support is not imputed when a person lacks either
the ability or opportunity to work. The fact that he
is in jail is not relevant to this determination. Dad molested the
daughters and went to jail. No income should be imputed even when he
benefits from his criminality in not having to have Child Support
imputed to him. Marriage of Smith (2001) 90 Cal.App.4th 74.
Ybj131
|
Impute
|
Court
doesn’t abuse discretion in imputing income from father's real
estate investments that were not income producing and awarding Child
Support based in part on this amount. Mom wins. The court can impute
income under Family Code 4058. A reasonable rate of return can be
deducted from his Separate Property and this can be used in setting
reasonable Child Support. Marriage of Destein, filed 8-30-01 (2001)
91 Cal.App.4th 1385
Ybj140
|
Impute
|
Income
from Separate Property stock options can be considered income even
if not cashed in yet. It is a huge asset and can figure an imputed
amount on it of income. . Iris wins for the reasons she stated.
Marriage of Cheriton, filed 9-14-01., 92 Cal.App.4th 269. All this
intellectualization about sources of income for Child Support fail
when common sense is used. The interest on $45 million alone would
be huge. David should have worked out a settlement here.
Ybj143
|
Impute
|
Mom
wins for the reasons stated. Family Code 4058(b) does allow imputing
income to the custodial parent but only if it is in the best
interests of the children. Also Family Code 4058(c) excludes income
from public assistance and Child Support for other children of
another relationship. Marriage of Cheriton (2001) 92 Cal.App.4th
269. Here mom has four young children.
Ybj163
|
Impute
|
IRMO
LaBass and Munsee (1997) The court may, in its discretion, consider
the earning capacity of a parent in lieu of the parent's income,
consistent with the best interests of the children 4058(b). Earning
capacity is composed of 1. the ability to work,
including such factors as age, occupation, skills, education,
health, background, work experience and qualifications 2. the
willingness to work exemplified through good faith efforts, due
diligence and meaningful attempts to secure employment; and 3. an opportunity
to work which means an employer who is willing to hire. Page
1337-1338
|
Impute
|
Mom
wins for the reasons she stated. He is sitting on a $25M house on 40
acres of land and can sell it and still have a fine residence. The
fact that they lived on his Separate Property income is not relevant
to the children. He still has to support their children. IRMO
DeGuigne (2002) 97 Cal.App.4th 1353
Ybj179
|
Impute
|
For
mom for reasons stated. Under Family Code 4058 income can include
many different things. There is really no limit to what can be
considered income. The court here limited it to income that was job
related. An argument could be made that living with the parents rent
free is a form of income. Stewart v. Gomez (1996) 47 Cal.App.4th
1748 Ybj235
|
Impute
|
·
In re Marriage of Scheppers (2001) 86 CA4th 646
Nancy and Dennis Scheppers were divorced in 1987. The following
year, their 22-year-old son committed suicide, and Nancy received
$200,568 in proceeds as the beneficiary of his life insurance
policy. Later that year, she filed an OSC, seeking increased support
for the parties' two minor children who were still living with her.
In opposition, Dennis contended that the trial court should include
the insurance proceeds in Nancy's income for 1998. At the hearing,
the court found that the proceeds were an asset, not income, but it
did include a 10% return on those proceeds in her income; it then
ordered Dennis to pay $2,991 in monthly child support.
·
In the Fourth District held that proceeds from
student loans and life insurance policies are not income for
purposes of calculating child support. In In re Marriage of Rocha
(1998) 68 CA4th 514
·
consider a father's substantial reduction in
living expenses that resulted from his inheritance, although the
inheritance itself did not have to be included as income for
purposes of calculating child support. In County of Kern v. Castle
(1999) 75 CA4th 1442, 89 CR2d 874,
·
In In re Marriage of Schulze (1997) 60 CA4th 519
the Fourth District impliedly followed Stewart to hold that a rent
subsidy and a car furnished to the payor by his parent-employers
were includible in his gross income as employee benefits.
·
consideration of the fair market value of free
housing and a meal allowance as income for the purpose of
calculating child support. In Stewart v. Gomez (1996) 47 CA4th 1748,
|
Impute
|
Cash
from sale of business see In re Marriage of Perrlstein (2006) 137
Cal.App.4th 1361 – if cash from sale of business not
invested as capital but used for spending on living expenses, etc.
then request the court include the cash realized as income for Child
Support. Also sales of stock.
|
Impute
|
In
re Marriage of Hinman (1997) 55 Cal.App.4th 988. Non-custodial
parent was not working because she was caring for children from new
family. Court imputed income.
|
Impute
|
In
re Marriage of Wood (1995) 37 Cal.App.4th 1059. Ms. Wood married a
wealthy man and stopped working. Court imputed income.
|
Impute
|
El
Dorado and Nutt (2008)
167 Cal.App.4th 990 filed
10-21-08. Court may reserve jurisdiction on amount of Child Support
owed by jailed father who is unlikely to be released or earn income.
