DAVID F. BLAISDELL
 Attorney at Law

23020 Atlantic Circle
Moreno Valley, CA  92553
Phone: 951-247-1977 


David F. Blaisdell
Attorney at Law

 
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If you know anyone with  family law questions please refer them to this office. Thanks.
 
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Tables for family law pleadings   I am a divorce attorney in Moreno Valley. I have a free consultation. Please tell others. You can copy and paste these and put them directly into your pleadings and modify them for your special needs. 

    IN THE BELOW, WE MAY NOT BE TOTALLY CURRENT. WE MAKE EVERY EFFORT TO DO SO, BUT THE LAW AND OTHER INFORMATION IS SO FAST CHANGING THAT WE CANNOT GUARANTEE THE ACCURACY OF EVERYTHING BELOW.  Keep in mind with these tables it serves two purposes. It is a automatic checklist for you and it makes it easier for the reader (judge or mediator) to read and understand. The judge may be handling 20 or more other cases. There is only a certain amount of time for you and you want your pleadings to be easy to read and understand.   

Special section on recent and important family law cases and concepts in alphabetical order

  1. Factors on custody and visitation with checklist built in (Most of the below have a checklist built in). 

  2. Notes on family law cases - These are raw notes. Read the case also. 

  3. Two week visitation schedule.

  4. Things parent and child do together. 

  5. Quality time when children awake and not in school. Time share when the children are not in school or sleeping. Time share when children are with a parent. 

  6. Move away factors. When one parent wants to move out of the area. 

  7. Arrears owed. When one parent is behind in support, medical reimbursement, etc

  8. Types of income. What constitutes income. 

  9. Annual gross income. More information on income. 

  10. Marital Standard of Living (MSOL) and spousal support. This is very important to include whenever there is an issues about long term spousal support. 

  11. How to find the cost of health insurance. Be sure to use this because the cost of health insurance is a factor in the computer program (X-Spouse) for figuring spousal support. 

  12. Factors on income for support. You should have access to Family Code when figuring this. 

  13. If making payments on debts after the date of separation. You should get reimbursement for these. The key is to keep accurate records. 

  14. Help in valuing a small business. You may think your spouses business is worth little because it is a one person operation. Think again. 

  15. Family business operations. Who should run the family business after separation?

  16. Transmutations. Did you sign over the house, other realty, car or other property to your spouse? Think you are out of luck since you signed off on it? Wrong. Please read this. 

  17. DVPA factors on violence. Checklist on violence. Three different tables here  

  18. TimeLine tables These are handy for just about anything. When events happen over time this is an easy way to categorize it all. 

  19. Date of separation factors. This may be important in assigning debts, length of marriage for retirement and other factors. 

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  22. THERE IS A LARGE AMOUNT OF INFORMATION HERE. YOU MIGHT USE "CONTROL + F" TO FIND WHAT YOU ARE LOOKING FOR. 

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  26. We will add more tables for pleadings and checklists in the future. We are always under further construction. 

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TABLES YOU CAN PASTE INTO YOUR PLEADINGS

              Below are various tables involving the law. You can just copy and paste them into "word for windows" and modify them. The good point about these tables is it is an automatic checklist of major points. Anything that does not apply to your case you can just delete the row and it will automatically renumber itself. 

 

FACTORS ON CUSTODY AND VISITATION

PROPOSAL OR COMMENT

1)     Why I should have custody of our child or children.

 

2)     What I can do for the child(ren) that the other side is unable or unwilling to do?

 

3)     My proposal for time share and visitation and why.

 

4)     My proposal for problem solving and reducing conflict.

 You can just copy and paste these tables into your word processor and modify them. The good point about these tables is it is an automatic checklist of major points. Anything that does not apply to your case you can just delete the row and it will automatically renumber itself. These cells will also automatically expand with more data typed in.

5)     My plan for supervision and care for the child(ren) when I am not there.

 

6)     The other parent has proposed a time share that I do not agree with and the reason why. 

 

7)     My plan for specific arrangements for holidays and special days.

 

8)     Comparing our parenting skills. Strengths and weakness of both of us.

 If you know anyone with family law questions please mention this site to them. Let them know the first consultation is free. If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977. Thank you.  www.BlaisAtty.com

9)     Lifestyle of myself and other parent. Strengths and weaknesses in reference to the child(ren).

 

10) Schedule I will keep with the child(ren) and compare to other parents probable schedule.

 

11) Types of things I do with the child(ren) compared to the other parent.

 

12) School activities each of us participates in.

 

13) Specific complaints I have about the other parent on parenting skills.

 

14) The things the other parent will use against me. What are the basis for the claims.

 

15) Special needs of our child(ren) and how I will meet them.

 

16) Attach any school records in reference to negative behavior of other parent or that show my good parenting skills.

 

17) Activates and interests I currently share with the child(ren)

 

18) FC 3024 notice of contemplated move.

 

19) FC 3025 access to records and information on kids like school and medical records.

 

20) FC 3040 The court should consider which parent will let the other have visitation and do a parenting plan.

 

21) FC 3041 Necessary findings before grant custody to non-parents.

 

22) FC 3042 The wishes of the child should be considered in ordering custody.

 

23) FC 3044 Presumption against joint custody when family violence in last five years.

 

24) FC 3046 short absence of parent or absent because of violence.

 

25) FC 3080 Presumption, affecting the burden of proof, that joint custody is in the best interests of the child where the parents have agreed to joint custody.

 

26) FC 3181 Separate mediation where domestic violence.

 

27) FC 3200 and following, request supervised visitation.

 

28) FC 3041 finding necessary to grant custody to non parents.

 

Return to top  

 

  NOTES ON FAMILY LAW CASES

   Below are notes on family law cases. There are a large number. We suggest you use Control + F to search by keyword. You can find information on legal research and finding cases in the QDRO section 1. Much of the below may not make total sense. That is because it was designed, not for the public, but for the attorney at this office. Perhaps the below is a help and perhaps not. You decide. 

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. [Ά] [Ά] ... 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 Ά7:573

 

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 (Ά17:245), 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 Ά7:324 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 Ά6:311.6]   

 

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 Ά8:1276 (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-ΰ-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 Ά8:612 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 Ά8:220 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 Ά8:255.    

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