Compared to Smith case at 90 Cal.App.4th 74. Here court did not
impute income to Nutt. Just reserved jurisdiction if he ever does
have income. This is OK.
|
Impute
income
|
IRMO
Eggers (2005) 131 Cal.App.4th 695
filed 7-28-05. Former husband and father loses job due to his
bad conduct. The trial court imputes income. Court should have
inquired about father having the:
1.
ability
to work,
2.
willingness
to work and
3.
opportunity
to work which means an employer ready to hire.
If
factors 1 and 3 are present and he not willing to work then court
may impute income.
Also look and see if father had assets to pay Child Support.
|
Impute
income
|
In
re Marriage of Bardzik (2008)
165 Cal.App.4th 1291 filed
7-25-08 parent seeking
to modify Child Support order bears burden of proving other
parent's ability and opportunity to earn imputed income. The
party claiming that the other party should have income imputed bears
the burden of proof on this. Look for ability and opportunity to
earn income. Good case on imputing income.
|
Impute
income
|
Mendoza
and Ramos (2010) filed
3-3-10 – court properly declines to attribute income to parent for
purposes of determining Child Support where parent received CalWORKs
assistance. – CalWORKs is a welfare to work program. Can't
impute income to someone on it since it has been determined
they can't get a job. Can't impute income since CalWORKs determines
that they can't be employed without the special training.
|
Impute
income
|
IRMO
Berger (2009) 170 Cal.App.4th 1070
filed 1-29-09 Father
who defers salary from unprofitable company while supporting
extravagant lifestyle with other assets warrants departure from
guidelines for calculating Spousal Support. – Impute
income not strictly here. To impute income even if person quit job
must show he has the ability and Opportunity to get the same type
job. Even if qualified can he get that job again. – this case
different. Dad previously made good money. He start new self
employment and plow back his earnings into the company. He live well
on his property owned. He can't cut back on income to deprive his
children of support. Court should determine his income from job what
it would be and use that for support. Family Code 4057 "include
but not limited to"
|
Imputea
|
Philbin:
Lower support because can't find better job --- The court lowered
both child and spousal support. There was no evidence of dad
deliberately shirking his support obligations. There was no evidence
that he had failed to make reasonable efforts to obtain employment
that would pay more. Bottom line is that his income is lower so
support should be lowered. Marriage of Philbin (1971) 19 Cal. App.
3d 115. Ybj12
|
Income
|
Padilla:
Impute income Child support will be figured on the previous high
paying job. His child is not a voluntary participant in his risk
taking. His actions may be sincere but the bottom line is the
children need the support. He should have put extra child support
money away in the bank before he started his business. The
children's interests are top priority. Marriage of Padilla (1995) 38
Cal. App. 4th 1212. --
Ybj9
|
Income
|
In
re Marriage of Cohn (1998) 65 Cal.App.4th 923
Impute income on unemployed attorney Good case for how the
courts should impute income and what can be done to show imputed
income or lack of income. Ybj31
Impute income see In re Marriage of Cohn (1998) 65
Cal.App.4th 923.
|
Income
|
Denial
of hardship deduction in parents child support obligation on ground
welfare payments were being made to child was not unconstitutional
on equal protection grounds. San Francisco v Garnett (1999) 70
Cal.App.4th 845 "The
law is the law. The purpose of the law is to provide the maximum
recoupment to the state from parents of public funds spent on their
children's basic needs. This is a rational interest the state
has" Ybj53
|
Income
|
The
accounting was wrong. She could have worked a full 36 hour week of
three 12 hour days. The court should have figured regular pay for 24
hour and time and a half for 12 hours more. IRMO Graham (2003) 109
Cal.App.4th 1321, filed 5-21-03. Not a major case. Appeals court
just corrects the faulty figuring of income. Court abused its
discretion in applying excessive hourly rate to determine parent's
gross monthly income. Ybj232
|
Income
|
IRMO
Riddle (2005) 125 Cal.App.4th 1075,
filed 1-14-05. representative sample must be used in calculating
a salesman's income for Child Support
and spousal support. Not much new here. Must use more
representative income than just two months. Family Code 4060 says to
use a year unless it does not accurately reflect actual or
prospective earnings.
|
Income
|
IRMO
Henry and Reismueller (2004) 126 Cal.App.4th
111 filed 1-28-05 home increased in value several thousand
dollars a month. DataQuik can support. The monthly increase cannot
be used to figure income as imputed income. It was a residence and
not investment property.
|
Income
|
Generally,
gross income is broadly defined for Child Support and
Spousal Support in the statutory scheme. On the other hand deductions
from gross income provisions are specific and narrowly construed.
In re Marriage of Steward and Gomez (1996) 47 Cal.App.4th 1748,
1755.
|
Income
|
M.S.
v O.S. (2009) filed 8-7-09 Attorney
fees , as opposed to bonuses, cannot be included as income for
purposes of calculating Child Support obligations. Indian dad gets
300k per year for being Indian on whose land casino is. Tribe pays
for all kinds of things. Like housing and attorney fees for court.
Attorney fees are paid by tribe and taxed to him. However it is not
considered income for guideline. However it can be considered
under 4057 on the impact his attorney fees paid have on his living
expenses.
|
Income
and E
|
CRC
5.21 CRC rules control over other statutes if in conflict.
CRC
5.118. Application for court order
(a)
No memorandum of points and authorities need be filed with an
application for a court order unless required by the court on a
case-by-case basis. - (f) The court may grant or deny the relief
solely on the basis of the application and responses and any
accompanying memorandum of points and authorities.
CRC
5.128. Financial declaration
(a)
A current income and Expense Declaration (form FL-150)
or a current Financial Statement (Simplified) (form FL-155), when
such form is appropriate, and a current Property Declaration (form
FL-160) must be served and filed by any party appearing at any
hearing at which the court is to determine an issue as to which such
declarations would be relevant. Current is defined as being
completed within the past three months providing no
facts have changed. Those forms must be sufficiently completed to
allow determination of the issue.
(Subd
(a) amended effective January 1, 2003.)
(b)
When a party is represented by counsel and attorney's fees are
requested by either party, item 19 of the income information
attachment to the income and expense declaration and item 4 on the
expense information attachment shall be fully completed the section
on the Income and Expense Declaration pertaining to the amount in
savings, credit union, certificates of deposit, and money market
accounts must be fully completed, as well as the section pertaining
to the amount of attorney's fees incurred, currently owed, and the
source of money used to pay such fees. A Financial Statement
(Simplified) is appropriate for use when a party's sole income is
from salary, wages, disability benefits, unemployment insurance,
workers' compensation, Social Security, retirement benefits, or
public assistance.
(Subd
(b) amended effective January 1, 2003.)
|
Income
from business
|
IRMO
Blazer (2009) filed
8-25-09 Former H ran
business and it needed certain capital improvements. He takes money,
profits from business, and puts the money back into the business to
improve it. The money invested in the business should not be
considered income for him. Family Code 4058(a)(2) excludes from
income expenditures require for the operation of the business.
|
Incomea
|
Labass:
lazy teacher who not work
: "The law is the law. The purpose of the law is
to provide the maximum recoupment to the state from parents of
public funds spent on their children's basic needs. This is
a rational interest the state has. Here mother had income imputed to
her. Ybj6
|
indians
|
The
Indian Child Welfare Act (25 USC § 1901 et seq.) provides for
"exclusive" tribal jurisdiction in foster care,
termination of parental rights and adoption proceedings involving an
Indian child who resides or is domiciled within the reservation. [25
U.S.C. 1903(1), 1911(a) and Mississippi Band of Choctaw Indians v.
Holyfield (1989) 490 U.S. 30, 36
|
Inheritance
|
Estate
of Will (Anderson V. Tinsley) (2009) 170 Cal.App.4th 902 Dad does
will. Later he meet lady and they marry. They do prenuptial
agreement that both give up any interests in the others property. He
dies. Wife now says it was not a valid prenuptial. It is true it
is not valid as a prenuptial but is valid and independently
enforceable as per Probate Code 140 et seq. under probate code can
waive any interests in the others property which she did.
|
insurancea
|
Community
Property interest in employment related group term life
insurance extends only until term acquired with Community Property
effort expires, even if insured becomes uninsurable.
Marriage of Spengler (1992) 5 Cal.App.4th 288
|
Interstate
|
California
court retains jurisdiction over Child custody action when one parent
continued to reside in this state. Reaffirms Kumar. Family Code 3422 is vague on
language but as long as one parent lives in California and the other
parent move out of state the Cal court has jurisdiction since one
parent still lives here. Grahm v. Los Angeles (2005) Grahm v.
Superior Court (Zohar) (2005) 132 Cal.App.4th 1193
filed 9-23-05
|
·
Interstate modify
|
·
Dad wins for reasons stated. Family Code 4962 is
based on an interstate compact and the word "residence"
has the same meaning as domicile here. She could still register the
New Mexico order in California and it could be enforced, but not
modified. IRMO Amezquita, (2002) 101 Cal.App.4th 1415 filed 9-13-02.
YBJ 197. Military duty in California does not render individual a
"resident" of state of purposes of modification of support
orders. Ybj198
|
Interstatea
and Spousal Support
|
Ex-wife
wins for reasons stated. California may not modify a Florida court's
Spousal Support order although both parties no longer reside in
Florida. It would be different with Child Support. Ex-husband will
have to go back to Florida to modify the Spousal Support. Marriage
of Rassier (2002) 96 Cal.App.4th 1431. Ybj169
|
Joinder
|
Schnable
v. Superior Court (1994) 30 Cal.App.4th 758 good on joinder of
closely held business. Closely held business was very
favorable to the husband.
Theories of joinder and why do so on closely held business or
closely held corporation. Getting discovery, etc.
|
Judge
error
|
In
re Marriage of Carlsson (2008) 163 Cal.App.4th 281
filed 5-8-08 In divorce case, judge's abrupt ending of trial
before completion of husband's case constitutes reversible error.
Judge very crude in hurrying things through. He leave during
witnesses testimony in middle of. Denying a party the right to
testify or present evidence is reversible per se.
|
Judgments
10
years old are they valid?
|
IRMO
Wilcox (2004) 124 Cal.App.4th 492.
Wife has family law judgment over ten years old. CCP 683.010 has ten
year time limit for renewal of judgment. Does Family Code 291
control or what. CCP 683.310 excludes family law judgments from the
ten year rule of CCP 683.130. Family Code 291 is just for
orders for possession or sale of property .
This does not include money judgments. Section
683.310 exempts all judgment made or entered under the Family Code
from the ten year time limit for renewal outlined in the CCP unless
the Family Code specifically
provides otherwise. Family Code section 291 specifically
provides that those judgments entered for the possession or sale of
property are subject to the CCP ten year time limit for renewal.
|
Juris
|
Andy
wins. He wins because he objected. Had he not objected the orders
would have been made. Andy had minimal contacts with this state.
This is a form of divisible divorce. She can get an order ending the
status of the Marriage. However for Spousal Support and the Georgia
realty she must go to Georgia. IRMO Muckle (2002) 102 Cal.App.4th
218 filed
9-19-02. Trial court cannot exercise jurisdiction over husband,
resident in Georgia, for purposes of adjudicating rights in Georgia
property and Spousal Support. Ybj199
|
Juris
|
"This
should not have been delegated to arbitration. It takes away from
the court the jurisdiction to make orders to protect the minor
children. The arbitration award is void." -- For Brad for
reasons stated. The parties cannot stipulate to future binding
arbitration. The court implies the arbitration award may have been
acceptable if the court was just asked to review it. The court seems
negative on arbitration on Child Support issues. Even if an
arbitrator is used the court can still review it. IRMO Bereznak
(2003) 110 Cal.App.4th 1062 Ybj239
|
Juris
|
IRMO
Holder, federal case filed 12-9-04. Children's habitual residence
was not established by 8 month stay on military base in Germany.
Parents and kids in Germany military at base. Mom takes kids back
home. Dad claims Germany is home. Hague Convention case. Mother
considered California the home. Dad not meet burden of proof. Long
case.
|
Juris
|
IRMO
Dick (1993) 15 Cal.App.4th 144
– husband not a citizen of USA. He on immigration status as a
tourist. He can still file for dissolution in California.
Nonimmigrant alien status does not bar that party from establishing
domicile for purposes of a disso in California.
|
Jurisa
|
Marriage
of Newman filed 5-11-00. Court erred in quashing Cal. dissolution
petition based on petitioners failure to challenge foreign courts
jurisdiction. Cal. court
dissolution brought in new issues not adjudicated in out of state
case. Ybj82
|
Jurisdiction
|
Ferraris
and Alexander (2005) filed 1-25-05. Court determining habitual
residence in Hague Convention petition may focus on intent of mother
when father was never part of family unit. Mom wanted to have baby.
Had sex with Ferraris for baby. She in Italy at the time. She never
intended to stay. His claim on keeping Italy as jurisdiction fails.
He was never part of the family.
|
Jurisdiction
|
Adoption
of Lauren D. (2007)
filed 10-26-07 Divorce court has continuing exclusive
jurisdiction over custody award terminating natural parent's rights
and permitting children's adoption by stepparent. Divorce in
Yolo county and order on custody. Mother later move to Sacramento
and she and new husband file for adoption of the children. Can't do
it. Yolo has exclusive jurisdiction. Can do motion to change venue
but that is all. Concurrent jurisdiction means that two courts
could exercise jurisdiction but the first to exercise jurisdiction
has exclusive jurisdiction and not both.
|
Jurisdiction
|
IRMO
Richardson (2009) 179 Cal.App.4th 1240 – Trial court lacked
jurisdiction to adjudicate custody on child in Japan. UIFSA and
UCCJEA discussed. However court could order Child Support since no
Japanese order.
|
Juvenile
court jurisdiction
|
The
juvenile court has paramount and exclusive jurisdiction over matters
relating to the custody of and visitation with a child who is the subject of a juvenile court
dependency proceeding. Until the dependency petition is dismissed or
dependency terminated, the family court's child custody/visitation
jurisdiction is preempted. [Ca Wel & Inst § 304; Ca Rules of
Court Rule 1429.1(a)]
|
laches
|
Marriage
of Sweney. Dj 11-22-99. Enforcement of dormant 1963 child support
judgment is barred, notwithstanding later enacted statute making
such judgments enforceable until paid in full Ybj70 – see Moyse
below
|
laches
|
Fogarty
v. Rasbeary filed 3-14-00. Mother is not entitled to unpaid Child
Support when she waits 17 year to pursue the claim. Laches defense
is valid. Ybj76 see Moyse below
|
Laches
|
Green
v. Cutler. filed 3-30-00 30 year old Child Support order not
extinguished by laches, failure to renew or lack of diligence.
Laches would have been a defense but he had unclean hands and never
visited the child. Ybj78 see Moyse below
|
Laches
|
Black
v. Dancy 2000 – Laches is a defense in all Child Support cases and
does not need to be specifically pleaded as an affirmative defense.
PJ dissents on certain issues. Fourth District case Ybj93 see Moyse
below
|
Laches
|
Marriage
of Copeman filed 6-29-01 (2001) 90 Cal.App.4th 324. Laches is
defense to non payment of Child Support arrearages. This is true
even thought the kids still minor age. She simply waited too long to
ask for back support. Fourth District follows this because unless
the legislature specifically excluded laches then laches can be
asserted. Ybj132 see Moyse below
|
Laches
|
Dad
can plead laches in court. Laches is an available defense to
nonpayment of Child Support. Even though one of the children is
still a minor the defense is still available. Marriage of Copeman,
filed 6-29-01. Different court of appeals have gone different ways
on this issue. Hopefully the California Supreme Court will make a
ruling. THIS IS SAME AS THE ABOVE NUMBER 132 Ybj133 see Moyse below
|
Laches
|
Marriage
of Moyse and Fellows (2004) 121 Cal.App.4th
607 filed 8-11-04. Law that limits ability to assert
defenses to support obligations applies retroactively. Family
Code 4502 on laches for past due Child Support. 4052 says
laches not a defense except for money owed state for welfare
reimbursement. Should 4502 be retroactive? Yes says court of appeal.
It should be retroactive. CODE CIV. PROC. section 3 says not made
retroactive unless expressly so declared.
Laches is not a fundamental right. It is a procedural right.
Affirmed by Cal Supremes in 39 Cal. 4th 179. Good discussion of
retroactivity on laws.
|
Laches
|
IRMO
Fellows and Moyse (2006) 39 Cal. 4th 179. filed 7-20-06.
Reaffirms the lower court decision above. Family Code 4502(c)
says laches not apply on any support except money owed government.
This applies retroactively. Overrules Garcia. This reaffirms
the lower court opinion in this case from trial court and court of
appeal.
|
Lachesa
|
Riverside:
How far back in filing for DA reimbursement on child support. Ybj30
|
Licensea
|
USA
wins. Interstate travel is constitutionally protected but not to
travel outside of the USA. Congress has decreed that her duties to
her children must take precedence over her international travel
plans. Since she is behind in Child Support she has no right
to travel outside of the USA. Eunique v. Powell, filed
2-22-02 Ybj162
|
Liena
|
Fletcher
v. Davis (2004) 33 Cal. 4th 61 specific requirements for attorney
lien in a case. Specific requirements as per rules of conduct rule
3-300 for attorney charging lien. See templates 1lien
|
Life
ins
|
Federal
preemption means that military insurance policies and their
proceeds are Separate Property Ridgway
v. Ridgway (1981) 454 U.S. 46, 61
|
Ma
|
Family
Code 7501 codified Burgess as move away moveaway 1-4-05
|
Ma
|